author: Ray Thornton, Justice. Robert the L. Brown, Justice, Jim Hannah, Justice,

text:
    Lee Roy DAVIS v. STATE of Arkansas
    CR 02-534
    94 S.W.3d 892
    Supreme Court of Arkansas
    Opinion delivered January 9, 2003

      Katherine S. Street, Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant, Lee Roy Davis, entered a conditional plea of guilty to the charges of possession of drug paraphernalia, a class C felony, and possession of a controlled substance with intent to deliver, a class Y felony. For these crimes, appellant was sentenced to ten years’ imprisonment. On appeal, appellant challenged the trial court’s denial of his motion to suppress a crack pipe and cocaine that police officers discovered during a pat-down search as violative of his rights under the Fourth and Fourteenth Amendments and Arkansas Rules of Criminal Procedure 3.1 and 3.4. In a 3-2-1 decision, the court of appeals reversed appellant’s convictions, holding that the police lacked a reasonable suspicion to believe appellant was engaged in illegal activity. Davis v. State, 77 Ark. App. 310, 74 S.W.3d 671 (2002) (“Davis /”). We granted the State’s petition for review, and we affirm the trial court’s denial of appellant’s motion to suppress and reverse the decision of the court of appeals.

Because appellant does not raise the issue of sufficiency of the evidence, we will only provide a concise summary of the facts. Appellant and four other men stood in the yard of an abandoned house at an intersection in El Dorado known for drug activity. As two police officers, Lieutenant Billy White and Sergeant Brandon Ivy, on bicycle patrol rode past the house, they observed appellant and another man engage in an apparent hand-to-hand transaction. When appellant and the other man saw the police officers, they separated and walked away quickly. Based upon his suspicion that a transaction involving drugs might have occurred, Sergeant Ivy stopped appellant, who gave a fictitious name and birth date when asked for identification. Sergeant Ivy then relayed the information to the Arkansas Crime Information Center (“ACIC”), and the ACIC returned no record for such name and birth date.

Sergeant Ivy testified that, while it was a hot March day, appellant was sweating more profusely than was appropriate. According to the officer, appellant was fidgety, his legs were shaking, and he appeared as if he were going to run. When the officer requested appellant’s consent to search, appellant asked if the officer had probable cause. Then appellant told the officer that he would “give you my sh**” as he reached for his back pocket. Sergeant Ivy grabbed his hand and told appellant that he would retrieve the item. He then pulled a crack pipe from appellant’s pocket. The trial court denied appellant’s motion for the suppression of this evidence.

Citing Jefferson v. State, 76 Ark. App. 300, 64 S.W.3d 791 (2002) and Stewart v. State, 332 Ark. 138, 864 S.W.2d 793 (1998), the court of appeals reversed appellant’s convictions, holding that the officers did not have a reasonable suspicion to stop appellant. Davis I, supra. The court further rejected the State’s argument that the stop was justified under the factors listed in Ark. Code Ann. § 16-81-203 (1987).

For his sole allegation of error, appellant argues that the trial court erred by denying his motion to suppress. He makes a two-pronged argument. First, he argues that his behavior did not give rise to reasonable suspicion to justify a stop under Rule 3.1 of the Arkansas Rules of Criminal Procedure. Second, he contends that even if the stop was reasonable, the officers failed to comply with Rule 3.4 of the Arkansas Rules of Criminal Procedure in conducting the search because they had no reason to believe that appellant was armed and dangerous. In its petition for review, the State argues that the court of appeals failed to apply the totality-of-the-circumstances test in concluding that the evidence should be suppressed.

Before we reach the merits of appellant’s arguments, we take this opportunity to clarify our standard of review when we review a denial of a motion to suppress the evidence. Our standard of review for a trial court’s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978). In Osborn, we stated:

[W]e have given considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts. [Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968).] We must defer to the superior position of the trial judge to pass upon the credibility of witnesses. Whitmore v. State, 263 Ark. 419, 565 S.W.2d 733 (1978).

Osborn, supra.

This standard of review is consistent with the requirements of Ornelas v. United States, 517 U.S. 690 (1996), where the Supreme Court stated:

The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: “[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.”
We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.
* * *
In similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. . . . An appeals court should give due weight to a trial court’s finding that the officer was credible and the inference was reasonable.

Ornelas, supra (citations omitted). See also United States v. Arvizu, 534 U.S. 266 (2002).

The holding in Ornelas, supra concluded that the appellate court must: (1) identify the historical facts known to the local law enforcement officers at the time of the stop or search, and (2) determine whether those historical facts would give rise to reasonable suspicion or probable cause. While the trial court’s determination of historical facts involve a “clear error” standard, the determination whether those facts would give rise to reasonable suspicion or probable cause should give due weight to the inferences drawn from the trial judge and local police officers. This two-part inquiry requires a de novo review of mixed questions of law and fact. Id.

While this standard is consistent with Osborn, supra, we subsequently rephrased our standard in Ryan v. State, 303 Ark. 595, 798 S.W.2d 674 (1990), where we stated that “on appeal this court considers the facts in the light most favorable to the appellee.” Id. (citing Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986)). This standard did not arise out of cases involving the suppression of evidence from an allegedly unconstitutional stop, but rather stemmed from an analysis of the sufficiency of the evidence to support the verdict.

In Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986;, we stated:

Our burden on appeal is to decide whether the jury’s verdict is supported by substantial evidence. We view the evidence in the light most favorable to the jury’s verdict.

Id. (citation omitted).

In a number of subsequent cases, we have stated this standard as “we view the evidence in the light most favorable to the State.” Because our prior cases articulating this standard have been cases where “the light most favorable to the State” is substantially the same as a proper deference to the findings of the trial court, the use of this phrase has not resulted in any error in our prior cases. However, for clarification of our standard, we take this opportunity to express clearly the appropriate standard for review of a suppression challenge. Our standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Ornelas, supra.

Based upon this standard of review, we now proceed to the question whether the officers had a reasonable suspicion to conduct an investigative stop consistent with the Fourth Amendment of the United States Constitution. The Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const, amend. 4. The protections of the Fourth Amendment extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest. Terry v. Ohio, 392 U.S. 1 (1968).

Rule 3.1 of the Arkansas Rules of Criminal Procedure requires that before a law enforcement officer may detain and question an individual, he or she must have reasonable suspicion. The rule provides in pertinent part:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

Id. As we stated in Potter v. State, 342 Ark. 621, 20 S.W.3d 701 (2000), the key word is suspects. The officer is justified in making the stop if he reasonably suspects that the above crimes are being committed, have been committed, or are about to committed.

Reasonable suspicion is defined by our rules as

a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Ark. R. Crim. P. 2.1.

An officer must have reasonable grounds to detain a suspect under Rule 3.1 is also provided at Ark. Code Ann. § 16-81-203 (1987). The statute includes, but is not limited to, the following grounds:

(1) The demeanor of the suspect;
(2) The gait and manner of the suspect;
(3) Any knowledge the officer may have of the suspect’s background or character;
(4) Whether the suspect is carrying anything, and what he is carrying;
(5) The manner in which the suspect is dressed, including bulges in clothing, when considered in light of all of the other factors;
(6) The time of the day or night the suspect is observed;
(7) Any overheard conversation of the suspect;
(8) The particular streets and areas involved,
(9) Any information received from third persons, whether they are known or unknown;
(10) Whether the suspect is consorting with others whose conduct is “reasonably suspect”;
(11) The suspect’s proximity to known criminal conduct;
(12) Incidence of crime in the immediate neighborhood;
(13) The suspect’s apparent effort to conceal an article;
(14) Apparent effort of the suspect to avoid identification or confrontation by the police.

Id.

The justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982). See also Arivzu, supra (noting that courts “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing”). Under that test, the facts articulated by the officer are not viewed in isolation, but are taken together. Id.

