author: George Rose Smith, Justice.

text:
    Elgie SANDERS v. STATE of Arkansas
    CR 81-51
    626 S.W. 2d 366
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982

      Kenneth C. Coffelt, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Three defendants, Shells, Thompson, and Sanders, were jointly charged, first, with the aggravated robbery of three police officers, committed with a deadly weapon, and second, with first-degree battery in the shooting of two of the officers in the course of the robbery. Shells entered a negotiated plea of guilty and, as recommended by the prosecutor, received two concurrent 20-year sentences. Thompson and Sanders were tried together before a jury. Thompson was convicted only of the battery, with a five-year sentence. The appellant Sanders was convicted of both offenses. The court directed that his sentences of 40 years for aggravated robbery and 20 years for first-degree battery run consecutively. This appeal by Sanders comes to us under Rule 29 (1) (b).

Upon conflicting testimony the jury could have found that the three undercover officers, seated in their car, negotiated a purchase of marihuana from Shells and Thompson, who left briefly to get the marihuana. When they returned, accompanied by Sanders, both Shells and Sanders had pistols. Sanders pointed his weapon at an officer and ordered all three to get out of the car. Shots were fired almost at once by both sides, with Sanders and two of the officers being hit. Despite their wounds the officers subdued their assailants and took them into custody. The facts sustain the conviction for aggravated robbery, which as now defined does not require that anything be taken from the victim. Ark. Stat. Ann. § 41-2102 and § 41-2103 and its Commentary (Repl. 1977).

The trial judge correctly allowed the prosecutor to ask the j urors on voir dire whether they could consider the entire range of penalties, the questioning being materially different from the procedure disapproved in Haynes v. State, 270 Ark. 685, 606 S.W. 2d 563 (1980). The court properly permitted Thompson’s earlier written statement to be used to impeach his testimony, after both he and Sanders had testified. Nelson v. O’Neil, 402 U.S. 622 (1971). Under the ruling in Nelson there was no denial of Sanders’s right of confrontation or of cross-examination.

Sanders argues that his sentence is so much more severe than those of the other two defendants that he should be granted a new trial. Except in capital cases we do not attempt to compare sentences. The legislature is aware that no two crimes and no two criminals are just alike; so a wide range of punishment is often provided to enable the sentencing judge or jury to select an appropriate penalty. Here there is really very little basis for comparison. Shells cooperated with the prosecution by negotiating a plea and testifying for the State. His negotiated plea did not fix a maximum penalty for his codefendants, any more than one plaintiff’s compromise settlement in a civil case limits a coplaintiff’s possible recovery. As to Thompson, the jury could have found that although he was involved in the attempted sale of drugs that led to the shooting, he did not have a weapon and did not actively take part in the attempt to rob the officers. The jury imposed what they doubtless considered to be just sentences, as they were free to do. Foxworth v. State, 263 Ark. 549, 566 S.W. 2d 151 (1978).

Affirmed.

Adkisson, C.J., disqualified.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Christie McLEMORE v. STATE of Arkansas
    CR 81-77
    626 S.W. 2d 364
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982

      McArthur é Lassiter, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of first degree murder and assessed her punishment at fifty years imprisonment. She first contends that the evidence was insufficient to support a finding of premeditation and deliberation as required by Ark. Stat. Ann. § 41-1502 (Repl. 1977).

The victim was the paramour of the appellant for a period of two years prior to the victim’s death. They shared an apartment from August, 1978, until July 1, 1979, when the appellant moved out. Shortly afterwards, a child was born and eventually the appellant filed a paternity suit against the victim.

Two days prior to the killing the appellant and a friend purchased the pistol used in the shooting. They went to a river bank and she practiced using the gun. On the day of the crime the appellant, after calling the victim’s office repeatedly inquiring about his presence, went there and asked to see him. Her demeanor was described as hostile and demanding. After being admitted to his office, the victim and appellant left together presumably to get his car, which was parked at a nearby hotel parking lot. Soon thereafter, shots were heard and the victim was immediately found in a pedestrian tunnel leading to the parking lot suffering from five gunshot wounds in the lower groin and upper thighs. The first shot, which proved to be the fatal one, was at point blank range. The others were fired at a distance of three to five feet. The paths of the bullets indicated the victim was either falling as he was hit or shot by someone kneeling while he was standing. No weapon was found about the victim. The appellant was observed running from the tunnel. Two parking garage attendants testified that the appellant, on several occasions, had come to the garage where the victim parked his car to see if his car was at the garage. Two weeks prior to the shooting these attendants heard the appellant say, “I’m going to kill him,” when she inquired about the presence of the victim’s car. When the appellant was arrested shortly after the shooting, the murder weapon was found in her possession.

