author: Jack Holt, Jr., Chief Justice. Hickman, J.,

text:
    Wanda Lee TATE, Mother, and Robert Allen Tate, Father of: Pee Wee, Bit, Kitty, Kay, Meme, Terra, Sandy, Bobby, Buddy, and Unidentified Infant, Minor Children v. Debbie SHARPE, of Arkansas Department of Human Services
    89-101
    777 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989
    [Rehearing denied November 6, 1989.]

      Peter DeStefano, for appellants.

      William J. Velek, Arkansas Department of Human Services, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellants, Robert and Wanda Tate, attempt to appeal from an interlocutory order of the Newton County Probate Court (Juvenile Division). Since the order is not appealable, we dismiss their appeal.

In March 1988, the Department of Human Services initiated an investigation of a report of possible educational neglect of the Tate’s children. Wanda Tate refused a representative of Human Services entry into her home, was uncooperative, acted suspiciously, and answered questions evasively. The representative saw a young child, whom he described as being in “poor” condition, in the backyard of the home. Subsequently, the representative filed a sworn petition in the juvenile division of probate court for order of investigation pursuant to Ark. Code Ann. § 12-12-508 (1987) of the Arkansas Child Abuse Reporting Act [Ark. Code Ann. §§ 12-12-501 — 12-12-516 (1987)].

The court granted the petition on March 24, 1988, finding that the information contained in the petition provided probable cause to believe there may be abuse or neglect of the Tate children. The court ordered the Tates to provide Human Services with access to the children and themselves for interview and to the home for a full investigation of said reports and verification of the identity of all residents.

Thereafter, a representative of Human Services, accompanied by two deputy sheriffs, again attempted a home visit. The Tate family was not at home. After conducting a search of the home pursuant to a search warrant, the men travelled to a neighbor’s property where it was believed the Tates might be. They found the Tates parked in the woods in an old pickup truck with a camper shell on it. An undetermined number of children were inside the truck.

Mr. Tate got out of the truck. He immediately became hostile and refused to release any information concerning the children. As the men were talking to Mr. Tate, Mrs. Tate drove off. When it became apparent that the deputies would have to injure Mr. Tate in order to get him to cooperate, they allowed him to walk away.

After two more unsuccessful attempts to investigate, Human Services filed a motion for contempt due to the Tates’ refusal to comply with the court’s previous order. In response, the court by order of September 24, 1988, found, in part, that the facts presented in the petition for order of investigation provided reasonable cause to suspect that a child had been subjected to abuse or neglect and, therefore, its previous order of March 24, 1988, granting the petition was valid and continuing.

Additionally, the court ordered the Tates to deliver the children to the office of the Ozark Legal Services on October 3, 1988, to be interviewed by the guardian ad litem; the hearing on the petition to be continued until October 4, 1988; and ordered Mr. Tate to appear on that date to show cause why he should not be held in contempt. From this interlocutory order, the Tates’ appeal alleging jurisdiction lies in this court pursuant to Ark. Sup. Ct. R. 29(1 )(k) and Ark. R. App. P. 2(a)(6) in that the order grants and continues an injunction.

Our rules of appellate procedure provide that a party can only appeal from a final order of a circuit, chancery, or probate court. Ark. R. App. P. 2. However, Ark. R. App. P. 2(a)(6) allows a party to appeal from an interlocutory order “by which an injunction is granted, continued, modified, refused, or dissolved, or by which an application to dissolve or modify an injunction is refused.”

The probate court’s order of September 24, 1988, as abstracted by the appellants, is so incomplete and inadequate that it is extremely difficult for us to ascertain the nature of the order. Notwithstanding, we examine the record and find that the order does not grant or continue an injunction.

An injunction is a command by a court to a person to do or refrain from doing a particular act. It is mandatory when it commands a person to do a specific act, or prohibitory when it commands him to refrain from doing a specific act. C. Jacobson, Arkansas Chancery Practice § 68 (1940). See also Springdale Board of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987); Ark. R. Civ. P. 65(e); Ark. Code Ann. § 16-113-101 (1987). An injunction may be preliminary, interlocutory, or permanent. Ark. R. Civ. P. 65(e).

The order before us does not grant or continue a prohibitory injunction in that appellants are not commanded to refrain from doing a specific act. The order does command Mr. and Mrs. Tate to participate in and perform certain acts. For example, it directs Mr. Tate to show cause why he should not be held in contempt of court and commands the Tates to bring the children to the office of Ozark Legal Services. However, the mere fact that a trial court orders something to be done in the progress of a case does not make that order a mandatory injunction. O’Malley v. Chrysler Corporation, 160 F.2d 35 (7th Cir. 1947).

All court orders are mandatory in the sense that they are to be obeyed, but not all orders are mandatory injunctions. Id. To be a mandatory injunction, the order must be based upon equitable grounds to justify the use of the extraordinary powers of equity, such as irreparable harm and no adequate remedy at law. Id. In addition, the order must determine issues in the complaint, not merely aid in the determination of such issues. Id.

In O’Malley, supra, the court held that an order imposing a burden on the defendant to compute time spent by its employees on its premises was not an interlocutory mandatory injunction. In Union Oil Co. v. Reconstruction Oil Co., 4 Cal. 2d 541, 51 P.2d 81 (1935), the court held that an order requiring the defendants to permit examination of their property and prohibiting defendants from interfering with the carrying out of the order, was not a mandatory or prohibitory injunction. Likewise, the order before us does not grant any sort of injunction.

In conclusion, the probate court’s order was obviously intended to aid in the determination of the issues raised in the complaint, nothing more. This order is not appealable under Ark. R. App. P. 2(a)(6).

Appeal dismissed.

Hickman, J.,

concurs. Would affirm the trial court under Rule 9.


source: Caselaw Access Project

author: Darrell Hickman, Justice. Darrell Hickman, Justice.

license: Public Domain

text:
    Mark JONES, et ux. v. Barbara DAVIS, et al.
    89-120

      777 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989
    [Supplemental Opinion on Denial of Rehearing November 13, 1989.]

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Brian Allen Brown, for appellee.
   Darrell Hickman, Justice.

This is a personal injury case. The only question is whether a stepfather is liable for his minor stepson’s negligence in driving a vehicle. The trial judge granted summary judgment on this question holding in favor of the stepfather. We affirm.

Mark Jones, the appellant, was riding a motorcycle when he was struck by a vehicle driven by Charles A. Volpert who was seventeen years old. Volpert’s mother, Barbara Davis, signed his application for a driver’s license, and the car was registered in her name. She is married to Charles E. Davis, the appellee. Volpert’s father is living in Pulaski County and contributes $250 per month for his son’s support. Neither Volpert’s father nor his stepfather, Davis, signed the application.

The appellants contend Charles E. Davis stood in loco parentis or in place of a parent, and was required to sign Volpert’s application for a driver’s license and is therefore liable for his stepson’s negligence. Ark. Code Ann. § 27-16-702(a)(l) (Supp. 1987) provides:

The original application of any person under the age of eighteen (18) years for an instruction permit, operator’s license, or motordriven cycle or motorcyle license shall be signed and verified before a person authorized to administer oaths by either the father or mother of the applicant, if either is living or has custody. In the event neither parent is living, then the application shall be signed by the person or guardian having custody or by an employer of the minor. In the event there is no guardian or employer, then the application shall be signed by any other responsible person who is willing to assume the obligations imposed under this subchapter upon a person signing the application of a minor.

The language in the statute clearly requires that either parent, if living, sign a minor’s application for a driver’s license. Only if neither parent is living is anyone else authorized to sign the application. Volpert’s mother and father were living at the time he applied for his license. Therefore Volpert’s stepfather was not required or authorized to sign the application and cannot be held liable under Ark. Code Ann. § 27-16-702(c)(1) (Supp. 1987).

Words in a statute must be given their usual and ordinary meaning. If there is no ambiguity, the statute is given effect just as it reads. Chandler v. Perry-Casa Public Schools, Dist. No. 2, 286 Ark. 170, 690 S.W.2d 349 (1985). There was no genuine issue of material fact, and the trial judge correctly granted summary judgment. See Scully v. Middleton, 295 Ark. 603, 751 S.W.2d 5 (1988).

Affirmed.

Glaze, J., not participating.

779 S.W.2d 181

James C. Baker, Jr., for appellant.

