author: Robert L. Brown, Justice.

text:
    Keith CRISCO v. STATE of Arkansas
    CR 96-713
    943 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997
    [Supplemental opinion on granting of rehearing issued June 9, 1997.]

      Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Keith Crisco appeals his judgment of conviction for delivery of methamphetamine and his sentence for 20 years on two grounds: (1) failure to prove authenticity of the evidence and a proper chain of custody; and (2) insufficiency of the evidence. We agree that the State faded to prove that the drug tested was properly authenticated, and we, therefore, reverse and dismiss.

At trial, undercover police officer Samuel Hanes testified that on September 22, 1994, he purchased a bag of what he believed to be methamphetamine from Crisco for $100 in Cabot. After receiving the bag, he placed it in a sealed envelope and put it in his safe in his home. About a month later, he sent the bag to the State Crime Lab for analysis.

On August 3, 1995, Crisco was charged with delivery of methamphetamine. At the ensuing trial on January 4, 1996, the prosecuting attorney sought to establish the chain of custody for the substance purchased from Crisco. Officer Hanes testified that he put the substance in a plastic bag, initialed the bag, and placed the bag inside a manilla envelope and then put the case number, date of offense, description of the contents, type of offense, and the name of the suspect on the envelope. He attached the Evidence Submission Form to the manilla envelope. The Evidence Submission Form described the substance as “One Bag of Off White Powder Substance.”

On October 21, 1994, the State Crime Lab received the package from Officer Hanes. On January 11, 1995, a report was issued by Michael Stage, forensic chemist, in which he described the substance analyzed as “One (1) triangular piece of plastic containing a tan rock-like substance (0.310 gram).” Stage identified the substance as methamphetamine. The evidence was transmitted back to the Lonoke County Sheriffs Department, where it remained in the office safe until the day before trial.

Chief Deputy Sheriff Woody McCuen testified that he received the manilla envelope involving Crisco from the State Crime Lab and put it in the safe at the Lonoke County Sheriffs Department. He testified that the envelope he placed in the safe was the same envelope introduced into evidence at trial. Over objection of the appellant based on lack of authenticity, the trial court received the envelope into evidence. Forensic chemist Michael Stage then testified that he recognized the envelope, his initials, the date, and the lab number which he put on the seal on the bag when he finished his analysis. He testified on cross-examination that the plastic bag containing the methamphetamine was inside at least two envelopes. Stage testified on cross-examination that methamphetamine ordinarily did not change colors and that he would not have described the substance as “off-white powder.”

Defense counsel then objected to the introduction of the envelope again on the basis that there had been no testimony that the drug analyzed was the substance sent by Officer Hanes to the State Crime Lab. The prosecutor refused to recall Officer Hanes to identify the substance analyzed by the forensic chemist but argued that the deputy sheriff s identification of the envelope was sufficient. The trial court agreed. Crisco was found guilty of delivery of methamphetamine and sentenced to 20 years’ imprisonment.

I. Timely Notice of Appeal

Though the parties have not raised the issue of the timeliness of the notice of appeal, we do so on our own motion because the issue pertains to subject-matter jurisdiction. On January 5, 1996, judgment was entered in this case. Nineteen days later on January 24, 1996, Crisco filed a motion for new trial based on faulty chain of custody. On February 26, 1996, the trial court denied Crisco’s motion. On March 25, 1996, Crisco filed his notice of appeal. The deemed-denied date for the motion was February 23, 1996. Crisco had until March 24, 1996, to file his notice of appeal and that date fell on a Sunday, which gave him until March 25, 1996. If the motion for new trial was timely filed, the appeal is properly before us.

The motion for new trial was timely. Under former Rule of Criminal Procedure 36.22, a motion for new trial “must be filed prior to the time fixed to file a notice of appeal.” Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990); Banning v. State, 43 Ark. App. 106, 861 S.W.2d 119 (1993). That period, of course, is thirty days. Ark. R. App. P. — Crim. 2(a). See also Bowen v. State, supra (citing Ark. R. App. P. 4).

We take this opportunity to correct obiter dictum in two decisions that indicates that the motion for a new trial in a criminal case must be filed within ten days of entry of judgment. See Guinn v. State, 323 Ark. 612, 917 S.W.2d 529 (1996)(per curiam); Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994). The correct time period is 30 days as Rule 36.22 (now Rule 33.3) makes clear.

II. Sufficiency of the Evidence

Crisco contests the sufficiency of the evidence, but we conclude this issue is not preserved for our review. At the close of the State’s case, Crisco moved for a directed verdict on the premise that the State had not proven a prima facie case. We have held that such a motion is not sufficiently specific to preserve the issue for our review. Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997). See also Ark. R. Crim P. 33.1; Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). The same holds true in the case at hand.

III. Chain of Custody

Crisco complains that the chain of custody in this case was insufficient because the methamphetamine was easily interchangeable and because the varying descriptions of the substance raised an inference that a break occurred somewhere along the chain. He specifically points to Officer Hanes’s testimony that the drug was an ofF-white powder substance, while the forensic chemist described the drug as a tan, rock-like substance. In sum, Crisco argues that the trial court abused its discretion in allowing into evidence an exhibit that was not properly authenticated.

The purpose of establishing chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Newman v. State, 321 Ark. 339, 939 S.W.2d 811 (1997); Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Harris v. State, 322 Ark. 167, 907 S.W.2d 729 (1995). See also Ark. R. Evid. 901. The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to efiminate every possibility of tampering. Newman v. State, supra; Lee v. State, supra; Harris v. State, supra; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Gardner v. State, supra; Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (Ark. App. 1979). We have stated that the proof of the chain of custody for interchangeable items like drugs or blood needs to be more conclusive. Lee v. State, supra; Gardner v. State, supra; Brewer v. State, 261 Ark. 732, 551 S.W.2d 218 (1977).

Crisco relies primarily on Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979), to support his thesis that the chain of custody was insufficient. In Munnerlyn, the appellant was convicted of selling methamphetamine, and he complained on appeal about the irregularities in the custody chain. He contended that the prosecutor should have presented testimony, in addition to chain-of-custody evidence, that the drugs introduced at trial were the actual drugs sold by the appellant. We disagreed and traced the possession of the envelope containing the drugs. We further noted that tampering had not been suggested by the defendant and that the circumstances of the case did not suggest a significant possibility of tampering. Thus, we held that the trial court had not abused its discretion.

In the case before us, Crisco hinges his contention of lack of authenticity on the fact that Officer Hanes’s description of the drugs differed significantly from that of the chemist, Michael Stage, in color and consistency. In fact, the chemist admitted that he would not have described the substance as offfwhite powder. Crisco’s point has merit. True, there was no obvious break in the chain of custody of the envelope containing the plastic bag or conclusive proof that any tampering transpired. Yet, the marked difference in the description of the substance by Officer Hanes and the chemist leads us to the conclusion that there is a significant possibility that the evidence tested was not the same as that purchased by Officer Hanes. See Munnerlyn v. State, supra. This is especially so when we consider that the drug involved is a readily interchangeable substance. Lee v. State, supra. Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance.

We hold that the trial court abused its discretion by receiving a substance into evidence that was not properly authenticated.

Reversed and dismissed.

       The chemist’s testimony indicates that the substance may have been enclosed in a third envelope.

       1996 was a leap year.

       Effective January 1, 1996, Rule 36.22 was recodified at Ark. R. Crim. P. 33.3.


source: Caselaw Access Project

license: Public Domain

text:
    SUPPLEMENTAL OPINION ON GRANTING OF REHEARING
    945 S.W.2d 383
    June 9, 1997

      Paul Petty, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The State of Arkansas petitions this court for rehearing for the sole purpose of changing the disposition of the case from reversed and dismissed to reversed and remanded. We conclude that the State is correct in this regard and that the proper disposition of the case when evidence has been excluded on appeal due to trial error is a reversal and remand for the possibility of a new trial. See Nard v. State, 304 Ark. 159, 163-A, 801 S.W.2d 634, 637 (1991) (supplemental opinion). Accordingly, we reverse and remand this case.


text:
    Joe E. EDWARDS v. STATE of Arkansas
    CR 96-10
    943 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997
    [Petition for rehearing denied June 9, 1997.]

      The Perroni Law Firm, P.A., by: Samuel A. Perroni and Patrick R. James, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen. and Senior App. Advocate, for appellee.
   Robert L. Brown, Justice.

Appellant Joe E. Edwards has filed this interlocutory appeal from the trial court’s order denying his motion to dismiss on grounds of double jeopardy, estoppel, and due process. The trial court correctly denied the motion to dismiss, and we affirm.

On March 17, 1995, according to the criminal information filed against him, Edwards abducted his attorney, David Stills. During a subsequent deposition, Detective Steve Parker of the Springdale Police Department testified that on that date, he and Detective Lester Coger of the same department responded to a call that an individual, Steve Summers, had found a man who had been tied up on Cambridge Street in Springdale. The man was David Stills, and he told Summers, according to Detective Parker:

Joe’s gone off the deep end. He’s accusing me of having sex with his wife and giving her drugs and said he was going to kill us both and then himself.

