author: DONALD L. Corbin, Justice.

text:
    James Alan STANTON v. STATE of Arkansas
    CR 00-583
    42 S.W.3d 474
    Supreme Court of Arkansas
    Opinion delivered May 3, 2001

      Robert N. Jeffrey, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellant James Alan Stanton was convicted in the Cleveland County Circuit Court of manufacturing a controlled substance (crystal methamphetamine); possession of a controlled substance with intent to deliver; simultaneous possession of drugs and firearms; possession of drug paraphernalia; and felon in possession of a firearm. Appellant was sentenced as a habitual offender to fife imprisonment on each of the first three counts and twenty years’ and twelve years’ imprisonment, respectively, on the last two counts. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a) (2). For reversal, Appellant argues that the trial court erred in denying his suppression motion and his motion for directed verdict. We find no error and affirm.

I. Motion to Suppress

Appellant argues that the trial court erred in denying his pretrial motion to suppress evidence that was obtained in a search of the residence of Appellant’s girlfriend, Patricia Bombino. Evidence obtained during the search included more than one gram of crystal methamphetamine, numerous items of drug paraphernalia, a handgun, night-vision goggles, and all the ingredients and utensils needed to manufacture methamphetamine. The search was conducted at approximately 3:00 a.m. on December 12, 1998, pursuant to a warrant that was obtained by Cleveland County Sheriffs Deputy Trent Vollmer. The affidavit was based in large part on information supplied to Vollmer from an informant. Appellant contends that the affidavit for the search warrant was insufficient because it failed to establish particular facts demonstrating the reliability of the informant. We disagree.

In reviewing a trial court’s denial of a motion to suppress, we make an independent examination of the issue based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001); Benson v. State, 342 Ark. 684, 30 S.W.3d 731 (2000). We will reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Id. When an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996) (citing Ark. R. Crim. P. 13.1(b)). In deciding whether to issue the warrant, the magistrate should make a practical, common-sense determination based on the totality of the circumstances set forth in the affidavit. Id.

There is no fixed formula in determining an informant’s reliability. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). Factors to be considered in making such a determination include whether the informant’s statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens, 325 Ark. 110, 926 S.W.2d 650. Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant’s reliability in the present case. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Failure to establish the bases of knowledge of the informant, however, is not a fatal defect if the affidavit viewed as a whole “provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.” Rule. 13.1(b). See also Langford, 332 Ark. 54, 962 S.W.2d 358; Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).

The State contends that the prosecution was not required to establish the informant’s reliability in this case, because the informant’s identity was revealed to the issuing judge. This court has consistently held that an affidavit for a search warrant need not contain facts establishing the veracity and reliability of noneonfidential informants such as police officers, public employees, victims, and other witnesses whose identity is known. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999) (citing Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996); Owens, 325 Ark. 110, 926 S.W.2d 650; Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993)). Thus, “no additional support for the reliability of witnesses is required where the witness volunteered the information as a good citizen and not as a confidential informant whose identity is to be protected.” Moore, 323 Ark. at 539, 915 S.W.2d at 290 (citing Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983)). This is true even when the citizen informant is not a “model citizen.” Id.

In the present case, the informant, Kristine Wright, was referred to in the affidavit only as “CI-CCSO-007.” The record, however, demonstrates that Deputy Vollmer submitted her statement to the judge, which was handwritten by another officer and signed by Wright, at the same time that he presented his affidavit. Wright’s name, address, date of birth, and social security number were contained in her statement. Accordingly, we are inclined to agree with the State that Wright was not acting as a confidential informant whose identity was to be protected.

In any event, regardless of the fact that her identity was known, the affidavit sufficiently establishes Wright’s reliability. The affidavit describes two separate instances in which Vollmer received information from Wright regarding the criminal activity of Patricia Bombino. Particularly, the affidavit reflects that on November 30, 1998, Vollmer received a telephone call from Wright, informing him that Bombino was “cooking crystal meth” at her residence. Wright also told Vollmer that she had been supplying information to the narcotics division of the Pine Bluff Police Department. Vollmer then contacted a narcotics' detective in Pine Bluff, who stated that Wright had “given reliable information in the past.” After speaking with the Pine Bluff detective, Vollmer reported the information to his chief deputy, Jack Rodgers. Rodgers instructed Vollmer and another deputy to conduct surveillance on Bombino’s residence. While they were watching the residence, the officers became aware of the fact that they had been “spotted” by persons at the residence. About three minutes later, the officers observed a fire being started behind the residence. The fire looked like some type of flammable material had been added to it.

The next time that Vollmer was contacted by Wright, she corroborated the officers’ surveillance activities. Particularly, Wright stated that Bombino had seen the officers watching her house and that, as a result, Bombino had burned everything. Wright also warned Vollmer that Bombino had surveillance cameras that watched the road in front of the residence, and that there were “night vision devices” inside the home.

Vollmer was contacted by Wright a third time on December 11, 1998. On this occasion, Wright stated that earlier that day, she had been at Bombino’s residence and observed a “crystal meth lab” located in Bombino’s bedroom. Wright stated that Bombino had some powder at the residence and that they had purchased some denatured alcohol that day from Lowe’s in Pine Bluff. Wright also observed a butane bottle in the shed. Based on this information, Vollmer sought and obtained a search warrant for Bombino’s residence.

