author: David Newbern, Justice.

text:
    Stephanie Kay WOFFORD v. STATE of Arkansas
    CR 97-38
    952 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Walker, Shock & Harp, PLLC, by: J. Randolph Shock, for appellant.

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

Stephanie Kay Wofford pleaded nolo contendere to first-degree murder in connection with the death of her five-year-old son Mark. She was convicted pursuant to her plea and sentenced to life imprisonment. In accordance with Ark. R. Crim. P. 24.3(b), Ms. Wofford’s plea was conditional; thus she reserved the right to appeal from the Trial Court’s denial of her motion to suppress evidence. The evidence in question included statements that were either given while she was not in custody or were preceded by an adequate Miranda warning. We hold there was no requirement that the statements be suppressed.

Also in question, however, are items of evidence seized by police officers who entered Ms. Wofford’s home without a warrant sometime after other officers had entered without a warrant but pursuant to circumstances the Trial Court deemed exigent. The question to be answered is whether the officers entering later could properly seize items that could have been seized by the first entering officers because they were inadvertently seen by them in “plain view” while they were there for emergency purposes. As there was no testimony on the point at the suppression hearing, we cannot determine whether the items seized were in plain view of the officers who first entered. We, therefore, must remand the case for the limited purpose of determining the answer to that question. If it is properly determined by the Trial Court that the items seized were seen in plain view by the officers who initially entered Ms. Wofford’s home, the conviction will be affirmed.

Before considering Ms. Wofford’s suppression arguments, we note that she has raised two points of appeal not permitted by Rule 24.3(b) and the conditional plea arrangement. Those arguments concern the Trial Court’s upward departure from the sentencing guideline contained in Ark. Code Ann. §§ 16-90-803 and 16-90-804 (Supp. 1995) and an alleged violation of Ark. Sup. Ct. Admin. Order #6 having to do with cameras in the courtroom. As a general rule, one is not allowed to appeal from a conviction resulting from a plea of guilty or nolo contendere. Ark. R. App. P.—Crim. 1(a). See Payne v. State, 327 Ark. 25, 937 S.W.2d 160 (1997). Rule 24.3(b) presents an exception to the rule but only for the purpose of determining on appeal whether an appellant should be allowed to withdraw her plea if it is concluded that evidence should have been, but was not, suppressed. We, therefore, decline to consider the two points that do not concern suppression of evidence.

1. The search

From the home where she and her son lived, Ms. Wofford telephoned her parents’ home, which was apparently nearby in Ft. Smith. Ms. Wofford’s sister, Amanda Hutchins, learned of the call and believed “something was wrong.” Ms. Hutchins went to Ms. Wofford’s home where she found Ms. Wofford sitting on a couch with blood on her wrists and clothing. Ms. Wofford’s father and brother, along with family friend Henry McMurtery, then arrived. Ms. Hutchins called 911 and reported that Ms. Wofford had tried to kill herself, that there was blood “all over,” and that Ms. Wofford had said her son would not wake up.

Ft. Smith police officers William Ohm and David C. Boyd, Jr., were on patrol on Ms. Wofford’s block. They heard a dispatch and arrived at Ms. Wofford’s house almost immediately. They understood that a child was “down and bleeding,” and they thought it might have been as the result of a traffic accident. Ms. Wofford’s father, sister, and brother were in the yard along with Mr. McMurtery who waived to the police officers to follow him into the house, saying, “They’re in here.” Mr. McMurtery had not only seen Ms. Wofford as previously described but had been to the rear of the house and had found Mark on a bed in Ms. Wofford’s bedroom with his wrists cut and his eyes open and dilated.

The officers entered the house without a warrant shortly after 3 p.m. and spent ten or fifteen seconds checking Ms. Wofford’s vital signs. Officer Boyd, Jr., remained with Ms. Wofford while Officer Ohm followed Mr. McMurtery to the bedroom to examine Mark. By 3:29 p.m., Officer Ohm had determined that Mark was deceased. He returned to the living room and told Officer Boyd, Jr., to secure the area. In the meantime, Officer Boyd, Jr., had attempted to learn what had happened from Ms. Wofford. She appeared to be dazed and said only, “I can’t die. I cannot die,” and she asked, “Why won’t he wake up?” When asked about her cut wrists she replied that she had cut them with a knife that was in “the back room.”

At around 3:40 p.m., Officer Ohm called for a supervising officer, an additional police unit, and an emergency medical services (“EMS”) unit for Ms. Wofford. The EMS unit arrived around 3:50 p.m. As Officers Ohm and Boyd, Jr., were securing the perimeter of the home, they noticed a door leading from the outside into Ms. Wofford’s bedroom. The door appeared to have been kicked in or struck with a sharp object. There were drops of blood and shattered glass. After securing the area, Officer Boyd, Jr., began keeping a detailed log of entries and exits.

At 4:00 p.m. Ms. Wofford left for a hospital emergency room in an ambulance. Officer Chris Boyd, Sr., had arrived at the scene at 4:05 p.m. At 4:41 p.m. Officer Boyd, Sr., left for the hospital where he was later to question Ms. Wofford. On her way to the hospital Ms. Wofford told an emergency medical technician, “He wouldn’t breathe, so, I cut his wrists to match mine.”

At 4:05 and 4:15 p.m., respectively, Officer Risley and Sergeant Lonetree arrived. Officer Risley entered the home at 4:05 p.m. with other officers but withdrew because of a strong odor of gas or petroleum. Sergeant Lonetree had brought a video camera and equipment to be used to gather evidence. He was, however, initially unable to enter the house on account of safety concerns relating to the gas or oil fumes. After the crime scene had been secured, firemen arrived at 4:32 p.m. and left at 5:20 p.m. Personnel from the gas company arrived at 5:07 p.m., turned off the gas, and left at 5:35 p.m. The coroner left with Mark Wofford’s body at 5:38 p.m.

After receiving assurance that it was safe to enter the premises, Sergeant Lonetree and Officer Risley did so without a warrant. As they walked through the rooms of the house, they took photographs and made a videotape. At 6:10 p.m., they seized the first piece of evidence. By 8:55 p.m., they had seized 29 additional items. Sergeant Lonetree testified that the items seized were in plain view.

In denying Ms. Wofford’s motion to suppress the evidence seized from her home, the Trial Court found that the officers’ initial, warrantless entry was justified by “exigent circumstances.” The Trial Court also found the officers had obtained “some form of consent” to enter the home. The Trial Court further indicated that the seizure of evidence was permissible as it was in plain view. Ms. Wofford contends that none of the established exceptions to the Fourth Amendment’s warrant requirement justified the entry into, and search of, her home.

a. Officers Ohm and Boyd, Jr.

Ms. Wofford correctly states in her brief that, as Officers Ohm and Boyd, Jr., entered her residence without a warrant, their entry must be viewed as illegal unless the State established the availability of an exception to the warrant requirement. Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997); Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). Ms. Wofford maintains the State failed to satisfy its burden and that the Trial court erred by finding that the officers had consent to enter her home and that their entry was justified by exigent circumstances. In her view, therefore, the evidence obtained by the police as a result of the officers’ initial entry into her home should be suppressed as the fruits of an entry made in violation of the Fourth Amendment. See Wong Sun v. United States, 371 U.S. 471 (1963).

When we review a ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances, viewing the evidence in the light most favorable to the State. We reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

Applying this standard, we affirm the Trial Court’s ruling that the officers’ initial entry was justified by exigent circumstances. Given the testimony adduced at the suppression hearing, that ruling was correct under Ark. R. Crim. P. 14.3, which establishes the “emergency exception” to the warrant requirement and provides in part as follows:

An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm . . .
may, without a search warrant, enter and search such premises and vehicles, and the persons therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.

The United States Supreme Court has repeatedly recognized the emergency exception in its Fourth Amendment jurisprudence. See, e.g., Thompson v. Louisiana, 469 U.S. 17 (1984); Mincey v. Arizona, 437 U.S. 385 (1978). In the Mincey case, the Court said that it does

not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. Michigan v. Tyler, [436 U.S. 499, 509-10 (1978)]. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. Michigan v. Tyler, supra, at 509-510; Coolidge v. New Hampshire, [403 U.S. 443, 465-66 (1971)].
But a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” Terry v. Ohio, [392 U.S. 1, 25-26 (1968)] ....

Mincey v. Arizona, 437 U.S. at 392-93 (footnotes omitted). See generally 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.6(a), at pp. 390-403 (3d ed. 1996).

It is true that Officer Ohm entered Ms. Wofford’s bedroom in search of Mark Wofford despite Mr. McMurtery’s statement that he believed the child was already dead. This aspect of the search was nonetheless consistent with Rule 14.3(a) because Mr. McMurtery’s assessment of the child’s condition could well have been incorrect. “Frequently, the report of a death proves inaccurate and a spark of life remains, sufficient to respond to emergency police aid.” Patrick v. State, 227 A.2d 486, 489 (Del. 1967). In short, the officer’s entry into the bedroom was clearly related to the objectives of the authorized intrusion into the residence. See generally LaFave, supra, at p. 393-94 and n.19-23.

As the Supreme Court of Wisconsin has noted, the Fourth Amendment’s “reasonableness” requirement is satisfied in the case of an emergency entry into a home “by the compelling need to render immediate assistance to the victim of a crime, or insure the safety of the occupants of a house when the police reasonably believe them to be in distress and in need of protection.” State v. Kraimer, 298 N.W.2d 568, 572 (Wis. 1980). “[T]he purpose of assisting the victim if still alive supplie[s] a compelling reason for immediate entry, quite apart from the purpose of prosecuting for crime.” State v. Hoyt, 128 N.W.2d 645, 651 (Wis. 1964).