When Detective Parker arrived at the scene, he found neck ties and duct tape on the ground next to Summers’s car.

On March 20, 1995, Detective Parker signed a Petition to Involuntarily Admit Person with Mental Illness that had been prepared by the Washington County Prosecutor’s Office. In the petition, he averred that Edwards should be involuntarily admitted to an appropriate facility for treatment of a mental illness based on the following factual assertion:

The Respondent kidnapped a victim at gun point, tied the victim up, then picked up his wife at her place of employment and returned her to his residence with the purpose of killing her and the other victim.

Detective Parker stated that Edwards presented a clear and present danger to himself or others as defined by Ark. Code Ann. § 20-47-207(c)(l)-(2) (Repl. 1991).

As a result of the petition, the probate court found that there was probable cause to believe that Edwards presented a potential danger to himself and to others and ordered the Washington County Sheriff to take Edwards to the Ozark Guidance Center for detention and evaluation. As a result of the evaluation, the staff psychiatrist at Ozark Guidance Center determined to a reasonable degree of medical certainty that Edwards’s mental and medical condition required immediate hospitalization. On March 27, 1995, after Edwards’s counsel waived a hearing on the matter, the probate court entered an order committing Edwards to the Psychiatric Intensive Care Unit at Baptist Medical Center in Little Rock for a period of 30 days. In doing so, the probate court again found that there was probable cause that Edwards suffered from a mental disease and constituted a clear and present danger to himself and to others. On April 25, 1995, the probate court ordered Edwards’s commitment extended for an additional 90 days based upon his physicians’ determination that he required further treatment for his mental condition.

On July 24, 1995, the date he was scheduled to be released, Edwards was charged by the Washington County prosecutor with kidnapping and terroristic threatening in connection with the abduction of David Stills. The probate court also ordered an extension of his commitment until July 28, 1995, during which time he would be released to the custody of a physician who was directed to transport him to the Washington County sheriffs office for arraignment on July 27, 1995. Edwards was arraigned on that date.

On September 15, 1995, Edwards moved to dismiss the criminal charges on grounds of double jeopardy, estoppel, and violation of his due process rights. The prosecutor responded that Edwards’s counsel actually drafted the orders and solicited the aid of the prosecuting attorney’s office for Edwards’s continued treatment at Baptist Medical Center. The State further contended that (1) the estoppel theories did not apply because the involuntary admission of a suspect of a crime does not constitute an adjudication of that person’s mental capacity to commit crime; and (2) Edwards was not unduly deprived of his liberty for purposes of double jeopardy because there was no “same offense” for former jeopardy and because Edwards’s counsel assisted in the orders for treatment at Baptist Medical Center.

A hearing was held on the motion, and following the hearing, the trial court entered an order denying Edwards’s motion. In its ruling from the bench, the trial court noted that the civil commitment was not for an “offense,” that civil commitment proceedings and criminal proceedings involved different standards and elements and were governed by different statutes, and that the burden of proof for the two proceedings was different.

Edwards filed this interlocutory appeal from the trial court’s order.

I. Double Jeopardy

We first observe that it is well established that an order denying a motion to dismiss based on double-jeopardy considerations is an appealable decision. Abney v. United States, 431 U.S. 651 (1977); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996). The essence of Edwards’s double-jeopardy argument is that the State has already taken away his liberty by virtue of the civil commitment and now seeks to prosecute him based on the same conduct, which jeopardizes his liberty once more. He directs our attention to both the Arkansas Constitution and the United States Constitution:

[A]nd no person, for the same offense, shall be twice put in jeopardy of life or liberty [.]

Ark. Const, art. 2, § 8.

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb[.]

U.S. Const, amend. 5.

The United States Supreme Court has observed that the Double Jeopardy Clause of the United States Constitution provides several protections:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975).

Schiro v. Farley, 510 U.S. 222, 229 (1994). See also Abney v. United States, 431 U.S. 651, 661 (1977)(“The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i. e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.”), quoting Price v. Georgia, 398 U.S. 323, 326 (1970).

There is no doubt that civil commitment results in a significant deprivation of liberty that requires due process protection. Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 480 (1980); Honor v. Yamuchi, 307 Ark. 324, 820 S.W.2d 267 (1991). And we have held that the burden of proof on the State for civil commitments is by clear and convincing evidence. Shock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981). Yet, Edwards cites us to no authority, and we know of none, where a jurisdiction has held that double-jeopardy protection attaches to civil commitments. Indeed, authority from other jurisdictions appears to stand for just the opposite proposition.

A seminal case in this area is State v. Hudson, 425 A.2d 255 (1981). In Hudson, the State sought an involuntary commitment for Hudson, relying in part on evidence of a sexual assault conviction. Hudson argued that because he was already tried on the sexual assault charge, the commitment proceedings were barred under principles of double jeopardy. The Supreme Court of New Hampshire dismissed the argument:

The defendant misconstrues the nature of the involuntary commitment proceedings. The January 24, 1980, hearing was not held to ascertain the defendant’s guilt or innocence concerning the assault or any other charge. Its express and sole purpose was to determine whether the defendant’s mental condition was such that he was a danger to himself or others. The mere fact that some of the evidence used to establish the defendant’s dangerousness related to an incident for which he had already been tried and convicted does not convert the civil proceeding into a criminal trial.

State v. Hudson, 425 A.2d at 258 (citations omitted). See also Rodrigues v. Gudeman, 794 F.2d 1458, 1460 n.2 (9th Cir. 1986)(“A person committed because he is insane is not being ‘punished’ for a crime.”), cert. denied, 479 U.S. 964 (1986); Hubbart v. Superior Court, 58 Cal.Rptr.2d 268, 286 (Cal. App. 6 Dist. 1996)(“[I]t would be singularly inappropriate to apply double jeopardy provisions to these types of proceedings [commitment under the Sexually Violent Predators Act] where the issue to be determined is not whether respondent committed an act or offense, but whether respondent suffers from a mental condition which makes him dangerous to others.”), quoting People v. Superior Court, 284 Cal.Rptr. 601, 607 (Cal. App. 2 Dist. 1991); Matter of Lomax, 367 A.2d 1272, 1279 (D.C. App. 1976)(“A person alleged to be mentally ill is not on trial for having committed an ‘offense,’ and we do not view civil commitment — aimed basically at treatment for the afflicted individual — as comparable to punishment for the conviction of a crime.”), vacated for other reasons, 386 A.2d 1185 (D.C. App. 1978); Matter of Linehan, 557 N.W.2d 171 (Minn. 1996) (commitment under Sexually Dangerous Persons Act is not “punishment” for purposes of double jeopardy); People v. Nixon, 543 N.Y.S.2d 998, 1000 (A.D. 3 Dept. 1989) (stating double jeopardy inapplicable because “the State’s objective in confining petitioner is treatment and protection of the public, not punishment or deterrence”); Matter of Vandenberg, 617 P.2d 675, 679 (1980)(“[A] mental commitment proceeding, though it involves a serious deprivation of liberty, is not a criminal proceeding.”).

The controlling principle in these cases is that double-jeopardy protection attaches only when a person is put at risk of being punished twice for the same offense. In fact, “same offense” is an element expressly referenced in the Arkansas and U.S. Constitutions. We interpret this language to require successive punishments for the same criminal activity. A civil commitment for evaluation and treatment because the patient may be harmful to himself and others simply does not meet the test of prior punishment for a criminal offense, even when the precipitating event for the commitment is a criminal event. We agree with the reasoning of the New Hampshire Supreme Court in State v. Hudson, supra, and affirm the trial court on this point.

II. Collateral Estoppel

Edwards next complains that the State is collaterally estopped from arguing that he was not mentally ill, and thus capable of formulating criminal intent, on March 17, 1995. It is clear that the Double Jeopardy Clause incorporates the doctrine of collateral estoppel in criminal proceedings, and for that reason we will consider this argument in this interlocutory appeal. See Schiro v. Farley, supra; Dowling v. United States, 493 U.S. 342 (1990); Ashe v. Swenson, 397 U.S. 436 (1970); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996).

Generally speaking, collateral estoppel provides “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Schiro v. Farley, 510 U.S. at 232, quoting Ashe v. Swenson, 397 U.S. at 443. This court has required proof of the following elements in order to establish collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have been determined by a final and valid judgment; and (4) the determination must have been essential to the judgment. In re: Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993). For determining the validity of a collateral-estoppel defense to a criminal prosecution, a defendant must also prove: (1) both adjudicatory entities are the same sovereign; and (2) a factual issue essential to the first verdict is an essential element of the second charge. Sherman v. State, supra; Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). Under these tests, we hold Edwards’s contention is without merit.

