text:
    Walter Don MAZEPINK and Janice Gail Schnitzlein v. STATE of Arkansas
    CR 98-330
    987 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Daily & Woods, P.L.L.C., by: Barry D. Neal, for appellants.

      Winston Bryant, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellants Walter Don Mazepink and Janice Gail Schnitzlein appeal the judgment of the Sebastian County Circuit Court denying their motion to suppress evidence obtained after a search of their home. Appellants argue on appeal that the trial court erred in denying their suppression motion because the officers executing the search warrant failed to knock and announce their presence in compliance with the Fourth Amendment to the United States Constitution. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a)(1). We find merit to Appellants’ argument, and we reverse.

The record reflects that on December 20, 1996, Fort Smith Police officers obtained a search warrant for Appellants’ residence. The search warrant did not contain a no-knock provision. At the time they executed the warrant, officers were aware that the house was occupied only by Appellant Schnitzlein and her adult daughter; Appellant Mazepink had been seen by surveillance officers leaving the residence shortly before the search. When the officers approached the residence, they knocked on the front door and shouted, “Police, search warrant[.]” Two or three seconds later, the officers broke open the door with a battering ram and entered the house. Once inside, officers seized approximately twelve ounces of methamphetamine and various items of drug paraphernalia.

Appellants were subsequently arrested and charged with possession of methamphetamine with intent to deliver and possession of drug paraphernalia. Appellants filed a motion to suppress the evidence seized during the search of their house on the basis that the officers’ failure to comply with the “knock and announce” requirement violated their Fourth Amendment rights. The trial court found that the officers’ actions were reasonable under the circumstances and thus denied the suppression motion. Both Appellants then entered conditional pleas of nolo contendere to the charges, pursuant to A.R.Cr.P. 24.3. Appellant Mazepink was sentenced to a total of forty years’ imprisonment, with imposition of twenty years suspended. Appellant Schnitzlein was sentenced to a total of forty years’ imprisonment, with imposition of ten years suspended. This appeal followed.

On appeal, Appellants do not contest that the police officers knocked on their door and announced their presence immediately prior to entering the house and conducting the search. They argue that the officers’ announcement nonetheless violated Fourth Amendment standards because the interval of time between the announcement and subsequent entry was not sufficient to allow the occupants an opportunity to comply with the law and permit the officers to enter prior to the officers breaking in the door and forcing their way into the home. They contend that under the guidelines recently established by the Supreme Court in Wilson v. Arkansas, 514 U.S. 927 (1995), and Richards v. Wisconsin, 520 U.S. 385 (1997), the entry into their home was unreasonable under the Fourth Amendment.

The State initially argues that the officers complied with the guidelines set out by the Court. Alternatively, the State asserts that there were exigent circumstances that would have allowed the officers to forego the “knock and announce” requirement altogether. The State argues further that even if the officers’ entry into the house was illegal, suppression of the evidence was not warranted because the officers had a valid search warrant, and the items of evidence seized would therefore have been discovered despite the illegal entry.

When we review a trial court’s denial of a motion to suppress evidence, we make an independent determination based on the totality of the circumstances, viewing the evidence in a light most favorable to the State, and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Moya v. State, 335 Ark. 193, 981 S.W.2d 521 (1998); Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). To resolve the issue presented here, we must first decide whether the officers executing the warrant complied with the “knock and announce” rules established by the Supreme Court. If we determine that the officers did not comply with those rules, we must then decide whether there were exigent circumstances that would permit them to enter Appellants’ home unannounced. Lastly, if we conclude that there were not any such exigent circumstances, we must then decide the appropriate remedy for the officers’ illegal conduct, specifically whether exclusion or suppression of the evidence is warranted. Before we begin an analysis of the merits, however, we must first address the issue of standing raised by the State.

I. Mazepink’s Fourth Amendment Rights

The State argues that Appellant Mazepink lacks standing to challenge the officers’ method of entry into his residence because he was not present at the time the officers entered the house. The State contends that the purposes of the “knock and announce” rule are to (1) inform the occupants of the premises that it is about to be legally invaded, (2) give them an opportunity to comply with the law, and (3) avoid damage to property. See Richards, 520 U.S. 385. Given those purposes, the State asserts that persons not present at the time of entry cannot claim that their rights have been infringed upon by officers who do not comply with the “knock and announce” rule. The State urges us to reject traditional Fourth Amendment analysis pertaining to the defendant’s legitimate expectation of privacy in the place searched and the items seized. Under the particular facts of this case, we are not persuaded by the State’s argument.

In Wilson, 514 U.S. 927, the Court established that the “common-law ‘knock and announce’ principle forms a part of the reasonableness inquiry under the Fourth Amendment.” Id. at 929. The doctrine of standing to invoke the Fourth Amendment exclusionary rule focuses on the defendant’s substantive Fourth Amendment rights. State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986) (citing Rakas v. Illinois, 439 U.S. 128 (1978)). Thus, we must determine:

whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.

Rakas, 439 U.S. at 140. Using this analysis, the court should not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights; his rights are violated only if the challenged conduct invaded his legitimate expectation of privacy, rather than that of a third party. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (citing United States v. Payner, 447 U.S. 727 (1980); Rakas, 439 U.S. 128)). Thus, the pertinent inquiry here is whether Mazepink manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. See McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996).

In Rakas, the Court indicated that a legitimate expectation of privacy means more than a defendant’s subjective expectation of not being discovered. The Court explained:

Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, . . . and one who owns or laufully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. . . . No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U.S. 165 (1969), where the Court held that an individual’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations.

439 U.S. at 144 n.12 (citations omitted) (emphasis added). This court has likewise recognized that where the defendant owns or possesses the property searched, he or she has standing to challenge the search under the Fourth Amendment. See, e.g., Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998); Stanley v. State, 330 Ark. 642, 956 S.W.2d 170 (1997). Here, the State does not dispute that Mazepink resided in the house that was the subject of the search. Thus, under traditional Fourth Amendment analysis, Mazepink has standing to challenge the legality of the search, which, pursuant to the Court’s holding in Wilson, 514 U.S. 927, includes the method of entry and execution of the search.

The State relies on the holdings in State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986), and State v. Papineau, 705 P.2d 949 (Ariz. Ct. App. 1985). In both cases, the appellants sought to exclude evidence obtained with search warrants on the ground that the officers did not knock and announce their presence prior to entering the premises. Both courts held that the appellants, who were not present at the time the police entered the premises, lacked standing to challenge the method of entry under the Fourth Amendment. Neither case, however, involved forced entry that resulted in damage to the appellants’ property; rather, officers entered through unlocked doors. In Papineau, 705 P.2d 949, the Arizona court explained the general purposes behind the “knock and announce” rule, underscoring the lack of destruction to the property in that case:

“The right which knock and announce rules provide occupants is the right to be warned that their privacy is about to be legally invaded.” State v. Sanchez, 128 Ariz. 525, 528, 627 P.2d 676, 679 (1981) (emphasis added). Also important are avoidance of violent confrontations attendant to unannounced entries, prevention of destruction of property, and preventing unexpected exposure of private activities. State v. Sanchez, supra; State v. Wright, 131 Ariz. 578, 643 P.2d 23 (App. 1982). Entry through an unlocked door involves no destruction of property. While those present may have felt their privacy unjustifiably invaded and while the entry may have heightened the risk of violent confrontation, only those present would have rights that would be violated.

