author: Donald L. Corbin, Justice. Jack Holt, Jr., Chief Justice,

text:
    Andrew SASSER v. STATE of Arkansas
    CR 94-933
    902 S.W.2d 773
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Charles A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Andrew Sasser, appeals the judgment and commitment order of the Miller County Circuit Court filed May 4, 1994 convicting him of capital felony murder, Ark. Code Ann. § 5-10-101 (Repl. 1993), and sentencing him to death by lethal injection. For his sole point of appeal, appellant argues the admission of certain testimony regarding prior crimes committed by him was reversible error because the trial court abused its discretion in determining the probative value of the evidence exceeded its prejudicial effect. A.R.E. Rule 403. The trial court admitted the testimony pursuant to A.R.E. Rule 404(b) as proof of appellant’s modus operandi and intent. We find no merit to appellant’s argument and affirm.

BACKGROUND FACTS

The state charged appellant with capital felony murder for causing the death of Ms. Jo Ann Kennedy, on or about July 12, 1993, in the course of or in immediate flight from his commission or attempt to commit the victim’s rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. At the time of her death, the victim was working alone as the store clerk at the E-Z Mart in Garland (also referred to in the record as “Garland City”). The autopsy report showed the victim died of multiple stab and cutting wounds and blunt force head injuries, and that no anal or vaginal injury or any spermatozoa were present.

Following voir dire and immediately preceding the trial’s commencement, the state announced, in camera, that it intended to offer evidence of prior crimes committed by appellant in 1988 at an E-Z Mart in Lewisville against its store clerk, Ms. Jackie Carter, for which he was convicted of second degree battery, kidnapping and rape. The state relied upon Rule 404(b) and this court’s decision reported as Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987), and offered the evidence to prove appellant’s modus operandi and intent. The state enumerated several points of similarity between the circumstances of the present crime and the 1988 crimes. Appellant objected, arguing “one previous crime does not a pattern make” and that the evidence had no probative value, only prejudicial effect. The trial court held Thrash was controlling, found the proposed testimony to be “more — than prejudicial,” and ruled it admissible.

At the jury trial, appellant’s guilty plea was not accepted by the trial court due to the state’s refusal to waive the death penalty. At the trial’s commencement, appellant stipulated that he caused the death of the victim while in the possession of and while driving his brother’s pickup truck. Other stipulated facts included: appellant stopped at the E-Z Mart in Garland City two or three times to buy chips and to use the telephone between the hours of 3:00 p.m. on July 11, 1993 and approximately 12:00 a.m. on July 12, 1993; the victim was discovered nude from the waist down; and the pants and panties found in the E-Z Mart’s men’s bathroom were hers.

The state’s first witness at trial, Jeanice Pree, testified she and her mother, Gloria Jean Williams, lived across the street from the Garland City E-Z Mart. Pree testified she had an unobstructed view of the store. Pree testified she also worked at the E-Z Mart and believed its front door was locked at 12:00 midnight and thereafter customers were required to use a drive-through window. Pree testified she was sitting on her couch watching television when she looked out her window, saw the victim and a man behind the store counter and assumed he was a friend of the victim. Pree testified she looked back and saw the victim and the man coming to the store’s front door. Pree testified she could tell the victim was being forced to come out because it looked like her hands were behind her back. Pree testified she telephoned 911. The police dispatcher testified he received Pree’s 911 telephone call at approximately 12:46 a.m. on July 12, 1993, and that she stated “there was a woman that she believed was being killed at the E-Z Mart, being drug through the window.”

Williams testified she watched the E-Z Mart from the window in her house while her daughter (Pree) telephoned 911. Williams testified she saw a truck leave the store, and then the victim “came around from the side of the E-Z Mart. She reached for the door and she just collapsed, right there.”

Miller County Sheriff’s Deputy Jim Nicholas testified the victim was found lying just outside the E-Z Mart door on the sidewalk, and appeared to be dead. Nicholas testified the victim was nude from the waist down, and what appeared to be her panties and pants were located in the men’s restroom of the store. Nicholas testified one of the victim’s shoes was in the front aisle and one behind the counter, and a large wad of hair was found behind the cash register near the drive-through window. Nicholas testified blood spatters were observed at the drive-through window, on the store’s “outside aisles,” counter, and on the men’s bathroom wall. Nicholas testified the drive-through window was open. Numerous items of physical evidence and photographs were introduced into evidence through the testimony of Nicholas and Miller County Sheriff’s Department Investigator Toby Giles, including a photograph of the drive-through window and cash register area showing two plastic containers of nachos.

Arkansas State Police Investigator Robert Neal testified he and Miller County Sheriff H.L. Phillips interrogated appellant at the Lafayette County Sheriff’s Office in Lewisville for approximately two hours beginning around 7:45 p.m., on July 12, 1993. Appellant’s tape recorded statement and a transcript of the same were introduced at trial and provided as follows. Appellant stated he drove up to the window at the Garland City E-Z Mart and ordered nachos from the victim. He described the victim as a “lady . . . [who] had an attitude” and was angry because someone else had ordered nachos, then failed to pick up the order. Appellant stated the victim tried to sell him two orders of nachos, but he declined. Appellant stated they argued and the victim slammed the drive-through window on his hand. Appellant stated he jerked the window open whereupon the victim cut him with an knife-like object with a blade. Appellant stated he grabbed the victim and she jerked him through the drive-through window. Appellant stated they scuffled, moving from the drive-through window area, down the counter area, out into the store’s interior, back to the store office at the rear of the store, and up to the potato chip rack at the front of the store. Appellant stated the victim opened the store’s front door, they exited the store and the victim followed him to his pickup truck, still fighting. Appellant stated he entered the vehicle and left.

Appellant stated he did not recall going into the E-Z Mart’s restrooms but that he “had to go back there.” Appellant stated the victim repeatedly hit him with her fists while they scuffled. Appellant stated he wrested the victim’s knife-like object from her and used it to hit her, finally dropping the object near the pickup truck. Appellant stated he did not know why the victim’s clothes were removed. When asked whether he did not remove the victim’s clothes or did not remember doing so, he replied: “No sir.” Appellant stated he did not try to rape the victim or to rob her.

The state’s final witness, Ms. Carter, testified appellant attacked and raped her on April 22, 1988 at the E-Z Mart Store in Lewisville. Carter testified she was the only employee on duty when appellant entered the store at approximately 1:00 a.m. and purchased cigarettes, returned fifteen minutes later and purchased a soft drink, then returned five minutes later, asked to use the telephone and stated he had had a wreck on his motorcycle. Carter testified appellant then stood in the store after stating he was waiting on his wife to pick him up. Carter testified that, at approximately 1:35 a.m., a truck drove up and appellant went outside to talk to its occupants. Carter testified she moved from behind the cash register and began putting up items in the freezer when appellant approached her from behind and hit her on the back of the head with a soft drink bottle. Carter testified she and appellant struggled and he continued to hit her, then forced her to a utility\bathroom located at the back of the store. Carter testified another man approached and appellant decided to take her out of the store. Carter testified appellant forced her out of the store, picked up his bicycle, and pushed Carter and the bicycle into an alley. Carter testified that, when the other man drove by, appellant forced her across the street, told her to pull down her clothes, pulled down his own clothes, and raped her. Carter testified appellant then told her he should not have done it and should kill her whereupon she begged him not to and agreed to say a truck had dropped her off and appellant had found her. Carter testified appellant forced her back to the store where the police were waiting. Carter testified that, when she gained the opportunity to speak privately to a policeman, she identified appellant as her attacker.

The state then rested and the defense presented no evidence. The jury returned a verdict of guilty; the verdict did not identify the predicate offense or offenses the jury found as a required element of the crime of capital felony murder. The state then introduced, for the jury’s consideration in the sentencing phase, a certified copy of appellant’s 1988 convictions for Carter’s second degree battery, kidnapping and rape. The jury found one aggravating circumstance: that appellant had previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person. The jury found three mitigating circumstances: that appellant would be a productive inmate, had a supporting family of him as an inmate, and had stipulated he caused the victim’s death. The jury found the aggravating circumstance outweighed any mitigating circumstances and justified the death sentence.