Thus, under the emergency exception, a warrantless entry into a home may be upheld if the State shows that the intruding officer had “reasonable cause” to believe that someone inside the home was “in imminent danger of death or serious bodily harm.” Ark. R. Crim. P. 14.3(a). Any search that follows the emergency entry may be upheld under this rule only if the search was “reasonably necessary for the prevention of such death, bodily harm, or destruction,” id., and is “strictly circumscribed by the exigencies” that necessitated the emergency entry in the first place. Mincey v. Arizona, 437 U.S. at 393, quoting Terry v. Ohio, 392 U.S. at 25-26. See People v. Mitchell, 357 N.E.2d 607, 610 (N.Y. 1976)(“There must be a direct relationship between the area to be searched and the emergency.”). However, as the Supreme Court noted in the Mincey case, the police may seize evidence that they observe in plain view while conducting “legitimate emergency activities.” Mincey v. Arizona, 437 U.S. at 393. We applied the exception in Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980).

The record does not indicate that the entry of Officers Ohm and Boyd, Jr., exceeded the scope of the emergency that justified it. Moreover, it is clear that they did not seize any evidence in the home, although they could have done so had they observed the evidence in plain view “during the course of their legitimate emergency activities.” Mincey v. Arizona, 437 U.S. at 392-93.

We note Ms. Wofford’s suggestion that Rule 14.3(a) cannot apply to the case at bar because Officer Ohm and Boyd, Jr., at the time of entering her home, lacked probable cause to believe that a crime had been, or was being, committed. In support of her suggestion, she cites Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). In the Mitchell case, we held the officer’s warrantless entry into the appellant’s home was illegal because the officer lacked probable cause to believe a crime had been, or was being, committed and because there were no exigent circumstances. Thus, the entry was not covered by the exception to the warrant requirement discussed in Payton v. New York, 445 U.S. 573 (1980). We also said that the officer’s entry was not justified by the need to render emergency aid. We did not suggest, however, that the exigent-circumstances exception contained in Rule 14.3(a) requires an officer to have probable cause to believe a crime has been, or is being, committed on the premises. Probable cause is, of course, the basis upon which a warrant to search may be granted. See Ark. R. Crim. P. 13.1(d); Century Theaters, Inc., v. State, 274 Ark. 484, 625 S.W.2d 511 (1981).

Finally, in light of our agreement with the conclusion that Officers Ohm and Boyd, Jr., were justified by exigent circumstances in entering Ms. Wofford’s home, we do not resolve the question of whether the officers had consent to enter the residence. The officers conceded at the hearing that they lacked consent to enter the residence.

b. Sergeant Lonetree and Officer Risley

Our holding that Officers Ohm and Boyd, Jr., legally entered Ms. Wofford’s home does not, by itself, answer the question whether the subsequent warrantless intrusion made by Sergeant Lonetree and Officer Risley comports with the Fourth Amendment’s requirement that searches and seizures be reasonable. As with any warrantless search and seizure, the one with which we are concerned here must be viewed as illegal unless the State has established the availability of a warrant-requirement exception. Williams v. State, supra; Willett v. State, supra.

As mentioned, the Trial Court ruled that the evidence seized by Sergeant Lonetree and Officer Risley was admissible because it was in plain view when the officers observed it. Ms. Wofford maintains that the Trial Court erred in relying on the plain-view exception to the warrant requirement because (1) Sergeant Lone-tree and Officer Risley were not lawfully present in the house when they observed the evidence; and (2) their discovery of the evidence was not inadvertent. Viewing the evidence favorably to the State, we cannot say that the Trial Court’s ruling on the admissibility of the evidence seized by Sergeant Lonetree and Officer Risley is clearly against the preponderance of the evidence, Norman v. State, supra, assuming the items seized had been observed in plain view by Officers Ohm and Boyd, Jr.

Ms. Wofford first contends that the plain-view exception does not apply here because Sergeant Lonetree and Officer Risley were not lawfully present in her home when they observed in plain view the thirty items of evidence that they ultimately seized. According to the decisions of this Court and the Supreme Court of the United States, one of the prerequisites for applying the plain-view exception is that “the initial intrusion that brings the police within plain view of such [evidence] is supported,” if not by a warrant, then “by one of the recognized exceptions to the warrant requirement.” Arizona v. Hicks, 480 U.S. 321, 326 (1987) (citations omitted). See Williams v. State, 327 Ark. at 218, 939 S.W.2d at 267 (stating an element of the plain-view exception is that “the initial intrusion was lawful”); Johnson v. State, 291 Ark. 260, 263, 724 S.W.2d 160, 162, cert. denied, 484 U.S. 830 (1987).

Thus, in order to uphold the officers’ search and seizure of evidence in Ms. Wofford’s home pursuant to the plain-view exception, we must find that the officers’ initial warrantless intrusion into the residence was lawful. Ms. Wofford contends that their initial intrusion was not lawful because it was covered by none of the exceptions to the warrant requirement. Because the evidence was obtained as the result of an illegal entry, argues Ms. Wofford, the evidence should be suppressed as the fruits of an illegal entry and search. See Wong Sun v. United States, supra.

At first glance, Ms. Wofford’s argument appears convincing. There is no question that Sergeant Lonetree and Officer Risley lacked consent to enter and conduct a search of the premises. It also is clear that exigent circumstances were no longer extant when Sergeant Lonetree and Officer Risley entered the home and commenced their search.

The emergency that validated the entry of Officers Ohm and Boyd, Jr., at 3:26 p.m. had ceased shortly thereafter when those officers ascertained the condition of Ms. Wofford and her son and secured the crime scene. By 4:00 p.m., the police had concluded that Mark Wofford was dead, the coroner had arrived, and Ms. Wofford had been taken to the emergency room. The exigent circumstances that justified the first two officers’ entry at 3:26 p.m. simply did not exist when Sergeant Lonetree and Officer Risley entered Ms. Wofford’s residence. Thus, those circumstances alone could not have validated the subsequent entry made by Sergeant Lonetree and Officer Risley. See La Fournier v. State, 280 N.W.2d 746, 749 (Wis. 1979)(stating the emergency exception “may not be relied upon where the entry is secured after the emergency is terminated”)(emphasis added).

Moreover, as the crime scene had been secured, there was no emergency concerning “the risk of removal or destruction of evidence,” Humphrey v. State, 327 Ark. 753, 766, 940 S.W.2d 860, 867 (1997), that might have justified Sergeant Lonetree’s and Officer Risley’s entry. Nor were the officers permitted to enter the home simply because they may have suspected that a murder had occurred there. The Supreme Court of the United States has consistently held that a warrantless search of a home cannot be validated under the emergency exception “simply because a homicide recently occurred there.” Mincey v. Arizona, 437 U.S. at 395. The Court in the Mincey case declined “to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.” Id. at 394. See also Thompson v. Louisiana, 469 U.S. at 21 (stating that, in the Mincey case, the Court “unanimously rejected the contention that one of the exceptions to the Warrant Clause is a ‘murder scene exception’”). We noted the Supreme Court’s rejection of the “murder scene exception” in our opinions in Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988), and Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).

Even if the police collectively had acquired probable cause to arrest Ms. Wofford, probable cause to arrest Ms. Wofford could not have supplied a basis for entering her home without a warrant, at least in the absence of exigent circumstances and Ms. Wofford’s presence in the home. See Payton v. New York, supra. Finally, any emergency arising from the gas or oil fumes could not have justified the officers’ entry given Sergeant Lonetree’s testimony that he and Officer Risley entered the residence after having been assured that the “crisis” was over.

Thus, we cannot say that Sergeant Lonetree’s and Officer Risley’s initial intrusion into Ms. Wofford’s home was lawful because they had consent or because exigent circumstances were prevailing at the time of their initial entry. These exceptions to the warrant requirement simply do not cover their intrusion.

Nonetheless, we conclude that Sergeant Lonetree’s and Officer Risley’s entry into Ms. Wofford’s home was lawful and that their seizure of evidence may have been valid under the plain-view exception. In reaching this conclusion, we rely on the holding in La Fournier v. State, 280 N.W.2d 746, 751 (Wis. 1979), that, where the police enter a private residence in accordance with the emergency exception but are unable to preserve the evidence that they observe in plain view while rendering assistance, a second entry by other officers without a warrant is lawful, even though the emergency has passed, if the search that follows is restricted in nature and scope to securing the evidence observed in plain view by the officers who entered pursuant to the emergency exception.

Other courts have found the rationale of the Wisconsin court persuasive and have relied on it to uphold certain warrantless “second entries” made by the police following the termination of the emergency that justified an initial entry. See, e.g., Hunter v. Commonwealth, 378 S.E.2d 634 (Va.App. 1989); Smith v. State, 419 So.2d 563 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983), overruled on other grounds, Willie v. State, 585 So.2d 660 (Miss. 1991). See also State v. Tidwell, 888 S.W.2d 736 (Mo.App. S.D. 1994); State v. Jolley, 321 S.E.2d 883 (N.C. 1984); State v. Norman, 302 S.2d 254 (Miss. 1974).

The facts in the case at bar are analogous to those in the La Fournier case and the other cases cited above. Officers Ohm and Boyd, Jr., made a valid emergency entry into Ms. Wofford’s home. They secured the crime scene and called for assistance, and Sergeant Lonetree and Officer Risley arrived within a reasonable amount of time to process the crime scene and complete the search begun by Officers Ohm and Boyd, Jr. If Sergeant Lonetree and Officer Risley seized only evidence that was observed by Officers Ohm and Boyd, Jr., in plain view without expanding the scope and nature of the initial entry made by Officers Ohm and Boyd, Jr., then the seizure was proper. The record does not establish that the evidence seized by Sergeant Lonetree and Officer Risley was in fact observed in plain view by Officers Ohm and Boyd, Jr. Thus we must remand for the Trial Court to make that determination. See State v. Spears, 560 So.2d 1145 (Ala. Cr. App. 1989); People v. Reynolds, 672 P.2d 529 (Colo. 1983).

