author: Tom Glaze, Justice. Robert L. Brown, Justice, Justice Souter,

text:
    Ben Wesley HICKS v. STATE of Arkansas
    CR 96-1323
    940 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Steven D. Oliver, for appellant.

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

Appellant Ben Wesley Hicks was convicted by jury of the first-degree murder of Lonnie Muldoon, and was sentenced to forty years’ imprisonment. His sole point for reversal is that, during sentencing, the trial court erred in admitting certain victim-impact evidence. Specifically, Hicks urges the State should not have been allowed to present a videotape consisting of photos of Muldoon, his family, or friends. He argues that the video was narrated by Muldoon’s brother, Alfred, and because Alfred improperly elaborated and wept during the video’s showing, the tape’s probative and informative value to the jury was outweighed by its prejudicial effect. He further suggests that, because the video contained numerous photos of Muldoon’s children, the tape was needlessly cumulative and compounded the prejudice. We disagree.

Hicks concedes that the Supreme Court in Payne v. Tennessee, 510 U.S. 808 (1991), held that a state is permitted to authorize victim-impact testimony, and Arkansas has done so. See Ark. Code Ann. § 16-97-103(4) (Supp. 1995); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). He argues, as well, that Muldoon’s brother, wife, and two sons were legitimate witnesses to testify about how Muldoon’s death has affected their lives. Hicks argues, however, that the State’s case here exceeded appropriate victim-impact evidence because the format of the videotape and excessive number of photographs of Muldoon’s children were so unduly prejudicial that the evidence violated the Due Process Clause. He relies on that part of the Payne decision which says, “In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Contrary to Hicks’s belief, no due process violation is present here.

We point out first that Hicks’s objection below was that Alfred’s narration on behalf of the Muldoon family included hearsay and should have been excluded. The trial court sustained Hicks’s objection, stating that the family members could be called to testify. Nonetheless, Alfred continued his narration, and Hicks later only said he wanted to note his previous objection to the videotape’s introduction. He never again mentioned his hearsay objection, asked for clarification or moved to strike, nor does he specify any hearsay issue on appeal. Instead, Hicks merely argues on appeal that the videotape was needlessly cumulative and prejudicial.

This court has previously held that videotapes, like photographs, are not rendered inadmissible merely because they are cumulative. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); see also Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992). The Willis court further stated that it reverses the trial court in such circumstances only upon a showing of prejudice and a resulting abuse of discretion. Willis at 330 and 331. In considering what the State may offer as relevant victim-impact testimony, we look to the Supreme Court’s holding in Payne where it stated the following:

We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family. (Emphasis added.)

See also Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), (where this court rejected as too narrow Wooten’s argument that Payne permits victim-impact evidence only to rebut mitigating evidence).

Here, the trial judge viewed the videotape before allowing it to be played to the jury, and he ruled portions of the tape inadmissible. The judge also ordered the State to instruct Alfred, as narrator, to describe the pictures, but not embellish them, or the judge would stop the tape. Touching on the tape’s further relevancy and probative nature, the trial judge said that the jury should be allowed to know who Muldoon was, especially in view of Hicks’s earlier testimony describing Muldoon as being the aggressor and as having had an aggressive or violent character in the past. In this respect, Ark. Code Ann. § 16-97-103(5) and (7) (Supp. 1995) permitted the State, during sentencing, to present relevant character evidence and evidence relevant to the guilt phase of the trial.

The record reflects that the trial court carefully reviewed and closely monitored the videotape shown at Hicks’s sentencing phase. The trial court carefully spelled out the probative value of the tape and its intended purpose to show a side of Muldoon different from the one described by Hicks. Hicks, in support of his own self-defense claim, repeatedly testified that Muldoon had without provocation argued, cursed, and fought others, and had utilized weapons in earlier altercations.

The State’s victim-impact evidence sanctioned by the Supreme Court is designed to show each victim’s uniqueness as an individual human being, and that the victim’s death represents a unique loss to society and, in particular, to his family. Muldoon was no longer able to counter the charges asserted against him by Hicks, and the videotape merely served as a reminder to the jury that, just as Hicks, the murderer, should be considered as an individual, so, too, the State could show that Muldoon’s, the victim’s, death represents a unique loss.

In conclusion, we mention this court’s consistent view that, where the trial court has exercised its sound discretion in monitoring or limiting the admissibility of purported cumulative and prejudicial photos at trial, this court on review will not reverse. For example, see Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995); Williams v. State, 316 Ark. 694, 874 S.W.2d 369 (1994); Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994); Harris v. State, 314 Ark. 379, 862 S.W.2d 271 (1993); Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993); Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). Given the trial court’s expressed and careful consideration of the videotape’s relevancy and purpose, we have no hesitation in upholding the trial court’s decision admitting the tape and its narration. We affirm.

Brown and Imber, JJ., concur.

Robert L. Brown, Justice,

concurring. I write because I believe the issue relating to the extent and kind of victim-impact evidence presented in this case presents a close question.

Alfred Muldoon, Lonnie Muldoon’s brother, provided narration for a silent videotape that was almost 14 minutes in length and contained approximately 160 photographs that essentially spanned the entire life of the victim. More than 60 of these photographs were images of the victim at various stages of his life, including photographs of him as a toddler with his family, various school pictures, and photographs with his wife and two sons. Approximately 40 pictures were dedicated to his older son, Robbie, and followed his growth from infancy to adulthood, and approximately 30 photographs traced the development of his younger son, Tony Joe, from infancy to his growth into a young man. The remaining images ranged from family events, such as Thanksgiving dinner, to the victim’s involvement with various aspects of the carnival business.

The General Assembly has provided an openended standard that evidence relevant to sentencing may include victim-impact evidence or statements and has not limited the introduction of this evidence to capital murder cases. See Ark. Code Ann. § 16-97-103 (Supp. 1995). But that statute neither provides guidelines nor criteria for what might fall under the aegis of this victim-impact evidence. Clearly, the court may receive testimony from “the victim’s family to those close to that person who were profoundly impacted by his death.” Nooner v. State, 322 Ark. 87, 109, 907 S.W.2d 677, 688-89 (1995), cert. denied, 116 S. Ct. 1436 (1996). However, in only one capital case has this court been required to discuss in detail the content of victim-impact evidence properly admitted during the penalty phase. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996) (discussing the testimony of the relatives of two of the three murder victims), cert. denied, 117 S. Ct. 436 (1996).

The seminal case in this area is Payne v. Tennessee, 501 U.S. 808 (1991). Payne was a 6-3 decision in which the Court overruled past precedent and held that the Eighth Amendment did not erect a perse bar against states allowing for the admission of victim-impact evidence. In that case, Chief Justice Rehnquist, writing for the majority, made the following statements:

As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind - for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be.

501 U.S. at 823 (emphasis in original).

Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court [Booth v. Maryland, 482 U.S. 496 (1987)] was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. (Citing authority.)

501 U.S. at 825.

A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differendy than other relevant evidence is treated.

501 U.S. at 827.

In a concurring opinion joined by Justices White and Kennedy, Justice O’Connor wrote:

A State may decide also that the jury should see “a quick glimpse of the life petitioner chose to extinguish,” (citing authority), to remind the jury that the person whose life was taken was a unique human being. . . .
Certainly there is no strong societal consensus that a jury may not take into account the loss suffered by a victim’s family or that a murder victim must remain a faceless stranger at the penalty phase of a capital trial. Just the opposite is true. Most States have enacted legislation enabling judges and juries to consider victim impact evidence.

501 U.S. at 830-31 (O’Connor, J., concurring).

The Eighth Amendment does not prohibit a State from choosing to admit evidence concerning a murder victim’s personal characteristics or the impact of the crime on the victim’s family and community.

501 U.S. at 832-33 (O’Connor, J., concurring).

Justice Souter,

in a concurring opinion joined by Justice Kennedy, underscored the fact that information revealing the individuality of the victim and the impact of the crime on the victim’s survivors was appropriate. He did allude, however, to the fact that evidence about the victim and survivors can be so inflammatory as to risk a verdict impermissibly based on passion rather than deliberation. Both Justice Souter and Justice O’Connor, in their concurrences, made reference to the fact that this form of evidence falls within the trial judge’s purview to control the proceedings consistently with due process and that where inflammatory evidence is improperly admitted, appellate courts must carefully review the record to determine whether the error was prejudicial.

From the foregoing, the following principles can be gleaned from Payne:

• States may legitimately conclude that evidence about the victim and the impact of the victim’s murder on the victim’s family is relevant to sentencing.
• Victim-impact evidence is designed to show both the victim’s uniqueness as an individual human being and the loss to the community.
• Due Process will prevent the evidence if it is so unduly prejudicial that it renders the trial fundamentally unfair.
• There exists a burden on both trial courts and appellate courts to determine whether certain victim-impact evidence runs afoul of the Due Process Clause.

Bearing these principles in mind, two state appellate courts in particular have provided explicit directions for the introduction of victim-impact evidence. In State v. Muhammad, 678 A.2d 164 (N.J. 1996), the Supreme Court of New Jersey discussed victim-impact evidence at length and reached a conservative position:

The testimony can provide a general factual profile of the victim, including information about the victim’s family, employment, education, and interests. The testimony can describe generally the impact of the victim’s death on his or her immediate family. The testimony should be factual, not emotional, and should be free of inflammatory comments or references.