ADMISSIBILITY OF CARTER’S TESTIMONY

In admitting Carter’s testimony, the trial court effectively made two separate evidentiary determinations: the first under Rule 404(b) on the issue of the relevance and purpose of the challenged evidence, and the second under Rule 403 which bars evidence, although relevant, if its probative value is substantially outweighed by a danger of unfair prejudice. See Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995); Thrash, 291 Ark. 575, 726 S.W.2d 283; Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 490 U.S. 1075 (1989); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

Appellant argues the trial court’s ruling on the Rule 403 issue was error because the testimony was offered solely for prejudicial effect. This argument is based upon appellant’s contentions that: (1) the state’s case was “virtually a sure thing” before Carter’s testimony was given as the final prosecution witness, (2) the possible prejudice resulting from erroneous admission of evidence in the present case is distinguishable from cases where no death penalty was sought, such as Thrash, and (3) the trial court failed to instruct the jury regarding the specific purposes for which Carter’s testimony was admissible under Rule 404(b).

Certainly the state’s capital felony murder case against appellant was founded upon and strengthened by the stipulated fact that appellant killed the victim. However, as noted, the charged crime also required the state to prove beyond reasonable doubt that the killing occurred in the course of or in immediate flight from appellant’s commission or attempt to commit the victim’s rape or kidnapping under circumstances manifesting extreme indifference to the value of human life. None of these additional required elements of the charged crime was stipulated to or confessed by appellant.

Conflicting evidence pertinent to the alleged kidnapping and attempted kidnapping predicate offenses was introduced when the testimonies of Ms. Pree and Ms. Williams are compared with appellant’s custodial statement. Ambiguous evidence was admitted pertinent to the alleged rape and attempted rape predicate offenses inasmuch as the victim was discovered nude below the waist but the autopsy report showed no evidence of rape and appellant denied raping or attempting to rape the victim in his custodial statement.

Further, the state’s case against appellant included circumstantial evidence of blood, hair, fiber, and other physical items introduced at trial as exhibits to various forensic reports prepared by the FBI and the State Crime Lab. Although appellant stipulated to the admissibility of these reports analyzing the circumstantial evidence, he did not stipulate as to the truthfulness of any conclusions or findings of fact contained therein.

On this record, we cannot conclude the state’s capital felony murder case was “virtually a sure thing” at the time Carter took the witness stand. Therefore we reject appellant’s first contention that the testimony was offered solely for prejudicial effect.

Next, appellant states the possible prejudice resulting from the erroneous admission of evidence is greater in death penalty cases. The conclusion he draws from this observation, apparently, is that Carter’s testimony was offered solely for its prejudicial effect because the state sought the death penalty in this case. Appellant’s second contention fundamentally misinterprets Rule 403, which, as noted above, excludes relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. The prejudice referred to in Rule 403, however, denotes the effect of the evidence upon the jury, not the defendant. See generally 1 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence ¶ 403[03] (1994). Hence the nature of the sentence that may be imposed in the event of the defendant’s conviction is not a factor in the trial court’s Rule 403 analysis. Therefore, because it is based upon a false premise, we reject appellant’s second contention that the testimony was offered solely for prejudicial effect.

Finally, although appellant was entitled to a cautionary instruction to the jury limiting the purposes for which it should have considered Carter’s testimony, his failure to request the instruction precludes our consideration of this argument on appeal. Lindsey, 319 Ark. 132, 890 S.W.2d 584 (1994); White, 290 Ark. 130, 717 S.W.2d 784. Therefore we reject appellant’s third and final contention that the testimony was offered solely for prejudicial effect.

As with other evidentiary determinations, the balancing of probative value against prejudicial effect is a matter left to the trial court’s sound discretion. Neal, 320 Ark. 489, 898 S.W.2d 440; Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993). In this case, the trial court held Carter’s testimony concerning appellant’s 1988 crimes of second degree battery, kidnapping and rape was probative of appellant’s intent and modus operandi in the present case under Rule 404(b). We are mindful of the state’s burden in this case to prove one or more of the predicate offenses, the commission or attempt to commit the victim’s rape or kidnapping. We conclude the 1988 crimes bore sufficient similarity to the present crime to justify proof of the former as probative of appellant’s intent to commit the predicate offenses of the latter. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Snell, 290 Ark. 503, 721 S.W.2d 628. The record in this case shows that on December 31, 1992, less than six months before the commission of the present crime, appellant was discharged from the Arkansas Department of Correction having completed his sentence for his 1988 crimes. Both the 1988 crimes and the present crime involved female victims on duty as employees of E-Z Mart stores located in neighboring communities. Both were committed shortly after midnight by appellant, without accomplices, after he had purchased items from the victim at the store and had made several trips to the store on the day of the attack. Both involved a physical struggle between appellant and the victim that started in one part of the store and moved to other parts. Both involved sexual implications. In 1988, Carter pleaded for her life, whereas the victim in the present case was killed. In 1988, appellant apparently travelled to the E-Z Mart on a bicycle, whereas he borrowed his brother’s pickup truck in the present case. Clearly, the challenged testimony had probative value which, we conclude, was not substantially outweighed by the danger of unfair prejudice. See Rule 403.

The dissent contends the challenged testimony was inadmissible under Rule 404(b) because the 1988 crimes were not sufficiently similar to the present crime, and, therefore, the trial court need not have reached the Rule 403 issue. Appellant articulates no argument to this court that the challenged testimony was inadmissible under Rule 404(b). However, pursuant to Ark. Sup. Ct. R. 4-3(h), we consider this issue. The degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted. See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 112, n. 4 and accompanying text (2d ed. 1994) (“To be probative, prior criminal acts must require an intent similar to that required by the charged crime, although it is usually said that the prior crime need not closely resemble the charged crime.”); 1 John W. Strong, McCormick on Evidence § 190, n. 31 and accompanying text (4th ed. 1992) (“The similarities between the act charged and the extrinsic acts [admitted to show the act charged was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge] need not be as extensive and striking as is required ... [to show modus operandi]”). See generally 2 Jack B. Weinstein, et ah, Weinstein’s Evidence ¶ 404[12] (1995); 2 John Henry Wigmore, Evidence in Trials at Common Law § 302 (Chadbourn rev. 1979). On this record, we conclude the similarity between the circumstances of the 1988 crimes and the predicate offenses of the present crime was sufficient to support the trial court’s, admission of the challenged testimony under Rule 404(b) as independently relevant proof of appellant’s intent to commit the predicate offenses.

This court has repeatedly ruled that trial courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rules 403 and 404(b), and that those decisions will not be reversed absent an abuse of discretion. See, e.g., Neal, 320 Ark. 489, 898 S.W.2d 440; Lindsey, 319 Ark. 132, 890 S.W.2d 584. We conclude appellant has failed to show an abuse of discretion.

COMPLIANCE WITH RULE 4-3(h)

We conduct no comparative proportionality review with respect to the death penalty in this case. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). In accordance with Ark. Code Ann. § 5-4-603(d) (Repl, 1993), we conclude no erroneous finding of any aggravating circumstance with respect to the death penalty was made by the jury. In accordance with Ark. Sup. Ct. R. 4-3(h), the transcript has been examined for prejudicial errors objected to by appellant but not argued on appeal and we conclude no such errors occurred.

The judgment is affirmed.

Holt, C.J., and Dudley and Newbern, JJ., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I respectfully dissent. The sole question on appeal is whether the trial court abused its discretion by admitting testimony concerning other crimes committed by appellant Andrew Sasser against a convenience store operator some four years earlier to show modus operandi and intent. The trial court committed error in allowing this evidence under A.R.E. 404(b), and I would reverse and remand for a new trial.