The foregoing information supports the trial court’s finding that the informant’s reliability had been sufficiently established. The affidavit demonstrated that Wright supplied information to Vollmer that caused Vollmer and another officer to conduct surveillance on Bombino’s home. The next time that Vollmer spoke with Wright, she informed the officer that she knew he had conducted surveillance on Bombino’s home. She further corroborated the activities that the officers had witnessed at the residence, namely that the officers had been observed by Bombino and that immediately thereafter, Bombino had burned incriminating evidence. Moreover, Wright’s statements were based on her personal observations of recent criminal activity. She stated that she had been in Bombino’s home on December 11, 1998, the same date that she contacted Vollmer, and that she had observed some powder at the residence and what she described as a “crystal meth lab.” Furthermore, the affidavit reflected that Vollmer was informed by a Pine Bluff detective that Wright had given reliable information to that department in the past. We thus affirm the trial court’s denial of Appellant’s motion to suppress.

II. Sufficiency of the Evidence

The remaining point on appeal is Appellant’s assertion that the trial court erred in denying his motion for directed verdict on each of the offenses charged. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt, 344 Ark. 13, 38 S.W.3d 363; Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Britt, 344 Ark. 13, 38 S.W.3d 363. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. With this standard in mind, we discuss the evidence supporting each charge.’

Appellant was convicted of manufacturing a controlled substance in violation of Ark. Code Ann. § 5-64-401(a) (Repl. 1997). Arkansas Code Annotated § 5-64-101(m) (Repl. 1997) provides in pertinent part:

“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its containerf.]

According to testimony from Deputy Vollmer, Arkansas State Police Detective Dennis Roberts, and Arkansas State Crime Laboratory Chemist Gene Bangs, the search revealed the presence of all materials necessary for manufacturing methamphetamine, including ephedrine or pseudoephedrine tablets; empty blister pill packs; starting fluid; paint thinner; lithium (battery) strips; various types of solvents; acetone; denatured alcohol; electronic scales; Mason jars; metal fittings; funnels; empty plastic soda bottles; a tank of anhydrous ammonia; syringes; small Ziplock plastic bags; and numerous spoons containing trace amounts of methamphetamine. The materials were found inside the residence, as well as in trash bags found in the back of Appellant’s truck. Additional materials were found in a burn pile behind the residence. Officers also found 1.25 grams of completed product, methamphetamine hydrochloride.

Additionally, the State presented evidence that approximately one week before the search, Appellant had purchased six “AA” lithium batteries from Radio Shack. Appellant admitted thát his name and address were on the receipt. Appellant also admitted that the safe found in Bombino’s bedroom was his. Officers testified that numerous materials were found inside and around that safe, namely lithium strips soaking in a petroleum-based solution, syringes, electronic scales, and small Ziplock plastic bags used for packaging controlled substances.

Moreover, the State introduced a letter to Bombino that was written by Appellant from his jail cell. In the letter, which is reproduced as written, Appellant states:

So, you were going to let me do one more “reaction” and then you was going to tell me to move on!
....
As far as me and my business you let to many of your friends know my business.
Do you have any idea about the stuff I got out of your house[?] ... They would have loved to got there hands on 5,000 soaking plus 280 g powder, 72 batt., 4 cases of fluid, 1 gallon of acid.

Testimony from the State’s witnesses established that the term “reaction” referred to a chemical reaction, which is a necessary step in manufacturing methamphetamine. On cross-examination, Appellant admitted that all of the items mentioned in his letter are ingredients in a methamphetamine lab. Appellant also admitted that he had seen methamphetamine manufactured before.

Bombino testified that at the time of the search, she had been having a sexual relationship with Appellant. During the two weeks prior to the search, Appellant had been staying at her residence and had been bringing some of his possessions to her home. She testified that Appellant was going to show her how to make methamphetamine.

We conclude that the evidence, viewed in a light most favorable to the State, was sufficient to support Appellant’s conviction for manufacturing methamphetamine. See Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). The jury did not have to resort to speculation or conjecture to find that Appellant and Bombino either had manufactured methamphetamine or were currently in the process of manufacturing methamphetamine. We thus affirm on this point.

The remaining convictions stem from Appellant’s possession of contraband, namely methamphetamine, a firearm, and various items of drug paraphernalia. To convict one of possessing contraband, the State must show that the defendant exercised control or dominion over it. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197 (1994). Neither exclusive nor actual, physical possession is necessary to sustain a charge. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Rather, constructive possession is sufficient. Id. This court has previously explained:

Under our law, it is clear that the State need not prove that the accused physically possessed the contraband in order to sustain a conviction for possession of a controlled substance if the location of the contraband was such that it could be said to be under the dominion and control of the accused, that is, constructively possessed.

Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707, 708 (1997) (citing Heard, 316 Ark. 731, 876 S.W.2d 231; Crossley v. State, 304-Ark. 378, 802 S.W.2d 459 (1991)). Moreover, constructive possession may be implied when the contraband is in the joint control of the accused and another; however, joint occupancy, alone, is insufficient to establish possession or joint possession. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). The State must establish that (1) the accused exercised care, control, and management over the contraband, and (2) the accused knew the matter possessed was contraband. Id.; Darrough, 330 Ark. 808, 957 S.W.2d 707.

The evidence presented during Appellant’s trial established that he possessed methamphetamine. Bombino testified that when she arrived home on the evening of December 11, approximately four hours before the search warrant was executed, she found Appellant asleep on the floor in the “glass room,” a room that had french doors leading to it. She stated that there was some money, approximately two hundred dollars, spread out on Appellant’s chest and on the floor around him. She also observed a small bag of crystal methamphetamine near Appellant. She stated that Appellant had his nine-millimeter gun, either laying on his chest or in his hand. She tried to awaken him, but could not. At that point, she took the bag of methamphetamine and put it in a drawer in the kitchen. She also gathered up the money and put it on top of the kitchen counter, near the drawer where she put the drugs.

