author: Bradley D. Jesson, Chief Justice. Bradley D. Jesson, Chief Justice.

text:
    Jessie Lloyd MISSKELLEY, Jr. v. STATE of Arkansas
    CR 94-848
    915 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Bradley D. Jesson, Chief Justice.

On June 21, 1993, the appellant, Damien Echols, and Charles Jason Baldwin were charged with the murders of three West Memphis boys. Steven Branch, Christopher Byers, and Michael Moore, all eight years of age, had been missing since the early evening hours of May 5, 1993. Their bodies were found the next day submerged in a creek in a park-like area of West Memphis known as Robin Hood. The boys’ bodies were nude, their hands and feet had been tied, and it was evident they had been severely beaten and mutilated.

The West Memphis Police began an extensive investigation. On June 3, 1993, they questioned the appellant regarding any knowledge he might have about the murders. In the course of the interrogation, he made statements in which he implicated himself, Baldwin, and Echols. All three were arrested and charged with capital murder.

The appellant was tried separately from Baldwin and Echols. The jury convicted him of first-degree murder in the death of Michael Moore, for which he received a life sentence, and second-degree murder in the deaths of Steven Branch and Christopher Byers, for which he received a combined sentence of 40 years. It is from these convictions that he appeals. He raises numerous and varied points for reversal. After thorough consideration of each issue, we find no error and affirm the convictions.

Sufficiency of the Evidence

It is our general rule that, when an appellant challenges the sufficiency of the evidence, we address that issue prior to all others. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The appellant’s argument is directed solely to his first-degree murder conviction.

At the close of the state’s case, and again at the close of all evidence, the appellant moved for a directed verdict. He claimed that the state failed to prove he had acted with the purpose of causing the deaths of the three boys, or that he had acted as an accomplice to the commission of a homicidal act. The trial court denied the motion.

A directed verdict motion is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury’s verdict. Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). We review the evidence in the light most favorable to the appellee and consider only that evidence which supports the verdict. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993).

The Moore, Byers, and Branch boys were last seen at approximately 6:00 p.m. on May 5, 1993. At least two of the boys were riding their bicycles. Their parents reported them missing at about 8:00 p.m. Police and area residents conducted a search later that evening, but the boys were not found. The search continued on May 6. The boys’ bodies were discovered about 1:15 that afternoon.

On June 3, 1993, the crime having remained unsolved, Detective Sergeant Mike Allen sought the appellant out for questioning. The appellant was not considered a suspect, but it was thought he might have knowledge about Damien Echols, who was a suspect. Detective Allen located the appellant and brought him back to the station, arriving at approximately 10:00 a.m. Later in this opinion, we will address in detail the circumstances surrounding the appellant’s interrogation. For now, it is sufficient to say that the appellant was questioned off and on over a period from 10:00 a.m. until 2:30 p.m. At 2:44 p.m. and again at approximately 5:00 p.m., he gave statements to police in which he confessed his involvement in the murders. Both statements were tape-recorded.

The statements were the strongest evidence offered against the appellant at trial. In fact, they were virtually the only evidence, all other testimony and exhibits serving primarily as corroboration.

The statements were obtained in a question-and-answer format rather than in a narrative form. However, we will set out the substance of the statements in such a way as to reveal with clarity the appellant’s description of the crime:

In the early morning hours of May 5, 1993, the appellant received a phone call from Jason Baldwin. Baldwin asked the appellant to accompany him and Damien Echols to the Robin Hood area. The appellant agreed to go. They went to the area, which has a creek, and were in the creek when the victims rode up on their bicycles. Baldwin and Echols called to the boys, who came to the creek. The boys were severely beaten by Baldwin and Echols. At least two of the boys were raped and forced to perform oral sex on Baldwin and Echols. According to appellant, he was merely an observer.
While these events were taking place, Michael Moore tried to escape and began running. The appellant chased him down and returned him to Baldwin and Echols. The appellant also stated that Baldwin had used a knife to cut the boys in the facial area and that the Byers boy was cut on his penis. Echols used a large stick to hit one of the boys. All three boys had their clothes taken off and were tied up.
According to the appellant, he ran away from the scene at some point after the 'boys were tied up. He did observe that the Byers boy was dead when he left. Sometime after the appellant arrived home, Baldwin called saying, “we done it” and “what are we going to do if somebody saw us.” Echols could be heard in the background.
The appellant was asked about his involvement in a cult. He said he had been involved for about three months. The participants would typically meet in the woods. They engaged in orgies and, as an initiation rite, killing and eating dogs. He noted that at one cult meeting, he saw a picture that Echols had taken of the three boys. He stated that Echols had been watching the boys.
The appellant was also asked to describe what Baldwin and Echols were wearing the day of the murders. Baldwin was wearing blue jeans, black lace-up boots and a T-shirt with a rendering of a skull and the name of the group Metallica on it. Echols was wearing black pants, boots and a black T-shirt.
The appellant initially stated that the events took place about 9:00 a.m. on May 5. Later in the statement, he changed that time to 12:00 noon. He admitted that his time periods might not be exactly right. He explained the presence of the young boys by saying they had skipped school that day.
The first tape recorded statement concluded at 3:18 p.m. At approximately 5:00 p.m., another statement was recorded. This time, the appellant said he, Echols and Baldwin had come to the Robin Hood area between 5:00 and 6:00 p.m. Upon prompting by the officer, he changed that to 7:00 or 8:00 p.m. He finally settled on saying that his group arrived at 6:00 p.m. while the victims arrived near dark. He went into further detail about the sexual molestation of the victims. At least one of the boys had been held by the head and ears while being accosted. Both the Byers boy and the Branch boy had been raped. All the boys, he said, were tied up with brown rope.

One of the interrogating officers later testified that his notes revealed the appellant told him he received a phone call from Baldwin on the night before the murders. Baldwin stated that they planned to go out and get some boys and hurt them.

The appellant’s statements are a confusing amalgam of times and events. Numerous inconsistencies appear, the most obvious being the various times of day the murders took place. Additionally, the boys were not tied with rope, but with black and white shoe laces. It was also revealed that the victims had not skipped school on May 5. However, there were portions of the statements which were consistent with the evidence and were corroborated by the state’s testimony and exhibits. The victims had been seen riding their bicycles. The medical examiner testified that the boys had been severely beaten. Two of them had injuries consistent with being hit by a large object. One of the boys had facial lacerations. The Byers boy had indeed been severely mutilated in the genital area. All the boys had injuries which were consistent with rape and forced oral sex. There was evidence that drowning contributed to the deaths of the Moore and Branch boys, but not the Byers boy. This is consistent with the appellant’s statement that the Byers boy was already dead when he left the scene. The boys were in fact tied up, albeit with shoe laces rather than rope. Damien Echols was observed near the crime scene at 9:30 p.m. on May 5. He was wearing black pants and a black shirt and his clothes were muddy. A witness testified that she had attended a satanic cult meeting with Echols and the appellant. Steven Byers’s mother testified that, approximately two months before the murders, her son told her that a man dressed all in black had taken his picture. There was evidence that Baldwin owned a shirt and boots of the type described by the appellant. Finally, a witness from the State Crime Lab testified that she found fibers on the victims’ clothing which were microscopically similar to items in the Baldwin and Echols residences.

The appellant does not argue that the inconsistencies in his statements render them insufficient. Indeed, when inconsistencies appear in the evidence, we defer to the jury’s determination of credibility. A jury is free to believe part of the evidence before it and reject other parts. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). However, the gravamen of this issue is whether the evidence contained in the statements supports a verdict of first-degree murder.

The appellant argues that he did not possess the requisite state of mind for the crime. The jury was instructed that they could find the appellant guilty of first-degree murder if they found he acted with the purpose of causing the death of one of the victims. This is consistent with the language of Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1993). The jury was also instructed on accomplice liability as follows:

In this case, the state does not contend that Jessie Lloyd Misskelley, Junior acted alone in the commission of the offense of three counts of capital murder. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who directly participates in the commission of an offense or who with the purpose of promoting or facilitating the commission of an offense agrees to aid, aids, or attempts to aid the other person or persons in the planning or committing the offense.

This instruction is consistent with AMCI 401 and Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1993).

A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1993). In cases of murder, a defendant’s intent is seldom capable of proof by direct evidence. It must usually be inferred from the circumstances of the killing. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995).