State v. Muhammad, 678 A.2d at 180. The New Jersey Supreme Court also established a procedure for such testimony, requiring that the testimony be reduced to writing and that a hearing be held to determine whether the probative value of each specific point is substantially outweighed by the risk of undue prejudice. Trial courts were further instructed to admonish the witness that he would not be allowed to testify if he cannot control his emotions. Furthermore, comments pertaining to characterizations of the defendant, the crime, and the appropriate sentence were specifically proscribed. Id.

In Cargle v. State, 909 P.2d 806 (Okl. Cr. 1995), cert. denied, 117 S. Ct. 100 (1996), the Court of Criminal Appeals of Oklahoma cited Oklahoma’s statutory definition of victim-impact evidence:

“Victim impact statements” means information about the financial, emotional, psychological, and physical effects of a violent crime on each victim and members of their immediate family, or person designated by the victim or by family members of the victim and includes information about the victim, circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim’s opinion of a recommended sentence [.]

Cargle v. State, 909 P.2d at 827, citing Okla. Stat. Ann. tit. 22, § 984 (Supp. 1993). In commenting on victim-impact evidence, the court stated: “So long as these personal characteristics show how the loss of the victim will financially, emotionally, psychologically, or physically impact on those affected, it is relevant, as it gives the jury ‘a glimpse of the life’ which a defendant ‘chose to extinguish.’” Cargle v. State, 909 P.2d at 828, quoting Payne v. Tennessee, 501 U.S. at 822.

In conjunction with the pronouncement of specific procedures to minimize prejudice, the Louisiana Supreme Court has espoused the following general rule:

[introduction of detailed descriptions of the good qualities of the victim or particularized narrations of the emotional, psychological and economic sufferings of the victim’s survivors, which go beyond the purpose of showing the victim’s individual identity and verifying the existence of survivors reasonably expected to grieve and suffer because of the murder, treads dangerously on the possibility of reversal because of the influence of arbitrary factors on the jury’s sentencing decision.

State v. Taylor, 669 So.2d 364, 370 (La. 1996), cert. denied, 136 L. Ed. 2d 106 (1996), quoting State v. Bernard, 608 So.2d 966, 972 (La. 1992). See also McClain v. State, 477 S.E.2d 814, 825 (Ga. 1996) (allowing victim-impact evidence when it did not encourage comparative judgments and was not a “detailed narrative of the emotional and economic suffering of the community”).

Consistent with these limitations, a number of state appellate courts have upheld the admission of brief videotapes and a small number of photographs as victim-impact evidence because they tended to illustrate the victim’s uniqueness as an individual and did not render the proceedings fundamentally unfair. See, e.g., People v. Mitchell, 604 N.E.2d 877 (Ill. 1992)(noting that the introduction of photographs of victims while alive would not render a proceeding fundamentally unfair), cert. denied, 113 S. Ct. 2936 (1993); Whittlesey v. State, 665 A.2d 223 (Md. 1995) (allowing 90-second videotape of the victim playing the piano, a skill for which he was nationally recognized), cert denied, 134 L. Ed. 2d 100 (1996); State v. Parker, 886 S.W.2d 908 (Mo. banc 1994)(allowing photograph of the victim and her daughter), cert. denied, 115 S. Ct. 1827 (1995); State v. Tucker, 478 S.E.2d 260 (S.C. 1996)(allowing photographs of the victim at various places on vacation, the Christmas decorations in her yard, the victim holding her godchild, and the victim fishing); Penry v. State, 903 S.W.2d 715 (Tex. Cr. App. 1995) (photographs of the victim and her dog were not excludable as victim-impact evidence when the witnesses refrained from opining as to the crime, the defendant, and the apprppriate punishment), cert. denied, 116 S. Ct. 480 (1995). But see, e.g., Al-Mosawi v. State, 929 P.2d 270 (Okl. Cr. 1996) (excluding photographs of victims that did not demonstrate information about the victims and did not show how their deaths had an emotional, financial, psychological or physical impact on their survivors).

I could find no case that has gone as far as the instant case in allowing the sheer number of photographs coupled with the narration by a family member. Almost half of the pictures were of the victim’s two sons. Certainly, the point that the sons are now fatherless is a legitimate one, but at some point the line is crossed from pure information, and raw emotion takes hold.

I concur in the result because the trial judge had no guidance on this point and did exercise his discretion in curbing part of the presentation. Moreover, I cannot conclude that the presentation of the videotape rendered Hicks’s trial fundamentally unfair. And that is the standard. I write only to emphasize that this court or the General Assembly should fashion criteria on the introduction of victim-impact evidence to assist the trial courts in exercising their discretion. As matters stand today, the guidance in this area is sparse indeed.

Imber, J., joins.

       As a matter of strategy at trial, Hicks may well have surmised that it would be worse to have Muldoon’s teenage sons and wife testify than to have Alfred relate the effect Muldoon’s death has had on them.

       We note, too, that Hicks never specifically mentioned the A.R.E. Rule 403 probative versus prejudicial issue he now argues on appeal. However, since Hicks did raise “cumulative and prejudicial” error both below and on appeal, we believe Hicks’s Rule 403 objection is sufficiently preserved for consideration in this appeal.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    John P. McKay, Jr. and Rosemary L. McKay v. CAPITAL RESOURCES COMPANY, LTD.
    96-200
    940 S.W.2d 869
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997
    [Petition for rehearing denied April 28, 1997.]

      Hilburn, Calhoon, Harper, Pmniski & Calhoon, Ltd., by: John E. Pmniski and Dorcy Kyle Corbin, and The Harmon Law Firm, P.A., by: John T. Harmon, for appellants.

       Special Justices Mike Huckabay and Paul B. Gean join. Corbin and Brown, JJ., not participating.

   Tom Glaze, Justice.

In 1987, appellants John and Rosemary McKay, Jr., purchased a condominium unit in Hot Springs. They financed the purchase through Landmark Savings Bank, F. S.B., by a promissory note secured by a mortgage on the unit. In 1990, Landmark Savings was placed into receivership with the Resolution Trust Corporation (RTC), and in 1993, the RTC assigned the McKay note and mortgage to Magnolia Federal Bank for Savings of Hattiesburg, Mississippi.

Subsequently, the McKays defaulted on the note, and on April 12, 1994, Magnolia Federal filed a complaint to foreclose on the McKay mortgage, but during the pendency of that foreclosure suit, on June 29, 1995, Magnolia Federal assigned the McKay note and mortgage to appellee Capital Resources Company, Ltd. Capital Resources in turn filed a petition requesting it be substituted for Magnolia Federal as party-plaintiff in the foreclosure action. An order granting Capital Resources’ motion was entered on September 25, 1995.

At the conclusion of the trial held on September 27, 1995, the McKays moved to dismiss the foreclosure action because Capital Resources failed to produce the original promissory note or account for the note’s absence. The chancellor denied McKay’s motion, and on October 19, he entered a foreclosure decree in Capital Resources’ favor, awarding a judgment against the McKays in the amount of $117,387.06. The McKays appeal from the for-closure decree and denial of their motion to dismiss.

The McKays challenge the trial court’s ruling that Capital Resources was not required to produce the original promissory note at trial, but instead could prove its case by introducing only a copy of the note. As argued below, they contend that under the Uniform Commercial Code, Capital Resources was required either to produce the original note or to explain its absence. The McKays maintain that without production of the original note, Capital Resources cannot prove its status as a holder entitled to sue on the note. They further submit that Capital Resources’ failure to produce the original note subjects them to double liability should a subsequent holder of the original note appear.

The McKays point out that Arkansas case law dating as far back as 1842 has required a creditor to prove the debt by admitting the original promissory note into evidence. See Beebe v. Real Estate Bank, 4 Ark. 124 (1842) (proferí of a promissory note is required by statutes placing promissory notes on the same footing and of equal dignity with instruments under seal). Furthermore, they cite Vandergriff v. Vandergriff, 211 Ark. 848, 202 S.W.2d 967 (1947), where this court held there can be no judgment on a note when it is not introduced into evidence and where the note’s absence is not explained. This court has also held that secondary evidence of the contents of a note is inadmissible when the original is within the control or custody of the one seeking to enforce it. Chaviers v. Simmons, 256 Ark. 731, 510 S.W.2d 301 (1974).

Article 3 of the UCC, first enacted in 1961 and replaced in 1991, governs the treatment of negotiable instruments. Ark. Code Ann. §§ 4-3-101 — 605 (Repl. 1991). Here, because their promissory note is a negotiable instrument as defined by § 4-3-104(a), the McKays contend, and we agree, that Capital Resources was obligated to satisfy the UCC requirements for negotiable instruments. We turn to those UCC requirements applicable here. Under § 4-3-310(b)(3), an obligee may enforce either the note or the debt. However, when the note is transferred to a third party (as in the present case), the only right that survives is the right to enforce the note. § 4-3-310(b)(4). Also important-here is Code provision § 4-3-301, which provides that a person may be able to enforce the note even though that person is not the owner of the instrument or is in wrongful possession of the note.

