text:
    Johnny LAWHON v. STATE of Arkansas
    CR 95-1276
    942 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Dale E. Adams, for appellant.

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

On August 4, 1992, Johnny Lawhon, Jr., was convicted of theft by receiving, possession of a controlled substance with intent to deliver, and criminal use of a prohibited weapon. He was sentenced on the three offenses, respectively, to five years’, ten years’, and five years’ imprisonment. The judgment and commitment order specified that the sentences were to be served consecutively.

The conviction was affirmed by the Arkansas Court of Appeals by an unpublished opinion, and the affirmance mandate issued December 15, 1993.

On February 14, 1994, Mr. Lawhon petitioned for postconviction relief. One of his allegations was that the Trial Court had determined that Mr. Lawhon’s sentences were to run consecutively after the jury had been discharged and after Mr. Lawhon had left the courtroom. The contention was that the sentence was thus illegal as a defendant has the right to be present at every significant step in the trial proceedings. Lowery v. State, 297 Ark. 47, 759 S.W.2d 545 (1988).

In response to the postconviction-relief petition, the Trial Court order noted that four issues presented in the petition should have been raised on direct appeal. In response, however, to the sentencing in absentia contention, the Trial Court noted that the evidence was conflicting as to whether Mr. Lawhon was present when the determination to run the sentences consecutively was made. In the order the Trial Court also observed that Mr. Lawhon should have raised that issue in his direct appeal, but did not so do. Although it was not directly stated in the order, it is clear that the postconviction petition for relief cognizable under Ark. R. Crim. P. 37 was denied. The Trial Court’s order, however, allowed Mr. Lawhon to petition for resentencing. Such a petition was presented, and resentencing occurred. In view of the Trial Court’s conclusion that the issue of the sentence should have been raised on direct appeal, it is clear that Rule 37 relief was being denied on that point too. The Trial Court’s rationale for allowing resentencing, however, was that an illegal sentence can be challenged at any time.

At the resentencing hearing, the Trial Court stated that, as he had not presided at the trial but had only read the trial transcript, he was “in the dark about what to do.” The Trial Court decided that, in view of the fact that the judge who tried the case had decided to run the sentences consecutively, he would “ratify” that decision, absent presentation of an overwhelming reason not to do so. The sentences thus remained to be served consecutively.

Mr. Lawhon appealed from the resentencing decision on the ground that the Trial Court had not exercised its discretion. Part of the State’s argument in response was that Mr. Lawhon should have raised on direct appeal his argument that it was improper to have run the sentences consecutively in his absence.

Mr. Lawhon had not presented the issue to the Trial Court. Our general rule is that an appellant may not appeal on the ground of an error not brought to the attention of the Trial Court. Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992). In its brief, however, the State argued that the matter could have been presented to the Trial Court by a motion by Mr. Lawhon that the sentences be ordered to be served concurrently. No authority was cited in support of that proposed procedure.

In a per curiam opinion of March 17, 1997, we agreed with Mr. Lawhon’s argument that the Trial Court, upon resentencing, had not exercised the discretion required. We recognized the State’s argument that the alleged initial sentencing error in announcing that the sentences were to be served consecutively should have been raised in the direct appeal to the Court of Appeals. We stated, however, that Mr. Lawhon had not had an opportunity to appeal on that point because of his inability to raise the issue before the Trial Court.

In a petition for rehearing, the State now contends, correctly, that “The contemporaneous-objection rule generally prohibits an appellant from raising a claim on direct appeal that was not raised in the trial court. That rule, however, does not apply when an appellant had no opportunity to object. E.g., Wicks v. State, 270 Ark. 781, 786, 606 S.W.2d 366, 369 (1980).” Also cited is Eberlein v. State, 315 Ark. 591, 593-594, 869 S.W.2d 12, 13-14 (1994).

In view of the State’s correct argument with respect to whether the allegation of the initial sentencing error could have been raised on direct appeal, we might well grant rehearing if the issue were whether Mr. Lawhon was entitled to Rule 37 relief. That, however, is not the issue before us. Rule 37 relief was denied by the Trial Court. The issue, as we now perceive it, is whether the Trial Court had jurisdiction to resentence Mr. Lawhon. Because the Trial Court did not have jurisdiction to do so, we dismiss the appeal.

As indicated above, the Trial Court’s resentencing order was probably based upon the rule that an illegal sentence can be corrected at any time. The reference is apparently to Ark. Code Ann. § 16-90-111 (Supp. 1995), which provides the time limits for the filing of motions to correct an illegal sentence. According to the statute, a motion that alleged that the sentence was imposed in an illegal manner had to be filed within 120 days after the sentence was imposed or within 120 days of after specified action was taken by an appellate court. See also Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). A motion that alleged that the sentence was “illegal on its face,” or in other words, not authorized by statute, could be raised at any time. Abdullah v. State, supra. In recent cases, however, we have recognized that there is a conflict between the time limits set forth in § 16-90-111 and in the reinstated version of Rule 37, and we have held that the Rule supersedes the statute. Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994). Consequently, only the time limits set forth in Rule 37 govern when an illegal sentence may be corrected.

Rule 37.2(c) provides as follows:

If an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty (60) days of the date the mandate was issued by the appellate court.

Because Mr. Lawhon did not raise a cognizable issue within the time prescribed by Rule 37, the Trial Court was without jurisdiction to resentence.

If the trial court lacks jurisdiction, the appellate court also lacks jurisdiction. See Craig v. Traylor, 323 Ark. 363, 915 S.W.2d 257 (1996). As it has become clear that the Circuit Court in this case lacked jurisdiction to resentence Mr. Lawhon, the appeal must be dismissed, and the State’s petition for rehearing has become moot.

Petition for rehearing moot; appeal dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Marvin NICHOLS v. STATE of Arkansas
    CR 96-130
    944 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered April 29, 1997

      B. Kenneth Johnson and J. Eric Hagler, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellee.
   Per Curiam.

The appellant, Marvin Nichols, was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver and was sentenced as a habitual offender to a total of eighty years in prison. In Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991), we affirmed each of the convictions, but we modified the sentence for possession of cocaine with intent to deliver. As a result of the modification, Nichols’s total sentence was reduced to seventy years’ imprisonment.

When Nichols was convicted in 1990, Rule 37 had been abolished and replaced with Ark. R. Crim. P. 36.4. While Rule 36.4 was in effect, a defendant who wished to assert ineffective assistance of counsel had thirty days from the entry of judgment to file a motion for a new trial. Nichols did not seek postconviction relief under that rule, but pursued a direct appeal before this court. We issued the appellate mandate on October 22, 1991. Nichols subsequently filed a petition pursuant to Rule 37 after it was reinstated in 1991. The Jefferson County Circuit Court denied Nichols’s petition as untimely, and we affirmed in Nichols v. State, CR93-819 (November 15, 1993).

Nichols subsequently sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Arkansas. The magistrate ordered that a writ of habeas corpus would issue within 120 days unless Nichols was afforded a postconviction hearing pursuant to Rule 36.4. As a consequence of that order, the Jefferson County Circuit Court held a hearing and considered the merits of Nichols’s petition for postconviction relief. The circuit court denied the petition, and Nichols appeals that order. We affirm.

The facts surrounding Nichols’s conviction and sentence were these. On March 3, 1990, several officers from the Pine Bluff Police Department executed a search warrant at Nichols’s residence. The time was described as sometime after 8:30 in the evening. According to Officer Alexander, a detective who was involved in the search, the search warrant had been obtained as a result of a confidential informant’s purchase of a controlled substance from Nichols three days earlier. Officer Alexander also testified that he entered the kitchen of Nichols’s residence and found Nichols and three more people sitting around a table where cocaine and marijuana were in plain view.

During the trial, Nichols moved to strike Officer Alexander’s testimony concerning the previous purchases made by the confidential informant. The trial court, finding that he waived the objection because it was not made at the first opportunity, denied the motion. We affirmed that ruling in the direct appeal. Nichols v. State, supra.

In this appeal, Nichols argues that the circuit court erred in denying his petition for postconviction relief. He argues that he is entitled to such relief because he did not receive effective assistance of counsel during his trial. Specifically, he contends that his trial counsel did not engage in meaningful discovery; that his counsel failed to lodge timely objections to certain testimony and evidence; and that his counsel failed to adequately advise him of the effects of a plea offer from the State.