In Davis I, supra, the appellate court cites Jefferson v. State, 76 Ark. App. 300, 64 S.W.3d 791 (2002) in support of reversing the trial court. However, we reversed the court of appeals’s decision on the grounds that the officers had reasonable suspicion to make an investigatory stop in Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002), where we stated:

We further hold, however, that the police had a reasonable suspicion to make the stop. The totality of the circumstances, including the late hour, the area being residential, the particular area where drugs and prostitution were known problems, the incidence of crime in the area, the fact appellant had just come from between two trailers, and appellant’s gait and manner, as well as an apparent effort of appellant to avoid identification or confrontation rises to a level sufficient to support the officers’ suspicion that a crime had been or was about to be committed. In addition, when Jefferson began walking toward the police officers, he put his hand in his right front pocket. This act bolstered the officers’ suspicion that a crime had been or was about to be committed as well as added to their concern about their safety. The decision of the trial court is affirmed.

Id.

Similarly, in the present case, it does not appear that the court of appeals applied a totality-of-the-circumstances test in determining whether the officers had any reasonable suspicion to stop appellant. Lieutenant White testified:

There’s a lot of drug activity in the area. This particular location is just a couple blocks away [from] what is, is commonly known as the thunder zone area, okay. But in itself in that particular intersection of Detroit and Roosevelt, you know, we have documented calls of suspicious activity or drug activity at that location.
* * *
Next to the [vacant] house there were two particular individuals that were standing side by side as though they were exchanging something, okay. Upon seeing a bicycle patrol members [sic] these two subjects started to hurriedly walk away. I motioned or asked one of the individuals to stop. However, he immediately put his hand in his pocket and continued up the front porch of this house into the [vacant] residence.

While Lieutenant White attempted to approach that individual, Sergeant Ivy testified that he contacted appellant. When asked the purpose of the contact, Sergeant Ivy testified that he decided to “just stop and detain him, identify him.” The officer further testified that, while awaiting Lieutenant White’s return, he asked appellant his name and birth date, but appellant gave him false information. When Sergeant Ivy called the information to the dispatcher, who ran it through ACIC, they had no information on file with that name or date of birth.

Under a totality-of-the-circumstances test, the trial court concluded that this behavior gave rise to a reasonable suspicion. Appellant and another man were in a high crime area known for drug activity. They stood in a lot beside a vacant house when the officers saw a hand-to-hand exchange. As the officers approached, the men separated and walked quickly away. At that point, appellant gave Sergeant Ivy false information when asked his name and birth date. He also appeared nervous, fidgety, and sweated profusely. Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119 (2000). Based upon our holding in Jefferson, supra, as well as our rules of criminal procedure, we cannot say that the trial court erred in finding that the totality of the circumstances gave rise to a reasonable suspicion sufficient to stop and briefly detain the appellant. See also Potter, supra (reversing the court of appeals and holding that the officer was justified in making an investigatory stop of a man believed to be stalking a woman). Therefore, we conclude that the trial court did not err in finding that the totality of the circumstances gave rise to a reasonable suspicion sufficient to justify making an investigatory stop.

We now turn to the issue whether the officer’s pat-down search was lawful. In Terry, supra, the United States Supreme Court upheld the lawfulness of a search based upon the need to allow an officer to search a person if the officer reasonably fears that the suspect is armed and dangerous, and such a search is necessary to protect himself and others. Id. The standard used to determine reasonableness in such a situation is “whether a reasonable prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id.

Consistent with Terry, supra, Arkansas Rule of Criminal Procedure 3.4 provides:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer . . . may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing, which may be used against the officer or other dangerous thing which may be used against the officers or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.

Id.

In the present case, Sergeant Ivy testified:

Mr. Davis kept giving indications that he was possibly fcdn’ to run. And I asked him to, to sit down at a, at a picnic table. Mr. Davis, he was, he was very fidgety, his, his legs were visibly, they were shaking. His, I believe it’s a carotid artery in his throat, it was, it was, it was just going through his throat almost.

Then appellant reached toward his pocket, saying, “[I’ll] give you my sh**” as he moved his hand toward his pocket. At that point, the officer did not know what appellant was reaching for. The officer testified:

I said, “Do you mind if I search you?” He said, “What’s your probable cause?” . . . He started to reach into his back pocket and I said, “No I’ll get it.” I think he said, “I’ll give you my sh**.” As he started reaching into his back pocket, I grabbed his hand and I said, “No, I’ll get it.” And then I pulled out a crack pipe. The purpose of asking him to stand up was for a pat-down search for weapons and identification. I determined to do a pat-down search at that point because there were several individuals there with well documented drugs and weapons violations. It was certain to me that he was lying or he had something to conceal or I just didn’t feel comfortable with him.

This testimony reveals that the officer was concerned about the possibility of drugs and weapons violations. He had seen appellant and another man engaged in a hand-to-hand transaction, and he did not know what was in appellant’s pocket. Based upon Terry, supra, and Rule 3.4, the pat-down search was justified under the totality of the circumstances.

Based upon our standard of review, the officers were justified in stopping and searching appellant. Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress the evidence, and we reverse the court of appeals’ decision.

Imber, J., not participating.

Brown and Hannah, JJ., dissent.

Robert the L. Brown, Justice,

dissenting. I disagree that the police officers had a reasonable suspicion for stopping Davis in this case. For that reason, I would suppress the search.

The majority opinion describes the events leading up to the stop as follows:

As two police officers, Lieutenant Billy White and Sergeant Brandon Ivy, on bicycle patrol rode past the house, they observed appellant and another man engage in an apparent hand-to-hand transaction. When appellant and the other man saw the police officers, they separated and walked away quickly.

I first note that after reciting the above facts, the majority later errs by adding facts to its reasonable-suspicion analysis that arose after Sergeant Ivy stopped Davis and began questioning him. Only the facts leading up to the stop may be considered for purposes of determining whether a police officer had a reasonable suspicion to warrant a stop under Ark. R. Crim. P. 3.1. See, e.g., Florida v. J. L., 529 U.S. 266, 271 (2000); Jefferson v. State, 349 Ark. 236, 247, 76 S.W.3d 850, 856 (2002).

Next, I disagree that the facts established a “hand-to-hand transaction.” Lieutenant Billy White testified that Davis and another man were “standing side by side as though they were exchanging something.” Lieutenant White admitted on cross-examination that he “did not see them exchanging anything,” and that he “didn’t see anything actually being handed back and forth.” Sergeant Brandon Ivy merely relied on what Lieutenant White told him. This rendition of events hardly qualifies as a “transaction.”

Other jurisdictions have focused on the failure to observe anything actually exchanged. See People v. Saint-Veltri, 923 P.2d 337 (Colo. 1996), overruled on other grounds by People v. Saint-Veltri, 945 P.2d 1339 (1997) (holding that a police officer did not have reasonable suspicion when he observed the defendant and another man exchange an unidentified blue item and then engage in a “cupped” handshake, but did not actually see anything exchanged between the two men); Williams v. State, 769 So.2d 404 (Fla. Ct. App. 2000) (police officer lacked reasonable suspicion when he observed an encounter lacking any hand-to-hand transaction at an apartment complex known for drug activity); Commonwealth v. Martinez, 735 N.E.2d 1272 (Mass. Ct. App. 2000) (officers had reasonable cause when acting on a tip of drug sales at a specific apartment by a specific defendant and actually observed walk-up, hand-to-hand transactions taking place at that address by that defendant); People v. Murphy, 267 N.Y.S.2d 443 (1999) (“The hearing court properly determined that the police officer had reasonable suspicion . . . given the police officer’s experience and training, the large number of drug sales in the area, and his view of a hand-to-hand transaction wherein' the defendant received money for a small item.”) (citations omitted).