Detective Roberts corroborated Bombino’s testimony that the money was found on the kitchen counter and that the bag of drugs was found nearby in a kitchen cabinet. The chemist testified that the bag of suspected drugs contained 1.698 grams of methamphetamine and either ephedrine or pseudoephedrine. He further testified that when separated, the substance was 73.5 percent or 1.25 grams of methamphetamine hydrochloride.

The foregoing testimony demonstrates substantial evidence to support the jury’s conclusion that Appellant possessed a controlled substance. The drugs were observed in an area near where Appellant had fallen asleep and where he undeniably could have exercised care, control, and management of the controlled substance. Moreover, there was sufficient evidence to show that Appellant had knowledge that the substance was contraband. Appellant himself testified that he had seen crystal methamphetamine manufactured before. Additionally, as set out above, Appellant made incriminating statements in his letter to Bombino.

Furthermore, there is substantial evidence that he possessed the drugs with intent to deliver them. Arkansas Code Annotated § 5-64-401 (d) (Repl. 1997) creates a rebuttable presumption that possession of more than two hundred milligrams of methamphetamine demonstrates an intent to deliver. See Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998). Here, the bag contained 1.25 grams of methamphetamine, or roughly six times the statutory presumption. Appellant presented no evidence to rebut the presumption. The presumption amounts to substantial evidence of intent to dehver. Id.; Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996); Owens, 325 Ark. 110, 926 S.W.2d 650. Likewise, evidence of Appellant’s possession of a firearm is relevant to prove intent to dehver. See Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994) .

There is also substantial evidence that Appellant simultaneously possessed drugs and a firearm. Arkansas Code Annotated § 5-74-106 (Repl. 1997) provides that no person shah unlawfully commit a felony violation of section 5-64-401 whEe in possession of a firearm. We have already established that there was sufficient evidence to convict Appellant of possessing methamphetamine with intent to deliver and manufacturing methamphetamine, in violation of section 5-64-401. To convict of the separate offense found in section 5-74-106, the State must prove two elements: (1) the defendant possessed a firearm, and (2) a connection existed between the firearm and the controlled substance. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000) (citing Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998); Manning v. State, 330 Ark. 699, 956 S.W.2d 184 (1997); Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995) ).

Bombino testified that she observed Appellant asleep on the floor with his gun either laying on his chest or in his hand. She described the gun as having a laser sight on it. She also observed the bag of drugs near him. Bombino testified that the gun belonged to Appellant and that she had seen it laying around the house on more than one occasion. In fact, she stated: “He just always had it.” Detective Roberts testified that he found the gun, with the magazine still in it, laying on the floor in the “glass room,” where Appellant had fallen asleep. Roberts confirmed that the gun had a laser sight. Roberts further described the general connection between firearms and drugs, testifying that of the fifty methamphetamine labs he had seen in the last three years, he could not recall one in which a firearm was not found. He further stated that the majority of these weapons are armed with laser sights. This testimony amounts to substantial evidence that Appellant possessed a firearm and that a connection existed between the drugs and the firearm. Moreover, because Appellant does not contest the fact that he was a convicted felon at the time, we conclude that there was substantial evidence to support his conviction for being a felon in possession of a firearm.

Lastly, there was substantial evidence that Appellant was in possession of drug paraphernalia. Arkansas Code Annotated § 5-64-101 (v) (Repl. 1997) provides:

The term “drug paraphernalia” means all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of subchapters 1-6 of this chapter (meaning the Controlled Substances Act of this state).

Specifically included within the definition of “drug paraphernalia” are scales and balances designed for weighing controlled substances; spoons and other containers used in compounding controlled substances; containers used to store controlled substances; hypodermic syringes used to inject controlled substances; and objects, such as bongs, used for ingesting or inhaling marijuana.

Here, the evidence clearly established the existence of numerous items of drug paraphernalia inside the residence and in the back of Appellant’s truck. Inside the residence, officers found numerous syringes; spoons with methamphetamine residue; Mason jars used to soak the ephedrine pills; small plastic Ziplock bags; electronic scales; and a bong used to smoke marijuana. In the back of Appellant’s truck, officers found four syringes and an empty box for the syringes. We thus affirm the trial court’s denial of Appellant’s motion for directed verdict.

III. Rule 4-3(h)

Because Stanton received a sentence of life imprisonment, the record in this case has been reviewed pursuant to Ark. Sup. Ct. R. 4-3 (h) for adverse rulings objected to by Appellant but not argued on appeal. No such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


source: Caselaw Access Project

author: JIM HANNAH, Justice. GLAZE, J.

license: Public Domain

text:
    Jason McGEHEE v. STATE of Arkansas
    CR 00-760
    43 S.W.3d 125
    Supreme Court of Arkansas
    Opinion delivered May 3, 2001
    [Petition for rehearing denied June 7, 2001.]

      Sam T. Heuer, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Justice.

Jason McGehee appeals the denial of his petition for postconviction relief under Ark. R. Crim. P. 37. A Baxter County jury convicted McGehee of the capital murder and kidnapping of fifteen-year-old John Melbourne, Jr. McGehee was sentenced to death by lethal injection on the capital murder charge and fife imprisonment on the kidnapping charge. The convictions and sentences were affirmed by this court in McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). McGehee subsequently filed a petition for postconviction relief under Ark. R. Crim. P. 37. The trial court denied the petition, and this appeal followed.

McGehee asserts five separate errors by counsel that he alleges constitute ineffective assistance of counsel requiring relief under Rule 37. Our jurisdiction is pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure and Arkansas Supreme Court Rule 1-2(a)(8). McGehee’s conviction and sentence of death were affirmed by a decision of this court on June 17, 1999. Therefore, pursuant to Ark. R. Crim. P. 37.5(k), Rule 37.5 is applicable to McGehee because he became eligible to file a petition under Rule 37.2(c) after March 31, 1997.