A defendant may be found guilty not only of his own conduct, but also the conduct of his accomplice. When two or more persons assist one another in the commission of a crime, all are accomplices and criminally liable for each other’s conduct. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). The following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Id. Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make a person an accomplice. Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (1993) (supplying intoxicant to one who later commits manslaughter does not support accomplice liability for manslaughter). However, where the state establishes evidence that the accused purposefully aided in the commission of the crime, a conviction for first-degree murder based on accomplice liability will be upheld. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994).

The jury’s decision to convict the appellant of a greater offense in the death of Michael Moore indicates that much importance was placed on the appellant’s chasing down the boy and returning him to the scene where brutal beatings and sexual assaults were taking place. Such an act is highly suggestive of joint participation in the crime. There was also evidence that the appellant knew the night before the murders that Baldwin and Echols were going to “get some boys” and hurt them. His participation in bizarre cult activities with Baldwin and Echols, while not conclusive of intent standing alone, reinforces the probability of his participation in such brutal murders. Finally, the appellant’s detailed knowledge of the injuries inflicted on the boys suggests that he was in physical proximity to the activities taking place and took a much more active role than he admitted. The jury was not required to give credence to the appellant’s contention that, for the most part, he was merely an observer. Riggins v. State, supra.

We conclude that there is substantial evidence the appellant purposely aided and facilitated his accomplices in the commission of first-degree murder and therefore find sufficient evidence to support his conviction.

Voluntariness of Confession

Prior to trial, the appellant moved to suppress his confessions on the grounds that they were not voluntarily given, that his waiver of Miranda rights was not made voluntarily, knowingly and intelligently, and that his waiver of rights was invalid because it was obtained without his parent’s signature (the appellant was seventeen at the time he was interrogated).

The testimony at the suppression hearing revealed the following sequence of events leading up to the appellant’s confessions. Approximately one month into the investigation, the police considered Damien Echols a suspect in the murders, but no arrests had been made. The appellant’s name had been given to officers as one who participated in cult activities with Echols. Detective Sergeant Mike Allen questioned the appellant on the morning of June 3, 1993. The appellant was not considered a suspect at that time.

Detective Allen attempted to locate the appellant at home, but was unsuccessful. He found the appellant’s father at his work place and told him he wanted to talk to the appellant. Mr. Misskelley, Sr., said he would find the appellant and bring him to the work place. When the appellant arrived, Detective Allen asked him if he could come with him to the police department to talk about the case. The appellant readily accompanied Allen. He was not handcuffed and rode in the front seat of the car.

The two arrived at the station at approximately 10:00 a.m. Detective Allen and Detective Bryn Ridge questioned the appellant for about an hour when they became concerned that he wasn’t telling the truth. In particular, he denied participation in the cult activity, a statement which was at odds with what other witnesses had said. At this point, the detectives decided to advise the appellant of his rights. Detective Allen read him a form entitled “YOUR RIGHTS,” and verbally advised him of the Miranda rights contained in the form. The appellant responded verbally that he understood his rights and also initialled each component of the rights form. There was no evidence of any promises, threats or coercion.

The form also contained a section entitled “WAIVER OF RIGHTS,” which read as follows:

I have read this statement of my RIGHTS and I understand what my RIGHTS are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing, no promises or threats have been made to me and no pressure or force has been used against me.
The waiver was signed by the appellant.

After he was advised of his rights and had waived them, the appellant was asked if he would take a polygraph examination. He agreed that he would. Detective Allen took the appellant to look for his father so that his father could grant permission for the appellant to take the polygraph. They observed Mr. Misskelley driving on the same road they were on, stopped him, and received the authorization. There was no evidence of promises, threats or coercion.

Upon returning to the station, Detective Bill Durham, who would administer the polygraph, once again explained the appellant’s rights to him. The appellant verbally indicated he understood, and initialled and signed a second rights-and-waiver form that was identical to the first.

Detective Durham explained to the appellant how the polygraph would work and administered the test over the course of one hour. In Detective Durham’s opinion, the appellant was being deceptive in his answers and he was advised that he had failed the test. At that point, the appellant became nonresponsive.

Detective Bryn Ridge and Inspector Gary Gitchell began another interrogation of the appellant at about 12:40 p.m. They employed a number of techniques designed to elicit a response from the appellant. A circle diagram was drawn and the appellant was told that the persons who committed the murders were inside the circle and that those trying to solve the crime were on the outside. He was asked whether he was going to be inside the circle or outside. He apparently had no response. He was then shown a picture of one of the victims and had a strong reaction to it. According to Gitchell, the appellant sank back into his chair, grasped the picture and would not take his eyes off it. Yet, he still did not speak. Finally, Gitchell played a portion of a tape-recorded statement which had been given by a young boy named Aaron. The boy was the son of a friend of the appellant’s and had known the victims. The portion of the statement which the officers played was the boy’s voice saying, “nobody knows what happened but me.” Upon hearing this, the appellant stated that he wanted out and wanted to tell everything.

The officers decided to tape-record a statement and received the confessions which are set out above. At the beginning of the first statement, on tape, the appellant was advised of his rights for the third time. The rights were fully explained to him, and the waiver of rights read to him verbatim.

The evidence presented by the appellant at the suppression hearing consisted primarily of the testimony of polygraph expert Warren Holmes. Mr. Holmes testified that, in his opinion, the appellant had not been deceptive in his answers to the polygraph questions. He raised the possibility that the appellant had been wrongly informed that he had failed.

Seven days after the suppression hearing, the trial court entered an order denying the motion to suppress. The appellant argues that the court’s ruling was erroneous.

When the voluntariness of a confession is in issue, we make an independent determination of voluntariness based upon the totality of the circumstances surrounding the confession. We do not reverse a trial court’s finding of voluntariness unless it is clearly against the preponderance of the evidence. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). Among the factors to be considered in determining the validity of a confession are the age, education and intelligence of the accused, the advice or lack of advice on constitutional rights, the length of detention, the repeated or prolonged nature of questioning, or the use of mental or physical punishment. Id. A custodial confession is presumed involuntary and the burden is on the state to show that the confession was voluntarily made. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).

The appellant offers several reasons why we should invalidate his confession. First, he argues that the confession was the product of a promise of reward or leniency. He points to the use of the circle diagram, which he describes as an implied offer of leniency, and to the existence of a $30,000.00 reward which was in effect at the time the appellant was questioned. A confession obtained through a false promise of reward or leniency is invalid. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988). However, there is no evidence that the appellant’s confession was obtained in such a manner. The circle diagram, while used to encourage the appellant to respond to questions, cannot be considered as a false promise of leniency. There was no implication that if the appellant talked the officers would recommend leniency or try to help him in any way. Likewise, the existence of a monetary reward does not invalidate the confession. Although their testimony was disputed, the officers testified at the suppression hearing that they did not communicate the reward offer to the appellant at any time. The trial judge was entitled to believe this evidence. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994).

Next, the appellant argues that his age and mental capacity rendered his confession involuntary. While age and mental capacity are factors we consider, those factors standing alone are not sufficient to suppress a confession. Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Douglas v. State, supra.

At the time the appellant was interrogated he was seventeen years old, and just thirty-seven days away from his eighteenth birthday. Persons younger than he have been held capable of giving voluntary confessions. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995) (fifteen-year old); Douglas v. State, supra (fifteen-year-old); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985) (sixteen-year-old); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), cert. denied,_U.S__, 115 S.Ct. 134 (1994) (sixteen-year-old). The appellant also points to evidence that his IQ was 72 and that he read at a third-grade level. A low score on an intelligence quotient test does not mean that a suspect is incapable of voluntarily making a confession or waiving his rights. Oliver v. State, supra; Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). Oliver is particularly on point. There, we held that a fifteen-year old with an IQ of 74 and a second-grade reading level was capable of comprehending his Miranda rights and of waiving those rights. The appellant’s situation is similar. In fact, he was two years older than Oliver and had a slightly higher reading level.

As we have pointed out, the appellant was nearly eighteen-years old when his confession was made. He was advised of his rights, both verbally and in writing, on three separate and distinct occasions over the course of four hours. There was evidence that, between 1988 and 1992, he had been advised of his rights in juvenile proceedings on three occasions. He was no stranger to the criminal justice system, a factor which we have considered in the past. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). Between the first time the appellant was advised of his rights and the time he gave his first statement, a period of just over four hours elapsed, which is not undue. The officers’ questioning was persistent, but that is permissible. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). There was no evidence of mental or physical punishment.