Id. at 950 (emphasis added). Similarly, in Wilson, 514 U.S. 927, the Court explained that the common-law “knock and announce” rule “was justified in part by the belief that announcement generally would avoid ‘the destruction or breaking of any house ... by which great damage and inconvenience might ensue[.]’ ” Id. at 935-36 (quoting Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 196 (K. B. 1603)).

We decline to apply the ultimate holdings in Johnson and Papineau to the particular facts of the case at hand, because neither case involved the forced entry or destruction of the appellants’ property resulting from the entry, and because both cases were decided prior to the Court’s decision in Wilson, wherein noncompliance with the “knock and announce” rule was deemed part of the reasonableness inquiry under the Fourth Amendment.

Our analysis of this issue might have been different if there had been no occupants inside the residence at the time the police forced their entry into the home. Arguably, had no one been present at the time of entry, the officers may have had no alternative but to force entry by breaking in the door with a battering ram. Here, however, there were two persons inside the residence, and the officers were aware of this. Thus, at least one person was present to comply with the officers’ request for entry so that they could execute their search warrant. It seems irrelevant under these circumstances that Mazepink was not actually present at the time of entry; his standing to seek exclusion of the evidence obtained after the search is grounded in his right to exclude others and to be free from illegal police invasion of his privacy in his residence. Furthermore, Mazepink’s legitimate expectation of privacy in his residence encompasses the right to expect not only privacy for himself, but for his family and invitees, including his live-in girlfriend, Appellant Schnitzlein, and her daughter. See Alderman v. United States, 394 U.S. 165, 179 n.11 (1968) (holding that in cases where electronic surveillance is carried out either by means of a physical entry or by surveillance without a technical trespass, “officialdom invades an area in which the homeowner has the right to expect privacy for himself, his family, and his invitees, and the right to object to the use against him of the fruits of that invasion, not because the rights of others have been violated, but because his own were”). We turn now to the merits of Appellants’ argument concerning the validity of the officers’ method of entry into their residence.

II. Knock and Announce

As discussed previously, the Supreme Court in Wilson, 514 U.S. 927, recognized that under the common law of search and seizure, the reasonableness of the search of a dwelling pursuant to the Fourth Amendment may depend in part on whether law enforcement officers announced their presence and authority prior to entering. The Court held:

Given the longstanding common-law endorsement of the practice of announcement, we have litde doubt that the Framers of the Fourth Amendment thought that the method of an officer’s entry into a dwelling was among the factors to be considered in assessing the reasonableness of a search or seizure. Contrary to the decision below, we hold that in some circumstances an officer’s unannounced entry into a home might be unreasonable under the Fourth Amendment.
This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests.

Id. at 934. The Court left it to the lower courts to determine the circumstances under which an unannounced entry would be reasonable under the Fourth Amendment.

In Richards, 520 U.S. 385, the Court expanded upon its holding in Wilson. There, the Court rejected the Wisconsin Supreme Court’s blanket rule that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation. The Court reasoned that “[i]f a per se exception were allowed for each category of criminal investigation that included a considerable — albeit hypothetical — risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless.” Id. at 394. The Court observed that although felony drug investigations may frequently present circumstances warranting unannounced entries, that fact “cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case.” Id. (emphasis added). The Court then set forth the test for determining whether an unannounced entry was reasonable:

In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard — as opposed to a probable cause requirement — strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries. . . . This showing is not high, but the police should be required to make it whenever the reasonableness of a no-knock entry is challenged.

Id. at 394-95 (citations omitted). The Court concluded that the foregoing test should be applied by trial courts on a case-by-case basis, to determine whether the facts and circumstances of the particular entry justified dispensing with the “knock and announce” requirement.

In the present case, Appellants do not dispute that the officers knocked on the door and announced their presence and purpose prior to forcibly entering the residence. This fact does not, however, resolve the issue in this case because the Fourth Amendment not only requires officers to go through the motions of knocking and announcing, it also requires them to wait a reasonable period of time before forcing entry into the premises. A refusal to reply to the officers’ order to open the door may be inferred from silence. United States v. Mendonsa, 989 F.2d 366 (9th Cir. 1993). Correspondingly, if the occupants do not admit the officers within a reasonable period of time, the officers may be deemed to be constructively refused admittance and may then enter by force. United States v. Moore, 91 F.3d 96 (10th Cir. 1996). Thus, before officers may force entry into the premises, they must wait long enough to have been constructively refused entry by the occupants. There is no exact measurement of time required before the officers are said to have been constructively refused entry; rather, the reasonableness of the time interval has been determined on a case-by-case basis.

In Moore, 91 F.3d 96, for example, where the forced entry was virtually instantaneous with the announcement, the Tenth Circuit concluded that the time interval, which was no more than three seconds, precluded any claim that the officers had been constructively refused entrance to the premises. Similarly, in United States v. Marts, 986 F.2d 1216 (8th Cir. 1993), the Eighth Circuit concluded that a time interval of less than five seconds, absent exigent circumstances, was insufficient to comply with “knock and announce” standards. There, the court observed that the officers’ reasonable belief that firearms may have been present inside the residence, standing alone, was insufficient to establish exigent circumstances. The court explained:

This court is surely cognizant of the balancing act which law enforcement officers must undertake in the performance of their duties. In fighting the “war on drugs,” officers have every reason to be fearful of hostility and even gunfire. However, a ruling which excuses action which would otherwise constitute clear misconduct, based upon the subjective fears and beliefs of officers, would emasculate the rule, reducing it to nothing more than a “knock and enter” rule.

Id. at 1218 (citation omitted). See also United States v. Lucht, 18 F.3d 541 (8th Cir.), cert. denied, 513 U.S. 949 (1994) (holding that a wait of three to five seconds before forcing entry was insufficient absent evidence that the officers were in danger or that evidence was being destroyed); Mendonsa, 989 F.2d 366 (holding that, absent exigent circumstances, a forced entry after only three to five seconds of silence following the officers’ announcement was not reasonable and required suppression of the evidence); United States v. Nabors, 901 F.2d 1351 (6th Cir.), cert. denied, 498 U.S. 871 (1990) (holding that instances in which officers make a forced entry seconds after announcing their presence and authority will be carefully scrutinized to determine whether there is compliance with 18 U.S.C. § 3109); People v. Polidori, 476 N.W.2d 482 (Mich. Ct. App. 1991), cert. denied, 506 U.S. 905 (1992) (holding that the time interval of six seconds between announcement and entry was insufficient to comply with Michigan’s “knock and announce” statute or the Fourth Amendment); State v. Bates, 587 P.2d 747 (Ariz. 1978) (holding that, absent exigent circumstances, an interval of three to five seconds was insufficient to demonstrate that the officers had been constructively refused).

On the other hand, in United States v. Markling, 7 F.3d 1309 (7th Cir. 1993), cert. denied, 115 S. Ct. 1327 (1995), the Seventh Circuit held that a time interval of seven seconds between announcement and entry was sufficient under the circumstances. Specifically, the court found significant the facts that (1) there was no noise coming from the apartment that may have made it difficult for the occupant to hear the officers, (2) the room was small, and (3) two women, who had just come from the apartment after purchasing cocaine from the defendant, told the officers that the defendant would likely flush the remaining drugs down the toilet. See also United States v. Jones, 133 F.3d 358 (5th Cir.), cert. denied, 118 S. Ct. 1854 (1998) (holding that under the particular circumstances of that case, including the readily destroyable nature of drugs, fifteen to twenty seconds was sufficient time for the officers to wait before entering the premises); United States v. Knapp, 1 F.3d 1026 (10th Cir. 1993) (holding that constructive refusal was shown where police waited ten to twenty seconds after announcement without receiving a verbal or physical response); United States v. Gatewood, 60 F.3d 248 (6th Cir.), cert. denied, 116 S. Ct. 546 (1995) (holding that approximately ten seconds between announcement and entry was reasonable).