Jacob Sharp, Jr., for appellee.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

NOVEMBER 13, 1989

Darrell Hickman, Justice.

The appellants point out that we have applied a statute, Ark. Code Ann. § 27-16-702 (Supp. 1987), which was not in effect at the time Volpert obtained his driver’s license. They are correct, but our holding is not changed.

We should have applied Ark. Code Ann. § 27-16-702 (1987) which reads as follows:

The original application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall be signed and verified before a person authorized to administer oaths by both the father and mother of applicant, if both are living and have custody of him, or in the event neither parent is living, then by the person or guardian having custody or by an employer of the minor, or in the event there is no guardian or employer, then by any other responsible person who is willing to assume the obligations imposed under this chapter upon a person signing the application of a minor.

This law provided, as does the amended version, that only if neither parent is living is anyone else required or authorized to sign the application. Since Volpert’s mother and father were living at the time he applied for his license, Volpert’s stepfather was not required or authorized to sign the application.


author: David Newbern, Justice.

text:
    Bobby Darryl TILLMAN v. STATE of Arkansas
    CR 89-90

      777 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989

      John W. Achor, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Bobby Darryl Tillman, was convicted of first degree murder and sentenced to 40 years imprisonment. He argues that the evidence of premeditation and deliberation was insufficient and that the court erred in refusing to permit a police officer to testify on cross-examination with respect to an exculpatory statement Tillman made to the officer. We affirm because the evidence was sufficient to show premeditation and deliberation and, even if it were error to refuse the testimony, there was no prejudice.

Tillman admitted to the police and testified at the trial that he killed his former brother-in-law, Roosevelt Simmons, with a shotgun. There was evidence that the breakup of Simmons’s marriage to Tillman’s sister Carolyn occurred because Simmons had attempted to molest Carolyn’s daughter. Simmons was a cocaine source for Tillman, and he and Tillman continued their association after Simmons’s divorce from Carolyn.

Tillman testified that on'February 12, 1988, he and Simmons were at Simmons’s apartment. They got into an argument, and Tillman had difficulty leaving the apartment. His testimony and that of his brother-in-law, Ronnie Williams, showed that after Tillman left Simmons’s apartment he called Williams to pick him up in Williams’s car. Williams took Tillman to Tillman’s home where Tillman obtained a shotgun. He then drove Tillman to Simmons’s apartment. Tillman got out of the car. As Williams was leaving the apartment area, Tillman came running up to his car, without the shotgun, and got in. Williams drove Tillman back to Tillman’s home. On the way, Tillman said, “I got him.” When Tillman returned to his home, he told his wife the same thing.

Tillman testified that he had paid Simmons $25 for some cocaine but that Simmons had refused to give it to him. During their argument he became convinced that Simmons was going to kill Tillman’s niece. He went home, got his shotgun, returned to Simmons’s apartment, and first blew out the sliding glass patio door. He then went into the apartment firing the weapon and finally shot Simmons who was hiding in a closet.

1. Premeditation and deliberation

Tillman’s argument is that his actions were so open they cannot be considered those of a rational person who planned the homicide. He presented evidence that the combination of alcohol and cocaine found during the autopsy of Simmons’s body might have caused Simmons to be very hostile. With this argument that he was afraid of Simmons, Tillman combines the threat to his niece, although he does not argue specifically that his acts should be condoned because he was acting in defense of another person.

The evidence of premeditation and deliberation was sufficient. Tillman left Simmons’s apartment to obtain a potent weapon and then returned with the weapon and committed the killing by shooting Simmons in the right chest from a short distance. To show premeditation the state must prove Tillman (1) had the conscious object to cause death, (2) formed that intention before acting, and (3) weighed in his mind the consequences of a course of conduct. Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. denied 459 U.S. 1022 (1980). In determining whether there was premeditation and deliberation, the jury may consider the nature of the weapon used, the extent and location of the wounds inflicted, and Tillman’s actions. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). See also Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925). We hold the evidence was sufficient.

2. The testimony

Officer Clyde Steelman witnessed the statement given by Tillman after he had turned himself in to the police. During cross-examination, Tillman’s attorney asked Steelman: “And did you ask him this qustion and did he give this answer: ‘Why did you kill Roosevelt this afternoon, what was the reason’ ? ” The prosecution objected, and Steelman was not allowed to answer on the ground that it would have been hearsay evidence. Tillman’s attorney made no offer to the court of the testimony the officer would have given had he been allowed to answer.

Tillman argues the answer to the question was admissible because A.R.E. 803(3) permits an exception to the hearsay rule for an excited utterance or because A.R.E. 804 permits an exception for a statement against interest where the declarant is unavailable because of a privilege. He also contends the lack of an offer of the evidence does not matter because it was clear from the context of the trial that he was trying to show he told the officer he shot Simmons because he feared Simmons would again molest his niece. Later in the trial he testified that that was what he had told the police.

We find no need to discuss the cited rules. A.R.E. 103(a) provides that an evidentiary ruling will not be the basis of error unless “a substantial right of the party is affected. . . .” Even if the officer had been allowed to testify and had said Tillman told him of his fears, it could have made no difference in the outcome of this case. The evidence from which the jury concluded the killing was done with premeditation and deliberation would have been unaltered, and there is no argument that it would have or could have affected the sentence. We hold that in these circumstances no substantial right was affected, so the error, if any, in excluding it was not prejudicial. Phillips v. State, 293 Ark. 588, 739 S.W.2d 688 (1987).

Affirmed.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    Jimmy EDWARDS and Romy L. Acton v. CITY OF CONWAY, Arkansas
    CR 89-109
    777 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989

      Mark S. Cambiano, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellants were convicted of the misdemeanor offense of hunting turkey in a closed zone. The Conway Municipal Court suspended the appellants’ hunting licenses for one year and fined them each $500 with $300 suspended. Appellants’ attorney, David L. Gibbons, failed to perfect their appeal in the Faulkner County Circuit Court. Their newly retained attorney filed in circuit court a motion for belated appeal and a motion for Rule 37 relief alleging ineffective assistance of counsel. The trial court denied the appellants’ requested relief. We affirm.

Arkansas Inferior Court Rule 9 governs an appeal from municipal court to circuit court. It provides in pertinent part the following:

(a) All appeals in civil cases from inferior courts to circuit courts must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.
(b) An appeal from an inferior court to the circuit court shall be taken by filing a record of the proceedings had in the inferior court. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and the appellant shall have the responsibility of filing such record in the office of the circuit clerk. . . .

This court has interpreted this filing requirement to be mandatory and jurisdictional. See, e.g., Wheeler v. City of Arkadelphia, 254 Ark. 533, 495 S.W.2d 862 (1973). Further, it is the duty of the counsel, not the judge, clerk, or reporter, to perfect the appeal. Lowe v. State, No. CR 89-160 (October 2, 1989).

Since the appellants’ appeal was untimely pursuant to Rule 9, they filed a petition for belated appeal in the circuit court with an affidavit from their first attorney admitting responsibility for failing to perfect their appeal. Pursuant to A.R.Cr.P. Rule 36.9, this court may grant a belated appeal, in criminal cases, when a good reason for failing to perfect the appeal is shown by affidavit. But, there is no rule that gives the circuit court authority to accept untimely appeals. In fact, in Gray v. State, 277 Ark. 442, 642 S.W.2d 306 (1982), this court held that a trial court had no authority to grant a belated appeal. Here, the trial court acted properly in denying the appellants’ motion for belated appeal.

Likewise, we affirm the trial court’s denial of appellants’ Rule 37 petition. Pursuant to A.R.Cr.P. Rule 37, post-conviction relief is available where a prisoner is in custody under sentence of a circuit court and whose case was not appealed to the supreme court or court of appeals. Clearly, the appellants were not in custody and were not sentenced by the circuit court.

In affirming the trial court, we mention the appellants’ constitutional argument concerning their right to a jury trial. In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court held that defendants are not entitled to a jury trial for petty offenses. Here, the offense with which appellants were charged and convicted was a petty offense and one for which they had no constitutional right to a jury. Cf. Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975).

Appellants also cite art. 2, § 7 of the Arkansas constitution and claim that its provisions guarantee their right to a jury trial in all cases at law without regard to the amount of controversy. However, persons are not entitled to a jury trial in municipal court except that such right to jury remains inviolate when they pursue their appeal to circuit court where their case is tried de novo. See Ark. Code Ann. §§ 16-17-703 and -704 (Supp. 1987). That appeal, as previously discussed above, must be properly perfected; the circuit court has no authority to accept untimely appeals. In other words, in order to exercise this right in circumstances as those present here, a timely appeal must have been filed pursuant to Arkansas Inferior Court Rule 9.