The appellant argues that his statements should be suppressed because of the techniques used by the police in questioning him. He is referring in particular to the use of the circle diagram, the polygraph, the picture of the victim, and the tape recording of the boy’s voice. We have said that police may use some psychological tactics in eliciting a custodial statement so long as the accused’s free will is not completely overborne. Noble v. State, supra. In Noble, we held that showing the accused a picture of the victim and telling him he would not pass a polygraph didn’t invalidate a confession. The circle diagram is a rather innocuous means of getting an accused to talk. It does not have any features which strike us as overbearing. The tape of the boy’s voice gives us pause. This is the type of tactic that comes perilously close to psychological overbearing, and we cannot condone its use. However, in this instance, since numerous other factors point to the voluntariness of the confession, we will not invalidate the confession.

After an independent review of the foregoing factors, we conclude that the trial judge’s determination of voluntariness was correct. We are likewise convinced, based upon the same facts, that the appellant’s waiver of his rights was voluntary, knowing and intelligent. When we analyze the validity of a rights waiver, we look to many of the same factors used in determining the voluntariness of a confession. See Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Hart v. State, supra.

The appellant’s next attack on the validity of his confession concerns the failure to have a parent sign his waiver of rights form. At the time the appellant signed his waiver, Ark. Code Ann. § 9-27-317(f) (Repl. 1993) provided that a juvenile’s waiver form must be signed by a parent, guardian or custodian. We addressed this issue most recently in Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). We held that, when a person under age eighteen is charged as an adult in circuit court, failure to obtain a parent’s signature on a waiver form does not render a confession inadmissible. The issue was first addressed in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). That opinion was delivered on May 17, 1993, seventeen days before the appellant was interrogated. We held unequivocally that, when a juvenile is charged as an adult, he becomes subject to the procedures applicable to adults. Therefore, the requirement of parental consent is limited to juvenile court proceedings. The appellant urges us to overrule Boyd and its progeny, but it would be the height of unfairness for us to tell the prosecutors and law enforcement officials of this state that a parental signature was not necessary, then declare nearly three years later that lack of such a signature was fatal to an accused’s confession. This is especially true in light of the fact that we reaffirmed Boyd in Ring and in the interim case of Rhoades v. State, 315 Ark. 658, 869 S.W.2d 698 (1994). We therefore decline the invitation to overrule this line of cases.

The appellant further argues that the distinction between the rights accorded to those who are tried in juvenile court and those who are tried as adults violates the Equal Protection Clause. On appellate review, we presume that a statute is constitutional, and the attacking party has the burden of proving otherwise. All doubts are resolved in favor of constitutionality. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). Classifications are permitted which have a rational basis and are reasonably related to a legitimate government purpose. Our role is not to discover the actual basis for the legislation, but to consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government purpose. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).

We can certainly conceive of a rationale which removes this statute from the specter of arbitrary and capricious government purpose. The legislature recognized in Ark. Code Ann. § 9-27-318(c) (Repl. 1993) that a juvenile over the age of sixteen may be prosecuted as an adult where his act would constitute a felony if committed by an adult. This is an acknowledgement that an older juvenile who commits a serious crime may not receive the protection of juvenile proceedings, but will face the consequences as an adult. The same rationale applies to the statute at hand. A juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.

The appellant next contends that his confession should have been suppressed due to the failure of Detective Allen to comply with Ark. R. Crim. P. Rule 2.3. That rule requires an officer who asks a person to come to a police station to take reasonable steps to make it clear that there is no legal obligation to comply with the request.

This issue arose in a unique procedural way at the trial level. The appellant never raised the point in his motions to suppress or at any time during the suppression hearing. During the suppression hearing, Detective Allen testified that he asked the appellant if he would come with him to the station and the defendant voluntarily did so. However, the state, at this point, was unaware of any Rule 2.3 problem, and no further testimony was elicited. After the suppression hearing, the appellant, in a post-hearing brief, raised the issue for the first time.

We recognize that the state has the burden of proving the voluntariness of a custodial confession. However, we are hesitant to hold that a defendant may file a general motion to suppress, containing no notice of any technical deficiency, then require the state to put on evidence of compliance with all conceivable technical requirements of the Rules of Criminal Procedure. This is totally contrary to our rule that objections must be raised in a timely manner. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). However, just as importantly, the appellant did not obtain a ruling from the trial court on this specific issue. The court’s order denying the motion to suppress was drafted by appellant’s counsel. It declared that appellant’s statements were voluntarily given, that the appellant was afforded his rights under the Constitution, that his rights were knowingly and willfully waived. There is no mention in the order, or during the course of any hearing, of a violation of Rule 2.3. An issue is precluded from review on appeal where there is no clear ruling by the trial court. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). In Bowen, the appellant moved to suppress his inculpatory statements on the grounds that his waiver of rights was invalid, his waiver was not voluntary, knowing and intelligent, and his statements were the fruit of an illegal arrest. The trial court ruled generally on the waiver questions, but did not specifically rule on the illegal arrest issue. We therefore declined to consider the issue on appeal. Similarly in this case, the appellant obtained rulings on the voluntariness of his confession and his waiver, but no ruling on his illegal seizure. As in Bowen, we will not consider the issue.

The appellant’s final attack on the validity of his confession concerns the failure of the police to record the interrogation in its totality. No Arkansas law requires this. We will consider such a factor in the totality-of-the-circumstances mix, but we will not invalidate a confession for that reason alone.

Pre-Trial Matters

Before we move on to consideration of trial errors, there are two issues which arose before trial and which we will now discuss. The first is the appellant’s challenge to the constitutionality of Ark. Code Ann. § 16-89-111 (d) (1987). The statute reads:

A confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied by other proof that the offense was committed.

The appellant contrasts this statute with Ark. Code Ann. § 16-89-111 (e)(1) (1987) which provides that a conviction may not be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the appellant with the commission of the offense. While offering no authority in support, he argues that the more stringent corroboration requirements in the case of accomplice testimony violate the equal protection clause. The same analysis we applied to the appellant’s previous equal-protection challenge applies here. There is a legitimate rationale for greater safeguards when an appellant’s conviction is based on the testimony of a third person rather than on his own words.

The next issue concerns the appellant’s attempt to depose the interrogating officers. The court offered to make the officers available for questioning, but would not require them to submit to depositions. We do not reverse for failure to grant discovery in a criminal case without a showing of abuse of discretion. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Ark. R. Crim. P. Rule 17.4. In Spencer v. State, 285 Ark. 339, 686 S.W.2d 436 (1985) and Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982), cert. denied, 460 U.S. 1022 (1983), we held that a defendant was not necessarily entitled to take the discovery depositions of state witnesses. We have never held that a defendant should be allowed to depose interrogating officers. The public-policy considerations alone dictate that depositions of police officers should not be taken as a matter of routine, but only in rare cases, subject to the trial court’s discretion. A defendant’s discovery needs are ordinarily met by the broad access given to him by the Rules of Criminal Procedure. We find nothing in the record of this case to indicate that the trial court abused its discretion in denying the depositions.

Evidentiary Errors

The next issues concern various evidentiary rulings of the trial court. We note at the outset that a trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

As we alluded to earlier, the appellant procured the services of polygraph expert Warren Holmes. Holmes was prepared to offer an opinion that the appellant was not being deceptive when the polygraph test was administered to him. The appellant asked the court to allow this opinion into evidence to show that he was falsely informed he had failed the test and that such false information was a catalyst to his confession. The court considered the evidence at the suppression hearing, but refused to allow any testimony at trial regarding the results of the polygraph. The court noted that such evidence would simply amount to a contest between two experts as to who had made the more accurate interpretation. The court said it would allow the appellant to show that he had been administered a polygraph and had been told he failed it. However, the appellant understandably declined this offer, fearing it might be too prejudicial in the absence of the countervailing opinion of Holmes.

