author: Tom Glaze, Justice.

text:
    Woodrow DAVIS III v. STATE of Arkansas
    CR 97-562
    955 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appeEee.
   Tom Glaze, Justice.

Appellant Woodrow Davis, III, was convicted of capital murder for the shooting death of Billy Sanders on January 31, 1995. Although the State sought the death penalty, Davis was sentenced to life imprisonment without parole.

At trial the State introduced a taped conversation made on April 17, 1995, between Davis and an acquaintance, Bobby Tygart. Tygart had suspected Davis’s involvement in Sanders’s death and had offered to aid law enforcement officers in the investigation of the murder. Unbeknownst to Davis, Tygart was wired when Tygart initiated conversation and successfully obtained Davis’s statements implicating himself in Sanders’s murder. Also, as a part of the State’s case-in-chief, the State introduced into evidence Davis’s confession which officers obtained on April 18, 1995.

Davis’s only point for reversal on appeal is that the trial court erred -in refusing to exclude from evidence five segments from Davis’s and Tygart’s recorded conversation. Davis’s argument is meritless.

In addressing Davis’s point, we are met with his general contention that tibié five segments he sought to exclude at trial had little or no probative value and whatever value they might have had was outweighed by their unfair and undue prejudice. See Ark. R. Evid. 403 (1997). Davis also claims the content of the disputed segments had no independent relevance to the State’s case and tended only to show him as a bad person. See Ark. R. Evid. 404 (1997).

The only meaningful way to examine and understand Davis’s argument is to abstract all of his statements made during his conversation with Tygart, but in doing so, we sequentially number and italicize the five passages to which Davis objects:

What are you doing? Let’s go. Come here, boy. Where’s your old lady at? Fayetteville? What for? Oh yeah —. (Tygart’s aunt is in the hospital in Jacksonville; the aunt’s car is messed up, and explains to Davis this is why he got away without his wife.) Oh yeah.
You don’t got no dope? No, not, I did some crack. I used a big old rock of crack. Cocaine. Oh, let’s go get a rock. No (Davis doesn’t have any money), I was going to get twenty from you. I was gonna borrow twenty from you. You! On “E?” (Tygart’s gas gauge) Just out runrún’ around? He’s left town (referring to a man named “Johnny”). Supposed to be headed to Wisconsin.
(Tygart asks where he can get a gun.) (1) What for? I don’t man, what for? To kill somebody. If you kill somebody, book ’em and run. Talk to old Jim. He may have one. (Jim) Milam. Old Jim, he won’t tell nobody. Hasn’t got as much power does it? (referring to the car) How’s that? It ain’t (the same part of the car). Room and board up here at Cecil’s house. I’m gonna ask him about y’all’s shit. And I’ll see if I can borrow twenty dollars from him. No (Cecil doesn’t have a gun). Jim may have one. He had one that I used a time or two but, he was supposed to got rid of it. We can check ’em.
(Davis next gives directions to Tygart)
No. I’d have to go by myself (to talk to Milam; Tygart then remarks he does not want to talk to Milam). Why not? What? (Tygart responds he has a lot on his mind). I do, too. Got it from my old lady. Jim will give me fifty dollars in the morning, but he can’t get it until morning ’cause his old lady is there, and that’s why I couldn’t talk to him. (Jim is) Robert’s uncle or his nephew. He’s (Robert) out there somewhere — staying —. I ain’t seen him — Well, I seen him the other day. I went over there and seen him.
(The next portion of the conversation discusses what Robert’s Uncle is in jail for and more directions to Cecil’s).
(Tygart and Davis discuss Tygart’s requirement of being in Jacksonville by 9:00, and directions once more.)
(2) I’ll pop a motherfucker in the head. (Unintelligible) Bull shit walks. Mother fucker pay me right. Mother fucker pay me right, I’ll pop the mother fucker for ya. But, uh, you can. Yeah. (Inaudible) have to pay right, huh. (Tygart states he doesn’t know if he could shoot a person). (3) I can. I can. I can. (Tygart asks if Davis would have bad dreams afterwards). I hadn’t. I can’t tell ya (who he shot). I got fucked up, boy. You know the mother fucker. Who? (Has Tygart figured out? Tygart says Bill.) How do you figure? I didn’t say that. You don’t know that. I’ll go to the penitentiary for life on that. Oh I figured (Unintelligible) that you looked at me (laughing) uh, yeah, Woody did (Unintelligible). Hey, man, fuckin’ planned on — paying for a fuckin’ (Unintelligible). Somebody else got paid to do it and then couldn’t. And never got it done. Never got it done and then I got in on the deal.
Uh, like I say, I got in on the deal, and it took me forever and ever, kept putting it off. Then I — ’Cause I was scopin’ him. Uh, I was sitting across the woods every morning and sitting across the road in the woods watching that mother fucker every morning in the mud, rain, cold. Shoot, about four, five or six months before I ever finally got any — Well, what it got down to, the boy that I — we was doing it for said that —. Peoples on him •— that peoples on him, and they said, you know, look, they on me. It’s either him or y’all. He said ya’ll done know too much, Said either get him, or we’re gonna get y’all. No, not you. Me and the guy I did it for.
Me and the guy that was with me that was supposed to do it, I just supposed to do all of the driving and shit. Then when it come down, he didn’t have the balls, so I had to do it. Well, shit I got — I didn’t get rid of that •— I just planned my shit out and screwed around and got by with it. There’s a reward out now over it I heard. Don’t nobody know but me, the guy that was with me and the guy that had us do it, and you. I ain’t gonna say nothing about it again. Fuckin’ took forever. Goddamn.
(Tygart then questions Davis about how he felt afterwards.)
(4) I’s real hurt. I had to go get some stuff. I went and got me a gram, phew, the whole half. Yeah (at one time). Fs pushing. Pheewwww, boy I was going. Shit. Took me a while, I have I felt better when I got over it though. It wasn’t, ivasn’t like I thought it was gonna be. I don’t think about it. When I think about how the pussy the mother fucker acted about it. He was scared. Mother fucker went through — Yeah, damn near. He had to of, ’cause you know, Bob told him, hey man, you better come off that shit if you want to live. And he thought he’s gonna live and give me all his shit, but he didn’t live. I knew what I had to do. Mother fucker with a .357 in your side.
No, he was supposed to have (some dope). No. He bought it. He fuckin’ bought an ounce a week or two ounces a week. A kilo or something. Fucking crystal or cocaine, and he pushed it. He bought that a week. He’s got all that money stashed in his house. Cause the guy was fuckin’ his old lady, she come by and gave —. Well, he don’t no more, he’s gone. Bill got the dope, and he put it up to his pushers, mainly in Jacksonville, and then they went out, you know. He, he always passes out two or three people —.
That if I didn’t kill him, they were going to kill me for not killing him, ’cause I already knew too much. Yeah. And they’d still kill me now if I say anything. Don’t nobody know nothing but me, him and him and — the militia — These mother fuckers are worse than the militia. I ain’t lying. These mother fuckers are worse than the militia. It’s like the Mafia.
(Tygart then explains some trouble he is in.)
(5) Boy, don’t ever fucking say nothing about that shit, ’cause Goddamn, we’d both have to get killed. I ain’t lying. I ain’t lying. What was really so fucked up about it was the motherfucker was such a pussy about it, ‘cause you know, when you got a .357 in your side, you gonna suck his dick if you want if you want. If you don’t —. It wasn’t what there was supposed to be (the money on Sanders). No, not all of it (was spent by Davis buying crack). Crystal, bought the boys some toys and shit.