Upon review of the trial court’s order on the Rule 37 petition, we find the trial court failed to make specific written findings of fact and conclusions of law as required under Rule 37.5. Accordingly, we reverse and remand with direction that the trial court proceed consistent with this court’s opinion in Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001). This order is to be completed and the record is to be lodged with this court within ninety days of the date the mandate is issued. The clerk is directed to establish a new briefing schedule.

Additionally, the abstract provided in this case is flagrantly deficient. It fails to comply with Ark. Sup. Ct. R. 4-2(a)(6) in that it does not contain an impartial condensation of material parts of the record necessary to an understanding of all questions presented to the court for decision. We find that affirmance based upon a flagrantly deficient abstract would be unduly harsh in this case, and therefore permit appellant’s attorney to revise and provide a brief in compliance with Ark. Sup. Ct. R. 4-2 (a) (6). See Ark. Sup. Ct. R. 4-2(b)(3). Appellant’s attorney is to bear the expense.

Rule 37.5

As this court discussed in Echols, supra, Rule 37.5 requires a heightened standard of review in death cases. Echols, 344 Ark. at 519 (citing Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001)). Death-penalty cases are different from other criminal cases, due to the obvious finality of the punishment. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); American Civil Liberties Union v. State, 339 Ark. 314, 5 S.W.3d 418 (1999); Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), modified on other grounds, State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). As this court noted in Echols and Wooten v. State, 338 Ark. 691, 1 S.W.3d 8 (1999), Rule 37.5 reinforces the responsibility of the trial court to make specific findings of fact and conclusions of law on each issue raised in the petition. Because McGehee has been sentenced to death, we remand this case to the trial court for entry of a written order in compliance with Rule 37.5(i) and this court’s holding in Echols and Wooten. Only issues raised by McGehee on appeal of the denial of the Rule 37 petition need be addressed by the trial court. No new issues may be raised by McGehee. To avoid lengthy delay, the order is to be completed and the record is to be filed with this court within ninety days of the date the mandate is issued.

Deficient Abstract

Our rule in Ark. Sup. Ct. R. 4-2 outlines the requirements for abstracting on appeal, and the burden is clearly placed on the appealing party to provide both a record and abstract sufficient to demonstrate error for appellate review. Greene v. Pack, 343 Ark. 97, 32 S.W.3d 482 (2000); Oliver v. Washington County, 328 Ark. 61, 940 S.W.2d 884 (1997). We have often written that the record on appeal is limited to that which is abstracted, and we will not examine the transcript of a trial to reverse a trial court, although we will do so to affirm. Id.

In the case before us, it is readily apparent from a review of the abstract that all of the documents and records in the transcript that are necessary for an understanding of the questions presented in this appeal are not abstracted. One of McGehee’s primary arguments on his Rule 37 appeal is that Candace Campbell and Robert Diemert were accomplices and that the failure of counsel to seek such a finding entities him to relief. However, it is apparent that the testimony of several witnesses relevant to this issue, as weE as the issue of corroboration of their testimony in the event they were found to be accomplices, was not abstracted at all, including that of Charles McMahan, Dr. Charles Kokes, Anthony Page, and, to an extent, testimony of police officers. Additionally in this regard, the testimony of Charla Bright was only partially abstracted and did not include portions relevant to the issue of corroboration. Other testimony and evidence may also be relevant. The appeEant bears the burden of providing a sufficient abstract. While abstracting of evidence relevant to corroboration may not be perceived by McGehee to be in his best interest, Ark. Sup. Ct. R. 4-2(a)(6) requires an impartial condensation of records in the abstract. Also, failure to so comply exposes McGehee to affirmance based upon a flagrantly deficient abstract. Ark. Sup. Ct. R. 4-2 (b)(3). See also, Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Affirmance based upon a flagrantly deficient abstract would be too harsh in this case. Therefore, as authorized by this same rule, McGehee is granted permission to revise his abstract and brief at his own expense.

Reversed and remanded.

GLAZE, J.

dissents for reasons set out in the dissenting opinion in Echols v. State, 344 Ark. 513, 42 S.W.3d 467 (2001).


author: PER CURIAM.

text:
    Kenneth Scott ANDREWS v. STATE of Arkansas
    CR 99-689
    42 S.W.3d 484
    Supreme Court of Arkansas
    Opinion delivered May 3, 2001

      John W. Rife, for appellant.

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for appellee.
   PER CURIAM.

The appellant, Kenneth Scott Andrews, was convicted by a jury of first-degree murder and was sentenced to forty years in the Arkansas Department of Correction. We affirmed appellant’s conviction and sentence in Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). Appellant then appealed from an order denying his request for postconviction relief. We reversed and remanded the case to the Circuit Court so written findings of fact and conclusions of law could be entered. The trial court complied with our request, and the case is back before us on review.

Appellant was convicted in 1990. At that time, Arkansas Criminal Procedure Rule 37 had been abolished and replaced with Rule 36.4. Under Rule 36.4, a criminal defendant who wished to raise a claim of ineffective assistance of counsel had to do so in a motion for a new trial within thirty days of the date of the judgment. Appellant did not file such a motion, but sought habeas corpus relief pursuant to 28 U.S.C. § 2254 in federal court. The federal district court issued a conditional writ of habeas corpus that provided that a writ would issue within 120 days unless appellant was permitted to proceed under Rule 36.4 in state court. Pursuant to the order of the federal court, appellant filed a motion for a new trial in which he alleged that he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. The trial court denied appellant’s petition.