Both the legislature and this court have recognized the inherent unreliability of polygraph tests. Ark. Code Ann. § 12-12-704 (Repl. 1995), provides that the results of a psychological stress examination shall not be admissible in the courts of this state. See also Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987); Baxter v. Dental Examiners Bd., 269 Ark. 67, 598 S.W.2d 412 (1980). However, the appellant argues that his proffered evidence was necessary to apprise the jury of the totality of the circumstances surrounding his confession. We believe our long-standing rule prohibiting the admission of polygraph results should prevail. Had the trial judge allowed Mr. Holmes to offer his opinion that the appellant’s answers were not deceptive, the state would have offered the opinion of Detective Durham that the appellant’s answers were deceptive. This would have created the very situation which the legislature and the courts have sought to avoid: the likelihood of credibility determinations being made by reference to the unreliable results of a polygraph examination. See generally Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990).

The appellant cites us to Rock v. Arkansas, 483 U.S. 44 (1987) for the proposition that evidence which might ordinarily be considered unreliable is admissible to protect a defendant’s constitutional rights. Rock involved a defendant who testified in her own behalf and wanted to offer hypnotically refreshed testimony. The Supreme Court allowed the evidence, but the Court’s ruling is not applicable to this case. Rock only applies to the testimony of the defendant, not to witness testimony. Further, the basis of the ruling was the protection of the defendant’s right to testify in her own defense, which is not the issue here.

The appellant also cites Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988) for the proposition that evidence which may not be admissible to prove a person guilty is admissible as exculpatory evidence. Patrick involved the use of a portable breath test. We held that such a test could not be used to prove a person drove while intoxicated but could be used to prove that he did not. However, we were careful to make the point that such a test was sufficiently reliable to warrant admission into evidence. As we have already stated, that is not the case with polygraph results. We therefore uphold the trial court’s exclusion of this evidence.

The next point concerns the testimony of Dr. Richard Ofshe, an expert in the coercive influence of police interrogation techniques. Dr. Ofshe was allowed to offer an opinion that the tactics used by the West Memphis Police were suggestive and led the appellant to make his statements. As part of the basis for his opinion, Dr. Ofshe relied on the transcript of a three-hour interview he had conducted with the appellant. The court refused to allow the witness to refer to the interview. The appellant argues that this was error and cites A.R.E. Rule 703 for the proposition that an expert must be able to reveal the factual bases for his opinions. The appellant has not shown that he was prejudiced by the court’s ruling. The expert was allowed to identify all other matters on which he based his opinion, such as the transcripts of the appellant’s statements, the appellant’s treatment records, the officers’ notes, and the officers’ testimony. Additionally, during cross-examination, Dr. Ofshe was asked if, before hearing the officers testify, he had formed a preliminary opinion regarding the coercive nature of the interrogation. He answered that his opinion at that point was “based on the materials available to me which included my having interviewed Jessie Misskelley.” The jury was thus informed that Dr. Ofshe had interviewed the appellant and had used that interview as a basis for his opinion. Therefore, we find no prejudicial violation of Rule 703.

The appellant also presented the testimony of a psychologist, Dr. William Wilkins, for the purpose of showing that his confession was the product of coercion. Dr. Wilkins offered his opinion that the appellant was “quite suggestible.” The doctor had administered a suggestibility test to the appellant based upon the Gudjonsson suggestibility scale. The court held a hearing on the admissibility of the test results. Dr. Wilkins admitted he had never administered the test before. The state called another psychologist, Dr. Vaughn Rickert, to testify that he had never heard of the test and, based on what he had just been informed, he had serious concerns about its validity. The court refused to allow evidence of the test results, citing its unreliability and Dr. Wilkins’ lack of experience in administering it.

Again, the appellant cannot show he was prejudiced by the court’s ruling. Dr. Wilkins was allowed to offer his opinion. Further, he informed the court that his opinion would not be altered by the absence of the test results. We will not reverse in the absence of prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

The final evidentiary issues can be discussed together. The appellant argues that the following evidence was erroneously admitted because it was either irrelevant, or its probative value was outweighed by its unfairly prejudicial effect: 1) a picture of Jason Baldwin wearing a black T-shirt with a skull and the name of the group Metallica on it; 2) testimony of a witness that she attended a cult meeting with the appellant and Echols; 3) a book on witchcraft found in Echols’ home; 4) the testimony of Melissa Byers that her son told her that a man wearing black had taken his picture; 5) fiber evidence linking Baldwin and Echols to the crime; 6) boots worn by Baldwin and Echols; and 7) testimony that Echols was observed near the crime scene on the night of the murder.

Relevant evidence means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. A trial court’s ruling on relevancy is entitled to great weight and will be reversed only for an abuse of discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). As the appellant has taken pains to point out, the credibility of his confession was the linchpin of the case. Every item of evidence listed above served to corroborate some aspect of the appellant’s confession: the description of Baldwin’s shirt, the involvement in the occult, the fact that Echols had photographed the victims and had been watching them, and the fact that Echols and Baldwin were involved in the crime. Evidence which is offered by the state to corroborate other evidence is relevant. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991); Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).

The appellant’s argument that the evidence was more unfairly prejudicial than probative must also fail. With the confession being the state’s only meaningful evidence against the appellant, any corroboration was highly probative. This is especially true in light of the appellant’s contention that his confession was false. The prejudicial effect of the evidence was not so high as to outweigh its important probative value. We defer to the sound discretion of the trial judge and uphold his ruling admitting the evidence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).

Jury Instructions

The appellant requested two instructions which were not given by the court. The first instruction concerned accomplice liability, and read as follows:

An accomplice is criminally responsible for the acts of others only to the extent he has shared criminal purpose with the others. If you ultimately find that Jessie Lloyd Misskelley, Jr. was an accomplice, you may find him guilty only of a crime you determine that he had a conscious object to engage in, or a conscious object to cause such a result.

The appellant based his proffered instruction on language from Fight v. State, supra.

The court instructed the jury on accomplice liability using AMCI 401. If an AMCI is available on the subject, a nonAMCI instruction should not be used unless the AMCI does not state the law. Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). AMCI 401 matches the language contained in Ark. Code Ann. § 5-2-403(a) (Repl. 1993) and is a proper statement of the law. Therefore it was not error to refuse the appellant’s proffered instruction. See Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994).

The appellant also claims it was error for the court to refuse to instruct the jury on manslaughter. The jury was instructed on capital murder, first-degree murder and second-degree murder. We note at the outset that the appellant cannot obtain reversal of his first-degree murder conviction on this issue. Failure to instruct on a lesser-included offense is harmless error where a jury has been instructed on some lesser-included offense, yet convicted the defendant of a greater one. Gidron v. State, 316 Ark. 352, 872 S.W.2d 64 (1994).

It is proper to refuse an instruction on manslaughter if there is no rational basis to support it. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992); Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). The appellant asked for the instruction on the chance that the jury might consider his conduct reckless, as opposed to purposeful or knowing. See Ark. Code Ann. § 5-10-104(a) (3) (Repl. 1993). Reckless conduct requires the state of mind of conscious disregard of a perceived risk. Disregard of the risk must constitute a gross deviation from the standard of care that a reasonable person would observe in the situation. See Ark. Code Ann. § 5-2-202(3) (Repl. 1993). By his own words, the appellant was fully aware of the magnitude of the crimes to which he was an accomplice. He was fully aware of the severe beating, cutting, and sexual molestation of the victims. His retrieval of the boy who tried to escape is evidence of an overall state of mind which far exceeds “gross deviation from the standard of care.” We hold that there was no rational basis for a manslaughter instruction.

Mo.tion for New Trial

The appellant moved for a new trial on the ground of newly discovered evidence. The motion was denied by the trial court. It was based on the testimony of the medical examiner, Dr. Frank Peretti.

On two occasions before trial, appellant’s counsel asked Dr. Peretti if he had an opinion on time of death. Dr. Peretti stated that he did not. However, after the appellant’s trial was concluded, Dr. Peretti testified at the Baldwin/Echols trial that his estimate of time of death was between 1:00 a.m. and 5:00 p.m. on May 6, 1993. The appellant moved for a new trial claiming that this newly discovered evidence cast doubt on the validity of his confession. He also claimed that, at the Baldwin/Echols trial, Dr. Peretti offered testimony that lack of blood at the scene indicated the victims might have been killed elsewhere and that the type of cuts in Steven Byers’s genital area would require some skill and precision.