The civil commitment statute provides that a person may be committed involuntarily if it is determined that, based upon his conduct, he presents a “clear and present danger to himself or others” and there is a “reasonable probability that such conduct will be repeated if admission is not ordered.” Ark. Code Ann. § 20-47-207(c) (Repl. 1991). In the proceeding for a civil commitment, it was determined by the probate judge that Edwards was “mentally ill” because he met these statutory criteria.

In contrast, a person may be acquitted for a criminal offense due to mental disease only if he lacked the capacity to form culpable intent according to the dictates of the Arkansas Code:

It is an affirmative defense to a prosecution that at the time the defendant engaged in the conduct charged, he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.

Ark. Code Ann. § 5-2-312(a) (Repl. 1993). Once the State proves the elements of the crime beyond a reasonable doubt, the burden shifts to the defendant to prove the affirmative defense of lack of capacity by a preponderance of the evidence. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994); Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993); Mask v. State, 314 Ark. 25, 858 S.W.2d 1 (1993).

It is readily apparent that the issue of Edwards’s capacity to form culpable intent at the time of the events for which he has been charged has yet to be decided. The only issue actually litigated in the civil commitment proceeding was whether Edwards presented a clear and present danger to himself or others — not whether he lacked either the capacity to conform his conduct to the requirements of law or lacked the capacity to appreciate the criminality of his conduct. We do not see the two manifestations of mental illness as being mutually exclusive. Indeed, it appears clear to us that a person may be suicidal and a menace to others but still have the capacity to form criminal intent. Because the two issues, which present differing standards for mental illness, are not the same, we hold that the State is not collaterally estopped from contending that Edwards had the capacity to form the requisite criminal intent on March 17, 1995.

We are quick to recognize that this is an area that could in some circumstances lend itself to prosecutorial misconduct. Using civil commitments to take a person off the streets without just cause comes to mind as a potential abuse. Here, though, the probate court found Edwards to be a danger to himself and others and he was committed for evaluation and treatment, first for 30 days and then for an additional 90 days. We see nothing nefarious in the State’s conduct in this particular case.

III. Other Arguments

Edwards also raises arguments of equitable estoppel, judicial estoppel, and violation of his due-process rights in this interlocutory appeal. These arguments are premature. An interlocutory appeal is available in this situation only to protect against a person’s being placed twice in jeopardy for the same criminal offense. Issues pertaining to equitable estoppel, judicial estoppel, and due process do not warrant the protection of an interlocutory appeal, as does a double-jeopardy argument, and may be considered on direct appeal, if necessary.

Affirmed.


text:
    Charles Allen McGEHEE v. STATE of Arkansas
    CR 95-368
    943 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      William M. Howard, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal emanates from a judgment of conviction for capital murder and a sentence of life without parole. The appellant, Charles Allen McGehee, and his co-defendant, Joseph O’Neal, were tried together in a seven-day trial with two separate juries deciding the fate of the two men. McGehee contends that the evidence sustaining his conviction was insufficient and that the gaps in the transcribed record of the trial and attendant hearings deprives this court of full review. We agree on the second point, and we reverse and remand for a new trial.

On May 10, 1993, McGehee and Joseph O’Neal were charged with capital felony murder in connection with the death of Louisa M. Johnson, who was age 92. Robbery and burglary were designated as the predicate felonies, but the information was later amended to include rape as an underlying felony.

The facts of the case are taken from trial testimony. On April 20, 1993, at 8:17 a.m. Dermott Chief of Police Jerry Melton responded to a call at the victim’s home. The call had been placed by a home health-care nurse, Bonnie Jordan. Melton testified that the victim’s house was in disarray. He said that Mrs. Johnson was found under a pile of quilts and cushions. Only her legs were visible. During his examination of the premises, Melton discovered that three telephone lines outside of the house had been cut. He also found a window with a cut and torn screen. He further found two cans of malt liquor with pink napkins around them on the steps to the back porch of the house. Toward the back of the house, there was a television set placed on the corner of the deep freeze.

Melton told the jury that Johnson was lying face down with her hands tied behind her back with a necktie and her feet tied at the ankles, also with a necktie. He stated that it appeared as though the blanket had been wrapped around her head. She was wearing a nightgown, apron, and white underwear. The white underwear was tom on the back side, and the back of the nightgown was tucked inside the underwear. Melton testified that one of the bedrooms had been ransacked. He further testified that there was a purse in the living room floor that had been emptied. He added that a billfold had been taken from the purse, and it too was lying on the floor. The malt liquor cans and the pink napkins were collected and sent to the State Crime Lab for analysis. He later learned through his investigation that the pink napkins like the ones found with the malt liquor cans had come from a local nightclub called Rose’s Cafe. The owner of the nightclub gave Melton the name of “Ba-Ba” as a suspect. Melton knew that Ba-Ba was the street name for Joseph O’Neal.

Sergeant Garland McAnally of the Arkansas State Police testified that Chief Melton asked him to take a statement from O’Neal, which he did on April 21, 1993. The written statement was read into evidence at trial. In the statement, O’Neal told how he and “Bosco” (McGehee) were drinking together on the night of April 19, 1993. They bought some crack cocaine. O’Neal then went into Rose’s Cafe and bought two cans of beer. He got napkins to wrap around the beer cans. He and McGehee then walked up the street and smoked their crack. They ended up finishing their crack, while sitting on Mrs. Johnson’s back doorstep.

Next, according to O’Neal’s statement, McGehee asked to borrow O’Neal’s knife. O’Neal then observed McGehee cutting the window screen to the house. McGehee came around and opened the screen door and kicked the wooden door open. O’Neal stated that McGehee held Mrs. Johnson in the living room while he searched the house for money. He told McGehee not to let her see his face because she would recognize him. O’Neal looked through Johnson’s purse in the living room. He recovered eighty cents from a change purse. O’Neal stated that before he left the room he saw McGehee with his hand underneath the victim’s dress. He stated that McGehee tied the victim and that after they left McGehee had a $20 bill. After leaving, the two men went in search of more crack cocaine. They later split the money at the Junior Food Market. The State introduced the confession as against O’Neal only, but it is unclear whether the McGehee jury was also present at the time.

Chief Jerry Melton testified that McGehee was arrested on April 21, 1993, and that he was intoxicated at the time. He advised McGehee of his rights, and McGehee was incarcerated. The next day, McGehee was Mirandized a second time. A statement was taken, but the circumstances surrounding the taking of the statement, and its introduction at trial are not found in the record.

Dr. Perettie, an associate medical examiner and forensic pathologist for the State, testified that there was evidence from an autopsy of the victim of strangulation, head injuries, vaginal injuries, and other abrasions and contusions. The victim also had numerous recently broken teeth. He further described the injuries to the victim’s neck. There were four abrasions to the inside of her right thigh and evidence of a trauma to the vagina. In his opinion, the victim died of strangulation by choking. Dr. Perettie could not say, however, that the victim had been raped, and there was no evidence of semen.

After the State rested, counsel for McGehee moved for a directed verdict. He argued that the State had not proven that a rape actually occurred or that the victim died under circumstances manifesting extreme indifference to the value of human life. The prosecutor retorted by pointing to the injuries to Johnson’s vagina and to her torn undergarments and argued that penetration was a fair inference. The trial court denied the motion for directed verdict.

McGehee took the stand in his own defense and described his long-time abuse of alcohol and drugs. In his rendition of events, he reversed the roles of the two men, as related in O’Neal’s statement. He stated that his use of cocaine had caused him to commit a previous burglary and that he had been convicted of the burglary. He also had a prior conviction for assault. He testified that he was in Rose’s Cafe in Dermott on April 19, 1993, when O’Neal came in at about 8:30 p.m. He testified that O’Neal asked if he wanted to smoke some crack cocaine. They went to a friend’s house and smoked crack. Later, O’Neal asked him if he wanted to commit a breaking and entering. O’Neal told him that there could be up to $3,000 to $5,000 in the proposed victim’s house. The two men each bought a beer at Rose’s Cafe and walked to the victim’s back yard. McGehee testified that O’Neal cut the telephone wire, and he (McGehee) cut the window screen but could not open the inside window. He stated that O’Neal then ran through the door. After McGehee did not hear any gunshots, he entered the house. He saw O’Neal holding the victim on the couch by her waist with a blanket or a sheet over her head. McGehee grabbed some neckties and tied her legs, while O’Neal tied her hands. He then began to search the house and found a few dollars and some change. He picked up a television set from the bedroom, but O’Neal stopped him because someone might see him with it. McGehee then watched over the victim while O’Neal searched the house. McGehee thought that O’Neal found a $20 bill. McGehee said he ran from the house, and O’Neal came running one to two minutes behind him. They were unsuccessful in finding more crack cocaine and departed for the evening. McGehee testified that Mrs. Johnson was still alive when he left the house and that he learned of her death the next morning. McGehee acknowledged that he went by the street name of “Bosco.”

The McGehee jury found McGehee guilty of capital murder, burglary, rape, and robbery. Following the penalty phase, he was sentenced to life in prison without the possibility of parole. The judgment and commitment order shows only the conviction for capital murder and the sentence of life without parole.