To summarize, the foregoing cases reveal that the determination of whether a search is reasonable under the Fourth Amendment depends in part on whether the officers’ entry into a residence was preceded by a knock on the door and an announcement of the officers’ presence and purpose. Of course, not every execution of a search warrant will require a knock and announcement prior to entry. The test is whether the police have a reasonable suspicion that knocking and announcing their presence would be dangerous or futile, or that it would inhibit the officers’ effective investigation of the crime, such as resulting in the destruction of evidence. Mere technical compliance with the “knock and announce” requirement is not sufficient where there is not a reasonable amount of time between the announcement and forced entry, unless exigent circumstances, including danger or harm to officers or others and the destruction of evidence, were known to the officers at the time of entry.

Here, testimony of the executing officers did not demonstrate any exigent circumstances that would justify their forcing entry into Appellants’ residence after having waited only two to three seconds. Detective Wayne Barnett testified that the door to the residence was closed, as were the window shades. As soon as he knocked on the door, he yelled, “Police, search warrant[.]” A couple of seconds later, another officer hit the door with the battering ram, forcing the door open. The time that elapsed between the announcement and the strike of the battering ram was a mere two or three seconds. Barnett stated that he heard no suspicious noises coming from the residence as he approached it, and that he had no reason to believe that anyone inside the residence might be attempting to escape or destroy the evidence. He stated further that he had no reason to believe that there were guns or weapons inside the residence, or that any of the occupants had any violent or assaultive tendencies; he was aware that the only two individuals inside the residence at the time were two unarmed females. Barnett explained that, in fact, they had handled this search warrant according to standard procedure, the same way in which they handle all drug warrants.

Detective Charles Kerr supported Barnett’s version of events, stating that a few seconds expired between the time the officers announced their presence and the time they forced open the door with the battering ram. Kerr also echoed Barnett’s testimony that this particular search warrant was served the same way that they normally execute search warrants. Likewise, Officer Monty McMillen, the officer who actually used the battering ram, testified that the officers yelled and announced themselves as he hit the door. McMillen indicated that just a few seconds passed between the knock on the door and the time that he forced open the door with the battering ram.

We conclude that under the circumstances, the time interval between the officers’ announcement and their forced entry into the residence was insufficient to demonstrate that they were constructively refused entry into the house by the occupants. There were no exigent circumstances present in this case that would have permitted the officers to make such a simultaneous forced entry. Specifically, there was no indication that the occupants posed any danger to the officers, or that they had any violent tendencies. We are not persuaded by the State’s assertion that syringes inside the residence posed a danger to officers upon entry. Syringes, while capable of spreading deadly diseases, would pose little, if any, danger to the officers, who entered the residence with their guns drawn. Similarly, there was no evidence that any wait by them would have been futile, as the officers had conducted surveillance on the residence and knew that there were two persons present inside. Moreover, there was no evidence that in this particular case the occupants may have attempted to destroy the evidence, for example, by flushing it down the toilet. Evidence that Schnitzlein was caught by officers in the act of attempting to hide drugs under a pillow is irrelevant to our review. Such information cannot be considered in determining the reasonableness of the entry because it was not known to the officers at the time of their entry.

Furthermore, the fact that the confidential informant told the officers that there were drugs in the bedroom does not support the State’s claim that the drugs were capable of being easily destroyed. Without the benefit of further evidence, such as the location of the bathroom in relation to the bedroom where the drugs were kept, any determination regarding destruction of the drugs in this case would be speculative at best. Testimony from Barnett and Kerr as to their general experience in serving drug search warrants, that suspects often attempt to destroy the evidence once they become aware the police are there, is not sufficient to demonstrate any exigent circumstances in this particular case. Were we to uphold the officers’ actions in this case based solely on what generally has occurred in other drug searches, we would be effectively recognizing a presumption that in all drug searches the suspects will attempt to destroy evidence if the police announce their presence. Such a presumption is prohibited by the decision in Richards, 520 U.S. 385. Accordingly, we conclude that the officers’ conduct violated the Fourth Amendment’s protection from unreasonable searches and seizures. We must now determine the appropriate remedy for such violation.

III. Application of the Exclusionary Rule

The State urges us to adopt a remedy other than suppression of the evidence pursuant to the Fourth Amendment exclusionary rule. The State asserts that because the purpose of the exclusionary rule is to deter police misconduct, it would be inappropriate to exclude the evidence in this case because the decision to act illegally (not to knock and announce before forcing entry) was not motivated by a desire to gather evidence by any means other than a search warrant issued upon probable cause. We agree with Appellants, however, that exclusion is the only practical remedy for such police misconduct.

Although the Supreme Court has not directly addressed the issue of the appropriate remedy for violations of the “knock and announce” rule within the context of the execution of a valid search warrant, various federal circuit courts and state courts have. For instance, in Marts, 986 F.2d 1216, the Eighth Circuit rejected the government’s good-faith defense, under United States v. Leon, 468 U.S. 897 (1984), and held that the only appropriate remedy in that case was exclusion of the evidence. The court explained:

The Leon decision does not extend to the instant case, where there is no indication that the officers’ conduct was objectively reasonable. Rather, there was a clear violation of the knock and announce rule, without the presence of exigent circumstances. The Fourth Amendment limitations are designed to deter precisely this kind of conduct. The incentive for officers to operate within those limitations in the future is provided by our application of the exclusionary rule.

Id. at 1219. Similarly, in United States v. Bates, 84 F.3d 790, 795 (6th Cir. 1996), the Sixth Circuit held that “unless exigent circumstances exist, the failure of state law enforcement officials to knock and announce their presence will render the evidence procured during the ensuing execution of a warrant inadmissible.” See also Moore, 91 F.3d 96 (affirming the district court’s suppression of the evidence where police violated the “knock and announce” rule); United States v. Becker, 23 F.3d 1537 (9th Cir. 1994) (holding that evidence obtained during execution of a search warrant should be suppressed due to the officers-’ failure to knock and announce where no exigent circumstances were present); Knapp, 1 F.3d 1026, 1030 (holding that “[e]vidence seized must be suppressed as the fruit of an unlawful search if the officers failed to comply with the knock and announce statute”) (citing United States v. Ruminer, 786 F.2d 381 (10th Cir. 1986)); Polidori, 476 N.W.2d 482, 485 (holding that “[t]here can be no dispute that evidence seized in violation of the Fourth Amendment is subject to the exclusionary rule”) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).

Furthermore, the Supreme Court has applied the exclusionary rule to suppress evidence obtained from an unlawful arrest predicated on the arresting officers’ failure to comply with the “knock and announce” rule. In Miller v. United States, 357 U.S. 301 (1958), the Court explained that although it was mindful of society’s reliance on law enforcement agencies to achieve law and order:

[I]nsistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application. . . . Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house.

Id. at 313 (footnote omitted).

We are persuaded by the foregoing decisions and the analysis offered by the Court in Miller. We thus conclude that, under the particular facts and circumstances of this case, exclusion of the evidence is the only appropriate remedy. As discussed at length above, there were no exigent circumstances present at the time the officers entered Appellants’ residence that would justify their failure to knock and announce their presence before breaking in the door with a battering ram. Although there is no dispute that the search warrant here was issued upon probable cause, the executing officers nonetheless violated Appellants’ Fourth Amendment rights when they forced their way into the residence without first complying with the “knock and announce” rule. The presence of an otherwise valid search warrant does not lessen the degree of the violation. In this respect, we concur with the reasoning offered by the Court in Richards, 520 U.S. 385, 393 n.5, that “[w]hile it is true that a no-knock entry is less intrusive than, for example, a warrantless search, the individual interests implicated by an unannounced, forcible entry should not be unduly minimized.” Accordingly, we conclude that the appropriate remedy for the misconduct in this case is suppression of the evidence obtained as a result of the search.