In particular, the District of Columbia has weE-developed rules on hand-gestures:

This court has, on many occasions, evaluated the import of an exchange of money or objects between individuals in the context of an investigative stop. GeneraUy, we have concluded that a “one-way exchange” — the passing of an object or money from one individual to another — is insufficient to justify a stop, whereas a “two-way exchange” is often “decisive” in establishing reasonable suspicion. Compare In re T.T.C., 583 A.2d 986, 990 (D.C. 1990) (holding that passing a small white object in a high crime area, without further evidence of an exchange, is insufficient to support a Terry stop) and Gray v. United States, 292 A.2d 153, 156 (D.C. 1972) (holding that “the mere passing of money on a street, which the arresting officers characterized as a ‘high narcotics area,’” does not give reasonable grounds to conclude that a narcotics transaction is taking place) with Thompson v. United States, 745 A.2d 308, 313 (D.C. 2000) (holding that the exchange of currency for an object, along with other factors indicating drug activity, formed the basis for an articulable suspicion). But cf. Reyes v. United States, 758 A.2d 35, 38 (D.C. 2000) (holding that a surreptitious one-way exchange in an “open air drug market” was sufficient to justify an investigatory stop); United States v. Bennett, 514 A.2d 414, 416 (D.C. 1986) (holding that a one-way transfer of money, coupled with the defendant’s flight and telltale signs of a drug transaction, is sufficient to create an articulable suspicion). We have reasoned that one-way exchanges have relatively little probative value because they are capable of “innumerable innocent explanations,” see Duhart, 589 A.2d at 899, while two-way exchanges are less susceptible of multiple meanings, and at least establish a reasonable inference of a sale. See, e.g., Thompson, 745 A.2d at 313.

Black v. United States, 810 A.2d 410, 412 (D.C. 2002). Here, Officers White and Ivy saw no hand transaction at all, one-way or two-way. Accordingly, I would exclude a “hand-to-hand transaction” from the analysis.

Nor do I consider walking away quickly to be a legitimate factor in determining reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (“[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.”). See also Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980) (overturning a Terry stop based on the fact that the defendant quickly walked past officers and continued to look back at them). Unprovoked flight from police officers is a different matter and may factor into the reasonable suspicion analysis. See id. But that is not what occurred in the case before us.

What distinguishes this case from Jefferson v. State, supra, is that in Jefferson, the police officers saw the furtive actions of the defendant at night coupled with his putting his hand in his pocket which was perceived by the arresting officers as a threat. Here, the stop not only occurred during broad daylight but there was no threatening gesture by the defendant.

This case appears to be more closely aligned to Stewart v. State, 332 Ark. 138, 864 S.W.2d 793 (1998), where the stop took place largely due to the fact that the defendant was in a high crime area. Hand-to-hand contact and dispersal, without more, does not constitute reasonable suspicion in my judgment.

I respectfully dissent.

Jim Hannah, Justice,

dissenting. I must respectfully dissent. I agree that there was reasonable suspicion to support the decision to stop and detain Davis. Detective White had seen two men engage in what appeared to be a drug transaction by a hand-to-hand transfer. Davis was one of those men. This occurred in an area known for drug activity and in the front yard of an abandoned and vacant house.

However, although I agree that the stop and detention was legal, the patdown search of Davis violated Arkansas Rule of Criminal Procedure 3.4. Judge Bird’s analysis in his concurrence to the court of appeals opinion is correct.

It is apparent from the trial testimony that Davis was searched because police believed he had drugs or other contraband on his person. This is prohibited under the United States Constitution, under the Arkansas Constitution, and by Ark. R. Crim. P. 3.4. Detective Ivy testified that he intended to stop and detain Davis and wait for White. Ivy testified he stopped Davis by saying: “Sir, I’m going to talk to you a minute, or something like that.” Ivy testified he then told Davis he had been stopped because White had seen a hand-to-hand transaction.

Ivy testified that Davis appeared fidgety and sweaty, that his carotid artery was throbbing, and that he concluded Davis was about to flee. Because of this fear, he asked Davis to sit down at a picnic table. Ivy further testified that he asked Davis, “Do you have any weapons or drugs on you?” According to Ivy, Davis answered no, and Ivy then asked, “Do you mind if I search you?” The record is devoid of any testimony or any evidence that Ivy even had a subjective belief Davis was armed or posed a threat to his safety. There is no objective evidence, such as Ivy noting a suspicious bulge in Davis’s pocket. There is no evidence Ivy-feared for his safety or had reason to fear for his safety before he commenced the search.

This court stated in Potter v. State, 342 Ark. 621, 30 S.W.3d 701 (2000), that under Ark. R. Crim. P. 3.4, and under Terry v. Ohio, 392 U.S.1 (1968), “the purpose of the protective search is wholly for the safety of the officer or others.” Potter, 342 Ark. at 630. This court in Potter, supra, further stated that “police officers are not permitted to search for drugs under the guise of a search for weapons.” Potter, 342 Ark. at 630 (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)). Just six months ago, this court stated that a search is unlawful where the officer is seeking narcotics in searching rather than searching out of fear for his own safety. Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). This is obviously so because only a “protective search” is lawful under these conditions. Potter, supra.

The majority’s decision cannot be squared with prior case law. In Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998), this court stated:

We have also held that, after a lawful stop, the police are permitted to search the outer clothing of an individual and the immediate vicinity for weapons if the facts available to an officer would warrant a person of reasonable caution to believe that a limited search was appropriate. State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992); Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991); A. R. Cr. P. Rule 3.4. Stated in slightly different terms, when an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officers or others, a patdown search may be conducted to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry v. Ohio, 395 U.S. 1 (1968).

Shaver, 332 Ark. at 15.

Ivy testified that he asked Davis if he had a weapon on him, and that when he asked Davis to stand to carry out the patdown, he did so “for weapons, identification.” However, there is no evidence of any facts that would justify a belief that Davis was armed.

The majority bases its conclusion the search was legal because the officer initiated the patdown search when Davis reached in his pocket. The majority states: “Then the appellant reached toward his pocket saying, ‘[I’ll] give you my sh##’ as he moved his hand toward his pocket. At that point, the officer did not know what appellant was reaching for.” It is not at all clear that these facts would support a reasonable belief that Davis was armed, however, one need not even reach that analysis because these events cited by the majority all occurred after Ivy asked to search Davis and instructed Davis to stand so he could carry out the search. Ivy had initiated the search before Davis reached for his pocket. The evidence shows Ivy had already decided to search Davis before he stood up. The success of the search will not validate the search if it was unlawful in its inception. Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989); Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968).

Ivy testified that he “searched Mr. Davis because he kept giving indications he was possibly fixing to run.” The search was not a protective search. Ivy asked Davis: “Do you mind if I search you?” Davis challenged Ivy’s probable cause, and Ivy commanded Davis to stand up. At that point, Davis said, “You don’t have to go through that shit,” and reached toward his back pocket. Ivy grabbed Davis’s hand and reached into Davis’s pocket. All this occurred after Ivy stated his intent to search, so it is apparent that the reason for the search was to find contraband, not because of officer safety. In Jefferson, a weapon was drawn and the decision to search appellant was made after the appellant slipped his hand in his pocket. In this case, Davis was simply searched for contraband. Nonetheless, contrary to the clearly stated law as set out by this court and the United States Supreme Court, the majority now permits a search for drugs under the guise of a search for weapons.

The conclusion that a patdown was proper is without foundation. This case should be reversed based on an unlawful search.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Edward Henry BUIE v. STATE of Arkansas
    CR 02-1195
    94 S.W.3d 903
    Supreme Court of Arkansas
    Opinion delivered January 9, 2003

      Keil & Goodson, by: John C. Goodson, for appellant.
    No response.
   Per Curiam.

Appellant Edward Henry Buie filed a motion for rule on the clerk. We previously denied the motion because Appellant’s attorney, John C. Goodson, did not admit fault in failing to timely file the notice of appeal. See Buie v. State, 351 Ark. 198, 89 S.W.3d 929 (2002) (per curiam). We indicated, however, that we would grant the motion if Appellant’s counsel filed an affidavit accepting responsibility for failing to timely file the notice of appeal. Appellant’s counsel has accepted responsibility for the error in an affidavit filed on December 19, 2002.