Davis specifically objected to each numbered segment set out above as follows:

(1) Any reference to “If you kill somebody, book ’em and run” was not probative of any issue involved, showed Davis was nonchalant about killing a person and portrayed him as a bad person.

(2) When referring to “popping” a person for the right money, the statement made no reference to a specific person and was merely a general observation.

(3) In stating he could shoot somebody and it not bother him, it was not probative, but was highly prejudicial.

(4) His statement concerning the taking of drugs to make him feel better after shooting [Billy] did not reflect Davis’s state of mind on the day of the incident [murder] and was irrelevant to any issue at trial.

(5) His reference to using a .357 on Billy Sanders added no new information, and the remainder of the statement portrayed Davis as remorseless, which was not an issue in this case.

In reviewing Davis’s arguments in light of the full text of his statements to Tygart, we conclude the five disputed passages were highly relevant, and any prejudicial effect they had were clearly outweighed by their probative value. In fact, to remove those segments challenged by Davis would only cause confusion regarding the meaning of the remaining portions of his conversation with Tygart that were introduced without objection.

The importance of the full text of Davis’s April 17, 1995, conversation with Tygart is best illustrated because his .statements to Tygart corroborate Davis’s April 18, 1995, confession. While Davis does not challenge on appeal the trial court’s ruling that allowed his confession into evidence, Davis argued at trial that his confession should have been suppressed because it was not voluntarily, knowingly, and intelligently given. In his closing argument to the jury, Davis’s counsel argued that Davis’s confession resulted from some type of coercion. Moreover, Davis also offered testimony reflecting that Sanders’s employer had received a prior death threat on Sanders’s life from a man other than Milam, Reeves or Davis, who claimed Sanders had been seeing the man’s wife.

Davis’s confession very clearly related how he, Robert Reeves, and Reeves’s uncle, Jim Milam, killed Sanders. Milam was the one who initiated the plan by contacting Reeves. Milam gave Reeves a 30-30 rifle, but Reeves did not do the “job.” Milam then offered money to Reeves and Davis if they would kill Sanders. Davis and Reeves made several morning trips to woods located near Sanders’s house, but Reeves still would not shoot Sanders. Davis said that, after Reeves and Davis failed to kill Sanders, Milam threatened them that “it was either Bill (Sanders) or us.”

Davis’s confession detailed the day of Sanders’s murder, setting out how each party participated. Milam furnished a .357 pistol to Davis and Reeves; afterwards Davis and Reeves found Sanders, driving his truck into his employer’s car lot on the morning of January 31, 1995. Reeves and Davis got into Sanders’s truck and proceeded to drive to a landfill in Pulaski County. Milam drove his vehicle to the landfill to join them, and after Reeves, Davis, and Sanders arrived, Milam shot Sanders in the head while Sanders was still in his truck. Reeves then placed Sanders’s truck in gear so it would roll off and submerge into a water hole. Davis and Reeves had taken Sanders’s ring and $300.00 in cash. Davis said the cash was split equally between him, Reeves and Milam, but Davis’s wife’s stepfather later pawned the ring.

In sum, Davis argues the five disputed segments prejudicially placed before the jury evidence and general observations that had no relevance to any issue at trial. Those segments considered along with Davis’s confession show Davis’s part in Sanders’s murder and that Davis’s statements to Tygart related to his past participation in that murder. As far as Davis’s expressed concern that his mention of a .357 pistol to Tygart added nothing new to the State’s case, the State was not limited in the amount of proof it could introduce to prove its case. Instead, the rule is that relevant evidence may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Ark. R. Evid. 403. Here, considering the record before us, we are unable to say the trial court abused its discretion in rejecting Davis’s argument that the probative value of the State’s evidence was outweighed by danger of unfair prejudice or needless cumulative evidence. Again, to the contrary, we beheve the jury likely would have been confused or misled if the five segments objected to had been excluded from evidence.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been examined in its entirety, and no other rulings adverse to Mr. Davis involving prejudicial error were found. We affirm.

       Davis’s entire conversation with Tygart was recorded on three tapes, but the trial court excluded a substantial portion of the conversation as being irrelevant.

       There are seven to eight additional abstract pages containing statements of Davis to Tygart, but those statements were introduced at trial without objection and are unnecessary to recite for purposes of this opinion.

       Davis also argued his due process right was violated because Tygart had been provided some compensation or reward for his cooperation. However, Tygart had received no compensation or reward at the time of trial.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Nathaniel LEWIS v. STATE of Arkansas
    CR 97-538
    955 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      Don Trimble, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises out of a judgment of conviction for first-degree battery and residential burglary. Appellant Nathaniel Lewis was sentenced to 20 years on each count to run concurrently. His one issue on appeal concerns whether the trial court erred in refusing to allow him to impeach his own witness, Gordon Brown, with a videotaped statement Brown purportedly gave to West Memphis police officers. He files his appeal in this court based on his contention that this is an issue of significant public interest. We affirm for failure to comply with Ark. Sup. Ct. R. 4-2(b)(2).

This court has repeatedly held that it will not consider arguments that have not been properly abstracted. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214(1996); Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993). We have stated that it is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the Court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Richmond v. State, supra; D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995); Carmical v. City of Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994). Scattered references to the record contained in the argument portion of the brief are not sufficient to meet this court’s requirements under Rules 4-2(a)(6) and 4-2(b)(2). See Richmond v. State, supra; Wynn v. State, 316 Ark. 414, 871 S.W.2d 593 (1994); Watson v. State, supra.

Here, Lewis not only failed to abstract material parts of the record, but he failed to include in his brief any abstract of the record at all. In his brief, Lewis merely quoted part of the colloquy between counsel, Brown, and the trial court as part of his argument. This is plainly not enough to satisfy our rule. His brief is flagrantly deficient, and under such circumstances, we affirm. Ark. Sup. Ct. R. 4-2(b).

Affirmed.

       Arkansas Supreme Court Rule 4-2(a)(6) was redesignated Arkansas Supreme Court Rule 4-2 (a)(5) by per curiam opinion dated July 15, 1996. In Re: Supreme Court Rule 1-2, and Other Matters Related to the Jurisdiction of the Supreme Court and Court of Appeals, 325 Ark. 525 (1996). On June 30, 1997, a new subsection 4-2(a)(2) was added to Rule 4-2, thereby again making the abstract subsection 4-2(a)(6). In Re: Supreme Court Rule 1-2, Rule 2-4 and Rule 4-2(a), Rule 2 of the Rules of Appellate Procedure — Criminal, and Rule 3 of the Rules of Appellate Procedure — Civil, 329 Ark. 656 (1997).


author: Ray Thornton, Justice.

text:
    Robert BLAYLOCK, Michael Ibsen, and Steve Perry v. SHEARSON LEHMAN BROTHERS, INC.
    96-1176
    954 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      Robert R. Char, for appellants.

      Parker, Hudson, Rainer & Dobbs, by: David G. Russell and Nancy H. Baughan; and Hardin, Dawson & Terry, by: Rex M. Terry, for appellee.
   Ray Thornton, Justice.