Arkansas Rule of Evidence 404(b) provides as follows:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

For “other crimes” evidence to be admissible, it must have independent relevancy to the offense for which the defendant is standing trial, but it need not be tied to the list of permissible purposes delineated in the rule. Neal v. State, supra; see also White v. State, 290 Ark. 130, 711 S.W.2d 784 (1986). Admission of such evidence for proving a method of operation has been upheld by this court as a permissible exception to Rule 404(b). See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987). Once the trial court determines that the evidence is independently relevant, it must then perform the necessary balancing under A.R.E. 403, which provides that “although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”

Although the lower court properly examined the evidence on the basis of both rules, and even though the method of operation (modus operandi) as well as proof of intent or plan is a legitimate basis for introducing evidence of other crimes, the trial court need not have balanced the evidence under Rule 403, as Ms. Carter’s testimony was not relevant under any of these categories.

This court recently examined the admission of other crimes for the purpose of establishing a method of operation in Diffee v. State, supra. To introduce other unrelated acts to show a method of operation, two requirements must be met: “(1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual.” Diffee v. State, 319 Ark. at 675, 894 S.W.2d at 567 (citing Frensley v. State, 291 Ark. 268, 274, 724 S.W.2d 165, 169 (1987)); See also Edward J. Imwinkelreid, Uncharged Misconduct Evidence, §§ 3.10 to 3.12 (1984). Neither requirement was met in this instance.

The general purpose of showing a method of operation is to identify the accused as the perpetrator. See Diffee v. State, 319 Ark. at 675, 676, 894 S.W.2d at 568 (citing Imwinkelreid, supra). Here, Sasser stipulated to a number of facts involving the homicide, including the fact that he caused Ms. Kennedy’s death. There was no issue as to the identity of the perpetrator, and thus there was no necessity for proving a method of operation. Moreover, the incident involving Ms. Carter fails to meet the required elements for establishing modus operandi.

As noted by Professor Imwinkelreid, and as cited in Diffee, supra, the degree of similarity between the two incidents must be very strict in order to establish identity. Granted, the unrelated acts in this case share several facts in common, as both victims were convenience store clerks, both were attacked late at night, and both were beaten and disrobed. Even so, the similarity between the facts surrounding the commission of the two crimes, one of murder and the other of second degree battery, rape and kidnapping arises to the high degree of similarilty required for the purpose of showing a method of operation.

The second requirement, uniqueness of methodology, is clearly absent. For purposes of establishing a method of operation, the methodology used by the perpetrator must be so unique that it independently identifies the accused as the perpetrator. Courts and commentators have stated the methods must be “bizarre,” “highly characteristic,” “distinguishing,” . . . “exceptional,” “a fingerprint,” and other such terms as would single out one person as being the unmistakable assailant. Diffee v. State, 319 Ark. at 677, 894 S.W.2d at 568 (citing Imwinkelreid, supra.); See also Frensley v. State, supra. This case is distinguishable from Thrash v. State, supra, upon which the trial court relied in making its ruling. In that case, the defendants used wigs and particular disguises to rob a liquor store and a truck driver. The disguises provided an element of uniqueness that marked the defendants as the perpetrators of both crimes. Here, there is nothing unique or distinctive about the way Sasser carried out the crimes so as to justify the admission of the previous incident for purposes of establishing a method of operation.

Lastly, admission of the evidence to show plan or intent was also error, for this court cannot logically assume that, because Sasser had previously committed the offenses of second degree battery, rape, and kidnapping involving a convenience store clerk, that this constituted evidence of a plan or intent on his part to commit the murder of Ms. Kennedy. The facts in this case are unlike those in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), where the defendant was accused of killing his wife, dismembering her body, and leaving her torso in a cooler, which was found floating in Lake Norfolk. At trial, Brenk’s former wife was allowed to testify that Brenk had tried to kill her and threatened her that he would kill her, cut her body to pieces, and scatter the remains. We held that, “given the similarity of the circumstances of [the two deaths], and the specific threats made to Jackie Brenk, although several years earlier,” the threats were admissible to show Brenk’s intent, plan; and identity. Brenk v. State, 311 Ark. at 585, 847 S.W.2d at 6. In particular, we upheld the admission of testimony in Brenk due to the similarity of the circumstances between what Brenk told his ex-wife and what actually happened to his wife. Id.

Here, the majority is wrong in concluding that there was sufficient similarity of circumstances or threats to permit Ms. Carter’s testimony into evidence to show that Sasser had a plan or intent to murder Ms. Kennedy. Sadly enough, convenience stores, which are quite often open all night, are staffed by employees who are subject to robbery, attack, sexual assault, rape, and death. The victims are often threatened with death by their attackers in an attempt to ensure their silence. Neither Sasser’s threats nor his actions, as previously discussed, were carried out under compellingly similar circumstances to support the inference of an intent to kill Ms. Kennedy. In my opinion, admission of the evidence on this basis was prejudicial error which necessitates a retrial.

Dudley and Newbern, JJ., join this dissent.

      Rule 404(b) provides:
      Character evidence not admissible to prove conduct, exceptions — Other crimes. —....
      (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      In Thrash, this court held evidence of a burglary and aggravated robbery allegedly committed by the appellant subsequent to his commission of the crime of capital felony murder for which he was on trial was properly admitted under Rule 404(b) to show a plan and a modus operandi.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    STATE of Arkansas v. Herbert JONES
    CR 94-717
    903 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen., for appellant.

      Charles A. Banks, Mark S. Carter, and B. Jeffrey Pence, for appellee.
   Donald L. Corbin, Justice.

Appellant, the State of Arkansas, appeals the order of the Pulaski County Circuit Court dismissing the first degree murder charge against appellee Herbert Jones. The state brings this appeal pursuant to Ark. R. Crim. P. 36.10(c), and asserts as the sole point of error the trial court’s denial of its proffered jury instructions for the crimes of murder in the second degree and manslaughter as lesser included offenses of the crime charged. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(3) because this case questions the interpretation or construction of Rule 36.10(c) and Ark. Code Ann. § 5-1-110(c) (Repl. 1993). We declare error.

Appellee was charged by felony information with first degree murder for the death of his former business associate Dan Baker. At trial, appellee testified he shot Baker in self-defense and did not intend to murder him. The evidence showed the shooting occurred during a scheduled meeting between appellee and Baker at appellee’s office and there was no eyewitness to the shooting other than appellee. The autopsy report showed Baker died of a single gunshot wound to the chest.

At the conclusion of all proof in the case, the trial judge and counsel discussed jury instructions in chambers where the following colloquy occurred:

THE COURT: AMCI, lesser included. You have included lesser included, I suppose, all the way down to manslaughter.
[DEPUTY PROSECUTING ATTORNEY]: In anticipatory. I always do that.
THE COURT: You didn’t?
[DEFENSE COUNSEL]: No, sir.
THE COURT: You want to gamble on it?
[DEFENSE COUNSEL]: Yes.
THE COURT: If they want to gamble, I think it is their choice, if they don’t want lesser.
[DEFENSE COUNSEL]: My position is, I am objecting to any and all of them less than murder in the first degree. I want to make sure that my client agrees.
[DEFENSE COUNSEL]: Judge, I have visited with my client and he wishes to stand on the instruction of murder in the first degree.
THE COURT: All right.

The state proffered instructions to the trial court, pursuant to section 5-1-110(c), for murder in the second degree and for manslaughter as lesser included offenses of murder in the first degree. Over the state’s objection, however, the only crime with respect to which the jury was instructed was murder in the first degree. Appellant’s requested instruction on the defense of justification by self-defense was given. The jury returned a verdict of not guilty.

In addressing an appeal by the state, we first must determine whether the correct and uniform administration of the criminal law requires our review pursuant to Rule 36.10(c). To the extent we conclude that requirement is met in this appeal, we will consider its merits. The fact that appellee was acquitted by the trial court does not preclude our review of an asserted legal error below. State v. Johnson, 317 Ark. 226, 876 S.W.2d 577 (1994); see also State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991) (dismissal of felony charge against appellee did not preclude this court’s review of proceedings for legal error under Rule 36.10).