I. Insufficient Evidence

McGehee argues on appeal that the State did not prove that a rape actually occurred, and thus the evidence supporting his conviction for capital felony murder was insufficient. Fie also argues that there was no proof that the victim died under circumstances manifesting extreme indifference to the value of human life, which is also an element of capital felony murder. See Ark. Code Ann. § 5-10-101 (Repl. 1993). These are the same arguments he posited in his motion for a directed verdict at trial.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the state. Dixon v. State, 310 Ark. 460, 470, 839 S.W.2d 173 (1992). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Only evidence supporting the verdict will be considered. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). In order for circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994). Such a determination is a question of fact for the fact-finder to determine. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993).

McGehee premises his argument on evidence supporting his thesis that there are other explanations for the trauma to the victim’s vagina and that Dr. Perettie testified that it was possible that Mrs. Johnson’s death was accidental. In this regard, McGehee clearly misapplies our standard of review as set out above. He essentially reargues the credibility of the evidence, an argument which this court is not at liberty to consider. See Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996). We conclude that there was substantial evidence introduced at trial that the victim had been raped because there was proof of trauma to her vagina together with her torn underwear. Moreover, there was substantial evidence that McGehee committed burglary, a second predicate felony, and McGehee does not contend on appeal that there was not.

We further conclude that there was substantial evidence of conduct manifesting extreme indifference to the value of human life in that the perpetrator of the murder acted with deliberate conduct which culminated in the death of another person. See Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996); Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988). Here, Dr. Perettie described in detail the bruises to Mrs. Johnson’s body, the fact that her teeth were broken, and the injuries that were caused to her by strangulation. This clearly meets the test of substantial evidence. McGehee’s point is without merit.

II. Insufficient Transcript

McGehee complains for his second point that the case should be remanded for retrial because the integrity of the record is suspect. He argues that it would be a farce to uphold his conviction for capital murder under these circumstances. The State’s response is that McGehee is not entitled to a new trial because he failed to demonstrate how he was prejudiced by any absent tapes and the quality of the record.

The status of the record in this case has been an issue since 1995. McGehee filed a petition for writ of certiorari to complete the record, and the motion was granted. This court issued a per curium opinion explaining the circumstances and ordered that the record be settled and returned within 30 days. See McGehee v. State, 323 Ark. 704, 916 S.W.2d 756 (1996).

On April 11 and 18, 1996, a hearing was held before the trial court to reconstruct the record. The trial court noted that ten bench conferences were not transcribed in the record. McGehee’s counsel further announced that there were several other bench conferences that were not noted in the record. He estimated that there were 25 to 30 omitted bench conferences, and he saw no way to reconstruct all of them. The trial court then stated that it would rule on each reconstructed conference.

As the attorneys made their way through the gaps in the record, it was revealed at one point that the prosecuting attorney had called a bench conference to discuss retiring O’Neal’s jury when McGehee’s statement to the police was introduced. The O’Neal jury was apparently excused. However, there is no testimony about the taking of the McGehee statement by police officers or its introduction. That statement is included in the record along with the other exhibits, and it does bear State’s exhibit number 23.

Counsel for McGehee repeatedly objected throughout the reconstruction hearing that more testimony was turning up missing in addition to the bench conferences. Furthermore, it developed that tape 2 from July 15, 1994, and tapes 4 and 5 from July 19, 1993, could not be found to compare against the transcript. Neither could the court reporter’s notes for July 12 and 13, 1994, be found. McGehee advised his attorney that he thought he remembered one tape being “eaten” by the machine during trial. Court Reporter Val Dixon-Sims agreed that that was possible, but she did not confirm that it did happen.

The attorneys and trial court also discovered that one tape had not been transcribed. This explained why the transcript segued from Chief Melton’s testimony about the McGehee interrogation into Sergeant McAnally’s testimony about the crime scene. The transcript further did not reveal whether only O’Neal’s jury was present when O’Neal’s statement was introduced. The trial court agreed with counsel for McGehee that the transcript contained several inconsistencies but noted that defense counsel could not point to where those inconsistencies substantially affected the rights of his client, except to say that the cumulative effect of the errors could cause prejudice. The prosecutor agreed generally that the court reporter should not have certified the transcript due to the omitted portions of the trial, the fact that statements made by one attorney were attributed to another attorney, and the fact that statements made at trial were typed incorrectly.

Following the hearing, the trial court issued an order stating that the record had been settled and that the parties had agreed that the omissions and inconsistencies had little effect upon the transcribed record. McGehee then filed a motion for a retrial in this court due to the deficient record, but this court denied the motion.

The rules of appellate procedure provide for the reconstruction of a transcript by the best means available. See Ark. R. App. P. — Civil 6(d). In Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982), we held that where there is virtually no record of the proceedings conducted out of the presence of the jury and where the record is inadequate for appellate review, the appellate court can do nothing other than remand the case for new trial. In Drew, we specifically stated that it is reversible error when the record cannot be settled pursuant to Rule 6. This rule has been applied to a criminal case where the trial court declared that the record could not be settled. See Ward v. State, 321 Ark. 659, 906 S.W.2d 685 (1995) (per curiam). In reversing the death sentence in Ward, we relied on the fact that the omitted portions of the record were required to be transcribed, and the State could point to no proof in the record that cured the error.

This court has most recently reversed a conviction and remanded for a new trial in a case where the same court reporter, Val Dixon-Sims, could not produce a complete transcript of the trial. See Jacobs v. State, 327 Ark. 498, 939 S.W.2d 824 (1997). In Jacobs, we stated that the trial court has an affirmative duty to see that the court reporter performs satisfactorily in order to provide an adequate record for appeal. We restated the rule announced in Holiday Inns, Inc. v. Drew, supra, and Ward v. State, supra, and we stated that when life sentences are involved, the record must be sufficient to review all errors prejudicial to the defendant under Supreme Court Rule 4-3 (h), which necessitates that the appellant abstract all rulings adverse to him. That burden could not be met in Jacobs, and we remanded for a new trial.

The State argues that no new trial is required, and it relies on Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996), to support its position. In Smith, we concluded that the appellant had not demonstrated prejudice from the state of the record. But in Smith, the defendant was convicted of first-degree murder and sentenced to forty years; thus, Rule 4-3(h) was not at issue. In addition, Smith complained only of three isolated incidences where the transcript was deficient, and the trial court addressed the complaints specifically and restated the facts surrounding his ruling.

In the instant case, the parties made a valiant and concerted effort to reconstruct the record. At the hearing, the trial court addressed each instance where the transcript noted a bench conference but where testimony of the conference was not transcribed. The parties listened painstakingly to the tapes, and although there was some disagreement throughout the hearing, no one, including McGehee’s counsel, could show where any individual omission regarding a bench conference was prejudicial. Nevertheless, the parties’ agreement on these precise incidents does not satisfy the requirements of Rule 4-3(h) for the entire trial.

There is one aspect of the record that is particularly troublesome. As referenced above, the record does not specifically show the circumstances surrounding the taking of McGehee’s statement by police officers or that that statement was introduced into evidence. The McGehee statement is included in the packet of exhibits, but this gap in evidence was not addressed or cured by the attorneys in the reconstruction hearing. We believe that Chief Melton’s omitted testimony on McGehee’s statement is crucial to a review of this case. See Ward v. State, supra. There is also no record of whether the McGehee jury was present when the O’Neal statement was read into evidence. Because the O’Neal statement implicated McGehee in the murder, this clearly would have been reversible error. Yet, we cannot determine from the record what happened in this regard.

We conclude that we are precluded by the state of this record from a full review of what transpired at trial, which is particularly problematic when we are required to review all adverse rulings in life and capital cases under Supreme Court Rule 4-3 (h).

There is one additional point. Following the hearing, the trial court entered an order reconstructing the record. That order reads in part:

4. The parties agreed to and were satisfied with the meaning, essence and interpretation given each bench conference by the Court.
5. The parties further agreed and admitted that the omissions and inconsistencies found between actual and transcribed records had very litde [e]ffect, if any, upon the interpretation and meaning of the transcribed record.

Defense counsel apparently did not object to this language before the trial court. Nevertheless, the court order pertained only to the reconstructed bench conferences and did not relate to the missing tape or to the questions surrounding the introduction of the O’Neal and McGehee statements before the two juries. McGehee’s counsel objected throughout the hearing about the gaps in the transcript. And after the trial court’s order, he moved for a new trial in this court based on the defective transcript, and we denied the motion. We do not conclude defense counsel waived his objections to the state of the record under these facts.

Now on full review, we agree that a new trial is warranted. The confusion over the introduction of the two statements before the McGehee and O’Neal juries in the same proceeding would warrant it. Without clarification concerning those statements, in addition to the numerous omissions and inconsistencies in the transcript, and because of the court reporter’s failure to transcribe at least one tape, we have no choice but to remand for a new trial where life without parole is the sentence at issue.

Reversed and remanded.