Ms. Wofford next contends that the plain-view exception cannot apply here because Sergeant Lonetree’s and Officer Risley’s discovery of the evidence was not inadvertent. Ms. Wofford points us to Sergeant Lonetree’s testimony that he arrived at the crime scene and entered the house for the very purpose of collecting evidence. Thus, says Ms. Wofford, his discovery of evidence inside the house was intentional rather than inadvertent.

In a different case, Ms. Wofford’s argument might be persuasive. We have said that another of the prerequisites for applying the plain-view exception is that the discovery of the evidence must be inadvertent. See Williams v. State, supra; Johnson v. State, supra. Here, the record clearly supports Ms. Wofford’s contention that Sergeant Lonetree’s and Officer Risley’s discovery of the evidence in question was anything but inadvertent. It is clear to us, however, that the inadvertency requirement applies to the initial officers’ observations and not to those of officers who follow. Again, if the items seized were inadvertently viewed by Officers Ohm and Boyd, Jr., then it does not matter that the later officers entered the house with the purpose of seizing them.

The Supreme Court of the United States has held that “inadvertence” is not a “necessary condition” for application of the plain-view exception in any type of case brought under the Fourth Amendment. Horton v. California, 496 U.S. 128 (1990). Thus, insofar as Ms. Wofford’s “inadvertence” argument concerns the Fourth Amendment, the Horton case supplies a sufficient basis for rejecting the argument. However, Ms. Wofford’s motion to suppress alleged that the seizure of evidence from her home also violated the Arkansas Constitution. We need not decide here whether we will follow the Horton case and dispense with the inadvertence requirement for all cases brought under the Arkansas Constitution. Thus, insofar as Ms. Wofford’s inadvertence argument concerns only the Arkansas Constitution, we reject it because we believe it is unnecessary for an officer who enters a residence for the purpose of continuing another officer’s search and collecting evidence that the other officer observed in plain view to discover the evidence inadvertently.

2. Ms. Wofford’s statements

Ms. Wofford contends her statements should have been suppressed because (1) they were the fruits of the police’s illegal entry into her home; (2) they were not preceded by adequate Miranda warnings; and (3) Ms. Wofford neither voluntarily, nor knowingly and intelligently, waived her constitutional rights before making the statements. Because we cannot say the Trial Court’s ruling on the admissibility of Ms. Wofford’s statements is clearly against the preponderance of the evidence, we affirm the ruling. Norman v. State, supra.

a. Fruit of the poisonous tree

We already have established that the warrantless entry of Officers Ohm and Boyd, Jr., into Ms. Wofford’s home was justified under the emergency exception contained in Ark. R. Crim. P. 14.3(a). Thus, to the extent that Ms. Wofford’s incriminating statements were the result of this entry, they are not inadmissible because the officers’ entry into her home was not unconstitutional. We need not address this point further.

b. Miranda warnings

When Ms. Wofford was taken by ambulance to the hospital emergency room, she was not under arrest. She was neither handcuffed nor told that she was a suspect in the death of her son. She rode in the ambulance unaccompanied by any police officer.

Officer Chitwood followed the ambulance in his patrol unit and arrived at the emergency room behind Ms. Wofford. He had not been instructed to arrest Ms. Wofford. The officer learned from an emergency medical technician that Ms. Wofford had said in the ambulance that she had cut her son’s wrists.

Attendants at the hospital removed Ms. Wofford’s clothes, glasses, and personal effects and changed her into a hospital gown. Although Officer Chitwood did not request them, he received Ms. Wofford’s possessions and placed them in a paper bag next to where he was standing in the treatment room. He later placed the items into the police’s evidence locker.

Officer Boyd, Sr., arrived at the hospital at some point thereafter. He had been asked to go to the hospital and talk with Ms. Wofford. Before he entered Ms. Wofford’s treatment room, Officer Chitwood told him about the statement that Ms. Wofford had made in the ambulance. Nevertheless, Officer Boyd, Sr., testified that, at the time he began to question Ms. Wofford, he did not consider her a suspect in her son’s death. He testified that, in light of the condition of the outside door leading to Ms. Wofford’s bedroom and the area around the door, he had not ruled out the possibility that there had been an intruder. The officer wanted to question Ms. Wofford about who the perpetrator might have been.

Officer Boyd, Sr., confirmed with the attending doctor that Ms. Wofford’s condition would permit a discussion with her. He then entered the treatment room. He was out of uniform, but he was wearing his weapon. Also present in the room were Officers Chitwood, Colter, and Pitts, all of whom were uniformed and wearing their weapons. As Officer Boyd, Sr., entered the room, he heard the nurse ask Ms. Wofford if she was all right and Ms. Wofford respond that she was. The nurse also asked Ms. Wofford if she knew where she was, and Ms. Wofford answered that she was in a hospital. Officer Pitts left the treatment room shortly after Officer Boyd, Sr., arrived there.

Officer Boyd, Sr., began to question Ms. Wofford. He initially asked Ms. Wofford if she was all right and told her that he needed to talk to her about what had happened at her house. Ms. Wofford indicated that would be “okay.” The officer testified that Ms. Wofford did not appear reluctant to speak with him. She answered the questions and provided him with general information about her name, address, date of birth, and the name and age of her son. She told the officer that her son attended kindergarten. Ms. Wofford also told Officer Boyd, Sr., where she worked, how long she had worked there, and that she had worked the day before but was missing a shift on the day in question. Officer Boyd, Sr., then asked Ms. Wofford what had happened to her son. She answered, “I did it. I killed him, that’s why I’m going to prison.” Prior to making this statement, Ms. Wofford had not received Miranda warnings.

Ms. Wofford’s surgeon then entered the treatment room and readied her for surgery. When the surgeon left, Officer Boyd, Sr., resumed his interrogation. He told Ms. Wofford that he needed to discuss what had happened at her house and that he would need to advise her of her rights. He asked Ms. Wofford if she understood that, and she answered that she did. The officer asked Ms. Wofford about her education and verified that she could read and write and that she had a high school diploma. She said she understood what he was saying to her. The officer testified that he then gave Ms. Wofford the following Miranda warnings:

I advised her that she had the right to remain silent. That anything she said can and will be used against her in court. I advised her that she had a right to an attorney present before, during or after questioning, and that if she could not afford one, then the Court would appoint one at no cost to her before any questioning if she wished.

Thereafter, Officer Boyd, Sr., asked Ms. Wofford if she understood the warnings, and she answered affirmatively.

After advising Ms. Wofford of her rights, Officer Boyd, Sr., again asked her what had happened. Ms. Wofford answered that she killed her son and attempted to set fire to the house so that Mark’s father would not get it. She told the officer that she and Mark did not like the fact that Mark’s father had obtained visitation rights. She confessed that she killed her son so that he would not have to see his father. Ms. Wofford explained that she had smothered her son to death by placing her hand over his mouth and nose during the previous night. The surgeons then came to take Ms. Wofford to surgery, and Officer Boyd, Sr., terminated the interrogation without arresting Ms. Wofford.

Ms. Wofford now contends that the Trial Court should have suppressed her initial incriminating statement because it was not preceded by Miranda warnings. Miranda warnings are required only in the context of custodial interrogation. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996); State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). The question here is whether Ms. Wofford was “in custody” at the time she made her initial incriminating statement in response to the officer’s interrogation. We hold that she was not in custody.

A person is “in custody” for purposes of the Miranda case when he or she is

deprived of his freedom of action by formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. In resolving the question of whether a suspect was in custody at a particular time, the only relevant inquiry is how a reasonable man in the suspect’s shoes would have understood his situation.

Solomon v. State, 323 Ark. at 186, 913 S.W.2d at 292 (citation omitted). “The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being interrogated.” State v. Spencer, 319 Ark. at 457, 892 S.W.2d at 486.

A reasonable person in Ms. Wofford’s situation could not have believed that she was restrained by the police prior to the time she made her initial incriminating statement. Ms. Wofford had been taken to the hospital on account of her injuries and was not escorted there by the police. When the police entered her room, they neither arrested her nor indicated in any manner that she was a suspect. Officer Boyd, Sr., specifically testified that he did not view Ms. Wofford as a suspect during this segment of the interrogation and that he suspected that an intruder might have been responsible. Ms. Wofford suggests that the officer did in fact suspect her from the outset of his questioning. We point out that “an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody.” Stansbury v. California, 511 U.S. 318, 319 (1994). See State v. Spencer, supra. Even if Officer Boyd, Sr., did harbor suspicions about Ms. Wofford, nothing in the record suggests such a viewpoint was communicated in any way to Ms. Wofford.

Although three of the officers in the room were in uniform, and although all of the officers wore their weapons, none of them restrained Ms. Wofford or threatened her with the weapons, and only one of them, Officer Boyd, Sr., confronted Ms. Wofford with any questions. The tone of the questions, moreover, does not appear to have been hostile or antagonistic, and the duration of the questioning was brief. In addition, hospital personnel had, and appear to have exercised, access to the treatment room throughout a portion of the interrogation.