For the reasons stated above, we affirm.

Purtle and Newbern, JJ., concur.

David Newbern, Justice,

concurring. Failure of counsel to perfect an appeal is a basis for granting a belated appeal from a circuit court to an appellate court. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979); Ellis v. State, 216 Ark. 560, 637 S.W.2d 588 (1982); Nelson v. State, 272 Ark. 287, 613 S.W.2d 598 (1981). See Ark. R. Crim. P. 36.9. Just as we have the power to grant such appeals from the circuit court, the circuit court should have the power to grant belated appeals, upon a showing of good cause, from the municipal court. The court’s opinion correctly reveals that the circuit court does not now have that power. While the decision is correct, it reveals an unfair gap in our rules.

Until we adopt a rule permitting a circuit court to grant, upon a showing of good cause, a belated appeal from a municipal court, it is my opinion that this court has the authority to permit a belated appeal from a municipal court to a circuit court, and we should exercise it. Arkansas R. Crim. P. 1.2 provides:

These rules shall govern the proceedings in all criminal cases in the Supreme Court and in circuit courts of the State of Arkansas. They shall also apply in all other courts where their application is practicable or constitutionally required.

It is practicable, for now, to apply Rule 36.9 to appeals of municipal court proceedings. The appellants should be allowed to petition this court for a belated appeal of their case from the municipal to the circuit court, based upon the affidavit of their counsel stating that he mistakenly failed to perfect their appeal on time.

Purtle, J., joins in this concurrence.

        In Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982), we stated that the filing of the notice of appeal within the time prescribed by A.R.Cr.P. Rule 36.9 is not jurisdictional as to this court.

       Appellants also mention their entitlement to effective assistance of counsel under the sixth amendment to the United States Constitution and art. 2, § 10 of the Arkansas constitution. As we explain later in this opinion, the Supreme Court in Duncan v.
        Louisiana, 391 U.S. 145 (1968), has held defendants are not entitled to a seventh amendment right to a jury trial in petty offense cases. That Court also has held that the sixth and fourteenth amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel. Scott v. Illinois, 440 U.S. 367 (1979). In sum, appellants here fail to cite any authority or offer convincing authority to support their position that they are entitled to effective counsel in a situation concerning a petty offense.


text:
    Wade BRATTON v. Leland GUNN, d/b/a Gunn Systems
    89-37

      777 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989

      Jim O’Hara, for appellant.

      McCracken & Sims, by: Barry A. Sims, for appellee.
   Robert D. Stroud, Special Chief Justice.

Gunn Systems, Inc., sued appellant Wade Bratton, its insurance agent, alleging that Bratton collected insurance premiums but did not obtain insurance coverage. The complaint asserted that appellant had “fraudulently converted Plaintiffs funds for his own use and deliberately failed to provide Plaintiff with insurance coverage.” Subsequently, appellant filed a motion for summary judgment on the ground that Gunn Systems, Inc., had no corporate existence. An amended and substituted complaint was filed in the name of Leland Gunn, d/b/a Gunn Systems, appellee herein. The allegations and remedies sought in the amended and substituted complaint remained identical for all practical purposes.

Appellant denied the allegations and affirmatively stated that the insurance coverage had been obtained. Later, appellant moved again for summary judgment, attaching affidavits and exhibits which tended to refute entirely the factual and legal allegations contained in the amended and substituted complaint. No response to the motion for summary judgment was filed, and on the day before the hearing on that motion the appellee filed for, and obtained, a voluntary nonsuit.

Shortly before the nonsuit was entered, appellant filed a motion for ARCP Rule 11 sanctions, attached to which were an affidavit executed by appellant’s attorney and other exhibits. Appellee responded, stating that he and his counsel believed the pleadings filed were well grounded in fact and denied that the suit was initiated for an improper purpose.

On October 7, 1988, counsel for both parties appeared before the trial court for a hearing on the Rule 11 motion. No testimony was taken, no exhibits were introduced and no record was made of the proceedings. On November 2, 1988, the trial court entered its order, which is quoted in its entirety:

The Court, having considered the defendant’s Motion for Rule 11 Sanctions, finds that the Motion is without merit and that sanctions should not be granted.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the Defendant’s Motion For Rule 11 Sanctions should fail and sanctions against Plaintiff and Plaintiff’s counsel should not be imposed.

From this order, appellant appeals. The record on appeal consists solely of the pleadings, the affidavits and exhibits attached to them, and the order denying sanctions.

We considered Rule 11 in Miles v. Southern, 297 Ark. 274, 760 S.W.2d 868 (1988). We indicated our agreement with the approach taken by the 8th Circuit in O’Connell v. Champion Int’l Corp., 812 F.2d 393 (8th Cir. 1987), in that the imposition of sanctions is a serious matter to be handled with circumspection and that the trial court’s decision was due substantial deference. The gist of the holding in Miles was that the appellant had not demonstrated error.

We start our analysis of this Rule 11 case by noting that the rule provides (1) that the signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or paper filed in the judicial proceedings, and (2) that, to the best of his knowledge, information and belief formed after reasonable inquiry, those documents are well grounded in fact and are warranted by existing law or a good faith argument for the extension, modification or renewal of existing law. The rule further provides that the pleading, motion or other paper is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Rule 11 also provides for mandatory sanctions when the rule has been violated. Whether a violation of Rule 11 has occurred is a matter for the court to determine. While this determination involves matters of judgment and degree, it nevertheless requires the trial court to consider evidence. It is the moving party’s burden to adduce proof of the violation alleged in the Rule 11 motion.

The conduct by the appellee in this case may well have been sufficient to warrant a finding that Rule 11 was violated. Based on the record, however, we cannot know that because no evidence was placed in the record at the hearing on the motion. In his motion, the appellant states that, at the time the complaint and the amended complaint were filed, the appellee either knew the allegations contained therein were false or failed to make a reasonable inquiry as to the truth or falsity of them. The issues raised in the motion, therefore, were factual ones.

Trial courts must decide factual issues based on evidence. Although we make no such conclusion, it may well be that the pleadings, affidavits and exhibits which comprise the record on appeal would have made a sufficient factual case, on circumstantial evidence alone, to justify a finding that Rule 11 had been violated, but those matters were not introduced in evidence. On the other hand, had they been introduced at the hearing the appellee might have been able to produce proof of sufficient weight to overcome appellant’s evidence. Certainly due process would require that he be allowed to do so; but when faced with no evidence against him, he had no reason to make a factual rebuttal of the allegations contained in the Rule 11 motion. When arguing on appeal, the burden is on the appellant to demonstrate error and to bring up a record which so demonstrates. RAD-Razorback Limited Partnership v. B.G. Coney Company, 289 Ark. 550, 713 S.W.2d 462 (1986). When the appellant does not demonstrate error, we affirm.

Since this case involves matters of interest to the bench and the bar, and deals with the administration of justice, we take this opportunity to note the salutary purposes of Rule 11 and to further state the courts’ interest in the fair application of it. With that in mind, and notwithstanding the language in ARCP Rule 52 that makes findings of fact and conclusions of law unnecessary in decisions on motions, we believe the better practice is for the trial court to give an explanation of its decision on Rule 11 motions sufficient for the appellate courts to review.

Affirmed.

Holt, C.J., and Hays, J., not participating.

F. Wilson Bynum, Special Justice, joins in this opinion.


author: Per Curiam. John I. Purtle, Justice,

text:
    Daniel Ray HOWARD, Roosevelt Abernathy, and Elgie Sanders v. A.L. LOCKHART, Director, Arkansas Department of Correction
    89-216, 89-94, 89-83
    777 S.W.2d 223
    Supreme Court of Arkansas
    Opinion delivered October 9, 1989

      Appellants, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen. and David B. Eberhard, Asst. Att’y Gen., for appellee.
   Per Curiam.

These cases are consolidated, inasmuch as they have common characteristics. All are civil in nature, all are governed by the rule announced in Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986), and Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986), and all reflect the same defect.

Roosevelt Abernathy, acting pro se, petitions for the appointment of counsel to assist him in his appeal from an order of the Jefferson Circuit Court and for permission to file a handwritten brief. Daniel Ray Howard and Elgie Sanders petition for permission to file handwritten briefs in their cases.