       The O’Neal jury convicted O’Neal of first-degree murder and sentenced him to life in prison. We affirmed the judgment. O'Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995).


author: Annabelle Clinton Imber, Justice.

text:
    BRUNS FOODS OF MORRILTON, INC. v. Marlin HAWKINS, et al.
    97-17
    944 S.W.2d 509
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      Chisenhall, Nestrud & Julian, P.A., by: Jim L. Julian and Jamie W. McFarlin, for appellant.

      Mark Cambiano and Phil Stratton, for appellees.
   Annabelle Clinton Imber, Justice.

The appellant, Bruns Foods of Morrilton, Inc., appeals from a dismissal entered in favor of the appellees, Marlin and Marvine Hawkins. The sole issue on appeal is whether a previous decision in a lawsuit between the Hawkinses and a third party bars Bruns Foods’s action against the Hawkinses. We find that it does, and thus we affirm.

On August 9, 1982, Marlin and Marvine Hawkins conveyed a 1.69 acre lot located in Morrilton to the McDonald’s Corporation. The deed contained a twenty-year restrictive covenant whereby the Hawkinses agreed not to use the adjoining land for restaurant purposes except for a “sit down restaurant connected with a hotel or motel.” Subsequently, McDonald’s conveyed a franchise and lease to Bruns Foods for the operation of a McDonald’s restaurant on the lot.

Ten years later, the Hawkinses filed a petition to abrogate the restrictive covenant as void against public policy. Bruns Foods was not a named defendant nor did it move to intervene in the Hawkinses’s action. The trial court entered a default judgment against McDonald’s for its failure to timely answer the complaint. We initially dismissed the appeal in McDonald’s Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994), and, in a second appeal, we affirmed the trial court in two separate opinions. McDonald’s Corp. v. Hawkins, 319 Ark. 1, 888 S.W.2d 649 (1994); McDonald’s Corp. v. Hawkins, 319 Ark. 2-A, 894 S.W.2d 136 (1995) (supplemental opinion denying rehearing). Bruns Foods moved to intervene in McDonald’s second appeal, and we summarily denied the motion.

While the second appeal was pending before this court, Bruns Foods filed a separate action against the Hawkinses in the Conway County Chancery Court. In their complaint, Bruns Foods asked the court to declare that the restrictive covenant between the Hawkinses and McDonald’s was enforceable and ran in the favor of Bruns Foods as the franchisee and lessee of McDonald’s. The trial court held that the prior judgment against McDonald’s voided the restrictive covenant and removed it as a cloud on the Hawkinses’s title, which judgment withstood appellate challenges in McDonald’s 1, II, & III. The trial court further found that Bruns Foods had no greater interest than its franchisor, McDonald’s, and therefore, Bruns Foods’s action was barred by the prior judgment. Accordingly, the court dismissed the action, and Bruns Foods appeals.

For its sole argument on appeal, Bruns Foods argues that the trial court erred when it found that the prior judgment affirmed in McDonald’s II, & III barred Bruns Foods’s lawsuit against the Hawkinses. As we have stated numerous times in the past, under the doctrine of res judicata, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim or cause of action. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991); Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989). Privity of parties within the meaning of res judicata means “a person so. identified in interest with another that he represents the same legal right.” Robinson, supra; Spears v. State Farm Fire & Cas. Ins., 291 Ark. 465, 725 S.W.2d 835 (1987).

On appeal, Bruns Foods argues that res judicata does not bar its action because it was not in privity with McDonald’s. We disagree with this assertion. It is well settled that a lessee only holds temporary possession of the land while the ownership rights remain in the lessor. Chastain v. Hall, 182 Ark. 920, 33 S.W.2d 45 (1930). Hence, the trial court was correct when it found that Bruns Foods, as lessee, had an inferior interest to that of McDonaid’s, its lessor. Likewise, we have also held that when a landowner is barred by the statute of limitations, then so too is the tenant. Chicago, Rock Island & Pac. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S.W.2d 127 (1913). Therefore, we hold that a tenant is in privity with his or her landlord such that a judgment that determines interests in real property against the landlord will bar relitigation of the matter by the tenant. See also, Ward v. Davis, 298 Ark. 48, 765 S.W.2d 5 (1989); Phelps v. Justiss Oil Co., 291 Ark. 538, 776 S.W.2d 662 (1987) (holding that a successor in interest in land is in privity with its grantor such that a prior ruling against the grantor is also binding against the successor).

We realize that the Hawkinses prevailed over McDonald’s by default judgment and not by an adjudication on the merits. We, however, have previously recognized with regard to the doctrine of res judicata that a decree entered by default is as conclusive as any other judgment or decree. Lewis v. Bank of Kensett, 220 Ark. 273, 247 S.W.2d 354 (1952). The Court of Appeals has also held that for the purposes of res judicata:

A judgment by default is just as binding and forceful as a judgment entered after a trial on the merits in a case; and it is not to be discredited or regarded lightly because of the manner in which it was acquired. A default judgment determines a plaintiffs right to recover and a defendant’s liability just as any conventional judgment or decree.

Williams v. Connecticut Gen. Life Ins. Co., 26 Ark. App. 59, 759 S.W.2d 815 (1988) (citing Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (Ark. App. 1980)). This reasoning is sound because res judicata applies not only to issues which were actually litigated, but also to those issues which could have been litigated in the prior lawsuit. Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991); Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988). Accordingly, we hold that an issue previously resolved by default judgment is barred from relitigation under the doctrine of res judicata.

Because we find that res judicata bars Bruns Foods’s action against the Hawkinses, we need not address appellant’s argument that this case is not barred by the law-of-the-case doctrine. For these reasons, we find that Bruns Foods’s attempt to resurrect the stricken restrictive covenant must fail, and thus we affirm the trial court’s ruling.

Affirmed.

Glaze, J., not participating.


author: Annabelle Clinton Imber, Justice. Robert L. Brown,

text:
    Lawrence Edward MARTIN v. STATE of Arkansas
    CR 95-1314
    944 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered May 5, 1997

      J. Blake Hendrix, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Lawrence Edward Martin, was sentenced to life imprisonment without parole for the capital murder of his mother, Thelma Artis. On appeal, Martin raises several challenges to his conviction. Finding no reversible error, we affirm.

On April 22, 1994, around 5:00 in the evening, Gloria Carter visited Thelma Artis in her apartment in Little Rock, Arkansas. Ms. Artis was a sixty-three-year-old woman who lived alone and used a wheelchair. Around 10:00 p.m. that same evening, a neighbor and the assistant apartment manager observed a black male with very short hair angrily knocking on the front door of Ms. Artis’s apartment. The man was wearing a t-shirt and shorts. According to the witnesses, the visitor exclaimed, “Open up, it’s your son!” as he pounded on the door. Around 12:30 a.m., another witness spotted a black male with very short hair wearing a t-shirt and shorts run from the apartment complex.

The next morning around 9:00, Gloria Carter and the apartment manager discovered Thelma Artis’s slain body on the floor of her living room next to her toppled wheelchair. Ms. Artis was in her nightgown and a pillow was placed over her face. Carter and the manager also observed that the door was unlocked and the chain was not fastened.

The police arrived and determined that Ms. Artis died as a result of multiple stab wounds to her neck and face. In addition, Ms. Artis’s hands contained defensive wounds and scratches. There were no signs of a forced entry into the apartment, and the only items that appeared to be missing were four rings that Ms. Artis customarily wore. Finally, the police noticed that the kitchen trash can contained only a coke can and a cellophane sandwich bag. Both items were dusted for fingerprints.

On April 23, the day after the murder, the police began questioning Ms. Artis’s sons. The police located Lawrence Martin around 10:00 p.m., and he agreed to accompany them to the police station to answer some questions. While at the station, Martin gave a taped statement regarding his whereabouts on the night of the murder. Martin told the police that on April 22 he picked-up his pay check, drove to Pine Bluff and spent the night driving, drinking, and smoking marijuana. Martin claimed that he threw away his work clothes and bought a new set of clothing at a flea market. Martin, however, could not tell the police where he obtained gas or ate, and he was unable to name anyone who could confirm his story. Martin also told the police that he had previously sought drug rehabilitation for his marijuana and crack cocaine habits.

After his statement, the police told Martin that he was not under arrest, but that he was a suspect in the murder. The police then read Martin his Miranda rights, and he executed a waiver form. At this point, Martin refused to give a second statement and the interview was terminated. Martin was transported back to his home.

A few days later, the assistant apartment manager quickly identified Martin’s photograph in a photographic line-up and stated that he “looked very similar” to the man he observed knocking on Ms. Artis’s door. In addition, the forensic department identified Martin’s fingerprint on the soda can discovered in Ms. Artis’s trash. Based on this additional evidence, the police arrested Martin and charged him with capital felony murder.

During the trial, several witnesses testified that Ms. Artis would always respond to a visitor’s knock on her door by asking who it was and then opening the door with the chain still latched to confirm the visitor’s identity. Ms. Artis’s daughter, Debra Dillard, testified that Ms. Artis wore four rings, that “she never pulled them off,” that she “wore them every day,” and that she would even wear her rings to bed. The State then displayed to the jury photographs of indention and tan marks on Ms. Artis’s hands where the four rings were likely to have been worn.

