author: Donald L. Corbin, Justice.

text:
    Lance Alan BRANSCUM v. STATE of Arkansas
    CR 00-782
    43 S.W.3d 148
    Supreme Court of Arkansas
    Opinion delivered May 17, 2001

      Robert L. Herzfeld, Jr, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Lance Alan Branscum appeals the order of the Pulaski County Circuit Court convicting him of capital murder in the death of Julie Irmer. On appeal, Appellant argues that the trial court erred by: (1) denying his motion for a directed verdict; (2) admitting his custodial statement, because it was not given voluntarily; and (3) admitting certain photographs of the victim, because their prejudicial effect outweighed their probative value. Appellant was sentenced to a term of life imprisonment; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (a) (2). We find no error and affirm.

The evidence presented in this case reveals that Appellant had been friends with the victim and her husband, Mark Irmer, for several years. The Irmers had allowed Appellant to move a travel trailer onto their property and live there prior to the murder of Mrs. Irmer. During the early morning hours of January 7, 1999, Mr. Irmer returned home from work to find Appellant standing in his driveway, smoking a cigarette. According to Mr. Irmer, Appellant offered to help him fix a headlight that was out on his truck. Mr. Irmer responded that he just wanted to go inside and get something to eat. Appellant then told Mr. Irmer that he wanted to have a talk with him; he eventually asked him to help replace a tire on his travel trader. While Mr. Irmer was placing a jack under the trailer, Appellant grabbed him from behind and put a knife to his neck. Mr. Irmer jerked away and grabbed the knife from Appellant. He then ran to the back of his home and banged on a window while calling out his wife’s name.

Appellant again tried to persuade Mr. Irmer to sit down and talk with him. He told Mr. Irmer that he and Mrs. Irmer had been planning to get rid of him, and that Mrs. Irmer never wanted to see him again. Appellant also told Mr. Irmer that he was having an affair with his wife. According to Mr. Irmer, Appellant suddenly went inside the Irmer’s home and locked the door. Mr. Irmer then went to a neighbor’s house for help and returned with his neighbor, Terry Hilliard. Mr. Irmer confronted Appellant on the home’s front porch and told him that he just wanted to come in and get some of his things and then would leave. Appellant refused to allow Mr. Irmer to enter the home, again telling him that Mrs. Irmer did not want to see him. Mr. Irmer then went to the home of George Mitchell, another neighbor, and placed a 911 call.

Officers from the Pulaski County Sheriff s Office responded to the call. When they entered the Irmers’ home, they discovered the body of Mrs. Irmer on the bathroom floor. Mrs. Irmer had on no clothing and her head was covered with a bloody laundry bag. The bag’s drawstring was pulled tightly around her neck, and a jump rope was tied around her wrists. Authorities questioned Mr. Irmer, who told them about his altercation with Appellant. Police were unable to locate Appellant until several days after the murder. On January 12, 1999, authorities in Shawnee, Oklahoma, contacted the Pulaski County Sheriff s Office and reported that they had arrested Appellant.

The following day, Sergeant Terry Ward and Investigator Kerry Daulton traveled to Shawnee to take custody of Appellant and return him to Pulaski County. They first made contact with Appellant on the morning of January 14 in the Shawnee Police Department. Initially, Appellant denied having any knowledge of the murder of Mrs. Irmer. According to Ward, they sent Appellant back to his cell so that he could have lunch before the trip back to Arkansas. After lunch, Daulton went to Appellant’s cell to outfit him in a Pulaski County Jail jumpsuit and body chains before transporting him back to Little Rock. According to Daulton, when he entered the cell, Appellant stated that he wanted to tell him two things. The first was that he wanted his wife to have the travel trailer. Secondly, he stated that he wanted to be interviewed again so that he could tell the truth about what had happened to Julie Irmer.

Ward and Daulton subsequently advised Appellant of his Miranda rights and then took a taped statement from him concerning the events surrounding the death of Mrs. Irmer. According to Appellant’s statement, he had been having an affair with Mrs. Irmer for some time. On the night of her death, they were engaging in “rough sex,” he claimed. Appellant stated that Mrs. Irmer wanted to find some handcuffs she had used before, but that Appellant suggested that they use a jump rope that was on the floor in the bedroom. Appellant then claimed that he tied Mrs. Irmer to the bedpost and while they were engaging in intercourse, she fell off the bed and hit her head on a nearby night stand. Appellant stated that he put a pair of panties and a plastic bag up to her head to try and stop the bleeding. When that did not work, Appellant claimed that he then put the laundry bag over her head to stop the blood flow. Appellant admitted that when he left the Irmers’ home, Mrs. Irmer was dead. Ward and Daulton transported Appellant back to Little Rock, where he was charged with capital murder.

An omnibus hearing was held on October 19, 1999. The first matter considered by the trial court was Appellant’s motion to suppress the statement he made to Ward and Daulton while in Oklahoma. Appellant claimed that he had not made the statement knowingly or voluntarily. In support of his contention, Appellant argued that he had gone for days without eating, was suffering from a headache at the time of the confession, and was threatened by Ward and Daulton. Appellant asserted that Ward and Daulton told him that he would receive the death penalty within a week. According to Appellant, Daulton also told Appellant that he worked for the district attorney’s office and that if he gave a statement, the death penalty would be dropped. Appellant admitted, however, that he signed a form waiving his Miranda rights and did not ask for an attorney prior to giving his statement. After hearing the testimony of the officers and Appellant, the trial court determined that Appellant’s statement was made voluntarily, and thus, denied his motion to suppress.

The trial court also heard arguments regarding the admission of photographs of the victim and the crime scene. Appellant argued that all of the State’s photographs should be excluded because they were gruesome and inflammatory. Alternatively, Appellant requested that any pictures the State was allowed to introduce should be in black and white. The trial court reserved its rifling on the admissibility of the photographs until the point that they were offered into evidence. The trial court also denied Appellant’s request that the State be required to submit only black and white photographs, noting that color pictures were used all the time. The trial court did state, however, that any color photograph that was unduly prejudicial would not be admitted into evidence. A jury trial was held on November 30 and December 1, 1999, and Appellant was convicted of capital murder and sentenced to life imprisonment. This appeal followed.

Sufficiency of the Evidence

For his first point on appeal, Appellant asserts that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v State, 342 Ark. 95, 27 S.W.3d 351 (2000). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Appellant contends that the State failed to prove that he caused Mrs. Irmer’s death deliberately or in a premeditated manner. Pursuant to Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” This court has held that premeditation is not required to exist for any particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899, cert. denied, 528 U.S. 933 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances of the crime. Bangs, 338 Ark. 515, 998 S.W.2d 738; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). One can infer premeditation from the method of death itself, where the cause of death is strangulation. Carmichael, 340 Ark. 598, 12 S.W.3d 225; Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).