Finally, we point out that, while Ms. Wofford’s freedom of movement may have been restrained somewhat during the interrogation, that confinement resulted only from the hospitalization that was necessary in light of her injuries rather than from any conduct on the part of the police. As other courts have recognized, “confinement to a hospital bed is insufficient alone to constitute custody.” People v. Milhollin, 751 P.2d 43, 50 (Colo. 1993)(emphasis added)(citations omitted). We agree with the Supreme Court of Delaware that “there is no per se ‘hospital rule’ in a custody inquiry because each case must be decided on its own facts.” Dejesus v. State, 655 A.2d 1180, 1191 (Del. 1995). In the absence of other indicia of custody, we cannot say that Ms. Wofford’s health-related confinement alone produced a custodial situation because her confinement was not the result of police compulsion. Given the totality of the circumstances, we cannot say that the Trial Court erred in concluding that Ms. Wofford was not in custody at the time she made her first incriminating statement.

Ms. Wofford also contends that the Trial Court should have suppressed her second incriminating statement that she made after receiving Miranda warnings from Officer Boyd, Sr. She maintains that the warnings were deficient because they failed to apprise her that she had the right to terminate the interrogation at any time.

Even if we could assume, and we need not do so, that Ms. Wofford was in custody after she confessed she had killed her son, we cannot say that the warning given to her was deficient. The Miranda case establishes that a defendant has a right to cut off questioning, but it does not require the police to give a warning advising a defendant of this particular right. Although certain passages in the opinions of this Court and the Supreme Court of the United States have suggested that such a warning is required or at least desirable, see Colorado v. Spring, 479 U.S. 564, 574 (1987); Oregon v. Elstad, 470 U.S. 298, 315 n.4 (1985); Mauppin v. State, 309 Ark. 235, 247, 831 S.W.2d 104, 110 (1992), quoting Colorado v. Spring, supra; Bushong v. State, 267 Ark. 113, 122, 589 S.W.2d 559, 564 (1979), neither Ms. Wofford nor our own research has produced a case actually holding that such a warning is required by the Miranda decision. In fact, many courts have considered this question and have held that the police are not required to give the warning proposed by Ms. Wofford. See, e.g., State v. Fecteau, 568 A.2d 1187 (N.H. 1990); Commonwealth v. Lewis, 371 N.E.2d 775 (Mass. 1978); United States v. Davis, 459 F.2d 167 (6th Cir. 1972). But see United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978) (stating that the warning is not required under Miranda but that the failure to give it could be a factor in determining whether custodial statements are voluntary).

Although we agree with the Supreme Judicial Court of Massachusetts that it is “the better practice” for the police to advise an arrested person that he or she may cut off questioning at any moment, Commonwealth v. Lewis, 371 N.E.2d at 777, we are not prepared to say that Officer Boyd, Sr.’s failure to give it to Ms. Wofford violated the Supreme Court’s holding in the Miranda case.

c. Waiver

Finally, Ms. Wofford contends that the Trial Court should have suppressed her statements because they did not follow a voluntary waiver of her rights or a knowing and intelligent waiver of her rights. The Trial Court ruled that the waiver was voluntary but did not rule on the issue of whether the waiver was also knowing and intelligent. We have recognized that the question of voluntariness and the question of a knowing and intelligent waiver are distinct and separate inquiries. See Mauppin v. State, supra. Thus, the Trial Court’s ruling with respect to the voluntariness issue could not have encompassed Ms. Wofford’s argument that she did not knowingly and intelligently waive her constitutional rights. Because she faded to obtain a ruling on that discrete issue, it is not preserved for appeal, and we do not address it. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555, cert. denied, 116 S. Ct. 1861 (1996).

A statement must be voluntary “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Mauppin v. State, 309 Ark. at 246-47, 831 S.W.2d at 109 (1992), quoting Moran v. Burbine, 475 U.S. 412, 421 (1986).

When voluntariness of a statement is an issue, we make an independent determination based on the totality of the circumstances surrounding the statement. We will reverse the ruling of the trial court only if that ruling was clearly against the preponderance of the evidence. A custodial statement is presumed involuntary, and the burden is on the state to show that the statement was voluntarily given.....In making a determination of whether a statement was voluntarily made, this court will consider many factors, among which are the age, education and intelligence of the accused; the length of questioning; the advice or lack of advice on constitutional rights; the repeated or prolonged nature of questioning; and the use of mental or physical punishment.

McCoy v. State, 325 Ark. 155, 160, 925 S.W.2d 391, 393-94 (1996) (citations omitted). See also Stephens v. State, 328 Ark. 81, 85, 941 S.W.2d 411, 413-14 (1997).

The testimony at the suppression hearing supports the Trial Court’s ruling finding Ms. Wofford’s statement to be voluntary. There was no testimony of police-sponsored coercion or duress or any other type of misconduct. Although Ms. Wofford may have been in a weakened physical or mental condition at the time of making her statements, that fact would not render the statements involuntary absent a finding of police misconduct. See Stephens v. State, supra. Although Ms. Wofford may have been dazed earlier in the day, and although the medical evidence indicates she suffered from depression, the testimony of Officers Chitwood and Boyd, Sr., shows that Ms. Wofford was alert in the treatment room and able to converse coherently with those around her. The questioning was preceded by adequate Miranda warnings where necessary, and it was not unduly long. Ms. Wofford obtained a high-school education and was holding down a job. In these circumstances, we cannot say that the Trial Court’s ruling that the statements were voluntarily made is clearly against the preponderance of the evidence.

3. Rule 4-3(h)

In closing, we note that, in the typical case involving a life sentence, we would ordinarily examine the record pursuant to Ark. Sup. Ct. R. 4-3(h) to determine whether there were other rulings not briefed by the parties that constituted prejudicial error. We have not done so in this case, as it arises from a conditional plea of nolo contendere. As mentioned above, we have reviewed only the adverse determination of Ms. Wofford’s pretrial motion to suppress evidence. Ark. R. Crim. P. 24.3(b). In appeals from pleas of guilty or nolo contendere, we are not required to undertake the additional review prescribed by Rule 4-3 (h). Smith v. State, 321 Ark. 580, 906 S.W.2d 302 (1995).

We remand the case to the Trial Court to conduct an additional hearing to determine whether Officers Ohm and Boyd, Jr., observed in plain view the items later seized by Sergeant Lone-tree and Officer Risley. The transcript of the hearing shall be forwarded to this Court along with the Trial Court’s written findings.

Remanded.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Sophocles LOVETT v. STATE of Arkansas
    CR 97-436
    952 S.W.2d 644
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Bramblett & Pratt, by: James M. Pratt, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Sophocles Lovett by information was charged with the crimes of aggravated assault, second-degree battery, and with being a felon in possession of a firearm. He was convicted of all charges, and received respective sentences of fifteen years, fifteen years, and forty years to run concurrently. Sophocles testified in his own defense at trial, but on appeal, he does not challenge the sufficiency of the evidence. Instead, he argues only that the trial court erred by (1) allowing the State to amend its information the day before trial, and (2) denying him a continuance to permit his defense counsel more time to prepare for trial. We affirm.

Before addressing Sophocles’s first point, a brief summary of the facts leading to his charges is necessary. The State’s case showed that, on May 8, 1995, Deborah Williams had a medical appointment for her son in Pine Bluff, and asked her cousin, Patrece Gregory, to go with her. Patrece had been staying at Deborah’s house in Fordyce to get away from Sophocles, who was Patrece’s boyfriend. Sophocles saw Deborah and Patrece in a car driving to Pine Bluff and he followed them to the- parking lot at Deborah’s doctor’s office. After Deborah went into the office, Patrece remained outside and talked with Sophocles. Sophocles accused Patrece and her family members of having taken $10,000.00 of his money! An altercation ensued, and Sophocles struck Patrece in the head with a handgun, causing her serious injury. Patrece, bleeding from the head, ran into the doctor’s office with Sophocles in pursuit. She ran to Deborah, screaming, “He is trying to kill me,” and Sophocles, among other things, was heard saying, “I’m not going to put up with this anymore.” Sophocles pulled his gun, told Deborah “this” was her fault, and he was going to kill Deborah. He pointed the gun at Deborah’s head and pulled its trigger four times. Although loaded, the gun misfired. Several witnesses who were present in the doctor’s office testified they had seen Sophocles beat Patrece with a gun, and had observed blood flowing from her head.

As a result of the foregoing events, the State filed its information three days afterwards, on May 11, 1995, and charged Sophocles with the following three crimes:

Count 1: Aggravated Assault • — • under circumstances manifesting extreme indifference to the value of human life, purposely engaged in conduct that created a substantial danger of death or serious physical injury to Debra (sic) Williams.
Count 2: Battery in Second Degree — with the purpose of causing physical injury to another person, cause physical injury to Debra (sic) Williams by means of a deadly weapon.
Count 3: Felon in Possession of a Firearm — having been previously convicted of a felony, possess a firearm, to-wit: .38 caliber revolver.

Apparently, on the day before trial, September 4, 1996, the State learned it had mistakenly named Deborah Williams instead of Patrece Gregory as the victim in count 2, and it requested the trial court to allow the State to correct its mistake by amending the information. The trial court granted the State’s request. The next day, before trial, Sophocles moved to strike the State’s amended information; alternatively, he asked for a continuance.

In support of his motion to strike the State’s amended information, Sophocles argued the amended charge would require “an entire change in [his] defense, and that change would cause great prejudice to the defense.” The State rejoined that the requested amendment was consistent with the investigative material and was not a surprise to the defense. It added that both Patrece and Deborah had been called as witnesses to testify concerning what had transpired on May 8, 1995, the day of the alleged crimes.

In denying Sophocles’s motions, the trial judge made a point of Sophocles’s having failed to help his counsel in preparing for trial, even though the trial court had previously warned Sophocles that his case was about “to get stale,” since he had received earlier continuances. The judge also emphasized that Sophocles had made no efforts to contact his counsel to discuss his case or to prepare for trial. In fact, even though counsel tried to reach Sophocles at his last known residence and by contacting family members, the trial judge observed that Sophocles never made any attempt to contact or see his attorney until the morning of trial.