The state argues it was entitled to instructions on the lesser included offenses of murder in the second degree and manslaughter, as a matter of law, pursuant to section 5-1-110(c), given the proof it presented in this case. Section 5-1-110(c) provides: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” We have held that where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should give the lesser included offense instruction and it is reversible error not to do so. Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992). Error occurs when the trial court refuses to give the lesser included instruction where there is the slightest evidence to warrant it. Id.

We declare the trial court in the present case erred in its refusal to give the state’s proffered instructions to the extent that ruling was based upon the rationale — “If they want to gamble, I think it is their choice, if they don’t want lessers” —rather than a finding that no rational basis for the instruction existed. Plainly, section 5-1-110(c) does not delegate the decision regarding the propriety of a lesser included offense instruction to the defendant, but requires the trial court to determine whether the proffered instruction concerns a lesser included offense and, if so, whether a rational basis exists for a verdict acquitting the defendant of the greater offense and convicting him of the lesser. As the commentary to Ark. Stat. Ann. § 41-105, now codified as section 5-1-110(c), indicates, the General Assembly’s purpose for this provision was to authorize the trial court “to refuse to instruct on an included offense when the evidence mandates either conviction of the greater offense or acquittal.”

We are mindful of our decision in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), which we described as a case of “all or nothing.” Id. at 414, 720 S.W.2d at 697. In Doby we held the trial court did not err in finding no rational basis existed where the defense theory was that there was no truth at all to the state’s case and the defendant’s testimony completely denied committing the act with which he was charged. We have reiterated this ruling many times in cases where the theory of defense was premised upon a complete denial of the defendant’s participation in the act charged. E.g., Vickers v. State, 320 Ark. 437, 898 S.W.2d 26 (1995); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993); Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Fry v. State, 309 Ark. 316, 829 S.W.2d 415 (1992); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Flurry v. State, 290 Ark. 417, 720 S.W.2d 699 (1986).

The present case, however, is distinguishable from Doby and its progeny because appellee did not deny shooting Baker, but presented a defense based on his intention in and justification for committing that act. On these facts, the Doby rule is not applicable. See Frazier v. State, 309 Ark. 228, 828 S.W.2d 838 (1992) (affirming appellant’s conviction for first degree murder and finding no error in trial court’s refusal to give an instruction on a lesser included offense after appellant asserted defense of justification by self defense where the testimony revealed no rational basis for the instruction); accord, Rainey, 310 Ark. 419, 837 S.W.2d 453 (reversing appellant’s conviction for first degree murder for trial court’s refusal to give instruction on lesser included offense where appellant admitted shooting the victim out of anger); Fladung v. State, 292 Ark. 510, 730 S.W.2d 901 (1987) (reversing appellant’s conviction for attempted capital murder for trial court’s refusal to give instruction on lesser included offenses where appellant admitted retrieving a pistol from his car and presented a defense based largely on why he grabbed the weapon and what he intended to do with it thereafter).

We do not address the ultimate issue of whether application of section 5-1-110(c) to the facts of this case would have entitled the state to the proffered instructions. The state has no right to appeal beyond that conferred by the constitution or rules of criminal procedure. State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). As a matter of practice under Rule 36.10(c), we only take appeals that are narrow in scope and involve the interpretation of the law. Id. Therefore, to the extent this appeal merely raises an issue of the application of section 5-1-110(c) to the facts of this case, rather than its interpretation, the appeal does not involve the correct and uniform administration of the criminal law and is not addressed by this court.

We can do no more than declare the error of the trial court identified in this opinion. We cannot reverse the judgment because appellee’s acquittal prevents the state from retrying him on the same charge. State v. Long, 311 Ark. 248, 844 S.W.2d 302 (1992) (acquittal of charge of capital murder pursuant to directed verdict at close of state’s evidence precluded retrial despite trial court error).

Error Declared.

Newbern, Brown, and Roaf, JJ., concur in the opinion except for the reference to Doby v. State. See Brown v. State, 321 Ark. 413, released this date.

Holt, C.J., not participating.

       We are aware of no prior appeal by the state on this issue. Doubtless, this circumstance is due to the fact that the state determines the charges brought against the defendant, and, subject to the restrictions of Ark. Code Ann. § 16-85-407 (1987), may amend the charging instrument even after the trial commences. With respect to section 5-1-110(c), however, we observe that statute does not expressly confer a right to a lesser included offense instruction solely upon the defendant. Further, this court has stated that, in appropriate cases, the instruction should be given over the defendant’s objection. Lampkin v. State, 271 Ark. 147, 607 S.W.2d 397 (1980).


author: Robert L. Brown, Justice. Jack Holt, Jr., Chief Justice, Tom Glaze, Associate Justice,

text:
    W.J. “Bill” McCUEN, Mary Klaser and the Natural State Committee, on Their Own Behalf and on Behalf of All Those Persons Who Have Volunteered Time and Contributed Financially to the Campaign for Proposed Amendment 2, Nick Wilson, Vic Snyder, and Mark Pryor v. Clarence HARRIS
    94-1196
    902 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Winston Bryant, Att’y Gen., by: Timothy Humphries and Angela Jegley, Asst. Att’y’s Gen., for appellant.

      Bowden Law Firm, for appellee.
   Robert L. Brown, Justice.

This is an appeal from a preliminary injunction granted by the Pulaski County Chancery Court. The injunction prevents then Secretary of State, W.J. “Bill” McCuen, from canvassing and counting votes on Proposed Amendment 2, which proposed to levy a one-eighth of one percent tax on all taxable sales of property. We refused to expedite consideration of this appeal by per curiam order on November 4, 1994. See McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994) (Harris I). The appellants are comprised of McCuen and campaigners and intervenors, including Mary Klaser and the Natural State Committee, State Senator Nick Wilson, State Senator Vic Snyder, and State Representative Mark Pryor. They raise numerous issues on appeal which center on the propriety of a preliminary injunction so close to the election. We affirm the chancery court.

On October 19, 1994, Harris filed his petition to enjoin McCuen, as Secretary of State, from (1) taking any action to place Proposed Constitutional Amendment 2 on the Ballot for the November 8, 1994 General Election, and (2) from counting votes cast for the proposed amendment. The Harris petition followed two days after this court’s decision in Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), where we held that McCuen as Secretary of State had failed to comply with the publishing requirement of Article 19, § 22 of the Arkansas Constitution in connection with Proposed Amendment 3 relating to lotteries and bingo. The reason stated for the injunction in the Harris petition was the same failure of the Secretary of State to follow the publishing requirements of Article 19, § 22. On October 26, 1994, Harris filed a motion for a preliminary injunction and requested that votes not be counted pending a decision on the merits.

On November 2, 1994, the Harris petition was heard by the chancery court. On November 3, 1994, the court entered an order reciting findings of fact which we paraphrase below:

(1) Harris is a taxpayer and registered voter in Arkansas.
(2) On May 6, 1994, the Secretary of State published a public notice of Amendment 2 which contained only the popular name and ballot title of the amendment. A similar publication was made in September 1994 and two more publications were made in October 1994. The entire text of the amendment was sent for publication in all 75 counties on October 30, 1994.
(3) Private contributions to support the campaign for Amendment 2 totaled $181,085.36. Of that amount, $109,557.95 was contributed since August 8, 1994. A total of $125,000 was spent by the Natural State Committee.
(4) A total of 11,153 volunteer hours was contributed in support of Amendment 2, with the majority of those hours contributed in September and October 1994.
(5) Much of this time and money would not have been donated had the Harris petition been filed earlier.
(6) If Amendment 2 passed, the State of Arkansas could anticipate collecting approximately $36.28 million in fiscal year 1995-96 and $37.56 million in fiscal year 1996-97. That money would be irretrievably lost and would have gone to various state agencies and commissions for the preservation of natural resources, wildlife, and historical articles and buildings. There was credible testimony that the State will be irreparably harmed by loss of these revenues.
(7) Harris is 70 years old, lives on a fixed income of $2,000 per month and would pay some amount less then $563 in sales taxes under Amendment 2 during the remainder of his life. Intervenor Natural State Committee offered to post a bond in the amount of $563 to protect Harris.