Here, Dr. Frank Peretti, an associate medical examiner with the State Crime Laboratory, testified that the victim’s death was the result of “asphyxia due to obstruction of her air passages and strangulation and a blunt force injury.” Dr. Peretti testified that the victim sustained numerous injuries to her hands, arms, and feet, and that her injuries were consistent with someone being “hogtied.” Dr. Peretti also testified that petechial hemorrhages, a type of hemorrhage associated with asphyxia, were present on the victim’s eyes. According to Dr. Peretti, the victim’s neck would had to have been compressed for at least forty to sixty seconds to cause such hemorrhages. Dr. Peretti further testified that Mrs. Irmer was subjected to two different types of strangulation. First, there were injuries caused by ligature strangulation as a result of the drawstring being tied around her neck. Secondly, Mrs. Irmer was placed in a choke hold and strangled. Appellant admitted that he placed the laundry bag over head, but claimed that it was an attempt to stop the bleeding. According to Dr. Peretti, however, the injuries on Mrs. Irmer’s neck were not the result of someone simply putting the laundry bag over her head, but rather were caused by someone actually tying the bag around her neck.

Dr. Peretti also stated that it took significant force to cause the head injuries sustained by Mrs. Irmer. Dr. Peretti opined that a person could not fall out of bed and hit their head hard enough to cause the type of injuries suffered by Mrs. Irmer. Moreover, Dr. Peretti stated that there were no lacerations or cuts on the victim’s head consistent with her banging her head on a piece of furniture. Thus, the medical evidence presented by the State proved that Mrs. Irmer’s death was not the result of an accident, as Appellant claimed. This court has held that a jury is not required to lay aside its common sense in evaluating the ordinary affairs of fife, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).

In addition, there was testimony from Mr. Irmer that Appellant attacked him with a knife and prevented him from entering his home on the night of the murder. Appellant admitted that when he left the Irmers’ house, Mrs. Irmer was dead. Finally, Appellant not only fled the scene of the crime, but also the state. This court has held that flight from the place where a crime has been committed may be considered as evidence of guilt. Dawan v. State, 303 Ark. 217, 795 S.W.2d 50 (1990); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). In sum, there was ample evidence to support Appellant’s conviction of capital murder; thus, it was not error for the trial court to deny Appellant’s motion for a directed verdict.

Voluntariness of Statement

For his second point on appeal, Appellant asserts that the trial court erred in denying his motion to suppress the custodial statement he made while in Oklahoma. Appellant argues that his statement was given involuntarily because at the time of the statement he was sleep-deprived; suffered from a migraine headache, had eaten very little, and was subjected to various forms of police coercion. We disagree.

A statement made while the accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Smith, v State, 334 Ark. 190, 974 S.W.2d 427 (1998); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). When determining voluntariness, the issue on appeal is whether the statement was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In considering this issue, we make an independent determination based on the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Id. Relevant factors to be considered include the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Boone v. State, 334 Ark. 452, 976 S.W.2d 921 (1998); Sanford, 331 Ark. 334, 962 S.W.2d 335.

Appellant claims that the circumstances surrounding his statement were coercive in nature, thus rendering his statement involuntary. His claims that he was tired, hungry, and had a headache are not supported by any evidence other than his own testimony. In fact, the transcript of his statement includes a question by Smith asking Appellant if he had had lunch, to which Appellant responded in the affirmative. There is nothing in the transcript of the statement to indicate that Appellant was anything other than alert and oriented. Appellant, who has a high school education, signed a waiver of his rights, and makes no challenge to the validity of that waiver on appeal. Indeed, the State introduced the waiver form signed by Appellant, and the transcript of his statement reflects that Ward went over his rights with Appellant before any questioning took place. This court has held that issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the trial court. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); see also Riggs v. State, 339 Ark. Ill, 3 S.W.3d 305 (1999). “Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings.” Wright, 335 Ark. at 404, 983 S.W.2d at 401. Therefore, we cannot say that the trial court erred in finding the testimony of the two officers to be more credible than that of the Appellant.

Appellant also claims that he was enticed by the promise of Daulton that the death penalty would be dropped if he gave a statement. This court has recognized that a statement induced by a false promise of reward or leniency is not a voluntary statement. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). Here, however, the only evidence that Daulton made any promises to Appellant was Appellant’s own self-serving testimony at the omnibus hearing. Daulton and Ward both testified that Appellant was never promised anything or threatened in order to obtain a statement. Again, the matter of weighing the credibility of witnesses is left to the trial court. Wright, 335 Ark. 395, 983 S.W.2d 397. Accordingly, we cannot say that the trial court erred in finding that Appellant’s statement was voluntary, and thus, admissible.

Admission of Photographs

Appellant’s final point on appeal is that the trial court erred in admitting into evidence certain photographs of the victim because their prejudicial effect substantially outweighed their probative value. Specifically, Appellant alleges that certain photographs admitted into evidence were cumulative, overly graphic, and calculated to inflame the jury. This argument is without merit.

This court discussed the admission of photographs in Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997):

Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” Id. at 228, 781 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.

Id. at 637, 940 S.W.2d at 467.

We first address Appellant’s allegation that the challenged photographs were cumulative. With regard to pictures that depicted the victim of the body as discovered at the crime scene, the trial court overruled Appellant’s objection to their admission on the basis that their probative value outweighed any prejudicial effect. The trial court found that they rebutted Appellant’s claim that the victim had fallen off the bed and hit her head on the night stand. Specifically, the trial court noted that the pictures demonstrated that there were no open wounds on the victim or any excessive blood present. A close-up photograph of the victim’s head and torso taken at the crime laboratory was needed to show the jurors the manner in which the bag’s drawstring was knotted around the victim’s neck. Appellant has asserted that he did not kill Mrs. Irmer with premeditation and deliberation. The photographs used to depict her many injuries establish that this crime was not accidental, but rather, was brutal and prolonged. This court has held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Sanders, 340 Ark. 163, 8 S.W.3d 520.

Next, Appellant challenges several photographs that are close-up shots of the injuries inflicted on the victim’s head and neck. The trial court allowed the photographs in because Dr. Peretti used them during his testimony to explain the numerous injuries suffered by Mrs. Irmer. Two final photographs challenged by Appellant depict the neck injuries caused by strangulation. This court has held that the need to show the condition of a victim’s body, the probable type or location of the injuries, and the position in which the body was discovered is an acceptable purpose for admitting photographs. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Thus, it was not error for the trial court to admit these photographs.