Newly discovered evidence is the least favored ground for a new trial motion. When a new trial is denied on this ground, we will reverse only for an abuse of discretion. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). To prevail, the appellant must show that the new evidence would have impacted the outcome of his case, and that he used due diligence in trying to discover the evidence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).

The appellant used due diligence in seeking an opinion from Dr. Peretti regarding time of death. The same cannot be said of the other evidence. The evidence regarding the use of the knife and the scene of the murders was brought out in the Baldwin/Echols trial on vigorous cross-examination. The appellant has not shown that, prior to his conviction, he could not have discovered such evidence.

The question regarding Dr. Peretti’s opinion is whether it would have impacted the outcome of the trial. We think it would not have. The appellant’s statements were already filled with mistakes, inconsistencies, and gross inaccuracies regarding the time that the murders took place. It is obvious that the jury disregarded the appellant’s time estimates, as it was their right to do. Dr. Peretti’s opinion could only have served to reinforce what the jury already knew: the appellant was either mistaken or not telling the truth regarding the timing of events on May 5.

915 S.W.2d 702

APRIL 1, 1996

Based upon the foregoing, we find that the trial court did not abuse its discretion in denying the new trial.

Compliance with Rule 4-3(h)

The record has been reviewed in accordance with Arkansas Supreme Court Rule 4-3(h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.

No response.

Bradley D. Jesson, Chief Justice.

We write to address an issue which we did not discuss in our February 19, 1996, opinion. In that portion of the appellant’s brief devoted to the failure of the officers to record his entire interrogation, the appellant mentions briefly, and without citation to any authority, the possibility of an equal protection violation. His argument is based upon the existence of what is known as the Law Enforcement Officers’ Bill of Rights, Ark. Code Ann. § 14-52-301 to 307 (Supp. 1995). In particular, he points to Ark. Code Ann. § 14-52-303(7) which provides in pertinent part:

All interrogations of a law enforcement officer in connection with an investigation against him or her shall be recorded in full.

The appellant’s argument is that, under this statute, a police officer benefits from greater protection during an interrogation process than an accused. He claims that there is no rational basis for such a distinction. Without reaching the issue of whether a rational basis exists, we hold that the appellant’s argument must fail. The “Bill of Rights” is in fact only a recommendation of the legislature (“the purpose of this subchapter is to recommend a basic Bill of Rights for law enforcement officers. . . .”), giving municipalities the authority to establish “any or all” of the Act’s procedures as “a guide for negotiating personnel issues with their law enforcement officers.” Ark. Code Ann. § 14-52-301 (Supp. 1995). The appellant has made no showing that there is, in fact, a municipality which has actually adopted the particular provision of which he complains. In other words, we cannot assume that police officers are currently enjoying the procedural protections contemplated by the Act. Therefore, we cannot say under these circumstances that mere recommendations by the legislature, which leave open the authority of municipalities to establish or not establish all or any part of the law, constitute a classification which violates the equal protection clause.

The other matters raised in appellant’s petition for rehearing concern our holding on the Ark. R. Crim. P. Rule 2.3 issue. That issue was fully developed, both in the briefs and during oral argument, and was carefully considered by the court. It will not be addressed again on rehearing.

       The appellant’s trial was held in Clay County rather than Crittenden County as the result of a change of venue.

       Two bicycles were recovered on May 6 in a bayou near the murder scene.

       Another part of the statute, Ark. Code Ann. § 5-10-102(a)(3) provides that a person commits first degree murder if he knowingly causes the death of a person 14 years of age or younger. However, the record does not show that the jury was so instructed.

       Ark. Code Ann. § 12-12-703 (Repl. 1995) provides that no psychological stress evaluation shall be given to any person under age 18 without first having received written authorization from a parent or guardian.

       This requirement was eliminated by the legislature by Act 67 of the Second Extraordinary Session of 1994.


source: Caselaw Access Project

author: Bradley D. Jesson, Chief Justice.

license: Public Domain

text:
    Hubert WHITE and Sharon White v. Evelyn WELSH as Executrix of the Estate of Martin Hardcastle, Jr., Deceased
    95-1120
    915 S.W.2d 274
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Hubert L, White and Sharon G, White, pro se.

      Michael E. Kelly, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellants, Hubert and Sharon White, are landowners in Marion County. Their land lies adjacent to property owned by the late Martin Hardcastle, Jr. On January 20, 1995, the appellants petitioned the Marion County probate court to set aside an order which authorized the sale of the Hardcastle land. The court denied the petition, and we affirm.

On October 24, 1990, appellee Evelyn Welsh filed a petition to probate the will of her decedent, Martin Hardcastle, Jr. That part of the Hardcastle estate which was subject to probate in Arkansas consisted of one hundred and twenty acres of land in Marion County. On October 26, 1990, the court admitted the will to probate and named Ms. Welsh executrix. Letters testamentary were issued the same day. Four years later, on November 9, 1994, Ms. Welsh petitioned the court for authority to sell the property for the appraised value of 137,000 in order to pay claims and make distribution. Her petition further requested authority to pursue litigation against Hubert and Sharon White. She claimed that the Whites had blocked a road which served as access to the Hardcastle property.

The record reflects that Hardcastle’s devisees waived notice in connection with any hearing on the petition. On November 11, 1994, the court issued an order authorizing the sale of the property and finding that, in order to accomplish the sale, it would be necessary to pursue litigation against Hubert and Sharon White. Approximately two months later, the Whites, who had received no notice of the petition, asked that the order be set aside. They alleged that the order, and the probate proceeding as a whole, contained various procedural deficiencies. They claimed standing on the grounds that Welsh’s petition and the subsequent court order referred to them by name, referred to real estate owned by them, and referred to litigation against them. The probate judge, relying on Doepke v. Smith, 248 Ark. 511, 452 S.W.2d 627 (1970), found that the Whites were not “interested persons” as defined by Arkansas law and had no standing to question the issuance of the order. The petition to set aside was' thus denied. It is from that ruling that the Whites appeal.

This court conducts a de novo review of probate court orders. Absent clear error, the order is not reversed. In the Matter of the Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995).

When a personal representative seeks authority to sell the real property of an estate, notice must be given to “such interested persons as the court may direct,” unless the value of the interest to be sold is $1,500 or less. Ark. Code Ann. § 28-51-301(c) (1987). The term “interested persons” is defined in Ark. Code Ann. § 28-1-102(11) as follows:

‘Interested persons’ includes any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary.

In the Doepke case, a potential tort claimant waited too long to file his claim against the decedent’s estate. He asked that the estate be reopened. Only an interested person may petition to reopen an estate. Ark. Code Ann. § 28-53-119(a)(1) (1987). We held that, since the claimant no longer had an interest in the property of the estate, he had no standing to petition for a reopening.

In addition to Doepke, we addressed the issue of interested persons in the more recent case of Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994). There, certain of the decedent’s children who were not named in his will wanted to file suit for the wrongful death of their father. The executor did not wish to pursue the litigation, so the children petitioned the court to remove the executor. Such a petition must be filed by an interested person. Ark. Code Ann. § 28-48-105(a)(2) (1987). The probate court found that the children had no standing to file the petition. We agreed, holding simply that the children were not heirs, were not creditors, and had no claim against the estate.

In this case, the Whites are not heirs or creditors. Their petition does not assert any claim against the estate or declare any interest in the estate’s property. Nowhere do they indicate any entitlement to proceeds which might be distributed by the estate. In fact, the situation is just the opposite. The Whites are persons against whom the estate has sought relief.

We conclude that the Whites are not interested persons as defined by Ark. Code Ann. § 28-1-102(11) (1987) and therefore have no standing to question the issuance of the court’s order. Because they have failed to surmount this threshold issue, we do not reach their arguments regarding procedural irregularities and allegations of fraud.

Affirmed.

       A right to review by this court lies from all probate court orders, other than an order removing a fiduciary for failure to give bond or to render a required accounting or an order appointing a special administrator. Ark. Code Ann. § 28-1-116(a) and (b) (1987). Therefore, the appeal is properly before us.


author: Robert H. Dudley, Justice.

text:
    Mike A. MURPHY and Karen Murphy v. Robin DANFORTH
    95-1136
    915 S.W.2d 697
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996
    [Petition for Rehearing denied March 25, 1996.]

      Law Office of Billy J. Hubbell, by: Billy J. Hubbell, for appellants.