We can only reach the merits of Nichols’s argument concerning the extent of his counsel’s pretrial investigation. The order denying postconviction relief refers only to this argument, and there is no reference to the timeliness of counsel’s objections during the trial or the alleged failure to adequately advise Nichols of the effects of the State’s plea offer. In pertinent part, the Trial Court’s order discusses the ineffective assistance of counsel claim:

Petitioner’s amendment alleges as grounds that petitioner’s rights were violated in that he. . .(3) was afforded ineffective trial counsel, specifically that his attorney did not file appropriate discovery motions that resulted in his conviction.
That this matter proceeded to hearing on the ineffective assistance of counsel claim. The Court has heard the original trial; the State’s witnesses; defense counsel; Defendant; and two witnesses — one actually called at trial and one who was a potential witness. The testimony of one of witness centers on his lack of preparation time with petitioner’s attorney prior to trial. The second witness was not called to testify although ostensibly available. This second witness testified that he saw drugs in petitioner’s home the night of his arrest. He was not called to testify before the jury.
This defendant/petitioner has the right to the assistance of effective counsel. The Defendant, by his lackadaisical and nonchalant attitude toward his impending trial, prevented his attorney from presenting a good defense as he could have.
The defendant has an obligation to assist his attorney in preparation, which he did not do.
This Court concludes that the attorney did not do a great job for this Defendant: He did a constitutionally adequate job.

Since the order, as abstracted, indicates that the Trial Court only ruled upon Nichols’s argument concerning his counsel’s pretrial investigation, that is the only argument we can consider on appeal. It is the appellant’s obligation to obtain a ruling in order to preserve arguments for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1996).

Nichols argues that his counsel was ineffective because he failed to engage in meaningful discovery. In particular, Nichols contends that his counsel relied on the State’s “open file” policy in lieu of filing a motion for discovery; that he failed to interview the State’s witnesses, and that he failed to interview or otherwise investigate several potential defense witnesses. In response, the State argues that these claims have no merit because Nichols has not demonstrated how he was prejudiced by the alleged errors. We agree.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Nichols argues that his counsel did not engage in a reasonable pretrial investigation because he admitted, in his testimony during the postconviction hearing, that he did nothing more than rely on the file that was provided to him by the State in the early stages of the case. Nichols specifically refers to his counsel’s inability to recall whether he obtained a copy of the search warrant before the trial. He does not argue, however, how he was prejudiced by his counsel’s alleged failure to obtain the search warrant before the beginning of trial. Nichols also fails to set forth what additional information his attorney could have obtained by filing a motion for discovery. Because Nichols has failed to make a showing of prejudice for this alleged error, we must affirm on this issue.

Nichols’s next argument concerning the extent of his counsel’s pretrial investigation concerns his counsel’s alleged failure to interview certain defense witnesses. Specifically, he contends that he provided his counsel with a list of witnesses, including the names of people who were present when the search warrant was executed. Nichols argues that his counsel performed deficiently because he faded to interview any of these witnesses prior to trial. In response, the State argues that Nichols has failed to show prejudice because he has not set forth any additional information, affecting the outcome of the trial, that would have been discovered in an interview of these witnesses. We agree.

In his brief, Nichols discusses three witnesses who his trial counsel failed to interview prior to trial. The first witness, Joe Hardwell, testified during the trial, and again during the postconviction hearing. During the trial, Mr. Hardwell testified that he knew Nichols for seven to eight years, and that he never knew him to sell drugs. Mr. Hardwell also testified that he was in Nichols’s home when the search warrant was executed, and that Nichols was not sitting at the kitchen table, where the drugs were located, when the police arrived. At the hearing, Mr. Hardwell testified that Nichols’s trial counsel never contacted him prior to trial.

Nichols’s argument regarding Mr. Hardwell primarily concerns his attorney’s failure to interview him prior to his testimony during the trial. He contends that an interview of this witness, if it had taken place, would have revealed information that could have been elicited during direct examination in the trial. Nichols does not explain, however, what this information what have been, and consequently, he does not demonstrate prejudice from his attorney’s alleged failure to interview Mr. Hardwell.

Nichols also argues that an interview with another potential defense witness, Mitchell Lane, would have revealed the names of two other potential witnesses who were present when the search warrant was executed. Once again, Nichols fails to explain what information could have been elicited from these witnesses, and how the outcome of his trial would have been different if his attorney interviewed them prior to trial.

Lastly, Nichols contends that his trial counsel should have interviewed Clevent Frazier prior to the beginning of trial. Mr. Frazier testified at the trial, but did not testify at the postconviction hearing. During the trial, Mr. Frazier testified that he knew Nichols for six years, and that he was present when the search warrant was executed. Mr. Frazier also testified that Nichols was not at the kitchen table with the drugs when the police arrived.

As in the case of Mr. Hardwell and the other witnesses, Nichols has failed to explain what additional testimony, if any, could have been elicited from Mr. Frazier if his counsel had interviewed him prior to the trial. Consequently, Nichols has failed to demonstrate how he was prejudiced by his attorney’s alleged inadequate investigation of these witnesses.

Nichols next argues that his counsel did not interview any of the police officers that executed the search warrant at his home, and he contends that if such interviews had taken place, his counsel would have learned of the existence of the search warrant and the circumstances surrounding its execution. Nichols also argues that if his counsel had interviewed Detective Alexander, one of the officers who executed the warrant, he would have learned that the warrant was based on two earlier drug buys made by a confidential informant at Nichols’s residence. He suggests that if his counsel learned of the earlier buys prior to trial, he would not have waived the objection during Officer Alexander’s testimony.

In response, the State argues that Nichols has failed to demonstrate any prejudice that resulted from his counsel’s alleged failure to interview the witnesses who testified on behalf of the State. The State acknowledges that Nichols refers to specific facts that would have been discovered if the interviews had taken place, but it contends that Nichols has not demonstrated how the outcome of the trial would have been different if the facts had been known. We agree.

While Nichols argues that interviews with police officers would have revealed the existence of the search warrant and the fact that it was based on the two previous drug buys by a confidential informant, he does not explain how this information would have affected the outcome of his trial. He suggests that his attorney, if he had known about the drug buys, would not have waived his objection during the trial. Nichols does not, however, argue how the objection, if not waived, would have been meritorious and led to a different outcome in his trial. Accordingly, we must affirm.

Affirmed.


text:
    Robin V. SCHLESIER v. STATE of Arkansas
    CR 97-399
    942 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Ralph M. Cloar, Jr., for appellant.
    No response.
   Per Curiam.

Robin K. Schlesier, by her attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and further alleges that the record was not timely filed due to error on the part of the court reporter.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


text:
    Daniel WATSON v. STATE of Arkansas
    CR 97-394
    942 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered April 29, 1997

      Ralph M. Char, Jr., for appellant.
    No response.
   Per Curiam.

Daniel Watson, by his attorney, has filed a motion for a rule on the clerk which we will treat as a motion for belated appeal. The notice of appeal was filed in this case on September 18, 1996, and the judgment was entered on November 19, 1996.

His attorney, Ralph Cloar, admits in his motion that the record was tendered late due to his mistaken reliance on the circuit clerk.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: David Newbern, Justice.

text:
    Matthew JENSEN v. STATE of Arkansas
    CR 97-12
    944 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered May 6, 1997

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Matthew Jensen was charged in circuit court with felony theft of property in violation of Ark. Code Ann. § 5-36-103 (Supp. 1995). He was seventeen at the time of the incident, so he moved to transfer the case to the juvenile division of chancery court. The motion was denied. Mr. Jensen brings this interlocutory appeal challenging circuit court jurisdiction and the denial of the motion. We affirm because the information charged an offense of which a circuit court may take jurisdiction and because the denial of the motion was not clearly erroneous.

The information charged Mr. Jensen with committing “THEFT OF PROPERTY, A.C.A. 5-36-103, CLASS C FELONY.” It specifically alleged that:

The said defendant on or about the 7TH day of May, 1996 in Grant County, Arkansas did unlawfully KNOWINGLY TAKE OR EXERCISE UNAUTHORIZED CONTROL OVER, OR MAKE AN UNAUTHORIZED TRANSFER OF AN INTEREST IN, THE PROPERTY OF ANOTHER PERSON, WITH THE PURPOSE OF DEPRIVING THE OWNER THEREOF; SAID PROPERTY BEING A CREDIT CARD all against the peace and dignity of the state of Arkansas.

An accompanying probable cause affidavit alleged that on May 7, 1996, Mr. Simmons, the victim of the theft, stated to the police that bank officials told him that someone had used an ATM machine and “maxed out” his account. The affidavit states that Mr. Simmons identified Mr. Jensen from pictures which were taken of the individual who used his card at an automatic teller machine.

A hearing was held on the transfer motion. Mikki Reagan, a county juvenile officer, testified that she knew with Mr. Jensen. She said he was born on March 29, 1979, and she opened a juvenile file on him in December 1991 after he was charged with shoplifting. He was placed on probation for six months, but he became the subject of a truancy petition filed prior to completing his sentence.