This court has held that we will grant a motion for rule on the clerk, which we will treat as a motion for belated appeal, when the attorney admits that the notice of appeal was not timely filed due to an error on his part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam); Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).


author: Robert L. Brown, Justice. Annabelle Clinton Imber, Justice,

text:
    Calvin MORRIS v. STATE of Arkansas
    CR 02-662
    94 S.W.3d 914
    Supreme Court of Arkansas
    Opinion delivered January 16, 2003
    [Petition for rehearing denied February 13, 2003]

      James Law Firm, by: William Owen James, Jr., and Clay Buchanan, for appellant.

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

       Imber, J., would grant.

   Robert L. Brown, Justice.

Appellant Calvin Morris was convicted of first-degree murder and sentenced to forty years in prison. He appeals on the basis that the circuit court erroneously refused to instruct the jury on second-degree murder and manslaughter. We agree that the circuit court erred in not giving an instruction on second-degree murder, but we affirm the court’s refusal to instruct on manslaughter.

During the evening hours of November 26, 1999, Morris and a friend, Daniel Fells, were leaving a nightclub in Little Rock called Elevations and walking towards Morris’s car when a second car driven by Chris Sharp entered the parking lot. In the car driven by Sharp were his wife, Sonya, and Leonard Jackson and Johnny Jackson. According to Morris’s testimony, the Sharp car approached him “real fast,” and he had to jump away to avoid being hit.

An argument ensued between the occupants of the Sharp vehicle and Morris. The Sharp vehicle drove up a hill, turned around, and came down the hill where there was a second encounter between the occupants of the Sharp vehicle and Morris and Daniel Fells, who were now in a car which was also occupied by Courtney Grandy and Kevin Brown. Insults were exchanged, and Kevin Brown fired his pistol.

The Sharp vehicle left the parking lot and proceeded down Asher Avenue. At the intersection of Asher and University Avenues, Morris’s car pulled up beside the Sharp car. There was another vehicular accident at the intersection involving other people, which police officers were investigating. When the light turned green, Morris testified that the window in the back seat of Sharp’s car was halfway down, and he thought he saw a gun.

He further testified that he was scared and panicked. According to witnesses, he fired two or three shots at the Sharp vehicle. One shot passed through the backseat window and struck Chris Sharp in the back of the head, killing him.

Morris was charged with first-degree murder and committing a terroristic act and was tried before a jury. His defense attorney offered instructions on second-degree murder and manslaughter as lesser included offenses, but the circuit court refused to give them. The jury was instructed on justification as a defense. The jury found Morris guilty of first-degree murder and committing a terroristic act but was unable to arrive at a sentence. The circuit court sentenced Morris to forty years on each offense, with the sentences to be served concurrently.

Morris appealed his first-degree murder conviction to the court of appeals on grounds that it was error for the circuit court not to instruct on the lesser included offenses of second-degree murder and manslaughter. The court of appeals agreed that it was error not to give these instructions and, in an unpublished opinion, reversed the murder conviction and remanded for further proceedings. Morris v. State, CA CR.01-1056 (June 5, 2002). The State petitioned this court for a review of the court of appeals decision, and we granted review. When we grant review, we consider the matter as if the appeal had been originally filed in this court. Flores v. State, 348 Ark. 28, 69 S.W.3d 864 (2000).

I: Second-Degree Murder

Morris first contends that it was error for the circuit court not to instruct on second-degree murder. We agree.

Morris’s counsel proffered the following instructions, relating to second-degree murder, which are based on Ark. Code Ann. § 5-10-103(a)(l) and § 5-2-202(2) (Repl. 1997), after the circuit court refused to give them:

AMCI 2d 1003
SECOND DEGREE MURDER
Calvin Morris is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:
Calvin Morris knowingly caused the death of Christopher Sharp under circumstances manifesting extreme indifference to the value of human life.
DEFINITIONS
“Knowingly” — A person acts knowingly (or with knowledge) with respect to his conduct or the circumstances that exist at the time of his act when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

This court has frequently stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. See, e.g., Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001); Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra.

The question before us, then, is, whether a rational basis exists for giving the second-degree murder instruction. Stated differently, was there evidence, however slight, that supported giving the instruction. We believe that there was.

We have recently said that for a defendant to be entitled to an instruction for the lesser-included offense of second-degree murder, he “must be able to point to evidence in the record that supports a finding that he acted with a ‘knowing’ mental state rather than a ‘purposeful’ mental state.” Britt v. State, 344 Ark. 13, 23, 38 S.W.3d 363, 370 (2001). In the case before us, it is beyond dispute that Morris shot his pistol. On direct examination, he testified:

Defense Counsel: Is your window down?
Morris: Yes, sir.
Defense Counsel: Is his [Kenneth Jackson’s] window down
all the way?
Morris: No, sir. It’s like halfway.
Defense Counsel: Okay.
Morris: And so I believed the light turned green because it had to turn green for us to continue on. And right when the light had turned green, I thought I seen — I thought I seen him reach for a gun and I was scared. I freaked out and I shot. I didn’t aim or nothing, I just reacted to the situation.

Based on the fact that Morris testified that he knowingly shot at the Sharp vehicle without aiming at Chris Sharp, the victim, the jury could have believed that there was evidence to support a knowing mental state as opposed to a purposeful mental state to kill Chris Sharp. See Britt v. State, supra. Moreover, he testified that it was Kenneth Jackson that he believed had a gun, not Chris Sharp.

The circuit court erred in refusing to give the second-degree murder instruction.

II: Manslaughter

We turn next to Morris’s contention that he was entitled to an instruction on the lesser-included offense of manslaughter, and, specifically, an instruction on reckless manslaughter. The circuit court refused to so instruct, and Morris’s counsel proffered the following instructions based on Ark. Code Ann. § 5-10-104(a) and 5-2-202(3) (Repl. 1997):

AMCI 2d 1004 MANSLAUGHTER
Calvin Morris is charged with the offense of manslaughter. To sustain this charge, the State must prove beyond a reasonable doubt that:
(A) Calvin Morris caused the death of Christopher Sharp under circumstances that would be murder, except that he caused the death under the influence of extreme emotional disturbance for which there was a reasonable excuse. You should determine the reasonableness of the excuse from the viewpoint of a person in Calvin Morris’s situation under the circumstances as he believed them to be: or
(B) Calvin Morris recklessly caused the death of Christopher Sharp.
DEFINITIONS
“Recklessly.” — A person acts recklessly with respect to the results of her conduct when she consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.

Again, the test for whether an instruction should be given is whether there is the slightest evidence to support the instruction and whether there is no rational basis for giving the instruction. See Ellis v. State, supra; Harshaw v. State, supra. In reviewing whether slight evidence or a rational basis exists for giving the manslaughter instruction, we first consider what evidence Morris could conceivably have relied on for recklessly forming a belief that he needed to use deadly force against the Sharp vehicle. We come up with the following:

• In an earlier incident in a nightclub parking lot, the Sharp car almost hit Morris.
• Occupants in the Sharp car and Morris’s car began arguing after that.
• Later in the evening while Morris’s car and Sharp’s car were side-by-side at a stop light, an occupant in the victim’s car either started to roll down his window or had partially done so already. Morris thought he saw a gun, panicked, and shot Chris Sharp.
• Only one person, Daniel Fells, other than Morris testified that threats came from Sharp’s car, but Fells admitted on cross-examination that he probably had told the police officers following the shooting that no threats were made.