This case presents the question whether a voluntary dismissal, or nonsuit, by a plaintiff is automatically effective as soon as it is filed, or whether a court order or docket entry is required to dismiss the action without prejudice and start the clock ticking on the statutory savings period. The trial court found that a nonsuit becomes effective upon filing, without any action by the trial court; the court further found that, as a consequence, the August 17, 1995 complaint filed by appellants Robert Blaylock, Michael Ibsen, and Steve Perry was time barred. We disagree and reverse and remand.

While it is well settled that a person who files a lawsuit may voluntarily dismiss that lawsuit and has a statutory right to refile the action within one year pursuant to Ark. Code Ann. section 16-56-126 (1987), we have never before addressed the question whether the nonsuit is effective upon filing or whether some action by the court is required. In reaching that issue, we consider the following rule of civil procedure on voluntary dismissals:

Voluntary Dismissal: Effect Thereof. Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice. In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding to trial on his claim although the plaintiff may have dismissed the action.

Ark. R. Civ. P. 41(a) (1997). We have long interpreted this rule as creating an absolute right to a nonsuit prior to submission of the case to the jury or to the court. Whetstone v. Chadduck, 316 Ark. 330, 871 S.W.2d 583 (1994); Doan v. Bush, 130 Ark. 566, 198 S.W. 261 (1917). Although the rule does not provide for it, we have held that it is within the court’s discretion to permit a non-suit without prejudice even after final submission of the case. Wright v. Eddinger, 320 Ark. 151, 894 S.W.2d 937 (1995). When a nonsuit has been made effective, a new action may be filed within one year of the nonsuit or within the applicable statute of limitations, whichever is longer. Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965).

We have stated that, for a judicial order to take effect, a judgment or decree must be “entered” to be effective. Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989). We said in Standridge that under Ark. R. Civ. P. 58 and Arkansas Supreme Court Administrative Order No. 2, the term “entered” means that the judgment or decree must be “set forth on a separate document” and filed by the clerk in the court’s docket book. Id. at 497, 769 S.W.2d at 14. This decision reflects the importance of having the court maintain control of its docket as well as providing an accurate record of the status of the litigation. This control protects the integrity of information, and the court and parties to the litigation rely on it when reviewing court orders and docket entries in the case.

The requirement for an order may also be inferred from our decisions reversing a trial court’s denial of a plaintiffs absolute right to a voluntary nonsuit. We have provided relief for such an erroneous denial by reversing and remanding with instruction to the trial court to grant the nonsuit, rather than determining that the nonsuit was effective at the time it was requested. Brown v. St. Paul Mercury Ins. Co., 300 Ark. 241, 778 S.W.2d 610 (1989).

Decisions from other jurisdictions reflect sound reasoning for requiring court action to effectuate a nonsuit. The Virginia Supreme Court has interpreted its state statute dealing with non-suits to require a court order to be effective. Nash v. Jewell, 227 Va. 230, 315 S.E.2d 825 (1984). The court in Nash discussed the importance of having some court action on the issue as follows:

[C]ourts act by orders and decrees. There is no termination of litigation until the court enters an appropriate order. Therefore, before entry of such an order the plaintiff may reconsider his decision to take a nonsuit. He has no right to withdraw the non-suit, but he has a right to move the trial court to permit withdrawal. The granting or denial of the motion is a matter for the trial court to determine in the exercise of judicial discretion.

Id. at 237, 315 S.E.2d at 829 (citations omitted).

In Dorney v. Dorney, 98 N.H. 159, 96 A.2d 198 (1953), the New Hampshire Supreme Court stated that merely filing the motion for voluntary dismissal does not automatically end the action. The court explained its reasoning as follows:

The plaintiff cannot discontinue his suit without the privity of the court. The nature of the motion is such that some action on it by the court is contemplated and required. The circumstances under which it is filed determine whether the granting of it is a matter of the Court’s discretion or a matter of right. Even in the latter situation, some act or agreement of the plaintiff may have estopped him from exercising the right or costs may be assessed as a condition of the dismissal. An order of the court granting such a motion is not in itself a judgment but is only the basis upon which a final decree may be entered at the established judgment day, unless otherwise ordered. Judgment is the law’s last word in a judicial controversy. It is not until a judicial determination has been reduced to judgment that an action is finally terminated.

Id. at 160, 96 A.2d at 199 (citations omitted).

For all the reasons we have stated, we choose to apply the holding of Standridge to all dismissals from litigation, including those voluntary dismissals without prejudice to which a plaintiff may have an absolute right. We therefore hold that a court order is necessary to grant a nonsuit and that the judgment or decree must be entered to be effective. Further, we determine that, under the facts before us, the trial court erred in dismissing the case as time barred. We now turn to the facts of this case.

This is the third case filed on behalf of appellants against the appellee Shearson Lehman Brothers, Inc. All three cases alleged violations of the Arkansas Securities Act relating to the sales of stock to appellants and were grounded upon causes of action that arose in 1986. The five-year statute of limitations for filing an action for securities fraud, Ark. Code Ann. § 23-42-106(f) (Supp. 1995), would have run in 1991, except that the commencement of a class action tolls the running of the statute as to purported members of the class during the pendency of the litigation. American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974).

Appellants were purported members of the class in the first of the three cases, Gentile v. Shearson, a proposed class action against appellee, filed on October 16, 1990. On March 3, 1993, class certification was denied. Gentile is not before us in this appeal, but it acted to toll the running of the five-year statute of limitations.

Two days later, 140 plaintiffs, including appellants, filed an action on substantially the same grounds. That case, Morton v. Shearson Lehman Brothers, Inc., is likewise not before us in this appeal; however, some of the facts from Morton are relevant to this third case, which is now before us. During the proceedings in Morton, appellants joined more than eighty plaintiffs in filing a document captioned a “nonsuit” on July 6, 1993. The abstract in this appeal discloses that no action was taken by the Morton trial court on the nonsuit filed on July 6, 1993. The abstract shows also that counsel for plaintiffs subsequently attempted to amend the nonsuit on two occasions for the stated purpose of restoring some nonsuiting plaintiffs to active status. The court did not act on either of these first two “amended nonsuits.” Then, on July 6, 1994, counsel for plaintiffs filed another “amendment to nonsuit” to restore appellants to active status.

As a result of appellee’s objections to this third attempt to amend the nonsuit, a hearing was held on August 17, 1994. Appellee argued that it was too close to trial for appellants to be restored to active status, and appellants’ counsel contended that the nonsuit had not become effective because no court action had been taken. The Morton trial court, in denying the request to restore appellants to active status, said the following from the bench: “Okay. Right or wrong, you’re gonna need to refile those, I’m sorry.” Appellants do not appeal that decision, or any other action taken by the trial court in Morton.

This third case, Blaylock v. Shearson, was filed on August 17, 1995, seeking relief on the original cause of action. Appellee moved to dismiss Blaylock on the basis that the claim was time barred. By its order filed June 3, 1996, the trial court found that appellants’ claims were nonsuited on July 6, 1993, and it dismissed the complaint as time barred.

Appellee argues that the trial court’s dismissal was not erroneous for the following reasons: (1) the July 6, 1993 nonsuit in Morton was effective when filed, (2) the voluntary dismissal from Morton on July 6, 1993 terminated the tolling of the five-year statute of limitations, and (3) appellants’ filing of Blaylock was time barred because both the five-year statute of limitations and the one-year statutory savings period had run before the Blaylock complaint was filed. These arguments lack merit.