Martin’s brother, Donald Ray Lewis, and his sister, Debra Dillard, testified that two days after the murder they met Martin at their mother’s apartment. Martin told his siblings that he spent the night of the murder driving in Pine Bluff while drinking and using marijuana and crack cocaine. Although Martin initially claimed that he was driving with a friend, he later told his family that he was alone. Martin explained that he threw away his clothing because they had a foul odor, and that he purchased a new set of clothing from a flea market. Martin, however, could not remember where the flea market was located.

Martin’s wife, Wanda, testified on cross-examination that she suspected that her husband was smoking crack cocaine on the night of the murder, and that they had previously experienced marital difficulties due to his use of the substance. The State then introduced evidence that a crack cocaine habit could cost as much as $350 to $500 a day, and that dealers would accept jewelry and other property in exchange for illegal drugs.

After deliberations, the jury found Martin guilty of capital murder during the course of an aggravated robbery. Because the State did not seek the death penalty, the court imposed the sentence of life imprisonment without parole. From his judgment and commitment order, Martin filed a timely notice of appeal.

I. Sufficiency of the Evidence

For his first argument on appeal, Martin challenges the sufficiency of the evidence to support his conviction of capital felony murder. As we have previously explained, in making this determination we view the evidence in the light most favorable to the State and will affirm where there is substantial evidence to support the verdict. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997); Allen v. State, 327 Ark. 350, 939 S.W.2d 270 (1997). This review necessarily includes evidence both properly and improperly admitted, and we are required to consider only the testimony that supports the verdict. Hicks, supra. Finally, the evidence, whether direct or circumstantial, is considered sufficient if it is of enough force to compel a conclusion one way or the other and goes beyond mere suspicion or conjecture. Hicks, supra; Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996).

On appeal, Martin concedes that there was sufficient evidence for the jury to conclude that he killed Ms. Artis; hence, the sole inquiry is whether there was sufficient evidence to support the underlying crime of aggravated robbery. See Clay v. State, 324 Ark. 9, 919 S.W.2d 190 (1996). Martin argues that the circumstantial evidence that Ms. Artis’s rings were missing was not substantial proof that they were taken in the course of a robbery.

We disagree with this argument for several reasons. First, direct evidence that a robbery occurred is not required to support an underlying charge of aggravated robbery. To the contrary, in Harris v. State, 308 Ark. 150, 823 S.W.2d 860 (1992), we said that circumstantial evidence is “entirely sufficient to deny a motion for directed verdict and submit the issue to the jury.” Likewise, in McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), we found that a witness’s testimony that four or five hundred dollars were missing from the victim’s pants was sufficient circumstantial evidence to support the underlying charge of robbery in a capital murder case.

During Martin’s trial, several witnesses testified that Ms. Artis always wore rings, and her daughter claimed that she did not remove them even when she went to bed. The jury was also shown photographs of indention and tan marks on Ms. Artis’s fingers where she likely wore her rings. We find that this evidence, albeit circumstantial, was sufficient to support the jury’s conclusion that Ms. Artis’s rings were removed and taken by the person who killed her. Therefore, we find no merit to Martin’s first argument on appeal.

II. Failure to Suppress Statements to the Police

Next, Martin claims that the trial court committed reversible error when it refused to suppress the taped statement he gave to the police on April 23. Martin argues that the statement should have been suppressed because it was taken in violation of Ark. R. Crim. P. 2.3 and his right to receive Miranda warnings.

Before addressing the merits of these two arguments, it should be noted that the State asserts that Martin faded to properly raise these issues before the trial court. We strongly disagree with the State’s contention.

In December, Martin filed a pro se motion regarding a violation of Ark. R. Crim. P. 2.3, and his attorney filed a motion to suppress the statement based on the alleged Miranda violation. During a pretrial hearing, Martin’s counsel addressed the alleged Rule 2.3 violation, and the judge delayed his ruling so that both sides could submit posthearing briefs on the issue. Although Martin submitted a brief, it does not appear from the record that the State complied with the trial judge’s request. Finally, the trial court rendered a ruling on both issues. Therefore, we find that contrary to the State’s assertion both issues have been properly preserved for appeal.

A. Arkansas Rule of Criminal Procedure 2.3

Martin claims that Ark. R. Crim. P. 2.3 was violated when the police appeared at his house on April 23 without a warrant, asked him to come to the station for questioning, and failed to notify him that he did not have to comply with this request. We agree with Martin’s argument, and accordingly we find that the statement should have been suppressed.

In United States v. Mendenhall, 446 U.S. 544 (1980), the United States Supreme Court first defined the type of police conduct that amounted to a “seizure of the person” under the Fourth Amendment. Instead of adopting a bright-line rule, the Supreme Court opted for a totality-of-the-circumstances approach and held that:

a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.

Id.

In accordance with the Mendenhall test, the Arkansas Rules of Criminal Procedure state that:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Ark. R. Crim. P. 2.3 (emphasis added). As in Mendenhall, our initial cases interpreting Rule 2.3 reviewed the totality of the circumstances to determine if the officers had taken reasonable steps to advise the citizen that he or she was not obligated to comply with the officer’s request. Burnett v. State, 295 Ark. 401, 749 S.W.2d 308 (1988); Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985), cert. denied, 482 U.S. 929 (1987).

For example, in Burnett, six armed officers awoke Burnett at approximately 6:00 a.m. and told him to get dressed and to come to the station. Burnett, supra. Burnett was not arrested, but neither was he told that he did not have to comply with the officers’ instructions. Burnett, supra. Upon arrival at the police station, Burnett gave the police an inculpatory statement, which on appeal, he argued should have been suppressed because he was unlawfully seized by the police. Burnett supra. Citing both Rule 2.3 and the Mendenhall test, we found that:

Considering the totality of the circumstances, we conclude that Burnett was seized at his home in violation of the Fourth Amendment. The officers did not comply with our rules of criminal procedure, which require that an officer inform a person that he is free not to accompany the officer if the officer does not have a warrant. A reasonable person in Burnett’s position would have thought that he had no choice except to accompany the officers to the police station.

(Internal citations omitted.) Thus, by looking at the totality of the circumstances and the officers’ failure to inform Burnett that he was free to decline their request, we held that the police officers’ conduct amounted to an unlawful seizure under Rule 2.3, and accordingly, Burnett’s statement should have been suppressed.

Over the years, we have departed from our totality-of-the-circumstances approach to Rule 2.3 and have replaced it with the bright-line rule that a statement must be suppressed under Rule 2.3 if the police officers simply fail to notify the person that they do not have to come to the station for questioning. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). In these cases, we have imposed a “positive duty” upon the police to inform the citizen of his or her right to refuse the request although the plain words of Rule 2.3 do not specifically require such a verbal notice. We acknowledge that our recent case law has placed a greater burden on the police than was initially required by either Mendenhall or our earlier cases interpreting Rule 2.3. See, Burks, supra; Addison, supra. However, the bright-line rule is the course this court has chosen to follow, and we decline to depart from our precedent at this time.

During Martin’s suppression hearing, the witnesses testified that at approximately 10:00 p.m. on April 23, Martin’s wife called the police to notify them that Martin had returned from Pine Bluff. Shortly thereafter, four armed officers arrived at Martin’s house and asked him to come to the station for questioning. Although Martin was not placed under arrest, it appears that the officers did not notify him that he could refuse their request. Based on our recent decisions, this fact alone amounted to a violation of Rule 2.3. Therefore, we find that the trial court erred when it refused to suppress Martin’s taped statement.

This, however, does not end our inquiry because we have previously recognized two exceptions to a Rule 2.3 violation. First, we have held that a Rule 2.3 violation is excused when the police had probable cause to arrest the defendant at the time of the request. Burks, supra; Addison, supra; Hart, supra. Because the State did not argue that there was probable cause to arrest Martin, we do not consider this exception to Rule 2.3.

As we noted in Prowell, a Rule 2.3 violation will also be excused where the admission of the inculpatory evidence resulted in mere harmless error. Prowell, supra. Moreover, we have consistently held that the failure to suppress evidence is not prejudicial error when the same or similar evidence was otherwise properly admitted. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996); Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996).

During Martin’s trial, his brother and sister testified that Martin told them that on the night of the murder he was in Pine Bluff driving, drinking, and smoking crack cocaine, and that he threw away his clothes and bought a new set. In fact, the siblings’ testimony is almost a verbatim recitation of the alibi statement that Martin gave to the police. In addition, Martin’s wife testified that she suspected that Martin was using crack cocaine on April 22, and that they had previously encountered marital difficulties due to his use of the substance. Therefore, we cannot say that the failure to suppress Martin’s taped statement was prejudicial, reversible error. Accordingly, we affirm Martin’s conviction on this point.