She further testified that Mr. Jensen was sent to a drug and alcohol rehabilitation program in 1992 after he was charged with felony theft of property. After completion of the rehabilitation program, he was sent to the Boy’s Ranch in Harrison where he remained “off and on” for about one year. She said that “While at the Boy’s Ranch he did very well.”

In the order denying the motion the Trial Court found:

1. That the testimony of the Juvenile Intake Officer indicates that the defendant has had numerous contacts with the Juvenile Court and rehabilitative measures have been made on behalf of the defendant.
2. That despite these measures the defendant has continued to come into contact with law enforcement and exhibit a repetitive pattern of adjudicated offenses which lead to the conclusion that the defendant is beyond rehabilitation under existing rehabilitation programs.

1. Jurisdiction

Theft of a credit card is a class C felony. Ark. Code Ann. § 5-36-103(a)(2)(D) (Supp. 1995). Mr. Jensen argues that reference in the probable cause affidavit to the stealing of an “ATM” card, as opposed to a “credit” card, proves that the offense committed was a misdemeanor. He submits that Ark. Code Ann. § 9-27-318(a)(3) (Supp. 1995) gives exclusive jurisdiction to the juvenile court when one under the age of eighteen “engages in conduct that, if committed by an adult, would be any misdemeanor.”

Jurisdiction is determined from the pleadings. Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992); McKinney v. City of El Dorado, 308 Ark. 284, 824 S.W.2d 826 (1992). Subject-matter jurisdiction “is tested on the pleadings and not the proof.” Maroney v. City of Malvern, 320 Ark. 671, 899 S.W.2d 476 (1995). See e.g., Pryor v. Hot Spring County Chancery Court, 303 Ark. 630, 799 S.W.2d 524 (1990). The General Assembly has not based court assignment in juvenile cases upon the nature of the offense “committed” but upon that which is charged. See Walker v. State, supra.

The information clearly charges Mr. Jensen with the commission of a class C felony. That is sufficient, along with the evidence of Mr. Jensen’s age, to give the circuit court jurisdiction. The State will have the burden of producing evidence to support the charge.

2. Motion to transfer

Mr. Jensen contends that the Trial Court should have granted his motion because he is not beyond rehabilitation. To support his argument, he relies primarily on the statement by Ms. Reagan admitting he did well while at the Boy’s Ranch.

Arkansas Code Ann. § 9-27-318(e) (Supp. 1995) states the three factors to be considered in deciding whether to transfer a case such as this one to a juvenile court.

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Subsection (f) adds “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.”

The Trial Court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993). If a trial court determines a juvenile should be tried in circuit court as an adult, its decision must be supported by clear and convincing evidence. Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995); Williams v. State, supra. Clear and convincing evidence is “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402-A, 805 S.W.2d 80 (1991). The Court will not reverse the Trial Court’s decision on transfer unless it determines the decision was clearly erroneous. Ring v. State, supra; Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991);

Mr. Jensen was charged with misdemeanor theft in 1991, and felony theft in 1992. He has been on probation or in rehabilitation programs since he was twelve. These facts, by themselves, militate against holding that the Trial Court’s decision was clearly erroneous.

The fact that Mr. Jensen is now eighteen is relevant to his prospects for rehabilitation as a juvenile and is a factor that the Court has considered important in reviewing the denial of a motion to transfer. Maddox v. State, 326 Ark. 515, 931 S.W.2d 438 (1996); Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996).

One who has reached one’s eighteenth birthday cannot be committed to a youth-services center. Ark. Code Ann. 9-27-331(a)(1) (Supp. 1995). Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The chance for rehabilitation within the Division of Youth Services is nonexistent when a commitment cannot be had for a one over eighteen. Hansen v. State, 323 Ark. 407, 914 S.W.2d 737 (1996). Although Ark. Code Ann. § 9-28-208(d) (Supp. 1995) extends the commitment time for juveniles beyond age eighteen under certain circumstances, it presupposes that the youth was committed upon reaching eighteen and that the commitment will continue. Brooks v. State, supra; Hansen v. State, supra.

Considering Mr. Jensen’s previous juvenile adjudications and the fact that he is presently over eighteen, the Trial Court’s decision to deny the motion to transfer was not clearly erroneous.

Affirmed.


author: Tom Glaze, Justice.

text:
    Thomas Scott PUCKETT v. STATE of Arkansas
    CR 96-907
    944 S.W.2d 111
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997
    [Petition for rehearing denied June 9, 1997.]

      McDaniel & Wells, P.A., by: Bill Stanley, for appellant.

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

Appellant Thomas Puckett was charged under Ark. Code Ann. § 5-54-105 (Repl. 1993), with the Class B felony of hindering the apprehension or prosecution of Calvin Adams about four months after Adams’s arrest for the capital murder of Richie Austin and attempted murder of his wife, Cassandra Austin. Following a jury trial, Puckett was found guilty and sentenced to seven years in prison and fined $10,000.00. Puckett appeals, arguing that the trial court erred in its interpretation and application of § 5-54-105, and its failure to grant Puckett’s motion for directed verdict. He also seeks reversal of the court’s ruling that allowed the State the use of a letter in cross examining defense witness, Zenia Adams, Calvin’s wife and Puckett’s cousin. We affirm.

Puckett first submits that, if the trial court had strictly construed § 5-54-105, as required, it would necessarily have found the State’s evidence insufficient to show he had the purpose and intent to hinder the apprehension or prosecution of Adams. At most, Puckett argues his actions were chargeable under Ark. Code Ann. § 5-53-111 (Repl. 1993), the offense of tampering with physical evidence, which is a Class D felony. These statutes in relevant part are set out in juxtaposition as follows:

5-54-105. Hindering apprehension or prosecution.
5-54-105(a) A person commits an offense under this section if, with purpose to hinder the apprehension, prosecution, conviction, or punishment of another for an offense, he:
5-54-105 (a)(1) Harbors or conceals the person; or
5-54-105 (a) (2) Provides or aids in providing the person with a weapon, money, transportation, disguise, or other means of avoiding apprehension, discovery, or effecting escape; or
5-54-105(a)(3) Prevents or obstructs anyone from performing an act which might aid in the discovery, apprehension, or identification of the person by means of force, intimidation, or the threat of such, or by means of deception; or
5-54-105(a)(4) Conceals, alters, destroys, or otherwise suppresses the discovery of any fact, information, or other thing related to the crime which might aid in the discovery, apprehension, or identification of the person; or
5-54-105(a) (5) Warns the person of impending discovery, apprehension, or identification; or
5-54-105(a)(6) Volunteers false information to a law enforcement officer. (Emphasis added.)
5-53-111. Tampering with physical evidence.
5-53-111 (a) A person commits the offense of tampering with physical evidence if he alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation.

Puckett’s argument is simple and primarily focuses on § 5-54-105 (a) (4) — the only provision of the statute which arguably could be applicable. In short, he claims that provision (a)(4) required the State to show that he had acted to suppress evidence which would have aided in the apprehension or identification of the person (Calvin Adams) who committed the Austin crimes. While he concedes he found and hid the suspected murder weapon used by Calvin Adams to commit the crimes, he submits his actions took place after Calvin had already been apprehended, identified, and had confessed to the crimes. Consequently, he contends the language in provision (a)(4) precludes its applicability to the facts in this case. We disagree.

While the law is well settled that penal statutes must be strictly construed resolving any doubts in favor of the accused, Nelson v. State, 318 Ark. 146, 883 S.W.2d 839 (1994), it is equally established that such statutes must not be so strictly construed as to defeat an obvious intent of the legislature. Id. Here, Puckett suggests we place an interpretation on § 5-54-105(a)(4) that would limit its applicability only to a person’s acts of hindering that transpire before a criminal suspect has been identified and arrested, but not afterwards. Provision (a)(4)’s plain language precludes such a construction. In reading provision (a), a person commits the offense of hindering the apprehension or prosecution when he does so with the purpose to hinder the apprehension, prosecution, conviction, or punishment of another for an offense. (Our emphasis.) Thus, in reading the full text of provision (a)(4), Puckett can be said to have committed the crime of hindering if the State showed that, with purpose, he hindered the prosecution, conviction, or punishment of Calvin Adams by suppressing evidence that might have aided the State in identifying Calvin Adams as having committed the Austin crimes. And while Puckett suggests the identification referred to in (a)(4) does not include the actual prosecution or in-court identification of Calvin Adams, such a suggestion runs counter to the clear wording employed in that provision. In addition, the General Assembly in enacting § 5-54-105(a)(4) utilized no qualifying or limiting words when employing the language “identification of the person.”

In turning to the evidence, we conclude the evidence was more than sufficient from which a jury could infer Puckett destroyed the fingerprints on the weapon, hid the gun from the authorities, and did not tell the authorities of the gun’s whereabouts until confronted by the investigating officers. Although Puckett claims he voluntarily led authorities to the weapon Calvin used in the crimes, substantial evidence was presented by the State that permitted the jury to infer and believe otherwise.

