author: John I. Purtle, Justice.

text:
    McEUEN BURIAL ASS’N, et al. v. ARKANSAS BURIAL ASSOCIATION BOARD
    89-9
    769 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Davidson, Horne & Hollingsworth, A Professional Association, by: Allan W. Horne and Patrick E. Hollingsworth, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   John I. Purtle, Justice.

After a hearing, the trial court dismissed the appellants’ complaint in an action to obtain a declaratory judgment relating to certain rules promulgated by the Arkansas Burial Association Board. The trial court held that no justiciable issue was presented. The appellants argue: (1) that the rules in question are invalid because they fail to insure the financial integrity of all burial associations and (2) that the court erred in holding that there was no justiciable issue. We agree that the trial court erred in finding no justiciable issue, and we reverse and remand the case for further proceedings.

Burial associations originated in Arkansas in the 1930’s as a result of the economic distress of the Great Depression. They are non-profit mutual benefit societies which are authorized by Ark. Code Ann. § 23-78-101 (1987). The purpose of the associations is to “defray all or a part of the funeral expenses of its members.” The Arkansas Burial Association Board is the governing body for these societies.

Over the years, membership in burial associations has steadily declined and burial costs have constantly increased. By 1987, over 100 of the state’s 164 burial associations were insolvent. The 1987 report of the association reflects that 58 of the association members showed losses from their operations during the year.

The General Assembly, in recognition of the precarious situation of many of the associations, addressed the problem through the enactment of corrective legislation. Act 443 of 1987, Ark. Code Ann. §§ 23-78-108, 112, and 122 (Supp. 1987), mandated that the Board “establish actuarial rates and reserve requirements necessary to ensure the financial integrity of all burial associations.” This legislation also authorized the burial associations to increase their previous benefit limits from $500 to $2500 and to adjust their rates accordingly. Another sweeping feature of the act was that it required the burial associations to pay 100 percent of the amount of liability to any funeral home or mortuary service conducting the funeral of a member. Previously, if the burial services were provided by a funeral home not owned by an association, the burial association paid only 80 percent of the face value of the certificate.

In response to Act 443 of 1987, the Board amended its Rule 18 to establish new minimum rates and added Rules 38, 39, and 40. Rule 38 requires each association to maintain a minimum amount of funds or assets on “deposit,” based on the number of members and the maximum amount the association desires to write. Burial associations are prohibited by these rules from writing new business without first complying with the deposit requirements. Rule 39 directs burial associations issuing new certificates to comply with the requirements of the rules before writing new business. In order to write new business, each association is required to submit an application for authorization to the Executive Secretary of the Board, who in turn is required to issue a certificate if the association “has sufficient funds on deposit and is sound enough to issue certificates of membership in the amount requested per member.” Rule 40 concerns matters of compliance with the guidelines and the application forms to be completed by the burial associations.

The appellants filed a declaratory judgment action in which they sought to have the new rules declared invalid because the rules failed to insure the integrity of all burial associations as required by Ark. Code Ann. § 23-78-108(a)(7). One of the arguments in the complaint was that the regulations applied only to new business to be written and did not make any provisions pertaining to the solvency of the associations already in existence. Furthermore, the complaint continued, the mixing of the new and old funds would not result in achieving the sound fiscal condition required by Act 443.

After a trial, the court dismissed the complaint on the grounds that no justiciable issue had been presented. Specifically, the court based its ruling on the grounds that no association had been denied a certificate and no member had been denied benefits.

During the trial, one witness, Harry Leggett, testified that: “From the standpoint of my own burial associations, the effect of these rules has been that I have just discontinued writing them [new business].” He further stated that he objected to the new rules primarily because there was a mixing of the old funds and the new funds in a common fund. It was his opinion that this would result not only in the failure to bring the insolvent associations up to an acceptable standard, but would serve to pull the new organizations down from the beginning.

Sheldon Madden was a party plaintiff and a duly qualified member as well as secretary of the McEuen Burial Association, and he made it apparent that he too was affected by the new rules and regulations. Several other witnesses testified that, with the commingling of new funds and old funds, there is a substantial likelihood that all the organizations will be weakened and that some associations will be unable to meet their obligations. The trial court itself seemed to imply that the requirements of the new rules would substantially weaken the structure of the new businesses if the funds were mingled.

The appellants challenged the rules pursuant to the Administrative Procedure Act, which provides in part:

The validity or applicability of a rule may be determined in an action for declaratory judgment if it is alleged that the rule, or its threatened application, injures or threatens to injure the plaintiff in his person, business, or property.

Ark. Code Ann. § 25-15-207(a) (1987). The words of this section of the act clearly establish that it is not necessary that the injury already have occurred or that a person show he was affected by it in order to obtain a declaratory judgment. Either the “threatened application” of a rule or the threat of injury will justify a party in seeking to have such regulations reviewed.

Although there had been no denial of a certificate to any burial association, it is obvious that some of the associations, as a result of the application of the rules, are threatened with denial. Furthermore, Harry Leggett testified that two burial associations he had been connected with had ceased operations because of the new regulations. Pursuant to Ark. Code Ann. § 25-15-207 (a), an action for declaratory judgment is a proper method for testing the validity of rules which, in the plaintiff’s view, threaten future damage. Such an action may be brought in the circuit court of any county in which the plaintiff resides or does business, or in the circuit court of Pulaski County. A declaratory judgment may be maintained even if the plaintiff has not requested the agency to rule upon the validity of the rule or regulation in question. See Ark. Code Ann. § 25-15-207(d).

Proceedings under the Administrative Procedures Act are exceptions to the Rules of Civil Procedure so far as Rule 81(a) is concerned. Whitlock, Commissioner v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984). Although we do not review administrative agency decisions de novo, we look to see if there was substantial evidence to support the action taken by the agency, and if so, we must affirm. Arkansas Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979). See also Partlow v. Arkansas State Police Commission, 271 Ark. 351, 609 S.W.2d 23 (1980).

Both the General Assembly and the Arkansas Burial Association Board have recognized the desperate financial circumstances under which many burial associations now operate and the need for immediate action in the regulation of burial associations. A matter of such importance should be granted a full hearing and proper consideration by the courts.

We hold that the facts presented to the trial court presented justiciable issues. The case.is remanded to the trial court with directions to proceed in a manner not inconsistent with this opinion. The court is not prohibited from reopening the case for further development of facts if its deems it necessary in order to make a more intelligent and informed decision on the issue presented.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Charles “Chuck” STOBAUGH v. STATE of Arkansas
    CR 88-162
    769 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989
    [Rehearing denied June 5, 1989.]

      Felver A. Rowell, Jr., for appellant.

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

On October 28,1987, the appellant was sentenced by the Faulkner County Circuit Court to a term of four years in prison and was fined $10,000 on his guilty plea to a charge of possession of marijuana with intent to deliver. The only point argued for reversal is that the trial court should have found that trial counsel was ineffective and therefore should have allowed the appellant to withdraw his guilty plea. As we find no prejudicial error, the judgment is affirmed.