For his first point on appeal, appellant argues that counsel was ineffective for failing to preserve the sufficiency of the evidence for appellate review. We disagree.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel’s representation fell below an objective standard of reasonableness and that counsel’s deficient performance prejudiced his defense. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct from counsel’s perspective at the time. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls wdthin the wide range of reasonable professional assistance. Id.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Id. 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. Id. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id.; Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Strickland, 466 U.S. 668; Thomas, 322 Ark. 670, 911 S.W.2d 259.

Ineffective assistance of counsel cannot be established merely by showing that an error was made by counsel or by revealing that a failure to object prevented an issue from being addressed on appeal. Huls, 301 Ark. 572, 785 S.W.2d 467. In Huls, this court found that even if a timely objection at trial could have prevented the jury from hearing a witness’s testimony, the testimony, when 'taken with the entire evidence presented at trial, did not lead to a conclusion that there was a reasonable probability that the jury would have acquitted petitioner if the witness had not testified. In making a determination on a claim of counsel’s ineffectiveness, we must consider the totality of the evidence presented to the judge or jury. Id.

The record reveals that Danny Jordan, an accomplice to the murder, testified in great detail about the crime and the participation of appellant and appellant’s father, Joe Kenneth Andrews (Joe). Jordan told of helping move a safe from a jewelry store to the home of the victim, James Robinson. He told Joe about the safe, and Joe expressed interest in stealing it. At one meeting where Joe, Jordan, and appellant were present, appellant announced that he would get the safe even if the others would not do it. On February 19, 1990, the three went to Dardanelle State Park in Joe’s father’s green and white pickup truck to observe Robinson’s house. Jordan said they stayed there all afternoon and planned to steal the safe, which they would then bury in the Andrews’ yard.

Jordan testified further that on the afternoon of February 20, he was at home visiting with his mother when Joe and appellant arrived in the green and white truck. When Jordan’s mother left, at about 4:00 p.m., the three men drove to the park in the truck and watched Robinson’s home. Around 5:30 p.m., a person hired by Mr. Robinson to work around the house left. At that point, Joe, Jordan, and appellant decided to approach the victim’s residence. Joe gave Jordan and appellant each a pair of white gloves to wear while taking the safe. They then drove to Robinson’s home. Jordan stayed in the driveway with the truck while Joe and appellant went into a carport. Jordan then heard choking sounds. At that point, appellant waved to Jordan to come to the carport where Jordan saw Robinson lying atop an air conditioner.

Jordan said that when he and appellant attempted to enter a shop area to get the safe, they tripped a burglar alarm. As Jordan and appellant were running back to the truck, Jordan looked back and saw Joe with his hand on Robinson’s chest, but he did not see a knife. Joe, who had blood on his hands, got in the truck and told Jordan and appellant that he had choked Robinson with a rope and stabbed him two or three times. They then drove to Delaware Park. Joe had the victim’s wallet from which he gave Jordan $100.00, appellant $95.00, and he kept $95.00 for himself.

Appellant contends that there was not sufficient corroborating evidence to support this accomplice testimony, and thus, counsel was ineffective for fading to preserve the issue. Arkansas law requires that the corroborative evidence tend to connect the defendant with the commission of the crime. Ark. Code Ann. § 16-89-111 (1987). Corroboration is not sufficient, if it merely shows that the crime was committed and the circumstances of the crime. Id. We have held that the “corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it.” Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence that is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. However, corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982). The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in a crime in a manner suggestive of joint participation, are relevant factors in determining the connection of an accomplice with the crime. Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). When two or more persons assist each other in the commission of a crime, each is an accomplice and criminally liable, ultimately, for his own conduct, but he cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole. Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).

In reviewing this issue, we eliminate the testimony given by Jordan, and we examine whether what remains of the State’s evidence independently establishes the crime and tends to connect appellant with its commission.

Danny Jordan’s mother, Wilma Jordan, testified that Danny Jordan and Joe Andrews were good friends. She was at Danny Jordan’s home on the afternoon of February 20, when Joe and Scott Andrews pulled up in a green pickup truck. She left them there together at around 3:45 or 4:00 that afternoon.

James Warren testified that, on February 20, at 5:30 p.m., he saw three men in the park where he was jogging. The three were looking south toward Robinson’s home. He also saw a green pickup truck near the men.

Sandra Rackley testified she saw her brother, Danny Jordan, and Joe Andrews together at 8:00 p.m. on February 20.

Carrie Payton testified that Scott Andrews came to the Gum Log area, on February 20, between 5:30 and 6:00 p.m., where her mother’s and her grandmother’s homes were. On cross-examination, she stated it could have been 6:30 or 7:00 p.m. as she had said in an earlier statement to the police. She testified Scott told her he had almost $100.00. He offered to give her $5.00, and the following day he brought her a bottle of champagne, a dozen roses in separate vases, and a stuffed animal.

Carrie Payton’s mother testified that, in addition to the items Carrie mentioned, Scott brought Carrie a small “promise ring” with a diamond in it.

Jean Andrews, wife of Joe, testified that appellant was unemployed and had been since November. Another witness testified that appellant had done odd jobs for her but that she had paid him no more than $50.00 the week prior to February 20.

Police officers testified that they arrested Scott on suspicion of having killed Robinson. When arrested, appellant was at an outdoor “beer party” where people under age were drinking. When the officers began looking through the crowd for appellant, he attempted to move toward the edge of the group, and when they approached him, he began to run but was tackled after taking about six strides. He was given a Miranda warning, told of the charges against him and placed in the officers’ car. One officer asked the other if Carrie Payton was at the party, and appellant volunteered a statement that she was not involved in “this mess” and there was no reason for her to be.

Officers found a hole that had been recently dug in the backyard of the Andrew’s residence. Also, officers recovered the victim’s wallet in Paris where Jordan said that they had left it.