We reject the State’s argument that exclusion of the evidence is not appropriate because the evidence would have been inevitably discovered by legal means (the search warrant) despite the illegal entry. We also reject the State’s argument that there was an independent source for the evidence, namely the previously procured search warrant. These same arguments were offered by the government in Marts, 986 F.2d 1216, and were rejected by the Eighth Circuit.

In Marts, the government argued that even if the officers had waited an additional period of time (longer than five seconds), the exact same search would have been conducted and the exact same evidence would have been seized. Nonetheless, the court concluded that suppression of the evidence was mandated, stating that “[[longstanding constitutional principles regarding unlawful search and seizure bar the government’s use of the fruits of an unlawful search simply because the officers ‘would have found it anyway.’” Id. at 1219 (footnote omitted). The Marts court also rejected the theory advanced by the dissent that the evidence should be admissible under the independent-source rule. The dissenting judge relied on Segura v. United States, 468 U.S. 796 (1984), as does the State in this case. Although the court initially rejected application of the independent-source rule on the ground that it was not raised below, it addressed the merits of the theory:

Under the dissent’s application of the independent source rule, the knock and announce rule codified under § 3109 would be meaningless since an officer could obviate illegal entry in every instance simply by looking to the information used to obtain the warrant. Under the dissent’s reasoning, officers, in executing a valid search warrant, could break in doors of private homes without sanction.

Marts, 986 F.2d at 1220. The court then distinguished the facts of Segura, where the police entered the apartment without a warrant in order to secure it until a warrant could be obtained with previously known information. Although the initial entry was invalid, the search itself, pursuant to the subsequently obtained warrant, was determined to be reasonable because it was based on an independent source that provided probable cause for issuance of the warrant. The Eighth Circuit concluded:

The significant factor in Segura is that the search warrant and the evidence seized under it were totally unrelated to the illegal entry. In the present case the search warrant, although legally obtained, was executed in violation of § 3109, and its execution was directly connected to the illegal entry.

Id. (emphasis added).

We find that reasoning sound and directly applicable to the facts of this case, where the search warrant, although based on probable cause and otherwise legally obtained, was executed in violation of the Fourth Amendment “knock and announce” rule, and its execution was directly connected to the illegal entry. We thus conclude that exclusion of the evidence is the appropriate remedy for the officers’ misconduct in this case. We concur with the Eighth Circuit that were we to hold otherwise, the “knock and announce” rule would be rendered meaningless. Accordingly, we reverse the trial court’s denial of Appellants’ motions to suppress, and we remand the case to the trial court to vacate the Appellants’ conditional pleas of nolo contendere pursuant to Rule 24.3(b).

       Many of the federal cases, including Marts, have analyzed the officers’ actions within the context of 18 U.S.C. § 3109, as opposed to that of the Fourth Amendment. The Supreme Court resolved any apparent conflict between the “knock and announce” requirement in § 3109 and that of the Fourth Amendment in United States v. Ramirez, 523 U.S. 65 (1998), holding that § 3109 was merely a codification of the common law, and that the decisions in Wilson, 514 U.S. 927, and Richards, 520 U.S. 385, serve as guideposts for analysis under either provision.

       Both Barnett and Kerr indicated that Schnitzlein’s daughter was located near the front door at the time they entered. Arguably, she may have been attempting to comply with the law and permit the officers to enter.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Brodrick Resean JONES v. STATE of Arkansas
    CR 98-309
    984 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K Hill, Deputy Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Brodrick Resean Jones, was convicted of capital murder and criminal attempt to commit aggravated robbery and sentenced to life in prison without parole. He appeals his judgment of conviction on five grounds. We affirm.

On the evening of February 11, 1996, Jones and his friend, Darrell Haire, went out to “do some drinking and riding” in Little Rock. They stopped at a Stax Store in southwest Little Rock for gasoline and a bag of chips and at two other gasoline stations, including a Texaco station, ostensibly to buy beer. Next, they drove east on Cantrell Road and saw the car of a friend, Moses Waiters, parked at the Subway sandwich shop. Jones testified that he asked Haire to stop at Subway so he could buy some marijuana from Waiters. Waiters was not working at Subway, but his girlfriend, Letetia Rummel, was. At Jones’s request, Rummel called Waiters, and Jones spoke with him about doing an “inside job” where the participants would steal money from Subway. Waiters testified that he told Jones not to commit the theft because it was not worth it. At some point, Haire joined Jones and Rummel inside the Subway establishment and put his gun to Rummel’s head. The last thing that Waiters heard on the phone was Rummel telling him: “There’s a guy standing here. He has a gun to my head.” Haire, according to Jones, shot her, and she died from a contact gunshot wound to the head. Jones testified to witnessing the shooting but insisted that he had no plans to rob the Subway and that he did not have any idea that Haire would kill Rummel.

Jones and Haire left together, and Jones spent the night at the home of his ex-wife, Cynthia Polk. The next day he turned himself in when he heard that Little Rock police officers were looking for him. He stood trial in August, 1997, and was convicted of capital felony murder and criminal attempt to commit aggravated robbery. He was sentenced to life imprisonment without parole for the murder and fifty years for the aggravated robbery attempt, to be served concurrently.

I. Sufficiency of Evidence

Jones argues that there was insufficient evidence to convict him for criminal attempt to commit aggravated robbery and because that is an essential element of the capital felony murder charge, his conviction must.be reversed. For his second sufficiency point, he claims that the evidence was insufficient to prove that he aided or abetted in the commission of the homicidal act.

Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before other points are raised. See Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the fight most favorable to the State. See Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. See Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. See id.

A person commits robbery if “with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.” Ark. Code Ann. § 5-12-102 (Repl. 1997). For aggravated robbery, a person must be: (1) armed with a deadly weapon or represent by word or conduct that he is so armed; or (2) inflict or attempt to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-12-103 (Repl. 1997). To be guilty of an attempted felony, a person must (1) purposefully engage in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or (2) purposefully engage in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense, whether or not the attendant circumstances are as he believes them to be. See Ark. Code Ann. 5-3-201 (Repl. 1997). A person’s conduct is not a substantial step unless it is strongly corroborative of the person’s criminal purpose. See id.

Viewing the evidence in the light most favorable to the State, there was sufficient evidence to convict Jones of the underlying felony of attempted aggravated robbery. First, there is evidence that Jones and Haire surveilled several places to rob before finally settling on the Subway shop. Janice Johnson, the clerk at the Texaco station, testified that Jones came into her station about 10:40 p.m. on February 11, 1996, and asked for beer. She explained that she could not sell beer to him because it was Sunday. She became nervous because Jones had his hands in his pockets and was moving his hands and looking around and acting like he was in a hurry. She went to the back of the station and pretended that her manager was there. When she returned, she told Jones that the manager refused to sell him beer and added, “You’re not going to get out of here. There’s cameras everywhere.” When Haire came into the store, Johnson testified that Jones told him, “There’s nothing here for us. Let’s go.” The two whispered to each other and left.