The appellant was stopped at a roadblock on Highway 64 in Faulkner County, Arkansas, on February 7, 1987. The record indicates that the roadblock was for the purpose of checking operator and vehicle licenses. The police checked the appellant’s driver’s license and returned it to him; at about the same time, another officer approached the pick-up truck and opened the passenger door. As the door was opened, a brown paper sack containing marijuana fell out of the truck. The appellant was charged with possession of marijuana with intent to deliver.

The cornerstone of the appellant’s argument on appeal is that the trial counsel was ineffective when he failed to make a specific motion to suppress the evidence because the roadblock was “patently illegal.” Trial counsel filed several pretrial motions, including one to release the pickup truck, which had been seized, on the ground that the seizure was the result of an illegal roadblock. The motions were denied, and apparently some deal was worked out for the return of the truck.

It was revealed at the hearing on the motion to withdraw the guilty plea that trial counsel did not make the additional motion concerning the suppression of the evidence for the reason that he did not wish to anger the trial court. Apparently the defense counsel was trying to place the appellant in a favorable position with the court by having the appellant lecture students concerning the dangers of drug use.

The appellant and his attorney decided to change the plea from “not guilty” to “guilty,” and on October 16, 1987, the appellant filled out a “statement by defendant in advance of plea of guilty.” The statement was filed on October 28,1987, when the court accepted the appellant’s guilty plea. A judgment and commitment order was filed on October 29,1987. The guilty plea rendered moot all pending motions inconsistent with the plea.

The sentence by the court was not what had been expected by the appellant and his attorney. The trial attorney prepared and filed a motion for reconsideration on November 3,1987. Nothing happened, and the appellant then retained his present counsel, who filed a petition to withdraw the plea on November 12,1987. A hearing was scheduled for February 26, 1988, but was continued until May 20, 1988. The opinion of the court was not filed until.July 8,1988, and on July 16,1988, the appellant gave notice of appeal.

The motion to withdraw the guilty plea was treated as a Rule 37 petition by the trial court, and relief was denied. It is from that judgment that this appeal is taken.

The sole issue presented on appeal is whether trial counsel was ineffective and thereby prevented the appellant from intelligently and voluntarily entering the guilty plea. We stated in Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986), that “[w]hen a guilty plea is challenged, as here, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel.” See Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). Specific errors on the part of the trial attorney are to be evaluated under the Strickland v. Washington, 466 U.S. 668 (1984), standard. Strickland requires the petitioner to demonstrate both that the defense counsel was not functioning as guaranteed by the Sixth Amendment and that his deficient performance resulted in depriving the petitioner of a fair trial. The burden upon the petitioner in such a case is extremely heavy. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

The allegations by the appellant enumerate specific instances of conduct said to constitute ineffective assistance of counsel. First, he argues that the failure of the defense attorney to properly raise the unconstitutionality of the roadblock fell below the standard required of counsel. Second, he asserts that, had a motion to suppress the evidence been presented and granted, there would have been insufficient evidence to support a conviction. Third, he insists that he was misled by his trial counsel in entering the guilty plea, having been given the impression that he would receive a suspended or probated sentence.

A defendant who receives a greater sentence than expected is not entitled to have his plea withdrawn solely on that basis. In the absence of a plea agreement or other extenuating circumstances, the fact that a defendant hoped for, or even expected, a lighter sentence is not grounds for withdrawing the plea after an unfavorable sentence is pronounced.

The appellant’s attorney appears genuinely to believe that the roadblock was illegal and that all that needed to be done was to move to suppress the evidence on the basis that the search was unconstitutional. It was not disputed that the purpose of the roadblock in this case was to check drivers’ and vehicle licenses. We have found neither case law nor statutory or constitutional prohibition declaring that police may not establish a roadblock for such purposes. The appellant relies on cases that prohibit roadblocks for the general purpose of finding out whether anybody is violating laws of any kind. Counsel in fact made a motion on that basis in the trial court when he sought to have the vehicle released because it had been wrongfully seized. The trial court ruled adversely on the motion, and there is some logic to the trial counsel’s contention that he did not file the second motion to exclude the marijuana because it would have agitated the judge. Evidently, he felt certain that the judge would make the same ruling on the bag of marijuana that he had made concerning the seizure of the vehicle. Such a decision on counsel’s part comes within the purview of trial strategy or tactics.

We do not judge the performance of trial counsel by hindsight. If there is a rational and logical basis for the manner in which he tried the case we will not second guess him. Trial tactics vary from lawyer to lawyer, and even the same lawyer may act differently in similar circumstances on another occasion. No trial attorney wants to make a trial judge angry. However, an aggressive defense may be made before any competent trial judge without risking additional punishment of the client or reprimand or censure of the attorney. We could nq more sanction such treatment by a trial judge than we could ineffective assistance of counsel.

It is mandatory to allow the withdrawal of a guilty plea or a plea of nolo contendere in order to correct a manifest injustice if it is proven to the satisfaction of the trial court that an accused has been denied effective assistance of counsel. A.R.Cr.P. Rule 26.1 (c)(i). Unless the judgment of the trial court is clearly erroneous, it will not be disturbed on appeal.

Counsel is presumed competent, and the burden of overcoming that presumption rests with the petitioner. Huff v. State, supra, and Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984). The appellant entered his plea after much consultation with the lawyer, his family, and the state’s attorneys. At the time he filled out his advance plea form, he stated that he was satisfied with his attorney and understood all of his rights and the minimum and maximum terms to which he could be sentenced. It was only after he failed to receive the sentence he had hoped for that he became dissatisfied. This is understandable. Nonetheless, the facts and the record in this case indicate that his plea was intelligently and voluntarily entered and his counsel was not ineffective.

Affirmed.


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

text:
    UNIVERSAL SECURITY INSURANCE CO. v. George RING
    89-74
    769 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Friday, Eldredge & Clark, by: James M. Simpson, M. Gayle Corley, and Guy Alton Wade, for appellant.

      Murphy, Post, Thompson, Arnold and Skinner, by: Jerry Post; and Michael R. Gott, for appellee.
   John I. Purtle, Justice.

This case was tried to the circuit court without a jury, and the appellant was held liable for wrongfully exercising the power granted to it in a letter of credit issued to George Ring. The court awarded compensatory and punitive damages. For reversal the appellant argues: (1) the trial court erred in failing to hold that the letter of credit applied to the facts of this case; (2) the trial court erred in holding that the letter of credit was restricted or dependent upon the financial condition of the appellee; (3) the trial court erred in granting damages to George Ring individually; and (4) the trial court erred in awarding punitive damages. We agree with the appellant that the terms of the letter of credit authorized Universal to take the type of action taken in this matter. Therefore, the case is reversed and dismissed.

George Ring, the appellee, and Jerry Mourer formed South-land General Contractors, Inc., in 1980. The two men each owned 50 percent of the shares of the corporation. Larry Tiffee purchased Mourer’s shares before the end of 1980. At the same time the appellee owned 100 percent of Ring Construction Company, Inc. In 1980 Southland signed a general agreement of indemnity in favor of the appellant, Universal Security Insurance Co., which was also guaranteed individually by Ring and Tiffee.