The chancery court then reached conclusions which we paraphrase:

(1) Regarding the manner of publication, there is no distinction between this case and Walmsley v. McCuen, supra.
(2) The considerations pertaining to whether to grant a preliminary injunction are different from the Walmsley case in that the State has shown that irrevocable harm will occur if the injunction is improvidently granted, and intervenors Klaser and the Natural State Committee have shown that they were prejudiced in terms of time and money contributed due to the delay in filing the Harris petition.
(3) Unlike commercial litigation, the court did not believe that laches applies when the plaintiff seeks to enforce a constitutional obligation of the Secretary of State to publish a proposed amendment as required by Article 19, § 22.
(4) Harris will not be irreparably harmed by the amount of taxes paid if Amendment 2 passed but has established irreparable harm in that election procedures are mandatory before an election and directory after an election and inasmuch as no monetary value can be placed on his right to enforce the publication requirement under Article 19, § 22.
(5) A bond exceeding $70 million would be impossible for Harris to post and would not be appropriate in the context of his seeking to enforce the provisions of the Arkansas Constitution.
(6) Based on the Walmsley case and the court’s opinion that laches does not apply, Harris has an extremely high likelihood of success on the merits.
(7) The harm to Harris from not granting the injunction exceeds the harm to the State and intervenors from granting it.
(8) The argument of the legislators, as intervenors, that the injunction grants the Secretary of State a veto power over the General Assembly’s right to refer proposed constitutional amendments is overruled.
(9) The argument of McCuen and the intervenors that the preliminary injunction should not issue because its effect will be irreversible is overruled.

The court preliminarily enjoined the Secretary of State from canvassing returns and counting the votes on Amendment 2 and refrained from requiring Harris to post a bond.

I. Subject Matter Jurisdiction

Though neither party has raised the issue of subject matter jurisdiction, we can investigate such jurisdiction on our own. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). We hold that jurisdiction exists in chancery court in this case.

Article 19, § 22 of the Arkansas Constitution provides the process for proposed amendments to the constitution adopted by the General Assembly. There are certain requirements for these amendments under Article 19, § 22: (1) they must be adopted at a regular session of the General Assembly, (2) a majority of the members of each house must agree, (3) the amendments and the yeas and nays must be entered on the journals of each house, and (4) the amendments must be published by the Secretary of State for six months.

In Walmsley v. McCuen, supra, the appellant appealed from Pulaski County Chancery Court and sought the same relief as that requested in the Harris petition based on the Secretary of State’s failure to publish the proposed amendment for six months, as required by Article 19, § 22 of the Arkansas Constitution. The chancery court in Walmsley had found compliance with the publishing requirement of Article 19, § 22. We reversed the chancery court and held that the Secretary of State had not complied with the publishing requirement. No question of subject matter jurisdiction was raised by this court or any party.

This court has considered multiple cases over the years where the issue involved was whether full compliance with Article 19, § 22 had been attained, all of which were appeals from chancery court. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982); Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980); Jernigan v. Niblock, 260 Ark. 406, 540 S.W.2d 593 (1976); Bryant v. Rinke, 252 Ark. 1043, 482 S.W.2d 116 (1972). In none of these cases was subject matter jurisdiction ever challenged. In Becker v. Riviere, the issue was the purpose of a ballot title for Article 19, § 22 amendments. This court refused to enjoin certification of the ballot title. In Wells v. Riviere, the suit was to prevent the Secretary of State from placing three Article 19, § 22 amendments on the ballot because they had not been adopted in a regular session of the General Assembly. This court agreed that the amendments should not be placed on the ballot. In Jernigan v. Niblock, the suit was to prevent the Secretary of State from certifying an Article 19, § 22 amendment to election officials because the yeas and nays had not been appropriately recorded. We affirmed the chancellor’s injunction and made it permanent. And in Bryant v. Rinke, the issue also was the failure of the yeas and nays to be appropriately recorded for an Article 19, § 22 amendment. Again, we agreed that the Secretary of State should be enjoined from publishing those amendments. In two other cases, this court entertained appeals from chancery court for alleged irregularities in Article 19, § 22 constitutional amendments, even though the election had already been held. See Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); McAdams v. Henley, 169 Ark. 97, 273 S.W. 355 (1925).

The dissent cites little authority to support its conclusion that only circuit court jurisdiction was appropriate. It cites one case where we held that mandamus was the proper method for removing an ineligible candidate from the ballot under Ark. Code Ann. § 7-5-207 (Repl. 1991). See State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). That case and statute have nothing to do with Art. 19, § 22 amendments. The dissent then adduces several cases to support its notion that chancery court has no jurisdiction when the issue is what procedures are to be followed in conducting a political election. None of these cases deals with a constitutional amendment proposed under Art. 19, § 22. Indeed, as already indicated, a line of authority extending back several decades supports equitable jurisdiction for cases of this ilk where failure to comply with Art. 19 § 22 is the issue. In short, the dissent provides no authority to support its theory of circuit court jurisdiction, where an Art. 19, § 22 deficiency is involved.

Indeed, Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), was a dispute involving political parties over statutory procedures to be followed in political elections. Enforcement of political rights under the election laws was not deemed to be a matter for chancery court. Here, however, the issue is the failure of the Secretary of State to comply with the dictates of Art. 19, § 22 of the Arkansas Constitution in publishing the amendment and an injunction to prohibit placement of that amendment on the ballot. Again, such matters have exclusively been brought in chancery court.

Our chancellors and prospective parties like Harris could only conclude in light of Walmsley v. McCuen, its progeny, and the history of challenges under Art. 19, § 22, that jurisdiction lay in chancery court.

II. Mootness

Similarly, before we address the appellants’ issues, we consider Harris’s contention that this case is moot due to the fact that the November 8, 1994 General Election has already been held. The appellants urge that the issues raised in this appeal are ones of great importance to the general public and should be decided even if moot. See Netherton v. Davis, 234 Ark. 936, 355 S.W.2d 609 (1962). We agree that because this case involves issues surrounding an election on a constitutional amendment referred by the General Assembly, we should decide the issues. There is also the fact that appellants ask for a dissolution of the preliminary injunction against counting the ballots. The effect of such a dissolution is unknown, but that request for relief renders the case viable.

III. Preliminary Injunction

We turn then to the appellants’ principal argument which is that Harris impermissibly delayed the filing of his petition until three weeks before the General Election and is guilty of laches.

An order granting or denying a preliminary injunction is within the chancery court’s discretion. Smith v. American Trucking Ass’n, 300 Ark. 594, 781 S.W.2d 3 (1989); American Trucking Ass’n v. Gray, 280 Ark. 258, 675 S.W.2d 207 (1983). This court will not reverse the granting of a preliminary injunction unless there has been an abuse of the chancellor’s discretion. Smith v. American Trucking Ass’n, supra; Scrivner v. Portis Mercantile Co., 220 Ark. 814, 250 S.W.2d 119 (1952); Riggs v. Hill, 201 Ark. 206, 144 S.W.2d 26 (1940).

We believe that the chancery court’s analysis of the laches issue was correct. While we do not dispute the appellants’ suggestion that the Walmsley case was the catalyst for the Harris petition, we cannot conclude that the doctrine applies in a matter where a plaintiff seeks to enforce his constitutional right to be fully informed on a proposed constitutional amendment. As the chancery court appropriately noted, the Walmsley case decides the issue that the Secretary of State failed to comply with the publishing mandates set out in Article 19, § 22.