Because of our holding that a judgment or decree must be entered before a nonsuit becomes effective, we have carefully examined the abstract and find no order or decree granting a non-suit in Morton, nor any entry reflecting such action on or before October 17, 1994, when the abstract before us ends its references to the Morton case. Based upon our conclusion that no nonsuit was effectively granted, it follows that appellants were not dismissed from the Morton lawsuit, that the one-year savings statute was never activated, and that the general five-year statute of limitations applicable to securities fraud continues to be tolled for so long as appellants are not dismissed from Morton. The trial court in Morton granted a summary judgment against some plaintiffs on October 17, 1994, and on the basis of a settlement, dismissed the action of other plaintiffs on the same date. However, the abstract shows that appellants were not included in either order.

From the abstract before us, we conclude that appellants’ August 17, 1995 complaint was erroneously dismissed as time barred, and we reverse and remand for further proceedings.

       We note that our rule of civil procedure, Rule 12(b)(8), provides a defense against an action based on the pendency of another action between the same parties arismg out of the same transaction or occurrence; however, this defense is waived under Rule 12(h)(1) if it is not included in the original responsive pleading.


author: Per Curiam.

text:
    Stanley Frank BOYD v. Honorable Tom KEITH
    97-991
    954 S.W.2d 942
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      Appellant, pro se.
    No response.
   Per Curiam.

Petitioner Stanley Frank Boyd, a prisoner in the Arkansas Department of Correction, states that on April 2, 1997, he filed a Freedom of Information Act request with the Honorable Tom Keith, Carroll County Circuit Judge. The request sought copies of records allegedly in the files of the Circuit Court. The matter apparently remains pending before the Circuit Court. Petitioner Boyd seeks a writ of mandamus to cause Judge Keith to grant his request.

The Attorney General, on behalf of Judge Keith, has responded by denying that the request has merit rather than addressing the Circuit Court’s failure to act on the request.

The writ of mandamus is granted to require only that the Circuit Court act upon the request of Mr. Boyd.


author: Per Curiam. David Newbern, Justice,

text:
    Henderson BROWN v. STATE of Arkansas
    CR 79-5
    955 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Per Curiam.

Henderson Brown was found guilty by a jury of aggravated robbery and theft of property, charges which arose from a hold-up of a branch office of a savings and loan association in January 1978. He was sentenced as a habitual offender to an aggregate sentence of thirty years’ imprisonment. We affirmed. Brown v. State, CR 79-5 (April 16, 1979). Brown subsequently filed in this court a petition pursuant to Criminal Procedure Rule 37, which resulted in his being granted leave to file a petition for postconviction relief in the trial court. Brown v. State, CR 79-5 (December 10, 1979). The Rule 37 petition in the trial court was denied after a hearing, and we affirmed the order. Brown v. State, 274 Ark. 205, 623 S.W.2d 186 (1981).

Brown now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore, supra, (citing United States v. Morgan, 346 U.S. 502, 512 (1954)), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis. Larimore, supra; Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.

Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition because another person confessed to the crime for which he was convicted. He states that he learned of the confession while the appeal of the denial of his Rule 37 petition was in progress, which would have been some time before the order was affirmed in November 1981. He explains that he has not previously raised the issue because he was unaware that there was a state remedy available to bring the issue to the court, presumably until Larimore, supra, was recently rendered.

It appears that petitioner has misconstrued Larimore. In Larimore, we cited Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996), in which we explained that the writ was available to address certain errors of the most fundamental nature which are most commonly to be found in one of four categories:

Error coram nobis is a rare remedy. It is available only where there is an error of fact extrinsic to the record, such as insanity at the time of trial, a coerced guilty plea or material evidence withheld by the prosecutor, that might have resulted in a different verdict. Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990). The writ has also been used in cases in which a third party confessed to the crime during the time between conviction and appeal. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).

Id. at 109.

Larimore concerned a claim that material evidence had been withheld by the prosecutor, an allegation which can be made after a judgment has been affirmed because evidence of such misconduct on the part of the prosecutor may have remained hidden for some time from even the most diligent petitioner. Larimore did not broaden the remedy set out in Penn for advancing an allegation that a third party had confessed to the crime of which the petitioner was convicted, an allegation which must be raised before affirmance of the judgment. The petition in Penn, which alleged that another person had issued a sworn affidavit admitting to the crime for which Penn was found guilty, was filed in the period between trial and the conclusion of this court’s appellate review of the judgment and was thus timely filed. We emphasized that the ruling in Penn did not open the door to other petitions beyond those which qualified under the facts of that case and which were brought within that narrow window of time in which the judicial system is best in a position to weigh with accuracy the merit of the petitioner’s claim. Id. at 577.

While there are circumstances in which a petition to reinvest the trial court with jurisdiction to hear a petition for writ of error coram nobis can be considered timely if filed after affirmanee of a judgment, such as prosecutorial misconduct in concealing exculpatory evidence from the defense, the questions of fact which invariably accompany an allegation of a third-party confession demand prompt scrutiny. The mere fact that another person has confessed to a crime cannot, alone, be grounds for relief for such confessions are not uncommon and must be approached with some skepticism. The trial court must carefully scrutinize the complete circumstances surrounding the confession and all the available evidence. Assessing the merits of the third-party confession requires that all of the evidence be available and unimpaired by the passage of time so that the trial court’s examination can be exhaustive and decisive. Our requirement that such a claim be raised before affirmance serves to limit such claims to the time frame in which it is most likely that the trial court can determine with certainty whether the writ should issue. Assertions of a third-party confession after a judgment is affirmed may be addressed to the executive branch in a clemency proceeding. See Penn, supra.

The concurrence questions whether a petition based on a third-party confession should be limited to the time before a judgment is affirmed while other grounds are permitted to be raised after affirmance, but the limitation is one clearly mandated by the holding in Penn. Penn, which for the first time allowed a writ based upon an allegation of a third-party confession, requires that the allegation be raised before affirmance and that precedent is followed here. We made clear in Penn that the time limitation was integral to our recognition of this new ground for a writ of error coram nobis. The concurrence argues that the traditional grounds listed in Davis v. State, 325 Ark. 96, 109, 925 S.W.2d 768, 775 (1996), i.e. insanity at the time of trial, a coerced guilty plea, and material evidence withheld by the prosecutor, are equally in need of prompt attention and are as likely as a third-party confession to need addressing before affirmance. These traditional grounds for a writ are not subject to the time limitation established in Penn for a third-party confession. This is not to say that, in a particular case, it might not be concluded that any one of these grounds should have been raised before affirmance if it can be determined that the petitioner could have raised the issue before affirmance had he been diligent. We have before us in the instant case only a claim of a third-party confession, and we look to Penn as precedent for when such a claim should be raised.

Petition denied.

Newbern and Glaze, JJ., concurring.

David Newbern, Justice,

concurring. In the renewed discussion of the writ of error corant nobis, which has been stimulated by our divided vote in Larimore v. State, 327 Ark. 285, 938 S.W.2d 818 (1997), we are confronted with the classic dilemma presented by the need for finality of legal decisions. At some point, the proceedings must come to a halt despite the prospect of allegations without end that something went wrong.

As I continue to subscribe to the dissenting opinion written by Justice Glaze in the Larimore case, I concur in the result reached here on the ground that the petition is untimely, but I cannot agree with the explanation given by the majority. The opinion suggests that there is a good reason for requiring an allegation that someone other than the prisoner has confessed to the crime of which he or she was convicted to be made between the conviction and affirmance on appeal. The reason suggested is that such a claim must be addressed while the facts are within the fresh memories of persons involved and that it is desirable to have it dealt with by the court that tried the case originally. It is thus implied that we allow the other allegations that might support a coram nobis petition to be raised after affirmance because there is no such need of immediate memory.