In 1981 Southland obtained a contract in Jackson, Mississippi, for the construction of a Kroger store. The Mississippi Tax Commission required payment of sales tax in advance or a bond for the tax on the materials used in the project. A bond was supplied by the appellant through its agents, Babb & Associates, on October 8, 1982. On November 15, 1982, the appellee requested Babb & Associates to issue a performance bond and a labor and materials payment bond for Southland, which was involved in a construction project in the College Park Shopping Center in Meridian, Mississippi. As a part of the transaction Babb, acting for appellant, required the issuance to the appellant of a letter of credit in the amount of $150,0.00, which was issued by the Citizens Bank of Batesville. The letter of credit was issued on a standard form used by the banking industry for such purposes. The letter of credit was to protect Universal on its obligation to Southland and authorized Universal, in its sole judgment, to issue drafts up to $ 150,000 on the Citizens Bank. As part of the consideration for issuance of the letter of credit, the Citizens Bank required Southland to execute a promissory note and Ring and Tiffee in their individual capacities to sign the note. The letter of credit was issued by the bank and the appellant issued the additional bonds for the Meridian construction project.

In December of 1982 the appellee sold his interest in Southland and continued to do business as Ring Construction Co., Inc. Mr. Tiffee died in March of 1983. In August of 1983, the appellant informed Southland that the Mississippi Tax Commission was demanding payment on the sales tax bond for the Jackson project. The payment deadline was set by Universal for September 9, 1983, and Southland was informed that after that date Universal would draw against the letter of credit in the amount necessary to settle the sales tax claim by the state of Mississippi. On November 10,1983, the appellee was present at the Citizens Bank when the appellant presented a sight draft for $56,000. Over the protests of the appellee that the letter of credit did not apply to the Jackson, Mississippi project, the bank paid the draft. The bank demanded immediate reimbursement from the appellee and he drew a draft on the Ring Construction Company account and paid the claim. The draft depleted the account of Ring Construction Company, and according to the appellee, his company consequently could not renew its license and was forced out of business.

In December, 1984, the appellee filed a complaint against the appellant. The complaint alleged that appellee was damaged by the act of the appellant through its negligence, conversion, fraud and breach of contract and that the acts were willful, deliberate and malicious. The amended complaint alleged the tort of outrage. At the conclusion of the bench trial, the court awarded the appellee $188,122 compensatory damages and $45,000 punitive damages.

It is first argued by the appellant that the trial court erred in not holding that the letter of credit applied to any bonds or bonds issued by the appellant on behalf of Southland, the appellee and Tiffee. The letter of credit contained the following language:

By your sight drafts drawn on us and accompanied by your statement that you as surety have executed a bond or bonds on behalf of Southland General Contractors, Inc., as principal, and in favor of various obligees, in connection with bonds required, and that a claim has been made or a situation exists under which the sole judgment of the surety, a claim may be made or liability, loss, costs, or expense sustained under said bonds or bonds and that monies represented by your draft or drafts are required at the direction of the surety for its protection under said bond or bonds.

The letter of credit established an irrevocable credit in favor of the appellant against the account of Southland General Contractors, Inc., up to the limits of the letter of credit. See Ark. Code Ann. § 4-5-106(2) (1987). It authorized sight drafts by appellant if as surety Universal had executed a bond or bonds on behalf of Southland. The letter of credit extended to any claim made upon or paid by Universal under said bonds for amounts due on behalf of Southland. The letter could be exercised if, in the “sole judgment of the surety,” conditions existed which would serve as a basis for a claim. In addition, there was the requirement that if the draft was for less than the full amount of the credit, the draft must be accompanied by the letter for the purpose of endorsing the amount of the draft on the letter. In the event the claim was for the full amount of credit, the letter must be surrendered for cancellation.

The trial court appears to have treated the letter of credit as a contract of guaranty. The issuer of a letter of credit is not a guarantor of an obligation of his client conditioned upon some future event. A guarantor’s obligation is secondary or dependent upon the existence of the primary obligation on the part of its principal. However, the underlying facts are irrelevant to the obligation of an issuer of a letter of credit. See Ark. Code Ann. § 4-5-109 (1987). The issuer’s obligation matures when a draft is presented accompanied by any required documentation. The equities among the other parties have no bearing upon the obligation of the issuer.

In the Handbook of the Law Under the Uniform Commercial Code (2d ed. 1980), § 18-2, pp. 711-712, Professors White and Summers stated:

[The] obligation of the issuer to pay the beneficiary is generally independent of any obligation (or lack thereof) of the issuer’s customer to the beneficiary under the contract between customer and beneficiary. It follows that it is generally wrongful for the issuer to dishonor on the ground that the beneficiary has failed to perform its underlying obligation to the issuer’s customer. In other words, the issuer generally cannot justify refusal to honor on the ground that its customer is not getting what he bargained for from the beneficiary-seller. [Emphasis in original.]

When interpreting a written instrument between an insurer and an applicant, we construe the words as used by the parties in their plain ordinary meaning. In Farm Bureau Mutual Insurance Co. v. Milburn, 269 Ark. 384, 601 S.W.2d 841 (1980), we stated: “Further, a written instrument, such as a contract, binder, application or memorandum, delivered by the insurer to an applicant, is strictly construed against the insurer where the language employed is ambiguous or susceptible to one or more reasonable interpretations.” If a written contract is ambiguous it is construed against the party preparing it. Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S.W.2d 785 (1965). Along with the foregoing rules of construction of a written instrument, we must consider the rule that when two instruments are executed contemporaneously by the same parties in the course of the same transaction, the instruments should be considered as one contract for the purposes of interpretation. Stokes v. Roberts, 289 Ark. 319, 711 S.W.2d 757 (1986). The appellant could have proceeded under the indemnity agreement against Southland, Ring, or Tiffee. However, it also had the right to proceed against any of the same parties pursuant to its letter of credit. The bond contained a “General Agreement of Indemnity” under which the appellee was obligated to pay to the appellant monies necessary to satisfy a claim made on the appellant under any bond issued by the appellant on behalf of appellee; further, the appellant was given the right to “pay, settle or compromise any expense, claim or charge” arising from the relationship of principal and surety. The letter of credit authorized the appellant to issue a draft when “in the sole judgment of the surety [appellant] a claim may be made or liability, loss, costs or other expense sustained under said bond or bonds.” The bond and the letter of credit were one transaction and must be read together.

We are not unmindful of appellee’s testimony that the letter of credit was not supposed to apply to the Jackson, Mississippi, project. However, the plain words of the letter of credit and surety agreement, given their ordinary meaning, establish that this project was included in the bonds and in the authority granted in the letter of credit.