Here, the only issue raised by appellant with regard to corroboration focuses on appellant’s connection with the murder of Mr. Robinson. When viewing the evidence submitted and excluding Jordan’s testimony, the evidence tends to connect appellant with the murder of Mr. Robinson. Witnesses placed appellant with Jordan and Joe hours before the murder. Ms. Wilma Jordan also established that appellant and Joe were in a green pickup truck the day of the murder when they came to Jordan’s residence. Mr. Warren viewed three men standing next to a green pickup truck at Dardanelle State Park, looking in the direction of the victim’s home on the day of the murder. Appellant was also seen with Jordan and Joe at 8:00 p.m. that same evening. Carrie Payton established that appellant had $100.00 in cash the night of the crime, whereas, other evidence revealed that appellant had been unemployed for several months. Finally, appellant made a statement to police after he had been arrested and advised of the charges against him that Carrie Payton was not involved in “this mess”. The officers also observed a recently dug hole in the backyard of the Andrew’s-residence and the victim’s wallet was recovered in Paris.

The Rule 37 trial court found that there was ample corroborative evidence tending to connect appellant with the commission of the crime and that there was not a reasonable probability that, but for counsel’s error, the result would have been different. The court concluded that appellant had failed to demonstrate any prejudice resulting from the alleged deficiency of his trial counsel. Under our standard of review and the evidence before us, we cannot say that the trial court’s decision is clearly erroneous.

For his second point on appeal, appellant argues that counsel was ineffective for failing to object to extrajudicial statements by a nontestifying co-defendant that implicated appellant. Appellant cites to Bruton v. United States, 391 U.S. 123 (1969), in support of his argument.

Prior to appellant’s trial, counsel filed a motion requesting that appellant’s trial be severed from his father’s trial. A hearing was held, and the court denied the request after it was determined that a conspiracy did not exist between appellant and his father, Joe, and that there was not a Bruton issue involved. At that time, it was agreed that the only incriminating statements that were involved would come from Jordan and not Joe, appellant’s co-defendant. However, during Jordan’s direct examination at appellant’s trial, Jordan testified that Joe told him that appellant had dug a hole on the Andrews’ property to be used as a “grave” for the safe they were going to steal from Mr. Robinson. Jordan also testified that while he was visiting Joe at the Andrews’ property the morning of the murder, Joe said that “Scottie was out digging the grave.” Finally, Jordan testified that on the night of February 20, after the murder, Joe said that “Scottie told me to cut his throat, but I didn’t do it, I swear I didn’t do it.” On cross-examination, Jordan said that Joe told him that “Scottie told me to cut his throat.” Counsel never objected to any of the above statements.

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment is denied by the admission of incriminating statements made by a co-defendant. Assuming that the above statements admitted through Jordan fall within the category of statements covered by Bruton, counsel’s failure to object would have denied appellant effective assistance of counsel. However, at the Rule 37 hearing, trial counsel testified with regard to this issue:

A. Now, the reason, you say, why wasn’t a mistrial made or something like that. It’s — you will remember that Scottie and I were trying to do two things. We were really trying to do one thing. We were trying to remove us from Delaware, the murder scene, and put us over where Carrie was, okay? To do that I needed to attack Jordan. And he gave me — when he said that, he gave me a piece of ammunition that I could use in cross-examination. If you can read the cross-examination you can see that it cast great doubt on anything Jordan says as it relates to Scottie because I had an inconsistency. Now, do you as a Defense counsel want an inconsistent statement, or do you want a continuance?
Q. I have — I —
A. You know I wanted an inconsistent statement and I had it.
...
Q. So, the only way to cross that — examine that is to put either of the two Defendants on the stand.
A. No. You use his [Jordan] own statement. Because, see, he had made a statement to Short. And Short had come in and narrowed it — cross-examination is in the record. You’ll see that Short had asked him a specific question about that. And the guy had answered conclusively and completely, “No, nothing else was said.” And you got that and the guy on the stand, and you’re feeling good now.

Trial counsel’s explanation of the tactical reason why he did not move for a mistrial or raise a Bruton issue at that point in the trial was not outside the range of professionally competent assistance.

Despite our finding that counsel was not ineffective for his tactical decision, appellant’s challenge would still fail because he has not satisfied the second prong of Strickland, that is, but for trial counsel’s deficient performance, the likely outcome of the trial would have been different.

In reviewing the evidence under the second prong of Strickland, we note that the Supreme Court has explained that a violation of the Bruton rule may be harmless error if there is overwhelming evidence of the defendant’s guilt. See Harrington v. California, 395 U.S. 250, 253, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (explaining that the case against the defendant “was so overwhelming that we conclude this violation of Bruton was harmless beyond a reasonable doubt”). “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court set forth the factors for determining whether a violation of the Confrontation Clause was harmless error. See id. at 684, 106 S.Ct. 1431. The Court explained as follows:

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Cf. Harrington, 395 U.S., at 254; Schneble v. Florida, 405 U.S., at 432.

As noted in our disposition of appellant’s first issue in this appeal, there was ample evidence to corroborate Jordan’s testimony supporting appellant’s conviction. Excluding those statements at issue here, the evidence indicates that appellant was with Jordan and Joe hours before the murder, appellant was at the victim’s home at the time of the murder, Joe Andrews choked and stabbed the victim, Joe stole the victim’s wallet and distributed $95.00 to appellant, appellant was seen with approximately $100.00 in his possession immediately after the murder, appellant tried to flee when the police approached him at a party, and after he was placed under arrest, appellant stated that Carrie Payton was not involved in “this mess.” Because the evidence against appellant in this case was so strong, counsel’s failure to object to the statements was harmless. Thus, the likely outcome of the trial would not have been different, and the trial court’s finding that appellant had failed to demonstrate prejudice from his attorney’s alleged deficiency is affirmed.