Morris relies on the case of Harshaw v. State, supra, as precedent for reversing the circuit court. But in Harshaw, there was evidence to the effect that the victim had a gun and intended to use it. We wrote in Harshaw:

According to Mr. Harshaw’s testimony and that of other eyewitnesses, Mr. Cunningham then made several statements insinuating that if there was a problem, he would settle it with a gun:
• “Oh, that’s all right. I’ll just go get my gun and shoot it up.”
• “It’ll be some pistol play out here.”
• “1’11-get my nine and shoot this MF up.”
• “If there was a problem, I’d have a gun.”
• “Well, you know, if it was a problem, I’d have my gun and I’d shoot — be shooting it up out here, you know.”
• “K-3 [Casey Cunningham] ain’t no punk. If I got a problem, I just boom boom boom like that.”
Thereafter, Mr. Harshaw testified that he and Mr. Cunningham both turned and went to their respective cars. Several eyewitnesses stated that Mr. Cunningham reached into his car through the window on the driver’s side of the car. At the same time, Mr. Harshaw went to the trunk of his car, opened it, and retrieved a shotgun. As Mr. Cunningham came back up from reaching into the car, Mr. Harshaw shot him in the chest. Mr. Harshaw testified that he was afraid Mr. Cunningham was about to pull a pistol from his car and shoot him. As it turned out, Mr. Cunningham did not have a gun.

Harshaw, 344 Ark. at 131, 39 S.W.3d at 754-55.

We held in Harshaw that there was some evidence to support a finding that he recklessly formed the belief that Cunningham was about to shoot him, and that the circuit court erred in not giving the instruction. The Harshaw case with its references to a weapon stands in marked contrast to this case where there is no proof, and not even an indication, that the occupants of Sharp’s car had weapons. Furthermore, the only indications that “threats” were made was Morris’s self-serving testimony and Fells’s contradictory testimony. What those “threats” were was never set out in testimony. The circuit court correctly concluded that this did not rise to the level of a rational basis to warrant giving the instruction.

The catalyst for the shooting, according to Morris, was (1) that a window was rolled down, (2) that there had previously been an argument at the nightclub parking lot, and (3) that he thought h¿ saw a gun. The State makes a valid point in emphasizing that what Morris is arguing is that his fear of being shot, standing alone without other supporting evidence, is enough for the formation of a reckless belief that a lethal threat existed. Subjective fear of being shot, without some basis for that fear, should not be the determinant. In short, we would go too far were we to reverse the circuit court’s decision and hold that a defendant’s testimony that he was “scared” and “freaked out,” without some supporting evidence that the victim had a weapon, was enough to entitle him to a manslaughter instruction. In Harshaw, we pointed to the fact that there was some evidence supporting the appellant’s recklessly formed belief because the victim had “made comments about using a gun if there was a problem” and then went to his car and “reached inside the driver’s window.” Harshaw, 344 Ark. at 132, 39 S.W.3d at 756. Here, there was no such supporting evidence.

We underscore the point that it first falls to the circuit court to determine whether there is a rational basis -for giving of a jury instruction. Here, the circuit court concluded that there was none. In Harshaw, this court pointed to a footnote in the Original Commentary to Ark. Code Ann. § 5-2-614 (Repl. 1977), which deals with the formation of a recldess belief that the use of force is necessary in the context of justified homicide. The quoted commentary reads in part:

“We do not believe a person ought to be convicted for a crime of intention when he has labored under a mistake such that, had the facts been as he supposed, he would have been free from guilt. The unreasonableness of an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to the judgment on the assumption that his belief was true.”

Harshaw, 344 Ark. at 134 fn.1, 39 S.W.3d at 757 fn.1. In short, the Commentary looks to the tribunal, which in common parlance is the court, as the first determiner of whether a rational basis supports the reckless formation of a belief and whether a jury question, accordingly, exists. In the case before us, the circuit court found that there was no rational basis to support the reckless formation of a belief that lethal force was about to be used and denied the instruction.

Morris challenges the circuit court’s decision that the evidence did not support the giving of the manslaughter instruction and urges that the court erred. In our judgment, the circuit court properly could discount the self-serving testimony of Morris that threats were made and the contradictory testimony of Daniel Fells, who first told police officers at the crime scene that no threats came from the Sharp vehicle and then testified to just the opposite at trial. We decline to hold that the circuit court committed reversible error in this regard.

Affirmed in part. Reversed and remanded in part.

Imber, J., concurs in part and dissents in part.

Annabelle Clinton Imber, Justice,

concurring in part and dissenting in part. While I agree with the majority that the circuit court erred in not giving an instruction on the lesser-included offense of second-degree murder, I must respectfully dissent from the majority’s decision to affirm the circuit court’s refusal to instruct on manslaughter. In my view, the majority’s analysis on the manslaughter instruction is fatally flawed. The majority improperly weighs evidence, fails to follow Arkansas law, and the opinion itself is internally inconsistent.

First, the majority accurately states the question before this court: “[W]as there evidence, however slight, that supported giving the instruction?” Yet, as between the instructions on second-degree murder and manslaughter, there are inconsistencies in the review of the evidence. When addressing the second-degree murder instruction, the majority opinion states that “based on the fact that Morris testified that he knowingly shot at the Sharp vehicle without aiming at Chris Sharp, the victim, the jury could have believed that there was evidence to support a knowing mental state as opposed to a purposeful mental state to kill Chris Sharp.” Thus, Morris’s self-serving testimony regarding his subjective mental state is enough to warrant an instruction on the lesser-included offense of second-degree murder. Nevertheless, when addressing the manslaughter instruction, the majority opinion concludes that “subjective fear of being shot, without some basis for that fear, should not be the determinant.” I fail to understand how the standard of what constitutes the slightest evidence can shift from one instruction to another.

Not only does the majority adopt different standards for reviewing the evidence, it also improperly weighs evidence by stating that “the circuit court properly could discount the self-serving testimony of Morris that threats were made and the contradictory testimony of Daniel Fells.” The weighing of evidence lies within the province of the jury. See, e.g., Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). A party is entitled to a jury instruction if there is any supporting evidence for the instruction. Henderson v. State, 349 Ark. 701, 80 S.W.3d 374 (2002).

In reaching the conclusion that a trial judge can discount evidence, the majority opinion refers to a footnote in Harshaw that quoted the Original Commentary to Ark. Code Ann. Section 5-2-614 (Repl. 1977). The suggestion is then made that “the commentary looks to the tribunal, which in common parlance is the court, as the first determiner of whether a rational basis supports the reckless formation of a belief and whether a jury question, accordingly, .exists.” The pertinent sentence in the commentary is: “The unreasonableness of an alleged belief may be evidence that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true.” Harshaw v. State, 344 Ark. 129, 134, 39 S.W.3d 753, 757, n.1 (2001) (quoting the Original Commentary to Ark. Code Ann § 5-2-614, formerly Ark. Stat. Ann. § 41-514 (Repl. 1977) (quoting M.P.C. § 3.09, Comment at 78 (Tent Draft No. 8, 1958))) (emphasis added).

Apparently, the majority interprets the term “tribunal” to mean “court” and by inference “judge.” Such a conclusion is contrary to the following language in a decision by the U.S. Supreme Court that has been adopted by this court: “We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact. . . .” Missouri Pac. R. Co. v. Ballard, 250 Ark. 1094, 469 S.W.2d 72 (1971) (quoting Jones v. East Tennessee, V. & G. R. Co., 128 U.S. 443); Morrison-Knudsen Co. v. Lea, 186 S.W.2d 429, 208 Ark. 260 (1945) (quoting Jones v. East Tennessee, V. & G. R. Co., 128 U.S. 443) (emphasis added); see also Arkansas State Highway Commission v. Poteete, 245 Ark. 430, 432 S.W.2d 774 (1968) (“In many cases the court can, as a matter of law, determine that lots are distinct or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact . . .”) (internal citations omitted) (emphasis added). Thus, the jury is the tribunal charged with the duty of weighing the evidence and deciding disputed questions of fact.