We find nothing in the record to support punitive damages. There was nothing malicious or outrageous in the action of the appellant in enforcing its agreement with the appellee through the letter of credit. It may be that the appellee could have negotiated the tax claim to a lower figure but that is not one of the requirements of the letter of credit. Since the equities among the parties are not to be considered when enforcing a letter of credit, we do not consider them here. Needless to say, we find nothing in the record to support the tort of outrage.

Reversed and dismissed.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I disagree that the finding of the trial judge that the Letter of Credit #33 applied only to the bonds applicable to the College Park Shopping Center project has been shown to be clearly erroneous.

Merely because the word “bonds” is plural rather than singular is not a sufficient basis as I see it, to render the letter of credit beyond doubt as to the intention of the parties. That intention is to be gathered from the entire context of the agreement. Arkansas Power & Light Co. v. Murry, 231 Ark. 559, 331 S.W.2d 98 (1960). Moreover, this instrument was drawn by the appellant and must be interpreted against the party which prepared it. American Insurance Co. v. Rowland, 177 Ark. 875, 8 S.W.2d 452 (1978).

I would affirm the trial court.


text:
    Benny WILLETT v. STATE of Arkansas
    CR 88-205
    769 S.W.2d 744
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Frank H. Bailey, for appellant.

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

On September 13, 1988, the jury convicted the appellant of possession of a controlled substance with the intent to deliver and, as an habitual offender, he was sentenced to life imprisonment. He argues three points on his appeal: (1) the trial court erred in holding that the police had reasonable cause to stop and search the vehicle; (2) the trial court erred in sustaining the prosecution’s objection to identification of the confidential informant; and (3) it was error to justify the search on the basis of “exigent” circumstances. We do not find prejudicial error. The conviction is affirmed.

Officer Lyle Scott, a detective for the Mountain Home Police Department, testified that during the six months prior to the arrest of the appellant on the present charge, he had received information from four or five sources that the appellant and his co-defendants were dealing in cocaine. Between January 19 and 22, 1988, two confidential informants told him that the co-defendants were making weekly trips to Jonesboro for the purpose of picking up cocaine to be brought back to Mountain Home and sold. The informants told him that the defendants would be driving a late model white pick-up truck or a gray primer-colored Pontiac GTO, and that both vehicles were kept at Ray’s Auto Repair. The informants further told him that the supplies went quickly, but that if any was left after the initial sale it was kept in a toolbox at the repair shop. Scott was informed by one of the two confidential informants that he had overheard the co-defendants talking in a local cafe and that he understood they would be going to Jonesboro on January 22nd to get more cocaine. The confidential informants also informed Scott that the defendants usually carried handguns while making a delivery or picking up the cocaine. On the 22nd Scott and another officer drove by Ray’s Auto Repair and saw two or three people standing near a late model white pick-up and gray primer-colored Pontiac GTO. The officers then went to a restaurant named Bobby Sue’s Dawg House, expecting the suspects to come by and eat before leaving for Jonesboro. The officers were surprised when the suspects did not show up and after waiting for forty-five minutes went back to the repair shop where they found a “closed” sign and the gray Pontiac missing.

Being unable to locate the vehicles in the Mountain Home area, Scott contacted the sheriffs department and a surveillance was established on the roads going to Jonesboro. About 6:30 p.m. the gray Pontiac was observed at the intersection of Highways 5 and 177, near Mountain Home. Officer Parnell had been assigned to the surveillance team and upon noticing the GTO, he fell in behind it. He followed the GTO along the highway until it turned off on the Tracy Ferry Road. While following the car Officer Parnell observed the appellant, in the backseat of the GTO, apparently attempting to hide something. He also observed the passenger on the right front apparently trying to hide something. He turned on his blue light and stopped the vehicle at that time. Two other officers came immediately and helped Parnell place the suspects under arrest and conduct a search of the vehicle. Handguns and controlled substances, including cocaine, were found in the vehicle.

The state refused to identify the confidential informants and after a hearing the trial court agreed with the state. Motions to suppress the evidence were denied. At the pretrial hearing the foregoing information was presented by Officers Scott and Parnell. Officer Bill Beach, narcotics investigator for the state police, testified that he had been working with Scott and that he had received the same information presented by Scott.

The appellant’s first argument for reversal is that the court erred in finding the authorities had probable cause to search his vehicle and seize the items therein. He admits, however, that if the facts of this case meet the requirements of a vehicular search as authorized by A.R.Cr.P. Rule 14.1, that it was a valid search. The pertinent part of Rule 14.1 reads as follows:

(a) An officer who has reasonable cause to believe that a moving or readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public ....

Therefore, if the facts and circumstances reveal that the officers had reasonable cause to believe that drugs were contained in the GTO, it was a legal search and seizure.

The state has the burden of proof in this case because it was a warrantless search. Henry v. State, 278 Ark. 478, 647 S.W.2d 419(1983). The success of the search will not validate the search if it was unlawful in its inception. Walton v. State, 245 Ark. 84, 431 S.W.2d 462 (1968). The test for reasonable cause for stopping and searching a vehicle depends upon the collective information of the police officers and not solely on the knowledge of the officer stopping the vehicle. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). An officer has the right to stop a vehicle and make a warrantless search if it is on a public highway and he has reasonable cause to believe the vehicle contains evidence subject to seizure and the circumstances require immediate action to prevent destruction or removal of the evidence. Tillman v. State, 275 Ark. 275, 630 S.W.2d 5 (1982). Reasonable cause as required by A.R.Cr.P. Rule 14.1 exists when the officers have reasonably trustworthy information, which rises to more than mere suspicion, that the stopped vehicle contains evidence subject to seizure and a person of reasonable caution could be justified in believing an offense has been committed or is being committed. Mitchell v. State, 294 Ark. 264, 742 S.W.2d 895 (1988). The right to search and the validity of the search are dependent on the reasonableness of the cause the searching officer has for believing that the contents of the automobile constitute a violation of the law. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978).

On appellate review this court makes an independent determination based upon the totality of the circumstances. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988). In the present case at least two officers had received several tips from informants that the appellant and his associates were involved in drug dealing. Some of the tips were from sources which were not known to be reliable by the officers. However, nothing prevents an officer from investigating the information furnished to him by even an anonymous phone call. In Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987), we stated:

The anonymous tips in the present case were of value to the officers in making their initial investigation. Generally speaking, an officer would indeed be foolish to ignore an anonymous tip. So long as the officer does not invade the privacy and freedom of others, he is free to investigate any police matter in any manner not prohibited by law.

The information received by the officers in the present case was neither prohibited nor illegal. Therefore, they were free to use the information in their investigation in any manner which they deemed proper.

The officers did not act solely upon the advice given by the confidential informants. Such information was used as a catapult to launch a more intensive investigation. As it turned out, most of the information furnished by the informants was true. However, the information was not used as the basis for an arrest and seizure but rather to aid in further investigation. Reasonable cause may be based upon a combination of verified information furnished by anonymous callers and evidence gathered by the police in furtherance of an investigation of the. subject matter. Illinois v. Gates, 462 U.S. 213 (1983). The facts in the present case are quite similar to those in Gates, inasmuch as the anonymous letter in Gates informed the officers of pending drug transactions. In the present case unidentified informants notified the officers orally that the appellant was about to undertake additional drug dealing operations. The basic holding of the Gates opinion abandoned the “two-prong test” of Aguilar v. Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393 U.S. 410 (1969), in favor of the “totality of the circumstances” test.