There is also Jones’s own testimony to the investigating Little Rock police detective, Keith Nicholas, and to Moses Waiters. According to both men, Jones asked Waiters about an “inside job” at Subway. Waiters testified that he told him not to try anything, to which Jones responded, “We’re not going to hurt her. We just want the money.” The plural “we” more than indicates that Jones was working with Haire and that he intended to commit robbery. Jones also told Waiters that he had already driven around the Subway oudet and there were not any police officers in sight. Waiters then heard a struggle over the telephone after which Letetia Rummel said another guy was holding a gun to her head. The victim was shot point-blank in the head. There was also the testimony of Cynthia Polk that Jones attempted to disguise himself the day after the crime and that he had told her Haire had just shot someone.

We conclude that there was sufficient evidence that Jones intended to rob the Subway shop and that Rummel was killed in furtherance of that plan. We further conclude that the prosecution did not have to prove that Jones aided in the murder itself for a felony-murder conviction. That he did not participate in the murder was an affirmative defense that Jones could and did raise under Ark. Code Ann. § 5-10-101(b) (Repl. 1997). We discuss this point under the next issue.

II. Shifting Burden of Proof

Jones first urges this court to reconsider its prior cases and hold that Ark. Code Ann. § 5-10-101(b) (Repl. 1997), is violative of the Due Process Clause because it shifts the State’s burden of proving every element of the offense beyond a reasonable doubt to the defendant. Section 5-10-101(b) provides:

It is an affirmative defense to any prosecution under subdivision (a)(1) of this section for an offense in which the defendant was not the only participant that the defendant did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission.

Section 5-10-101(a)(l) is the capital felony murder statute, and it provides for liability where a defendant, acting with another, commits or attempts to commit robbery, and in the course of and in furtherance of that felony, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

In Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983), cert. denied, 465 U.S. 1105 (1984), this court was presented with this precise issue of shifting the burden of proof. We held that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all the elements of the offense charged but that it does not require the prosecution to prove the nonexistence of all affirmative defenses. In holding as we did, we emphasized that none of the elements of the § 5-10-101 (b) affirmative defense, that is, that the defendant was not the only participant in the murder, did not commit the homicidal act, and did not in any way solicit, command, induce, procure, counsel, or aid in the homicide, were elements of the crime of capital felony murder. We further emphasized that the defendant did not have to prove the affirmative defense under § 5-10-101 (b) until the prosecution had met its burden of proof on the charged offense. This court reiterated this holding in Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

Jones contends that this court should now reconsider the issue and overrule the Fairchild and Moss decisions in light of two United States Supreme Court cases. See Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979). In Sandstrom, the Court framed the issue to be whether in a case where intent is an element of the crime charged, the jury instruction that the law presumes a person to intend the ordinary consequences of his voluntary acts violated the Fourteenth Amendment’s requirement that the prosecution prove every element of a criminal offense beyond a reasonable doubt. The defendant in Sandstrom was charged with an intentional homicide in that he “purposefully or knowingly” caused the victim’s death. The Court held that this presumption that a person intends the ordinary consequences of his actions conflicted with the overriding presumption of innocence conferred on an accused. The Court’s reasoning was that upon a finding of proof of one element of the crime (causing death) and of facts insufficient to establish the second element (the voluntariness and ordinary consequences of the defendant’s actions), the jury could have reasonably concluded that it was directed to find against the defendant on the element of intent. Thus, because of the presumption that one intends the natural consequences of his actions, the prosecution was not required to prove every element of the crime beyond a reasonable doubt.

The situation in the instant case is categorically different. Capital felony murder does not require deliberate or purposeful intent as an element of the offense. Moreover, in the instant case, we are not faced with a presumption that shifts the burden of proving the elements of the charged offense to the defendant. Instead, after the State proves all the elements of the charged offense of capital felony murder beyond a reasonable doubt, the defendant may prove as an affirmative defense under § 5-10-101(b) that he was not the trigger man or that he did not in any way assist in the murder.

The second case relied upon by Jones is Francis v. Franklin, supra. The defendant in Francis was charged with deliberate murder, not felony murder. The Court instructed the jury that, “[t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” Francis, 471 U.S. at 311. The Court held that this instruction created a mandatory presumption because its language was in the nature of a command. The Court concluded that this part of the jury instruction directed the jury to presume an essential element of the offense, the intent to kill, and that this presumption in effect shifted the burden of proof and deprived the defendant of due process. In short, the issue in Francis was precisely the issue in Sandstrom. Again, intent is not an element of capital felony murder in the case at bar.

The appellant also contends that our decision in Moss v. State, supra, misconstrued the Supreme Court’s holding in Patterson v. New York, 432 U.S. 197 (1977) (clarifying its earlier decision of Mullaney v. Wilbur, 421 U.S. 684 (1975)). We disagree. In Patterson, the issue was an affirmative defense to murder allowing the defendant to show he “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” Patterson, supra, at 198. In Moss, we noted the similarity between this affirmative defense and the one at issue in the case at bar. Contrary to Jones’s assertion, we see nothing in our Moss opinion that misconstrues either Patterson or Mullraney.

To summarize, our statute and caselaw are clear that it is not necessary for a conviction for capital felony murder for the prosecution to show that Jones took an active part in the killing so long as he participated in the robbery. See Ark. Code Ann. § 5-10-101 (a)(1) (Repl. 1997); Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995). But his participation in the murder is simply not an element of capital felony murder. It fell to Jones to prove, as an affirmative defense, that he was not the trigger man or did not in any way aid in the murder. See Ark. Code Ann. § 5-10-101(b) (Repl. 1997). The jury was so instructed, but Jones obviously failed to convince the jury of his affirmative defense.

Jones’s real grievance appears to be with the concept of felony murder where intent or action to commit murder is not required on the part of an accomplice so long as that accomplice participated in the underlying felony. We decline the invitation to overrule our prior cases and hold that the issue raised is without merit.

III. Accomplice Liability

Jones next contends that the trial court erred in refusing to give three proffered jury instructions regarding accomplice liability. The trial court instructed the jury on accomplice liability using model instruction AMCI2d 401:

In this case, the State does not contend that Brodrick Jones acted alone in the commission of the offense of capital murder and attempted aggravated robbery. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense.
An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of an offense:
Solicits, advises, encourages or coerces the other person to commit the offense; or
Aids, agrees to aid or attempts to aid the other person in planning or [committing the offense.]
A person acts with “purpose” with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

This instruction has its genesis in Ark. Code Ann. § 5-2-403 (a) (Repl. 1997).

a. AMCI2d 401

Jones first offered the following instruction, which is based on Ark. Code Ann. § 5-2-403 (b) (Repl. 1997), as opposed to § 5-2-403(a):

In this case, the State does not contend that Brodrick Jones acted alone in the commission of the offense of Capital Murder and Criminal Attempt to Commit Aggravated robbery. A person is criminally responsible for the conduct of another person when he is an accomplice in the commission of an offense. An accomplice is one who directly participates in the commission of an offense or, when causing a particular result is an element of an offense, acting with respect to that result with the kind of culpability sufficient for the commission of that offense, he:
(1) Solicits, advises, encourages, or coerces the other person to engage in that conduct causing the result; or
(2) Aids, agrees to aid or attempts to aid the other person in planning or engaging in the conduct causing the result. (Emphasis added.)

Jones argues that the issue was whether Haire and he acted together to cause the murder of Letetia Rummel and that the trial court should have modified the model jury instruction to state that he, as the accomplice, must have had a sufficient culpable mental state to commit the murder. Our caselaw is clear that a party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. See Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997). This court has held that a trial court is required to give a jury instruction if there is some evidence to support it. See Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). A trial court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. See Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998).