B. Miranda Warnings

Martin also contends that his taped statement was inadmissible because the police did not advise him of his Miranda rights before questioning him. It is well settled that the safeguards prescribed by Miranda are applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest. Johnson, supra; State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995). As explained above, we agree that the police unlawfully “seized” Martin, and thus we can say that his freedom was sufficiently “curtailed” such that the Miranda warnings should have been given to him prior to the questioning.

During the suppression hearing, the officers admitted that they did not Mirandize Martin until after he gave his taped statement. Therefore, we agree that Martin’s constitutional right to Miranda warnings was violated, and therefore the statement should have been suppressed. However, as we have already mentioned, the admission was mere harmless error in light of the testimony of Donald Lewis, Debra Dillard, and Wanda Martin. We acknowledge that when constitutional errors are involved the error must be “harmless beyond a reasonable doubt.” Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996); Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). We conclude that the error in this case also satisfies this heightened standard; therefore, we also affirm on this point for reversal.

III. Arkansas Rule of Evidence 404(b)

For his third argument on appeal, Martin claims that the trial court violated Ark. R. Evid. 404(b) when it allowed the State to play portions of his taped statement in which he admitted to previous medical treatment for his drug problems. During the trial, several witnesses testified, over Martin’s objections, about his use of drugs on the night in question and on prior occasions. Although Martin does not specifically contest the admissibility of these statements on appeal, we find it necessary to address these adverse rulings according to our obligation under Ark. S. Ct. R. 4-3 (h).

According to Ark. R. Evid. 404(b), evidence of other crimes, wrongs, or bad acts may be admissible to prove motive. In fact, we have said that when the purpose of evidence is to show motive, “anything and everything that might have influenced the commission of the act may, as a rule, be shown.” Lee v. State, 327 Ark. 692, 942 S.W.2d 231 (1997); Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996); Cooper v. State, 324 Ark. 135, 919 S.W.2d 205 (1996). Furthermore, the State is entitled to produce evidence showing circumstances which explain the act, show a motive for killing, or illustrate the accused’s state of mind. Lee, supra; Echols, supra; Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

Of particular relevance to this case, is our recent decision in Lee, supra, where we affirmed the State’s introduction of evidence of the defendant’s drug use as a motive for robbing and killing the victim. Likewise, in Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996), we ruled that testimony regarding the victim’s refusal to transport drugs for the defendant was properly introduced as evidence of the defendant’s motive to kill her. In both of these cases, we emphasized that wide latitude is given to the trial court in allowing the introduction of bad character evidence which also shows motive. Lee, supra; Johnson, supra.

As in Lee and Johnson, during Martin’s trial, the State introduced evidence of his drug use as a motive for the aggravated robbery and murder. In particular, the State hypothesized that Martin robbed and killed his mother in order to obtain property that he could use to purchase drugs. Therefore, we find that the trial court did not abuse its broad discretion in allowing the witnesses to testify as to Martin’s drug use.

As to the admissibility of Martin’s taped statement, we have already concluded that it is merely duplicative of the witnesses’ testimony regarding Martin’s alibi, his prior use of drugs, and his use of crack cocaine on the night of the murder. Therefore, we once again conclude that the improper admission of Martin’s taped statement was mere harmless error.

IV. Police Officer’s Testimony

During the trial, an undercover police officer was allowed to testify that a crack cocaine habit can cost as much as $350 to $500 a day, and that crack cocaine may be exchanged for personal property, including jewelry. The court allowed the officer to make these statements based on his police training, his six years of service in the narcotics division, and his experiences making drug trades as an undercover officer. Although the record reveals that the officer was neither offered nor recognized as an expert, the State asserts that the officer testified as an expert.

On appeal, Martin claims that the police officer’s testimony should have been excluded because he had no personal knowledge of Martin or his alleged drug use. We cannot agree with this assertion for several reasons. First, in Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991), we held that a witness with extensive experience and technical knowledge of pistols could testify as to the possibility of a .25 caliber pistol accidentally firing even though the witness was not specifically offered or recognized as a firearms expert. Moreover, in Ferrell, it was the witness’s technical knowledge of firearms, not his knowledge of the defendant, that qualified him to testify about pistols.

As in Ferrell, the police officer in Martin’s case had specialized training and experiences in the drug trade. Although the officer did not personally know Martin, he did have specialized knowledge of the drug trade. As mentioned previously, the State’s theory of the case was that Martin killed his mother in order to exchange her rings for drugs. Thus, the officer could have qualified as an expert with specialized knowledge to assist the jury in determining a fact in issue under Ark. R. Evid. 702. For these reasons, we find that the trial court did not abuse its discretion when it allowed the officer’s testimony.

V. Arkansas Supreme Court Rule 4-3(h)

In accordance with Ark. S. Ct. R. 4-3 (h), the record has been reviewed for rulings decided adversely to Martin but not argued on appeal, and no reversible errors were found.

Affirmed.

Brown, J., concurring; Glaze and Thornton, JJ., join in the concurrence.

Robert L. Brown,

Justice, concurring. I concur in the judgment but write separately because I disagree with the majority’s conclusion that the trial court erred when it did not suppress the statement Martin gave to Little Rock Police Detectives Steve Moore and Ronnie Smith at the initial interview.

It is clear that following the murder, the police investigation began with attempts to interview Thelma Artis’s sons based on information that a man identifying himself as her son was seen knocking on her door the previous night. Detective Moore testified that he interviewed one of the sons, Tony Bell, at Bell’s house during the day of April 23, 1994, and determined that he had an alibi. Donald Ray Lewis, another of the sons, was questioned when he arrived at his mother’s apartment, and was again questioned on April 25, 1994, by Detective Mike Durham at the Little Rock Police Department. Two other sons, one who was then in Japan, and the Reverend Billy Artis of Pine Bluff, were quickly ruled out as possible suspects.

During the day of April 23, 1994, Detective Moore set out to interview Martin and discovered that he was not home. The detective asked Martin’s wife to call when Martin arrived, and at approximately 10:00 or 10:15 p.m. that night, Detective Moore received a call from Mrs. Martin informing him that Martin was home. At approximately 10:30 p.m., Detectives Moore and Smith, along with Sergeant Clyde Steelman and Detective Armstrong, arrived at Martin’s house. Detective Moore testified that Martin voluntarily accompanied them in response to their request for questioning. Martin sat in the back seat of Detective Moore’s car without handcuffs. He was not questioned in an interrogation room, but in a sergeant’s office about his whereabouts on the previous night. At the close of the statement, Martin acknowledged that he had agreed to accompany the police officers to the police station and executed a waiver of rights form. However, Martin refused to give an additional statement, and he was transported home by members of the police department.

Martin was not arrested that night. In fact, a warrant for his arrest was not issued until five days later — April 28, 1994 —■ and only after it was found that one of his fingerprints was on the Coke can discovered in the victim’s trash. Although Detective Smith admitted that Martin matched a known physical description of the man seen knocking on Ms. Artis’s door, both Detectives Moore and Smith explained that Martin was treated only as a potential fact witness when he arrived at the station for the first interview. According to both detectives, it was only after Martin gave his implausible statement at that interview that he became a suspect in his mother’s murder.

In light of these facts, the majority concludes that Martin’s statement should have been suppressed for the sole reason that Detectives Moore and Smith violated Rule 2.3 of the Arkansas Rules of Criminal Procedure when they did not expressly inform him that he had no legal obligation to accompany them to the police station for questioning. Because I question the propriety and necessity of mandating a verbal statement to this effect by police officers under Rule 2.3, I believe that an examination of our precedent is in order.

Rule 2.3 was adopted by this court by per curiam order in 1975. See In re The Arkansas Criminal Code Revision Comm’n, 259 Ark. 863, 530 S.W.2d 672 (1975). It reads:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

This court’s decisions over the past ten years stand for the proposition that a person in Martin’s position must, at some time, be verbally warned that he has the right to leave at any time. See, e.g., Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993); Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989); Kiefer v. State, 291 Ark. 464, 762 S.W.2d 800 (1989); Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). It is also clear that, under this line of cases, a failure to comply with Rule 2.3 mandates suppression of the statement unless there existed probable cause to seize the declarant. Hart v. State, supra; Addison v. State, supra; Kiefer v. State, supra; Burks v. State; supra.

The Rule 2.3 analysis currently employed by this court has its roots in the decision of Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985). In Foster, police officers approached the defendant’s residence at 2:30 a.m. and represented to her that the prosecutor wanted to speak with her at his office. The police officers took her to the prosecutor’s office, obtained a waiver of her Miranda rights, and questioned her, with minimal assistance from the prosecutor, about her involvement in a contract killing. This court determined that she was illegally arrested because the police officers misused the prosecutor’s authority to summon people for questioning. In discussing its determination that the defendant did not voluntarily submit to the questioning, this court discussed Rule 2.3:

Rule 2.3 provides that if, pursuant to this rule, the officer asks any person to come or remain at a prosecuting attorney’s office, the officer shall take steps to make clear that there is no legal obligation to comply with the request. To the contrary, no steps were taken here. In fact, one of the officers agreed during his testimony that Mrs. Foster did not volunteer for questioning but only went to the prosecutor’s office “because four officers came to her house and picked her up and carried her down there.” The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. “[CJonsent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority.” Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Such acquiescence is all the state has been able to demonstrate here.