The officers in Gates acted upon the anonymous letter by investigating the allegations contained in the letter. As it turned out the statements in the anonymous letter proved true up to a point.

Informant’s tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in value and reliability. Rigid legal rules are ill-suited to an area of such diversity. One simple rule will not cover every situation.

Illinois v. Gates, supra.

The Gates decision recognized that unproven allegations or informant’s tips may be corroborated by independent investigative work by the police.

The Gates opinion did not open the floodgates to mass arrests based upon anonymous and unverified tips. It dealt with one single anonymous letter giving many details of conditions existing at the time the letter was written and projecting future actions to be taken by Gates and his wife. The investigating officers verified several of the tips. All of them proved accurate and reliable. The investigation could not cover what had not yet happened. The decision held that the magistrate issuing the search warrant was justified in placing some reliance on the anonymous letter in view of the affidavit by the police that most of the statements in the letter already had proven accurate.

In the case before us, whether acting on their own or through the use of the tips, the officers spotted the vehicles which were allegedly used on the drug trafficking trips. Although the police would not have been authorized to obtain a warrant based solely upon the information furnished by the unidentified informants, they would have been doing less than their duty had they not investigated the allegations. Although they may have been acting on a mere suspicion at the time they started the surveillance, the suspicion rose to reasonable cause before the vehicle the appellant was riding in was stopped. Most police investigations, no doubt, start with only suspicion. The activity observed by the officer chasing the GTO, along with his prior knowledge, was sufficient to allow a stop of the vehicle. Circumstances excusing the search without a warrant are exigent when they involve danger to the officers or risk of loss or destruction of evidence. Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980). Certainly the facts and circumstances of this case are sufficient to allow a search pursuant to Arkansas Rules of Criminal Procedure Rule 14.1(a)(1).

The second argument offered by the appellant is that the court improperly refused to allow identification of the confidential informants. This issue has been discussed in the first argument for reversal. Since the arrest and search and seizure were not conditioned upon the information of the confidential informants, it is not necessary to discuss this issue at length. See Illinois v. Gates, supra. The informants in the present case neither witnessed the crime nor participated in it in any manner. Therefore, it was not necessary to reveal their identity. See Treadway v. State, 287 Ark. 441, 700 S.W.2d 364 (1985); and A.R.E. Rule 509.

The third argument by the appellant is that the court erred in finding exigent circumstances. This argument has also been disposed of under the first point. The plain wording of A.R.Cr.P. Rule 14.1 authorizes the search and seizure of items in a vehicle if the vehicle is stopped pursuant to the provisions of that rule. We explained reasonable cause for stopping a vehicle in the first part of this opinion and will not discuss it again at this time. •

Although anonymous tips standing alone do not constitute reasonable or probable cause, information verified as a result of such tips may support reasonable cause and may be acted upon as though the tips had never been received. In the present case the investigating officers obtained objective evidence in support of their belief that reasonable cause to stop the vehicle existed. The stop and search in this case were not based upon mere conjecture and speculation nor mere suspicion. The search was based upon evidence which confirmed the information furnished by the confidential informants. The reliability of the informants was not an issue under the facts in this case. The arrest may have resulted, at least in part, from the anonymous tips, but it was based upon the observations and information established by the police during their investigation of the facts. Therefore, there was no prejudicial error in the trial court and the conviction is affirmed.

Hickman, J., concurs.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I must disagree with the majority on its finding of probable cause for a search of appellant’s vehicle. My disagreement is twofold: the first being the lack of knowledge of probable cause by the arresting officer, Parnell, who made the stop and conducted the search. The majority states that the police were initially acting on a mere suspicion at the time they started the surveillance but that it rose to reasonable cause by the time the vehicle was stopped — that “the activity observed by the officer chasing the GTO, along with the his prior knowledge, was sufficient to allow a stop of the vehicle.” [My emphasis.]

The problem here is that Parnell had no prior knowledge to add to his observation of activity in the vehicle. The only information that had been been relayed to him was that there was a gray ‘66 to ‘68 GTO with two suspects in it; that the suspects could be armed and would probably run; and that he was to follow them until he could get a backup. No other information regarding the prior investigation had been communicated to Officer Parnell.

The investigation of this matter had been carried on by officers Beach and Scott and prior to the stop of appellant’s vehicle, the information they had was admittedly insufficient for any stop. The suspicious activity observed by Parnell was therefore critical to having a sufficient basis. Beach and Scott, however were never informed of the activity observed by Parnell, nor was Parnell involved in the investigation or in a sharing of the previous information gathered by Scott and Beach. The record reveals that Parnell was apparently called off of some other duty for this particular surveillance effort, and then was given only a description of the car and a directive to follow the vehicle and, at most to conduct a Terry stop. Lacking knowledge of the details of the investigation to that point, there was no way Officer Parnell could have added his observations of activity in the vehicle to the other officers’ information and produced a sufficient basis to stop.

While we have made reference to the “collective knowledge” of the police as a legitimate basis for probable cause, as the majority briefly notes, citing to Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), it has not been used in the sense suggested by this case. That is, it has not referred to the finding of probable cause through a piecemeal collection of information from various police officers where no one officer has put that information together to find probable cause. Rather, as in Tillman, it has referred to a finding of probable cause when the arresting officer lacks any basis for such a conclusion, but has been directed to make an arrest or search when someone else in the department does have such information. Or as in Perez v. State, 260 Ark. 438, 541 S.W.2d 951 (1976), where an officer has found probable cause not from his own personal knowledge but from data collected from others in his department. See also Woodall v. State, 260 Ark. 786, 543 S.W.2d 957 (1976); Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969). In the case before us, neither the investigating officers nor the arresting officer had enough information individually to support a search. Only by an exchange of information could there have been any possibility of finding grounds for a search by Parnell.

The danger in the method approved in this case is quite obvious. It encourages arrests and searches where there is an insufficient basis, in hopes that an after-the-fact inquiry will turn up additional information to support the police action. “To say in the abstract that probable cause is to be evaluated on the basis of the collective information of the police ignores the underlying assumption — and factual reality — that there is some communication between those officers, who do know facts amounting to probable cause, and those who do not. . . If no officer connected to the arrest knows the facts which might justify it, no officer exercises the judgment required as a substitute for judicial approval. Information scattered among various officers in a police department cannot substitute for possession of the necessary facts by a single officer related to the arrest.” State v. Cooley, 457 A.2d 352 (Del. 1983). “[T]he fellow officer rule. . . is not a means of creating probable cause by using post hoc combinations of information available to the police. The rule does not permit the police to call its archives in hopes of justifying an arrest which is not supported by probable cause.” People v. Hazlehurst, 662 P.2d 1081 (Colo. 1983).