On the night of April 15, 1994, Richie and Cassandra Austin were kidnapped from their home and taken to a rural area where Richie was fatally wounded and Cassandra was shot several times, twice in the head and once in the shoulder. Cassandra survived, walked to where she found help, and subsequently gave investigating officers a sufficient description which allowed them to arrest Calvin Adams at about 6:00 a.m. on April 16, 1994. That morning, Puckett learned of the crimes and of his friend’s, Calvin Adams, arrest. The proof shows Puckett went to Calvin and Zenia Adamses’ house several times and discussed the matter with Zenia. During this period of time, Puckett learned the police had been to the Adams home twice searching for the murder weapon. Puckett said that the officers’ search prompted him, Zenia, and Dianah Rowan (another cousin of Puckett’s) to initiate their own separate search of the house with the avowed purpose to show Calvin’s innocence. Puckett found the gun at about 11:00 a.m., the same morning, but did not tell anyone. Instead, he hid it in his pants and left the house. Puckett testified he went to the police station, but by his own admission, never told any officer he had found the gun. Rather, Puckett went to his house, wrapped the gun in a blanket, and placed it in a closet. He never revealed to anyone that he had located the weapon until after Zenia and Dianah told officers that Puckett must have found the gun, and the officers confronted Puckett concerning the gun’s whereabouts. When asked where the gun was, Puckett’s initial response was, “What’s Calvin say?” After the officers told Puckett that Adams had confessed to the crimes and to where the weapon was located, Puckett admitted that he had the murder weapon, and took officers to his residence to retrieve it. Puckett conceded he had obliterated any fingerprints on the weapon. From the foregoing proof, and under our interpretation of § 5-54-105 (a) (4), we have no difficulty in concluding § 5-54-105 applies to Puckett’s case and that substantial evidence was introduced, showing Puckett had violated it by attempting to conceal or otherwise suppress the discovery of the murder weapon.

Puckett also argues that the hindering and tampering statutes, § 5-54-105 and § 5-53-111, originate from the same Act 280 of 1975, and that fact, alone, reflects the General Assembly did not intend for the removal and alteration of physical evidence to be covered by both statutory provisions. He cites no legal authority to support his argument, and our law runs counter to such a notion. While both § 5-54-105 (a) (4) and § 5-53-111 deal with the wrongful manipulation of physical evidence by a third party, this court has held that as long as there is no impermissible uncertainty in the definitions of the offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Dansby, v. State, 319 Ark. 506, 839 S.W.2d 331 (1995). This court also held that, where a defendant is chargeable under either of two statutes with identical elements, the fact that the prosecutor may be influenced by the penalties available upon conviction, standing alone, is not constitutionally suspect. Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992).

Puckett’s final argument challenges the trial court’s ruling allowing the State to cross examine Zenia Adams regarding a letter she had sent Puckett on October 1, 1994, or about five months after the Austins were shot and after Puckett was arrested and incarcerated on the hindering charge. At trial, defense counsel had cross examined officers concerning why they delayed four months before arresting Puckett on the hindering charge when the police had nothing more in the way of evidence than they had at the time Adams committed his crimes. To explain the delay, the State sought to show Zenia had reignited the officers’ investigation because in September 1994, she told police a second unnamed person was involved in the shooting of the Austins, and she had sent a letter dated October 1, 1994, to Puckett wherein she wrote, “I love you. I know who you are protecting.” The trial court overruled Puckett’s objection to the State’s proposed inquiry into the contents of Zenia’s letter, stating the following:

The Court does want the record to be clear that if the defense had not made an issue out of the fact that the police or prosecutors waited four or five months to file the charges [sic, charge], the Court would not have allowed this evidence in, but almost every police witness the defense has asked questions related to the delay. . . . [T]he Court thinks it is only fair that the jury knows the basis for the actions the police took.

In sum, the trial court ruled that while the State could not introduce Zenia’s letter into evidence, the defense had opened the door for the State to utilize it in the cross examination of Zenia to explain how Zenia had provided added information concerning the Austin crimes, which had prompted the officers to continue their investigation regarding those crimes. We are unable to say the trial court abused its discretion in allowing the State’s inquiry in these circumstances. See Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997).

For the reasons above, we affirm.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Larry LANDRUM v. STATE of Arkansas
    CR 96-1195
    944 S.W.2d 101
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      Booth & Honeycutt, PLC, by: J. Marvin Honeycutt, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Larry Landrum appeals the judgment of the Crawford County Circuit Court, which was entered pursuant to a jury verdict, convicting him of attempted rape and kidnapping and sentencing him as a habitual offender to consecutive terms of imprisonment for fifty years and life, respectively. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. l-2(a)(2) (as amended by per curiam July 15, 1996). Appellant’s sole point for reversal is that the trial court erred in admitting an inculpatory statement he gave because his first appearance before a judicial officer was delayed unnecessarily. We find no merit to his argument and affirm the judgment of conviction.

Appellant was arrested on December 12, 1994, and an information was filed on December 13, 1994, charging him with first-degree false imprisonment, aggravated assault, attempted rape, and theft of property. The victim of these crimes was Kristy Anderson. His arraignment on these charges was set for 8:30 a.m. Wednesday, December 14, 1994. An amended information was filed on December 14, 1994, charging Appellant with kidnapping, aggravated assault, attempted rape, and theft of property. At the time his arraignment was scheduled on December 14, 1994, Appellant was giving a confession to another unrelated crime, the murder of Lucy Hassler. This court affirmed his murder conviction in Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996). In addition to the December 14, 1994 confession to the Hassler murder, on December 16, 1994, Appellant gave a statement concerning the crimes against Anderson in which he admitted asking Anderson to have sex and to wrestling with her.

Appellant moved to suppress the statement he gave on December 16, 1994, concerning the crimes against Anderson. He argued that there was an unnecessary delay regarding his initial appearance and arraignment under A.R.Cr.P. Rule 8.1. The trial court ruled there was no delay and denied the motion to suppress.

On appeal, Appellant contends that he should have been arraigned as scheduled on December 14, 1994, and that if he had been, he would have had counsel appointed and would not have given the statement on December 16, 1994. While we may use the terms “first appearance” and “arraignment” interchangeably once criminal charges have been filed, in the present case, we are concerned only with Appellant’s first appearance as provided in Rule 8.1.

Rule 8.1 provides that an arrested person who is not released by citation or other lawful manner shall be taken before a judicial officer without unnecessary delay. This court has not adopted a specific time limit for measuring Rule 8.1 violations. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). However, when Rule 8.1 has been violated, this court applies a three-part test to determine if evidence obtained during the delay should be suppressed. Evidence must be suppressed if (1) the delay was unnecessary, (2) the evidence is prejudicial, and (3) the evidence is reasonably related to the delay. Id.; Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990). In short, if an unnecessary delay occurs, statements given by the accused are not automatically excluded; rather, the court considers whether the statement is prejudicial and whether it is reasonably related to the delay. Landrum, 326 Ark. at 999, 936 S.W.2d at 506.

There is no doubt the statement was prejudicial, given that Appellant admitted to asking Anderson to have sex and to wrestling with her. The question before us then is whether the delay from the time Appellant was charged on December 13, 1994, and again on December 14, 1994, to the time he gave the statement on December 16, 1994, was unnecessary.

Appellant relies heavily on Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), where this court reversed a judgment of conviction because of an unnecessary delay in Clay’s first-appearance hearing. The State responds that Clay is distinguishable from this case on the facts. In Clay, this court stated that the reason for the delay was the prosecutor’s request for a continuance to obtain additional evidence. Here, the State contends that the reason for the delay was Appellant’s desire to give a confession to the Hassler murder. We agree and conclude that this case is more similar to Ryan, 303 Ark. 595, 798 S.W.2d 679, where this court held that the confession was not reasonably related to any delay but was prompted by the defendant’s desire to negotiate a bargain with authorities to his advantage.

As this court determined in Appellant’s appeal of the Hassler murder, the reason for the delay in Appellant’s arraignment was solely due to Appellant’s specific request to give a statement, albeit in an unrelated case, during the time he was originally scheduled to be arraigned. See Landrum, 326 Ark. at 998, 1001, 936 S.W.2d 506, 507-08. Here, we are concerned with the same delay that concerned us in the Hassler murder, but with a different statement — the statement Appellant gave on December 16, 1994, concerning the attempted rape and kidnapping of Anderson. Regardless of the particular statement, the reason for the delay is the same — Appellant wanted to give a confession to an unsolved murder, but he wanted to discuss his possible punishment with the prosecutor first, and he specifically asked to wait until the morning of December 14, 1994, to do both because he was tired. Thus, Appellant’s reliance on Clay is misplaced.