The State correctly points out that a § 5-2-403 (b) modification would have inaccurately implied that Jones was required to act and possess the intent to murder Letetia Rummel in order to be found guilty of capital felony murder. In Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), we underscored the point that it is settled law that felony murder simply requires that a death be caused in the course of committing a felony such as rape, kidnapping, or robbery. Under the capital felony murder statute, it is simply not necessary for the State to show that the defendant took an active part in the killing itself so long as he assisted in the commission of the underlying crime — in this case, aggravated robbery. See Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995); Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989). Again, in felony murder, a defendant need only have the requisite intent to commit the underlying felony, not the murder. See Dixon v. State, supra.

Accordingly, a reasonable interpretation is that § 5-2-403(a) applies in the felony-murder context when an accomplice has the purpose of promoting or facilitating the underlying felony (here, aggravated robbery) that results in death, whereas § 5-2-403(b) applies when the issue is whether the accomplice intended the results of his actions with criminal culpability, that is, intended the death itself. The trial court could well have determined that instructing the jury on § 5-2-403 (b) would have confused the jurors and misled them into believing that Jones needed to act purposefully to cause the murder in order to be guilty of capital felony murder as an accomplice. That is not the law because the State needed only to prove that Jones acted purposefully in the attempted aggravated robbery in order to be guilty of capital felony murder for the resulting death. We hold that there was no abuse of discretion by the trial court in denying Jones’s requested modification of AMCI2d 401.

b. Section 5-2-406

The proffered § 5-2-406 instruction reads:

When two (2) or more persons are criminally liable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that is consistent with his own mental culpability or with his own accountability for an aggravating fact or circumstance.

This court has previously held that although the proffered instruction is a correct statement of the law, it is not a model jury instruction and, further, that it is unnecessary to give it when its substance is covered by other instructions. See Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990) (citing Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980)); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

We do not view the proffered instruction as being relevant to this case. Section 5-2-406 addresses the situation where two or more defendants are charged and tried together and where the degree of each defendant’s culpability may differ. See, e.g., Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985) (no error in finding one codefendant guilty of being an accomplice to a lesser included offense while holding another guilty of the greater offense). Haire and Jones were not tried together and so far as we know the liability of Haire has not been decided.

c. Mere Presence Instruction

The proffered “mere presence” instruction reads:

Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice.

This instruction was not a model instruction at the time of the trial although a similar instruction was apparendy adopted by this court’s Criminal Instruction Committee and sent to the Michie Publishing Company in August 1997, just after the trial but the same month of the trial. This court has held in the past that a trial court committed no error in refusing to instruct the jury with the “mere presence” language. See Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996). We observed in those cases that it is implicit in the accomplice liability instruction, which states that a party must solicit, advise, encourage, coerce, aid, agree to aid, or attempt to aid the principal to commit the crime, that mere presence or acquiescence at the crime scene is not enough. Accordingly, even though the Criminal Instruction Committee has now adopted a “mere presence” instruction, our caselaw is clear that refusal to instruct on mere presence is not reversible error.

There was no abuse of discretion in the refusal to give any of these jury instructions.

IV. Impeachment of Biased Witness

Jones next claims that the trial court erred in not allowing him to impeach state witness Cynthia Polk with evidence that the prosecution had filed drug charges against her, and that they were pending. According to Jones, this could have shown that she was biased. Polk was Jones’s ex-wife, whom he stayed with the night of the murder. She testified on direct examination by the defense after being recalled that Jones told her Haire had shot someone and that Jones seemed scared when he came over. She further stated that Jones had used one of her hair pieces and a hat the following day when they went out to buy marijuana. The State elicited testimony during its cross-examination that Jones was scared but not crying. Polk further testified that she concluded he was not remorseful because he was not crying. There was no disagreement between the parties that there were pending charges against Polk set for trial a few weeks later.

Arkansas Rule of Evidence 607 provides that the credibility of a witness may be attacked by any party, including the party calling him. And Arkansas Rule of Evidence 611 limits cross-examination to the subject matter of the direct examination and to matters of credibility. This court has stressed the importance of allowing wide latitude with respect to the admission of evidence relevant to the bias of the witness. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993); Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986). By the same token, a trial court is given wide discretion in evidentiary rulings. See Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997); Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995).

Jones argues that the trial court’s ruling violated his state and federal constitutional rights to confront his accusers. See Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). We agree that disallowing the impeaching evidence was an abuse of discretion by the trial court. However, the State counters that even if this was error, there is still overwhelming evidence of Jones’s guilt and that this issue should be decided under a harmless-error analysis. We agree.

Although some constitutional rights are so fundamental that their violation can never be deemed harmless error, see Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992), others are subject to the harmless-error analysis. See Chapman v. California, 386 U.S. 18 (1967). To conclude that a constitutional error is harmless and does not mandate a reversal, this court must conclude beyond a reasonable doubt that the error did not contribute to the verdict. See Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995); Allen v. State, supra; Vann v. State, 309 Ark. 303, 831 S.W.2d 126 (1992). In Winfrey v. State, supra, we held that the erroneous denial of a defendant’s opportunity to impeach a witness is subject to a Chapman harmless-error review.

In applying the Chapman analysis, we excise the unimpeached testimony of Cynthia Polk and determine whether the remaining evidence shows beyond a reasonable doubt that the error did not contribute to the verdict. See Chapman v. California, supra. The salient points of Polk’s testimony were:

• Haire and Jones came to her home one night in February 1996 and Jones spent the night with her.
• Jones told her Haire had shot someone.
• Jones was upset but not remorseful because he was not crying after the homicide.
• The next morning Jones put on a wig and hat when he and Polk went out to get marijuana.
• Polk told Jones to turn himself in after seeing a police report on the murder, and she contacted the Little Rock Police Department about Jones.

It is the testimony about Jones’s lack of emotion over the homicide that he argues is the most damaging aspect of Polk’s testimony.

We first note that some points made by Polk were actually helpful to Jones, the primary one being that Haire was the trigger man. There is, too, the fact that other points made by Polk in her testimony were also testified to by police detective Keith Nicholas and by Jones himself. Thus, the testimony was cumulative to the statements by Polk. Finally, Polk’s testimony about Jones being upset after the killing was first elicited by defense counsel when he recalled Polk as a witness for the defense. On cross-examination, the prosecution extracted from Polk that Jones was scared but not crying or remorseful. In short, it was the defense that first delved into the area of Jones’s demeanor and, thus, opened the subject for cross-examination.

But even assuming that the error in disallowing Polk’s impeachment was not cured, we conclude that the error was harmless beyond a reasonable doubt. The issue boils down to whether Polk’s assessment that Jones was not remorseful because he was not crying was so pivotal that it contributed to the jury’s verdict. We are hard pressed to conclude that this was the case. Accordingly, we hold that though the trial court abused its discretion in disallowing impeachment, the error was harmless and did not contribute to the verdict in light of the other evidence.

V. Other Claims

a. Photograph

Jones next contests the admission into evidence of a photograph depicting the deceased victim lying in a pool of blood on the floor at the Subway outlet on grounds that it was unreasonably prejudicial. This court has recited the well-settled law regarding the introduction of inflammatory or gruesome photographs:

The mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. (Citation omitted.) Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. (Citation omitted.) Of course, if a photograph serves no valid purpose and could be used only to inflame the juror’s passion, it should be excluded.

Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997) (quoting Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994)).

Other acceptable purposes warranting admissibility are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the positions in which the bodies were discovered. See Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997). We have further held that the nature and extent of a victim’s wounds are relevant to a showing of intent, which may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wounds. See Camargo v. State, supra; Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996).