The burden of proof is allocated to the state when a warrantless search has occurred, and the state must prove the source of its information and the means of its acquisition. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). The state failed in this case and I would reverse on the basis discussed above. But even if we were to somehow impute the officers’ knowledge, one to the other, I would still reverse because the cumulative information of all the officers was insufficient to make a finding of probable cause to support a search.

The majority relies on Illinois v. Gates, 462 U.S. 213 (1983), for the proposition that an anonymous tip will support the probable cause requirement if there is sufficient corroboration of the tip by independent observation by the police. In Gates, the police received an anonymous letter stating that a named couple sold drugs; that the wife would drive to Florida, leave the car and fly back; the husband would then fly to Florida and drive back with the purchased drugs; and that another such trip was about to occur. A few days later the police determined that the husband had flown to Florida and had gone to a hotel where he met his wife. The next day they were both observed leaving in their car heading in a northerly direction toward their home. The court held there was probable cause to support a search warrant. It found: the activity suspicious because Florida was well-known as a source of illegal drugs; the police corroborated several details given in the letter; and the details corroborated concerned future activities which were not easily predicted.

While Gates has been criticized as providing a questionable basis for supporting a search warrant, 1 LaFave, Criminal Procedure, § 3.3(c), the facts in our case don’t even meet the minimum standard of Gates. The only information from the tip that was corroborated by the police was that two individuals would leave in a certain car around noon and would return later in the day from the direction of Jonesboro. There was simply nothing untoward about the activity observed and only the most minimal of details corroborated. Neither did the information reveal any future activity that could not be easily predicted. All the police had was that two men had probably gone to Mountain Home on that particular afternoon. If we add to that Officer Parnell’s observation that two individuals in the car appeared to be moving around or hiding something, there was arguably a basis for a Terry stop, but no more. See U.S. v. White, 648 F.2d 29 (D.C. Cir. 1981), for a discussion of the quantum of evidence needed for a Terry stop and what is needed beyond that to “boost” the case into one constituting probable cause.

Here, the evidence presented by the state had to be sufficient to support a probable cause test or nothing at all. There were no preliminaries by Parnell in the way of an investigatory stop that revealed further facts that would in turn justify a search. See e.g., Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987). Rather, Parnell simply stopped the vehicle, had the occupants get out, and without further discussion or questioning undertook a search of the automobile. Even if we were to assume, which I could not, that Parnell had knowledge of- the other officers’ information, the sum of data available to the police did not constitute an adequate basis to support the full-scale search that was undertaken and the motion to suppress in this case should have been granted.

       It appears from the record that Parnell had made this decision on his own or had misunderstood the directive. Officer Beach who was in charge or directing the surveillance effort indicated that no authorization for a search had ever been given:
      Q: Now, when you set up this trap to stop the car, the directions were if you saw a gray primer Pontiac GTO coming from the direction of Jonesboro, stop it?
      A: Basically, yes, sir.
      Q: You used traffic stop in your direct?
      A: Yes, sir.
      Q: So these officers that were placed out here were to make a stop?
      A: That’s correct.
      Q: Now when they stopped this vehicle, they were to search the vehicle to see if there was any contraband in the vehicle?
      A: No sir. We didn’t give anyone any particular instructions to search. The vehicle was supposed to be stopped, but by the time that we had responded to where the vehicle had been stopped, it had already been searched.


author: Robert H. Dudley, Justice.

text:
    Roosevelt FERGUSON v. STATE of Arkansas
    CR 88-213
    769 S.W.2d 418
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Maxie G. Kizer, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of capital murder and sentenced to life in prison without parole. The sole issue on appeal is the sufficiency of the evidence. We affirm the judgment of conviction.

In considering the sufficiency of the evidence on appeal, we need consider only the evidence favorable to the appellee and affirm if the jury’s verdict is supported by substantial evidence. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Substantial evidence is evidence of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other, forcing the mind to pass beyond mere suspicion and conjecture: Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Circumstantial evidence may constitute substantial evidence to support a conviction. Still v. State, 294 Ark. 117, 740 S.W.2d 926 (1987).

The evidence, viewed in the light most favorable to the State, is as follows. The victim, Annie Bell Hall Killingsworth, the owner of an apartment complex, was murdered on the night of July 31,1986. Medical evidence showed that she died of simultaneous suffocation and strangulation. The medical examiner testified that the simultaneous suffocation and strangulation was evidence that two people physically participated in the murder. Entry into the victim’s apartment was gained by removing the glass from a window. Milton Jones’s fingerprints were found at the place of entry. The victim had about $ 10,000.00 in cash in her apartment, and it was gone when her corpse was found. The foregoing is circumstantial evidence that Milton Jones and someone else burglarized the victim’s apartment and in the course of, or in the furtherance of the burglary, murdered the victim. This meets the definition of capital murder. See Ark. Code Ann. § 5-10-101 (a)(1) (1987).

The evidence further reveals that Erma McCoy saw Milton Jones and the appellant behind the victim’s apartment late on the night of July 31st. Ms. McCoy testified that when she saw them, the appellant told Milton Jones, “Milton, get Erma, grab Erma.” Immediately afterwards he said, “She’s dead.” Since Ms. McCoy is still alive, the jurors were free to infer that the latter statement was about the victim.

After the murder the appellant fled to Kansas City and later to California. Jones was arrested shortly after the murder, was convicted of capital murder, and sentenced to life without parole. Jones v. State, 296 Ark. 135, 752 S.W.2d 274 (1988). Appellant was not apprehended until April of 1988. At that time he gave a statement in which he confessed that he and Jones had been drinking on July 31st when Jones suggested that they rob Ms. Killingsworth. He said Jones removed the window glass and went in first. Appellant followed. Jones was in the victim’s bedroom looking for money when she saw him. Appellant said that Jones killed Ms. Killingsworth because he thought she recognized him. He said he personally went in for the sole purpose of taking the cash.

At trial he took the stand and changed his story. He testified that by the time he went through the window, Jones had already killed Ms. Killingsworth and was sorting through her belongings. He said he only took a pillow off her face and put it on her chest.

Clearly there was sufficient proof to support the verdict of guilty. Direct evidence places the appellant at the scene of the crime and taking part in the burglary. Circumstantial evidence shows him participating in the murder. The jury was free to accept some parts of appellant’s testimony and reject other parts. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979). Further, his flight to avoid arrest can be considered as corroboration of evidence tending to establish guilt. Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987).

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and the Court of Appeals of Arkansas, we have reviewed all objections decided adversely to the appellant and find no prejudicial error.

Affirmed.


author: David Newbern, Justice.

text:
    ARKANSAS STATE BOARD OF EDUCATION v. MAGNOLIA SCHOOL DISTRICT NO. 14 OF COLUMBIA COUNTY
    88-261
    769 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellant.

      Rita S. Looney and Samuel A. Perroni, for appellee.
   David Newbern, Justice.