Arguably, a delay in the arraignment from December 14, 1994, to December 21, 1994, would be unnecessary. The pertinent inquiry, though, is at what point would an inculpatory statement obtained from the accused during that period of time be considered reasonably related to the delay? We consider the following factors relevant to such a determination: (1) Any proof that the delay was for the purpose of obtaining a confession; (2) the frequency of police interrogation; (3) whether the accused was incommunicado; (4) the passage of time.

We find the following evidence germane to our determination. On December 13, 1994, at approximately 5:00 p.m., while Appellant was incarcerated on the attempted rape and kidnapping charges, Crawford County Sheriff s deputies obtained a waiver of Appellant’s Miranda rights and questioned him about the Hassler murder. During that interview, Appellant agreed to take a polygraph examination, which he did take at approximately 8:00 p.m. After the polygraph, Appellant requested to speak with then-Lieutenant Dale Best of the Arkansas State Police.

Captain Best spoke with Appellant from 10:25 p.m. to 11:45 p.m. on the evening of December 13, 1994. Appellant told Captain Best that he would tell him “what happened regarding Lucy Hassler, provided that he [knew] up front what he [faced] from the prosecuting attorney’s office[.]” Captain Best asked Appellant if he wanted him to contact the prosecutor that night, to which Appellant replied that he would rather wait until the morning because he was tired.

Captain Best stated that he honored Appellant’s request to wait until the morning, and returned to see Appellant at 7:50 a.m. on December 14, 1994. Captain Best told Appellant that the deputy prosecuting attorney would be there shortly. Appellant then admitted to Captain Best that he was responsible for Hassler’s disappearance and death. Steve Tabor, the deputy prosecutor, arrived at approximately 8:20 a.m., and, pursuant to Appellant’s request, informed Appellant of the ranges of punishment for the charges for which he was incarcerated and for the possible charges for the Hassler murder. Tabor told Appellant that any sentence Appellant received for the charges upon which he was being held and any charges for the Hassler murder could be run concurrendy. Tabor also indicated that the State would not seek the death penalty.

Following his conversation with Tabor, Appellant was informed of his Miranda rights at 8:35 a.m. and gave a detailed confession of the Hassler murder. That confession concluded at 9:14 a.m. on the fourteenth, after which Appellant accompanied officers to the scene of the Hassler murder. Appellant led officers to within twenty or thirty feet of where they had previously recovered some skeletal remains, clothing, tennis shoes, and eyeglasses in 1991.

Two days later, on December 16, 1994, officers conducted an interview with Appellant concerning the charges in the present case. Before beginning the interview, Appellant was again advised of his Miranda rights from a statement of rights form, which was signed by Appellant. The record reflects that the interview began at 2:31 p.m. and concluded at 2:56 p.m., twenty-five minutes later.

Based on the foregoing evidence, we cannot say the delay in Appellant’s arraignment was unnecessary or that the December 16, 1994 statement was reasonably related to the delay. Appellant and the deputy prosecutor discussed the possibilities of Appellant avoiding the death penalty and receiving concurrent sentences on the Hassler murder and the Anderson attempted rape and kidnapping. Thus, the delay was not for the purpose of obtaining a confession from Appellant for the crimes against Anderson. Rather, the delay was due to Appellant’s expressed desire to negotiate a favorable bargain with the State and to confess to an unrelated murder that had remained unsolved since sometime prior to 1991.

Moreover, had the statement been taken from Appellant at some later point, such as December 19 or 20, the passage of time might well weigh in favor of our finding that the statement was reasonably related to the delay. Such was clearly not the case. Furthermore, there is no indication of police misconduct in this case, or that Appellant was not well-apprised of his Miranda rights. In fact, the record in this case reflects that Appellant was informed of his right to remain silent, as well as his right to counsel, no less than six separate times. In light of all the facts and circumstances surrounding the statement, particularly the fact that no police misconduct occurred or is even alleged, we see no reason to apply the rather harsh effects of the exclusionary rule to Appellant’s statement. See Landrum, 326 Ark. 994, 936 S.W.2d 505.

In accordance with Ark. Sup. Ct. R. 4-3(h), the record of the trial has been examined for rulings adverse to Appellant on objections, motions, and requests by either party, and we find no reversible error.

Affirmed.

Newbern and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. On December 16, 1994, the fifth day following his arrest, Larry Landrum confessed to assaulting Kristie Anderson. The question is whether the delay between the arrest on December 12 and the giving of the confession was an “unnecessary delay” and whether the statement he gave to the police was the result of that delay.

The majority reasons that Mr. Landrum was not being delayed from his first appearance in violation of Ark. R. Crim. P. 8.1 when he made the incriminating statement and that the statement was thus properly admitted into evidence against him. In order to discern the flaws in the majority’s reasoning, it is necessary to understand the purpose and history of Rule 8.1 and the role that the first appearance plays in our criminal justice system.

Í. Rule 8A and the “prompt-appearance requirement”

The requirement that an arrested person be taken before a judicial officer for a prompt first appearance is well established in the jurisprudence of the federal courts and the courts of Arkansas and most, if not all, states through statutes and court rules. See generally Annotation, 28 A.L.R. 4th 1121 (1984); 1 Wayne R. LeFave & Jerold FI. Israel, Criminal Procedure § 6.3, pp. 451-457 (1984); 1 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d §§ 71-75, pp. 74-123 (1982).

Since January 1, 1976, the Arkansas prompt-appearance requirement has appeared at Ark. R. Crim. P. 8.1 as follows:

[a]n arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

Federal R. Crim. P. 5(a) (West 1997) imposes the same “without unnecessary delay” requirement.

By their terms, federal and state provisions imposing a prompt-appearance rule generally have failed to specify sanctions against violations of the rule. See Developments in the Law — Confessions, 79 Harv. L. Rev. 938, 984 (1966); Note, The McNabb Rule Transformed, 47 Colum. L. Rev. 1214, 1215 (1947); Wright, supra, § 72, at p. 78 (describing state prompt-appearance statutes as unenforceable and “largely ignored”). In 1943, however, the United States Supreme Court began to fashion a remedy to redress violations of federal prompt-appearance provisions, including Fed. R. Crim. P. 5(a). In McNabb v. United States, 318 U.S. 332 (1943), the Court construed a federal statute as requiring federal officers to present arrested persons promptly before a committing authority and held that confessions obtained in violation of the statute’s prompt-appearance requirement must be suppressed.

In Mallory v. United States, 354 U.S. 449 (1957), the petitioner’s rape conviction was unanimously reversed because of admission in evidence of a statement obtained by the police during an “unnecessary delay” in violation of the federal rule. The McNabb-Mallory rule, as it became known, thus became a fixture of the Supreme Court’s power to supervise the federal courts, Gallegos v. Nebraska, 342 U.S. 55 (1951), but not a rule constitutionally required to be implemented in the states. Some states adopted the rule, and they apply it just as the Supreme Court has done. Others have ignored it. See LeFave & Israel, supra, § 6.3(c), at p. 457.

In Arkansas we sanction against violations of Rule 8.1 by suppressing prejudicial statements that the arrested person makes as a result of being unnecessarily delayed from a first appearance. Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987); Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). It is true that this Court, in past decisions, has hel.d that the prompt-appearance requirement contained in Ark. Code Ann. § 16-85-201 (1987) is directory rather than mandatory and that the statute therefore does not require suppression of a statement made by a defendant while being delayed from a first appearance. See, e.g., Wilson v. State, 258 Ark. 110, 522 S.W.2d 413 (1975); Paschal v. State, 243 Ark. 329, 420 S.W.2d 73 (1967). See generally Annotation, supra, § 3, at p. 1133 n.19, and § 6, at pp. 1152-53, 1157; F. Lewis Steenken, Richardson v. State: Ark. R. Crim. P. 8. 1 — A Rule in Need of a Standard, 38 Ark. L. Rev. 842, 846-47 (1985); Linda A. Malone, The Availability of a First Appearance and Preliminary Hearing — Now You See Them, Now You Don’t, 1983 Ark. L. Notes 41. Our recent cases, however, firmly establish that the prompt-appearance requirement contained in Rule 8.1 is mandatory, see Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), and that violations of the rule will result in suppression of incriminating statements. Cook v. State, supra.

A statement given by an arrested person during a delay prior to his first appearance must be suppressed if (1) the statement is prejudicial; (2) the delay is unnecessary; and (3) the statement is reasonably related to the delay. Duncan v. State, 291 Ark. at 528-29, 726 S.W.2d at 657. See also Allen v. State, 291 Ark. 155, 158, 760 S.W.2d 69, 70 (1988).