Even if it were proper for the judge to discount evidence, the record does not support such a finding in this case. Quite to the contrary, the trial court gave an instruction on justification, but at the same time refused to give instructions on second-degree murder and manslaughter on the ground that it would be inconsistent to instruct the jury on justification and the lesser-included offenses. The following colloquy between counsel and the trial judge illustrates the trial court’s reasoning:

Prosecutor: He’s trying to argue both ways so either he doesn’t get the justification or he doesn’t get the lessers.
Defense Counsel: I think I get both. I think there’s evidence for both.
Judge: I don’t think I can give both.
Defense Counsel: I think I, Your Honor, I mean, I respectfully think I do.
Judge: I may be giving you good reversible error here but I deny your request for second and manslaughter. I’m going to give your justifiable.

A justification instruction allows the jury to consider whether the defendant reasonably believed that he was about to be subject to unlawful deadly force. See Ark. Code Ann. § 5-2-607 (Repl. 1997). It would defy common sense for the trial court, in weighing the evidence, to give an instruction on a defendant’s belief that deadly force was necessary, and at the same time refuse an instruction on the reckless formation of that belief. In fact, the trial judge in this case erred as a matter of law when he concluded that it would be inconsistent to give instructions on justification and the lesser-included offenses. See Harshaw v. State, supra.

Additionally, I would note that if “tribunal” were to mean “judge,” and a manslaughter instruction is given, a defendant may not be convicted of an offense greater than manslaughter. That is because the statement from the Original Commentary would read as follows if the term “tribunal” is changed to “judge”: “[I]f the judge was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true.” Accordingly, if the belief was formed reasonably, the defendant is entitled to be acquitted; whereas, if the belief was formed recklessly, the defendant may not be convicted of an offense that hinges on a mens rea of purposely or knowingly. In other words, how could a defendant be convicted of a crime involving purpose or knowledge if the defendant “acted recklessly — too hastily and without due care — in concluding that deadly force was necessary . . . .” Harshaw v. State, 344 Ark at 135, 39 S.W.3d at 758. Because “the judge was satisfied that the belief was held,” the jury would be instructed that the defendant in fact held a belief that self-defense was necessary, and the jury would only decide whether that belief was formed reasonably or recklessly. Thus, under the majority’s interpretation of the term “tribunal,” an instruction on the lesser-included offense of manslaughter would eliminate, as a matter of law, the possibility of a defendant being convicted of any offense greater than manslaughter.

More importantly, the majority opinion fails to follow Arkansan law. We have always held that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753; Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). This court will affirm a trial court’s refusal to give a lesser-included offense only if there is no rational basis for giving the instruction. Harshaw v. State, supra; Spann v. State, supra. Indeed, where any evidence to support an instruction is before the jury, that instruction must be given. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329(1996) (citing State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995)).

In Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001), we affirmed a trial court’s refusal to give lesser-included instructions on second-degree murder and manslaughter. The evidence showed that Britt or his accomplice shot the victims in an execution-like manner. Britt v. State, 344 Ark. 13, 23, 38 S.W.3d 363, 370 (2001). With respect to manslaughter, we concluded that there was no evidence presented to support a finding by the jury that Britt was acting under extreme emotional disturbance, that he acted recklessly or negligently, or that he aided another in committing suicide. Britt v. State, 344 Ark. at 23, 38 S.W.3d at 370 (citing Ark. Code Ann. § 5-10-104 (Repl. 1997)). Similarly, a trial court’s refusal to instruct the jury on reckless manslaughter was upheld in Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001). We concluded that merely being stared at was no different from being teased, and that neither act provides a reasonable excuse for a state of emotional disturbance so great as to excuse killing. Id. (citing Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992)). We also pointed out that the court’s decision in Harshaw was inapposite because the defendant in Ellis v. State did not assert the defense of justification. Ellis v. State, supra.

In contrast, this court reversed a trial court for its refusal to give jury instructions on the lesser-included offense of manslaughter in Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753. That case involved an imperfect justification-type reckless manslaughter. Id. The victim had made several statements insinuating that he would settle any problems with a gun. Id. The victim and Harshaw then went to their respective vehicles, at which point the victim reached into his car through the window on the driver’s side of the car and Harshaw retrieved a shotgun from the trunk of his car. Id. At trial, Harshaw testified he was afraid the victim was about to pull a pistol from the car and shoot him. Id. We held that there was at least some evidence that would support a finding that Harshaw acted recklessly in forming his belief that deadly force was necessary to protect himself. Harshaw v. State, supra. As to our prior holding in Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000), we concluded that the facts before us in Harshaw were distinguishable from the facts in Cobb. Harshaw v. State, supra. Our analysis hinged on'whether there was a reasonable basis in the evidence for a jury to conclude that the defendant could have formed a belief, recklessly or otherwise, that his life was in danger. Harshaw v. State, supra. Specifically, there was at least some evidence in Harshaw suggesting that the victim posed a real or deadly threat; whereas in Cobb there was no such evidence. Compare Harshaw v. State, supra (victim had made prior threats to settle a disagreement with a gun), with Cobb v. State, supra (defendant admitted shooting an unarmed victim once in the back causing paralysis and then shooting the victim a second time).

In this case, Morris submits that the tension between the cars caused by the earlier confrontations and the firing of a weapon by Brown provide a reasonable basis for him to have believed that he was in danger. Under such circumstances, Morris argues his belief that Jackson was reaching for a gun as he rolled down the window sufficiently supports the request for jury instructions on the lesser-included offenses of manslaughter. I agree.

From the evidence presented, a jury could have reasonably concluded that Morris recklessly formed a belief that self-defense was necessary. Under this court’s holding in Harshaw, a defendant is entitled to a manslaughter instruction when there is some evidence to support a finding that he or she acted on the basis of an unreasonable or recklessly formed belief that the use of deadly force was necessary. Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753. We concluded in Harshaw that there was “at least some evidence which would support a finding that Mr. Harshaw formed his belief in the need for use of deadly force ‘too hastily and without due care,’ or ‘recklessly.’” Id. at 135, 39 S.W.3d at 757. Specifically, witnesses testified that the victim made threatening remarks and reached for something in his car immediately prior to the homicide; whereas, in Cobb v. State, there was no evidence that the victim posed either a real or imagined threat. Harshaw v. State, 344 Ark. 129, 39 S.W.39 753. Not only did the defendant in Cobb admit that the victim had no place to hide a gun on his person, but he also conceded that there was no reason for him to shoot the victim a second time. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).

From the record in this case, we must determine whether there is some evidence to support a finding that Morris acted on the basis of a recklessly formed belief that deadly force was necessary to protect himself. Here, the evidence shows that Morris and the occupants of the Sharp vehicle engaged in a series of escalating arguments. During the first confrontation, Morris, believing that Sharp was trying to run him over, stated “ [i]f this car hits me, I’m going to put a hot one in them,” meaning a bullet. There was also testimony by Daniel Fells that the occupants of both cars were “threatening each other. I don’t remember exactly what was said but it was threats. It was arguing.” Upon cross-examination, however, Fells testified he probably told police that no threats were made. The second exchange of words occurred as both cars were leaving the night club’s parking lot. At this point, a weapon was fired by Kevin Brown, a passenger in the Fells vehicle. The final encounter occurred at the intersection of Asher and University, where words were exchanged once again and Leonard Jackson, a passenger in the Sharp vehicle, started rolling down his window. Morris testified that he believed Jackson was reaching for a gun and he feared for his safety. Such evidence crosses the “slightest evidence” threshold required for giving a jury instruction on the lesser-included offense of manslaughter.

We noted in Harshaw, “[t]he Arkansas Criminal Code is one of only a few modern codes that follow section 3.09(2) of the Model Penal Code in this respect and treat homicide in imperfect self-defense as a problem of ‘reckless manslaughter, or of negligent homicide, depending upon whether the defendant’s belief as to the necessity of the homicide was reckless or negligent.’” Harshaw v. State, 344 Ark. at 134, 39 S.W.3d at 757, n.1 (citations omitted) (emphasis in original). Based upon the record in this case, I believe that a manslaughter instruction was warranted; that is, there was at least some evidence that would support a finding that Morris recklessly formed his belief that deadly force was necessary to protect himself. When an instruction on a lesser-included offense is supported by even the slightest evidence, it is reversible error to refuse to give the instruction. Harshaw v. State, supra.