In applying the foregoing Code requirements to the facts before us, the McKay note and mortgage were purportedly transferred ultimately to Capital Resources, a third party. And while Capital Resources introduced into evidence the Garland County Circuit Court Clerk’s certification that the mortgage and the assignments were true copies of the originals, Capital Resources submitted only a photocopy of the promissory note. The McKays maintain that the record is void of any evidence that either Magnolia Federal or Capital Resources were ever holders of the original note, and that being so, the McKays are left with the possibility of the actual holder enforcing the note against them later.

At this point, we underscore that Capital Resources, even without possessing the original note, could have under certain circumstances prevailed in this action against the McKays. For example, under § 4-3-301, a person not in possession of a note may be entitled to enforce the instrument pursuant to § 4-3-309. Under § 4-3-309, a lost, destroyed, or stolen instrument may be enforced, if the following is shown:

(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entided to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, § 4-3-308 applies to the case as if the person seeking enforcement bad produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

In the instant case, Capital Resources apparently never possessed McKays’ original note as provided in § 4-3-309(a)(i). But even if it had, Capital Resources was required to have proven all three factors specified in § 4-3-309(a). Consequently, Capital Resources could not enforce the original note’s terms by the use of a copy. Even if all three requirements in § 4-3-309(a) had been proven, the trial court was still obligated to ensure that Capital Resources provided adequate protection to the McKays from any future claim, and this too was not done. See Resolution Trust Corp. v. Love, 36 F.3d 972 (10th Cir. 1994) (RTC agreed to indemnify the debtor against further liability on the lost note).

Capital Resources also urges that the trial court was correct in admitting the copy of the note as an exception under the best evidence rule. Ark. R. Evid. 1002 provides that the original is required to prove the contents of a document. However, under Rule 1003, a duplicate is admissible to the same extent as an original, unless a question of its authenticity is raised or it would be unfair to admit the duplicate in lieu of the original. Capital Resources contends the Rules of Evidence supersede the requirements of the UCC. But we find this argument without merit.

First, as previously discussed, we mention the unfairness in these circumstances that, if a duplicate was allowed in place of the original note, the McKays could later be subjected to double liability if the actual holder of the note appeared. Next, we add that the Rules of Evidence are rules of the court involving legal proceedings, while the UCC is composed of statutes of law that established the rights and liabilities of persons. Again, as previously discussed, Capital Resources, as an assignee of the McKays’ note, could not sue on the underlying debt the McKays owed to Landmark Savings. For Capital Resources to have prevailed in enforcing the McKays’ note, it was required either to produce the original or satisfy the requirements for a lost negotiable instrument under § 4-3-309(a) and (b). Because Capital failed to do either, we must reverse and remand.

Corbin and Brown, JJ., not participating.

Special Justices Michael D. Huckabay and Paul B. Gean join this opinion.


author: Robert L. Brown, Justice. Tom Glaze, Justice,

text:
    David BOKKER d/b/a Bokker’s Used Cars v. Odell HILL and Roy Peterson d/b/a Peterson Glass Company
    96-481
    940 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      John D. Bridgforth, P.A., for appellant.

      Richard L. Proctor, for appellee.
   Robert L. Brown, Justice.

Appellant David Bokker d/b/a Bokker’s Used Cars appeals a judgment in favor of appellee Roy Peterson d/b/a Peterson Glass Company relating to the priority between his vendor’s lien on a motor vehicle and Peterson’s mechanic’s lien on the same vehicle. The issue concerns statutory interpretation and, specifically, the effect of Act 737 of 1991, now codified at Ark. Code Ann. § 27-14-903(c)(l) (Repl. 1994), on lien priorities. We agree with the trial judge that Bokker failed to satisfy the requirements of the applicable lien-priority statute (Ark. Code Ann. § 18-45-202(b) (1987)), and we affirm.

The facts in this case are really not in dispute. On May 18, 1994, Bokker entered into a retail installment contract in Wynne with Odell Hill for the sale of a 1986 Toyota Célica. Bokker agreed to finance the purchase price of the car. The agreed purchase price was $4,995, with $1,700 down and the balance ($3,295 plus other costs) payable in 18 monthly installments of $204.92 each. The certificate of title for the car, which was issued in Hill’s name, showed Bokker as the first lienholder. On December 19, 1994, Peterson did repair work to the broken rear window of the Toyota Célica at a cost of $590.17. Because there was no payment for the work done, Peterson stored the car on his business premises at a rate of $10 per day. On January 20, 1995, Hill made his last payment to Bokker on the car and later defaulted. The car remained on Peterson’s business premises. Bokker demanded return of the car, but Peterson refused.

Bokker then filed suit against Hill and Peterson. He claimed damages against Hill for breach of contract in the amount of $2,258.29 and for possession of the car so that it could be sold and the proceeds applied to his lien. He also sought $1,000 against Peterson for wrongful detention of the car. Peterson answered and asserted that Bokker’s lien was inferior to his own mechanic’s lien. He further asserted that the car should be sold with the proceeds going first to satisfy his mechanic’s lien in the amount of $590.17 plus storage fees and next to satisfy Bokker’s lien. In addition, Peterson filed a counterclaim against Bokker on the basis that he (Peterson) had a priority lien. Bokker answered the counterclaim and stated that his vendor’s Hen was superior. An agreed order was entered by the trial judge for the sale of the Toyota Célica with the proceeds to be paid into the registry of the court for distribution after the trial judge decided the priority of the two Hens. However, the parties did not comply with this order.

A bench trial followed on the priority question. Bokker testified that he did not retain the certificate of title, because that would have been iHegal under Arkansas law, but that he did show himself as first lienholder on the certificate and, thus, perfected his Hen. He argued that this was sufficient to give him priority. Peterson testified that he had done the repair work on the car and stored it and that his mechanic’s Hen was superior. The trial judge ruled from the bench in favor of Peterson, and judgment was entered accordingly. The judge found that Peterson had a first Hen on the car in the amount of $915 ($590.70 for window repair and $325 for storage) and that Bokker’s vendor’s Hen in the amount of $2,962.01 was a subordinate and inferior lien. The basis for' the judgment was that Bokker had not retained title to the vehicle, as required by Ark. Code Ann. § 18-45-202(b) (1987).

Bokker first contends on appeal that the trial judge erred when he construed the pertinent statutes to favor Peterson. We refer first to the statutes relating to mechanic’s Hens. Automobile repairmen are given an “absolute Hen” on a vehicle for repairs and storage for which payment was not made. Ark. Code Ann. § 18-45-201 (1987). The next statute in the Code, codified at Ark. Code Ann- § 18-45-202 (1987), sets out the priority of mechanic’s hens vis-á-vis vendor liens:

(b) The lien provided for in this subchapter shall be subject to the hen of a vendor of automobiles, trucks, tractors, and all other motor propelled conveyances retaining title therein, for any claim for balance of purchase money due thereon. (Emphasis ours.)

In 1991, Act 737 was enacted into law, which made retention-of-tide notes to secure an interest in a vehicle a Class C misdemeanor. Ark. Code Ann. § 27-14-903 (Repl. 1994). Act 737 defined a title-retention note as:

[A]ny instrument that grants the purchaser the right to possession and use of the vehicle, but withholds assignment of ownership on the existing certificate of tide and its delivery to the purchaser, until full payment has been made by the purchaser, thereby thwarting the purchaser’s ability to comply with subsection (b) of this section.

Ark. Code Ann. § 27-14-903(c)(l)(B) (Repl. 1994). By making retention of title a Class C misdemeanor, Act 737 was direcdy at odds with § 18-45-202(b), quoted above, which grants priority to a vendor only if the vendor keeps possession of the title.

Bokker does not make the argument that Act 737 impliedly revoked the tide-retention requirement of § 18-45-202. Rather, he argues that he perfected his vendor’s Hen by placing it on the certificate of title, which was delivered to Hill, and that, in essence, he did all that he could do under the law. We are confronted, nonetheless, with a priority-of-lien statute — § 18-45-202(b) — which plainly requires a vendor to keep the certificate of title in his possession in order to preserve priority over a mechanic’s hen. Admittedly, were Bokker to have done that, he would have been in violation of Act 737. Thus, § 18-45-202(b) has essentially been nullified as a statutory basis for establishing the superiority of a vendor’s lien.

Nevertheless, Bokker urges us to give his vendor’s lien priority. But for us to hold that a vendor had priority over a mechanic without clear statutory authority establishing the benchmark for that priority would amount to judicial legislation. We have been loath to engage in judicial legislation in the past and decline to do so in the instant case. See, e.g., Sebastian County Chapter of the Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Trout Brothers, Inc. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992); Pickens-Bond Construction Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979); Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973).

We are mindful of the fact that Act 737, in rendering title-retention notes illegal, also provides that it is not intended to limit the rights of a lienholder to perfect or record his security interest. Ark. Code Ann. § 27-14-903(d) (Repl. 1994). Perfection of a security interest, however, does not automatically equate to priority status over competing lienholders. The Uniform Commercial Code, for example, gives a mechanic’s lien priority over a perfected security interest in goods unless a “statute expressly provides otherwise.” Ark. Code Ann. § 4-9-310 (Repl. 1991). Here, the existing statute on point — § 18-45-202(b) — would give a vendor’s lien priority only if the vendor retained title. But, again, we will not attempt to resolve this statutory quandary, and we conclude that this is a matter for the General Assembly to address and clarify. Hence, because there is no statutory authority giving Bokker’s vendor’s lien priority status over Peterson’s mechanic’s lien, we must affirm.