Finally, we consider Appellant’s argument that the color photographs were somehow more prejudicial than black and white photographs would have been. Appellant does not argue which photographs should have been submitted in color, nor does he submit any photographs in black and white, thereby demonstrating how they are less gruesome. He simply asserts that this court, by implication, has previously stated that color photographs are more inflammatory. Appellant cites no authority for this proposition, nor did he raise this argument below. It is well settled that this court does not consider an argument raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).

4-3 (h) Review

The record in this case has been reviewed for other reversible error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    CITY of LOWELL, Arkansas v. CITY of ROGERS, Arkansas; Horace Obern Nations, Trustee of the Obern Nations Trust; Frances B. Williams; Gilert and Eileen Brooks, Husband and Wife; Fadil Bayyari, Trustee of the Fadil Bayyari Trust; George H. Mills and Frances M. Mills, Trustee of the Amended and Restated George Henry Mills Trust; and Don Mills
    00-991
    43 S.W.3d 742
    Supreme Court of Arkansas
    Opinion delivered May 17, 2001

      Lisle Law Firm, P.A., by: Stephen Lisle, for appellants.

      Office of Rogers City Attorney, by: Jim Clark and Ben Lipscomb; Watkins & Scott, P.L.L.C., by: William P. Watkins; and Ronald L. Boyer, for appellees.
   Annabelle Clinton Imber, Justice.

This appeal stems from the second of a pair of cases involving the annexation by the City of Rogers of land located in an adjoining municipality pursuant to Ark. Code Ann. §§ 14-40-2001 — 2002 (Supp. 1999). In the first case, City of Cave Springs v. City of Rogers, 343 Ark. 652, 37 S.W.3d 607 (2001), the City of Cave Springs contended that Act 779 of 1999 is unconstitutionally vague under due-process standards and that the Act is an unconstitutional delegation of legislative authority. It also argued that the landowners failed to properly file a statement with the municipality as required under the Act. We declined to address the vagueness argument because a municipal corporation is not a “person” for purposes of challenging Act 779 on procedural due-process grounds. We also concluded that the Act was not an unlawful delegation of legislative authority. With regard to the notice requirement of Act 779, we held that the landowners properly filed a statement with the municipality by serving notice on the mayor of the city instead of the city’s planning commission. Id.

In the instant case, certain landowners within the City of Lowell sent a petition and notice to the mayor of Lowell, pursuant to Act 779, requesting that the City of Lowell “make a commitment [in writing, within 30 days] to take substantial steps within 90 calender days after this petition is filed toward making water and sewer services available, and within each 30-day period thereafter, to continue to take steps demonstrating a consistent commitment to provide the services within a reasonable time.” The mayor of Lowell responded by letter that the city could provide water to the property and that the city had a contract with an engineering firm to perform a sewer study. The mayor’s letter further stated that the city was “committed to providing sewer service to the area as soon as feasibly possible.” Apparently dissatisfied with the mayor’s response, the landowners presented petitions for annexation and notice to the city council of Rogers, pursuant to Act 779, and the City of Rogers subsequently passed ordinances accepting and annexing the property.

Thereafter, the City of Lowell filed suit in the Benton County Chancery Court seeking a declaratory judgment that Act 779 is unconstitutional and that the landowners’ respective properties remain a part of the City of Lowell. The suit named the City of Rogers and the individual landowners as defendants. Following an order transferring the case to the Benton County Circuit Court, the landowners and the City of Rogers filed a motion for summary judgment. The trial court granted summary judgment and dismissed the case with prejudice. In doing so, the trial court made the following findings:

• Act 779 does not violate either the United States or Arkansas Constitutions;
• Act 779 does not constitute an unlawful or unconstitutional delegation of legislative authority;
• Act 779 contains sufficient standards and safeguards to protect the interests of all parties;
• the landowners complied with the notice requirement of Act 779 by sending their notices to the mayor of Lowell;
• the City of Lowell did not make a commitment to provide the requested services;
• the City of Lowell has no standing to raise the argument that the City of Rogers has not taken substantial steps to provide the services requested by the landowners in the time set out in Act 779; and
• even if the City of Lowell did have standing to raise that issue, the City of Rogers has complied with the requirements of Act 779 and the services are available.

The City of Lowell now appeals from the trial court’s entry of summary judgment.

For its first three points on appeal, the City of Lowell argues (1) that Act 779 is an unconstitutional delegation of legislative authority to private property owners because it does not contain procedural safeguards or standards and does not afford any form of review; (2) that Act 779 is unconstitutionally vague due to several alleged deficiencies: it provides no procedures for filing a request for services; it contains no definition of “substantial steps;” it cannot be reconciled with other state statutes governing municipal annexation; and it allows municipal property to be completely severed from other municipal territory, i.e. the creation of an “island” of one city within another city’s boundaries; and (3) that the trial court erred in finding that the landowners properly filed a statement with the municipality under Act 779, when the landowners served notice on the city’s mayor instead of the city’s planning commission. Each of these arguments must be rejected for the reasons enumerated by this court in City of Cave Springs v. City of Rogers, supra. Specifically, we held in that case that Act 779 was not an unconstitutional attempt to delegate legislative authority, and that the landowners satisfied the notice requirement of Act 779 by serving their notice on the city’s mayor instead of the city’s planning commission. Id. With regard to the vagueness argument, we held that a municipal corporation is not a “person” for purposes of the Due Process Clause of the Fourteenth Amendment. Accordingly, we declined to address the city’s argument that Act 779 is unconstitutionally vague. Id. Likewise, we decline to address the City of Lowell’s vagueness argument in this case.

Next, the City of Lowell contends the trial court erred when it found as a matter of law that “the City of Lowell did not make a commitment to provide the requested services.” We agree that the trial court erred in so finding as a matter of law.

Our standards governing the entry of summary judgment are well-settled:

“Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law.” Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712 (1998) (Wallace I) (citing Pugh v. Griggs, 327 Ark. 577, 824 S.W.2d 387 (1992)). The standard is whether the evidence is sufficient to raise a fact issue, not whether the evidence is sufficient to compel a conclusion. Id. (citing Caplener v. Bluebonnet Milling Co., 322 Ark. 751, 911 S.W.2d 586 (1995)). A fact issue exists, even if the facts are not in dispute, if the facts “may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. . . . [I]n such an instance, summary judgment is inappropriate.” Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998) (supplemental opinion denying rehearing) (Wallace II).
On review, this court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Wallace I, supra. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Wallace I, supra. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id. (citing Angle v. Alexander, 328 Ark. 714, 945 S.W.2d 933 (1997)).

Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 231, 33 S.W.3d 128, 133 (2000). Furthermore, the object of summary-judgment proceedings is not to try the issues, but to determine whether there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000).

The question before the trial court in this case was whether the City of Lowell made the “commitment” required by Act 779. Such a determination necessarily must be governed by the provisions of Act 779 that specify the “commitment” contemplated by the Act. According to section 14-40-2002(b)(1), the landowner shall file a statement with the municipality that, among other things, requests the municipality:

to make a commitment to take substantial steps, within ninety (90) calendar days after the statement is filed, towards making the services available and within each thirty-day period thereafter to continue taking steps to demonstrate a consistent commitment to provide the service within a reasonable time, as determined by the kind of service requested.

Ark. Code Ann. § 14-40-2002(b)(1)(D)(i) (Supp. 1999). Thus, by specifying what the landowner must request in its notice to the municipality, the legislature has delineated what course of action the city must commit or obligate itself to take within specified periods of time. In other words, the Act outlines specific terms of commitment that a landowner may demand from a city. The city must first commit to take substantial steps, within the ninety-day period following receipt of the landowner’s notice, toward making the services available. Id. Next, the city must continue to take steps, within each thirty-day period thereafter, to demonstrate a consistent commitment to provide the services within a reasonable time. Id. With regard to this latter requirement, the Act further states that the reasonableness of the time-frame within which the city commits to provide services should be determined by the kind of services requested. Id.

In this case, the mayor of Lowell sent a letter to the landowners, which stated, in pertinent part, as follows:

The City of Lowell has a contract with the City of Rogers for water service in the Rogers Water District where this property is located. This property can be serviced with water in either city limits. Therefore, de-annexing for water service is not a viable reason under Act 779.
The City of Lowell currently has a contract with the engineering firm of McGoodwin, Williams & Yates to perform a sewer study. We are committed to providing sewer service to this area as soon as feasibly possible.

The landowners do not dispute the timeliness of the City’s written response to their statements filed pursuant to the Act. Ark. Code Ann. § 14-40-2002(b) (1) (D) (ii).

We conclude that genuine issues of material fact remain to be decided regarding whether the City of Lowell made the “commitment” required by Act 779. Although the facts set forth in the mayor’s letter may not be in dispute, those facts could result in varying conclusions about whether the letter amounted to a “commitment” as required by Act 779. For example, the letter stated that the city has contracted with an engineering firm to perform a sewer study, presumably to determine the feasibility of providing the requested services. Hiring an engineering firm to conduct a feasibility study would be a necessary first step by the city “towards making [sewer service] available” to an area. Thus, reasonable minds might draw different conclusions from these facts as to whether the mayor’s letter made a commitment to take substantial steps toward making the service available. Furthermore, a trier of fact might reasonably conclude that the city’s commitment to provide sewer service “as soon as feasibly possible” was a commitment to provide sewer service “within a reasonable time.” We therefore hold that the trial court clearly erred when it found as a matter of law that the City of Lowell “did not make a commitment to provide the requested services.”

The City of Lowell’s fifth point on appeal concerns standing. When property is detached from one municipality and annexed into another pursuant to Act 779, the Act provides:

The annexation shall be void and the land shall be returned to the original municipality if the annexing municipality fails to take substantial steps within ninety (90) calender days after the statement is filed towards making the services available and within each thirty-day period thereafter, continues taking steps demonstrating a consistent commitment to provide the services within a reasonable time, as determined by the kind of services requested.

Ark. Code Ann. § 14-40-2002(b) (3) (B)(i). In granting the motion for summary judgment, the trial court found that “the City of Lowell has no standing to raise the argument that the City of Rogers has not taken substantial steps to provide the services requested by the landowners in the time set out in Act 779[.]” The City of Lowell avers that the trial court erred in finding that it lacked standing to make such an argument. We agree.

In City of Cave Springs v. City of Rogers, this court held that the original municipality’s standing to challenge the constitutionality of Act 779 is not derived from the Fourteenth Amendment, but from Arkansas’s law on declaratory judgments. In so holding, we specifically relied on Ark. Code Ann. § 16-111-104 (1987), which states:

Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Likewise, section 16-111-104 gives the City of Lowell standing to argue that the City of Rogers did not meet the requirements of Act 779. For purposes of declaratory-judgment actions, a municipal corporation is a “person.” Ark. Code Ann. § 16-111-101 (1987). Thus, a municipality whose rights, status, or legal relations are affected by a statute is entitled to have any question of construction or validity arising under the statute determined, and the municipality is entitled to obtain a declaration of its rights, status, or legal relations arising under the statute. Ark. Code Ann. § 16-111-104. The City of Lowell’s rights are clearly affected. Whether the property in question remains a part of the City of Lowell depends upon whether the City of Rogers has met its obligations under this Act. Thus, we hold that the City of Lowell has standing to argue that the City of Rogers did not comply with the provisions of the Act.

Finally, the trial court made an alternative finding “that the City of Rogers has complied with the requirements of Act 779, and that the services are available.” The City of Lowell asserts that the trial court erred in making this finding as a matter of law.

According to the Act, the City of Rogers was required to “to take substantial steps within ninety (90) days after the statement is filed towards making the services available[.]” Ark. Code Ann. § 14-40-2002(b)(3)(B)(i). The evidence presented in support of summary judgment leaves a material question of fact unanswered: whether “substantial steps” were taken by the City of Rogers. Tom McAlister, who oversees the operations of the Rogers water and sewer departments, testified that only one of the several landowners involved in this case had submitted a water and sewer plan that had been approved by the City of Rogers. With regard to the other landowners, Mr. McAlister confirmed that none of them had submitted a water and sewer plan to the city for approval. With regard to the property of the Horace Obern Nations Trust, he said that the City of Rogers had not provided any water or sewer services to the property and had not taken any actions to do so. He also stated that nothing had been done by the City of Rogers to provide water or sewer to the property owned by the Fadil Bayyari Trust. He testified similarly as to the Mills property. We therefore conclude that there are genuine issues of material fact regarding whether the City of Rogers “complied with the requirements of Act 779.” The trial court’s entry of summary judgment on this question was inappropriate. Ultracuts Ltd. v. Wal-Mart Stores, Inc., supra.

Affirmed in part; reversed and remanded in part.

       The Arkansas General Assembly has recently amended section 14-40-2002 and added sections 14-40-2003 — 2005. See Act 1525 of 2001.

       Although not relevant to this appeal, we also rejected the city’s argument that Act 779 provides for an unconstitutional retroactive application.