For his last assignment of error, appellant argues that he should be given a new trial because the State had exculpatory evidence that would have exonerated appellant. The State responds that this issue is not cognizable under Rule 36.4. Even if the State’s position may have validity, we find that appellant’s point is without merit.

Appellant contends that Margie Jones had exculpatory testimony that appellant was not one of the two men she observed parked looking in the direction of the victim’s home on the day of the murder. He argues that the police, specifically Dan Short, were aware of this information and did not provide it to defense counsel.

At the Rule 37 hearing, appellant called Ms. Jones to the stand where she testified that a friend of appellant’s had contacted her approximately four years after appellant’s trial because this friend had heard that Ms. Jones may have seen something the day of the murder. She told this person that a police officer came to her home in 1990 to ask her some questions, and she told the officer what she had seen regarding the two men in a green truck. During her Rule 37 testimony, Ms. Jones admitted that she could not recall the officers name, and she could not be positive if Dan Short was the officer. In fact, the record indicates that Ms. Jones was not positive if a police officer was the one who came to her home in 1990:

No, it was a friend of Scott’s that called me at first, somebody that was trying — or maybe he was a police. I don’t really know. I didn’t ask him. He asked me if he could talk to me about it, that’s all, what I saw. And he come to the house and he .come in. Now, this is seven years ago and I’ve lost two kids since then of my own.
* * *
So, my memory is not real good on what his name was because I didn’t think it was significant at the time, really.

The Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Id. In Strickler v. Greene, 527 U.S. 263, 119 S. Ct. 1936, 144 L. Ed. 2d 286, (1999) the Court revisited Brady and explained its implications. It noted:

We have since [the decision in Brady] held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. “Moreover, the rule encompasses evidence” known only to police investigators and not to the prosecutor.” In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.”

Strickler, supra, (internal citations omitted). The Court, in Strickler, also outlined the three elements of a true Brady violation. These components include:

(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

Strickler, supra.

Applying this analysis to the case before us, we hold that the trial court correcdy determined that there was no showing of prosecutorial misconduct or that the outcome of the trial would have been different had the testimony been presented. Officer Dan Short testified at the Rule 37 hearing that he did not recall speaking with Ms. Jones and that there were no notes or papers in the police file indicating that he had spoken to Ms. Jones in 1990. After reviewing this record, there is no credible evidence that the state suppressed Ms. Jones’s alleged statements in 1990. In fact, there is no credible evidence that the state was ever aware or in possession of such evidence. Thus, we cannot say that the Rule 37 trial court's decision that there was no showing of prosecutorial misconduct and that the outcome of the trial would not have been affected by the Ms. Jones’s testimony is clearly erroneous.

Affirmed.


text:
    Isaac COLBERT v. STATE of Arkansas
    CR 01-420
    42 S.W.3d 494
    Supreme Court of Arkansas
    Opinion delivered May 3, 2001

      David Mark Gunter, for appellant.
    No response.
   PER CURIAM.

David Mark Gunter, a state-salaried, part-time public defender, was appointed by the trial court to represent appellant Isaac Colbert, an indigent defendant, in this criminal case. Colbert was convicted of simultaneous possession of drugs and firearms and sentenced to fife imprisonment in the Arkansas Department of Correction. Mr. Gunter timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.

Mr. Gunter now asks this court to relieve him as appellant’s counsel and to appoint new counsel. As a state-salaried, part-time public defender, Mr. Gunter is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our holding in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark.61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). Accordingly, we grant Mr. Gunter’s motion to be relieved for good cause shown. Mr. Charles Kester will be substituted as appellant’s attorney in this matter.


text:
    Michael D. HATFIELD v. STATE of Arkansas
    CR 01-285
    42 S.W.3d 494
    Supreme Court of Arkansas'
    Opinion delivered May 3, 2001

      David Wisdom Harrod, for appellant.
    No response.
   PER CURIAM.

Dave Wisdom Harrod, as a state-salaried, part-time public defender, was appointed by the trial court to represent appellant Michael D. Hatfield, an indigent defendant, in this criminal case. Hatfield was convicted and sentenced to life imprisonment in the Arkansas Department of Correction. Mr. Harrod timely filed a notice of appeal from the judgment of conviction and lodged the appellate record with the Supreme Court Clerk.

Mr. Harrod now asks this court to relieve him as appellant’s counsel and to appoint new counsel. Mr. Harrod has resigned his position as public defender and because of heath problems is unable to represent Mr. Hatfield on his appeal. Accordingly, we grant Mr. Harrod’s motion to be relieved for good cause shown. Mr. Mark Henry will be substituted as appellant’s attorney in this matter.


text:
    Carol ROSS v. STATE of Arkansas; Mark Singson v. State of Arkansas; Gil Landers d/b/a Big Daddy’s Pawn Shop, Linda Stewart v. Ken James; Quinton Lee Handy v. State of Arkansas; Deborah Rouse v. State of Arkansas; Alexander Davison v. State of Arkansas; Alexander Davison v. State of Arkansas
    CR 01-177; CR 01-268; CR 01-269; CR 00-1445; CR 01-336; CR 01-348; CR 01-342
    42 S.W.3d 483
    Supreme Court of Arkansas
    Opinion delivered May 3, 2001
    [Amended and Substituted Order to Appear and Show Cause delivered May 17, 2001]

      Jeff Rosenzweig, for appellant Carol Ross.

      Julia B. Jackson, Public Defender Conflicts, for appellant Mark Singson.