For his second point, Bokker claims that his judgment of $400 in attorney’s fees and $190.85 in costs should be awarded jointly and severally against Hill and Peterson, rather than solely against Hill. We disagree. In reviewing the record of this matter, we find no reference to the issue of joint and several liability being raised to the trial judge. Accordingly, the issue is not preserved for our review. Douthitt v. Douthitt, 326 Ark. 372, 930 S.W.2d 371 (1996); Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996).

Affirmed.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. Section 18-45-202(b) (1987) provides that the lien of a dealer/vendor, retaining title for an automobile, is superior to a repairmen’s lien. Act 737 of 1991 was later enacted prohibiting a vendor or dealer selling cars from using title-retention notes. The question arises in this case whether, by its passage of Act 737, the General Assembly intended to affect a dealer’s or vendor’s Hen rights established in § 18-45-202. The answer is no.

In paragraph (d) of Act 737, the General Assembly provided the following:

This section [Act] is not intended to limit the rights of a lienholder to perfect or record his security interest in a motor vehicle pursuant to the provisions of Ark. Code Ann. §§ 27-14-802 and - 803. (Emphasis added.)

Section 27-14-801 provides that no conditional sale contract or lien is valid against an owner’s (purchaser’s) creditors acquiring a hen until other subchapter requirements are met. Subchapter § 27-14-802(a), in pertinent part, provides that a dealer/vendor must deposit with the State Motor Vehicle Office a copy of the instrument creating and evidencing a lien with the last certificate of title issued for the vehicle. The Office then endorses the date and hour when the instruments are filed and issues a new certificate of tide with the name of the new owner and statement of all liens. Section 27-14-806 then provides a vendor lienholder two options in recording his lien — the hen may be recorded on the manufacturer’s statement of origin or on an existing certificate of title.

Here, Bokker Used Cars complied fully with the foregoing provisions when perfecting its hen. On May 18, 1994, OdeU Hill purchased a Toyota by signing a retail installment contract giving a security interest to Bokker Used Cars. Upon Bokker filing the necessary documents with the State, Hill received his new certificate of tide dated July 5, 1994, showing him as owner and Bokker’s Used Cars as first henholder. See attached certificate of title designated as “Plaintiff [Bokker’s] Exhibit No. 2.”

In conclusion, I am concerned that today’s decision may have unintended adverse effects on existing hens perfected by Arkansas dealers and other persons selling cars. Obviously, the General Assembly, in passing Act 737, never intended that dealers or vendors selling cars must still comply with the tide-retention language in § 18-45-202(b) before they can perfect their lien. Such an interpretation of these provisions would be absurd and would require such vendors to violate the 1991 law against using title-retention instruments.

The General Assembly made it perfectly clear in Act 737 that all it intended was to prohibit dealers from retaining title to a sold vehicle until the purchaser paid the note or contract in full. In doing so, it specifically stated it did not intend to limit a dealer’s/ lienholder’s rights to perfect its security interest.

In Act 737, the General Assembly provided that all laws and parts of laws in conflict with the Act are repealed. That is precisely what occurred here — the “retaining title” phrase in § 18-45-202(b) is in conflict with Act 737 and in particular with paragraph (d) of that Act. In short, Bokker’s Used Cars complied with Arkansas’s existing vendor-lien laws, and Bokker’s lien rights should be enforced. The majority court’s interpretation of those provisions to the contrary is seriously flawed, and most likely will prove to have a ripple effect on other vendor’s who have appropriately followed the same lien procedures Bokker’s Used Cars did in this cause.

       The judgment shows this amount to be $590.70.

       The judgment figure for the vendor’s lien includes the balance of the purchase price plus prejudgment interest, costs, and attorney’s fees. Also, it appears that the correct figure for the mechanic’s lien should have been $915.70.


author: Annabelle Clinton Imbek, Justice.

text:
    Terrance G. HOPSON v. STATE of Arkansas
    CR 96-961
    940 S.W.2d 479
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      J. Slocum Pickell, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imbek, Justice.

The appellant, Terrance G. Hopson, was convicted of two counts of aggravated robbery and sentenced to sixty years’ imprisonment. On appeal, Hopson asserts that the trial court committed reversible error when it rejected his proffered jury instruction on eyewitness identification. Finding no error, we affirm.

On July 12, 1995, Jack Talbot and Chris Penny were robbed at gunpoint while playing golf in Pine Bluff. Approximately five weeks later, the police presented the victims with a photographic line-up of several suspects. Jack Talbot was unable to make an identification. Chris Penny, however, identified Terrance G. Hopson as the assailant.

At trial, Penny testified that during the robbery he was able to view the assailant for approximately five to ten seconds from a distance of roughly three to four feet. Penny further testified that he recognized Hopson in the photographic line-up due to an unusual discoloration under his right eye. Hopson was allowed to fully cross-examine Penny on his ability to observe Hopson and make a proper identification.

During a conference in chambers, Hopson proffered the following jury instruction:

ONE OF THE MOST IMPORTANT ISSUES IN THIS CASE IS THE IDENTIFICATION OF DEFENDANT, TERRANCE HOPSON, AS THE PERSON WHO COMMITTED THE CRIME CHARGED IN THE INDICTMENT. THE STATE, AS YOU KNOW, HAS THE BURDEN OF PROVING EVERY ISSUE, INCLUDING IDENTITY, BEYOND A REASONABLE DOUBT. YOU ARE REQUIRED TO RESOLVE ANY CONFLICT OR UNCERTAINTY ON THAT ISSUE.
IN MAKING THAT DETERMINATION, YOU MAY CONSIDER THE OPPORTUNITY THAT THE WITNESSES HAD TO SEE THE PERSON WHO COMMITTED THE CRIME AT THE TIME IT WAS COMMITTED. YOU MAY ALSO CONSIDER THE LENGTH OF TIME THAT ELAPSED BETWEEN THE OBSERVATION AND THE LATER IDENTIFICATION. YOU MAY ALSO CONSIDER ALL OF THE CIRCUMSTANCES SURROUNDING ANY SUBSEQUENT IDENTIFICATION.
THE BURDEN OF PROOF IS ON THE PROSECUTION WITH REFERENCE TO EVERY ELEMENT OF THE CRIME CHARGED AND THIS B URDEN INCLUDES THE BURDEN OF PROVING, BEYOND A REASONABLE DOUBT, THAT THE DEFENDANT, TERRANCE HOPSON, WAS, IN FACT, THE PERSON WHO COMMITTED THE CRIME CHARGED.

Hopson conceded that this proffered instruction was not included in the Arkansas Model Jury Instructions; however, he argued that it should be read to the jury because otherwise it would not be instructed on the proper way to evaluate an eyewitness’s identification of the defendant. The trial court disagreed and ruled that the standard instructions were adequate.

Accordingly, the trial judge gave the standard Arkansas Model Jury Instructions, including but not limited to, the following instructions: AMCI 2d 104 Credibility of the Witnesses; AMCI 2d 107 Burden of Proof; AMCI 2d 109 Presumption of Innocence; and AMCI 2d 110 Reasonable Doubt. Additionally, Hopson was allowed to highlight during his closing argument the factors that could have caused Penny’s identification to be inaccurate.

After deliberation, the jury found Hopson guilty of two counts of aggravated robbery and sentenced him to sixty years’ imprisonment. Hopson filed a timely notice of appeal from his judgment and commitment order.

For his sole argument on appeal, Hopson contends that the trial court committed reversible error when it refused to read to the jury his proffered instruction on eyewitness identification. In support of his contention, Hopson relies on United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), where the Circuit Court of Appeals for the District of Columbia held that in cases where a witness’s identification is a major issue, the trial court should give a special instruction which emphasizes to the jury the need for a finding that the circumstances of the identification are convincing beyond a reasonable doubt. The Telfaire rule has subsequently been adopted and utilized under limited circumstances by the Eighth Circuit Court of Appeals. See United States v. Mays, 822 F.2d 793 (8th Cir. 1987); United States v. Greene, 591 F.2d 471 (8th Cir. 1979).

However, in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), this court specifically refused to adopt the Telfaire rule for two important reasons. First, this court found that the Telfaire instruction commented on the evidence, which is permissible under the federal rules but specifically prohibited by Article 7, section 23, of the Arkansas Constitution. Id. Second, this court found that the content of the proffered instruction had been adequately covered by the arguments of counsel and the standard AMCI instructions on reasonable doubt and credibility of the witnesses. Id. See also Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981).

Therefore, on appeal, Hopson is in effect asking this court to reverse our prior holding in Conley, supra. As we have repeatedly explained, under Arkansas law there is a strong presumption of the validity of a prior decision unless great injury or injustice would result. Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996); Independence Fed. Bank v. Webber, 302 Ark. 324, 789 S.W.2d 725 (1990). Moreover, the United States Supreme Court has recognized that the adherence to precedent promotes stability, predictability, and respect for judicial authority. Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197 (1991).

Hopson has not overcome the strong presumption of the validity of our prior decision in Conley, supra. Because Hop-son was able to argue to the jury the possible unreliability of the witness’s identification, and the jury was given the AMCI instructions on credibility of the witnesses and reasonable doubt, the trial court did not err when it rejected Hopson’s proffered jury instruction on eyewitness identification.