We have recognized that the purpose of Rule 8.1 is

to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charges explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously. Such action may avoid the loss of income and the disruption and impairment of his family relationship. Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee.

Bolden v. State, 262 Ark. at 724, 561 S.W.2d at 284. In the Duncan case, we recognized that, “in addition to the purpose of guarding against coercive influence of custodial interrogation, the rule insures that the accused is placed in early contact with a judicial officer so that protections covered by preliminary arraignment are afforded without delay, that the right to counsel may be clearly explained and implemented upon the accused’s request and that the accused is protected from being held incommunicado for protracted periods of time.” Duncan v. State, 291 Ark. at 528, 726 S.W.2d at 656.

An incriminating statement given during a delay from a first appearance in violation of Rule 8.1 may be suppressed even if the statement is voluntary. As we observed in the Duncan case, a voluntariness standard is not the appropriate approach “in seeking a reasonable and fair resolution of the application” of Rule 8.1. Duncan v. State, 291 Ark. at 529, 726 S.W.2d at 657. “As we have said, assurance of voluntariness is not the only concern. . . . [I]f exclusion under [Rule 8.1] rests on a voluntariness standard, we are again faced with a swearing-match the rule was designed to avoid.” Id.

While the Constitution may require suppression of an incriminating statement only if it is involuntary or obtained in violation of due process, there is no doubt that Rule 8.1 and the Duncan rule provide additional safeguards insofar as they may require in some instances the suppression of even a voluntary statement.

2. The role of the first appearance

It must be acknowledged that our opinions have been imprecise in the terminology used to describe three separate post-arrest procedures. The majority opinion in this case perpetuates the confusion among (1) the probable-cause hearing, (2) the first appearance, and (3) the arraignment. With our decision in this case, we should, once and for all, assure the bench and bar that we understand the differences among those procedures and resolve not to confuse them henceforth.

a. Probable-cause hearing

A person arrested without a warrant is entitled to a probable-cause determination pursuant to Ark. R. Crim. P. 4.1(e), which provides that a person arrested without a warrant shall not be held in custody unless a judicial officer determines there is reasonable cause to believe the person has committed an offense. The rule requires the determination to be made “promptly, but in no event longer than forty-eight (48) hours from the time of arrest” absent a demonstration of emergency or extraordinary circumstances. The rule provides that the probable-cause determination and the first appearance may conincide.

Rule 4.1(e) is consistent with the Fourth Amendment’s requirement that a person arrested without a warrant receive a determination of probable cause by a judge within forty-eight hours of arrest. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103 (1974).

In the case at bar, Mr. Landrum was arrested on Monday, December 12, 1994, and Officer Pittman of the Crawford County Sheriffs Department executed an affidavit for a probable-cause determination the same day. A judge signed the affidavit on Wednesday, December 14, and determined that probable cause existed for Mr. Landrum’s arrest. As Rule 4.1(e) did not require the judge to receive Mr. Landrum for an appearance in order to determine whether probable cause existed for his arrest, it was appropriate for the probable-cause determination to occur strictly “on paper.” Although it is not a matter at issue, I note that the probable-cause hearing in this case occurred slightly more than forty-eight hours after the arrest, and there was no demonstration of emergency or extraordinary circumstance.

Although a judge may rule on the probable-cause issue during the first appearance that occurs pursuant to Rule 8.1, presumably if it occurs within forty-eight hours of arrest, nothing in Rule 4.1(e) or Rule 8.1 requires the first appearance to occur within any specific amount of time in relation to the arrest. Rule 4.1(e) simply provides an option to the trial court to make the probable-cause determination during the first appearance. These two procedures may, however, occur apart from each other. Only the probable-cause determination must occur within forty-eight hours of the arrest. The first appearance simply must occur “without unnecessary delay.”

Rules 4.1 and 8.1 obviously serve different purposes. The fact that a probable-cause determination is made in compliance with Rule 4.1(e), often without the presence of the accused before a magistrate, does not excuse the State from its obligation under Rule 8.1 to present an arrested person, no matter how the arrest occurred, to a judicial officer without unnecessary delay. While the point of Rule 4.1(e) is to ensure that an arrest without a warrant is based upon reasonable cause, the point of Rule 8.1 is to ensure that an arrested person hears directly from the judicial officer an explanation of the charges and his constitutional rights, particularly his right to counsel and his right to remain silent.

b. First appearance

Rule 8.1 requires the first appearance to occur without unnecessary delay after the arrest, whether the arrest is warrantless or based upon a warrant. The judicial officer must conduct the first appearance in accordance with Ark. R. Crim. P. 8.3, which provides as follows:

(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
(c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.

Although Rule 8.3 requires the judicial officer to apprise the arrested person of his right to counsel during the first appearance, Ark. R. Crim. P. 8.2(a) provides that “[a]n accused’s desire for, and ability to retain, counsel should be determined by a judicial officer before the first appearance, whenever practicable.” Moreover, Ark. R. Crim. P. 8.5(a) provides that “[a] pretrial release inquiry shall be conducted by the judicial officer prior to or at the first appearance of the defendant.” According to Ark. R. Crim. P. 9.1, the judicial officer may, during the first appearance, “release the defendant on his personal recognizance or upon an order to appear.”

Given the critical impact that the communications, required by Rule 8.3, between the judge and the accused may have on the latter’s defense, it is essential that the first appearance be conducted after the arrest without unnecessary delay.

c. Arraignment

As this Court has done on previous occasions, the majority opinion refers to the procedure established by Rule 8.1 as an “arraignment” rather than a “first appearance.” Rule 8.1 provides for a first appearance, not an arraignment. The majority appears to recognize that the two proceedings are distinct, but it insists on referring to the procedure established by Rule 8.1 as an “arraignment.” The majority opinion concludes that it is appropriate to use the terms “first appearance” and “arraignment” interchangeably “once criminal charges have been filed.” That is erroneous, illogical, and not supported by authority. It is never appropriate to use these terms synonymously, whether before or after the filing of the information.

It is not altogether clear why we have continued to use the terms “first appearance” and “arraignment” interchangeably. Perhaps one reason is that trial courts may conduct arraignments during first appearances, and the two proceedings, in the minds of appellate judges, have been collapsed into one.

The first appearance is simply “the first proceeding at which a defendant appears before a judicial officer.” Ark. R. Crim. P. 5.1(f). The judicial officer merely informs the defendant of the charges, advises him of his constitutional rights (and possibly arranges for the appointment of counsel), and addresses the matter ofpre-trial release. Ark. R. Crim. P. 8.3. See LeFave & Israel, supra, § 1.4, at pp. 21-23.

By contrast, an arraignment is the proceeding in which the information or indictment is read to the defendant after which the defendant is asked to enter a plea. See Ark. Code Ann. § 16-85-701 (1987). See also Black’s Law Dictionary 109 (6th ed. 1990) (defining arraignment as the procedure “whereby the accused is brought before the court to plead to the criminal charge against him in the indictment or information”); LeFave & Israel, supra, § 1.4, at p. 26.

There is no provision in our rules of criminal procedure that defines an arraignment or establishes when an arraignment should occur in relationship to the arrest, probable-cause determination, or first appearance. Conceivably, it may well be appropriate in some instances for the arraignment to occur during the first appearance, but Rule 8.3 does not require the defendant to enter a plea or to be arraigned during the first appearance.

3. The Duncan test

The rule announced in Duncan v. State, supra, controls the outcome of the case at bar. The statement made by Mr. Landrum on Friday, December 16, 1994, must be suppressed if (1) the statement was prejudicial; (2) the delay was unnecessary; and (3) the statement was reasonably related to the delay.

The majority must concede that Mr. Landrum’s statement was inculpatory and thus prejudicial. It concludes, however, that the second and third elements of the Duncan test are not satisfied and that Mr. Landrum therefore was not delayed from his first appearance in violation of Rule 8.1. According to the majority opinion, the delay in presenting Mr. Landrum before a judicial officer for a first appearance was neither unnecessary nor reasonably related to the December 16 statement because the delay was occasioned by Mr. Landrum’s request to talk to the police on the morning of Wednesday, December 14, and confess to the murder of Lucille Hassler. The majority further contends that the delay was not reasonably related to Mr. Landrum’s December 16 statement because there was no allegation or evidence of police misconduct and because Mr. Landrum was given Miranda warnings prior to making the statement.

a. The “unnecessary” element

The question is whether the delay from the time Mr. Landrum was arrested and detained on the morning of Monday, December 12, 1994, to the time he gave the inculpatory statement on the afternoon of Friday, December 16, was unnecessary. In other words, was it unnecessary for Mr. Landrum to be detained for approximately five days without a first appearance?