Appellant does not dispute the shooting. According to her, she acted in self-defense when the victim approached her in a threatening manner. She claims he was angry with her because she had filed the paternity suit against him and she had had her friend call his wife and tell her he had purchased furniture for her. The jury resolved the conflicting theories against the appellant, and we must affirm if there is any substantial evidence to support the jury’s finding. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975). In Stout v. State, 263 Ark. 355, 565 S.W. 2d 23 (1978), we said:

Premeditation and deliberation and intent may all be inferred from the circumstances, such as the character of the weapon used, the manner in which it was used, the nature, extent and location of the wounds inflicted, the conduct of the accused and the like.

See also Hamilton v. State, 262 Ark. 366, 566 S.W. 2d 884 (1977). Here, viewing the evidence in the light most favorable to the appellee, as we must do on appeal, we hold that the jury’s finding is amply supported by substantial evidence. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978); and Witham v. State, supra.

Appellant next contends that the trial court erred in giving the state’s instruction on second degree murder. The instruction, AMCI 1503, provided alternate theories by which the appellant could be convicted of second degree murder. Appellant objected and argues that this could have confused the jury in their deliberation between first and second degree murder and was therefore prejudicial. In our Per Curiam of January 29, 1979, we said the applicable AMCI must be used unless it does not accurately state the law. The appellant’s position would be unfair to the state as evidence could have supported either of the theories given. See Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979). Further, it appears here that the alternate theories would be to the appellant’s advantage inasmuch as it provided the jury with double opportunity to find appellant guilty of the lesser offense. Appellant has demonstrated no prejudice.

Affirmed.

Hays, J., not participating.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Jimmy WILLIAMS, by Marie WILLIAMS, His Mother and Next Friend v. THE BOARD OF EDUCATION FOR THE MARIANNA SCHOOL DISTRICT
    81-72
    626 S.W. 2d 361
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982

      Charles Q. Grimm, of East Ark. Legal Services, Inc., for appellant.

      Daggett, Daggett & Van Dover, by: Jimason J. Daggett, for appellee.
   Darrell Hickman, Justice.

The Circuit Court of Lee County, Arkansas, refused to issue a writ of mandamus to the Board of Education for the Marianna School District to reinstate the appellant as a student. Jimmy Williams, the appellant, was expelled from school for excessive absenteeism and sought the writ. We find no error and affirm the judgment.

Williams, a sixteen year old, was a sophomore in the Marianna schools. He had missed his physical science class fourteen times in one semester and was expelled. He went before the principal, superintendent and school board objecting to the decision.

On appeal from the circuit court decision, Williams raises four arguments for reversal: That the court failed to make written findings of fact and conclusions of law as requested by Williams; that he was denied due process; that state law does not permit a school board to dismiss a student for nonattendance; and, that the school board failed to follow its own rules and that the rules are vague, indefinite, unreasonable, and, therefore, unconstitutional. The only issue of substance raised is the one regarding the school rules and policy.

It is argued that the rules only permit a student to be expelled if he has missed twelve days, not twelve classes, and that the school officials wrongly expelled him. The school rules were not all a part of the record, but we do have before us provisions of those rules which read:

Attendance: A pupil is expected to attend every day of school and to attend every class to which he is assigned during each day of school. An account must be made of each instance wherein a pupil fails to meet this expectation.
A pupil may miss no more than twelve (12) days per semester excused or unexcused from any class and receive credit for course work.
Excessive absenteeism is sufficient grounds for expulsions of any pupil. Excessive absenteeism shall be defined as failure to attend school a sufficient number of days to be eligible for credit in course work.

These provisions obviously permit a student to be expelled for what Williams undisputably did; he missed one course over twelve times and, for that reason he could not receive credit for the course, and he could be expelled. Williams admitted that he missed the classes stating that he could not understand the course. He stayed on the school grounds during that class period, usually watching football practice. He argues that the rules mean that he had to miss school a total of twelve days without attending any classes before he could be expelled. Williams actually was absent only four full days but he had missed the physical science class ten other times.

We cannot say that the school rules or their interpretation by school authorities are unconstitutionally vague or indefinite. Certainly, we cannot say that the court was wrong in denying a writ of mandamus on such a discretionary matter.