Affirmed.

Brown, J., not participating.

Special Justice John Clayton Randolph joins in this opinion.


author: Annabelle Clinton Imber, Justice.

text:
    Marko Donnell HUMPHREY v. STATE of Arkansas
    CR 96-904
    940 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Arkansas Public Defender Commission Capital, Conflicts and Appeals Office, by: Richard Lewallen and Teri Chambers, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant was convicted of first-degree murder and second-degree battery. On appeal, he challenges the trial court’s ruhngs on his motion to suppress and motion to transfer to juvende court. We find no error and affirm.

On March 6, 1994, Officers Bobby Bozarth and Willie Dinwiddie of the Augusta Police Department were on duty parked at a pharmacy located in Augusta. Around 3:35 a.m., they heard gunshots. Bozarth and Dinwiddie individually proceeded to the general area where they thought the shots came from.

Whde driving, Dinwiddie saw a young man, Frank Galloway, running behind a church. Galloway approached Dinwiddie and took him to the crime scene, which was about three-and-a-half blocks away from where the officers were originally parked. At the scene, two bodies were lying face down on the driveway of a residence. One girl, Shinika Ford, had been shot twice in the back and was dead. She was thirteen years old. The other girl was fifteen-year-old Stacy Johnson. Johnson had been shot once in the leg and was conscious. Both Galloway and Johnson told Dinwiddie that Marko Humphrey, fifteen years old, was the perpetrator.

Bozarth arrived on the scene immediately after Dinwiddie. They secured the crime scene, and called the Sheriffs office. Woodruff County Sheriff Jack Caperton arrived on the scene shortly thereafter. They discussed how to proceed. Dinwiddie knew that Humphrey lived with his grandmother and guardian, Earsie Lee Richardson. Her house was only a few blocks away from the scene. Caperton decided that they needed to pick up Humphrey because, as far as they knew, he was still armed arid dangerous.

By the time the officers arrived at the house, less than an hour had passed from when they initially heard the gunshots. They knocked on the door and told Richardson that they were there to talk to Humphrey. Though disputed, Caperton said that Richardson let them in the house. Humphrey was arrested and taken to the county jail; Richardson also went along.

At the booking room, Caperton testified that he read Humphrey his Miranda rights, and that Humphrey executed a “Statement of Rights” form. Humphrey initially told Caperton, Dinwiddie and Bozarth that Earl Lockhart shot the girls. He said that Lockhart threw the gun down on the street, and then he picked it up and threw the gun in a nearby culvert. Caperton and Dinwiddie left to investigate the area where Humphrey said the gun was. About thirty inches inside a culvert, the officers found a Llama 9mm pistol.

When Caperton returned to the jail, Humphrey was interviewed by Sergeant Henry Lamar of the Arkansas State Police Crime Investigation Division. Subsequently, Humphrey told Lamar that he wished to give another statement. Humphrey then gave a videotaped confession. He explained that he and a number of other people were at Archie Neville’s house. While there, he got into an argument with Stacy Johnson. Apparently, someone had thrown water on Johnson, and she accused Humphrey of doing it. He said that Stacy Johnson threatened to have him killed the following week, and that previously Johnson had pulled a .22 gun on him in Newport. Humphrey also said that Johnson’s friend, Shinika Ford, had once before tried to have him beat up in Newport. Johnson subsequently left the house with her boyfriend, Frank Galloway, and Shinika Ford. Humphrey followed after them, along with a number of other boys. Once he caught up to them, he shot Johnson and Ford using a gun he had obtained from Earl Lockhart. Afterwards, he placed the gun in the culvert and went back home to his grandmother’s house. This concluded the substance of the statement, and it was his only custodial statement admitted into evidence at trial.

The investigation revealed that Ford had been shot twice in the back, and that Johnson had been shot once in her leg. Additionally, the following ammunition was found: three live rounds of 9mm ammunition near the victims; one round in the chamber of the recovered gun; one additional round in the gun’s clip; two spent shell casings at the scene; and one bullet lodged in the wall of the carport adjacent to the driveway where the victims were found. Ballistics tests on the bullet revealed that it was fired from the gun that was recovered from the culvert.

Humphrey was charged with capital murder and first-degree battery. At trial, Humphrey testified that he intentionally shot Johnson in the leg because he was angry with her, but that he had no intention of killing her. He testified that after he shot Johnson, Frank Galloway hit him and attempted to grab his hand. In the ensuing struggle, the gun discharged, accidentally shooting Ford. Humphrey then said that both he and Galloway let go of the gun, after which he picked up the gun and threw it in the culvert.

Humphrey also explained that only part of his videotaped statement was true. He testified that while the portion describing the shooting of Johnson was accurate, he had no intention of shooting Ford and had never argued with her. He testified that he confessed to shooting Ford because he felt pressured to do what the police “wanted him to do.”

The jury convicted Humphrey of first-degree murder and second-degree battery. He was sentenced to life imprisonment and six years’ imprisonment, respectively, along with a $10,000 fine. On appeal, Humphrey argues that the trial court erroneously ruled on his motion to suppress and on his motion to transfer to juvenile court.

I. Motion to Suppress

Humphrey’s first point on appeal is that the trial court erred in denying his motion to suppress statements. Specifically, he asserts two separate grounds in support of this argument: (A) that bis statements were not the result of a knowing, voluntary and intelligent waiver of his Miranda rights; and (B) that his statements were the result of an illegal arrest.

A. Whether Humphrey’s statements were the result of a knowing, voluntary and intelligent waiver of his Miranda rights.

As stated in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into waiver has two distinct dimensions. The first is whether the waiver was “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Id. (citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412 (1986)). Under the second inquiry, we ask whether the waiver was made “with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id.

A custodial statement is presumptively involuntary, and it is the State’s burden to prove by a preponderance of the evidence that a custodial statement was given voluntarily, and was knowingly and intelligently made. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996); Kennedy v. State; 325 Ark. 3, 923 S.W.2d 274 (1996). When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Kennedy v. State, supra. In determining whether a confession was voluntary, we consider the following factors: age, education, and intelligence of the accused, lack of advice to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment. Kennedy v. State, supra.

Humphrey challenges the voluntariness of his confession on the ground that his age and experience rendered him vulnerable. This court has specified that statements made by the interrogating officer and the vulnerability of the accused are pertinent factors in considering the totality of the circumstances. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). At the time of his statement, Humphrey was fifteen years old. IQ tests revealed that Humphrey was in the average range of intellectual functioning. At any rate, while age and mental capacity are factors that we consider, these factors standing alone are not sufficient to suppress a confession. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996); Oliver v. State, supra.

Caperton testified that no promises or threats were made against Humphrey. Likewise, Lamar was not aware of any promises or threats made against Humphrey. However, he did admit to telling Humphrey that he had shot and killed someone, and that he could receive the death penalty.

Lamar said that after he took Humphrey’s first statement, he sent Humphrey back to the jail’s drunk tank. A few hours later, someone told Lamar that Humphrey was willing to talk to him again. Lamar testified that he then went back to Humphrey’s jail cell and reminded him of the rights read to him by Caperton. He asked Humphrey if he was nonetheless willing to talk, to which Humphrey responded affirmatively. Lamar then set up the videotaped interview in the Sheriffs office.

Humphrey testified to the generally poor conditions of the drunk tank where he was kept after he was initially arrested. He said it was cold and that he was not offered anything to eat or drink. He said that Lamar appealed to him “black man to black man,” and that he was trying to help him. He further stated that Lamar came to him while he was in the drunk tank, gave him a sheet of paper, and told him to write out what happened. Humphrey testified that when Lamar read what he wrote, he said “I know you’re lying,” and that he could get life without parole or death. He also testified that Lamar warned him of getting raped while in the penitentiary. When Humphrey further refused to talk, Lamar allegedly told him “get the fuck out of my face” and “don’t say anything to me until you get ready to tell me you done it.” According to Humphrey, the main reason he gave the videotaped statement was because he thought Lamar would help him.

A confession obtained through a false promise of reward or leniency is invalid. See Key v. State, supra; Misskelley v. State, supra. However, the only evidence that Humphrey’s custodial statement was obtained through a false promise of reward comes from his own testimony. Therefore, this is a credibility issue that is best resolved by the trial court. See Key v. State, supra; Misskelley v. State, supra; Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). We cannot say that the trial court was clearly erroneous in determining that Humphrey’s statement was voluntary.

Humphrey also argues that he did not make a knowing waiver, highlighting that the rights form which he executed contained no express waiver provision. While he said that the form was executed after he told the officers where the gun was, he admitted that the rights form was read to him and that he placed his initials by each “yes” written by Caperton. Although disputed by Humphrey, Caperton testified that Humphrey indicated that he understood all of his rights that were read to him.

The evidence demonstrated that the rights form was executed about fifteen minutes after Humphrey was brought to the county jail, and that the videotaped confession was not given until approximately five hours later. Caperton testified that he read the rights form to Humphrey to see if he understood each statement, wrote “yes” on each fine acknowledging the individual rights, and had Humphrey initial each acknowledgment. Humphrey also signed his name at the end of the form, as did his grandmother. The rights form contained the enumerated Miranda rights but no express waiver, instead providing:

However, you may waive the right of advice of counsel and your right to remain silent, and you may answer questions or make a statement without consulting a lawyer if you so desire.