We hold the trial court correctly denied Sophocles’s motions. While defense counsel on appeal claims the State’s amended information changed the nature of the crime and prejudiced him, he fails to show how. First, we would note that Sophocles failed to specify at trial that the nature of the second-degree battery crime had been changed by the State’s motion; but even if he had, he still never indicated how the change prejudiced his defense.

The court has held that an amendment of an information will be allowed by a court during trial so long as the nature and degree of the crime is not changed and the defendant is not prejudiced through surprise. McElhanon v. State, 329 Ark. 261, 948 S.W.2d 89 (1997). Here, the defense counsel’s statements made in support of his motion to strike were conclusory, stating that he had not talked to Patrece concerning the amended information, that his entire defense had been changed by the amendment, and that he had been caused great prejudice by the change. As pointed out by the State, Sophocles’s remarks ignored ,the fact that Patrece, Deborah, and other witnesses who had been involved or had seen the events of May 8, 1995, were known to Sophocles. They had been called and were present to testify on the date of trial. He had sixteen months to talk to Patrece and the other witnesses to learn what their stories would be at trial. In fact, Sophocles was living with Patrece at the time of trial. Moreover, Sophocles never suggested other witnesses or evidence that might be warranted as a result of the State’s amendment. Undoubtedly, Sophocles could express little surprise in the State naming Patrece as the victim who was battered since he was well aware that Patrece was the one he had physically injured, not Deborah. In sum, Sophocles’s argument falls short of showing he has sustained any surprise or prejudice.

In conclusion, we believe if Sophocles suffered any prejudice in presenting a defense, it was of his own doing. Again, Sophocles through his own actions was unavailable for four months prior to trial, making it impossible for his counsel to prepare his defense. He had had a number of continuances, and the trial court had every right to believe Sophocles was trying to stall. The decision to grant or deny a motion to continue is within the sound discretion of the trial court, and such a decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). The trial court was well within its discretion to deny Sophocles’s continuance request in the circumstances found here.

       No one but Deborah witnessed Sophocles’s pointing his gun at Deborah, but an officer testified Sophocles admitted he “pointed the gun at the two women below [their] waist.”

       We note that the General Assembly has enacted a statute, Ark. Code Ann. § 16-85-405(a)(2)(c) (1987) that purports to permit such amendment as the one here. Because Sophocles was not surprised or prejudiced by the State’s amendment in this case, we need not rely on it here to sustain the trial judge’s ruling. Nonetheless, that provision provides as follows:
      (c) Where an offense involves the commission of or an attempt to commit an injury to person or property and is described in other respects with sufficient certainty to identify the act, then an erroneous allegation as to the person injured, or attempted to be injured is not material. (Emphasis added.)

        See Sutton v. State, 163 Ark. 468, 260 S.W.403 (1924).


author: Donald L. Corbin, Justice.

text:
    Monroe McGHEE v. STATE of Arkansas
    CR 97-195
    954 S.W.2d 206
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Steve Inboden, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Monroe McGhee appeals the judgment of the Mississippi County Circuit Court, Chickasawba District, convicting him of possession of a controlled substance (cocaine) with intent to deliver, first-degree battery, simultaneous possession of drugs and firearms, and being a felon in possession of a firearm. The trial court sentenced Appellant to a total of forty years’ imprisonment. In addition, the trial court revoked Appellant’s probation in a prior case and sentenced him to a concurrent term of ten years’ imprisonment. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises five points for reversal, none of which has merit.

The record reveals the following facts. On February 14, 1996, Appellant shot Clifton Robinson in the throat, apparently in retaliation for shots being fired approximately one hour earlier at a vehicle in which Appellant’s cousin was riding. Persons present at the scene informed police officers that Appellant was the person who shot Robinson. Robinson later confirmed that it was Appellant who had shot him. Officers arrested Appellant the following day and recovered a gun from him and numerous bags of marijuana and crack cocaine from his pockets.

Motions for Continuance and Severance of Offenses

Appellant’s first two points for reversal are that the trial court erred in denying defense counsel’s motions for a continuance and for severance of the offenses. Both of the motions were made by defense counsel during a pretrial hearing, and both were objected to by Appellant.

Defense counsel requested a continuance on the grounds that he had only recently been appointed to handle Appellant’s case and he wanted more time to prepare for trial. Counsel indicated that Appellant had given him a list of seven or eight witnesses and that he needed more time to interview them. Appellant informed the trial court that he was ready for trial and did not want a continuance. He stated that he had been in jail awaiting trial for nine months and that he did not want to wait any longer. He stated that he was pretty sure that he could explain his case to the jury in about one and one-half hours, and that if he was convicted, “just let it lie like that.” In response to inquiry by the trial court, Appellant stated that he was aware of the seriousness of the charges against him and that he knew he could receive a sentence of life imprisonment. He stated that he was willing to take that chance and proceed to trial. He also indicated that he really only needed three of the witnesses that he had listed for defense counsel. At that point in the discussion, defense counsel indicated that he could have the case ready to go as scheduled, and that he had a copy of the State’s file and he understood the State’s theory of the case.

As to the severance motion, defense counsel moved to sever the charge of first-degree battery, pertaining to the shooting of Robinson, from the remaining charges, which resulted from Appellant’s arrest the day after the shooting. Appellant again expressed his desire to proceed to trial as scheduled on all charges. He stated that the reason he was charged with the subsequent offenses was because of the shooting of Robinson, and that he wanted to have all the charges tried at the same time. In response to questions from the trial court, Appellant stated that he understood that being tried on five or six different charges at once may prejudice his case. He stated further that he understood that his punishment may be harsher, even if he was only convicted of one charge, because the jury would be aware of the other charges.

The trial court denied the motion for continuance on the ground that it was Appellant’s right to have a trial and that he had made the decision to proceed with the trial knowing that his counsel wished for more time to prepare. Likewise, the trial court denied the motion to sever on the ground that Appellant wanted all the charges tried at the same time and was willing to risk any prejudice to his case. Appellant now argues that the trial court erred in denying both motions. We disagree.

We adhere to the familiar principle that a defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996). Under the doctrine of invited error, one who is responsible for error cannot be heard to complain of that for which he was responsible. Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). Appellant chose to proceed to trial as scheduled, knowing that defense counsel wanted more time to prepare his defense. Appellant further chose to have all the offenses tried at once, after being warned of the potential consequences of being tried on multiple charges simultaneously. Appellant’s decision to be tried on all the charges at once, without delay, was thus made with the knowledge and understanding that he was facing serious felony charges and that he could receive a sentence of life imprisonment. Hence, we conclude that Appellant has waived any challenge on appeal to the trial court’s denial of both motions.

Suppression of Evidence

For his third point for reversal, Appellant argues that the trial court erred in denying his motion to suppress physical evidence, which he alleged was gathered as a result of the issuance of an invalid arrest warrant. He argues further that officers lacked the authority to enter Fred Gay’s residence to arrest Appellant. We do not address the merits of these arguments, as Appellant has faded to demonstrate that he obtained a ruling from the trial court on his motion to suppress.

Where the abstract does not reveal that a ruling was obtained from the trial court, this court will not address the issue on appeal. See Bayless v. State, 326 Ark. 869, 935 S.W.2d 534 (1996). The burden of providing a record sufficient to demonstrate that reversible error occurred is upon the appellant. Laudan v. State, 322 Ark. 58, 907 S.W.2d 131 (1995). Without the trial court’s ruling, this court has no basis for a decision and is, thus, precluded from a review of the issue. See Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997); Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). Appellant’s failure to obtain a ruling on his motion to suppress is fatal to this claim.

Simultaneous Possession of Drugs and Firearms

Appellant’s fourth and fifth points for reversal pertain to his conviction for the charge of simultaneous possession of drugs and a firearm. Arkansas Code Annotated § 5-74-106(a)(l) (Repl. 1993) provides that a person who commits a felony violation of § 5-64-401 (controlled substances) while in possession of a firearm is guilty of a Class Y felony. Appellant first argues that there was insufficient evidence to convict him of this crime because the State failed to produce evidence of gang-related activity. He argues that because the offense is situated within the subchapter known as the “Arkansas Criminal Gang, Organization, or Enterprise Act,” it is necessary for the State to produce evidence of gang-related activity for every offense contained within that sub-chapter. We recently disposed of this argument in State v. Zawodniak, 329 Ark. 179, 946 S.W.2d 936 (1997).

In Zawodniak, the defendant moved for a directed verdict on the ground that the State had failed to prove that he was involved in criminal gang activity. The trial court agreed and granted the motion. On appeal, we held that the defendant’s and the trial court’s reading of section 5-74-106 was contorted and failed to give the language of that statute its plain meaning. We stated that this court is very hesitant to interpret a legislative act in a manner contrary to its express language, where there is no drafting error or omission that may have circumvented the legislature’s intent. We held further that the statute not only serves the purpose of deterring organized gang and criminal activities, but also serves the broader purpose of curtailing any person’s use of a firearm when he or she is involved in the illegal possession or trafficking of controlled substances. Accordingly, we conclude that the trial court did not err in denying Appellant’s motion for directed verdict on this charge.

Appellant’s second argument is that section 5-74-106 is unconstitutionally vague and is therefore void. We do not reach the merits of this contention, as Appellant’s abstract does not demonstrate that the argument was raised below. This court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997); Mayo v. State, 324 Ark. 328, 920 S.W.2d 843 (1996).