      Herman Hamilton, for appellee.
   Robert H. Dudley, Justice.

The Probate Court of Ashley County refused to exercise jurisdiction in this multi-state child-custody case. We affirm the decision of the trial court.

Karl and Robin Roseberry lived in Fort Worth, Tarrant County, Texas. They had two little girls, Amanda, born May 5, 1987, and Amber, born on July 29, 1989. In 1992, Karl filed suit for divorce in the Tarrant County District Court. Robin appeared personally and contested the case. Testimony was taken on April 15, 16, and 20, 1992, but by the time the twenty-six page decree was entered on June 19, 1992, Robin resided in Vermont.

The Tarrant County District Court found that it had jurisdiction of the case, in part, because Karl had been a domiciliary of Tarrant County for more than six months. The decree provided that Karl was appointed the sole managing conservator, or was granted custody, of the two little girls, and that Robin was appointed the possessory conservator, or was given visitation rights. The decree specified the times for visitation and provided that Karl was required to provide round-trip airline fares for the children from the Dallas-Fort Worth Airport to the Burlington, Vermont, airport for both the summer and Christmas visitation periods with Robin. The district court retained jurisdiction to make further orders. The presiding judge was William Brigham.

In March 1993, Karl filed a motion for custody modification in the Tarrant County District Court. He alleged that Robin was guilty of sexual abuse of the children and asked that unsupervised visitation be denied Robin and that she be enjoined from taking the children outside of Tarrant County. The trial court is not shown to have acted on this motion, and the record does not disclose the reason Karl did not pursue it.

On July, 27, 1994, Robin filed a motion in Tarrant County and, in part, pleaded: “This Court has acquired and retains continuing, exclusive jurisdiction of this suit and of the children the subject of this suit as a result of prior proceedings.” The motion alleged that the two children were in immediate physical danger from Karl. Attached to the motion was the affidavit of Shalene Portman Roseberry, who was Karl’s new wife. The affidavit stated that Karl had severely beaten Shalene on various occasions, had threatened the girls, had physically abused them, had stated that he was going to Vermont to kill Robin, and had extreme outbursts of anger accompanied with violent physical actions.

On July 29, 1994, the Tarrant County District Court, in an ex parte temporary order, removed the care and custody of the children from Karl and placed the girls in the custody of Robin. The order additionally restrained Karl from seeing the children. The district court set a hearing for August 11, 1994, to determine whether the temporary restraining order should be made into a temporary injunction pending final hearing and whether Robin should be made the sole conservator. The presiding judge again was Judge William Brigham.

The temporary order granting care and custody to Robin had not been amended or modified when, on September 29, 1994, Karl was killed in a railroad crossing accident. On that date, the children weré in Tarrant County at the home of Karl’s parents. The record does not disclose how or why the children were there.

Soon after Karl’s death, Karen and Mike Murphy, Karl’s sister and brother-in-law, took the children from Karl’s parents’ home in Tarrant County to their home in Ashley County, Arkansas. Almost immediately, on October 3, 1994, Karen and Mike Murphy filed a petition in the Probate Court of Ashley County for an ex parte order of temporary guardianship of the two girls. They alleged:

Robin Danforth Roseberry has kidnapped the children in the past, has refused to return the children to their father after a visit; has a history of shoplifting and other bizarre behavior; and has lost custody of an older child to her parents because of her neglect. Finally, and most serious of all, Robin Danforth Roseberry has allowed these minor children to be sexually molested by her boyfriend and has participated with her boyfriend in requiring the children to watch sex acts involving the mother and the boyfriend. It is in the best [interest] of the minor children that petitioners be appointed temporary and permanent guardians of the person and of the estate of the minor children.

They asked that the temporary guardianship be made permanent. On the same day, October 3, the Arkansas court appointed Karen and Mike Murphy temporary guardians until the matter could be fully heard on October 6, 1994. Robin had no notice of the proceeding.

On the same day, October 3, but in Tarrant County, Texas, Robin filed a petition for a Writ of Habeas Corpus in which she alleged that the girls were being illegally restrained by Karl’s parents. Judge William Brigham issued the writ commanding Karl’s parents to produce the children before the court on October 6, 1994.

On October 6, the Murphys, who are appellants in this case, and Karl’s parents, Curtis and Delango Roseberry, filed petitions in intervention in the custody action in the Texas court. All four of the intervenors sought custody of the girls for the Murphys.

On the same date, October 6, as the hearing was about to commence in Ashley County, Arkansas, Probate Judge Jerry Mazzanti stated that he had been contacted by Judge William Brigham of the Tarrant County District Court and informed that there had “been an ongoing proceeding there in Texas for a substantial period of time,” and that it was his impression that the Texas court should hear the custody matter. Judge Mazzanti stated that Judge Brigham had not yet had time to forward certified copies of the Tarrant County, Texas, proceedings, but because of the serious nature of the allegations filed in the Arkansas court, he ruled that he would take jurisdiction for consideration of an “emergency order for a period of up to thirty days or until there is a verified order” from Texas, and then the temporary order would then be terminated. Judge Mazzanti heard proof but never entered a formal order. Perhaps the reason was the judge knew Robin had not been given notice of the Arkansas hearing, and that she was proceeding in Texas.

The next day, October 7, in Texas, Judge Brigham issued an “Order on Jurisdiction and Delivery of Minor Children to the Court.” It provides, in part, “IT IS THEREFORE ORDERED that the 233rd District Court of Tarrant County, Texas has continuing jurisdiction and the state of Texas is the home state of the children the subject of this suit.” (Emphasis added.) On October 12, Judge Brigham issued an “Order to Return Children,” which in part provides, “The Court finds that the Applicant, ROBIN LYNN DANFORTH, is the person entitled by law to possession of the children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY and that Respondents, MICHAEL ANDERSON MURPHY, KAREN LEANN MURPHY, CURTIS ROSEBERRY, and DELANGO (JANIE) ROSEBERRY, have illegally confined and restrained the children.” As a result of the illegal restraint of the children, and the interventions of the Murphys and Karl’s parents, the Tarrant County District Court awarded Robin a judgment against the Murphys and Karl’s parents for $1,340.00, plus $238.00 costs. On November 9, 1994, in the final custody order, Judge Brigham decreed, “IT IS ORDERED AND DECREED that ROBIN LYNN DANFORTH is the person entitled by law to possession of the children, AMANDA LEE ROSEBERRY and AMBER DAWN ROSEBERRY.”

On December 12, 1994, the Tarrant County District Court set the petitions for intervention for hearing on January 23, 1995. On January 23, 1995, an associate judge of the Tarrant County District Court filled out a “Report for Modification” which provides that the petitions for intervention filed by the Murphys and Karl’s parents were moot and “Court further finds that all information involving the children is now in Vermont and this is not a convenient forum. Ordered that intervention is dismissed.” The associate judge’s report was approved by Judge Brigham on January 24.

On March 1, 1995, the Murphys filed a motion asking the Arkansas court to reconsider its earlier order refusing to exercise jurisdiction since the Texas court said the case was no longer pending there. A hearing was set for April 17, 1995. Robin filed a motion to dismiss. Both parties were represented at the hearing on the motion to reconsider. Counsel agreed that the children had been in Vermont since October 1994, and that the Vermont Family Court had scheduled a hearing for May 11, 1995, on a petition for custody that had been filed by the Murphys. Judge Mazzanti ruled that on October 3, 1994, the date the Murphys filed their petition for a temporary guardianship in Arkansas, Texas was the home state of the girls pursuant to the Parental Kidnapping Prevention Act of 1980 and, as a result, dismissed the motion to reconsider.

Even though this case involves a petition for guardianship, rather than the more usual chancery court determination of child custody, the Parental Kidnapping Prevention Act, 28 U.S.C. 1738A, (1994), is applicable because the Murphys sought to be appointed temporary guardians, with the temporary appointment to be made permanent; thus, it would have the effect of permanently determining custody and would interfere with the Texas court’s custody orders. See 28 U.S.C. 1738A(b)(3). On appeal, the Murphys first contend that under the P.K.P.A. the Texas court improperly exercised jurisdiction because (1) Karl was deceased and, under Texas law, the pending case between him and Robin was abated; and (2) Texas did not meet the criteria of the P.K.P.A. as set out in 28 U.S.C. § 1738A(c)(2) because no contestant continued to live in Texas after Karl’s death.