This is an appeal from an order certifying the case as a class action. Appeals of class action certifications, although interlocutory, are specifically permitted by Ark. R. App. P. 2(a)(9); Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985). The appellee, which is the Magnolia School District No. 14 of Columbia County, sought to have the appellants, who are the Arkansas State Board of Education and its members in their individual and representative capacities, enjoined from using state school money to satisfy obligations of the Little Rock and South Conway School districts resulting from federal court desegregation rulings. The Magnolia board was granted class action certification upon its claim to represent all other Arkansas school districts similarly situated. The state board appeals from the certification but raises only issues of sovereign immunity and standing to sue. We dismiss the appeal because these issues are not proper ones to be raised pursuant to Rule 2(a)(9).

The state board argued sovereign immunity and lack of standing in a motion for dismissal or summary judgment. It did not wait for the chancellor to rule on the motion but appealed her order certifying the class, arguing the positions they asserted in their motion. No issues of numerosity or common question of law or fact are even discussed.

The state board argues the chancellor erred in certifying the class because she lacked jurisdiction, given the claims of sovereign immunity and the Magnolia board’s lack of standing as a member of the class. The only case cited in support of the argument that the chancellor lacked jurisdiction to certify the class because of a failure of standing is O’Shea v. Littleton, 414 U.S. 488 (1974), which did not so hold but noted in obiter dicta that the members of the purported class had not shown the requisite “case or controversy” for federal jurisdiction. There had not even been a class certification proceeding in the U.S. district court. Class action certifications are not appealable under the federal rule, and the citation is of no benefit to the position asserted here by the state board.

We might have been willing to treat this appeal as a request for a writ of prohibition had we concluded that the chancery court lacked jurisdiction. We have been provided no authority whatever to the effect that the points raised, i.e., the defenses of sovereign immunity and lack of standing would, if proven, deprive the court of jurisdiction, nor are we aware of any such authority in this court.

Our holding in the Ford Motor Credit Co. case was premised, in part, on the fact that the certification issue should be separately appealable because it is separable from the merits of the case. It was not our intention in changing Rule 2(a) to allow any issue to be presented here under the guise of an appeal of a class certification other than ones concerning compliance with Ark. R. Civ. P. 23.

In an interlocutory appeal from a certification order we will hear only argument on whether the judge abused her discretion in certifying the class under Ark. R. Civ. P. 23. The state board’s points may be raised on appeal from a final judgment.

Appeal dismissed.


author: Per Curiam.

text:
    Charles SUMMERS v. STATE of Arkansas
    RC 89-16
    771 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered May 8, 1989

      Lynn Plemmons, for appellant.
    No objection.
   Per Curiam.

Appellant, Charles Summers, by his attorney, Lynn F. Plemmons, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Darrell Hickman, Justice.

text:
    Daniel R. BRUNDAGE v. STATE of Arkansas
    CR 88-216
    770 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989

      Robert S. Blatt, for appellant.

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

The appellant’s motion to set aside his plea of nolo contendere was denied by the trial court. We reverse and remand.

The motion was filed after a commitment order was entered, making it untimely under A.R.Cr.P. Rule 26. But the trial judge addressed the merits of the motion, so we will consider this an appeal from a denial of A.R.Cr.P. Rule 37 relief.

The trial judge failed to comply with the most fundamental requirements of accepting a plea from a defendant. See Boykin v. Alabama, 395 U.S. 238 (1969). Brundage was charged-with breaking or entering and burglary and was sentenced for both offenses, but he never entered a plea on the burglary charge. A plea -of nolo contendere shall be received only from the defendant himself in open court. A.R.Cr.P. Rule 24.3(a).

Brundage did plead nolo contendere to breaking or entering and was eventually sentenced to three years on that charge. But upon accepting that plea, the judge originally imposed a sentence of seven years with four years suspended, which was actually the intended sentence for burglary. The plea agreement signed by Brundage reflected only one sentence — the seven years with four suspended. The three years for breaking or entering was not part of the plea agreement.

The record also reflects that the judge misstated the penalty for breaking or entering, saying it carries a maximum fine of $2000 instead of $10,000. That error alone would not justify setting aside a plea. But the accumulation of errors, the obvious confusion at the plea hearing, and the complete failure to obtain a plea on one charge, cast serious doubt on the intelligent nature of the appellant’s plea. Under the circumstances of this case, the appellant’s motion to set aside his plea should have been granted.

Reversed and remanded.


text:
    Darrell Allen WILSON v. STATE of Arkansas
    CR 88-166
    770 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989

      Daniel D. Becker, for appellant.

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

The appellant was charged and tried for aggravated robbery and theft of property in Garland County, Arkansas. He had been previously tried in Saline County for the offenses of kidnapping, rape, and battery. All the criminal acts grew out of the same criminal episode which commenced with the robbery in Garland County and ended with the rape and battery in Saline County. The appellant received sentences of forty years and ten years, plus a ten thousand dollar fine in Garland County. For reversal the appellant contends that the court erred in overruling his motion in limine to prevent introduction of the evidence of the subsequent crimes in Saline County when the case was tried in Garland County. We hold that the Garland County Circuit Court did not err in admitting the testimony concerning the Saline County crimes.

We affirmed the appellant’s conviction for the Saline County crimes in Wilson v. State, 297 Ark. 568, 765 S.W.2d 1 (1989). The same facts are applicable to both cases and reveal that on December 5,1987, a gunman entered a grocery store on Highway 5 in Garland County, Arkansas, and demanded and took money from the cash register. He forced the store operator into a car and drove her to a secluded area in Saline County where she was raped, choked unconscious, and then shot. At the commencement of the trial in Garland County, the appellant confessed that he had indeed committed armed robbery and theft of property as charged. He moved for suppression of the evidence relating to the crimes committed in Saline County. The trial court overruled the motion. There is no separation in time or distance between the Garland County and Saline County crimes, except for the distance and the time it took to drive an automobile between the two points.

Under Ark. Code Ann. § 16-88-108(c) (1987), when a criminal offense “is committed partly in one county and partly in another, or the acts, or the effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.”

Arkansas Rules of Criminal Procedure, Rule 23.1(a) provides that the court may consolidate two or more charges for trial purposes if the charges could have been joined m a single indictment or information without prejudice to the defendant’s rights to move for severance pursuant to Rule 22.3. Rule 23.1 (b) provides that “the court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or the prosecution.”

In Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), we held that separate crimes committed in one continuous episode in more than one county required joinder if defendant requested it. The defendant had moved for joinder of the kidnapping charge, which occurred in Washington County, and the rape charge, which occurred in Madison County. In Cozzaglio we recognized that either county had venue to try either or both charges. We reversed and dismissed the subsequent conviction and sentence in Washington County, holding that the trial court had erred in denying the appellant’s motion for joinder of the charges in the first trial. That is not the question in the case before us because no motion for joinder was made by the appellant.