The other issues are also without merit. Before trial the appellant filed a motion for written findings of fact and conclusions of law. The motion was not renewed and there is no evidence that such a request was made to the court during or after the hearing. The court, orally from the bench, elaborated on why the writ was denied. We cannot find any prejudicial error on this issue.

The argument that Ark. Stat. Ann. § 80-1656 (Repl. 1980) does not permit a student to be expelled for nonattendance was precisely the argument in Fortman v. Texarkana School Dist. No. 7, 257 Ark. 130, 514 S.W. 2d 720 (1974). We held that that statute allows schools and school boards to make reasonable rules and regulations necessary to orderly administration.

Williams and his mother met with the principal. Williams’ mother met with the school superintendent. Williams and his mother appeared before the school board with a lawyer and a record was made of that hearing. There was an abundance of due process in this case.

The decision to dismiss Williams was one within the power of the board. This court does not have the power to substitute its judgment for that of such a board. Safferstone v. Tucker, 235 Ark. 70, 357 S.W. 2d 3 (1962); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S.W. 538 (1923). We can only determine whether the judgment was arbitrary, capricious, or contrary to law. We cannot so find in this case.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Once again I respectfully dissent from the majority opinion in a school district case. I think the majority has overlooked the fact that the appellant had a constitutional right to a free public education as evidenced by Art. 14 § 1 (as amended by Amendment No. 53) to the Constitution of Arkansas which states:

Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education. . . .

The appellant also had a statutory right to attend public schools pursuant to Ark. Stat. Ann. § 80-1501 (Repl. 1980) which states:

The public schools of any school district in this State shall be open and free through completion of the secondary program, to all persons ... domiciled in the district. . .

Furthermore, he was under statutory compulsion to attend school as required by Ark. Stat. Ann. § 80-1502. There is even a penalty for failure to comply with the compulsory attendance law.

School boards have the authority and indeed are required to make specific rules to govern the operation of schools within their districts. Ark. Stat. Ann. § 80-1516 provides in part:

The directors of any school district may suspend any person from school for immorality, refractory conduct, insubordination, infectious disease, habitual uncleanliness, or other conduct that would tend to impair the discipline of the school, or harm the other pupils . . .

The majority opinion sets out part of the school policies but failed to set out a very important portion which states:

When a pupil has missed a total of five (5) days during any semester, the principal will conduct an investigation to determine the cause of absenteeism. The parents will be notified and informed of the results of the investigation. If the pupil is found guilty of truancy, he will be suspended to Rebound School for three (3) days. The same procedure will be followed when a pupil has missed a total of ten (10) days of school in any semester.

It is obvious that the school board policy contemplated the expulsion of a student who missed a total of 12 school days. It is true that that portion of the policy quoted by the majority states that excessive absenteeism is sufficient grounds for expulsion. It further states that absenteeism shall be defined as failure to attend school a sufficient number of days to be eligible for credit in course work. There is no policy that if a student misses 12 classes in any one course he might be subject to expulsion from the entire school. I think the principal very candidly admitted that the school did not follow its own policy in that appellant was given neither the five-day nor the ten-day warning as required. The principal stated:

I think it would have been different if I had performed an attendance check in time to catch Jimmy before he missed too many days. Jimmy was never assigned to Rebound School for his attendance problem. . . .

It is obvious from the Constitution and laws of the state of Arkansas, as well as the school board policies, the relevant portions of which are set out above, that appellant had both a statutory and constitutional right to attend public schools. He could, of course, be expelled for the remainder of any term for any of the reasons set out in Ark. Stat. Ann. § 80-1516. If we consider the board policy to be a proper one under the laws of the state of Arkansas, the appellant is entitled to be reinstated. The over-all reading of the policy shows that it was intended that a student be subject to expulsion after missing 12 days of school. The record clearly shows appellant had missed only four days of school before he was suspended on March 3,1981. He had missed about 14 of his physical science classes. However, he remained in school at the time he skipped these classes and continued to attend his other classes. No doubt, if the school authorities had warned him, as required by the policies, after five absences from his physical science class that he was subject to expulsion if he missed 12 classes, he would have changed the course of his conduct.