Affirmed.


author:
      Donald L. Corbin, Justice.
      Tom Glaze, Justice,

text:
    John Phillip PONDER v. STATE of Arkansas
    96-1269
    953 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Depper Law Firm, by: Robert L. Depper, Jr., for appellant. Winston Bryant, Att’y .Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant John Phillip Ponder appeals the order of the Union County Circuit Court denying his motion to transfer the charge against him to juvenile court. We have jurisdiction of this interlocutory appeal. Ark. Sup. Ct. R. 1-2(a)(11); Ark. Code Ann. § 9-27-318(h) (Supp. 1995). We cannot say the trial court’s decision to retain jurisdiction of the case was clearly erroneous, and therefore we affirm.

Pursuant to the prosecutor’s discretion in section 9-27-318(b)(1), Appellant was charged in circuit court with one count of capital murder for the death of seventy-five-year-old Violet Willett. The information alleged that Appellant was born February 6, 1981, and that the crimes occurred on June 21, 1995. Appellant was thus fourteen years old when the crime was committed.

Appellant filed a motion to transfer the charge to juvenile court. During the April 1, 1996 hearing, Deputy Michael Fife, of the Union County Sheriffs Department, described the crime scene to the court and testified as to portions of two statements given by Appellant to police. Appellant admitted to entering Violet Willett’s home two times on June 21, 1995, with the intention of taking items. While he was there the second time, he took a watch, a necklace, and some guns. After Appellant had remained at the home for approximately one hour, Willett returned. As she entered her home, Appellant stated that he hid next to a chair.

As to what happened after Willett returned and the actual cause of her death, Appellant’s two statements differ. In his first statement, he stated that he stood up with Willett’s .22 calibér rifle in his hands. Fie indicated that he had previously unloaded the gun and then reloaded it with different ammunition. He then told Willett to give him her truck keys, when the gun went off. In the second statement, however, he contended that the gun went off when he placed the barrel of the rifle on a wall partition, striking Willett and causing her death. Appellant stated in both interviews that he then threw down the gun and another shot fired. He admitted to looking in Willett’s pocket for her keys while she lay bleeding on the floor. He also took two guns and seized money from Willett’s purse before driving off in her truck. After wrecking the vehicle, he was found wearing the stolen watch and was charged with capital murder.

The State also provided testimony from Dr. Frank Peretti, an associate medical examiner who performed the autopsy on Willett. Dr. Peretti testified that the trajectory of the bullet went from the front part of Willett’s skull to the back in a downward path. Fie stated that the cause of death was a gunshot wound of the head, with neck injuries.

Phillip Taylor, a juvenile probation officer, testified that Appellant had been involved in the juvenile court system three times prior to the incident. On April 26, 1994, he was involved in the unauthorized use of a vehicle in which he took a truck without permission. The victim did not wish to pursue charges, as long as restitution was paid for the damage done to the truck. On May 12, 1995, after skipping school, Appellant was charged with arson for setting fire to a wooden podium in a shower stall of the boy’s locker room at Barton Middle School in El Dorado. Also in May 1995, he damaged the front and rear windshield of a vehicle owned by a school teacher at Barton Middle School. After Appellant pleaded “true” to the charges of criminal mischief and arson, the juvenile court judge ordered that Appellant be placed on six months’ probation and sent to South Arkansas Youth Services Center. The present incident occurred while Appellant was waiting for an available space at the youth facility.

Appellant presented the following testimony. Joe Ogden, the director of the Central Arkansas Serious Offender Program for juveniles, testified regarding the fact that out of the twenty-four males in the program, five, between the ages of fourteen and one-half to seventeen years of age, had committed the offense of capital murder. Jan Nelson, a clinical social worker from the South Arkansas Regional Health Center, testified that her initial diagnosis of Appellant was adjustment disorder with mixed conduct and emotional features. She also stated that Appellant was not mature for his age because of his impulsiveness. On cross-examination, she stated that Appellant’s age was a factor in determining that he could be rehabilitated. She admitted, however, that she could not be considered an expert in the rehabilitation of juveniles. John Huey Ponder, Appellant’s father, confirmed the incidents dealt with in juvenile court and acknowledged that he and his wife had left Appellant by himself on the day of the shooting.

After hearing all the testimony, the trial court denied the motion to transfer the case to juvenile court. In a written opinion, the court stated that “the offense charged is a serious one and was committed in a violent manner while in the process of a burglary of the victim’s home.” The court also noted that Appellant was on probation for arson and criminal mischief at the time of the murder, and he was therefore beyond rehabilitation in existing juvenile programs. Consequently, the court found clear and convincing evidence to retain the charge in circuit court.

Pursuant to section 9 — 27—318 (f), the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996). Clear and convincing evidence is defined as that degree of proof that will produce in the trier of fact a firm conviction regarding the allegation sought to be established. Id. The supreme court will not reverse a circuit court’s denial of a juvenile transfer unless the denial was clearly erroneous. Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996).

Section 9-27-318(e) provides in part the factors to be considered in a juvenile transfer hearing as follows:

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

A circuit court is not required to give equal weight to each of these statutory factors. Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996). Proof need not be introduced against the juvenile on each factor. Lammers v. State, 324 Ark. 222, 920 S.W.2d 7 (1996).

Appellant asserts that the trial court erred in denying the motion to transfer because of the juvenile’s age and his probability of rehabilitation. He also argues that the trial court erred because he contends the crime was accidental and did not involve the employment of violence. In support of this argument, he relies heavily on this court’s decision in Green, 323 Ark. 635, 916 S.W.2d 756. The facts present in this case are distinguishable from those in Green, where the appellant was charged with manslaughter. Here, the evidence demonstrates that Appellant was involved in the serious offense of capital murder and that he employed a gun in committing the offense. The fact that the offense charged was serious in nature and was accomplished with the use of violence is enough to warrant a denial of transfer of Appellant’s case to juvenile court. No element of violence beyond that required to commit the crime is necessary under section 9-27-318(e)(1). Lammers, 324 Ark. 222, 920 S.W.2d 7.

Notwithstanding the violent and serious nature of the offense, the trial court’s decision is further supported by the fact that Appellant had committed two prior adjudicated offenses, approximately one month before the murder, and had been placed on juvenile probation. Where there is evidence that the current felony charges were part of a repetitive pattern of offenses, that past efforts at rehabilitation in the juvenile court system have not been successful, and that the pattern of offenses has become increasingly more serious, these factors alone prevent a holding that the trial court’s ruling on the transfer motion was clearly erroneous. Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). Thus, the trial court did not err by concluding that Appellant was beyond rehabilitation.

Based upon the foregoing reasons, we conclude that the decision of the trial court denying Appellant’s motion to transfer the charge to juvenile court is supported by clear and convincing evidence.

Glaze and Imber., JJ., concur.

Tom Glaze, Justice,

concurring. I concur. While I disagree with this court’s attempt to distinguish Green v. State, 323 Ark. 635, 916 S.W.2d 756 (1996), from the present case, that is not the reason I write this concurring opinion. Rather, I address appellant’s reliance on Sanders v. State, 326 Ark. 415, 932 S.W.2d 315 (1996), and his request for us to review his case in light of a statement in Sanders indicating this court’s intention to reconsider its past interpretations of Ark. Code Ann. § 9-27-318 (Supp. 1995). The court in Sanders did state a concern that, under our current interpretation of the juvenile code, prosecuting attorneys can file a serious charge against a juvenile in circuit court and do nothing more. The Sanders court further said it did not intend for its earlier interpretations of the code to do away with the need for a meaningful hearing. The Sanders court issued a caveat that, in juvenile cases tried after Sanders, the court would consider anew its interpretation of the juvenile code when the issues are fully developed and briefed.

The present case is not the type the court had in mind in Sanders, since here a meaningful hearing was conducted. The State offered ample evidence that the crime with which Ponder was charged was serious and involved the employment of violence. In addition, the State offered evidence that the current felony charges reflected a repetitive pattern of offenses, that past efforts at rehabilitation have been unavailing, and that the pattern has become increasingly more serious.

In contrast to the case at bar, our court, in Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), affirmed the trial court’s denial to transfer Walker’s case to juvenile court even though the State’s only argument was that its information, describing the offense charged as serious and involving violence, outweighed the lack of repetitive pattern and positive character traits which were shown by Walker at the transfer hearing. This court approved the State’s use of its information, only, to affirm the trial court, and stated the following:

While it might have been desirable and even preferable for the prosecutor to present additional evidence at the hearing to support retaining [Walker] in circuit court, we hold that the criminal information provided a sufficient basis for the trial court’s decision.

In conclusion, while this court said in Sanders that it would reconsider our prior interpretation of the code, its concern involved prosecuting attorneys filling serious charges against a juvenile in circuit court and offering no further proof in transfer-motion hearings. That situation does not exist here, since a meaningful hearing was held. However, when the court is again confronted with a case such as Walker, where the State offers nothing but an information at a hearing on a transfer motion, it will then be appropriate for this court to consider anew its ruling in Walker and cases like it.

Imber, J., joins this concurrence.


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

text:
    Anthony David SMITH v. STATE of Arkansas
    CR 96-1167
    953 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997
    [Petition for rehearing denied November 6, 1997.]

      Donald J. Adams, Griffin Smith, and Roy Danuser, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., and J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corein, Justice.

Appellant Anthony David Smith appeals the judgment of the Marion County Circuit Court convicting him of the capital murder of his wife Christine Smith and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). Appellant raises two points for reversal, namely that the trial court erred in fading to grant his motion for mistrial due to the prosecutor’s comments during opening statement on his right to remain silent and in excluding the testimony of one of his witnesses. We find no error and affirm.