The Murphys’ argument that the Texas court did not have jurisdiction ignores a number of critical facts. On July 29, 1994, Robin again entered her personal appearance in the Tarrant County District Court and pleaded that court “has acquired and retains continuing, exclusive jurisdiction of this suit and of the children.” On the same date, the Tarrant County Court gave temporary custody of the children to Robin, and set a hearing for August 11 to determine whether Robin should be given permanent custody. The order had not been amended when, on September 19, Karl was killed. The children were in Tarrant County on that day. By October 3, the children had been temporarily taken to Ashley County, where they remained for only a few days. On October 3, the Murphys filed their petition for a temporary guardianship in Ashley County, but on the same day Robin filed a petition in Tarrant County asking that the children be returned to her. On October 6, Judge Brigham issued a Writ of Habeas Corpus. This same day, October 6, is the date Judge Mazzanti refused to exercise jurisdiction in Ashley County. The next day, October 7, Judge Brigham ruled that the Tarrant County District Court “has continuing jurisdiction and the state of Texas is the home state of the children.” (Emphasis added.) On October 11, 1994, the Murphys filed a petition in intervention in Tarrant County. On the same day, October 11, 1994, Robin, the Murphys and Karl’s parents appeared in the Tarrant County District Court and the court granted Robin a personal judgement against the Murphys and Karl’s parents in the amount of $1340.00, plus costs in the amount of $238.00 for expenses she incurred in attempting to find her children. Robin’s attorney was awarded a judgment against the Murphy’s and Karl’s parents for $1,912.50. On November 9, 1994, Judge Brigham found that the children were in possession of the Family Court Services in Tarrant County Texas and ruled that Robin was entitled to permanent custody of the children. It was not until over a month later, on December 12, 1994, after Robin and the children were in Vermont, that the Texas court ruled that “all information involving the children is now in Vermont and this is not a convenient forum.”

The P.K.P.A. hierarchy of jurisdictional preferences is: (1) continuing jurisdiction; (2) home-state jurisdiction; (3) significant-connection jurisdiction; and (4) jurisdiction when no other jurisdictional basis is available. 28 U.S.C. § 1738A(c); Jeff Atkinson, Modern Child Custody Practice, § 3.24 at 165 (1986).

Tarrant County fits within the first category. It had continuing jurisdiction. The original custody decision was made there, as were the first and the second modifications of custody, and the Texas court retained jurisdiction to make further orders affecting the children. All of the parties to this action were there before the Texas court when the final custody order was entered, and the Texas court ruled that it had continuing jurisdiction.

In addition, the Tarrant County District Court ruled that Texas was the home state of the children. See 28 U.S.C. § 1738(b)(4). The record does not reflect that these rulings were ever appealed.

Even if continuing jurisdiction and home state jurisdiction were not in Texas, it was also the state which met the third criterion, a significant connection. Robin, entered her personal appearance in Tarrant County when she petitioned for a change of custody, that petition was still pending on the date of Karl’s death, and the children were still in that jurisdiction on the date of Karl’s death. The Murphys and Karl’s parents filed a petition in intervention there. They appeared there. When home-state jurisdiction is not available, a jurisdiction with a significant connection can exercise jurisdiction. 28 U.S.C. 1738A(c)(2)(B). Manifestly, the connection was significant enough for the Texas court to award Robin a personal judgment against the Murphys and Karl’s parents for $1340.00, plus $238.00 costs.

Finally, the P.K.P.A. prohibits a court from exercising jurisdiction if another court is already exercising jurisdiction consistent with the provisions of the act. 28 U.S.C. 1738A(g). The purpose of this last provision is to avoid the “havoc wreaked by simultaneous and competitive jurisdiction.” Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983). The Texas court was providently exercising jurisdiction when the Arkansas court appropriately refused to interfere.

Even so, the Murphys contend that the Arkansas court erred in failing to exercise emergency jurisdiction. The P.K.P.A. and the Uniform Child Custody Jurisdiction Act, Ark. Code Ann. § 9-13-201 to - 228 (Repl. 1993), both contain language providing for jurisdiction to be exercised on an emergency basis. The language of the two acts is almost identical in this regard. Under either act, the only requirements for an emergency order are the physical presence of the child and the existence of a genuine emergency such as abandonment or abuse. 28 U.S.C. § 1738A(c)(2)(C); Ark. Code Ann. § 9-13-203(a)(3) (Repl. 1993). However, emergency powers under both of the acts are limited. Emergency jurisdiction should not be used to modify a custody order permanently. Mitchell v. Mitchell, 437 So. 2d 122, 127 (Ala. Civ. App. 1983). Emergency jurisdiction may be used to enter a temporary order giving a party custody only for as long as it takes to travel with the child to the proper forum to seek a permanent modification of custody, usually the home state. Atkinson, Modern Child Custody Practice, § 3.18 at 148. In Iacouzze v. Iacouzze, 672 P.2d 949 (Ariz. Ct. App. 1983), aff'd, 672 P.2d 928 (Ariz. 1983), the appellate court affirmed the trial court’s decision to give the mother temporary custody for the time it took her to commence proceedings in the child’s home state of New Jersey. In Nussbaumer v. Nussbaumer, 442 So. 2d 1094, 1097-98 (Fla. Dist. Ct. App. 1983), the appellate court reversed a permanent change of custody and directed that on remand the trial court could enter a temporary order “for a period of time no longer than is reasonably necessary to allow the father to present his allegations of neglect ... to the proper . . . court”. Professor Atkinson suggests:

A circumstance in which permanent modification might be appropriate in a state exercising emergency jurisdiction would be if the evidence of the mistreatment or abuse was available in the state exercising emergency jurisdiction, but was not available or difficult to obtain in the child’s home state. The problem of availability of evidence, however, can be solved by taking testimony in one state and having it transmitted to another state.

Atkinson, Modern Child Custody Practice, § 3.18 at 148, n.170.

Here, the Murphys asked the Arkansas court to make them temporary guardians and, after a full hearing, to make them the permanent guardians. Thus, they sought a permanent change in custody under the exercise of emergency jurisdiction. The Murphys made no suggestion that all of the evidence could not be produced in Texas, and, in fact, the Murphys returned the children to Texas, and filed their petition in intervention there. Thus, the Arkansas court correctly refused to exercise emergency jurisdiction.

Affirmed.


author: David Newbern, Justice.

text:
    Larry HAMILTON, on Behalf of Himself and All Others Similarly Situated v. Floyd G. “Buddy” VILLINES, III, et al.
    95-191
    915 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996
    [Petition for Rehearing denied March 25, 1996.]

      Kelly Law Firm, PLC, by: A.J. Kelly and A. Shawn K. Sibley, for appellants.

      Nelwyn Davis, Pulaski County Att’y, and Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: David M. Fuqua, for appellees.

       Corbin, J., not participating.

   David Newbern, Justice.

The appellant, Larry Hamilton, sought certification of a class consisting of Pulaski County taxpayers. His claim against the appellees, Pulaski County Judge Floyd G. “Buddy” Villines, III, and the members of the Pulaski County Quorum Court, is of an illegal exaction. We will refer to the appellees collectively as “Pulaski County.” The illegal exaction claim, brought under Ark. Const, art. 16, § 13, is that the County misapplied sales and use tax proceeds and other funds in the construction of the Pulaski County Regional Detention Facility. This is an appeal of one aspect of the Chancellor’s order certifying a class for an action to be brought in accordance with Ark. R. Civ. P. 23. It is an interlocutory appeal. See Ark. R. App. P. 2(a)(9).

Mr. Hamilton’s complaint seeks no refund to the taxpayers but requests primarily injunctive relief requiring the transfer of funds within the County coffers to keep the money from being misapplied. The Chancellor granted the class certification and required individual notices to the taxpayers in accordance with Ark. R. Civ. P. 23(c) because “monetary relief” was being sought in the form of attorney’s fees. The appeal is from the notice requirement imposed by the Chancellor’s order. We agree that the notice requirement was improper, so we reverse and remand the case.