Even though appellant probably received procedural due process, he certainly did not receive substantive due process. The undisputed evidence shows he never missed 12 days from school. A student does not lose all of his constitutional rights when he enters upon the school premises. In my opinion, the appellant has been denied both his statutory and constitutional rights to attend public school and perhaps been sent upon the road of life to an unproductive and unrewarding type of existence into which he may be ill-equipped to function as a result of his expulsion from school.


author: Per Curiam.

text:
    Paul HARRIS and Paul HARRIS d/b/a PAUL HARRIS SCHOOL OF REAL ESTATE v. ARKANSAS REAL ESTATE COMMISSION; D. L. D’AUTEUIL, William A. PAYNE, and Carolyn AMBRUST as Commissioners; Bennie C. BEARD as Chairman, Paul LIPSMEYER as Secretary and William ETTER as Hearing Officer
    81-161
    627 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982
    [Rehearing denied February 16, 1982.]

      Ralph M. Patterson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Nelwyn Leone Davis, Asst. Atty. Gen., for appellee.
   Per Curiam.

This is an appeal from a circuit court judgment affirming the decision of the Arkansas Real Estate Commission to revoke appellant’s real estate broker’s license. In the process of appeal, the appellant has filed two volumes entitled “Abstract and Brief of Appellant.” However, the appellant has not abstracted the transcripts of testimony of the hearings. Instead, he has reproduced a major part of the transcripts. A reprint of a transcript is not an abstract. Rule 9 of the Arkansas Supreme Court sets forth in detail the manner in which the appellant is to make an abstract of the record. For a discussion of abstracting see Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977). Rule 9 (d) does not permit the reproduction or substitution of the record in place of an abstract. We have consistently held that this flagrant violation of Rule 9 (d) calls for summary affirmance. Sellers v. Harvey, 222 Ark. 804, 263 S.W. 2d 86 (1953); Gray v. Ouachita Creek Watershed Dist., 239 Ark. 141, 387 S.W. 2d 605 (1965); Smith v. Pond, 259 Ark. 564, 534 S.W. 2d 769 (1976).

Affirmed pursuant to Rule 9 (e) (2).


text:
    Larry Donnell WASHINGTON v. STATE of Arkansas
    626 S.W. 2d 361
    Supreme Court of Arkansas
    Opinion delivered January 11, 1982
   Per Curiam.

Appellant, Larry Donnell Washington, by his attorney, has filed for a rule on the clerk.

His attorney, Richard W. Byrd, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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

Justice Purtle would grant the motion finding no fault on the part of counsel.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Larry D. BAXTER v. STATE of Arkansas
    CR 81-101
    626 S.W. 2d 935
    Supreme Court of Arkansas
    Opinion delivered January 18, 1982
    [Rehearing denied February 16, 1982.]

      Art Anderson and Mart Vehik, of McMath if Leather-man, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant the petition.

   Richard B. Adkisson, Chief Justice.

Appellant, Larry D. Baxter, was convicted and sentenced to five years for aggravated robbery and three years for theft of property. The sentences were set to run concurrently. The Court of Appeals, by a three to three vote, affirmed the trial court, holding that the stop, arrest, and subsequent search of appellant’s car and seizure of objects in the car were lawful. Baxter v. State, Court of Appeals, not designated for publication (September 9, 1981). On petition for review, we affirm.

Shortly before 4:00 p.m. on March 27, 1980, two men with pistols entered M & M Jewelers on Barrow Road, Little Rock. Jewelry cases were broken and jewelry items were placed in two sacks. The clerks were made to lie face down on the floor and were sprayed with mace.

The facts in part as set out by Judge Cloninger of the Court of Appeals are:

“At 4:05 p.m. Officer Porterfield of the Little Rock Police heard the police broadcast of the robbery. One of the robbers was reported to be carrying a Colt .45 automatic and wearing a rubber Halloween mask, green army fatigues, blue jeans and army boots; the other subject was reported to possess a .357 Magnum, and was wearing a rubber Halloween mask, green army fatigues, blue jeans and tennis shoes. Both men were described as white males about six feet tall.

“Officer Porterfield immediately went to check out Kanis Park, which is less than one-fourth mile from M & M Jewelers. The area between the store and Kanis Park is a wooded and grassy area, and intermittent rain had been falling. There were no leaves on the trees and the officer could see the entire park area. The officer met appellant’s car, eastbound in the park away from the direction of M 8c M Jewelers.”