For the above-stated reasons, I must respectfully dissent from the majority’s decision to affirm the circuit court’s refusal to instruct on manslaughter.


text:
    Erik BULLOCK v. Shiwona PACE
    02-1079
    94 S.W.3d 925
    Supreme Court of Arkansas
    Opinion delivered January 16, 2003

      Petitioner, pro se.

      J. Fred Hart, for respondent.
   Per Curiam.

In 2000, Shiwona Pace filed a civil complaint contending that Erik Bullock had caused physical and mental harm to her and caused the death of her unborn child. On June 19, 2002, judgment was entered reflecting that a jury had returned a verdict for Pace in the amount of $1,500,000 in compensatory damages and $3,000,000 in punitive damages.

Bullock filed a pro se notice of appeal from the judgment and a motion to proceed in forma pauperis on appeal. The court denied Bullock’s motion to proceed as an indigent. Bullock tendered a partial record on appeal to this court and now before us is petitioner Bullock’s pro se motion to be permitted to proceed as a pauper on appeal from the judgment.

The motion is denied inasmuch as there is no provision in the prevailing rules of procedure to permit a defendant in a civil action to proceed at public expense. Rule 72 of the Rules of Civil Procedure provides that an indigent person may prosecute his or her cause of action informa pauperis under certain circumstances. Petitioner Bullock was the defendant in the cause filed by Ms. Pace. As such, he is not entitled to proceed as an indigent from the adverse judgment. If petitioner desires to lodge the appeal, he is responsible therefore for tendering both the record on appeal and the required filing fee at his expense.

Motion denied.


author: PER Curiam.

text:
    Charles DUGGER v. STATE of Arkansas
    CR 02-637
    94 S.W.3d 924
    Supreme Court of Arkansas
    Opinion delivered January 16, 2003

      Ronald Carey Nichols, for appellant.
    No response.
   PER Curiam.

On October 10, 2002, our court concluded that Mr. Charles Dugger’s attorney, Ronald Carey Nichols, had filed a timely notice of appeal from Dugger’s conviction judgment, but failed to file the record with this court in order to perfect Dugger’s appeal. See Dugger v. State, No. CR 02-637 (Oct. 10, 2002). Mr. Nichols’s failure to file the record resulted in this court ordering him to appear before us on Thursday, January 9, 2003, at 9:00 a.m., and to show cause why he should not be held in contempt. Mr. Nichols appeared before us on January 9 and pled guilty to contempt, conceding his failure to take proper action, which has caused Dugger’s appeal not to be perfected for more than one year. In mitigation, Mr. Nichols blamed his delay on having had an illness and death in his family, and he also related that when he went to pick up the record, he was told by the court clerk that some unknown woman had already picked up the transcript. Mr. Nichols claims he had tendered payment for the record.

As we noted in our October 10, 2002, per curiam, Rule 16 of the Rules of Appellate Procedure — Criminal provides that trial counsel must continue to represent a convicted defendant throughout any appeal unless the trial court or appellate court permits counsel to withdraw. Mr. Nichols has never been relieved of his responsibility in this case, and in fact, Mr. Nichols agreed that the trial court had previously denied his request to withdraw.

We agree that Mr. Nichols is in contempt, and we impose a fine of $250.00 which shall be paid within thirty days from the date of this per curiam. Nichols announced in court that he believed that he could have the record in this case filed within thirty days, and we direct that he do so. A copy of this per curiam will be forwarded to the Professional Conduct Committee.

       Mr. Nichols offered mitigating circumstances in an earlier, unrelated show cause hearing in Bowden v. State, 325 Ark. 316, 925 S.W.2d 158 (1996) (per curiam).

       It is unclear who paid for the transcript. Mr. Nichols testified that he had the money to pay the clerk, but later said that the unknown woman paid for the transcript.


text:
    Tracy Donell SIMMONS v. STATE of Arkansas
    CR 02-1369
    94 S.W.3d 911
    Supreme Court of Arkansas
    Opinion delivered January 16, 2003

      Boyd & Buie, by: Rufus T. Buie, III, for appellant.
    No response.
   Per Curiam.

Appellant Tracy Donell Simmons entered a conditional plea of guilty to the offense of possession of cocaine pursuant to Ark. R. Crim. P. 24.3, while reserving the right to appeal from the circuit court’s denial of his motion to suppress. The judgment and commitment order was entered on May 22, 2002. Notice of appeal was timely filed on June 20, 2002. Appellant’s counsel, Boyd & Buie, through Rufus T. Buie, III, has now filed a Motion for Rule on the Clerk, asking that this court order that the record in this case be filed by the Clerk of the Court.

The Clerk correctly refused to accept the record on the ground that the record was not submitted on or before December 17, 2002, as set forth in the circuit court’s original order extending the time for the filing of the record. This court has long 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. Beavers v. State, 341 Ark. 649, 19 S.W.3d 23 (2000). Here, Mr. Buie does not admit fault, but rather urges this court to find that the circuit court erred in its order extending the time to file the record with the Clerk of the Arkansas Supreme Court “up to and including seven months from disposition of the post-trial motions which is December 17, 2002,” because seven months from the date of the judgment would result in a due date of December 22, 2002.

We decline to make the requested finding, especially in view of the fact that appellant’s own motion for an extension of time to file the record sought an extension of time to a specific date — December 17, 2002. Rule 5(b) of the Arkansas Rules of Appellate Procedure — Civil provides in relevant part that “[i]n no event will the time [for filing the record on appeal] be extended more than seven (7) months from the date of the entry of the judgment, decree, or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later.” Ark. R. App. P — Civ. 5(b) (2002). Thus, the circuit court may extend the time to file the record to any date ivithin the seven-month maximum period allowed by Ark. R. App. P. — Civ. 5(b).

We have held that a statement by an attorney that failure to timely file a record on appeal was someone else’s fault, or no one’s fault, will not suffice. Beavers v. State, 341 Ark. 649, 19 S.W.3d 23 (2000). Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to another. Id. Because neither Mr. Buie nor Ms. Boyd accepts responsibility for not filing the record within the required time, appellant’s motion must be denied.

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

Motion denied.

       The record shows that Christina Boyd, of Boyd & Buie, was the attorney of record who filed the motion for extension of time to file the record and approved the circuit court’s order extending the time to December 17, 2002. However, neither Ms. Boyd nor Mr. Buie has accepted responsibility for the failure to file the record by December 17, 2002.

       Pursuant to Ark. R. App. P. — Crim. 4(a) (2002), the docketing of the record is governed by the Arkansas Rules of Appellate Procedure — Civil.

       We note that the circuit court’s order granting appellant’s motion to modify order extending time for filing record was not timely filed; that is, it was not “entered before the expiration of the period for filing as originally prescribed or extended by a previous order.” Ark. R. App. P. — Civ. 5(b).


author: WH. “Dub” Arnold, Chief Justice.

text:
    Alicia BENNETT v. The Honorable Linda P. COLLIER
    02-1327
    95 S.W.3d 782
    Supreme Court of Arkansas
    Opinion delivered January 23, 2003

      Richard Neil Rosen, Office of Chief Counsel, for Arkansas Department of Human Services.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Justice.

On August 20, 2002, respondent Faulkner County Circuit Judge Linda P. Collier held a termination hearing regarding petitioner Alicia Bennett’s son, Justin. Although Ms. Bennett’s counsel was present, Ms. Bennett was not. Judge Collier entered an order on August 26, 2002, terminating the parental rights of the parents in Justin. That same day at the termination hearing, Judge Collier issued a pick-up order for Ms. Bennett, claiming to possess jurisdiction of the parties. Based upon testimony at the termination hearing that Ms. Bennett was pregnant and using illegal drugs, Judge Collier found that there was probable cause to believe Ms. Bennett was placing an unborn child at risk of imminent harm due to her drug use. The pick-up order also contained language that the court had terminated the parental rights of the parents in Justin that same day. Ms. Bennett was subsequently picked up and detained in the Faulkner County Detention Center.