In Virgin v. Lockhart, supra, we pointed out that in criminal cases an accused has a constitutional right to counsel, but that there is no corresponding right to counsel in post-conviction proceedings or in civil actions. Dyer v. State, 258 Ark. 494, 527 S.W.2d 672 (1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971); see Johnson v. Teasdale, 456 F. Supp. 1083 (W.D. Mo. 1978). Hence, in none of the proceedings filed here or in circuit court by these petitioners is there any constitutional right to the relief being sought. We have held, however, that if a petitioner is able to make a substantial showing that he is entitled to relief and that he or she cannot proceed without counsel, we will entertain such petition. We have adopted a similar policy with respect to handwritten briefs by pro se petitioners. Glick v. Lockhart, supra.

None of the petitioners has made any attempt to comply with the policies announced in Virgin and Glick. Of the three, only Roosevelt Abernathy’s petition contains an allegation touching on the merits, and that consists of nothing more than a conclusory allegation that the petition’s cause has merit. Conclusory assertions of merit, however artfully phrased, do not meet the requirements of Virgin and Glick. It is essential that such petitions set forth facts upon which the claim or cause is based in such a manner that it can be objectively determined by the court that there is substantial merit in the cause which petitioner seeks to further.

These petitioners having failed to make any showing of merit, their petitions are denied.

John I. Purtle, Justice,

dissenting. In a nicely worded opinion this court has this day denied appellant Daniel Ray Howard’s petition to file handwritten briefs. His motion for appointment of counsel to represent him in this appeal had been previously denied. His “right” to appeal is therefore rendered to the status of a worthless piece of paper.

In Long v. State, 281 Ark. 40, 660 S.W.2d 912 (1983), a prisoner requested that this court dismiss his appointed attorney and allow him to file a pro se brief. We denied the motion and quoted the following language from Green v. State, 277 Ark. 129, 639 S.W.2d 512 (1982):

A criminal appellant is presented the choice of proceeding with or without an attorney. For those who want an attorney but cannot afford one, counsel is appointed. . . . There is no constitutional right to file a handwritten brief. If a pro se appellant cannot for some reason use or obtain the use of a typewriter, then he should consider allowing an attorney to perfect the appeal.

No authority need be cited for the self-evident proposition that a prisoner who is allowed to proceed pro se cannot possibly follow the rules of the court requiring typewritten briefs. Clearly, in the present case and similar ones, it is a denial of due process to refuse to allow handwritten briefs to be filed. In the alternative, we could order that the briefs be transcribed at state expense. Otherwise, the petitioner is not afforded equal protection of the laws.

I see no need for a distinction between civil and criminal appeals when they involve residents of the Arkansas Department of Correction.

Petitioner Roosevelt Abernathy filed a notice of appeal from the decision of the Jefferson County Circuit Court and requested this court to appoint counsel. His petition was also denied by this court. The petitioner, an indigent, made the request pro se. He states that he lacks the skills and capabilities necessary to properly present the issues before this court. We will never know whether he has been denied justice. The petition should be granted.

The court today also denied Elgie Sanders’s motion for extension of time and for permission to file handwritten briefs on appeal. Had an attorney made the same request, we would, no doubt, have granted it. Why then should a reasonable request be denied one who represents himself? Considering the number of residents in the Arkansas Department of Correction, it would be impossible to provide all of them the use of a typewriter and a full library. Neither are the residents afforded secretarial services.

The only way the appellants can obtain review is for this court to allow them to file handwritten briefs or to appoint attorneys for them.


author: Jack Holt, Jr., Chief Justice.

text:
    Anthony STEWART v. STATE of Arkansas
    CR 89-97

      777 S.W.2d 844
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989
    [Rehearing denied November 13, 1989.]

      William R. Simpson, Jr., Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Anthony Stewart, was found guilty of rape and sentenced as a habitual offender with four prior convictions to fifty years imprisonment. For reversal, he contends that there was insufficient evidence from which to adjudge him an habitual offender in that the State did not prove he was represented by an attorney for each of the prior convictions. We disagree and affirm.

The State has the burden of proving a defendant’s prior convictions. Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).

For the purpose of sentence enhancement pursuant to our habitual offender code provisions [Ark. Code Ann. §§ 5-4-501 — 5-4-504 (1987)], the State may prove a prior conviction by any evidence that satisfies the court beyond a reasonable doubt that the defendant was convicted or found guilty. Ark. Code Ann. § 5-4-504(a) (1987); Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980). On appeal, the test is whether there is substantial evidence that the appellant was previously convicted of the felonies in questions. Allen, supra. See also Elmore, supra.

Unless the records of prior convictions show that the defendant was represented by counsel, there is a presumption that the defendant was denied assistance of counsel, and the convictions cannot be used to enhance punishment under our habitual offender provisions. Reeves v. Mabry, 480 F. Supp. 529 (W.D. Ark. 1979), aff'd 615 F.2d 489 (8th Cir. 1980). See also Knight v. State, 277 Ark. 213, 640 S.W.2d 442 (1982).

In Reeves v. Mabry, supra, the circuit clerk testified from the records that the appellant conferred with attorney Martin Green. The docket sheet in the previous case was admitted into evidence, which indicated that the court would not accept appellant’s guilty plea until he had conferred with Martin Green; that Martin Green did confer with appellant; and that after the conference, the court accepted the pleas.

The court stated, “Although the word ‘appointment’ is not used in the docket entry, it is clear that the Court, in asking Martin Green to confer with Reeves [appellant] and Riley Cunningham, was appointing Martin Green as their counsel.” The court then held that the testimony of the circuit clerk and the docket sheet showed that appellant was represented by counsel.

Likewise, in the case at bar, docket sheets, as well as other documents, show that Stewart was represented by counsel. In enhancing Stewart’s sentence under our habitual offender provisions, the trial court considered the records of the Arkansas Department of Correction (the proverbial “pen pack”) and certified documents from the Circuit Clerk of Woodruff County. These records and documents, admitted into evidence as State’s Exhibit No. 2, included docket sheets, a plea statement, judgments, an admission summary, and transcriptions of Stewart’s plea and arraignment proceedings, all in reference to appellant’s four convictions in Woodruff Circuit Court (case numbers: CR-80-47, CR-80-54, CR-80-55, and CR-80-56).

The docket sheets for all four cases reflect that the attorneys were “Gene Raff” for the State of Arkansas and “T.B. Fitzhugh Appt.” for Anthony Stewart. Further examination of the docket sheets indicates that plea and arraignment was held on July 24, 1980. A certified copy of these proceedings reflects that a Mr. Fitzhugh appeared as defense counsel in regard to all four charges and requested a continuance in the cases since he had been recently appointed.

On August 18,1980, Stewart pleaded guilty to all charges. Accompanying the pleas of guilty was a plea statement executed by Stewart and by “Bay Fitzhugh,” attorney. Subsequent to sentencing, Stewart was placed in the custody of the Department of Correction. The Department’s admission summary shows that Stewart was represented by T. Fitzhugh in all four cases. Obviously, T.B., Bay, and T. Fitzhugh are the same person.

Granted, the certified copies of the court’s judgments in these cases do not mention Fitzhugh, nor do they reflect whether or not Stewart was represented by counsel or if he validly waived that right. However, the docket entries, records of the proceedings, plea statement, and admission summary indicate that Stewart was represented by counsel. Accordingly, we have no trouble in concluding that there is substantial evidence that appellant had the benefit of counsel and was previously convicted of the felonies in question. Allen, supra.

Affirmed.