The other permissible bases of a coram nobis petition, quoted from Davis v. State, 325 Ark. 96, 109, 925 S.W.2d 768, 775 (1996), are, “. . .insanity at the time of trial, a coerced guilty plea or material evidence withheld by the prosecutor, that might have resulted in a different verdict. ...” Each is as dependent upon the memories of witnesses as is a subsequent confession by someone other than the prisoner. Nor is it any less desirable in each of those instances that the court that tried the case deal with the subsequent allegations. The distinction sought to be made in the majority opinion fails utterly.

In response to this concurring opinion, the majority states, “We made clear in Penn [v. State, 282 Ark. 571, 670, S.W.2d 426 (1984)] that the time limitation was integral to our recognition of this new ground for a writ of error coram nobis.” That statement does not deal with the illogic of the distinction the majority poses. Here is the language from the Venn case to which the majority refers:

We emphasize that we do not open the door to other petitions beyond those that would qualify under the facts in this case, especially the fact that it is presently between trial and appeal and can easily provide for an early hearing before the court that just heard the case.

That statement makes no effort to distinguish among bases for the writ in the context of timeliness and should be taken to apply to all “other petitions.” Absent reasons for distinguishing among the grounds giving rise to the writ, all should be limited to the time prior to decision on appeal or none of them should be so limited.

Glaze, J., joins in this opinion.


text:
    Larry Darnell INGRAM v. STATE of Arkansas
    CR 97-1114
    955 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      D. Kirk Joyce, for appellant.
    No response.
   Per Curiam.

The appellant, Larry Darnell Ingram, has previously filed a motion for belated appeal. See Ingram v. State, 330 Ark. 218, 951 S.W.2d 314 (1997). We denied the motion because Ingram’s attorney, D. Kirk Joyce, had not admitted fault for failing to file the record in a timely manner. Mr. Joyce has since submitted an affidavit accepting responsibility for failing to timely file the transcript.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to treat the motion as one for rule on the clerk and grant the motion. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    W.W. v. STATE of Arkansas
    97-1305
    956 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered November 20, 1997

      Alvin Schay, for appellant.
    No response.
   Per Curiam.

This is a juvenile delinquency proceeding in which, appellant, W.W., by his attorney, Alvin Schay, has filed a motion for rule on the clerk. His attorney admits that the notice of appeal was not filed in a timely manner due to a mistake on his part.

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

The motion for belated appeal is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    STATE of Arkansas v. John Edward JOHNSON
    CR 97-593
    956 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Asst. Att’y Gen., for appellant.

      Jack R. Kearney, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This is the second interlocutory appeal brought by the State in the same case. In State v. Johnson, 326 Ark. 660, 934 S.W.2d 499 (1996), we held that the trial court erred in suppressing appellee John Edward Johnson’s confession on the basis that he was denied the right to counsel of his own choosing to be present during an in-custody interrogation and reversed and remanded his case. In the present appeal, the State contends that the trial court erred in dismissing its charges against Johnson on the grounds that double-jeopardy principles barred state prosecution of an offense where the criminal conduct underlying the offense was utilized to enhance punishment for a separate, but related federal conviction. We agree with the State and reverse and remand Johnson’s case for trial.

On August 30, 1995, Johnson was charged in Pulaski County Circuit Court with one count of rape, two counts of aggravated robbery, and two counts of theft of property. The charges stemmed from the June 25, 1995, armed robbery of the Purple Cow restaurant on Cantrell Road in Little Rock, during which an employee of the restaurant was raped. Johnson, a former employee of the restaurant, was developed as a suspect and was questioned by police. On February 22, 1996, the trial court suppressed Johnson’s taped confession. The State appealed, and this court reversed and remanded the case on November 25, 1996.

On March 13, 1996, Johnson was indicted in the United States District Court for the Eastern District of Arkansas for interference with commerce by threats of violence, use of a firearm in relation to a crime of violence, and possession of a firearm not registered to him. The three charges all stemmed from the robbery of the Purple Cow restaurant. On September 17, 1996, Johnson pleaded guilty in federal district court to interference with commerce by threats of violence and use of a firearm in relation to a crime of violence. On December 18, 1996, the federal district judge, in imposing Johnson’s sentence, found by a preponderance of the evidence that Johnson committed a rape in the course of the robbery, thus warranting enhancement of his sentence by 72 months. Thereafter, the State moved to dismiss the aggravated robbery and theft of property charges in Pulaski County Circuit Court, leaving the rape charge. Johnson filed a motion to dismiss the rape charge on the basis that he had already been punished for this offense in federal district court. According to Johnson, the Double Jeopardy Clause of the Fifth Amendment prohibited the State from pursuing the rape charge. The trial court agreed, and on April 2, 1997, one day before a previously scheduled hearing in the case, dismissed the State’s charge. On April 3, 1997, the trial court permitted the State to malee a record of its objections, which form the basis for the present interlocutory appeal.

The State appeals the trial court’s decision to dismiss the rape charge against Johnson under Ark. R. App. P. — Crim. 3, contending that error was committed to the State’s prejudice and that the correct and uniform administration of the criminal law requires our review. In this appeal, we are asked to decide, for the first time, whether double jeopardy prohibits state prosecution of an offense where the offense was considered, for enhancement purposes, in the calculation of punishment for a separate, but related federal conviction. Resolution of this appeal is also important because it involves the doctrine of dual sovereignty discussed in Heath v. Alabama, 474 U.S. 83 (1985), and has far-reaching implications in the administration of the criminal law as applied by federal and state authorities simultaneously involved in pursuing similar charges against one suspect. Thus, because we agree with the State that the correct and uniform administration of the criminal law is at issue here, we accept jurisdiction of this appeal.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Edwards v. State, 328 Ark. 394, 943, S.W.2d 600 (1997), citing Schero v. Farley, 510 U.S. 222 (1994). The issue in this case relates to the third protection. Relying largely on United States v. Koonce, 945 F.2d 1145 (10th Cir. 1991), cert. denied 112 S.Ct. 1695 (1992), the trial court con cluded that, because the federal district court had considered the rape in setting Johnson’s punishment for his convictions for interference with commerce by threats of violence and use of a firearm in relation to a crime of violence, Johnson would be subjected to multiple punishments for the same offense if the State were allowed to proceed on the rape charge. In Koonce, the Tenth Circuit Court of Appeals held that a subsequent conviction for possession of methamphetamine subjected Koonce to double jeopardy where the same possession was used to enhance an earlier sentence for distributing methamphetamine.

The State claims that the holding in Koonce was abrogated by the United States Supreme Court’s decision in Witte v. United States, 515 U.S. 389 (1995). We agree. In that case, Witte pleaded guilty in the United States District Court for the Southern District of Texas to attempted possession of marijuana. In calculating his sentence, the federal district court considered Witte’s previous involvement in connected, but uncharged, activities involving the importation of cocaine and marijuana. When Witte was subsequendy indicted for the importation of the drugs, the federal district court dismissed the charges on the basis that punishment for the. importation offenses would violate the Double Jeopardy Clause’s prohibition against multiple punishments. The Fifth Circuit Court of Appeals reversed the dismissal of the indictments, holding that Witte had not been punished for the importation offenses in the first prosecution, and thus double jeopardy did not bar the later action. The United States Supreme Court, noting that the Fifth Circuit had “expressly disagreed” with the Tenth Circuit’s holding in Koonce, supra, granted certiorari “to resolve the conflict among the circuits.” Witte, 515 U.S. at 395. The Court affirmed the Fifth Circuit, holding that:

use of evidence of related criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment for that conduct within the meaning of the Double Jeopardy Clause.