The appellants cite us to two cases in support of their laches theory — Ellis v. Hall, 221 Ark. 25, 251 S.W.2d 809 (1952) (plurality opinion) and Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990). Neither case decides the laches question. The Ellis case concerned a petition on a referred Act under Amendment 7 to the Arkansas Constitution. A Commissioner’s report on the sufficiency of the required signatures showed the number to be approximately 1,400 short of the required number. In a plurality decision, three members of this court refused to strike the matter from the ballot on the basis of a prima facie report and further concluded that the remaining time before the General Election was insufficient for a completion of proof. In the instant case, however, proof of failure to publish in accord with Article 19, § 22 and this court’s decision in Walmsley v. McCuen, supra, was beyond dispute. Accordingly, the asserted constitutional deficiency was not a prima facie matter.

In Becker v. McCuen, supra, the petition contesting the proposed constitutional amendment (the “Interest Rate Amendment”) by the legislature contended that the popular name and ballot title, as published and certified, were misleading and deceptive. We declined to strike the matter from the ballot because the petitions had not sought to have the Secretary of State correct his order previously and had waited until the eleventh hour to do so. Although there was a mistake in the publication and certification of the ballot title by the Secretary of State, we held that there was substantial compliance. We went on to state that if the Secretary of State’s action caused prejudice to either side, it would be proper to strike the matter from the ballot. The facts in Becker are vastly different from those in the instant case. Here, the Secretary of State failed to comply with the six-month publication of the entire amendment as required by Article 19, § 22, and the chancery court found that Harris had been irreparably harmed by this failure.

The appellants also contest the chancery court’s finding that Harris would be irreparably harmed without the injunction and that he had no adequate remedy at law. They hinge their arguments on the minimal monetary expense at issue — $563 — that Harris would incur from the proposed tax. That is not the issue, however. The right to be fully and adequately informed of constitutional amendments referred by the General Assembly is inherent in the six-month publication requirement of Article 19, § 22. The constitutional mandate was violated in this case. No monetary value can be placed on the resulting prejudice. For this reason, the chancery court was correct in finding that the harm that would accrue to Harris by not granting the injunction outweighed the harm that would accrue to the appellants by granting it. Moreover, we observe no error in the chancery court’s refusal to require a $70 million bond of Harris. To have done so would have effectively foreclosed his right to a preliminary injunction and protection of his constitutional rights.

There is, lastly, the point raised that the chancery court’s ruling gives the Secretary of State veto power over proposed amendments under Article 19, § 22. That argument presupposes an intentional act by the Secretary of State to thwart the will of the General Assembly in adopting proposed amendments. There is no evidence that that occurred in the case before us. Indeed, the Secretary of State was undoubtedly attempting, in the publication of Amendment 2, to comply with certain statutes passed by the General Assembly, as was the case in Walmsley v. McCuen, supra. We, therefore, resist the temptation to decide hypothetically the effect that willful interference by the Secretary of State would have on the balance of power among the three discrete branches of government. We simply do not see this decision today as precedent for sanctioning a “veto power” by the Secretary of State over legislative amendments, as the intervenors suggest.

In sum, this is not a case where a dollar amount can be placed on the right of Harris to be fully apprised of a proposed constitutional amendment. Though, admittedly, the work and money of many volunteers and contributors who supported Amendment 2 came to naught, amending the constitution is a precise science which entails complete information flowing to the electorate.

There was no abuse of discretion by the chancery court in granting the preliminary injunction.

Affirmed.

Special Justice Winslow Drummond joins in this opinion.

Holt, C.J., Dudley and Glaze, JJ., dissent.

Roaf, J., not participating.

Jack Holt, Jr., Chief Justice,

dissenting. I respectfully dissent. The ultimate issue before this court is whether the Pulaski Chancery Court has authority or jurisdiction to interpose equity in matters relating to the procedures to be followed by the Secretary of State in publishing notice relating to the conduct of a political election, or, stated another way, can equity jurisdiction be interposed for the protection of rights which are merely political, and be invoked for the purpose of restraining the holding, directing or controlling the mode, or determining the rules of law concerning how an election shall be held. I disagree that the chancery court had jurisdiction over the election procedures in question, and would order its injunction dissolved.

Granted, the jurisdictional issue was not raised by the appellants or the appellee. However, the question of subject matter jurisdiction is always open and may be raised by the court, even if not raised by the parties. Coran v. Keller, 295 Ark. 308, 748 S.W.2d 349 (1988). In fact, we not only have the right, but the duty to raise this issue. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, 316 Ark. 143, 870 S.W.2d 748 (1994).

In Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), the Republican Party filed an action in chancery court seeking declaratory relief. The chancery court found unconstitutional Act 477 of 1963 which prohibited the majority party member of the county board of election commissioners from naming members of the majority party as election officials. The chancellor also found invalid Act 56, § 5 of the Extraordinary Session of 1965, which prohibited persons having voted in a party primary from being designated by an opposite party to serve in the next general election. And finally, the chancellor declared Act 57 of the same extra session, an act making it a felony to vote in more than one party primary on the same day, inapplicable to persons voting in a general election. This court refused to reach the merits of the issues decided by the chancery court, stating the following:

Wherever the established distinction between equitable and common law jurisdiction is observed, as it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property right, but pertain solely to the political administration of government.

242 Ark. at 285. (Emphasis added.)

In sum, the Catlett court held that a court of equity cannot invoke its jurisdiction for the purpose of restraining, directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. In Catlett, we further stated that it is immaterial that the parties have not raised the issue of jurisdiction, for as we held in Sheffield v. Heslep, 206 Ark. 605, 177 S.W.2d 412 (1944), even though both sides to the litigation had asked this court to pass on the eligibilty of Heslep, nevertheless “we cannot do so in this equitable action, because there is no foundation for equitable jurisdiction.” The same rings true in this case, for here there is no foundation for equitable jurisdiction. See also White v. Holmes, 302 Ark. 545, 790 S.W.2d 902 (1990).

The Catlett decision makes it clear that the chancery court has no authority to decide election or political rights issues such as the ones presented in this case. Harris’s entire request for relief deals with the rules of law by which a constitutional issue is placed on a general election ballot. In seeking relief, he asked the chancery court to construe the laws governing election matters in a mandatory manner before the November 8, 1994 General Election was held so the proposed constitutional amendment would not be placed on the ballots or would not be counted or canvassed by the election officials. Obviously, the central focus of this case involves not only the direction and control of the mode of holding an election, but also affects the citizens’ rights to vote at that election. The chancery court clearly had no power to invoke its jurisdiction in such election matters or political rights issues.

When the jurisdictional problem was addressed during the oral arguments, two reasons emerged why we should not follow our traditional rule of keeping such election matters within the exclusive province of circuit court. The first concerns the provision of the Arkansas Civil Rights Act of 1993, which allows suits in equity. The second relates to our recent decision in the virtually identical case of Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), wherein the issue of jurisdiction was not raised by the parties, and we likewise failed to examine the jurisdiction of the chancellor. In Walmsley, the chancellor declined to issue an injunction directed to Secretary of State McCuen, and, on appeal, we reversed the chancellor and remanded the case for entry of the injunction which was sought. In doing so, we were in error, as the chancery court did not have jurisdiction of the election issue. There is no legitimate reason for Walmsley to stand, as doing so would be to abort the longstanding exclusivity of circuit court in election cases.

In addition, the Arkansas Civil Rights Act does not establish jurisdiction in chancery court in this case. The Act, codified at Ark. Code Ann. §§ 16-123-101 to 109 (Supp. 1994), was invoked by Mr. Harris in his quest for injunctive relief. Section 16-123-103(a) provides that a governmental entity or person who, under color of law, deprives any person of rights, privileges and immunities secured by the Arkansas Constitution, shall be liable “in an action of law, a suit in equity, or other proper proceeding . . .” Indeed the Act provides for equity jurisdiction. However, the Act is not applicable in this case. A thorough reading of the Act, and, in particular, sections 16-123-104 and 105, shows that its purpose is to protect individuals or certain groups from harassment and from discrimination in employment, use of accommodations, property and credit transactions, and voting. The suit bought by Mr. Harris does not correspond with the purposes of the Act. Therefore, he should not be allowed to use the Act to invoke chancery jurisdiction.