Foster v. State, 285 Ark. at 367, 687 S.W.2d at 830 (emphasis added). On these facts, this court determined that, under the totality of the circumstances, the defendant’s confession was tainted by the illegal arrest.

From Foster, this court molded the requirement that police officers must actually state to persons that they have no legal obligation to comply with a request for questioning. In Burks v. State, supra, this court, citing Foster v. State, supra, determined Rule 2.3 created the “positive duty” to inform appellant that he was free to leave the Little Rock Police Department, and that the failure to do so indicated a lack of proof that appellant had consented to the interrogation. As such, the interrogation was deemed custodial and a seizure of appellant that required probable cause.

To the same effect is Kiefer v. State, supra, in which appellant, accompanied by his wife, reported to the police station for questioning as the result of a telephoned request by Hoxie Police Chief Paul Hendrix. After waiving his rights, appellant gave a statement incriminating himself on charges of rape and incest. However, because Chief Hendrix did not specifically state to appellant that he was not required to come to the office, this court determined that under Foster v. State, supra, and Burks v. State, supra, his statement was to be suppressed absent a finding of probable cause.

From these cases, it is apparent that (1) expressly stating that a person is not obligated to accompany members of law enforcement is the only possible method of satisfying Rule 2.3; and (2) compliance with Rule 2.3 is the only mechanism whereby it can be proven that a person who was taken to a police station for questioning was not illegally arrested.

Our cases interpreting Rule 2.3 go much further than what is required by the United States Supreme Court. In United States v. Mendenhall, 446 U.S. 544 (1980), the Court established the relevant test for determining whether a person has been “seized” for purposes of the Fourth Amendment:

We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of such circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.

Id. at 554-55 (internal citations omitted). In forming this analysis, the Court noted explicitly that the question of whether a seizure occurs is not dependent upon whether a person is told that they are free to decline to cooperate because the voluntariness of the response is not dependent upon having been so informed. Id. at 555, citing Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

A number of jurisdictions have had occasion to apply the dictates of Mendenhall to facts analogous to those presented by the instant case. For example, in State v. Hunt, 555 A.2d 369 (Vt. 1988), the Supreme Court of Vermont rendered a decision that is particularly apposite to this case. In Hunt, police officers were investigating a murder case and asked the defendant if he would mind coming to the police station to answer some “routine questions.” Although the police officers testified that they intended to take statements from a number of people, the defendant was the first person questioned because of his “unnatural curiosity at the crime scene . . . [and] his presence in the building at the time of the murder.” Id. The defendant accompanied the officers to the police station, waived his Miranda rights, and eventually gave a confession to the murder. On appeal, the defendant argued that his confession should have been suppressed because he was illegally seized when, without probable cause, the police asked him to come to the police station without informing him that he had no legal obligation to accompany them. The argument was made under the Vermont Constitution, because the defendant conceded that, under the United States Constitution, “it is clear that the failure to inform a defendant that he or she could withhold consent to accompany the police is not sufficient to establish the existence of illegal coercion.” Id. at 376, citing United States v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bustamonte, supra.

The defendant also argued that, under the totality of the circumstances, he was unlawfully seized because his compliance with the police request was involuntary. The Vermont Supreme Court quickly dismissed this argument:

On the facts of this case we conclude that no seizure of defendant occurred when he voluntarily accompanied the police to the station for questioning. Defendant was not seized simply by the fact that the officers asked him to join them for questioning. See Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877. In addition, “the fact that [defendant] was not expressly told by the [officers] that [he] was free to decline to cooperate with their inquiry" does not turn the approach into a seizure since “the voluntariness of [his] response does not depend upon [his] having been so informed.” Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1878. We find no evidence of express or implied duress or coercion, and neither threats nor show of force. Defendant was simply asked if he would mind accompanying the police to the station for routine questions, and he agreed.

Id. at 377-78 (emphasis added).

Absent the circumstances of coercion discussed in United States v. Mendenhall, supra, appellate courts are uniform in determining that a person has not been “seized” for purposes of the Fourth Amendment when he voluntarily submits to a request for police questioning. See, e.g., People v. Torres, 669 N.E.2d 1279 (Ill. App. 3 Dist. 1996)(“[W]here a defendant is simply asked to accompany officers without threats or show of force there is no impermissible seizure of the individual.”), quoting People v. Patton, 412 N.E.2d 1097, 1100 (Ill. App. 3 Dist. 1980); State v. Osborn, 547 N.W.2d 139, 145 (Neb. 1996)(“It has been determined that one who voluntarily accompanies the police for questioning has 'not been seized.”), quoting State v. LaChappell, 382 N.W.2d 343, 347 (Neb. 1986); State v. Johnson, 346 S.E.2d 596 (1986)(fmding no seizure when the defendant accompanied officers to the police station per their request for questioning regarding a homicide investigation); Dancy v. State, 728 S.W.2d 772 (Tex. Cr. App. 1987)(fmding no seizure when two officers went to appellant’s home and asked that he accompany them to the police station); DeLeon v. State, 894 P.2d 608 (Wyo. 1995)(finding no seizure when there was no evidence in the record that the defendant was coerced into accompanying the detectives to the police station).

Particularly appropriate is the analysis utilized in Dancy v. State, supra, in which the question of “seizure” was analogized to “custody” for purposes of the Fifth Amendment. The Texas Court of Criminal Appeals stated:

If the circumstances show that the transportee is acting only upon the invitation, request, or even urging of the police, and there are no threats, express or implied, that he will be taken forcibly, the accompaniment is voluntary, and such person is not then in custody. In other words, under those circumstances, such person has not been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, supra.

Dancy v. State, 728 S.W.2d at 778.

From the foregoing, it is clear that the United States Constitution requires only that this court look to the totality of the circumstances to determine whether a “reasonable person” would have believed that he was free to decline a police officer’s request for questioning. It is also certain that compliance with a law enforcement officer’s request may be deemed voluntary absent being informed that there is no obligation to comply with the request. United States v. Mendenhall, supra. See, e.g., State v. Hunt, supra.

Yet, our precedent interpreting Rule 2.3 mandates a “positive duty” on the part of law enforcement to verbalize that the person need not comply with the police request. Because of this position, I must assert two points. First, the plain language of Rule 2.3 does not require a verbal warning in every case. Rather, the rule requires only that an officer “take such steps as are reasonable to make it clear that there is no legal obligation to comply with such a request.” In my judgment, compliance with Rule 2.3 should be considered, consistent with Supreme Court precedent, by reviewing the totality of the circumstances surrounding the request.

Second, it must be noted that Rule 2.3, which was made effective in 1976 by per curiam order, was taken from the American Law Institute’s Model Code of Pre-Arraignment Procedure. See American Law Institute, Model Code of Pre-Arraignment Procedure § 110.1(3) (Prop. Off. Draft 1975). It is apparent that we are the only jurisdiction to have adopted the ALI Model Code provision either by way of statute or rule of criminal procedure. To the extent this court has interpreted Rule 2.3 to require a verbal warning in order to prove consent to a request for interrogation, it has done so based on a provision that was written prior to the Supreme Court’s decision of United States v. Mendenhall, supra. Such an interpretation offers protection far greater than is required by the U.S. Constitution, and it is apparent that we may be a minority of one by having done so.

Under the facts of this case, the totality of the circumstances reflects that Martin, of his own free will, accompanied members of the Little Rock Police Department to the station for interrogation. Although four officers arrived at Martin’s house at 10:30 p.m., it is clear that (1) Martin knew they were coming; (2) the officers did not touch or physically restrain Martin in any way; (3) Detectives Moore and Smith questioned Martin in a sergeant’s office rather than an interrogation room; and (4) the detectives allowed Martin to leave, without comment, when he desired to do so. These facts make clear that Martin’s rights under the Fourth Amendment were not violated, and his statement should not have been suppressed as the fruit of an illegal arrest. It is also obvious that the failure to obtain a waiver of his Miranda rights prior to the interrogation did not violate Martin’s rights under the Fifth Amendment because he was not a suspect at that time. Clearly, under the totality of the circumstances, Martin’s freedom of action was not curtailed to a degree associated with formal arrest. See State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995).

In sum, this court’s interpretation of Rule 2.3 places a “positive duty” on law enforcement officers far beyond what is required by the United States Constitution and embraces our exclusionary aspect that only has the effect of “restrict[ing] the investigatory function of the police.” Dancy v. State, 728 S.W.2d at 778, quoting People v. Wipfler, 368 N.E.2d 870, 873 (Ill. 1977). Based on the foregoing, I submit that our adherence to this precedent should be reconsidered.

I would affirm on the basis that under the totality of the circumstances Rule 2.3 was not violated.

Glaze and Thornton, JJ., join.