The use of a rights form that contains no express waiver provision to prove that an accused has waived his rights has not escaped strong criticism from this court. See, eg., Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). Humphrey correctly points out that the officers attempted to use a different form containing an express waiver later the same day. Nonetheless, a form with an express waiver provision is not a prerequisite to a finding of a knowing and intelligent waiver. See Fleming v. State, supra. Rather, the rights form used is simply part of the totality of the circumstances in making the determination. See Fleming v. State, supra. Under these circumstances, we also conclude that Humphrey’s waiver was knowingly and intelligently made.

B. Whether Humphrey’s statements were the result of an illegal arrest.

For this point, Humphrey argues that the trial court erred in denying his motion to suppress because of his warrantless arrest while in his home. He relies on Payton v. New York, 445 U.S. 573 (1980), where the United States Supreme Court held that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. Consistent with this principle, this court has held that all warrantless and nonconsensual entries into the home are prohibited by the Fourth Amendment, unless at the time of entry there exists probable cause and exigent circumstances. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992), cert. denied, 506 U.S. 998 (1992); Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988).

1. Probable cause to arrest.

Humphrey initially challenges the existence of probable cause to arrest him . A police officer may arrest a person without a warrant if the officer has reasonable cause to believe that the person committed a felony. Ark. R. Crim. P. 4.1(a)(i). Probable cause exists where there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that a crime has been committed by the person suspected. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). The degree of proof sufficient to sustain a conviction is not required for probable cause to arrest. Id. All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Id.

Based on the totality of the circumstances, the officers had reasonable cause to arrest Humphrey for committing a felony. Officers Dinwiddie and Bozarth both heard gunshots, and arrived at the crime scene only minutes after the shots. Frank Galloway immediately told Dinwiddie that Marko Humphrey committed the shooting. Dinwiddie asked Johnson who had shot her, and she told him that Humphrey did it. Dinwiddie knew who Humphrey was, and where he lived (and that the house was nearby).

Humphrey argues that the witness and victim identification of Humphrey was not reliable, highlighting Caperton’s own testimony that he had found Galloway to be unreliable in a prior, unrelated investigation. However, this is not a “typical” probable cause case where an informant has provided information to police officers. Rather, one of the surviving victims specifically identified Humphrey as the perpetrator. This identification was corroborated by another eyewitness. Where information is provided by a victim or witness to a crime, concerns about veracity or basis of knowledge are not as great. See generally, Wayne R. LaPave & Jeorld H. Israel, Criminal Procedure § 3.3(d) (1984 and supp. 1991) (distinguishing “informant” probable cause cases from “victim-witness” type probable cause cases). Here, both the victim and an eyewitness described the perpetrator in great detail — identifying him by name — only minutes after the shootings. Only a short amount of time elapsed between the time of the crime and the arrest, and Humphrey could have easily walked or run the few blocks between the crime scene and his grandmother’s house. Under these circumstances, we conclude that the officers had probable cause to arrest Humphrey.

2. Consent to entry.

Next, we turn to Humphrey’s contention that the officers’ entry into his grandmother’s house was nonconsensual. If the officers did not have valid consent, then there must have been exigent circumstances justifying the entry. Payton v. New York, supra. We have stated that consent to a warrantless search of one’s home must be given freely and voluntarily. Guzman v. State, 283 Ark. 112, 672 S.W.2d 656 (1984). The State has a heavy burden to prove by clear and positive testimony that consent was freely and voluntarily given. Id. On appeal, we make an independent determination based on the totality of the circumstances to determine if the State has met its burden. Id.

At the suppression hearing, Dinwiddie testified that he went to Richardson’s residence with Bozarth and Caperton. When they arrived, Dinwiddie knocked on the door and Richardson answered. He testified that he told her they needed to talk with Marko. When asked “what was [Richardson’s] response?” Dinwiddie answered:

She said okay, that he was in bed asleep and she went in, we all went in, and she woke him up and she wanted to know what was the problem and we told her what we had heard and we needed to take him down to the office and talk with him.

Caperton corroborated this version of events:

We knocked at the door and his grandmother came to the door. I believe Officer Dinwiddie was the one that said that we wanted to know if Marko was at home and told her that there had been a shooting and that we needed to talk to him. She let us in the house and took us to Marko’s room where he was laying in the bed and we got him up and got him dressed and carried him to the county jail.

Additionally, Bozarth testified to this sequence of events:

We approached the door, knocked, and Marko’s grandmother answered the door and we asked her if Marko was at home and she said yes, he was. He’d been there for a little while. We asked if we could speak with him and she wanted to know what the problem was and we advised her that we had suspected Marko had been involved in a shooting incident and we needed to talk with him. So she let us in the house and she walked to the bedroom where Marko was asleep so we woke Marko up and at that time we took Marko into custody.

Bozarth admitted that they did not inform Richardson that they did not have an arrest warrant for Humphrey, or that she did not have to let them in.

Richardson testified that the officers knocked on the door and that she answered. They then announced that they were looking for Marko. Richardson further testified to the following:

Q: Was there any more conversation before they entered the house?
No. A:
Q: Did you invite them in?
A: Well, I just opened the door and they just come in.
Q: You didn’t say ‘Come on in’?
A: No, I just opened the door.
Q: Did you believe at that time that you were free to tell them — to refuse them entry?
A: I didn’t know.
Q: Did any of them tell you they didn’t have a warrant?
A: If they had one I didn’t see it.
Q: Did any of them tell you that you were free not to let them in if you didn’t want to?
A: No.

She further testified that she went into Humphrey’s room before Officer Dinwiddie in order to get Humphrey.

The officers’ testimony constitutes clear and positive evidence that Richardson voluntarily let them in her house after they informed her that they were there to talk to Humphrey. The State correctly notes that an officer is not required to inform a person that consent may be withdrawn; the failure to so advise an individual does not invalidate consent. See Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). At most, Richardson’s arguably conflicting testimony simply required a credibility determination by the trial court. In such cases, we defer to the trial court’s superior position to evaluate the credibility of witnesses. See Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988); Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). Therefore, we cannot say that the trial court was clearly erroneous in determining Richardson consented to the officers’ entry into her home.

3. Exigent circumstances.

However, even if Richardson had not consented to the entry into her home, there were still exigent circumstances justifying the officers’ warrantless entry.

Exigent circumstances are those requiring immediate aid or action, and, while there is no definite list of what constitutes exigent circumstances, several established examples include the risk of removal or destruction of evidence, danger to the lives of police officers or others, and the hot pursuit of a suspect. Butler v. State, 309 Ark. 211, 829 S.W.2d 412 (1992). The facts of the present case are not unlike those presented in Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984). There, an armed robbery was committed in a restaurant at about 10:00 p.m. The investigating officers determined that the robbery must have been committed by a former employee. The appellant, a former employee of the restaurant, fit the description of the robber and was known to be in need1 of money. The officers then went directly to the appellant’s residence at 10:27 p.m., and knocked on the door and announced themselves over a loudspeaker. After receiving no response, the officers entered the residence through an unlocked door and arrested the appellant, in addition to seizing incriminating evidence.

On appeal, the appellant argued that, based on Payton v. New York, supra, the officers lacked reasonable cause to arrest and exigent circumstances to justify the warrantless entry. The Gaylor court affirmed, noting six potential exigent circumstances:

1) the commission of a grave offense;
2) belief that the suspect is armed;
3) a clear showing of probable cause;
4) strong reason to suspect that the suspect is in the premises being entered;
5) likelihood that the suspect will escape if not swifdy apprehended; and
6) danger of the destruction of evidence.

Gaylor v. State, supra (citing United States v. Santana, 427 U.S. 38 (1976) and Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970)).

In the present case, murder had been committed, clearly a most grave offense. Since the victims were shot and no murder weapon was immediately apparent at the crime scene, the officers had good reason to believe that the suspect was armed and dangerous. Additionally, Bozarth and Dinwiddie testified that they heard gunshots at about 3:35 a.m., and Caperton testified that they arrived at the residence at 4:21 a.m., less than an hour after the shootings. As discussed above, the officers had strong probable cause to believe that Humphrey was the perpetrator. Dinwiddie also knew that Humphrey lived with his grandmother, giving the officers a strong reason to suspect that Humphrey was in the premises being entered. Under these particular facts, we conclude that sufficient exigent circumstances existed to justify a warrantless entry into the home, even if Richardson did not consent to the entry. See Gaylor v. State, supra. Therefore, the trial court was not clearly erroneous in denying the motion to suppress on the ground that the officers illegally arrested Humphrey.

II. Transfer to juvenile court under Ark. Code Ann. § 9-27-318

For this point, Humphrey argues that the trial court erred in denying his motion to transfer to juvenile court, and asks this court to reconsider its interpretation of the law pertaining to juvenile transfers, particularly Ark. Code Ann. § 9-27-318 (Supp. 1995). Since Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), this court has repeatedly held that in considering motions to transfer to juvenile court, the circuit court does not have to give equal weight to the statutory factors found in Ark. Code Ann. § 9-27-318, and that it is permissible to give substantial weight to the criminal information. See, e.g., Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996); Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996); Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995).