Id. at 399.

Johnson defends the trial court’s dismissal on the basis that the facts in. Witte are distinguishable from those in his case. Specifically, he points to the fact that the related conduct used to enhance-Witte’s federal sentence was the'basis for a subsequent federal charge, not a state charge. The problem with his argument is that it ignores the doctrine of dual sovereignty:

When a- defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” Consequently, when the same act transgresses the laws-of two sovereigns, it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punished.

Heath v. Alabama, 474 U.S. at 88 (other citations omitted). Thus, even if the enhancement of Johnson’s federal sentence constituted punishment, because the State is clearly a separate sovereign with respect to the federal district court, see id. at 89, the State’s prosecution of the rape charge would not have been barred.

In his brief, Johnson contends that the trial court’s dismissal of the rape charge was proper because Arkansas law provides greater protection from double jeopardy than does the United States Constitution. In support of his argument, he cites, for the first time, Ark. Code Ann.§§ 5-1-114 (Repl. 1993) and 16-85-712(b) (1987), and maintains that they prohibit the State from prosecuting him for rape. Even if we were to agree with Johnson that these statutes, which relate to the protection from a second prosecution after a conviction for the same offense, applied to his case, he did not present his argument to the trial court, so we decline to consider it for the first time on appeal. Based on the Supreme Court’s holding in Witte and the doctrine of dual sovereignty, we conclude that the trial court’s dismissal of the rape charge was error and reverse and remand Johnson’s case for trial.

Reversed and remanded.

Newbern, J., not participating.


text:
    Charles B. STANLEY v. STATE of Arkansas
    CR 97-639
    956 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Alvin Schay, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Charles B. Stanley brings this appeal from his conviction of theft of property and a sentence of forty years’ imprisonment. His sole point for reversal is that the trial court erred in denying his motion to suppress evidence.

The pertinent facts began on December 30, 1992, when Officer Bob Paxton stopped a red 1979 Ford Thunderbird vehicle for a traffic violation in DeWitt. Charles Stanley was a passenger, and his brother, Lawrence Stanley, was the driver. During the stop, Paxton saw two large speakers in the back seat of the car, and he also observed a yellow flashlight, boxes of tools, and other small items. Paxton, who had knowledge of some prior residential and church burglaries involving stolen speakers and tools, sought a warrant to search the vehicle after having it impounded. Apparently Paxton and Patrolman Jim Miller prepared an affidavit and search warrant, and Miller appeared before the DeWitt Municipal Judge. The affidavit reflects that Patrolman Miller had been sworn by the municipal judge, and Miller averred that the impounded 1979 Ford Thunderbird was owned by Elizabeth Ann Hill, and that it concealed certain property. Miller further said that the facts tended to establish the grounds for issuance of a search warrant. It is this affidavit that Charles challenged below, and now on appeal, as being deficient because it failed to provide any facts to show reasonable cause existed for the issuance of a search warrant.

Charles’s argument is meritless for two reasons. First, he has failed to abstract the order showing that the trial court denied his motion to suppress. An appellant’s failure to abstract the order appealed from and other critical documents precludes this court from considering issues concerning them. King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996).

Second, Charles had no standing to challenge the vehicle’s search because he had no property or possessory interest in , the 1979 Ford Thunderbird. An appellant must have standing to challenge a search on Fourth Amendment grounds because the rights secured by the Fourth Amendment are personal in nature. Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997) [citing Rakas v. Minios, 439 U.S. 128 (1978)]. Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Id. Here, Stanley bore the burden of proving that he had a legitimate expectation of privacy in the car, and he failed to meet that burden.

This court has repeatedly held that a defendant has no standing to question the search of a vehicle owned by another person. State v. Barter, 310 Ark. 94, 833 S.W.2d 372 (1992). In order to establish a legitimate expectation of privacy in an automobile owned by another person, a defendant must show that he gained possession of the vehicle from the owner or from someone who had authority to grant possession. Littlepage v. State. 314 Ark. 361, 863 S.W.2d 276 (1993).

Here, it was undisputed that, at the time the search warrant was issued, Elizabeth Hill, Charles’s mother, owned the vehicle, and Charles was only a passenger when the vehicle was stopped by Officer Paxton. Because Charles had neither a property interest nor a possessory one, he had no legitimate expectation of privacy in the vehicle. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980). Accordingly, he failed to establish that he had standing to object to the vehicle search.

For the foregoing reasons, the trial court’s decision is affirmed.

       The record reflects that, in addition to the affidavit, the municipal judge had recorded Miller’s oral testimony bearing on facts and reasons for Miller’s seeking a search warrant, but the tape was missing and most likely had been erased.


author: Donald L. Corbin, Justice.

text:
    Adrian REED v. STATE of Arkansas
    CR 97-661
    957 S.W.2d 174
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Young & Finley, by: Richard H. Young, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Adrian Reed appeals the judgment of the Pope County Circuit Court convicting him of driving while intoxicated (DWI), second offense, and sentencing him to nine months in jail, suspending his driver’s hcense for twelve months, and assessing a fine of $2,500. This appeal was certified to us from the court of appeals on the basis that it presents a question requiring statutory interpretation; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(d). Appellant’s sole point for reversal is that the trial court erred in failing to suppress the evidence obtained as a result of an illegal stop and arrest. We find no error and affirm.

Appellant was arrested for DWI on June 15, 1996. He was initially stopped and detained by Constable Bill Parks in Pope County near Pea Ridge, which is outside the constable’s jurisdiction of Jackson Township. Appellant moved to suppress the evidence that resulted from his arrest on the ground that the constable lacked the authority to pursue a criminal suspect beyond his jurisdiction without first having a reasonable behef that the suspect had committed a felony. The trial court concluded that Constable Parks was a peace officer and that Ark. Code Ann. § 16-81-301 (1987) authorized him to stop and detain Appellant under the circumstances, even though the constable admittedly did not suspect that Appellant had committed a felony. The trial court accordingly denied Appellant’s motion to suppress, and he was found guilty of the charge by a jury.

On appeal, Appellant challenges Constable Parks’s authority to arrest him outside the constable’s jurisdiction. He contends that pursuant to Ark. Code Ann. § 16-19-301 (Repl. 1994) a constable is not permitted to arrest a person for a misdemeanor offense outside the jurisdiction of his township. He asserts that such an arrest is only permitted if the constable reasonably believes that a felony has been committed within his jurisdiction.

Section 16-19-301, titled “Peacekeeping duties and authority — Neglect of duty,” provides in pertinent part:

(a) Each constable shall be a conservator of the peace in his township and shall suppress all riots, affrays, fights, and unlawful assemblies, and shall keep the peace and cause offenders to be arrested and dealt with according to law.
(d) Nothing in this section shall prevent the fresh pursuit by a constable of a person suspected of having committed a supposed felony in his township, though no felony has actually been committed, if there are reasonable grounds for so believing. “Fresh pursuit” as used in this section shall not necessarily imply instant pursuit, but pursuit without unreasonable delay. [Emphasis added.]