The majority frames the issue differently. It suggests that the period of delay to be evaluated under the Duncan test is the period commencing on Tuesday, December 13, when the information was filed, or Wednesday, December 14, when the first amended information was filed, and ending on Friday, December 16. Thus, according to the majority opinion, the relevant period of delay under Rule 8.1 does not include the time between the arrest and detention and the filing of an information. In the majority’s view, the relevant period of delay in the case at bar is only three or four days. That is a remarkable observation and not an accurate statement of the law.

Rule 8.1 confers a right to a prompt first appearance on an “arrested person.” When a person is arrested and detained, he is entitled to be taken before a judicial officer without unnecessary delay, and this right is not contingent, as the majority suggests it is, upon whether an information has been filed. Our cases also are clear that the period of delay to be evaluated under Rule 8.1 and the Duncan test commences with the arrest, not the filing of the information. See, e.g., Ryan v. State, 303 Ark. 595, 798 S.W.2d 679 (1990); Owens v. State, 300 Ark. 73, 111 S.W.2d 205 (1989); Richardson v. State, 283 Ark. 91, 678 S.W.2d 772 (1984).

The implications of a contrary rule are clear. The period of time between an arrest and the filing of the information may be substantial. Clearly, if the time between an arrest and the filing of the information is not counted, the police will be allowed to detain an arrested person without regard to his right to make a prompt first appearance under Rule 8.1. This will assuredly frustrate the rule’s very purpose.

Here, the majority equivocates on the question of when the delay that is to be evaluated under the Duncan test commenced. It first suggests Tuesday, December 13, the date on which the information was filed, and it then suggests Wednesday, December 14, the date on which the first amended information was filed. The majority then sets out to explain why it believes the ensuing delay from December 13 (or December 14) to Friday, December 16 was not unnecessary. Even assuming that the majority is correct to analyze only the period from December 13 or December 14 to December 16, its attempt to justify even this period of delay is incomplete and unpersuasive.

In asserting that the delay in Mr. Landrum’s first appearance was not unnecessary, the majority first states that Mr. Landrum’s arraignment — and presumably his first appearance as well — were initially scheduled for 8:30 a.m. on Wednesday, December 14, 1994, before the Crawford County Circuit Court. The majority suggests that Mr. Landrum missed the opportunity to make a first appearance on the morning of December 14 because, during that time, Mr. Landrum, as he had requested or agreed to do, was either talking with the authorities about his role in the Hassler murder or showing the authorities the wooded area in Crawford County where he apparently had committed the murder. That does not, however, explain the postponment of the first appearance until December 21. The explanation given for that in the State’s brief is that the Circuit Court held “arraignments” only on Wednesdays at 8:30 a.m.

This explanation may justify the decision not to present Mr. Landrum to a judicial officer on the morning of Wednesday, December 14, and perhaps the early afternoon of that day. Consequently, the portion of the delay that was actually occasioned by Mr. Landrum’s participation in the Hassler investigation may not be viewed as “unnecessary.” Although the record is somewhat vague on the question of when the trip to the murder scene occurred and how much time was spent traveling to and from the scene, the testimony given by Officer Pittman and (now) Captain Best suggests that the trip occurred promptly after the officers concluded their interrogation at 9:14 a.m. and that Mr. Landrum was back in jail by the late morning or early afternoon of December 14.

The majority’s proffered explanation — while justifying the delay that occurred during the morning and early afternoon hours of December 14 — does not answer the question of why Mr. Landrum was not taken before a judicial officer on the afternoon of December 14, or at any time on Thursday, December 15, or on the morning or early afternoon Friday, December 16. Neither Mr. Landrum’s participation in the Hassler investigation, nor any other reason or explanation mentioned in the majority opinion, demonstrates that it was “necessary” to delay Mr. Landrum’s first appearance beyond the morning or early afternoon of December 14.

Thus, in considering whether the delay in Mr. Landrum’s was “unnecessary” under the Duncan test, the majority goes only so far as to explain why Mr. Landrum was not taken before a judicial officer during the morning and early afternoon hours of December 14. It does not account for the additional delay from December 14 to December 16. Moreover, as mentioned above, the proper period of delay to evaluate with reference to the Duncan test is the period commencing from Monday, December 12, the date of Mr. Landrum’s arrest, to Friday, December 16. The majority simply fails to explain why Mr. Landrum could not have been taken before a judicial officer on Monday, December 12, or Tuesday, December 13.

The State, both in the hearings below and in its brief, suggested that the delay from December 14 to December 21 was necessary on account of the Circuit Court’s “once-a-week” policy on holding arraignments. Surely the rights of arrested persons cannot be subject to that sort of scheduling on the part of the courts. What if it had been every two weeks, or every month? In addition, nothing is presented to suggest that the Circuit Court judge was the only judicial officer available. Although we have held that Rule 8.1 is not violated when a person is arrested and held over a weekend and delayed from his first appearance until the following Monday, see Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Johnson v. State, 307 Ark. 525, 533, 823 S.W.2d 440 (1992), we have never sanctioned a delay in a first appearance on the basis of a trial court’s preference to hear arraignments only on one day of the week.

Even if the Trial Court’s usual practice was to hear arraignments on Wednesdays at 8:30 a.m., nothing in the record demonstrates that the Trial Court could not have received Mr. Landrum for z first appearance after he was returned to jail following the trip to the Hassler murder scene on December 14. There simply is no evidence that a judge was unavailable from Wednesday, December 14 to.Friday, December 16 to receive Mr. Landrum for a first appearance. As was the case in Clay v. State, 318 Ark. 122, 132, 883 S.W.2d 822, 827 (1994), the State in this case has “presented nothing to show that [Mr. Landrum] could not have been taken before a judge” on December 14, December 15, or December 16.

b. The “reasonable relationship” element

We have said the “reasonable relationship” element of the Duncan test does “not require that the delay be the sole cause of the confession. ... It is sufficient if it reasonably appears the delay contributed to obtaining the confession.” Duncan v. State, 291 Ark. at 530, 726 S.W.2d at 657. We have recognized “the subjective nature of the ‘reasonably related’ test,” and we have indicated that, in evaluating the relationship between the delay and the prejudicial statement, we will review “[e]ach case . . . taking into account the totality of the circumstances.” Ryan v. State, 303 Ark. 595, 599, 798 Ark. 679, 682 (1990). We also have suggested that a prejudicial statement will lack the necessary causal relationship to the delay where the statement is given prior to the delay, Lemons v. State, 307 Ark. 12, 817 S.W.2d 411 (1991); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Duncan v. State, 291 Ark. at 529, 726 S.W.2d at 657; Richardson v. State, 283 Ark. at 91-C, 678 S.W.2d at 774, or where the statement is prompted by an arrested person’s desire to negotiate a plea bargain. Johnson v. State, supra; Ryan v. State, supra.

In the Ryan case, upon which the majority heavily relies, we noted that the cause of delay was Mr. Ryan’s attempt to “negotiate a [plea] bargain with the authorities to his advantage.” Ryan v. State, 303 Ark. at 599, 798 S.W.2d at 682. Unlike the Ryan case situation, Mr. Landrum told Lt. Best that he wanted to know from the prosecutor the punishment he would face if convicted of the offenses against Ms. Hassler and Ms. Anderson. There was no evidence of “negotiation.” Lt. Best testified specifically that the question of a plea bargain did not arise in the course of the December 14 interrogation.

The majority asserts that, in determining whether the necessary relationship exists, we consider the passage of time and the frequency of police interrogation as well as whether the delay was for the purpose of obtaining a confession and whether the arrested person has been held incommunicado. The majority further suggests that our “reasonable relationship” analysis under the Duncan rule may be affected by whether or not the appellant received Miranda warnings and by the presence or absence of “police misconduct.” The majority appears to rely on these factors, in addition to the holding in Ryan v. State, supra, in concluding that there is no reasonable relationship between Mr. Landrum’s December 16 statement and the delay in his first appearance. The majority’s reasoning here is again unpersuasive.

We have mentioned those factors in discussing the “reasonable relationship” requirement in past decisions, but we have not established them as rigid criteria. See Ryan v. State, 303 Ark. at 599, 798 S.W.2d at 682 (“. . . we are not here saying that the holding of an accused incommunicado or the subjecting of the accused to verbal abuse or threats or the denying of access to family or friends are the requirements for satisfying the third prong of the Duncan test.”) The overarching question remains whether “it reasonably appears [that] the delay contributed to obtaining the confession.” Duncan v. State, 291 Ark. at 530, 726 S.W.2d at 657.