Essentially, Humphrey argues that the reasoning employed in these cases is flawed. More specifically, he maintains that allowing the trial court to establish the seriousness of the offense merely by the felony information “is in direct conflict with our jurisprudence.” Echoes of this argument can be found in Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), where this court observed that:

[U]nder our current interpretations of the code, prosecuting attorneys can file a serious charge against a juvenile in circuit court and do nothing more. It may be that there is no substantial evidence to support the charge, and a transfer may be denied.
This type of proceeding was not envisioned by the drafters of the juvenile code, and we did not intend for our interpretations to do away with the need for a meaningful hearing. As a result, we issue a caveat that in juvenile transfer cases tried after this date, we will consider anew our interpretation of the juvenile code when the issues are fully developed and briefed.

While Humphrey’s point is well-taken in light of Sanders v. State, this case does not present this court with such an opportunity to reevaluate our interpretation of the juvenile code.

Here, there was clearly substantial evidence of the serious and violent nature of the crime charged, sufficient for the denial of the transfer. At the hearing on the transfer motion, Galloway testified that Humphrey pulled out a gun and shot Stacy Johnson, that he turned and attempted to shoot at him, and that he then shot Shinika Ford. Johnson also testified that she heard Humphrey say, “You won’t mess with me no more,” and then she was shot in the leg. She then said that Humphrey turned and shot Ford as she was “fixing to run.” Given the most serious nature of the crimes charged, and the substantial evidence supporting the charges, the trial court did not err in denying the motion to transfer to juvenile court.

III. Rule 4-3 (h) Compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.

Affirmed.


author: Ray Thornton, Justice.

text:
    Bill D. REYNOLDS v. GUARDIANSHIP OF Grace L. SEARS
    96-1111
    940 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Bethell & Cromwell, P.L.C., by: Bruce H. Bethell, for appellant.

      Michael E. Stubblefield, P.A., for appellees.
   Ray Thornton, Justice.

This case involves the appointment of a guardian of the person and estate of Grace L. Sears, age seventy, a resident of Fayetteville, Arkansas, who was found to be incapacitated and unable to manage her own affairs. In early February 1996, family members became convinced that Mrs. Sears was in need of a guardianship. With the consent of three of her four children, Clifford, Fran, and William Sears, she was placed in the Washington Regional Medical Center on February 12, 1996, for a four-week evaluation. Two days later, without notice to Clifford or Fran, Mr. Bill Reynolds, an attorney who is not related to Mrs. Sears but who had been named a potential cotrustee of Mrs. Sears’s revocable trust, together with Mr. and Mrs. William Sears, caused her to be checked out of the Washington County medical facility and transported to Brownwood Manor Nursing Facility in Crawford County.

Upon discovering this move, Clifford and Fran filed a petition in Washington County Probate Court for temporary guardianship on February 16. On February 27, the petition was amended to seek foil guardianship. The probate court scheduled a hearing for March 27, and notice was served. While William Sears neither joined in their guardianship petition nor responded to the petition, he was present at the hearing; furthermore, he did not seek to be named as a guardian or take timely action to contest or protest the guardianship. The whereabouts of the other sibling, Donna Sue Haas, is unknown.

Representing himself to be the guardian of Mrs. Sears, Mr. Reynolds challenged venue in Washington County. When the matter was heard, the probate court determined that venue was properly in Washington County, that Mr. Reynolds was not a party to the proceeding, and that no person having standing to object or otherwise respond to the petition had done so. All persons related to Mrs. Sears agreed that she was incapacitated and that guardians should be appointed. The probate court then named the two children of Mrs. Sears who had filed the petition as guardians.

Mr. Reynolds appeals from this decision, asserting that he should have been permitted to file a responsive pleading following the denial of his venue-based motion to dismiss. Because we agree with the probate court that Mr. Reynolds was not a party to the proceeding and had no standing to contest the appointment of guardians, we affirm.

We review probate matters de novo on appeal, and will not disturb the probate judge’s decision absent an abuse of discretion or upon findings that the judge’s decision was clearly erroneous. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990); see also White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996).

It is undisputed that Mrs. Sears was incapacitated and in need of a guardian. Before reaching the guardianship issue, the first matters considered by the probate court were the issues of standing and venue. Mr. Reynolds contended that his position as attorney-in-fact gave him standing in the guardianship proceeding. With reference to these issues, the following colloquy ensued, which is abstracted as follows:

MR. SELF [counsel for appellant]: Your Flonor, Mr. Cad-dell is co-trustee of the estate, along with Mr. Reynolds who is also a party.
THE COURT: Well, I’m not sure they are parties in this proceeding. I don’t think their status as co-trustees or attorney — with Power of Attorney —r I don’t think that makes them parties.
MR. STUBBLEFIELD [counsel for appellee]: That would be our argument, Your Honor. And in the Probate Court, I believe the statutes of Arkansas make it fairly clear that the Probate Court has no jurisdiction over a trust. So we’re not here arguing the trust today.
THE COURT: I think they are not entitled to remain, Mr. Self.
MR. SELF: On the question of venue, the motion filed by Mr. Reynolds, he is a party to that motion, is that correct?
THE COURT: Well, he’s a party to the motion, but I don’t know whether he’s a party to this case.
THE COURT: Well, I don’t think the question of standing to file a motion has been raised. But the motion describes himself as guardian. There is nothing in this file to show that he is the guardian. I think it is alleged somewhere in the original petition or the amended petition that the gentleman holds a Power of Attorney for Mrs. Sears. But I don’t think that constitutes him as a party to this proceeding to inquire into the providence of the suggested guardianship.
MR. SELF: Then I will call Mr. Bill Reynolds as my first witness.
TFIE COURT: Do you wish to raise the question of the standing of Mr. Reynolds to take part in this proceeding?
MS. DILLON [co-counsel for appellee]: Yes, we do, Your Honor.
THE COURT: I think that’s a very significant request, Mr. Self, whether your client has standing to appear in this matter and to challenge the venue.

Mr. Stubblefield withdrew his objection to allowing Mr. Reynolds to testify on venue, but maintained his objection that Mr. Reynolds was not a party to the guardianship proceeding. With regard to venue, it was undisputed that Mrs. Sears had established domicile in Washington County that continued until February 16, the date that she was transferred to Crawford County. We agree with the probate court’s determination that venue was proper in Washington County.

We next consider the issue whether Mr. Reynolds is a party to the guardianship petition. On November 28, 1995, Mrs. Sears was the grantor of a revocable trust into which she transferred substantial assets for her own benefit as primary beneficiary of the trust. She designated herself as the original trustee, to serve during her fife or until she became unable or unwilling to serve as trustee. She nominated Fred L. Caddell or Bill D. Reynolds to serve as successor trustee in the event of her removal as trustee. At the time of the hearing, she had not been removed as trustee, and Mr. Reynolds was only a potential successor cotrustee with dormant powers. On November 28, Mrs. Sears also published her last will and testament naming Mr. Caddell and Mr. Reynolds as her executors, and providing that all of her estate would be added to the trust that was contemporaneously established. Mr. Reynolds contends that on the same day, she executed two separate but identical durable powers of attorney, one naming Mr. Mr. Reynolds (and the other one naming Mr. Caddell) as- her attorney-in-fact with broad powers over her property. The original documents granting the durable powers of attorney could not be located at the time of the hearing. However, while the original document giving Mr. Reynolds a power of attorney was not in evidence, a document purported to be a copy had been attached as an exhibit to the guardianship petition that he had filed in Crawford County on March 18.

We note that the copy contains no provision for legal recognition of a copy as the original, nor does it nominate the attorney-in-fact as guardian in the event such proceedings are initiated. Consequently, there is no showing that Mr. Reynolds had standing to appear as a party. As Judge Thomas Butt correctly observed:

I don’t see that anyone who by statute is a proper or necessary party and therefore required to be notified has filed any responsive pleading at all on the principal issue of a guardianship.
The law requires that the spouse, if any, of the alleged incapacitated person must be served and notified. If no spouse, then at least one of the next of kin. Well, in this instance, two of the next of kin are the petitioners. Obviously, it s a vain endeavor that they are required to notify themselves.
As a matter of common sense o[r] decency and courtesy, if there is another or other persons in the same degree of kin, that person or persons ought to be notified, and I believe Mr. Williams here [William E. Sears] was notified. And there has been no pleading filed in his behalf. So I think there is no litigious purpose to be served, or interest to be protected in further postponing the matter.

The probate court determined that Mr. Reynolds lacked standing to be a party in this action. Having made this ruling, the court proceeded to decide the matter of Mrs. Sears’s incapacity and to appoint guardians. The court’s selection of guardians followed the provision of Ark. Code Ann. § 28-65-204 (Supp. 1995) relating to preferences for appointment as guardian of persons having a “relationship by blood or marriage to the person for whom guardianship is sought.” Id. § 28-65-204(b)(4). The probate court correctly found that Mr. Reynolds was neither a guardian nor a party, and found Clifford and Fran to be the preferred guardians of Mrs. Sears.

The one remaining issue is whether the denial of Mr. Reynolds’s motion to dismiss for improper venue automatically extends to a nonparty the right to file a responsive pleading pursuant to Ark. R. Civ. P. 12. The principle may be stated as follows:

To be a proper plaintiff in an action, one must have an interest which has been adversely affected or rights which have been invaded. Courts will not allow suit by one who is a “stranger to the record” or for the purpose of vindicating an abstract principle of justice.