Appellant asserts that the language in subsection (d) prohibits a constable from engaging in the fresh pursuit of any person unless that person is suspected of having committed a felony.

The State argues that the trial court correctly ruled that a constable’s authority to freshly pursue a suspect beyond his jurisdiction is derived from section 16-81-301. The State argues that because section 16-81-301 was passed subsequent to the passage of section 16-19-301, this court should conclude that the later act controls.

Section 16-81-301, which is part of the Uniform Act on Intrastate Fresh Pursuit, provides:

Any peace officer of this state in fresh pursuit of a person who is reasonably believed to have committed a felony in this state or has committed, or attempted to commit, any criminal offense in this state in the presence of such officer, or for whom the officer holds a warrant of arrest for a criminal offense, shall have the authority to arrest and hold in custody such person anywhere in this state.

The State contends that a constable is included within the definition of the term “peace officer” as used in section 16-81-301. As such, the State asserts that Constable Parks had the authority to pursue Appellant beyond the jurisdiction of his township for a misdemeanor offense that was committed in the officer’s presence.

The sole issue for our resolution is whether a constable’s authority to engage in the fresh pursuit of a person suspected of committing a misdemeanor beyond the limits of the constable’s jurisdiction originates from section 16-19-301 or from section 16-81-301. Both statutes were passed during the same legislative session; the act containing section 16-81-301 was passed one day after the act containing section 16-19-301. Appellant contends that because section 16-19-301 specifically addresses the powers and duties of constables, it should prevail over section 16-81-301, which, Appellant asserts, only generally addresses the authority of “peace officers” to engage in fresh pursuit. We disagree.

Statutes relating to the same subject should be read in a harmonious manner if possible. City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. We adhere to the basic rule of statutory construction, which gives effect to the intent of the legislature, making use of common sense and giving the words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). In attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the subject. Tate, 311 Ark. 405, 844 S.W.2d 356. The commentary to a statute is a highly persuasive aid to construction, although it is not controlling over the clear language of the statute. Kyle, 312 Ark. 274, 849 S.W.2d 935.

In construing two acts on the same subject, we first must presume that when the General Assembly passed the later act, it was well aware of the prior act. Salley v. Central Arkansas Transit Auth., 326 Ark. 804, 934 S.W.2d 510 (1996). We must also presume that the General Assembly did not intend to pass an act without purpose. See Clark v. State, 308 Ark. 84, 824 S.W.2d 345 (1992). Furthermore, the General Assembly is presumed to have enacted a law with the full knowledge of court decisions on the subject and with reference to those decisions. See, e.g., Scarbrough v. Cherokee Enter., 306 Ark. 641, 816 S.W.2d 876 (1991); Tovey v. City of Jacksonville, 305 Ark. 401, 808 S.W.2d 740 (1991); J.L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974).

Section 16-81-301 does not contain a definition of “peace officer.” Nor is that term defined within the other provisions of the Uniform Act on Intrastate Fresh Pursuit. Be that as it may, Arkansas has long recognized that constables are peace officers. See Winkler v. State, 32 Ark. 539 (1877). Additionally, Ark. Code Ann. § 16-81-104 (1987), which establishes the procedures for issuing and executing arrest warrants, refers to constables as peace officers. Specifically, section 16-81-104(a)(l) provides in pertinent part that “[a] warrant of arrest may be executed by the following officers, who are called peace officers in this code: Sheriffs, constables, coroners, jailers, marshals, and police officers.” (Emphasis added.) Hence, we can discern from this provision that the legislature was aware of our previous holding and intended to include constables within the definition of “peace officer.”

Moreover, we are not convinced by Appellant’s contention that these two provisions are necessarily in conflict with one another. Instead, we view the two statutory provisions as complementary of one another, with section 16-81-301 merely broadening or enhancing the authority described in section 16-19-301(d). The plain language of section 16-19-301(d) demonstrates that this provision is not an affirmative grant of the power of fresh pursuit to constables. Rather, that section is written in the negative — that nothing in that section shall be viewed as preventing a constable’s authority to engage in the fresh pursuit of suspected felons. Section 16-81-301, on the other hand, specifically provides to all peace officers in this state the authority to engage in the fresh pursuit of suspects beyond their particular jurisdictions. The legislative commentary on the Uniform Act on Intrastate Fresh Pursuit demonstrates that the General Assembly intended this Act to be a comprehensive statement of the law on fresh pursuit within the geographical boundaries of this state. The prefatory note to the Act reflects:

A great need was filled by the Interstate Fresh Pursuit Act, drafted by the Interstate Commission on Crime, to prevent criminals from utilizing state lines to handicap the police. This is proven by its almost instant enactment in some two thirds of the states. Furthermore, there have been repeated requests from the police to extend the principles of the interstate act to permit fresh pursuit of criminals across county and municipal lines.
The Act on Interstate Fresh Pursuit is the result. This act follows the sovereignty into another, it applies not only to felonies, but to any criminal offense committed in the presence of the officer, or to a person for whom an officer holds a criminal warrant. Simple provisions, as in the case of the interstate act, are made to safeguard the rights of the person arrested. The requests of law enforcement authorities themselves prove the need for this new, simple, and sensible law.

Considering the language of both statutes, the respective subject matters, and the objectives sought to be accomplished by the legislature in passing them, we conclude that although a constable’s general powers and duties are established by section 16-19-301, a constable’s authority to engage in the fresh pursuit of criminal suspects, whether suspected of committing felonies or misdemeanors, is derived from section 16-81-301. Were we to hold that a constable is not included within the definition of the term “peace officer” found in section 16-81-301, the Act’s clearly expressed purpose of preventing criminal suspects from taking advantage of jurisdictional boundaries would surely be thwarted. Given that section 16-19-301 does not affirmatively establish a constable’s authority to engage in fresh pursuit, but merely provides that the authority to pursue suspected felons should not be taken from such officers, these two related statutes are capable of being reconciled and, therefore, both should stand.

Accordingly, we conclude that the trial court did not err in determining that, under the circumstances of this case, Constable Parks was acting as a peace officer and, as such, had the authority to pursue Appellant beyond the limits of his township on the ground that Appellant had committed an offense in the constable’s presence.

Affirmed.


text:
    Leslie Lee WALKER v. STATE of Arkansas
    CR 97-172
    955 S.W.2d 905
    Supreme Court of Arkansas
    Opinion delivered December 4, 1997

      Sharon Carden Streett and Cheryl Vogelpohl Upshaw, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Leslie Lee Walker appeals the order of the Sevier County Chancery Court, Juvenile Division, adjudicating him delinquent and placing him in the custody of the Division of Youth Services, with the recommendation that he be placed in the training school. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(iv) & (v). Appellant raises four points for reversal. We affirm.

On April 11, 1996, a petition was filed in juvenile court alleging that Appellant had committed second-degree assault against a teacher’s aide at the Lockesburg school. Prior to the hearing, the juvenile court granted Appellant’s motion for a mental evaluation to determine his mental competency to stand trial and to appreciate the wrongfulness of his conduct. A psychological report dated October 3, 1996, reflected that Appellant understood the proceedings against him, was able to assist in his own defense, was aware of the criminality of his conduct, and could have conformed his conduct to the requirements of the law at the time of the alleged incident. Appellant was diagnosed as having attention deficit hyperactivity disorder of mixed type, arithmetic learning disability, learning disorder of written expression, and conduct disorder of oppositional type.