Even if photographs are inflammatory or prejudicial in the sense that they show human gore repulsive to the jurors, they are nevertheless admissible at the discretion of the trial court if they help the jury understand the accompanying testimony. See Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). It is only when an inflammatory or gruesome photograph is without any valid purpose that it should be excluded.

In the instant case, the State offered a close-up photograph of the victim on the floor where she died. It is difficult to evaluate the photo because the photograph in the record is a black-and-white photocopy of the original. The State offered the picture during Waiters’s testimony and asked him if he recognized the person in the picture. Waiters answered that it was a picture of his fiancee. The trial court ruled that Waiters was certainly entitled to identify his girlfriend who was the victim of the crime. The State contends that the photo was properly admitted because it clearly assisted the witness and trier of fact in identification in addition to the victim’s condition and the type of wound. We agree. There was no reversible error on this point.

b. Lesser included offense

Jones also contends that the trial court erred in refusing to instruct the jury on second-degree murder, which requires that the defendant knowingly cause the death of another. We held in Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996), that second-degree murder with its element of knowingly causing a death was not a lesser included offense of felony murder. This is so, we wrote in Brown, because purpose or deliberation to cause the murder is not an element of felony murder. Jones now asks us to overrule the Brown decision. The reasoning is sound in that case, and we decline to do so.

c. Underlying felony

Jones proffered an instruction on the underlying felony of attempted aggravated robbery which would have deleted the reference to “an accomplice.” As a result, the jury would have been instructed that for a finding of guilt for attempted robbery Jones himself and not Haire had to he armed and had to have attempted to inflict harm on Letetia Rummel. That is not the law. The capital felony murder statute provides that “[a]cting alone or with one (1) or more other persons,” he commits attempted robbery or some other associated felony. Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1997). That language clearly contemplates acting with an accomplice. Moreover, Jones does not contend that AMCI2d 1001 A, as given, was an erroneous instruction of the law but rather that the “accomplice” language was surplusage. There was no abuse of discretion by the trial court on this point.

The record has been reviewed under Ark. Sup. Ct. R. 4-3(h) for other reversible error, and none has been found.

Affirmed.

Smith, J., not participating.

       Jones does not raise the issue on appeal of whether a separate sentence for the underlying felony was appropriate. See Dixon v. State, 319 Ark. 347, 891 S.W.2d 59 (1995). Nor was it raised before the trial court, based on the record.

       The bracketed phrase was omitted from the record, apparently in error.

       After reviewing the proofs of the instruction changes sent by Michie Publishing Company, the Committee finally approved the “mere presence” instruction on September 18, 1997.


author: Annabelle Clinton Imber, Justice.

text:
    Jeffrey L. SLATON v. Teresa A. SLATON
    98-1158
    983 S.W.2d 951
    Supreme Court of Arkansas
    Opinion delivered January 28, 1999
    [Petition for rehearing denied March 4, 1999.]

      Davis & Watson, P.A., by: Charles E. Davis, for appellant.

      Hardin, Jesson & Terry, by: J. Rodney Mills; and Annie Powell, for appellee.
   Annabelle Clinton Imber, Justice.

This is the second appeal arising from the divorce of Jeffrey and Teresa Slaton. In this appeal, the appellant, Jeffrey Slaton, contends that the trial court erred in numerous respects when it determined the amount that the appellee, Teresa Slaton, was in arrears for child-support payments. We reverse and remand.

Jeffrey and Teresa Slaton were divorced on September 26, 1991. The court awarded Jeffrey custody of the two children born of the marriage, ordered Teresa to pay $300-a-month child support, and gave Teresa visitation rights. On the same day, Teresa filed a “Motion for Reconsideration” in which she claimed that the divorce decree was “contrary to the preponderance of the evidence.” The numerous motions and opinions that were entered thereafter were fully discussed in our first opinion in this matter. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997) (Slaton I). Suffice it to say that on March 5, 1992, the trial court entered an order granting Teresa and Jeffrey joint custody of their two children and dispensing with Teresa’s obligation to pay child support. Jeffrey became the primary custodial parent, and Teresa was given visitation rights.

In October of 1993, Teresa filed a motion for sole custody of the children due to changed circumstances. On March 9, 1994, the trial court denied her request for custody, and made the following ridings:

3. That on February 24, 1992, an Order was entered by this Court setting forth specifically under paragraph twelve, “(That neither party shall harass or make derogatory remarks concerning the other party in the presence of the minor children, nor shall either party harass the other party at all in any form or fashion.)”.
4. That in the Order of February 24, 1992, paragraph thirteen was specifically set forth, stating that, “(Should either party cause a disruption ... of the relationship between the children and the other party, this Court will consider a change of custody. . .)■”.
5. That the Plaintiff is to refrain from any language in front of the children designed to violate said February 24, 1992 Order, or influence or harass the children in any manner.
* * *
8. All prior orders entered herein, not in conflict with the within, are still in full force and effect.

On August 7, 1995, Teresa filed another motion for sole custody of her two minor children. On December 26, 1995, the court gave Teresa sole custody of the children and granted Jeffrey visitation rights. The court subsequently ordered Jeffrey to pay $80 a week in child support beginning on December 8, 1995.

Sometime thereafter, Jeffrey appealed the March 5, 1992 order that granted the parents joint custody of the children and dissolved Teresa’s obligation to pay child support. On October 16, 1997, we handed down our opinion in Slaton I, where we held, among other things, that:

For these reasons, we find that the trial court did not have jurisdiction to enter the March 5, 1992 order modifying custody and child support. We reverse and remand for the trial court to determine the amount that Teresa owes in past-due child-support payments. This determination should take into account how long the September 26, 1991 child-support order remained in effect, in view of various orders entered subsequent to March 5, 1992, that may or may not have incorporated by reference the terms of the March 5, 1992 order.

Slaton I, supra.

Pursuant to our opinion, the trial court held a second hearing to determine if any subsequent orders incorporated by reference the terms of the void March 5, 1992 order. On April 20, 1998, the trial court found that the March 9, 1994 order denying Teresa’s request for a change in custody incorporated by reference the terms of the March 5, 1992 order that gave the parties joint custody of the children and extinguished Teresa’s obligation to pay child support. Specifically, the court said, “Even though several orders have been entered since the March 5, 1992 order that indirectly have reference to that order, one order in particular, not only incorporates by reference the terms of the March 5, 1992 order, but quotes directly from that order in several particulars.” The court then quoted paragraphs three, four, five, and eight of the March 9, 1994 order. Accordingly, the court ruled that Teresa was in arrears from September 26, 1991, the date of the divorce decree, until March 5, 1992, the date of the void order granting the parties joint custody and dispensing with Teresa’s obligation to pay child support. The trial court subsequently entered a judgment against Teresa in the amount of $3,521.22 for child-support arrearages, interest, attorney’s fees, and costs. The court allowed Teresa’s judgment to be offset by $2000, which is the amount the court determined Jeffrey owed in child-support arrears from November 14, 1997 to May 1, 1998. From this order, Jeffrey filed a timely notice of appeal.

I. Incorporation by Reference

In our first opinion in this matter, we said that the trial court should “take into account how long the September 26, 1991 order remained in effect, in view of various orders entered subsequent to March 5, 1992, that may or may not have incorporated by reference the terms of the March 5, 1992 order.” Slaton I, supra. Although an order rendered in the absence of jurisdiction is void ab initio and thus cannot be incorporated by reference into a subsequent order, see Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998); Office of Child Support Enforcement v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997); Barnhart v.City of Fayetteville, 321 Ark. 197, 900 S.W.2d 539 (1995), our instruction to the trial court in Slaton I became the law of the case, and the trial court could not have varied it or judicially examined it for any purpose other than carrying it into execution. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979).