Obviously, the problem presented by Walmsley is of considerable concern. As mentioned, the issue of jurisdiction was not addressed by the parties in that case, nor was it recognized in our opinion. In retrospect, the jurisdictional defect should have been discovered and resolved. Ideally, the court would catch every defect in subject matter jurisdiction, whether raised by the parties or not. But the reality is that the court, despite its best efforts, has not always done so. This is particularly true considering the short time frame in which Walmsley was decided, as the court was besieged by election matters requiring expedited resolution. See Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Walmsley v. McCuen, supra; Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Lewis v. West, 318 Ark. 334, 885 S.W.2d 663 (1994); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994); Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994); Oliver v. Simons, 318 Ark. 402, 885 S.W.2d 859 (1994); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); and Wilson v. Cook, 318 Ark. 520, 886 S.W.2d 593 (1994).

Attorneys have been cautioned by this court not to infer that jurisdiction is proper when the jurisdictional issue is not part of the court’s ruling. See, e.g. Connor v. Blackwood, 176 Ark. 139, 2 S.W.2d 44 (1928). Whenever this court has had occasion to address the issue, the ruling has been unequivocal that chancery court simply has no jurisdiction in such election cases. We have also recognized that, rather than injunctive relief, mandamus is the proper remedy in such situations. State v. Craighead County Bd. of Elections Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989). Even though the relief issued in this case was termed an injunction, the request was in the nature of a mandamus, as it was directed to a state official engaged in his ministerial duties. We have steadfastly held that a court of equity cannot issue a mandamus. Arkansas State Police Comm’n v. Davis, 252 Ark. 137, 477 S.W.2d 852 (1972); State v. Craighead County Bd. of Election Comm’rs, supra; Covell v. Bailey, 296 Ark. 397, 757 S.W.2d 543 (1988); and Harber v. Rhodes, 248 Ark. 1188, 455 S.W.2d 926 (1970).

Whether the court has. without comment, allowed chancery jurisdiction to stand in certain cases in the past, the fact is that the jurisdictional defect should be recognized in this case. As we have said previously, we have not only the right, but the duty to raise this issue. Arkansas State Employees Ins. Advisory Comm’n v. Estate of Manning, supra. We cannot purposefully allow improper jurisdiction to be exercised, and our action and guidance now can serve to avoid such jurisdictional errors in the future.

In short, this court should conclude that equity is without jurisdiction, and dissolve the injunction issued by the chancellor, reverse her findings, and remand with directions that this matter be transferred to circuit court as issues still remain relating to counting and certifying the votes on the proposed amendment as well as canvassing of the vote by the Secretary of State.

Two wrongs do not make a right. We were wrong in accepting jurisdiction in Walmsley, supra. The majority now compounds our previous mistake by concluding that the Pulaski County Chancery Court had jurisdiction in this case.

I dissent.

Dudley and Glaze, JJ., join this dissent.

Tom Glaze, Associate Justice,

dissenting. Once again, this court has exhibited its callous tendency to disregard the Arkansas voters’ ability to cast a knowledgeable and intelligent vote on an issue. See Christian Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (Hays and Glaze, JJ., dissenting). The court gives no rational justification for holding the voters’ ballots cast for and against proposed amendment 2 should not be counted and certified, except that its decision in Walmsley v. McCuen, 318 Ark. 269, 885 S.W.2d 10 (1994), requires such drastic measures. Walmsley is not only wrong, it adopted a dangerous new legal principle, never previously espoused by this court, which can be easily utilized by an election official to thwart the peoples’ will at any future election. I will explain.

Relying on Walmsley, the majority court here holds that because the Secretary of State failed to publish proposed amendment 2 under the requirements of art. 19, § 22, the votes cast for and against the amendment should not be counted and canvassed. In fact, Walmsley represents the first and only Arkansas case where this court invalidated the voters’ right to cast ballots on an issue in an election merely because an election official failed to comply with the law. Since 1887, this court has adhered to the rule of law that “the voice of the people is not to be rejected for a defect or want of notice, if they have in truth been called upon and have spoken.” Wheat v. Smith, 50 Ark. 266, 7 S.W. 161 (1887).

In Wurst v. Lowery, 286 Ark. 474, 695 S.W.2d 378 (1985), this court rejected the plaintiffs’ action in circuit court, requesting the court to enjoin the holding of a wet-dry election because of technical defects in the sponsors’ petitions and a failure to publish notice of the election. In refusing the plaintiffs’ request to enjoin the election officials from counting the votes on the wet-dry issue because notice of the election had not been given the public, the Wurst court reasoned that there was no indication that the voters did not express themselves on the issue.

Arkansas law is well settled that our courts recognize that ordinarily election regulations are mandatory before the election and directory afterwards, and the courts do not favor disfranchising a legal voter because of the misconduct of another person. Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973) (emphasis added). This principle of law is best explained in Orr v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953), where the court stated the following:

To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mis take or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for this punishment will not repair the injury done to those affected by his acts. It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in full and fair expression of the public will, and, from the current of authority, tne following may be stated as the approved rule: All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to affect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.

Id. at 718 (emphasis added). See also Rogers v. Mason, 246 Ark. 1, 436 S.W.2d 827 (1969).

As mentioned previously, Walmsley is a dangerous and erroneous precedent which will permit Arkansas voters to be disfranchised merely because an election official, like the Secretary of State in this case, fails to comply with laws designed to inform them more fully on a ballot issue. If elections or ballot issues can be respectively enjoined or removed because an election officer fails to comply with election laws or ballot procedures, then political mischief by election officials can be expected from time to time. The peoples’ right to vote should not depend upon an official’s whimsey, negligence or design in failing to comply with the law. When an official does not perform his duty under the law, mandamus is available as a legal remedy to enforce his compliance. Regardless, Arkansas courts, until Walmsley, had never vitiated votes or election results in situations where voters had not been deprived of the constitutional right to express themselves in the election even though an irregularity by an election official occurred in conducting the election. See Rogers, 246 Ark. at 4, 436 S.W.2d at 829.

Here, appellee had the burden under established law to show that the Secretary of State’s failure to comply with the law in some manner thwarted Arkansas voters from expressing themselves concerning the proposed constitutional amendment 2 issue. He made no effort to meet that burden. The majority court’s decision expresses its sanctimonious opinion that Arkansas voters are unable to understand and vote on a ballot issue merely because some election official failed to publish that issue in a newspaper months in advance of the election. How preposterous! That is not, and should not be, the law. The voters’ ballots in this case should be counted, canvassed and certified, and Walmsley should be promptly overruled before that holding can be misused again to prevent Arkansas voters from expressing their will.

In conclusion, I add that Chief Justice Holt’s dissenting opinion, stating chancery court has no jurisdiction in this case, is exactly correct. There is little to add, but I would say that, until this court steadfastly requires such election matters be in one court or another, these jurisdictional issues will continue to abound. This court in Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967), intended to resolve this jurisdictional problem by making it clear that election matters were to be filed in and decided by circuit court. More recently, in Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994), and State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989), this court underscored that election matters must be decided in circuit court when it held a person must seek declaratory relief and mandamus (an at-law remedy) when challenging a candidate’s eligibility in having his name printed on the election ballot. See also Cummings v. Washington County Election Comm’n, 291 Ark. 354, 724 S.W.2d 486 (1987).

I point out here that, if appellee had been genuinely concerned about proposed constitutional amendment 2 being published by the Secretary of State, he could have readily sought mandamus relief to compel that publication. Under our case law, such action clearly lies within the jurisdiction of circuit court. Instead, appellee sought to invoke chancery court jurisdiction to request that the proposed amendment be omitted from the ballots, or alternatively, the votes cast for the amendment not be counted or canvassed. As this court said in the Craighead County Bd. of Election Comm’rs case, election matters must be promptly considered and mandamus is the proper remedy to obtain prompt judicial action. To allow persons, such as appellee here, to wait until the last minute before an election to enjoin the counting and canvassing of ballots and election returns is unfair to the many Arkansas voters who cast their votes on the constitutional issue.