On August 29, 2002, Judge Collier conducted a hearing in which it held Ms. Bennett, who was present at the hearing but unrepresented, in criminal contempt of court because of her use of drugs in violation of the court’s previous orders requiring her to remain drug-free. The judge ordered her committed to the Faulkner County Detention Center until the birth of the child she was carrying. The judge said: “. . . I’m holding this lady in contempt of Court . . . and she will remain in the custody of the Faulkner County Sheriff, in the Detention Center, until she goes into labor. She’ll be taken immediately to the hospital. The baby will be delivered either dead or alive, and she will be released. ...”

After finding that the unborn fetus “ [was] in imminent danger of severe maltreatment and is dependent/neglected as defined by the Arkansas Juvenile Code[,]” Judge Collier placed the fetus in the custody of the Department of Human Services (DHS) and ordered DHS to provide services to Ms. Bennett and the fetus she was carrying. Judge Collier said as part of her ruling:

“But I can’t stop her [Ms. Bennett] from using drugs, but I can keep her off of them until she has this child and by keeping her locked up. And the child is not to leave the hospital with her. But I want her to have an ultrasound, and the Department — this is not going to be billed to the Faulkner County Jail. I want everybody to know that. This is a Department case and I want the Department taking full responsibility for it. She’s going to have an ultrasound and other prenatal tests, and I want to know if the baby has any overt signs of malformation. And then I want her to remain in the jail until she goes into labor, and then she’s going to be taken directly out to the hospital for delivery.”

On August 30, 2002, Judge Collier entered the following order:

6. Based on the testimony of the mother, the case worker, and the drug test results which showed drug use during pregnancy, the Court holds Alicia Bennett in contempt of Court for violating previous orders that she remain drug free.
7. The mother shall remain in the custody of the Faulkner County Sherriff until such time as she gives birth to the child.
8. The Court finds that the unborn child is in imminent dangér of severe maltreatment and is dependent/neglected as defined by the Arkansas Juvenile Code. The Court places the unborn child in the custody of the Department. The Arkansas Department of Fiuman Services shall ensure the mother receives adequate prenatal care and that the mother is examined by a doctor as soon as possible. The Department shall bear the expense of the mother’s prenatal care.

Ms. Bennett remained in the detention center. On December 10, 2002, she moved for a belated appeal, or, alternatively, for a writ of habeas corpus, on the basis that she was being unlawfully detained. This court temporarily stayed the judge’s contempt order and granted her motion for immediate release on December 11, 2002. Now pending before this court for decision is Ms. Bennett’s motion for belated appeal, or alternatively, her petition for a writ of habeas corpus.

Ms. Bennett raises four points of error in support of her motion/petition: (1) that she was denied counsel in a proceeding where she was entitled to counsel; (2) that she was denied due process when she was “picked up” without notice or an opportunity to defend; (3) that the trial court had no jurisdiction to hold Ms. Bennett in contempt of court; and (4) that the trial court violated her constitutional rights to privacy and bodily integrity. Judge Collier responds that none of Ms. Bennett’s arguments needs to be resolved prior to our decision in Arkansas Dep’t of Human Servs. v. Collier, No. 02-1021, where DHS has petitioned for a writ of prohibition, or, alternatively, for a writ of certiorari, on the basis that a fetus is not a juvenile under the Juvenile Code. In fact, Judge Collier asserts that Ms. Bennett’s jurisdictional argument can be decided by the disposition of DHS’s pending petition in the related case, No. 02-1021. We conclude, nonetheless, that Judge Collier lost jurisdiction over Ms. Bennett to hold her in contempt of court for not remaining drug-free once her rights as a parent to Justin were terminated.

We begin by noting that the incarceration of Ms. Bennett involves two distinct cases. The first case involves Ms. Bennett solely and the judge’s placing her in contempt of court for violating her orders to remain drug-free and as mother of the fetus taken into custody. That is the subject matter of the petition in this case, No. 02-1327. The second case is related, Arkansas Dept. of Human Servs. v. Collier, No. 02-1021, also decided this date. That case concerns whether Judge Collier acted beyond her authority in finding an unborn fetus to be a juvenile and by placing that fetus in the custody of DHS. There is also the point, which Judge Collier emphasizes in her brief, that Ms. Bennett has been released from jail due to this court’s temporary stay of Judge Collier’s order. According to Judge Collier, the issue of Bennett’s incarceration is now moot. Nevertheless, we address Ms. Bennett’s petition in the instant case even though she has been released from jail due to our uncertainty over whether Judge Collier intends to punish Ms. Bennett further for disobeying her orders in the Justin matter.

With respect to jurisdiction, we conclude that Judge Collier lost jurisdiction over Ms. Bennett to enforce her orders that Ms. Bennett remain drug-free in the Justin case when it terminated her parental rights. The judge’s termination order was entered August 26, 2002. At that time, Judge Collier also changed the style of the case by deleting Ms. Bennett and Mr. Harper as respondents and noting that the style of the case shall now read: “In Re: Justin Bennett.” Our appellate rules provide that an order terminating parental rights is a final, appealable order in juvenile cases where an out-of-home placement has been ordered. See Ark. R. App. P. — Civ. 2(c)(3)(C). See also Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). A final order is one which dismisses the parties from the court’s jurisdiction, discharges them from the action, and concludes their rights in the subject matter in controversy. See Arkansas Dep’t of Human Servs. v. Farris, 309 Ark. 575, 832 S.W.2d 482 (1992). Because the termination order was a final order that concluded Ms. Bennett’s parental rights in her child, Justin, she was no longer subject to the court’s jurisdiction after the termination proceedings ended. Thus, Judge Collier had no jurisdiction to hold Ms. Bennett in contempt of court for violating the court’s orders that she remain drug free for purposes of protecting Justin.

Because Judge Collier had no jurisdiction over Ms. Bennett to hold her in contempt of court, this court’s stay of her order was entirely appropriate and a writ of habeas corpus should issue. Our review of the record reveals no notice of appeal from the August 30, 2002, order, and there is no basis for a belated appeal in this case. For that reason, her motion for a belated appeal is denied.

Motion for belated appeal denied. Petition for writ of habeas corpus granted.

       The court terminated the parental rights ofjeff Harper, the child’s putative father, as well as Alicia Bennett’s.

       The court’s orders mandating that Ms. Bennett remain drug-free in the termination case respecting Justin were not made part of the record in this case.

       We emphasize that only Ms. Bennett’s rights are at issue in this petition. The court’s jurisdiction over her unborn fetus is the subject of a currently pending petition for an extraordinary writ filed by DHS. See Arkansas Dep’t of Human Servs. v. Collier, No. 02-1021. DHS has also filed a brief in the instant case asserting that the trial court was without subject-matter jurisdiction, or exceeded its jurisdiction, when it adjudicated an unborn fetus to be a dependent/neglected juvenile and ordered the unborn fetus into DHS’s custody. Because this is the same assertion made in its petition for writ of prohibition, or in the alternative, writ of certiorari in case No. 02-1021, there is no need to address the merits of DHS’s argument in this case.

       Judge Collier also points out that Ms. Bennett’s brief fails to include a copy of the order by which she was held in contempt. She is correct. However, DHS’s brief filed in this matter does contain the contempt order for this court to review.

       We have held this same day in Arkansas Dep't of Human Servs. v. Collier, No. 02-1021, that an unborn fetus does not fall within the definition of “juvenile” in the Juvenile Code and that, accordingly, an unborn fetus could not be adjudicated dependent-neglected or placed in the custody of DHS.