The appellant’s argument that evidence of the Saline County crime should not have been submitted was answered by this court in Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981), where we discussed the procedural matter of allowing evidence of other criminal conduct to be used at trial against an accused for a crime which is not at issue. The court held that “all the circumstances connected with a particular crime may be shown, even if those circumstances would constitute a separate crime.”

We will not reverse the trial court’s decision to admit evidence unless there has been a clear abuse of discretion. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). A case in point is David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985), where we stated that “a defendant is not empowered to prevent the introduction of relevant evidence by stipulating to the fact which such evidence tends to prove. The admission of evidence to prove matters already stipulated is within the discretion of the court.”

In view of the fact that the appellant did not seek joinder we hold that he waived that right. For the reasons stated above, the trial court did not commit prejudicial error in allowing evidence of the other crimes to be presented.

Affirmed.


text:
    Vincent BURIN v. STATE of Arkansas
    CR 88-206
    770 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered May 15, 1989

      F.N. “Buddy” Troxell, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The primary issue in this case is whether the appellant’s confession should have been suppressed because of his mental subnormality. We affirm the trial court’s ruling denying the motion to suppress. We set out the applicable law in some detail, even on points not argued, because there was obvious confusion below about the burden of proof, and the distinction between insanity as a defense and the lack of voluntariness of a confession due to mental subnormality.

I. The Privilege

In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Supreme Court recognized that custodial interrogations inherently produce “compelling pressures which work to undermine the individual’s will to resist and compel him to speak where he would not otherwise do so freely.” To neutralize this inherent compulsion and give true meaning to the Fifth Amendment privilege against self-incrimination, the Court in Miranda imposed a clear standard for police to follow in their dealings with an accused. Prior to the initiation of questioning, they must fully apprise the suspect of the state’s intention to use his statements to secure a conviction and must inform him of his rights to remain silent and to have counsel present, if he so desires. Id. at 468-470. The police must respect the rights guaranteed by the Fifth Amendment. A suspect’s waiver of these rights is valid only if it is made “voluntarily, knowingly and intelligently.” Id. at 444. The inquiry into waiver has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412, 421 (1986).

A. Voluntary Waiver of the Privilege

“First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421. This “voluntary” requirement is concerned with any sort of coercive police activity. An incriminating statement obtained on the basis of a waiver must be excluded unless the state establishes the voluntariness of the waiver by the evidentiary standard of a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986). In the case at bar the appellant does not question the voluntariness of his confession. The exclusion of the statement because of police overreaching is not an issue.

B. Knowing and Intelligent Waiver of the Privilege

“Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Moran, 475 U.S. at 421. In Colorado v. Spring, 479 U.S. 564 (1987), the United States Supreme Court wrote:

The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. Moran v. Burbine, supra, 475 U.S. 412, 106 S. Ct., at _; Oregon v. Elstad, supra, at 316-317, 105 S. Ct. at 1298. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.

In this case the appellant argues that the trial court erred in admitting his confession because: (1) he failed to understand the basic privilege guaranteed by the Fifth Amendment; and (2) he did not understand the consequences of speaking to the police.

C. Facts of this Case

The prosecuting attorney and appellant’s attorney first questioned appellant’s competency to stand trial. In response the trial court ordered that the appellant be given a psychiatric evaluation by Dr. James H. Hickman, who found that appellant had some retardation in the borderline to upper mildly retarded range, but was able to conform his behavior to the requirements of the law.

The appellant then filed a motion to suppress the confession because of appellant’s mental subnormality. In order to meet its evidentiary burden at the suppression hearing, the State called Charles Fullmer, a deputy sheriff who testified that he spent about forty-five minutes explaining the standard Miranda form to the appellant. In his opinion the appellant understood his privilege and waived it. Further, another deputy sheriff, Ollie Willborg, testified that he knew the accused was not a knowledgeable person, and therefore, he broke down the rights form and took the time to explain each individual right to the appellant. He stated that he tried to get on appellant’s level in the explanation of his rights. In his opinion, the appellant understood his rights and their waiver.

The appellant then called Michael Prince, a psychologist who holds a Doctor of Philosophy degree. He testified that the appellant was in the mildly retarded range group, but that his abstract reasoning ability was extremely poor. He testified that the appellant was susceptible to suggestions and he was very gullible. He stated that the appellant could neither read nor understand the following words in the rights form: write, advise, silent, consulting, lawyer, desire, statement, and without. He testified that the appellant could understand only two or three sentences in the waiver of rights form and, in general, neither understood his basic Fifth Amendment privilege nor the consequences of speaking to the police.

At the conclusion of the hearing, the trial judge, having considered the evidence concerning competency to stand trial and the evidence from the suppression hearing, refused to suppress the statement. We cannot say the trial judge’s finding was clearly erroneous.

A low intelligence quotient will not, in itself, render a waiver of the privilege involuntary. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986); see also Annotation, Mental Subnormality of Accused as Affecting Voluntariness or Admissibility of Confession, 8 A.L.R.4th 16 (1981; Supp. 1988). Other factors to be considered are the defendant’s age, experience, education, background, and the length of detention. Fare v. Michael C., 442 U.S. 707 (1979), and Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). Here, the appellant was nineteen years old, in the eleventh grade in a special education class of the local public school, and owned and drove an automobile. He was not held for a prolonged period before the Miranda rights were carefully explained to him.

The trial judge saw and was in a position to determine the credibility of the witnesses. We are in no position to redetermine that credibility. In United States v. Oregon State Medical Society, 343 U.S. 326, 339 (1952), the Supreme Court commented on the deference which it gave to the findings of a District Court on direct appeal from a bench trial:

As was aptly stated by the New York Court of Appeals, although in a case of a rather different substantive nature: Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate' judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How'can we say the judge is wrong? We never saw the witnesses. . . . To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.

We cannot say the findings of the trial judge were clearly erroneous on the issue of knowingly and intelligently waiving the privilege.

II. The Prosecutor’s Closing Argument

For his second point of appeal, the appellant contends that the prosecutor’s closing argument was inflammatory and that the trial judge erred in refusing to grant a mistrial. The argument is without merit. The issue arose in the following manner. During cross-examination of appellant’s psychologist, the prosecutor asked if the appellant would be likely to commit sexual abuse in the future. The appellant did not object to the question. The psychologist answered, “yes, I would suppose that if a person were guilty of sexual abuse before, with this profile, with these results, I would have to predict that it would happen again.” On re-direct the appellant’s counsel asked a similar question, to which the psychologist responded, “If he had done it before, then it would be a fairly safe prediction to say he would do it again.” Of course, the State did not object. The appellant’s attorney again asked a similar question, and the prosecutor objected. The appellant’s attorney asked to strike the question. After both sides had rested, the appellant’s attorney moved for a mistrial because of the prosecutor’s original question. It was too late. The evidence was already before the jury without objection.

During closing argument the prosecutor commented on these questions and answers. The appellant again moved for a mistrial. The trial judge refused to grant it. The trial judge’s ruling was correct. A prosecutor is allowed to argue any inference reasonably and legitimately deducible from the admitted evidence. Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982).

Affirmed.

Hickman, J., not participating.