       Attention is directed to Ark. Sup. Ct. R. 9, which provides in pertinent part that “[t]he appellant’s abstract or abridgment of the records should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” Appellant’s abstract is deficient in that he failed to abstract State’s Exhibit No. 2 in his brief. After the appellee pointed out this deficiency pursuant to Ark. Sup. Ct. R. 9(e)(1), appellant abstracted documents contained in State’s Exhibit No. 2 in his reply brief. It is improper for an appellant to attempt to correct an abstracting deficiency in his reply brief as the appellee at that late date does not have the opportunity to supply any deficiencies in the appellant’s abstract. Weston v. Ponder, 263 Ark. 370, 565 S.W.2d 31 (1978). See also Merrit v. Merrit, 263 Ark. 432, 565 S.W.2d 603 (1978). We further note that appellant did not abstract all of the documents contained in Exhibit No. 2. Copies of the plea statement and the admission summary are missing.


author: Jack Holt, Jr., Chief Justice. Tom Glaze Justice,

text:
    Robert Lee WILLIFORD, Jr. v. STATE of Arkansas
    CR 89-60
    777 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      William R. Wisely, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Robert Lee Williford, Jr., was convicted of murder in the first degree, attempted murder in the first degree (four counts), theft of property over $200.00, and arson. He was sentenced to a term of life imprisonment plus 196 years. From this judgment he appeals. For reversal, he contends that the trial court erred in refusing to allow a witness to testify under Ark. R. Evid. 804(b)(3). We disagree and affirm.

After having an argument with his girlfriend, Williford went to a residence, which he shared with others, on Woodlawn Street in Hot Springs, Arkansas, around 11:00 p.m. on August 2,1988. Upon arrival, Williford discussed his “girlfriend” problem with Sue Gomez, his aunt, who apparently was unsympathetic. Williford and Shawnette Walker, Sue Gomez’s niece, began drinking vodka and orange juice and watching television. Julie Martin, Gomez’s daughter, and an owner of a half-interest in the house, and Bridgette Tharp, Martin’s friend, returned home at approximately 11:45 p.m. Shortly thereafter, Sue Gomez and Miguel Gomez, her husband, went to bed. About 2:00 a.m., Martin and Tharp left to get something to eat. When they returned around 3:00 a.m., Williford and Walker were still watching television. According to Martin, Williford appeared to be intoxicated.

Williford then carried Walker, who had fallen asleep on the couch, to bed. A short time later, Williford awakened Walker and asked her if he could use her car. She agreed. When Martin and Tharp started to go to bed around 3:45 a.m. Williford asked them if they were going to sleep, and Martin said, “Yes.” At 4:30 a.m., Martin woke up after hearing what sounded like an explosion. Tharp opened the bedroom door and encountered flames. Tharp and Martin exited by way of the garage door, went next door to a neighbor’s house, and called the fire department.

Miguel Gomez testified that he woke up when the “fire ran the door to my bedroom” and also that Sue Gomez woke him up and told him, “Michael, Michael, the house is burned.” Walker testified that Sue Gomez woke her up screaming, “The house is on fire.” Walker escaped through the back door. The fire department arrived at 5:00 a.m. After learning that people were still inside, a fireman went in and found Sue Gomez lying in the dining room by the back door and Miguel Gomez lying inside the front door. They were rushed to the hospital.

Sue Gomez received burns to seventy percent of her body and died two weeks later from resulting complications. Miguel Gomez and Shawnette Walker were also burned but they survived. Julie Martin and Bridgette Tharp escaped unharmed.

At about 5:00 a.m., a Garland County deputy sheriff spotted a black Camaro speeding down Highway 7. He pursued the car for several miles. At one point, the Camaro collided with the deputy’s car. The deputy attempted to catch the car but could not. When returning to town, he spotted the Camaro parked by a building. The car was towed to the Hot Springs police station and, a short time later, Williford was apprehended. A smoke detector, a fire alarm, and a burglar alarm were found in the car, which was registered to Sue Gomez.

After signing a rights waiver form, Williford made a confession to the police about 2:00 p.m. He stated that he had gotten into an argument with his girlfriend on the evening prior to the fire and had discussed this matter with his aunt, Sue Gomez, who was unsympathetic. In addition, he confessed that in the early morning hours of August 3, 1988, he removed the smoke detectors and fire alarms from the house and put them in the Camaro, poured gasoline in the hallway and living room, lighted the gasoline with a Bic lighter, exited the house, and drove away.

Arval Sanders, the Fire Marshall for Hot Springs, testified that the fire was an arson fire started with gasoline. He stated that the points of origin of the fire were the hallway area leading to the bedrooms, which was lighted first, and an area near the front door. He also testified that usually in a situation where gasoline is used, the person lighting the fire has a good possibility of getting burned. However, he asserted that this was not the case here since there was a return air duct in the house, which would prevent the fire from receiving oxygen. He also testified that unless one is a fire specialist or a professional arsonist, he would have a “fifty-fifty” chance of being burned if he started a fire of this type. Sanders conceded that more than one person could have started the fire.

At trial, Williford took the stand and recanted the confession he gave on the day of the fire. He testified that at around 3:00 to 3:30 a.m. on August 3,1988, Sue Gomez came into the front room of the house and advised him of her desire to collect insurance proceeds from burning the house in the same way she had previously collected insurance proceeds on another house she had burned on Spencer Street. She then asked him to take part in burning the house. Specifically, Williford testified that she asked him to get rid of all the smoke detectors and burglar alarms and anything personal he wanted to keep. He testified that he took a smoke detector from the wall and helped Sue Gomez unhook the burglar alarm. However, he denied that he started the fire. He asserted that he only admitted starting the fire to “cover up” for her, since she had a police record and had recent problems with the authorities over her fortune-telling business. He also stated that when he confessed he did not know anyone had been killed. Williford himself has a prior record, having pleaded guilty to two counts of burglary in 1987.

After Williford’s testimony, the defense counsel proffered testimony by Philip Parmley, a convicted felon, that on July 4, 1988, Sue Gomez had called him on the telephone and told him that she wanted to discuss something with him. They then met at Wittington Park later that night. Sue Gomez drove up in what Parmley believed to be a black Camaro.

Parmley alleged that Gomez told him that she had talked to a female acquaintance of his who had told Gomez that he might be interested in making some money. Gomez informed Parmley that she was in desperate need of money and offered him $1,000.00 to burn down a house in an arson for profit scheme. According to Parmley, he declined the offer. At that point, Gomez stated, “Well, it really wasn’t something I was planning on doing. It was just a thought.” She then departed.

After this proffer, defense counsel moved for the court to allow Parmley to testify concerning the conversation with Gomez under Ark. R. Evid. 804(b)(3). Over defendant’s objection, the trial court denied the motion, finding that the corroborating circumstances did not clearly indicate the trustworthiness of Gomez’s statement and, therefore, the statement was inadmissible under Rule 804(b)(3).

For reversal, Williford contends that the trial court erred in refusing to allow Parmley to testify concerning the statement by Gomez pursuant to Ark. R. Evid. 804(b)(3).

Ark. R. Evid. 804(b) provides in pertinent part as follows:

Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. . . .

For a statement tending to expose the declarant to criminal liability and offered to exculpate the accused to be admissible under Rule 804(b)(3), the proponent must show (1) that the declarant is unavailable, (2) that the statement was at the time of its making “so far tended to subject him to criminal liability” that a reasonable person in the declarant’s position would not have made the statement unless he believed it to be true, and (3) that corroborating circumstances clearly indicate the trustworthiness of the statement.

Absent an abuse of discretion, this court will not reverse a trial court’s ruling on the admissibility of a statement against penal interest. See Welch v. State, 269 Ark. 208, 599 S. W.2d 717, cert. denied, 449 U.S. 996 (1980).

In the case at bar the declarant, Sue Gomez, died in the fire. In addition, her statement to Parmley that she would give him $ 1,000.00 if he participated in the arson for profit scheme “so far tended to subject her to criminal liability” if the house, in fact, burned that a reasonable person in the declarant’s position would not have made the statement unless she believed it to be true. For the purposes of Rule 804(b)(3), it is not material that the statement was made before the house was burned. See 4 D. Louisell & C. Mueller, Federal Evidence § 489 (1980). See also State v. Parrish, 205 Kan. 178, 468 P.2d 143 (1970). In Parrish, the Supreme Court of Kansas held that a statement by the declarant indicating that he planned to commit arson was a statement against interest.

The sole issue remaining before us is whether Williford presented corroborating circumstances to the trial court that clearly indicated the trustworthiness of the declarant’s statement. Some circumstances do corroborate the trustworthiness of declarant Sue Gomez’s statement of July 4, 1988, to Parmley concerning the arson for profit scheme:

(1) Testimony by appellant and Julie Martin that the declarant, Sue Gomez, had suffered a fire loss in 1987 at a house located on Spencer Street in Hot Springs and testimony by appellant that the declarant asked Williford to burn the house on Spencer Street, as well as the house on Woodlawn Street, in arson for profit schemes corroborates her statement to Parmley that she would give him $1,000.00 to participate in an arson for profit scheme.