Holt, C.J., joins this dissent.

       Ark. Stat. Ann. § 48-801 (1977) required the county sheriff to give the public notice of the purpose and date of such election at least ten days before the holding of the election.


author: Robert L. Brown, Justice.

text:
    Levi PHILLIPS, Cindy George and Jack Mase in Their Capacity as Carroll County Election Commissioners v. Bill EARNGEY and Joseph A. McClung
    95-367
    902 S.W.2d 782
    Supreme Court of Arkansas
    Opinion delivered July 17, 1995

      Kenneth Elser, Deputy Prosecuting Att’y, for appellants.

      John R. Elrod and Ruth A. Wisener, for appellees.
   Robert L. Brown, Justice.

This case involves an election contest brought by Bill Earngey against appellants Levi Phillips, Cindy George, and Jack Mase in their capacity as Carroll County Election Commissioners. The election at issue was for the position of alderman for the City of Eureka Springs. One candidate for the position was Bill Earngey. The other candidate was Louise Berry. Between date of filing as candidates and election date, which was November 8, 1994, Louise Berry died. The election, however, was certified by the Election Commission in her favor by a vote of 522 to 521.

On December 1, 1994, Earngey filed his complaint, alleging that more than 30 ineligible voters voted in the alderman’s election and that “all or a majority of the above voters ineligible to vote in Eureka Springs municipal elections voted for the late Louise Berry.” Earngey prayed that a hearing be held and that he be declared the winner of the election.

On December 7, 1994, appellee Joseph A. McClung moved to intervene in the election contest on the basis that the Election Commissioners could not protect his interest and that the location of one’s house outside the city limits is not determinative of one’s residency. He sought certification of a class of those similarly situated, a determination of eligibility to vote based on residency, and a declaration that Louise Berry be declared the recipient of a majority of the votes. On January 5, 1995, the Election Commissioners moved that a representative of the deceased successful candidate, Louise Berry, be joined in the lawsuit as a necessary party. The circuit court then granted McClung’s motion to intervene, apparently on behalf of himself and others similarly situated.

On January 23, 1995, the McClung class filed a motion to invalidate the election results because the Election Commissioners had failed to number the ballots, thus making it impossible to determine how the challenged voters voted. In the alternative, they sought a continuance to conduct discovery.

On March 7, 1995, the circuit court granted what it termed to be a "joint motion” to set aside the election results. The joint movants were plaintiff Bill Earngey and the McClung class as intervenors. The Election Commission was a nominal party, according to the court. The court found that the results of the Earngey/Berry contest were “so uncertain as to prevent the determination of the true winner” and that the failure of the Election Commissioners to number the ballots caused election contest procedures not to work effectively. The order then stated:

That the Court has given considerable time and research to the issue of who should participate in the newly called election and feels that the fairest and best way for the people of Eureka Springs to place in office the person of their choice is to open the filing period to any qualified candidate. The Court is mindful of the interest Mr. Earngey has in the matter, but those interests, when in conflict with those of the electorate, must be subordinated to those of the people.

The court ordered the Election Commission to conduct a special election for alderman which would be open to any qualified candidate. From that order, the Election Commissioners have appealed. Bill Earngey did not appeal.

We first consider whether the Election Commissioners have standing to prosecute this appeal. The case of Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992), is instructive on this point because it involved a deceased candidate who had prevailed in the election for justice of the peace by seven votes. The losing candidate sued the Election Commission and alleged that one voting machine had broken down in one precinct and that in another precinct eligible voters were directed to a voting machine which did not have the J.P. race on the ballot. The Election Commission, as in the instant case, responded that a representative of the deceased winner should be joined as a necessary party. No representative was joined. The Crittenden County Quorum Court then declared a vacancy in the position. The unsuccessful candidate moved for summary judgment, and the circuit court granted the motion and set aside the quorum court’s resolution declaring a vacancy. We reversed the order of summary judgment. In doing so, we discussed the role of the Election Commission:

In an election contest, as distinguished from an action seeking to void an election, we have said the election commission is not the proper party defendant, Henry v. Stuart, 251 Ark. 415, 474 S.W.2d 165 (1971), although it is a proper nominal defendant. The reason is the commission’s function is to promote fair elections, to act in a disinterested manner in disputes between candidates or their representatives, and to take neither side in a contest.

Rubens, 310 Ark. at 454, 837 S.W.2d at 467. In Rubens, we referred to the fact that election contests are governed by statute and that there was no statute governing who is a proper party defendant in such matters. We did not, however, resolve the issue of whether the Election Commission was a proper party in that case because the case was decided on different grounds. We did invite the General Assembly to enact legislation to govern fact situations like that in the Rubens case.

In the matter before us, the Election Commissioners were nominal parties in circuit court, with Earngey representing his candidacy as plaintiff and the McClung class apparently representing their own interests and purportedly the interests of the decedent, Louise Berry, in opposing Earngey’s election contest allegations. However, because the trial court found it was “prevented” from determining an election contest winner, it granted the joint motion of Earngey and the McClung class and ordered the Election Commission to call a special election open to all qualified candidates. Undoubtedly, because it assumed that the election was appropriately called, the Election Commissioners brought this appeal to determine who could qualify as candidates in the election. While the Election Commissioners, as nominal parties, do have standing to bring an appeal under these unique circumstances, the parties and the circuit court were wrong in believing that a special election could be called and held without a statutory basis for doing so. As we said in Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1988):

The Board of Election Commissioners has no power to call or hold a new election and for the court to direct it to do so would be to confer a power that does not exist. See McFarlin v. Kelly, supra; McCoy v. Story, 243 Ark. 1, 417 S.W.2d 954; Langston v. Johnson, 255 Ark. 933, 504 S.W.2d 349. Furthermore, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. McFarlin v. Kelly, supra.

268 Ark. at 115, 594 S.W.2d at 841. We conclude that the circuit court erred in directing the Election Commission to hold a special election in this case.

The election contest issue was not pursued further because the circuit court found that it could not determine a winner. But in an election contest, official election returns are considered prima facie correct and as the party contesting the election, Earngey bore the burden of offering proof to set aside the results of the election. Moreover, is well settled that there is a presumption that all votes cast at the election were lawful until their authenticity is impeached by affirmative evidence. See Rogers v. Mason, 246 Ark. 1, 436 S.W.2d 827 (1969); Pogue v. Grubbs, 230 Ark. 805, 327 S.W.2d 4 (1959); Storey v. Johnson, 182 Ark. 736, 32 S.W.2d 1068 (1930). Here, Earngey offered no proof to warrant overturning Louise Berry’s election, and, in fact, the circuit court specifically found that Earngey failed to show that he had received a majority of the votes cast in his race against Louise Berry. The circuit court, therefore, was in error in setting aside the election result without supporting proof to do so.

In sum, the circuit court voided the election without the necessary proof to do so and then called a special election without the requisite statutory authority. Until proven otherwise, Louise Berry was the winner of the election. Because of her death between date of filing and the election, a vacancy in election now exists. See Ark. Code Ann. § 7-5-315(7) (Repl. 1993). From the record, we cannot ascertain whether an officer is currently holding over in that position. See Ark. Const, art 19, § 5. Nor can we determine whether the circumstances constitute a vacancy in the alderman’s office to be filled by election of the city council. See Ark. Code Ann. § 14-44-104 (1987).

It is axiomatic that we refrain from addressing issues not raised on appeal. But because of these unique circumstances where the circuit court has acted outside of its statutory authority in directing that a special election be held and because of the public policy considerations inherent in the election of public officials, we reverse the order of the circuit court and remand for an order declaring a vacancy in the alderman’s position and for additional proceedings as may be required. We repeat what we stated in Rubens v. Hodges, supra. We invite the General Assembly to consider legislation to govern future cases like this and the procedure to be followed for vacancies in election.

Reversed and remanded.

       Wc need not decide whether the McClung class could properly represent Louise Berry’s interests because this issue was not decided below or raised on appeal.