The statement in question was given in response to the eighth interrogation at the conclusion of five days of delay. To say the delay made no contribution to obtaining the confession is ludicrous. In our opinion affirming Mr. Landrum’s conviction for the murder of Ms. Hassler, we repeatedly stated that there had been no “police misconduct,” apparently referring to “third-degree” tactics or physical or mental abuse. The point of the opinion was, however, that there was not much delay between the time of arrest and the statement concerning Ms. Hassler. Indeed, the delay with respect to that statement was due in significant measure to Mr. Landrum’s desire, expressed on December 13, to meet privately with Lt. Best and to wait until the following morning to hear from the prosecutor what his penalty might be. Our opinion did not say that there must be a finding of “police misconduct” to show a violation of Ride 8.1. Obviously there is no such requirement in the rule.

If we do not wish to follow Rule 8.1, we should withdraw it.

I respectfully dissent.


author: Donald L. Corbin, Justice.

text:
    OLSTEN KIMBERLY QUALITY CARE v. Cheri PETTEY
    97-13
    944 S.W.2d 524
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      Laser, Wilson, Bufford & Watts, P.A., by: Frank B. Newell, for appellants.

      The Whetstone Law Firm, P.A., by: Robert H. Montgomery, for appellee.
   Donald L. Corbin, Justice.

Appellant Olsten Kimberly Quality Care appeals the decision of the Arkansas Workers’ Compensation Commission holding that Appellant is liable for benefits to its employee, Appellee Cheri Pettey, for injuries she sustained in an automobile accident on April 21, 1994. The Arkansas Court of Appeals affirmed the Commission’s decision. Olsten Kimberly Quality Care v. Pettey, 55 Ark. App. 343, 934 S.W.2d 956 (1996). We granted Appellant’s petition for review of that decision pursuant to Ark. Sup. Ct. R. l-2(e) (as amended by per curiam July 15, 1996). When we grant review following a decision by the court of appeals, we review the case as though the appeal was originally filed with this court. Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997). We affirm the decision of the Commission.

The Commission’s opinion together with the parties’ stipulations reveal the following facts. Appellee was employed by Appellant as a nursing assistant and was required to travel to the patients’ homes to provide nursing services. Appellee was not required to report to Appellant’s office each day, though she did take reports to and pick up supplies from Appellant’s office on a regular basis. Appellee was compensated by Appellant according to the time actually spent at each patient’s home. Appellee used her own vehicle to travel to the patients’ homes, but she did not receive compensation for travel expenses. On April 21, 1994, Appellee was injured in a one-vehicle accident while she was traveling to the home of the first scheduled patient in Hot Springs Village. Prior to that, Appellee had reported to Appellant’s office, located in the mall in Hot Springs, in order to drop off some reports and pick up supplies. After she had left Appellant’s office, Appellee did some window shopping and talked to a friend before departing from the mall. Appellee then left the mall en route to her first patient’s home. Two blocks from the patient’s home, Appellee lost control of her automobile and overturned.

Appellee’s initial claim for benefits was rejected by the administrative law judge on the grounds that her injuries did not arise out of and during the course of her employment with Appellant and that Appellee was not performing “employment services” at the time of the accident. Appellee appealed the decision of the administrative law judge to the full Commission, which found in favor of Appellee.

In its opinion, the Commission acknowledged that Appellee’s claim was controlled by Act 796 of 1993, which amended the Workers’ Compensation Act by excluding from the definition of “compensable injury” any injuries sustained at a time when employment services were not being performed. See Ark. Code Ann. § 11-9-102(5)(B)(iii) (Repl. 1996). The Commission likewise acknowledged that the amended act provides for strict statutory construction of the workers’ compensation laws. See Ark. Code Ann. § ll-9-704(c)(3) (Repl. 1996). Act 796 did not, however, define the term “employment services.” In construing the meaning and scope of that term, the Commission stated:

[Considering the ordinary and usually accepted meaning of this term in common language, we find that an employee is performing employment services when she is engaging in an activity which carries out the employer’s purpose or advances the employer’s interests. Obviously, an employee carries out the employer’s purpose or advances the employer’s interests when she engages in the primary activity which she was hired to perform. However an employee also carries out the employer’s purpose or advances the employer’s interests when she engages in incidental activities which are inherently necessary for the performance of the primary activity.

Furthermore, in concluding that Appellee was performing employment services at the time of her accident, the Commission held:

However, under the prior law, employees were considered to be in the course of their employment when they were traveling if the travel was an inherent and necessary incident of a required employment activity. Likewise, applying the amended law, we find that employees are performing employment services when they are engaged in travel which is an inherent and necessary incident of a required employment activity. [Citations omitted.] [Emphasis added.]

Appellant appealed the decision of the Commission to the court of appeals, which affirmed on the basis that travel was an inherent and necessary incident of Appellee’s required employment activity. Correspondingly, the court of appeals rejected Appellant’s argument that Appellee was not performing employment services at the time of her accident because she was not being compensated either for her travel time and expenses or for her nursing duties.

In reviewing appeals from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commission’s decision and affirm that decision when it is supported by substantial' evidence. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996). The Commission’s decision will be affirmed unless fair-minded persons presented with the same facts could not have arrived at the conclusion reached by the Commission. Gansky, 325 Ark. 163, 924 S.W.2d 790.

As was the Commission and the court of appeals, we are faced with the issue of what is meant by the term “employment services.” Appellant asserts that the Commission erred in broadly defining “employment services” to encompass Appellee’s injuries. Relying on the two aforementioned amendments to the Workers’ Compensation Act, Appellant argues that the mandate of strict statutory interpretation and the description of those injuries which do not constitute “compensable injury” prohibit Appellee from collecting benefits from Appellant. We disagree.

Section 11-9-102(5)(A) defines “compensable injury” as “[a]n accidental injury causing internal or external physical harm . . . arising out of and in the course of employment[.]” The test for determining whether an employee was acting within the “course of employment” at the time of the injury requires that the injury occur within the time and space boundaries of the employment, when the employee is carrying out the employer’s purpose or advancing the employer’s interests directly or indirectly. Pilgrims Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996).

Conversely, an employee is generally said not to be acting within the course of employment when he or she is traveling to and from the workplace. This “going and coming” rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. Lepard v. West Memphis Mach. & Welding, 51 Ark. App. 53, 908 S.W.2d 666 (1995). The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. Id. There are, however, exceptions to this rule.

According to Professor Larson, one of those recognized exceptions is where the journey itself is part of the service. It is well-settled law that “traveling men are generally within the course of their employment from the time they leave home on a business trip until they return, for the self-evident reason that the traveling itself is a large part of the job.” 1 Arthur Larson, The Law of Workmen’s Compensation § 16.01 (1996). Another example of travel being an integral part of the job is where the employee must travel from jobsite to jobsite, whether or not he or she is paid for that travel time. Id. § 16.23. As stated by Professor Larson:

[T]he fact that the employee is not paid for his travel time does not mean that the trip was not in the course of employment. Payment for time is only one of the evidences that the journey itself was part of the service [.]

Id. (Footnote omitted.)

An additional factor determinative of whether an employee’s travel is within the course of employment is whether the employee is required to furnish his own conveyance. “If the employee as part of his job is required to bring with him his own car, truck or motorcycle for use during his working day, the trip to and from work is by that fact alone embraced within the course of employment.” Id. § 17.51 (emphasis added) (footnote omitted). The theory behind this principle of law is that the obligations of the job reach out beyond the premises, making the vehicle part of the employment environment and compelling the employee to submit to the everyday hazards associated with road travel, which he or she would otherwise be able to avoid. Id. § 17.52. Furthermore, such a situation is for the benefit of and service to the employer. Id.

In the case at hand, it is evident that Appellee was required by the very nature of her job description to submit herself to the hazards of day-to-day travel in her own vehicle, back and forth to the homes of her patients. As such, Appellee was acting within the course of her employment with Appellant at the time her injuries were sustained. The fact that Appellee had yet to begin her nursing duties that day does not preclude our conclusion that she was nonetheless performing employment services at the time of the accident. Whether she was being directly compensated for her travel is not pertinent to our decision, as the facts of this case clearly demonstrate that travel was a necessary part of her employment. Further, such travel was clearly for the benefit of Appellant, as its business livelihood depended upon the in-home care of patients provided by its nursing assistants. We are persuaded by the reasoning offered by the court of appeals:

Although we recognize that the appellee was not directly compensated for driving to patients’ homes, the payment of compensation is not conclusive to the question of whether employment services are being performed. For example, many workers, such as salesmen, are paid on the basis of commissions, but it is abundantly clear that a salesman who is attempting to make a sale is performing an employment service without regard to whether his attempt is successful.
It is likewise clear that dehvering nursing services to patients at their homes is the raison d’étre of the appellant’s business, and that travehng to patients’ homes is an essential component of that service.

Olsten Kimberly Quality Care, 55 Ark. App. at 346, 934 S.W.2d at 958.

Based upon the foregoing reasons, we affirm the decision of the Commission to award benefits to Appellee.

Glaze, J., not participating.