(2) Testimony by the Fire Marshall that the fire was an arson fire started with gasoline, that more than one person could have started the fire, and that whoever started the fire would have only a “fifty-fifty” chance of escaping injury due to the nature of the fire; testimony by the State Medical Examiner that the declarant, Sue Gomez, had burns over seventy percent of her body; and testimony that the other residents of the house did not sustain severe injury somewhat increases the likelihood that Sue Gomez asked Parmley to burn down a house in an arson for profit scheme.

(3) The proposed testimony by Parmley that Sue Gomez drove up on the night of July 4,1988, in what he believed to be a black Camaro, coupled with the evidence that a black Camaro was registered to Sue Gomez, corroborates the trustworthiness of her statement.

(4) The fact that Parmley identified at trial a photograph of Sue Gomez as the person he talked to on July 4, 1988, also corroborates the trustworthiness of her statement.

Other circumstances, however, indicate that the statement is untrustworthy:

(1) Testimony of the Fire Marshall that there was a return air duct in the house, which would prevent the fire from receiving oxygen, and that, therefore, the person starting the fire did not have a good possibility of getting burned diminishes the corroborative strength of his testimony that whoever started the fire would have only a “fifty-fifty” chance of escaping injury due to the nature of the fire.

(2) Testimony concerning the circumstances and events prior, during, and subsequent to the fire further contradicts the trustworthiness of the statement by Sue Gomez. Julie Martin testified that Sue Gomez went to bed around 12:00 to 1:00 a.m. on the morning of the fire. It is undisputed that Williford did not go to bed prior to the fire, but stayed up drinking vodka and orange juice, and remained awake until all of the occupants had gone to bed. He left the house shortly before the fire started; approximately thirty minutes after the house caught on fire, he was involved in a high speed car chase with a deputy sheriff. Upon searching the car he was driving, the police found a smoke detector, fire alarm, and burglar alarm taken from the house.

Miguel Gomez testified he woke up when “fire ran the door to my bedroom” and that Sue Gomez woke him up and stated, “Michael, Michael, the house is burned.” The Fire Marshall testified that the hallway area leading to the bedrooms was lighted first and the area near the front door lighted second.

If Gomez started the fire, she would have had to have lighted the gasoline in the hallway by her bedroom, gone to the area near the front door of the house and lighted the gasoline there, run back through the flames, and then awakened Gomez — a highly unlikely sequence of events.

Accordingly, it is improbable that Sue Gomez was involved with starting or planning the fire as suggested in the proposed testimony.

(3) Williford’s confession that he started the fire negates the trustworthiness of the declarant’s statement. The accuracy of the details given by Williford in his confession concerning how and where the fire was started make it likely that he started the fire, not Sue Gomez. His explanation at trial for confessing to the crime, i.e., that he was “covering up” for Gomez because she had a prior record and had recent problems with the authorities over her fortune-telling business is not convincing.

In conclusion, the trial court was correct in determining that the corroborating circumstances did not clearly indicate the trustworthiness of the declarant’s statement and did not abuse its discretion in excluding the testimony of Philip Parmley.

Although the State’s brief does not indicate compliance with Ark. Sup. Ct. R. 11 (f), to save the time which would be required to have the case rebriefed by the attorney general, we have examined the record and found no meritorious objections decided adversely to Williford and no prejudicial error.

Affirmed.

Glaze, J., concurs.

Tom Glaze Justice,

concurring. I agree in the result reached by the majority, but in construing Ark. R. Evid. 804(b)(3), I would employ the same guidelines adopted by the Eighth Circuit Court of Appeals in United States v. Riley, 657 F.2d 1377 (8th Cir. 1981). See also United States v. Rasmussen, 790 F.2d 55 (8th Cir. 1986).


author: Darrell Hickman, Justice.

text:
    George CARR v. STATE of Arkansas
    CR 89-75

      777 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Will Stocks, for appellant.

      Steve Clark, Att’y Gen., by. Ann Purvis, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

George Carr was convicted of delivering crack to Johnny Conway and sentenced to 40 years imprisonment and fined $25,000. We reverse the conviction because there was insufficient evidence to prove Carr’s guilt.

Johnny Conway testified that Carr gave him crack to sell. The state, however, failed to produce any independent evidence that Carr delivered crack to anyone, much less Conway. A conviction cannot be based solely on the testimony of an accomplice unless corroborated by other evidence which connects the defendant with the commission of the offense. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). The appellant moved for a directed verdict after the state rested and again at the end of all the evidence. A motion for a directed verdict is a challenge to the sufficiency of the evidence, and we will affirm if the verdict is supported by substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). The trial judge should have granted it.

The testimony showed that the law enforcement officers were conducting an undercover investigation of narcotics activities in Magnolia and Columbia Counties. The officers placed a house in Magnolia under surveillance because they suspected it was a “crack house.” Ronnie Bell, an officer involved in the surveillance, testified that 36 people went in and out of the house during a single day. Each person would stay for only two or three minutes. When each person came to the house, the appellant would step outside on the porch and look around or he would walk around to the west side of the house as though he were a “lookout.” When he went back into the house, the person would leave. No officer testified they saw the appellant or anyone else at the house deliver narcotics. No one testified they made a “buy” inside the house.

The officers obtained search warrants and raided the house in Magnolia, but the appellant was not there. Evidently no drugs were found at the house since the state did not introduce them into evidence at trial. Several of the individuals staying at the house were arrested, and the state offered evidence showing that Carr left town the same day these individuals were arrested. The state tried to impeach Walter Runyan, one of their own witnesses. Runyan’s testimony at trial was that he had never seen the appellant deliver any drugs. Carr also testified that he had made some trips to Louisiana and used assumed names when he stayed in motels because he did not want to use his own name.

The state simply did not make a case against Carr. There was no evidence that corroborated the accomplice’s testimony and connected the appellant with the crime charged — delivery of narcotics to Conway. The state’s failure to corroborate its accomplice’s testimony warrants reversal and dismissal due to the insufficiency of the state’s proof. Foster v. State, 290 Ark. 495, 720 S.W.2d 712 (1986), cert. denied 482 U.S. 929 (1987).

Reversed and dismissed.


author: John I. Purtle, Justice.

text:
    Steven BAUMER v. STATE of Arkansas
    CR 89-77

      777 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Richard W. Atkinson, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jollijf, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant, a juvenile, was found to be a delinquent by the Faulkner County Juvenile Court and was placed in the custody of the Division of Children and Family Services (Youth Services Center) for an indefinite period. For his appeal, he argues that the trial court committed prejudicial error in refusing to dismiss the charge of third degree battery and in rejecting his motion for a directed verdict. We reverse and remand this matter to the Circuit Court of Faulkner County, Juvenile Division.

The facts disclose that on September 22,1989, the appellant was involved in a dispute at the Conway High School. During the incident, the appellant shoved the principal of the high school several times and threatened to beat him up or put him “in the ground.” The principal ordered the appellant to leave the campus and was in the process of escorting him off the campus when a police officer arrived and took custody of the young man. The appellant resisted the arrest and subsequently was charged with several violations of law. He received four ticket and complaint citations charging him with trespass, disorderly conduct, resisting arrest, and battery in the third degree. He was taken from the school campus to the police station, where he was immediately processed and presented to the municipal judge.

On October 13, 1988, the municipal court transferred the case to the juvenile court, where a detention hearing was held on October 17, 1988. On November 18, 1988, the appellant was found to be delinquent and was committed to the Youth Services Center for an indefinite period. No predisposition report or hearing was had until after the hearing on the merits of the case.

The appellant first asserts that the provisions of Ark. Code Ann. § 9-27-316 (1987) were ignored. This statute requires the officer who takes a juvenile into custody to “immediately take the juvenile before the juvenile court of the county where the juvenile was taken into custody.” The juvenile court is then required to notify certain parties. The prosecutor must immediately decide whether to file a petition with the juvenile court, seek a criminal indictment, or file a criminal information. If neither an information nor a petition is filed within 96 hours of the juvenile being taken into custody or within 24 hours after a detention hearing, whichever is sooner, the juvenile must be discharged. There is nothing in the record to indicate that the foregoing provisions of the juvenile code were followed.