      Josh E. McHughes, for appellant Gil Landers et al.

      William R. Simpson, Jr., Public Defender, by: Deborah Sailings, Deputy Public Defender, for appellants Quinton Lee Handy, Deborah Rouse, and Alexander Davison.
    No response.
   PER CURIAM.

On February 8, 2001, appellant Carol Ross filed a petition for writ of certiorari to complete the record in the matter of Carol Ross v. State, CR01-177. The writ was granted on February 22, 2001, and issued to the Clerk and Court Reporter of the Perry County Circuit Court, returnable on March 1, 2001. A final extension of time to return the writ was granted on March 15, 2001, setting a return date of April 1, 2001. In the interim, petitions for writ of certiorari to complete the record were filed in several cases arising out of the Pulaski County Circuit Court, Fifth Division, wherein the same Court Reporter, Madelaine McClure, faded to timely complete the record for appeal. The writs were granted and issued to the Pulaski County Circuit Clerk and to Ms. McClure. In the case of Mark Singson v. State, CR98-3751, a final extension of time to return the writ was ultimately granted until April 21, 2001. Similarly, final extensions were granted in the cases of Gil Landers, et al v. Jameson, 01-269, and Quinton Lee Handy v. State, CR00-1445, setting the date of return as April 28, 2001, and in the cases of Deborah Rouse v. State, CR01-336, and Alexander Davison v. State, CR 01-342 and CR01-348, setting the date of return as May 5, 2001. Ms. McClure was served with notice of each deadline and advised that failure to comply with the writ could result in an order to show cause why she should not be held in contempt for fading to comply with the court’s previous orders. As of this date, Ms. McClure has failed to comply with the orders of this court in the above-referenced matters, and the appellants have filed motions for appropriate action by this court or for belated return of writ of certiorari.

Therefore, Ms. McClure is ordered to appear before this court on the 24th day of May, 2001, at 9:00 a.m., to show cause why she should not be held in contempt of this court for her failure to comply in a timely manner with the commands of the writs issued in the above-styled actions.

In addition, the Pulaski County Circuit Court, Fifth Division, is ordered forthwith to take whatever actions are necessary to secure the prompt certification of a full and complete transcription of the record for appeal in each of the above-styled actions. Ark. R. App. P. 6(d) and (e) (2000); In re: Retention Schedule for Official Court Reporter Records Retention Schedule, 322 Ark. 827, 926 S.W.2d 689 (1995) (Part 3. Responsibility for Storage: Sanctions); Jacobs v. State, 325 Ark. 30, 922 S.W.2d 344 (1996); Moore v. State, 290 Ark. 71, 716 S.W.2d 764 (1986).

MS. MCCLURE IS FURTHER NOTIFIED THAT HER FAILURE TO APPEAR ON MAY 24th, 2001, COULD RESULT IN THE ISSUANCE OF A BENCH WARRANT FOR HER ARREST WITH DIRECTIONS TO THE APPROPRIATE LAW ENFORCEMENT AUTHORITY TO ARRANGE FOR HER DELIVERY TO THIS COURT SO A SHOW-CAUSE HEARING CAN BE CONDUCTED AT THE EARLIEST POSSIBLE DATE.

       It should be noted that the Supreme Court Clerk has received verification in the form of return receipt cards signed by Ms. McClure that she has received notice of all orders granting final extensions of time to comply with the writs listed herein.


text:
    WESTERN CARROLL COUNTY AMBULANCE DISTRICT (aka WCCAD); Bayard Biossat, Jack Faulkner, and William W. Woodward, in Their Official Capacities as Commissioners of WCCAD; City of Eureka Springs, Arkansas; Carroll County, Arkansas; Carolyn Williams, Phillip Jackson, Kay Phillips, Cindy Vowell, and Shirley Doss, In Their Official Capacities as Assessor, County Judge, Collector, Treasurer, and Clerk for Carroll County, Arkansas v. C. Rodney JOHNSON, Leonard R. Fowler, and Marvin D. Hoffman
    00-1271
    42 S.W.3d 495
    Supreme Court of Arkansas
    Opinion delivered May 8, 2001

      John Casteel, Prosecuting Att’y, for appellants.

      Oscar Stilley, for appellees.
   PER CURIAM.

On February 8, 2001, appellants timely filed their brief in this matter. Under Ark. Sup. Ct. R. 4-4(b), appellee had thirty days from February 8, 2001, to file his brief with this court. According to counsel for appellee, he attempted to mail his brief on March 5, 2001, but the brief was sent to a mail recovery center in Atlanta, Georgia. Once the mistake was discovered, he filed a motion for belated brief on May 2, 2001, and he also tendered appellee’s brief on that date. In his motion, counsel for appellee states that appellants’ counsel, Mr. John Casteel, acknowledged timely receipt of appellee’s brief and authorized appellee’s attorney to state that Mr. Casteel has no opposition to the court allowing the belated filing of the brief.

Unlike the requirement for timely filing a record, as discussed in Ortho-Neuro Medical Assoc. v. Jeffery, 343 Ark. 466, 37 S.W.3d 577 (2001), the court has discretion to consider the belated filing of a brief tendered late. We note that the motion was filed before the case was taken under submission by this court, and that opposing counsel does not object to the belated filing.

Arkansas Supreme Court Rule 4-4(b) clearly states that appellee’s brief is due thirty days after the filing of appellant’s brief. Counsel made no inquiries concerning this case from the time his brief was due until the motion for a belated submission of the brief was tendered on May 2, 2001. Therefore, a copy of this per curiam will be forwarded to the Committee on Professional Conduct. See Board of Trustees v. Stodola, 326 Ark. 581, 931 S.W.2d 443 (1996).

Motion granted.