In the early morning hours of October 6, 1994, officers and medical personnel responded to a call from the Smith residence concerning a possible drowning. At the scene, they found thirty-two-year-old Christine Smith wet and lying on her back on a wooden deck next to the family’s swimming pool. She had blood coming from the back of her head and out of her nose and mouth. Her body was sent to the Arkansas State Medical Examiner’s Office for an autopsy, where it was determined that Mrs. Smith had died as the result of both a contact gunshot wound to the back of her head and strangulation. Appellant was subsequently arrested and convicted for the capital murder of his wife and sentenced to life imprisonment.

I. Prosecutor’s Remarks on Appellant’s Right to Remain Silent

For his first point for reversal, Appellant argues that the trial court erred in failing to declare a mistrial due to the following remarks made by the prosecutor in opening statement:

The presentation of this case which you’re going to hear about are the events, primarily, of the early morning of the 6th day of October, 1994. And the thing that you have to realize is that, from the start of this, Mr. Smith was the only person alive who was present. He’s the only person alive who was present on the scene. On that morning, he got an opportunity then and he will get an opportunity in this courtroom, through the tapes and the other evidence we’ll introduce, to present what he claims happened.

The prosecutor then went on to recite what he expected the State’s evidence would prove during the course of the trial, including the substance of a taped interview that Appellant gave to police that same day. At the conclusion of the prosecutor’s opening statement, Appellant moved for a mistrial on the ground that the remarks amounted to an improper reference to his right to remain silent. The trial judge denied the motion because he did not believe the reference to be significant.

On appeal, Appellant contends that the prosecutor’s remarks violated his rights under the Fifth Amendment to the United States Constitution to remain silent and not be compelled to be a witness against himself. Specifically, Appellant argues that the remarks emphasized the fact that he was the only person present at the scene and intimated that only his personal testimony could rebut the evidence against him. We do not reach the merits of this argument because Appellant failed to make a contemporaneous objection below.

In order to be timely, an objection must be contemporaneous, or nearly so, with the alleged error. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Asher v. State, 303 Ark. 202, 795 S.W.2d 350 (1990), cert. denied, 498 U.S. 1048 (1991). Where the allegation of error concerns a statement made by the prosecutor during argument, the defendant must make an immediate objection to the statement at issue in order to preserve the allegation for appeal. Wallace v. State, 53 Ark. App. 199, 920 S.W.2d 864 (1996) (citing Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987)). In Butler, this court specifically rejected the Eighth Circuit'Court of Appeals’ holding in Lange v. Schultz, 627 F.2d 122 (8th Cir. 1980), that counsel may reserve his or her objection to statements made in closing argument until the end of the argument, before the case is submitted to the jury. This court held:

We decline to follow the Eighth Circuit’s position and instead require a timely objection, made at the time the alleged error occurs, so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.

Butler Mfg. Co., 292 Ark. 198, 202, 729 S.W.2d 142, 144. See also Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1997). Such reasoning is equally applicable to alleged errors made in opening statement.

Similarly, this court has repeatedly held that motions for mistrial must be made at the first opportunity. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996); Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996). In Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), this court held that the appellant’s motion for mistrial based upon improper comments made by the prosecutor during opening statement was untimely because it was not macle until after the conclusion of appellant’s opening statement. This court reasoned that it was proper to deny a motion for a mistrial when the request was not made at the first opportunity, even though the motion had been preceded by two defense objections sustained by the trial court. Id. (citing Dumond v. State, 290 Ark. 595, 721 S.W.2d 663 (1986)).

Here, the particular comments were made by the prosecutor in the middle of his opening statement. Appellant did not object or move for a mistrial at the time the statements were made; instead, he waited until the prosecutor had finished his entire opening statement before bringing the alleged error to the trial court’s attention through his motion for mistrial. Accordingly, it was not error for the trial court to deny the motion as it was untimely made.

II. Exclusion of Expert Testimony

For his second point for reversal, Appellant argues that the trial court erred in excluding the testimony of Carl Rainey as an expert on the subject of firearms. Appellant contends that Rainey, who had years of experience in hunting and using firearms, should have been permitted to testify about experiments he conducted involving the firing of .22 caliber bullets into various objects to check for bullet fragmentation. Appellant contends that he was prejudiced by the exclusion of this testimony as it was relevant to counter the State’s evidence that bullet fragments found in the victim’s skull were consistent with .22 caliber bullets found in Appellant’s home. The State argues that Rainey was not an expert in firearms and that his experiments were not conducted in the same manner and under circumstances substantially similar to those surrounding the homicide. The evidence presented by the State Medical Examiner’s Office was that the gunshot wound to Mrs. Smith’s head was a contact wound.

The trial court heard argument from counsel as to Rainey’s expected testimony. Rainey would have testified that through his personal experience as a hunter in shooting animals using a .22 caliber weapon, he had never encountered a fragmented .22 caliber bullet. Additionally, Rainey would have described his experiments involving his firing .22 caliber bullets into various surfaces, such as wood, plastic, and metal, from a distance of between one to two feet, and on one occasion, from a point of contact. The only time a bullet fragmented was when Rainey fired into the metal surface; most other times, the bullet failed to even penetrate the surfaces. It was not disputed that Rainey had no academic credentials that would qualify him as an expert in the field of firearms or ballistics.

The trial court excluded the testimony on the ground that the defense had failed to establish a proper foundation demonstrating that the experiments were conducted in a scientific manner, using comparable circumstances. The trial court concluded further that Rainey’s experiences as nothing more than a hunter, lacking any formal training or expertise, did not qualify him as an expert in the field of ballistics.

Whether a witness qualifies as an expert in a particular field is a matter within the trial court’s discretion, and we will not reverse such a decision absent an abuse of that discretion. Mace v. State, 328 Ark. 536, 944 S.W.2d 830 (1997). If some reasonable basis exists demonstrating that the witness has knowledge of the subject beyond that of ordinary knowledge, the evidence is admissible as expert testimony. Id. The general test of admissibility of expert testimony is whether it will assist the trier of fact in understanding the evidence presented or determining a fact in issue. A.R.E. Rule 702; Matthews v. State, 327 Ark. 70, 938 S.W.2d 545 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). In addition, expert testimony must be relevant and not misleading or confusing to the jury. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994). In determining the relevance of the testimony, the proponent must show that the evidence is reliable and sufficiently related to the facts of the case to aid the trier of fact in resolving the dispute. Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

In the present case, it was undisputed that Rainey had no formal training as an expert in the field of firearms or ballistics; rather, Rainey’s knowledge came only from his experiences as a recreational hunter. It is further undisputed that none of Rainey’s experiments were conducted in a manner similar to the factual situation of the victim’s death, as he used only plastic, wood, or metal surfaces and the majority of the tests were conducted from a firing range of one to two feet, with only one test being from a point of contact. Accordingly, we conclude that the trial court did not abuse its discretion in excluding this testimony, as a proper scientific foundation was not provided and it was not demonstrated that the results of the tests would have assisted the jury in understanding the evidence presented and in determining any fact in issue.

III. Rule 4-3 (h)

In accordance with Rule 4-3 (h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.

Newbern and Thornton, JJ., dissent.

David Newbern, Justice,

dissenting. The position taken by the majority in this case takes the contemporaneous-objection rule to a new and dizzying height. I assume the reason for the rule is to assure that an objection or, as in this case, motion for mistrial is made while the facts giving rise to the motion are fresh and the court is in the best possible position to rule on the matter at hand. I can understand the notion that a waiver had occurred in Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992), because the motion for a mistrial was made by the defendant after two objections had been dealt with during the opening statement of the prosecution and after the defendant’s opening statement had occurred. It was almost as if the motion for a mistrial were an afterthought.

The holding in Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987), is that an objection must be made at the time an objectionable statement occurs during closing argument “so that the trial judge may take such action as is necessary to alleviate any prejudicial effect on the jury.” It apparently was our perception that in the case of a closing argument, which often involves reiteration of evidence in great detail, it would be most helpful to avoid confusion by clearing up possible misstatements as they occurred, rather than waiting until the conclusion of an argument which could be quite lengthy. Be that as it may, it is unnecessary to apply that rule to opening statements by counsel which usually amount to no more than an abbreviated prospective summation. In this case, there is no doubt in my mind that the Trial Court could have taken “such action as is necessary to alleviate any prejudicial effect on the jury” at the close of the prosecutor’s opening statement, and it would have been no less effective than if taken the moment the objectional reference was made.

While I can tolerate, in the case of a closing argument, a rule that breaches the common courtesy usually accorded to a speaker of allowing him or her to finish a speech, I cannot do so with respect to an opening statement. That is especially so in a case such as this one where that which was said had the potential of casting a taint upon all of the remainder of the trial.

In this case, the mistrial motion came after the prosecution’s opening statement in which it was said that “he [Smith] will get an opportunity in this courtroom, through the tapes and other evidence we’ll introduce, to present what he claims happened.” Unlike the Dixon case, no other objections had been considered, the defense had not made its opening statement, the matter was fresh before the court, and the motion was made. Not only should we consider the merits of the motion, we should reverse the conviction because of the egregious error in declining to grant the motion after the reference to the “opportunity in this courtroom” Smith would have to prove his innocence — a burden no accused need bear. Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993); Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985).

I respectfully dissent.

Thornton, J., joins in this dissent.


author: Robert L. Brown, Justice.

text:
    Tammy J. SUBLETT v. Sharon L. HIPPS and Daniel Berry
    96-1340
    952 S.W.2d 140
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Helen Rice Grinder and George D. Ellis, for appellant.

      Barber, McCaskill, Jones & Hale, P.A., by: Thomas E. Osment, Jr., for appellee Sharon L. Hipps.

      Matthews, Sanders & Sayes, by: Margaret M. Newton and Mel Sayes, for appellee Daniel Berry.
   Robert L. Brown, Justice.