       The Horace Obern Nations Trust, Horace Obern Nations, trustee; Frances B. Williams; Gilbert and Eileen Brooks; The Fadil Bayyari Trust, Fadil Bayyari, trustee; the amended and restated George Henry Mills Trust, George H. Mills and Frances M. Mills, trustees; Don Mills; the Ingrid D. Costaldi Trust, Dated 12/22/86, Ingrid D. Costaldi, trustee; Diane Huffman; and Roy D. and Shirley J. Miller. All of these landowners, except for the Ingrid D. Costaldi Trust, Diane Huffman, and Roy D. and Shirley J. Miller, are appellees herein.


author: Ray Thornton, Justice.

text:
    Jennifer SHOOK, as a Shareholder on Behalf of Delta P.C. & I, Inc. v. The Honorable Don HUFFMAN
    00-1131
    43 S.W.3d 735
    Supreme Court of Arkansas
    Opinion delivered May 17, 2001

      Hodson, Wood & Snively, by: Michael Hodson; and Shemin Law Firm, by: Kenneth Shemin, for petitioner.

      Davis, Wright, Clark, Butt & Carithers, PLC, by: Mark W. Dossett, for respondent.
   Ray Thornton, Justice.

On September 15, 1997, petitioner, Jennifer Shook, filed a complaint seeking a divorce from John Shook. On January 20, 1999, petitioner’s complaint was amended. John responded to both complaints. At the time of the divorce, the Shooks were each fifty-percent stockholders in Delta PC. & I., Inc. [Delta], a subchapter S corporation. The corporation was not a party to the divorce proceedings.

On November 22, 1999, the Benton County Chancery Court entered a decree of divorce granting petitioner’s request for divorce. The divorce decree ordered that all marital property was to be sold in a commissioner’s auction, with the proceeds being distributed equally between the Shooks. The chancellor also ordered that the property and assets owned by Delta be sold in the commissioner’s auction and that the proceeds be divided equally between the Shooks.

Neither Jennifer Shook nor John Shook appealed the divorce decree. However, eleven months later, Jennifer, as a shareholder in Delta, filed a petition for a writ of prohibition with this court on behalf of Delta. Jennifer argued that the chancery court of Benton County did not have subject-matter jurisdiction to order the sale of Delta’s assets because Delta was not a party to the divorce action. Jennifer requested that we issue a writ of prohibition and that we stay the commissioner’s sale. To assist in our consideration of whether to issue a writ of prohibition, we granted a partial stay of the sale, and directed that the parties brief the issues. See Shook v. Chancery Ct. of Benton County, 342 Ark. 276, 27 S.W.3d 745 (2000) (per curiam).

This case is now presented as an original action for a writ of prohibition. We have noted that the purpose of a writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). It is well settled that a writ of prohibition is an extraordinary writ. Id. The party seeking to proceed by petition for writ of prohibition bears the burden of demonstrating that it is clearly entitled to so proceed. Ramirez v. White County Cir. Ct., 343 Ark. 372, 38 S.W.3d 298 (2001) . The writ is appropriate only when there is no other remedy, such as an appeal, available. Id.

In this case, the order that Jennifer challenges was entered on November 22, 1999. At the time the order was entered, Jennifer Shook, John Shook, and Delta each had available remedies for challenging the chancellor’s decree. None of the parties exercised their right to challenge the order. Additionally, we note that the record before us does not reflect that a derivative action was filed in this matter with the chancery court. We hold that Jennifer cannot now bring a petition to this court seeking the equitable remedy afforded by Rule 23.1 of the Arkansas Rules of Civil Procedure in an original action for a writ of prohibition. See Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244 (1998)(holding that a shareholder’s derivative suit is an equity action maintainable in chancery court). Accordingly, the petition for a writ of prohibition is denied, and the stay ordered in our previous per curiam is dissolved.

Glaze, J., not participating.


author: Per Curiam.

text:
    IN RE: Albert Wayne DAVIS, Arkansas Bar ID # 76026
    01-460
    43 S.W.3d 156
    Supreme Court of Arkansas
    Opinion delivered May 17, 2001

      Lynn Williams, for petitioner Professional Conduct Committee.
    No response.
   Per Curiam.

On November 13, 2000, the Pulaski County Circuit Court entered an order of disbarment of Albert Wayne Davis. Mr. Davis and his counsel were served with copies of the circuit court’s order. Mr. Davis had a right to appeal that disbarment order in accordance with the rules governing appeals of civil cases, Section 5L.(4) of the Procedures Regulating Professional Conduct, but when no appeal was timely perfected, the circuit court’s order became final and binding on all parties. See Section 5L.(5) of the Procedures of Regulating Professional Conduct.

The rule is well settled that the failure to file a timely notice of appeal deprives this court of jurisdiction. Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995); Monk v. Farmers Ins., 290 Ark. 38, 716 S.W.2d 201 (1986). Here, Mr. Davis did not timely perfect an appeal from the lower court’s disbarment order, therefore, the circuit court’s order is final.

The Professional Conduct Committee has filed its petition with this court on May 16, 2001, alleging that Mr. Davis has been disbarred by the Pulaski County Circuit Court’s order, and requesting this court enter its order barring Mr. Davis from the practice of law and removing his name from the list of attorneys permitted to practice law. The Committee’s purpose in filing its petition is essentially ministerial and necessary to officially remove Mr. Davis’s name from the court’s registry of licensed attorneys. While the Committee should have given notice of its petition to Mr. Davis, see Rule 11 of the Rules of Civil Procedure, we direct this court’s clerk in this instance to cause Mr. Davis to be served with a copy of the Committee’s petition to the last address Mr. Davis has provided the clerk’s office. See In Re: Salamo, 310 Ark. 446, 841 S.W.2d 589 (1992); see also Section 5E. Any response must be made within ten days after service of the petition on Mr. Davis.


text:
    STATE of Arkansas v. Jackie Lee STAPLETON
    01-523
    43 S.W.3d 157
    Supreme Court of Arkansas
    Opinion delivered May 17, 2001

      Mark Pryor, Att’y Gen., by: Joseph V. Svoboda, Ass’t Att’y Gen., for appellant.

      William R. Simpson, Public Defender, by: Kent C. Crause, Deputy Public Defender; and Clint Miller, Deputy Public Defender, for appellee.
   Per Curiam.

Appellant State of Arkansas Department of Correction moves for a stay of the order of the Lincoln County Circuit Court granting appellee Jackie Lee Stapleton’s petition for writ of habeas corpus. The State further moves for an expedited review of proceedings.