The second argument by the appellant is that the provisions of Ark. Code Ann. § 9-27-326 (1987) were not followed. This section provides that upon the juvenile’s appearance at a detention hearing, the judge is required to inform the juvenile of any reason for continued detention. Further, the judge is required to inform the juvenile that he has a right to remain silent and a right to legal counsel. The court must also inform the juvenile that before proceeding with the hearing, he has a right to talk with his parents, guardian, custodian, or attorney. The record reveals that this provision of the code was not followed.

Additionally, the provisions of Ark. Code Ann. § 9-27-327 (1987) require the juvenile judge at the detention hearing to conduct a pretrial release inquiry. There are many enumerated factors to be considered by the judge at the hearing. Nothing in the record indicates that a pretrial release inquiry was held. In fact, no attempt was made to hold this required inquiry before a hearing on the charges.

It is also argued by the appellant that the requirements of Ark. Code Ann. § 9-27-335 (1987) were not followed. Among other things, this provision of the code requires that “a petition in writing setting forth the facts concerning a juvenile which, if true, would render such juvenile defendant delinquent” must be by verified affidavit based upon sufficient information and belief. Apparently there was no such petition in the present case. We cannot, however, determine the existence of the petition because the abstract and brief fail to set forth the matter with sufficient clarity to enable us to reach a conclusion.

The appellant insists that the court erred in failing to make a predisposition investigation and report. A report by a probation officer is required under Ark. Code Ann. § 9-27-342 (1987). This section of the code provides that in any case “in which the juvenile judge determines that there is a reasonable likelihood that the juvenile will be committed to a youth services center, an investigation and report shall be made by the probation officer or an appropriate agency designated by the [juvenile] court. . . .” Specific requirements of the report are set forth in the code. Failure to comply with this provision was prejudicial.

We have not previously considered the provisions of the juvenile code in question. Therefore, we have the opportunity to construe the words of the code in the manner intended by the General Assembly. The first definition found in Ark. Code Ann. § 9-27-303(a) (1987), states: “[T]he word ‘shall” is used in the mandatory rather than the permissive sense.” In addition to the plain and clear meaning of the words of the statute, we have held that the word “shall,” when used in a statute, means the legislature intended mandatory compliance unless such an interpretation would lead to absurdity. Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986). In all three sections of the code here considered, the word “shall,” relating to the duties of the judge, requires mandatory compliance.

The appellant also argues that his case should be reversed because the trial court erred in failing to grant his motion for a directed verdict on the third degree battery charge. The battery charge resulted from the appellant placing his hands on the principal’s chest and shoving him several times. However, there were no scratches or bruises, and the victim stated that he was not injured.

We agree with the appellant that the evidence is not sufficient to support a finding of battery in the third degree. Ark. Code Ann. § 5-13-203 (1987) provides that a person commits battery in the third degree if, with the purpose of causing a physical injury to another person, he causes physical injury to another person, or if his conduct is reckless and causes physical injury to another. Even if the appellant had the purpose of committing a battery, the evidence does not reveal that there was any physical injury to another person. Therefore, the misdemeanor conviction for battery in the third degree is not supported by substantial evidence.

Reversed and remanded.

Hickman and Glaze, JJ., concur.


author: John I. Purtle, Steele Hays, Justice,

text:
    Charles D. RAGLAND, Revenue Commissioner, Revenue Division, Department of Finance and Administration v. MEADOWBROOK COUNTRY CLUB
    89-121
    777 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989
    [Rehearing denied November 13, 1989.]

      John H. Theis, Joe Morphew, Philip Raia, Robert L. Jones, William E. Keadle, Ricky L. Pruett, and David B. Kaufman, by: Cora L. Gentry, for appellant.

      Sloan, Rubens, Peeples & Coleman, by: Gerald A. Coleman and Therese H. Green, for appellee.

      Hays, J., would grant rehearing.

   John I. Purtle,

Justice. The chancery court upheld the Meadowbrook Country Club in its protest of a tax assessment by the Revenue Division, Department of Finance and Administration, which levied a tax and penalty for failure to include in the taxpayer’s gross sales reports a surcharge on food and bar tickets. The Revenue Commissioner brings this appeal from the chancellor’s finding that the additional charge was for services and therefore excluded from tax liability under the Gross Receipts Act. He further contends that the chancellor also erred in holding that the appellee met its burden of proof beyond a reasonable doubt. We have determined that the chancellor correctly held that the Revenue Division did not establish that the service charge was a sale as defined by the provisions of the Gross Receipts Act. Therefore, we affirm the action of the trial court in holding that no sales tax was due on the additional charges.

The Revenue Division audited the appellee for the period from December 1, 1981, through November 30, 1984, and assessed a tax in the amount of $6,204.59 on unreported taxable sales of $145,532.34. The appellee protested the assessment and subsequent administrative ruling and then appealed to the Crittenden County Chancery Court. Reversing the administrative ruling, the chancellor held that the charge was for services and therefore was not taxable as gross receipts.

The appellee, Meadowbrook Country. Club, serves food and drinks to its members on a no-cash basis. Members are billed monthly for food and beverages. A15 percent gratuity is added to each ticket as a part of the waiters’ and waitresses’ wages. This gratuity is apportioned among the employees working on the shift at the time the charges were incurred by the members. The members of the country club voted to include the 15 percent surcharge in order to avoid having any money change hands at the time services are rendered. The gratuity became a part of the waiters’ and waitresses’ remuneration. The guaranteed wages to the employees under this provision are less than the minimum wage, and the employees pay the normal taxes on the total income thus received.

The relevant portions of the Gross Receipts Act are found at Ark. Code Ann. § 26-52-103(a)(3)(A) and (E) (Supp. 1987):

“Sale” is declared to mean the transfer of either the title or possession, except in the case of leases or rentals, for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which the transfer is accomplished.
“Sale” shall not include the furnishing or rendering of services except as otherwise provided in this section. . ..

The issue to be determined by this court is whether the additional charge for the waiters and waitresses falls within the provisions of the Gross Receipts Act quoted above.

In Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985), we stated: “The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. If there is no ambiguity we give a statute effect just as it reads.”

Simply read, the Gross Receipts Act provides for a tax on the sale, through transfer of title or possession, of tangible personal property; however, the word “sale,” as used in the Act, does not include the “furnishing or rendering of services, except as otherwise provided in [the Act.].” Ark. Code Ann. § 26-52-103(a)(3)(E). No other exclusion applies to the present case. Giving the words their plain meaning, it is obvious that services, such as wages for labor performed, are not to be included under the Gross Receipts Act. The chancellor gave the words of the statute their plain meaning when he held that the 15 percent gratutity charge was for services and was not subject to the gross receipts tax.

The appellant relies heavily on Belvedere Sand & Gravel Co. v. Heath 259 Ark. 767, 536 S.W.2d 312(1976). Belvedere was in the business of selling sand and gravel but did not own delivery vehicles. Hence, when delivery was made by the seller, independent haulers were employed to transport the sand and gravel. The price of the sand and gravel f.o.b. destination necessarily included the hauling charge. The seller collected the hauling charge from the customer along with the bill for sand and gravel. Both items were included on the same ticket, and both were paid at the same time by the purchaser as a part of the same transaction.

Obviously, the cost of the delivery services became an integral part of the sale price in Belvedere. The act of sale was not completed until the products were delivered. At the time of sale, the cost of hauling had already been incurred. The Gross Receipts Act declares a “sale” to mean the “transfer of either the title or possession” of the property to be sold. In Belvedere, both title and possession were transferred at the point of delivery.

In the present case, the sale of the commodity had been completed and possession transferred before the 15 percent service charge was added. This charge was approved by the appellee for the convenience of its members and employees. It had nothing whatsoever to do with the transfer of title. The sale had already been completed at the point where the gratuity was added. No part of the surcharge was for food or beverages.

The appellant argues that the appellee did not prove entitlement to an exemption from the Gross Receipts Act. However, the appellee was not claiming an exemption; rather, it was claiming exclusion from coverage. The difference between an exemption and exclusion is that an exemption pertains to sales that would be covered were they not specifically exempted from the Act, while exclusion is simply not included in the first place. A different burden of proof at the administrative and trial levels is required when an exemption or exclusion is at issue.

We have many times held that the taxpayer claiming an exemption shoulders the burden of establishing his claim. By the same logic, it follows that the agency claiming the right to collect a tax bears the burden of proving that the tax law applies to the item sought to be taxed.