Appellant Tammy J. Sublett appeals an order granting summary judgment in favor of appellees Sharon L. Hipps and Daniel Berry. We find no error in the trial court’s order, and we affirm.

On January 3, 1995, Sublett filed a complaint against Hipps and Berry to recover damages for personal injury arising from an automobile accident. Sublett alleged that at about 8:15 a.m. on January 8, 1992, she was travelling south on Interstate 430 in Little Rock when Hipps, who was moving in the same direction in an adjacent lane, abruptly moved in front of her and decelerated rapidly. Sublett alleged that Hipps’s maneuver caused her to strike the rear of Hipps’s pickup truck, and she in turn was rear-ended by Berry’s sport-utility vehicle. Sublett asked for joint and several liability against Hipps and Berry on several theories of negligence and damages in the amount of $175,000.00.

On April 5, 1995, Hipps answered, denying all allegations of fault and affirmatively pleading for the application of comparative fault. On September 29, 1995, Hipps filed a pleading designated as a third-party complaint against Berry, asking for indemnification or, in the alternative, for contribution. On November 27, 1995, Berry filed his answer to the original complaint as well as the third-party complaint and denied all allegations of fault. He also pled the statute of limitations as an affirmative defense.

Berry next moved for summary judgment on the ground that both the complaint and third-party complaint were barred by the three-year statute of limitations for negligence actions under Ark. Code Ann. § 16-56-105 (1987). He asserted that although Sublett filed her complaint in a timely manner, she did not obtain service on him within 120 days pursuant to Rule 4(i) of the Arkansas Rules of Civil Procedure and also failed to move for an extension within that same period.

Sublett responded to Berry’s motion for summary judgment and argued that any objection to the untimely service of the complaint under Rule 4(i) was waived when he filed his answer. She contended that while Berry’s answer raised the statute of limitations as a defense, his defense was waived because he answered the complaint without moving to dismiss or otherwise raising the issue of insufficiency of process, as required by Rule 4(i).

Hipps then moved for summary judgment and maintained that the undisputed facts showed the following: that Hipps was driving in the lane to the left of Sublett; that Sublett admitted there was adequate distance between the cars when Hipps made the lane change; that Sublett admitted Hipps signaled before entering Sublett’s lane; and that Sublett applied her brakes, began sliding, and rear-ended Hipps.

Sublett responded to Hipps’s motion for summary judgment and cited three factual bases to support her allegations of negligence: (1) traffic was heavy; (2) the pavement was wet; and (3) Hipps turned into Sublett’s lane 50 feet in front of her, which a juror could conclude was done in violation of the statute which creates a duty to change lanes only when it can be done “with safety.” Ark. Code Ann. § 27-51-302(1) (Repl. 1994).

The trial court issued a letter opinion in which it determined that Sublett’s claim against Berry was barred by the statute of limitations and that Sublett’s deposition testimony established that Hipps did nothing wrong and, thus, did not cause the accident. Orders dismissing Sublett’s claims against both Berry and Hipps were entered.

I. Berry’s Motion for Summary Judgment

The standard of review for appealing the grant of summary judgment is well-established:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law.

Milam v. Bank of Cabot, 327 Ark. 256, 261-62, 937 S.W.2d 653, 656 (1997). See Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996). Once a moving party establishes prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a genuine issue of material fact. Milam v. Bank of Cabot, supra; Renfro v. Adkins, supra.

Sublett contends, as her first point, that Berry waived a defense of insufficiency of service of process under Ark. R. Civ. P. 12(h)(1) because he failed to move to dismiss the complaint on that ground and further failed to raise the defense in his answer. She concedes that service was not accomplished on Berry within 120 days because counsel was under the false impression that he had died without insurance coverage. Sublett further admits that no attempt was made to seek an extension from the court within the 120-day period from the filing of the complaint. Nevertheless, she contends that Farm Bureau Mut. Ins. Co. v. Campbell, 315 Ark. 136, 865 S.W.2d 643 (1993), and Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990), support her contention that Berry waived his argument regarding insufficiency of process.

The issue for this court to resolve is whether Berry’s defense raised in his answer is in truth a limitations defense or whether, in actuality, it is a contention of insufficiency of process. We conclude that the defense is one of limitations that is decided by when the litigation was commenced.

Under Rule 3 of the Arkansas Rules of Civil Procedure, an action is commenced by filing a complaint with the clerk of the proper court. Forrest City Mach. Works, Inc. v. Lyons, 315 Ark. 173, 866 S.W.2d 372 (1993); Green v. Wiggins, 304 Ark. 484, 803 S.W.2d 536 (1991). But this court has also held that the effectiveness of the commencement date is dependent upon meeting the requirements of Rule 4(i), which provides in part that service of process on a defendant must be accomplished within 120 days after the filing of the complaint. See Edwards v. Szabo Food Serv., Inc., 317 Ark. 369, 877 S.W.2d 932 (1994); Hicks v. Clark, 316 Ark. 148, 870 S.W.2d 750 (1994); Forrest City Mach. Works, Inc. v. Lyons, supra; Green v. Wiggins, supra.

In Green v. Wiggins, supra, the appellant filed a medical-malpractice action against several defendants, including the appellees who were two doctors. No attempt at service was made on those appellees, and appellant obtained a voluntary dismissal without prejudice after the two-year medical-malpractice statute of limitations expired. Appellant then refiled his action and attempted unsuccessfully to serve appellees through certified mad. Appellant moved the trial court for an extension 148 days after the filing of his second complaint. We held that because the appellant did not complete service on appellees within 120 days under Rule 4(i), his medical-malpractice action was not commenced, and the savings statute could not be invoked on his behalf. A similar failure by Sublett to commence her cause of action against Berry within the limitations period occurred in the instant case.

Moreover, while Rules 12(b)(5) and 12(h)(1) clearly set forth the procedure for raising an insufficiency-of-service-of-process defense, they do not set the conditions for mounting a limitations defense. The touchstone for a limitations defense to a tort action is when the cause of action was commenced. See Ark. Code Ann. § 16-56-105 (1987). Berry raised the statute of limitations as an affirmative defense in his answer and has shown failure to commence the litigation within three years as required by our caselaw. See Forrest City Mach. Works, Inc. v. Lyons, supra; Green v. Wiggins, supra. That is all that is required.

Finally, we view the cases of Lawson v. Edmondson, supra, and Farm Bureau Mut. Ins. Co. v. Campbell, supra, as clearly distinguishable. The Lawson case did not involve the statute of limitations but solely concerned a Rule 12(b)(5) defense of insufficient service. Similarly, the issues of commencement of a cause of action and the running of a limitations period were not before this court in the Farm Bureau case. Hence, neither case is authority for the question at hand.

Because the accident occurred on January 8, 1992, and service on Berry was not obtained within 120 days after Sublett filed her complaint on January 3, 1995, and no extension was sought, the statute of limitations ran on this cause of action. The trial court was correct in granting summary judgment in favor of Berry.

II. Hipps’s Motion for Summary Judgment

We turn next to Sublett’s contention that summary judgment in favor of Hipps was also error. In order to establish a prima facie case of negligence, a plaintiff must prove that he sustained damages; that the defendant was negligent; and that such negligence was a proximate cause of the damages. Anslemo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996); Mason v. Jackson, 323 Ark. 252, 914 S.W.2d 728 (1996); Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995).

In support of her motion for summary judgment, Hipps attached portions of Sublett’s deposition. In that deposition, Sublett made the following relevant admissions: (1) that appellee Hipps did not cut her off, although traffic ahead was already stopped; (2) that there were approximately 50 feet between their vehicles when Hipps entered her lane; (3) that she had already applied her brakes when Hipps signaled to enter her lane; (4) that she briefly took her foot off the brake pedal to contemplate a maneuver into the next lane but did not attempt to do so; (5) that she subsequently applied more pressure to the brakes and began sliding on the wet pavement; (6) that there was adequate space for appellee Hipps’s vehicle to pull into her lane; and (7) that she was not aware of anything Hipps did wrong.

Hipps contends that Sublett’s version of the events as set out in her deposition presents no genuine issue of material fact and directly refutes a number of the allegations in her complaint. Hipps further contends that the deposition testimony, especially Sublett’s final admission, reflects that Sublett was the sole proximate cause of her own accident. We agree.

Again, Sublett responds as she did in the trial court that the conditions on the road and the statute on lane changes present a fact question. She cites this court to AMI Civ. 3d 903 (“Violation of Statute or Ordinance as Evidence of Negligence”), and Ark. Code Ann. § 27-51-302(1) (Repl. 1994), which provides:

A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that movement can be made with safety[.]

Id. She maintains that, given the circumstances, an issue of fact exists as to whether Hipps made the lane change “with safety” when only 50 feet of space separated the two vehicles.

We are aware, as we have already stated, that in reviewing a grant of summary judgment, we must consider the evidence in the light most favorable to Sublett. However, road conditions in and of themselves do not constitute negligence. The issue, rather, is how people perform under those conditions. Sublett admits that Hipps did not cut her off when she changed lanes and further that Hipps did nothing wrong. These drastic admissions, which contradict her complaint, not only fail to create a genuine issue of material fact under Ark. R. Civ. P. 56(c), bqt they appear to concede lack of fault on Hipps’s part. We have affirmed grants of summary judgment in the past when the plaintiff/appellant makes a pivotal admission that goes to the heart of the case. See, e.g., Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); King v. Jackson, 302 Ark. 540, 790 S.W.2d 904 (1990). This is such a case. We affirm this facet of the trial court’s order as well due to Sublett’s failure to meet proof with proof. Milam v. Bank of Cabot, supra.

Affirmed.