We grant the motion for stay and motion for expedited review of proceedings. We further expedite the appeal of this matter and set the following briefing schedule to allow us to decide the matter prior to our recess in July:

Appellant’s original brief due May 28, 2001.

Appellee’s response brief due June 4, 2001.

Appellant’s reply brief due June 11, 2001.


author: Tom Glaze, Justice.

text:
    Lisa K. BENNETT v. STATE of Arkansas
    CR 00-1399
    44 S.W.3d 310
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      Jim Petty and Patrick J. Benca, for appellant.

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

This case concerns the Fourth Amendment and specifically whether an officer’s smelling of a legal substance is sufficient in itself to show probable cause for a search warrant or to justify a good-faith exception for a warrant’s issuance. Appellant Lisa Bennett brings this appeal after entering her conditional plea of guilty to a reduced charge of attempt to manufacture a controlled substance.

The search at issue ensued on October 28, 1998. At 1:30 a.m., Bradford Police Officer Steve Strayhorn was driving along State Highway 367 in White County when he passed a storage building and smelled a strong chemical odor emitting from the building. Strayhorn contacted State Police Investigator Roger Ahlf and Drug Task Force Investigator Robert Parsons, who both arrived on the scene about 3:00 a.m. Ahlf determined the smell was denatured alcohol, a legal substance, which he described as “extremely strong and in an unstable condition.” The officers contacted the building’s owner, Nathan Bennett, who said that his daughter, Lisa Bennett, had items stored in the building, and she would have to consent to any search. Lisa was contacted and showed up at the building, but she refused the officers’ request to search.

Investigator Ahlf then went to Searcy to prepare a warrant, while other officers secured the Bennetts’ building. When Ahlf returned to the building at 4:30 a.m., Lisa again refused entrance. Ahlf then swore out an affidavit for a search warrant, and appeared before Searcy Municipal Judge Leroy Froman, who found probable cause for the issuance of a warrant. The officers executed the search warrant at about 7:30 a.m.; the search turned up a number of items that could be used in the manufacturing of methamphetamine. Lisa was subsequently arrested.

After being charged, Lisa moved to suppress the evidence seized from the building, arguing that the smell of the legal substance of denatured alcohol, by itself, was insufficient to support Municipal Judge Froman’s finding of probable cause. At a hearing before the circuit court, the court agreed with that part of Lisa’s argument that probable cause had not been shown, but even so, the court held the search was valid under the good-faith exception established in United States v. Leon, 468 U.S. 897 (1984). There, the Supreme Court held the Fourth Amendment exclusionary rule should not be applied so as to bar the use in the prosecutor’s case in chief of evidence obtained by officers who had acted in reasonable rebanee on a search warrant issued by a detached and neutral magistrate, but ultimately found to be invalid. In short, the circuit court applied the Leon rationale in the instant case and ruled that it was reasonable for Investigator Ahlf to have concluded that Judge Fro-man’s warrant was vaHd, and that Ahlf was acting in good faith when he conducted the search of the Bennetts’ building.

Before addressing the circuit court’s Leon ruHng and Lisa Bennett’s contention that the lower court erred in applying that ruling, we take up the State’s argument that the circuit court was wrong to suggest probable cause was not shown; in fact, the State submits that probable cause did exist to support Ahlfs search warrant. The State’s argument is without merit.

Both the State and Lisa Bennett cite the singular case of United States v. Tate, 694 F.2d 1217 (9th Cir. 1982) (Tate I), where a search warrant was obtained on the basis of the smell of a noncontraband or legal substance, ether. The Tate I court held that the smell of a legal or noncontraband substance, standing alone, did not establish probable cause to search a residence. However, the government in Tate I challenged .that decision and petitioned the Supreme Court for a writ of certiorari. While the government’s, petition was pending, the Supreme Court decided Leon, and, as a consequence, it vacated Tate I and remanded the case to the Ninth Circuit so that court could reconsider Tate in light of the Leon decision. United States v. Tate, 468 U.S. 1206 (1984). On remand, the Ninth Circuit adhered to its earlier decision, holding that no probable cause was established to support the search of Tate’s residence, but it then applied the Supreme Court’s rule in Leon; in doing so, the Ninth Circuit held that all of the evidence seized by the government was admissible under Leon’s good-faith exception. See United States v. Tate, 795 F.2d 1487 (1986) (Tate II).

While the State appears to disagree with the circuit court’s ruling here, which, as in the Tate cases, held probable cause could not be established by an officer’s smell of a legal substance itself, it has done little to show that ruling to be erroneous. The State cites only four cases in response, and those cases all concern warrants issued to officers who had smelled unlawful substances. United States v. Ventresca, 380 U.S. 102 (1965) (affidavit for warrant showed probable cause where, among other things, federal officers of Alcohol and Tobacco Division of the Internal Revenue Service investigating an illegal distillery smelled odor of fermenting mash); Johnson v. United States, 333 U.S. 10 (1948) (search warrant justified based on qualified officers who smelled the forbidden substance of burning opium coming from a hotel room); People v. Benjamin, 91 Cal. Rptr. 2d 520 (Cal. App. 1999) (odors may constitute probable cause if the magistrate finds the affiant qualified to know the odor — here, marijuana — and it is one sufficiently distinctive to identify a forbidden substance). The fourth case cited by the State is Lowery v. State, 843 S.W.2d 136 (Tex. Ct. App. 1992) which contained a statement that ether can provide an element of probable cause for a search, but the Texas court’s opinion also mentioned an officer “smelled a meth lab near the residence in question.” The Lowery court also concluded no probable cause was shown be'cause the odors related to drug manufacturing did not emanate from the residence. Id. at 141.

Our court applies the totality of the circumstances analysis when determining whether the issuing magistrate had a substantial basis for concluding that probable cause existed. Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999) (citing Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998)). This court has held probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Smith v. State, 343 Ark. 552, 39 S.W.3d 739 (2001); Williams v. State, 300 Ark. 84, 776 S.W.2d 359 (1989). In viewing probable cause, our court has stated the following:

The determination of probable cause is based upon factual and practical considerations of everyday life upon which ordinary men, not legal technicians, act. A nontechnical approach correctly balances the competing interests of the individual and society, so that law enforcement officers will not be hampered, nor law abiding citizens left to the mercy of over-zealous officers. In making the determination of probable cause, we are liberal rather than strict.

Williams, 300 Ark. at 86 (quoting Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989)).