Neither “services,” “wages,” nor “gratuities” are included as taxable transactions within the meaning of a sale as defined in the Gross Receipts Act. The added charge was distributed to the waiters and waitresses who worked on the shift at the time the charges were added to the members’ bills. Therefore, it does not matter whether we call the charge “wages” or “gratuities” as neither are taxable under the Act. The 15 percent added to the members’ bills became a part of the hourly or weekly wages of the waiters and waitresses. Their earnings are no more subject to the sales tax then those of any other wage earners. The waiters and waitresses were clearly “furnishing or rendering . . .services.” Services are specifically excluded from taxation by the statutory language.

The chancellor correctly held that the charge was for services and therefore was not taxable as gross receipts.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. What the majority overlooks, I respectfully suggest, is that in transactions between the Meadowbrook Country Club and its members the 15 percent add-on, or surcharge, to food purchases is not a “gratuity” (as the majority mislabels it), but is an obligatory part of the purchase. It may resemble a gratuity, but the crucial difference is that in the conventional restaurant transaction the gratuity is, as the word implies, gratuitous. The customer is free to leave a tip or, if the service is unsatisfactory, no tip at all. In the transaction between the country club and its members, however, the 15 percent surcharge is mandatory — the members could no more refuse to pay the 15 percent than they could refuse to pay some other part of the total bill. In that rather unique circumstance the surcharge becomes an inseparable part of the transaction and is properly subject to the Arkansas Gross Receipts Act.

It matters not at all that the appellee chooses to allocate the 15 percent to the payment of its labor costs, anymore than if it chose to allocate some percentage of the price of each meal to another cost factor, such as utility, maintenance, insurance, replacement, et cetera, so long as it is a fixed part of the charge. The point is, the member agrees to purchase a meal costing $ 10.00, plus 15 percent, for a total charge of $ 11.50 and that is the gross receipt the appellee realizes on the sale.


text:
    Derek Bernard WEBSTER v. STATE of Arkansas
    CR 89-83
    777 S.W.2d 849
    Supreme Court of Arkansas
    Opinion delivered October 16, 1989

      Daniel D. Becker, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was sentenced to life without parole and twelve years for capital murder and theft of property. The sole question presented on appeal is whether the trial court erred in denying appellant’s motion to suppress evidence. We find no prejudicial error and affirm the judgment and sentence.

On May 30, 1988, Robert Quinn was murdered at his residence in Hot Springs, Arkansas. The police determined that he died of gunshot wounds from a .22 caliber handgun and that his automobile had been stolen. Shortly thereafter, the appellant was stopped for a traffic violation while driving through Hot Spring County on his way to Texarkana. He was driving the victim’s automobile, but the police were unaware of the theft at that time, and he was therefore not detained.

On May 31,1988, the Texarkana police located the murder victim’s stolen automobile while they were investigating a residential burglary. During the investigation, the police interrogated a person named Troy Pree, who confessed to the burglary. The officers also learned that the appellant was involved in the burglary with Pree, who voluntarily executed a written consent to permit the police to search his apartment. That search produced several items stolen from the burglarized house, located half a block away from Pree’s apartment.

During this first search of Pree’s apartment, the officers noted two flight bags which Pree identified as belonging to the appellant. At about 6:00 p.m., on the same date, the police obtained a second consent to search Pree’s apartment, at which time they seized the appellant’s flight bags and searched them. In searching the appellant’s flight bags, the police found a .22 caliber pistol and evidence of the murder victim’s ownership of the automobile.

The investigation revealed that, after his arrival in Texarkana, the appellant had spent the balance of the night of May 30 with Pree and that he had accompanied him in the burglary of the nearby residence. The officers also learned of the murder and theft of the victim’s automobile in Hot Springs, Arkansas. Information provided by the Hot Springs Police Department indicated that the murder victim was killed by shots fired from a .22 caliber pistol.

When the police arrived on May 31 to question Pree, the appellant was no longer at the apartment. It was later determined that the appellant had been present when the police arrived. According to the appellant’s testimony, he saw the police inspecting the victim’s automobile and heard them say it belonged to a murder victim. At that time, he left the apartment, and the police discovered him the following’day hiding in a van behind a funeral home. The appellant indicated that he had returned to Pree’s apartment at some point after the police had discovered the car. He stated that, although no officers were present on his return, he was nevertheless unable to get inside because he did not have a key, and no one answered his knock.

The question facing this court is whether the search of the appellant’s flight bags was justified. The bags yielded evidence sufficient to sustain a conviction for the murder. However, we do not consider the contents of the bag in determining whether the search and seizure were legal. In making this determination we consider all of the facts and circumstances within the knowledge of the police.

After the suppression hearing, the trial court made the following findings of fact: (1) Pree was the sole owner (i.e., renter) of the apartment where he resided; (2) he consented to a search of the premises; (3) the appellant was an overnight guest on May 30; (4) the appellant had stated that he lived at another address and had come from Hot Springs; (5) the appellant made no claim of right to access to Pree’s apartment; (6) the appellant and Pree were seen leaving the burglarized residence; (7) the appellant had no key to Pree’s apartment; (8) the appellant saw the police congregating around the stolen vehicle which he had been driving; (9) the police found additional stolen items on their second search of the premises, including the .22 caliber pistol and the ownership papers to the victim’s vehicle; and (10) a warrant for the arrest of the appellant for burglary had been issued.

In reviewing the trial judge’s ruling on a motion to suppress, the Supreme Court makes an independent determination, based upon the totality of the circumstances, and reverses only if the ruling was clearly against the preponderance of the evidence. Coopers. State, 297 Ark. 477, 763 S.W.2d 70 (1989).

In deciding the issue before us, we must consider whether the appellant had a reasonable expectation of privacy with respect to the flight bags. In doing so, we consider whether the police had a right, without a warrant, to search the bags. The state argues that the flight bags had been abandoned. If they had indeed been abandoned, the appellant certainly would have had no reasonable right to expect that the contents would remain private and immune from search and seizure. See Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). The fact that the appellant fled lends some credence to this argument.

In Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980), we considered whether a person had a reasonable expectation of privacy in his personal luggage in a parked automobile. We concluded that Moore had a reasonable expectation of privacy in his shaving kit, which was locked in the trunk of his personal automobile parked near his motel room. However, in the present case, the appellant was not exercising any dominion or control over the flight bags. In fact, he did not even have access to them.

In Wilson v. State, supra, a case involving an appellant’s leaving a jacket containing an incriminating pistol at a friend’s residence, we discussed the issue of whether the appellant had “relinquished that degree of control, and reasonable expectation of privacy, necessary to sustain a challenge to the legality of the subsequent search and seizure on Fourth Amendment grounds.” There we relied upon Katz v. United States, 389 U.S. 347 (1967), where it was held that a person who knowingly exposes an object to the public cannot expect the protection from unreasonable search and seizure provided by the Fourth Amendment.

We must consider whether the seizure of the evidence was lawful, even though the appellant’s flight bags were left in an open hallway in a friend’s apartment. Only unreasonable searches are prohibited by the Fourth Amendment. In Wilson v. State, supra, we held:

There is no evidence that the appellant made any attempt to recover or retrieve these items. Obviously he had renounced or abandoned his rights to privacy and no longer had any reasonable expectation of privacy in the property. It has not been suggested by anyone that the owner of the property where the jacket and pistol were found expected the articles to remain undiscovered. Therefore, we hold that the trial court’s ruling was not clearly against the preponderance of the evidence.

Although the appellant may not have abandoned the flight bags within the strict meaning of the term “abandonment,” he relinquished his interests in the property to the extent that he could no longer retain a reasonable expectation of privacy with regard to a search of the bags. In the present case, the police knew, at the time of the search, that the appellant had been in possession and control of the murder victim’s automobile and that he had fled from his friend’s apartment when they arrived. They also knew that he had participated in a burglary, and they had a warrant for his arrest.

The appellant may have had a hope that he could retrieve the bags without the police searching them, but he did not have a right, under the circumstances of this case, reasonably to expect privacy to the extent that it would preclude a search by the police. Although probable cause existed for the issuance of a search warrant, the police chose not to obtain one for the appellant’s bags. Nevertheless, the evidence was admissible because the appellant, under the circumstances of this case, had no reasonable expectation of privacy in the flight bags. Therefore, the trial court correctly overruled the appellant’s motion to suppress the evidence obtained from the flight bags.

Affirmed.

Glaze, J., concurs.