A hearing was held on October 29, 1996, and Appellant was adjudicated delinquent for having committed the offense of second-degree assault. Appellant was placed on probation for a period of one year and was ordered to enroll in and complete the Arkansas National Guard’s Civilian Student Training Program (CSTP). Additionally, Appellant was ordered to stay away from the Lockesburg school campus and to pay thirty-five dollars court costs. The juvenile judge noted in the order that if Appellant should commit any offenses in the future, he should be charged as an adult in circuit court.

Subsequent to the hearing, the trial court became aware that Appellant’s mother had refused to sign the necessary Power of Attorney for Appellant’s placement in CSTP. Upon motion of the prosecutor, the trial court set a show cause hearing for Appellant’s mother for November 21, 1996. A hearing was held and the resulting order reflected that the trial court resentenced Appellant at the request of his mother and his attorney, placing him in the custody of the Division of Youth Services. The order reflected further that upon his release from the Division of Youth Services, Appellant was to be placed in the custody of the Department of Human Services, with the recommendation that he be placed in the training school. It is from this order that Appellant appeals.

We first consider Appellant’s argument regarding the sufficiency of the evidence, as the double jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficiency of the evidence. Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). Although Appellant did not move for a directed verdict below, his challenge to the sufficiency of the evidence is preserved for appeal, as it is not necessary to make such a motion during a nonjury trial. See Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997); Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only that evidence which supports the verdict. Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the factfinder. Id. Nor will this court weigh the credibility of the witnesses. Id. Appellant argues that there was insufficient evidence to support the trial court’s determination that he had committed second-degree assault. We disagree.

During the hearing below, the State presented the testimony of two witnesses: Sandra McWhorter and Wanda Bishop. McWhorter, a teacher’s aide at Lockesburg school, testified that on March 5, 1996, she was trying to leave school when Appellant blocked the double doorway. She stated that she was trying to go out the left side of the door when Appellant blocked her path. She stated that she then proceeded to go out the right side of the door when Appellant pushed her from the back. She stated that she stumbled for a couple of steps on the concrete sidewalk, but that she did not actually lose her balance and fall to the ground. She stated that she was both surprised and scared by the incident.

Bishop, a teacher at Lockesburg school, testified that she had witnessed the pushing incident. She stated that Appellant was inside the double doorway and that he had the door blocked with his arms spread. She stated that McWhorter tried to exit the building on the first side, but that Appellant would not let her pass. She stated that McWhorter then went to the right side of the door and barged through, and that Appellant then turned around and pushed McWhorter with his right hand. She stated that McWhorter stumbled, but caught her balance. She stated that she saw no indication as to why Appellant had pushed McWhorter.

Arkansas Code Annotated § 5-13-206(a) (Repl. 1993) provides that a person commits second-degree assault if he “recklessly engages in conduct which creates a substantial risk of physical injury to another person.” Ark. Code Ann. § 5-2-202(3) (Repl. 1993) provides that a person acts recklessly when he “consciously disregards a substantial and unjustifiable risk. . . . The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situationf.]”

In viewing the evidence presented below in a light most favorable to the State, we are satisfied that there was sufficient evidence to support the trial court’s conclusion that Appellant had committed the act of second-degree assault. Appellant’s actions in pushing McWhorter from behind were, at the very least, reckless, and they created a substantial risk that McWhorter would be physically injured. It is of no consequence to Appellant’s argument that McWhorter was able to regain her balance before fading on the concrete sidewalk. The fact that Appellant’s actions created a substantial risk that she could have fallen on the concrete and injured herself is sufficient to sustain the trial court’s findings.

For the second point for reversal, Appellant argues that his trial counsel was ineffective in failing to present evidence concerning his disabilities and in failing to seek a prior federal administrative determination under the Individuals with Disabilities in Education Act. Appellant argues that A.R.Cr.P. Rule 37 does not apply to delinquency proceedings in juvenile court and that, consequently, juvenile delinquents have no recourse in which to raise the issue of the ineffective assistance of counsel. We disagree.

We first observe that the Arkansas Rules of Criminal Procedure apply to juvenile delinquency proceedings. Ark. Code Ann. § 9-27-325(f) (Supp. 1995); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). Additionally, we point out that Rule 37 is applicable to juvenile proceedings pursuant to section 9-27-325(f), but that the remedy under that rule is available to such juvenile defendants only when they are in custody. Id. Notwithstanding that condition precedent for proceeding under Rule 37, this court has generally recognized that claims of ineffective assistance of counsel are cognizable on direct appeal, providing that the appellant first presented the claim to the trial court during the trial or in a motion for a new trial. Smith v. State, 328 Ark. 249, 943 S.W.2d 234 (1997); Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). We will not, however, consider such a claim unless the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court. Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997). Thus, as these cases reveal, Appellant’s argument that juveniles who are not in custody have no avenue in which to pursue claims of ineffective assistance of counsel is without merit.

In the present case, however, we do not review Appellant’s claim of counsel’s ineffectiveness because he failed to raise the issue in the trial court, either at the time of the adjudication or in a subsequent motion for new trial. Because of this failure, the facts and circumstances surrounding the claim were not fully developed by the trial court. Without the benefit of such facts and circumstances, this court cannot assess whether trial counsel’s performance fell below that standard required by the Sixth Amendment to the United States Constitution. “As the trial court is in the best position to evaluate trial counsel’s performance and competency, an order reciting its findings is necessary to enable us to conduct a meaningful review of the claim.” Dodson v. State, 326 Ark. 637, 644, 934 S.W.2d 198, 202 (1996).

For the third point for reversal, Appellant argues that the trial court exceeded its authority by: (1) turning the show cause hearing for his mother into a revocation hearing without prior notice to Appellant; (2) making prejudicial comments on the record; and (3) ordering the prosecutor to file all future charges against Appellant as an adult. We do not reach the merits of any of these arguments, as Appellant failed to raise them in the trial court. This court has repeatedly stated that we will not address any claims, even constitutional claims, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Even a constitutional claim of lack of notice will not be considered by this court for the first time on appeal. In re Adoption of K.F.H. and K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Additionally, as to Appellant’s first assertion, that he was not given proper notice that revocation would be considered before he was resentenced, the record demonstrates that Appellant’s counsel not only failed to object, he agreed with the court’s decision to resentence Appellant at that time. Moreover, the trial court’s order reflects that Appellant was resentenced at the request of his mother and his attorney. A defendant may not agree with a ruling by the trial court and then attack that ruling on appeal. McGhee, 330 Ark. 38, 954 S.W.2d 206; Goston v. State, 326 Ark. 106, 930 S.W.2d 332 (1996); Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996).

Appellant’s final point for reversal is that the trial court abused its authority in sentencing Appellant to the training school. Appellant argues that this disposition was excessive because he was a first-time offender and because the punishment does not fit the crime. The State contends that because Appellant does not challenge the trial court’s authority to impose such a sentence, his argument should not be reached on appeal because he failed to raise it in the trial court. We agree with the State’s contention.

This court treats allegations of void or illegal sentences similar to problems of subject-matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). A sentence is void when the trial court lacks the authority to impose it. Id. Here, Appellant does not assert that the trial court was without authority to order that Appellant be sent to the training school; rather, he argues only that the trial court’s sentence was excessive for a first offender. Thus, because Appellant does not challenge the legality of his sentence, it was necessary that he first raise the issue with the trial court in order to preserve the argument for appeal.

Affirmed.