In City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982), an illegal exaction case, we said the Court should have required the parties to abide by Rule 23 because an illegal-exaction claim is in the nature of a class action but that the failure to have imposed the requirements of the rule resulted in no prejudice in the circumstances of that case and was thus harmless error. In Union Nat’l. Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992), Glaze, J., concurring, it was suggested that our statement with respect to Rule 23 in the Cash case was but an obiter dictum, that illegal exaction claims had, as an historical proposition, not been governed by the restrictions imposed on class actions, and that illegal exaction claims should not be subject to Rule 23.

Rule 23(c), in part, provides, “In any class action in which monetary relief is sought, including actions for damages and restitution, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” In arguments before the Chancellor and before this Court the focus has been upon whether Rule 23 should apply to illegal exaction suits brought pursuant to article 16, § 13, and if so, whether a request for attorney’s fees is a request for “monetary relief,” thus implicating Rule 23(c).

As Pulaski County points out in its brief, Ark. Code Ann. § 26-35-902(a) (Supp. 1995) permits the award of attorney’s fees from funds recovered when an illegal exaction is held to have occurred and a “refund” is ordered to the taxpayers; however, the statute does not address attorney’s fees in a case in which no refund is sought. Attorney’s fees may not be recovered absent a statute or rule permitting such a recovery. Wynn v. Remet, 321 Ark. 227, 902 S.W.2d 213 (1995); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). In Munson v. Abbott et al., 269 Ark. 441, 602 S.W.2d 649 (1980), and again in City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986), we specifically held that attorney’s fees are not to be allowed in an illegal exaction case in which no refund is sought. During oral argument, counsel for Pulaski County reaffirmed his position that there is no authority to award attorney’s fees in this case.

When questioned about authority for the granting of attorney’s fees in a case like this one, Mr. Hamilton’s counsel could only reply that fees might be available if the class were able to prove a fact Pulaski County had refused to admit in response to a request for admission. Presumably he was referring to Ark. R. Civ. P. 37(c) and the sanctions provided for failure to admit. We can hardly say that reference to a sanction which may or may not become necessary amounts to a request for “monetary relief” by a class as contemplated in Rule 23(c).

Apparently Pulaski County recognizes the infirmity of the Chancellor’s order caused by the fact that recovery of attorney’s fees is not available to Mr. Hamilton and the class. Pulaski County, therefore, asks that we affirm the order requiring notice to individual taxpayers because taxpayers should have notice of this lawsuit, which will cause a “detriment” and cost to the County. No authority is cited for that position, and we are not convinced by the argument. The purpose of requiring notice to class members who may have a monetary recovery in prospect is to allow them to decide whether to participate as members of the class. In a case in which a prospective class member has no individual claim to relief, there is no purpose in the notice requirement that would not obtain anytime a city or county is sued. We can assuredly say it is not the purpose of Rule 23(c) to require notice anytime a suit is brought against a public entity in which a “detriment” to it may occur.

The issue whether Rule 23 applies to illegal exaction claims is not before us. Both parties argue from the position that it does apply. We do not decide that issue. The issue we do decide is whether, assuming the Rule applies, it was proper for the Chancellor to hold that “monetary relief” was in prospect and thus Rule 23(c) required individual notice to the taxpayers. We need not, however, go so far as to decide whether attorney’s fees constitute “monetary relief” because we simply cannot ignore the fact that attorney’s fees are not to be recovered in this case. The General Assembly may wish to extend the language of § 26-35-902 to make some provision for attorney’s fees to encourage citizens to point out illegal exactions even though no refund is to be had. We may not do so.

Reversed and remanded.

Special Justice Edmund M. Massey joins the opinion.

Corbin, J., not participating.


text:
    Willie Earl JONES v. STATE of Arkansas
    CR 95-1073
    915 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender.

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

Willie Earl Jones was convicted of five drug-related offenses and sentenced as an habitual criminal with four or more prior offenses to 37 years imprisonment. We reversed the conviction. Jones v. State, 317 Ark. 587, 880 S.W.2d 522 (1994). Upon retrial Mr. Jones was again convicted on five counts and sentenced to life imprisonment. Mr. Jones appeals only from one delivery count. He contends the evidence is insufficient because the State failed to prove drugs were delivered by him in exchange for money or something of value. We hold the evidence was sufficient and affirm.

In December 1992 Mr. Jones was the focus of an undercover investigation being conducted by the Pulaski County Drug Task Force. Detective Vickie Beaty-Lawson and a confidential informant were sent to a house occupied by Mr. Jones to purchase crack cocaine from him. The second of several such encounters occurred on December 7, 1992. Detective BeatyLawson testified that on that occasion she and the informant went to Mr. Jones’s residence where they were greeted by him and asked what they needed. She said they had $60. Mr. Jones gave two “large rocks” to the informant who handed them to her. She said she handed the informant the money in Mr. Jones’s presence. Mr. Jones correctly contends there is no evidence that the money was then handed to him.

The penalty for delivery of a Schedule I drug, such a cocaine, is prescribed by Ark. Code Ann. § 5-64-701(a) (Repl. 1993). Subsection (b) of the statute defines “delivery” as follows:

For the purposes of this section, the term “delivery” means the actual or attempted transfer from one person to another of a controlled substance. . .in exchange for money or anything of value, whether or not there is an agency relationship.

As we explained in Anderson v. State, 275 Ark. 298, 630 S.W.2d 23 (1982), followed by Marshall v. State, 289 Ark. 462, 712 S.W.2d 894 (1986), by stating “attempted transfer” as part of the definition of “delivery,” the General Assembly made it unnecessary to show an “exchange for money or anything of value” in order to prove a delivery.

There was ample evidence that Mr. Jones at least attempted to transfer cocaine to another in exchange for money.

The record has been examined in accordance with Ark. R. Sup. Ct. 4-3(h), and no errors requiring reversal have been found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Terrel Deshawn MACON v. STATE of Arkansas
    95-1146
    915 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered February 19, 1996

      Daniel D. Becker and Michael E. Harmon, for appellant.

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

Appellant Terrel Macon, a seventeen year old, was charged in circuit court with two counts of terroristic act and one count of aggravated assault. Under Ark. Code Ann. § 9-27-318 (Supp. 1995), he moved to transfer his charges to juvenile court, and after a hearing, the trial judge denied Macon’s motion. He brings this appeal under § 9-27-318(h).

In making the decision to retain or transfer the case, the trial court must consider (1) the seriousness of the offense and whether violence was employed by the juvenile; (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 programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; (3) the juvenile’s prior history, character traits, mental maturity, and any other factors reflecting upon his prospects for rehabilitation. § 9-27-318(e). Macon argues no evidence was presented to show he had committed a repetitive pattern of offenses, or to show he was beyond rehabilitation. In sum, he asserts that the trial court erred because it failed to consider factors (2) and (3) above. We do not agree.

We first point out that proof need not be introduced against the juvenile on each factor. Davis v. State, 319 Ark. 613, 893 S.W.2d 768, 769 (1995). Second, in making its decision whether to retain or transfer a juvenile’s case, the trial court is not required to give equal weight to each of the factors set out in § 9-27-318(e). Id.

Here, the trial court did, indeed, consider Macon’s prior history, noting he had been convicted and placed on probation for theft and criminal trespass. While these offenses did not necessarily show a repetitive pattern, the trial court did consider the offenses when discussing the lack of rehabilitative programs for Macon, especially in view of the fact he would turn eighteen years old within thirty days after the hearing. See McGaughey v. State, 321 Ark. 537, 906 S.W.2d 671 (1995). Accordingly, the trial court concluded the juvenile rehabilitative programs available to Macon would be extremely limited and inappropriate.

Aside from the rehabilitation issue, we must affirm the trial court’s decision because of its findings reflecting that Macon’s offense was both serious and violent, and therefore fell within the first factor described under § 9-27-318(e) above. The trial court found that Macon and others drove by Damien Moore’s residence in Hot Springs, and seeing Moore next to his parked vehicle, shot twice at him. They turned their vehicles around, drove by Moore again and fired four more shots. One shot struck Moore’s car door and another entered a nearby residence, where a bullet eventually landed on the collar of the person residing there.

Because Macon’s actions and offense exhibited a serious and violent nature, such proof was sufficient to support the trial court’s decision to deny Macon’s motion to transfer. Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). In addition, we also conclude Macon failed to show the trial court clearly erred in finding Macon is not a good prospect for rehabilitation. Accordingly, we affirm.