Hence, the only question before us now is whether the trial court erred when it determined, pursuant to our holding in Slaton I, that the March 9, 1994 order incorporated by reference the child-custody and support rulings contained in the March 5, 1992 order. Chancery cases are reviewed de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. RAD-Razorback Ltd. Partnership v. B. G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id.

We have not previously established criteria for determining when an order incorporates by reference the terms of another order or judgment. However, we have held in numerous probate cases that a writing is incorporated by reference into a will if the intention to incorporate by reference is clear from the language of the document, and the writing to be incorporated is sufficiently described and identified. See Gifford v. Estate of Gifford, 305 Ark. 46, 805 S.W.2d 71 (1991). Likewise, we said in Land v. Arkansas Dep’t of Health, 282 Ark. 191, 667 S.W.2d 651 (1984), that a “rule or regulation, like a statute, is not considered as a reference regulation unless the unequivocal and inflexible import of the terms of the statute manifest the intent that it be considered as such.”

The March 9, 1994 order does not meet this criteria. Although the March 5, 1992 order is specifically mentioned in paragraphs three, four, and five of the March 9, 1994 order, those paragraphs have nothing to do with child support or custody. The eighth paragraph merely declared that “[a]ll prior orders entered herein, not in conflict with the within, are still in full force and effect.” We conclude that such boilerplate language does not specifically incorporate the terms of the March 5, 1992 order. For these reasons, we hold that the trial court’s conclusion that the March 9, 1994 order incorporated the child-support and custody terms of the March 5, 1992 order was clearly erroneous. Accordingly, we reverse the trial court’s order and hold that Teresa is in arrears for child-support payments that accrued between September 26, 1991 and December 8, 1995.

II. Estoppel

Next, Jeffrey contends that the trial court erred in applying estoppel after we rejected a similar argument made by Teresa in Slaton I. In its April 20, 1998 order, the trial court commented on Jeffrey’s failure to raise the issue of subject-matter jurisdiction in a more timely manner. The trial court’s statements, however, were not rulings, but instead were statements likely made for the joint purposes of expressing displeasure with our opinion in Slaton I and Jefirey’s actions. At any rate, the statements cannot be construed as rulings in fight of the court’s later proclamation that there was no need to “do violence to the rule of law involving Jurisdiction.” Hence, we conclude that the trial court based its determination of arrearages on incorporation by reference and not upon equitable principles.

Moreover, the parties were precluded from rearguing the issue of estoppel by the law-of-the-case doctrine. As we have explained numerous times in the past, the law-of-the-case doctrine provides that on second appeal the decision of the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Barnhart, supra,; Vandiver v. Banks, 331 Ark. 386, 962 S.W.2d 349 (1998). For example, in Vandiver, supra, we would not allow the appellant to raise the issues of collateral estoppel and res judicata because the matters were resolved in the first appeal. Vandiver, supra. In reply, the appellant contended that the law-of-the-case doctrine did not apply because she nonsuited and refilled the case upon remand. Id. We rejected this argument because “any plaintiff losing an appeal could avoid the appellate court’s mandate in a case merely by voluntarily dismissing the suit upon remand.” Id.

In Slaton I, we rejected the equitable argument that Jeffrey was estopped from challenging the validity of the March 5, 1992 order because he failed to raise the argument sooner, and the parties relied on the order for several years. Slaton I, supra. Specifically, we held not only that Teresa failed to assert the affirmative defense of estoppel in her answer to Jeffrey's motion to declare the order void and set arrearage, but we also held that there was nothing in the record to suggest that estoppel became an issue by either express or implied consent of the parties. Id. Hence, our decision in Slaton I is the law of the case with regard to the issue of estoppel. Similar to Vandiver, Teresa tried to resurrect her equitable arguments by raising them in a “Motion for Reconsideration” that was filed on February 20, 1998. However, as in Vandiver, a party cannot resurrect or reassert arguments that were dispensed with the first time on appeal. Accordingly, we find no merit to Jeffrey’s second point on appeal.

III. Ark. Code Ann. §§ 9-12-314 and 9-14-234

Next, Jeffrey contends that the trial court’s ruling that the March 9, 1994 order incorporated by reference the provision of the March 5, 1992 order was contrary to the plain language of Ark. Code Ann. §§ 9-12-314 and 9-14-234. We, however, do not need to address this argument in light of our holding in section I of this opinion.

IV. Credit for Previously Paid Support

Next, Jeffrey contends on appeal that he is entitled to a credit for the child-support payments he paid to Teresa from July 13, 1990 until October 27, 1991. On July 13, 1990, the trial court entered a temporary order giving Teresa custody of the children and ordering Jeffrey to pay $80 a week in child support. On September 26, 1991, the trial court entered a divorce decree giving Jeffrey custody of the children and requiring Teresa to pay $300 a month child support. The final divorce decree superceded the temporary order. Smith v. Smith, 236 Ark. 141, 365 S.W.2d 247 (1963); Lewis v. Lewis, 222 Ark. 743, 262 S.W.2d 456 (1953). When the court stayed the divorce decree on September 30, 1991, the superseded temporary order was not revived. Accordingly, the trial court was correct when it held that Jeffrey was under no obligation to pay child support to Teresa from September 26, 1991 until December 9, 1991. Hence, any payments that Jeffrey made during this time were voluntary payments that cannot be recovered. See Vandiver, supra; Goins v. Sneed, 229 Ark. 550, 317 S.W.2d 269 (1958).

Furthermore, we note that any arguments about payments that were made or should have been made prior to the March 1992 order were matters that-could have and should have been raised in the first appeal of this case. Hence, as mentioned previously, these matters are barred from reconsideration under the law-of-the-case doctrine. Vandiver, supra. Accordingly, we affirm the trial court’s ruling that Jeffrey is not entitled to a credit for child-support payments that he made from September 26, 1991 until October 27, 1991.

V. Effect of the Stay

Finally, the trial court held that Teresa was in arrears from September 26, 1991, until March 5, 1992. On appeal, Teresa contends that she was not required to pay child support from September 30, 1991, the day the court stayed the divorce decree, until December 26, 1995, the day the court granted Teresa custody and ordered Jeffrey to pay child support. Teresa argues that on September 30, 1991, the trial court indefinitely stayed the September 26, 1991 order requiring her to pay child support, and that the stay has never been formally lifted.

In this argument Teresa is really asking us to reverse, in part, the trial court’s ruling that she owed child support from September 26, 1991, until March 5, 1992. In Arkansas Dep’t of Fin. & Admin. v. Pharmacy Assocs., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998), we explained that a “cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court.” It is well settled that we will not consider an appellee’s request for affirmative relief when the appellee has failed to file a notice of cross-appeal. Arkansas Dep’t of Fin. & Admin, supra; Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). Because Teresa failed to file a notice of cross-appeal, we refuse to address this issue.

For these reasons, we reverse the trial court’s order and hold that Teresa is in arrears for child-support payments that accrued between September 26, 1991 and December 8, 1995, and we remand for a hearing and determination that is consistent with this opinion.

Reversed and remanded.

       In its March 20, 1998 order, the trial court explained that in the March 9, 1994 order “where the date of February 24, 1992, is used, it should be kept in mind that was the date of the hearing with the order growing out [sic] that hearing being entered on March 5, 1992, the significant date referred to by the Supreme Court in its last paragraph quoted herein above.”