David Newbern, Arkansas Civil Practice and Procedure § 5-15, at 61-62 (2d ed. 1993).

In applying that principle to estate administration, we have held that a person who was neither an heir nor a creditor and did not declare any interest in the property or indicate any entitlement to the proceedings was not an interested person; therefore, he had no standing to question a court order. White v. Welsh, supra.

A helpful analogy can be found in our cases involving wills and trusts. In these cases we have found that a person lacks standing to raise a will or trust issue in probate court if the record shows no evidence that he has any interest in the trust or will. See, e.g., Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996).

While we note that Mr. Reynolds correctly asserts that a motion to dismiss based on venue may be made before the filing of a responsive pleading, Inmon Truck Sales, Inc. v. Wright, 294 Ark. 397, 743 S.W.2d 793 (1988), we find that this rule does not apply to him because he lacks standing.

The language of Ark. R. Civ. P. 12 clearly addresses party litigants. The language throughout that rule refers to “a defendant,” “a party,” “every defense,” “upon motion by a party,” “responsive pleading,” and “adverse party.” Specifically, Rule 12(b) prescribes the mechanisms for filing defenses in relation to filing responsive pleadings. For a nonparty to enter into this proceeding, the proper procedural method would have been a motion to intervene pursuant to Ark. R. Civ. P. 24. That rule allows a nonparty to intervene into a proceeding, either by right or by permission, if he has a protectable interest in the outcome. The record does not reflect that Mr. Reynolds sought to intervene or that he had an interest that should be protected.

In summary, we find that the probate court did not commit error in denying Mr. Reynolds additional time to plead further because he lacked standing and was a nonparty to the proceeding. We affirm.


author: Per Curiam.

text:
    Darrell HILL v. STATE of Arkansas
    CR 96-33
    940 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Montgomery, Adams & Wyatt, PLC, by: Dale E. Adams, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

Darrell Hill was convicted of capital murder and sentenced to death. Mr. Hill moved to withdraw the appeal of his conviction. We remanded the case to the Montgomery Circuit Court to determine whether Mr. Hill, was knowingly and intelligently waiving his right to appeal. Hill v. State, 323 Ark. 796, 917 S.W.2d 537 (1996).

The Circuit Court ordered a psychiatric examination to be done by State Hospital personnel for the purpose of determining Mr. Hill’s capacity to make a rational choice with respect to continuing or abandoning his appeal.

In a letter of September 23, 1996, Dr. O. Wendell Hall, III, Forensic Medical Director of the Division of Mental Health Services of the Arkansas Department of Human Services, and Dr. Susan C. Doi, Forensic Staff Psychologist, reported to the Circuit Court that they had visited with Mr. Hill at the penitentiary for the purpose of evaluating him in response to the Court’s request. They reported that Mr. Hill refused to participate in the evalúation on the ground that Mr. Hill thought he was to be transported to the State Hospital where he would remain for thirty days for the purpose of the evaluation. He characterized their visit with him at the prison as a “drive by” evaluation in which he would not cooperate. The doctors’ letter reviews records of previous mental evaluations of Mr. Hill and declares:

Although a full evaluation could not be completed with Mr. Hill, it is the examiners’ conclusion his decision not to participate was voluntary and not the result of mental disease or defect. Thus, it is our opinion Mr. Hill has the ability to take part in a competencuy evaluation, should he so choose. As there is no evidence to preclude him from being found competent to continue or abandon further litigation of the death sentence, our opinion is Mr. Hill is competent to appreciate his position in this matter and to make a rational choice with respect to waiving his rights of appeal on the death sentence.

Mr. Hill’s counsel, by letter to the Circuit Court of January 28, 1997,' stated, “Since the State Hospital will not abide by the Court Order, the only choice that the Court has at this time is to enter an Order showing that the State Hospital failed to abide by the Court’s Order and dissolving the writ of certiorari and proceeding with the appeal.”

In response to the State’s motion to dissolve the writ, Mr. Hill’s counsel on behalf of Mr. Hill states that the writ should be dissolved and “. . .let the Defendant decide whether to appeal in this matter.”

In view of Mr. Hill’s refusal to be evaluated and the consequent lack of a full mental evaluation to inform the Circuit Court’s inquiry into Mr. Hill’s capacity to waive his appeal knowingly and intelligently, we decline to honor his request to waive the appeal.

The motion to dissolve the writ of certiorari is granted. The appeal will proceed with the Clerk of this Court to establish the briefing schedule.


text:
    IN THE MATTER OF CONTEMPT OF COUNSEL, George Stephens, Steve Kirk, and Ralph Blagg
    CR 96-799
    942 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997
   Per Curiam.

On March 12, 1997, the Honorable Jack Holt, Jr., was appointed the master to conduct the hearing in this contempt proceeding. It is necessary that a substitute master be appointed, and we hereby appoint the Honorable Jack Lessenberry to succeeed Justice Holt as the master in this proceeding.


text:
    Johnny Mark PROPST v. STATE of Arkansas
    CR 96-633
    939 S.W.2d 311
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      J. F. Atkinson, for appellant.
    No response.
   Per Curiam.

The procedural background in this matter is set forth in a per curiam opinion delivered on February 3, 1997. In the Matter of Contempt of Counsel, J.F. Atkinson Jr., 327 Ark. 193, 936 S.W.2d 747 (1997). Attorney J.F. Atkinson Jr., counsel for Appellant, Johnny Mark Propst, was cited to appear before this court on January 27, 1997, to show cause why he should not be held in contempt for his failure to file Appellant’s brief in a timely manner. Mr. Atkinson appeared before this court on that date and entered a plea of not guilty to the charge of contempt. We appointed the Honorable Robert H. Dudley as Master to conduct a hearing and make findings of fact in this matter. Before such hearing was scheduled, however, Mr. Atkinson sent a letter to the appointed Master stating that he wished to change his plea to one of guilty to the contempt charge.

On the recommendation of the Master, Mr. Atkinson filed a petition with this court on March 5, 1997, indicating his desire to change his plea to guilty to the charge of contempt. Mr. Atkinson stated that he had made a serious mistake in failing to timely file Appellant’s brief and that he understood that it was his responsibility to make sure the brief and other matters were timely filed with this court. Mr. Atkinson stated that he would ensure that no similar actions by him occurred in the future. Mr. Atkinson further requested this court to act upon his motion for belated brief and reinstate Appellant’s appeal.

Based upon the foregoing, we hold that Mr. Atkinson is in contempt for failing to file Appellant’s brief in a timely manner and we fine him $250. Furthermore, we hereby grant Appellant’s motion to file a belated brief and thus reinstate Appellant’s appeal. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Roderick Leshun RANKIN v. STATE of Arkansas
    CR 96-1025
    939 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Gene E. McKissic, for appellant.
    No response.
   Per Curiam.

Roderick Leshun Rankin was convicted of three counts of capital murder on February 9, 1996. He filed a notice of appeal, and presented to this Court a seven-volume transcript of the record on August 30, 1996. On October 10, 1996, we granted a motion by his counsel, Gene E. McKissic, to extend the deadline for submission of Mr. Rankin’s brief until December -8, 1996. On December 10, 1996, we granted a second motion for extension until February 6, 1997. On February 5, 1997, we granted a “final extension” and set the final deadline for filing the brief at February 20, 1997.

On February 20, 1997, Mr. McKissic filed a motion to supplement the record and for an additional extension of time for filing the brief. In the motion Mr. McKissic stated, “That after full review of the transcript it was discovered that certain proceedings had been omitted from the record by the Court Reporter.” No reason was given as to why the transcript had not been “reviewed” previously.

Mr. Rankin’s brief was tendered to this Court on March 3, 1997. The State has not responded to the motion to supplement the record and extend the time for filing Mr. Rankin’s brief. We grant Mr. Rankin’s motion to supplement the record and for extension of time so that the appeal may proceed.

Mr. McKissic is ordered to appear before this Court on April 7, 1997, to show cause why he should not be held in contempt for failure to file the brief in a timely manner.


text:
    Jimmie L. WILSON v. James A. NEAL
    96-1524
    939 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered March 24, 1997

      Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.
    No response.
   Per Curiam.

Movant Jimmie L. Wilson has filed two motions for an extension of time to file his appellant’s brief because of his current service in the Arkansas General Assembly. Wilson also states in his motion dated February 27, 1997, that the supplemental record ordered by this court has not been filed. In returning the writ of certiorari, the Phillips County Circuit Clerk advised this court that no hearing had been scheduled or held in circuit court to settle the record and, thus, no order of the circuit court, giving her directions, had been forthcoming.

Wilson is correct that his legislative service entitles him, as a party to this matter, to a stay of proceedings. The pertinent statute provides a stay for thirty-five days after adjournment of the legislative session, sine die. Ark. Code Ann. § 16-63-406 (1987). Wilson asks for an extension of time of forty-five days in which to file his brief after the legislature adjourns. The request is granted. Counsel for the parties are encouraged to proceed with a hearing to settle the record in this case forthwith. The settled record in this matter shall be filed as soon as is practicable, and Wilson shall file his appellant’s brief within forty-five days after the General Assembly adjourns.

Newbern, Glaze, and Corbin, JJ., not participating.