As already noted, the State has not furnished us with any precedent which has sanctioned the issuance of a search warrant based solely on a trained officer’s smell of a legal substance, when that substance has legitimate uses, but also might be used to make an illegal substance. Here, the State is forced to concede that the denatured alcohol Officer Strayhorn and Investigators Ahlf and Parsons smelled had other legal uses. As pointed out by Lisa Bennett, to uphold the search in the circumstances of this case would open the door to the issuance of search warrants based simply on an officer’s smell of a noncontraband substance. For example, a business and building where denatured alcohol is kept to strip or refinish furniture could be subject to search. Certainly, the circumstance of smelling denatured alcohol, without other factors, would not cause a cautious man to believe a crime has been committed, nor should the mere storage of denatured alcohol subject a law abiding citizen to the mercy of an over-zealous officer. Once again, the only evidence presented here was that officers smelled unstable denatured alcohol, and that the smell lingered during a three-hour period before the officers sought a warrant.

Finally, because we agree with the circuit court’s ruling that the smell of denatured alcohol alone was insufficient to support a finding of probable cause, we now must consider and decide whether the lower court was correct to determine that the evidence seized as a result of the search can still be admissible under the good-faith exception established in Leon. The Court in Leon wrote that “[i]f the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence should be suppressed only if it can be said that the law-enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” 468 U.S. at 919. In this respect, the evidence may only be excluded if the officer was not acting reasonably and with objective good faith.

This court has on several occasions discussed the four errors, noted in Leon, which an officer’s objective good faith cannot cure. These errors occur (1) when the magistrate is misled by information the affiant knew was false; (2) if the magistrate wholly abandons his detached and neutral judicial role; (3) when the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) when a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 914-15; see also Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985); Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983); Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 777 (1986). In the instant case, we are concerned only with the third of these errors; therefore, we must determine whether the affidavit supporting the search warrant was so lacking in indicia of probable cause that it was unreasonable for the executing officers to rely on it. We conclude that this affidavit was so lacking.

In Herrington, supra, this court held that sufficient information must be presented to the magistrate to allow that official to ascertain probable cause; his action cannot be a mere ratification of the bare conclusions of another. Herrington, 287 Ark. at 233 (quoting Illinois v. Gates, 462 U.S. 213 (1983)); see also Collins, supra (“bare, conclusory statements are . . . insufficient”); Nathanson v. United States, 290 U.S. 41 (1933) (“[A]n officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough.”).

Here, Investigator Ahlf prepared his affidavit for search warrant based solely on the smell of denatured alcohol. The remaining “facts” asserted in his affidavit are no more than bare, conclusory statements with no support to be drawn from the surrounding circumstances. For example, the warrant noted Investigator Ahlfs assertion that he “had reason to believe” that Lisa Bennett’s storage shed contained items such as records of drug sales, methamphetamine recipes, scales, plastic bags, syringes, pipes, anhydrous ammonia, sulfuric acid, and other such items. However, the State conceded at oral argument that none of those other items were apparent to Investigator Ahlf at the time he obtained the search warrant. Because probable cause for a search warrant must exist at the time the warrant is issued, Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000) (emphasis added), we hold that a warrant based on nothing more than the smell of a legal substance presented Ahlf with no reasonable grounds for believing the warrant was properly issued. We point out that, even in Tate U, where the Ninth Circuit accepted a good-faith argument when the warrant was initially based on the smell of ether, there were other circumstances which would have lent support to the investigator’s conclusion that drugs were being manufactured on the premises. Here, however, there was only the smell of a legal substance. There was no additional evidence to support a conclusion that drugs were being or would be manufactured. As the Court noted in Leon, “it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” 468 U.S. at 922. This case presents exactly those circumstances, and the trial court’s determination that the good-faith exception applied was clearly against the preponderance of the evidence.

Bennett also raised a second point on appeal, namely, that the officer’s refusal to let her or her father enter the storage building until Investigator Ahlf could obtain a search warrant amounted to an unlawful seizure. However, in light of the fact that this case must be reversed, we need not reach this second issue.

For the foregoing reasons, Bennett’s motion to suppress should have been granted, and we hereby reverse and remand for entry of an order consistent with this opinion.

       At oral arguments, the State attempted to argue that Bennett’s refusal to consent to the search of her property somehow contributed to Investigator Ahlf s determination that probable cause existed. However, the State conceded that it had no authority to support this contention.

       For example, the police had conducted extensive surveillance on the property, the defendants involved had been engaged in suspicious activity, and the police had received several anonymous phone calls about the situation.


author: Robert L. Brown, Justice.

text:
    Stan JACKSON v. CITY of BLYTHEVILLE CIVIL SERVICE COMMISSION
    00-1409
    43 S.W.3d 748
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      Buchholz, Sassin & DeMaio, P.L.L.C., by: F. Bady Sassin and Robert W. Buchholz, for appellant.

      Mike Bearden, Blytheville City Attorney, for appellee.
   Robert L. Brown, Justice.

Appellant Stan Jackson appeals from an order granting summary judgment in favor of appellee City of Blytheville Civil Service Commission (Commission). We affirm the order.

In 1993, Stan Jackson was the Fire Chief for the City of Blytheville. In late 1993, Jackson chose to participate in the Deferred Retirement Option Plan (DROP) for fire fighters. Jackson completed his participation in DROP and retired on November 1, 1998. On November 2, 1998, the Commission unanimously voted to rehire Jackson as the City’s Fire Chief. Jackson was rehired as Fire Chief on November 3, 1998, with an effective rehire date of November 4, 1998.

On April 5, 1999, the Attorney General for the State of Arkansas issued an opinion to State Representative Ann FI. Bush of Blytheville answering the question of whether the Commission could rehire a fire chief after he had participated in DROP. The Attorney General concluded that based on Ark. Code Ann. § 24-11-830, the Commission could not. On April 16, 1999, the Commission unanimously adopted a motion requiring Jackson to retire as Fire Chief on or before May 3, 1999. The motion stated that Jackson’s failure to comply with the request would result in termination by the Commission. Jackson did not comply with the request for retirement. As a result, on May 5, 1999, the Commission unanimously voted to terminate Jackson as Fire Chief.

Following the termination, Jackson requested a hearing before the Commission, and after that hearing, the Commission upheld Jackson’s termination. Jackson appealed that action to circuit court on the issues of whether Jackson was wrongfully rehired after his DROP participation and then wrongfully terminated. Both Jackson and the Commission moved for summary judgment, and the circuit court granted summary judgment in favor of the Commission.

Jackson raises the same issues on appeal as he did in his appeal before the circuit court. He contends that the operable statutes permit the rehiring of a person who has completed DROP participation or, alternatively, that those statutes do not specifically prohibit rehiring. The statutes at issue in this case are Ark. Code Ann. §§ 24-11-827 and 24-11-830 (Repl. 1996, Supp. 1999). Section 24-11-827 concerns the issue of a retired member returning to service and read in pertinent part on November 1, 1993:

(a) Notwithstanding any other provision of the law to the contrary, should an age or service retirant return March 1, 1986, or later, to employment in a position covered by the firemen’s fund from which he retired, no pension payments shall be paid him for the period of such reemployment, and he may make member contributions to the system as if he were an active member during such reemployment.

Section 24-11-830 is the DROP statute and read in pertinent part on November 1, 1993:

(a) In lieu of terminating employment and accepting a service retirement pension pursuant to §§ 24-11-801 et seq., any full-paid fire fighter who is a member of a firemen’s pension and relief fund who has not less than twenty (20) years of credited service and who is eligible to receive a service retirement pension may elect to participate in the Arkansas Fire Fighters’ Deferred Retirement Option Plan and defer the receipt of benefits in accordance with the provisions of this section, provided the local firemen’s pension and relief fund board of trustees approves the participation in the plan.
(c)(1) The duration of participation in the Arkansas Fire Fighters’ Deferred Retirement Option Plan for active full-paid fire fighters shall not exceed five (5) years.
(2) At the conclusion of a member’s participation in the Arkansas Fire Fighters’ Deferred Retirement Option Plan, the member shall terminate employment with all participating municipalities as a fire fighter and shall start receiving the member’s accrued monthly retirement benefit from the firemen’s pension and relief fund.

[Emphasis added.]

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000); Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189, 961 S.W.2d 712 (1998). The evidence is viewed most favorably for the person resisting the motion, and any doubts or inferences are resolved against the moving party. But in a case where the parties agree on the facts, this court simply determines whether the appellee was entided to judgment as a matter of law. Aloha Pools & Spas, Inc. v. Employer’s Ins: of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000); City of Little Rock v. Pfeifer, 318 Ark. 679, 887 S.W.2d 296 (1994).

With regard to statutory construction, we have recently said:

We have held that issues of statutory construction are reviewed de novo on appeal, and it is for the appellate court to determine the meaning of a statute. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999). The appellate court is not bound by the trial court’s interpretation, but in the absence of a showing that the trial court misinterpreted the law, the trial court’s interpretation will be accepted as correct. Id. This case involves a first-impression interpretation of a statute. The basic rule of statutory construction is to give effect to the intent of the Legislature. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). The Workers’ Compensation Law must be strictly and literally construed by the Commission and the courts, and a particular provision in a statute must be construed with reference to the statute as a whole. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible. Id. If the language of the statute is plain and unambiguous, the analysis need go no further. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

Aloha Pools & Spas, Inc., 342 Ark. at 403-404, 39 S.W.3d at 443. There is, too, the principle recognized in this state that pension laws are construed liberally in favor of those benefitted. Looper v. Gordon, 201 Ark. 841, 147 S.W.2d 24 (1941).

This court has never interpreted the two statutes before us today. We turn then to the legislative history of the two statutes. Section 24-11-827 was enacted by Act 429 of 1991 and deals with “service retirants” who return to employment after retiring. It specifies the effect of contributions made to the retirement system for a period of less than three years and for a period of more than three years after reemployment. The section was amended by the General Assembly during the First Extraordinary Session in 1992 but not in a manner material to the instant case.

Section 24-11-830 was enacted by Act 1004 of 1993. The Act contained a general repealer clause and provided that fire fighters who are members of the pension and relief fund with twenty or more years of service and who are able to receive a retirement pension may elect to participate in the DROP program. The duration of that participation could not exceed five years in 1993. To repeat, the Act provides:

(2) At the conclusion of a member’s participation in the Arkansas Fire Fighters Deferred Retirement Option Plan, the member shall terminate employment with all participating municipalities as a fire fighter, and shall start receiving the member’s accrued monthly retirement benefit from the firemen’s pension and relief fund.

Ark. Code Ann. § 24-11-830(c)(2) (Supp. 1999). During DROP participation, contributions by the municipalities and fire fighters shall continue but receipt of benefits will be deferred. At the end of the DROP period, the participant may receive a lump sum payment of amassed contributions or any other approved method of payment.

Jackson’s core argument is that nothing in the DROP statute prohibits rehiring after a DROP termination. In addition, he contends that § 24-11-827 contemplates that service retirants may reenter employment and commence anew contributions to the retirement system. According to Jackson, when read together, the statutes authorize rehiring in the same position after DROP participation and termination.

We disagree. The DROP program provides an option to normal retirement benefits, and Jackson elected to participate in DROP. Thus, he was subject to the precise terms of § 24-11-830. To our way of thinking, the issues in this case turn in large part on what the DROP statute means when it says “the members shall terminate employment with all participating municipalities.” The widely recognized definition of “terminate” is “to bring to an end.” See, e.g., Merriam-Webster’s Collegiate Dictionary, p. 1216 (10th ed. 1997). Rehiring a fire fighter after the statute mandates that he end his employment with the City and commence receiving retirement benefits runs directly counter to the express intent of the DROP statute. In short, rehiring as was done in the instant case does not bring an end to employment but does exactly the opposite.

We note, of course, that Jackson was not a typical service retirant due to his DROP election, and for that additional reason, we conclude that the General Assembly did not intend for § 24-11-827 to apply to his situation. Moreover, the DROP statute, which was enacted after § 24-11-827, contains a general repealer for all laws in conflict with it which, we believe, renders § 24-11-827 inapplicable to DROP participants. We further observe that there has been no legislative clarification of the DROP statute following the Attorney General’s opinion in 1999. Finally, with regard to the principle of liberal construction of pension statutes in favor of those benefitted, we agree with the Commission that deferred income plans, which necessarily involve deferred income taxes, must comply with statutory mandates or else run the risk of nonqualification with the Internal Revenue Service.

We hold that § 24-11-830 is plain and unambiguous and provided a separate and distinct retirement plan option for fire fighters. The circuit court correctly concluded that Jackson’s rehiring violated the statute’s terms.

Affirmed.

       At various times in the record and briefs, the case is styled “In re: Stan Jackson” and the appellant is named “Stanley Jackson.” The appellee, at times, is referenced as “City of Blytheville and Blytheville Civil Service Commission.” For ease of reference, we have settled on the style and parties as set out in this opinion.

       Jackson’s five-year participation apparently ran from November 1, 1993, to November 1, 1998. His Member Election Form, however, shows the beginning and end of his participation as January 1, 1994, and January 1, 1999.

       Act 762 of 2001 extended the duration of participation in DROP to seven years.