Only appellant was visible in the car and no other person or vehicle was observed in the park. The officer turned his vehicle around, followed appellant’s car, and stopped it at 4:10 p.m. to ask the person if he had seen anybody in the park. The officer stopped 15 feet behind appellant’s car. Appellant then came back to the police car and identified himself as Larry Baxter. Appellant was wearing wet jeans and muddy tennis shoes. The officer told appellant that there had just been a robbery in the area and asked if he had seen anybody in the park. Appellant said he had seen no one. Because of appellant’s wet jeans and muddy tennis shoes, the officer asked him for his driver’s license. The officer also wanted appellant’s identification in case detectives wanted to contact him later as a witness. As appellant was removing his driver’s license from his wallet, the officer noticed his hands shaking. The officer then told appellant that he was going to look in his car, at which time appellant told the officer that he had two friends in his car.

The officer found two men matching the description of the reported robbers lying on the seats of the car. One of the men had on muddy black boots and wet jeans, and the other had on muddy tennis shoes and wet pants. The officer arrested the three and placed them in the back of his police car.

Two other officers arrived and observed through the window of appellant’s car a green army type jacket, two pillowcases filled with something, and a wig. The items were removed from the car. Upon examination it was found that the pillowcases contained 192 different items of jewelry, a .357 Magnum, and a .45 automatic.

The crucial issue in this case is whether the initial stop of appellant was valid under state and federal law. If the stop is found to be valid, the logical progression of events which followed resulted in probable cause for the arrest. The subsequent search of appellant’s car after the arrest was a search incident to a lawful arrest and valid under the recent case of New York v. Belton, 450 U.S. 1028, 101 S. Ct. 2860 (1981).

Cases regarding the police authority to make investigatory stops based upon reasonable suspicion that a vehicle or a person is involved in criminal activity are inapplicable to the stop at issue here. See U.S. v. Cortez, 449 U.S. 411 (1981) and Terry v. Ohio, 392 U.S. 1 (1968). Also inapplicable to this stop are cases in which the police have reasonable cause to believe that the person stopped is a material witness. Rule 3.5, Ark. Rules Grim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977).

Involved here is the question of the extent of permissible interruption a ci tizen must bear to accommodate a law enforcement officer who is investigating a crime. The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have the authority to approach civilians.

There is nothing in the Constitution which prevents the police from addressing questions to any individual. See Terry v. Ohio, supra. However, the approach of a citizen pursuant to a policeman’s investigative law enforcement function must be reasonable under the existent circumstances and requires a weighing of the government’s interest for the intrusion against the individual’s right to privacy and personal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. People v. De Bour, 40 N.Y. 2d 210, 352 N.E. 2d 562 (1976).

Rule 2.2, Ark. Rules Grim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977) is a codification and an accomodation of these interests:

Rule 2.2 Authority to Request Cooperation.
(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request.

We pointed out in Meadows v. State, 269 Ark. 380, 602 S. W. 2d 636 (1981) that this Rule could be used in investigating crime, although it was found inapplicable to the facts in that case because the officers detained persons who were suspected of engaging in criminal activities.

The circumstances of this case bring us to the conclusion that this stop was reasonable. The scene of the crime was located approximately a quarter of a mile from Kanis Park. The robbers were last seen leaving the rear door of the jewelry store which placed them in a wooded area adjoining Kanis Park. The time sequence was such that a person in Kanis Park about the time that appellant was stopped likely would have seen the robbers — there being no one else in the park on this rainy afternoon. The intrusion into appellant’s right of privacy and freedom of movement was minimal as compared to the governmental interest in investigating a very serious class A felony offense. The manner and intensity of the interference was slight and significantly casual. The officer stated that he only wanted to ask appellant if he had seen anyone in the park. The initial encounter was not an aggressive one as evidenced by the fact that the officer allowed appellant to walk back to his police car immediately after stopping him.

The circumstances leading up to the arrest were sufficient to establish probable cause for the arrest — muddy tennis shoes, wet jeans, shaking hands, and appellant’s statement that two other persons (who were not visible) were in the car. Having made a lawful custodial arrest of the occupants of the automobile, the officer was justified, as a contemporaneous incident of that arrest, in searching the passenger compartment of the car. The police may also examine the conténts of any containers found within the passenger compartment; the container may be searched whether open or closed since the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have in the containers. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a limited search incident to the arrest requires no additional justification. New York v. Belton, supra.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent because the majority has denied appellant his rights as guaranteed by the Fourth Amendment to the United States Constitution. I feel, first, that the stop and arrest of the appellant should have been held to be illegal and second, that the search and seizure of appellant’s automobile was not done within constitutional bounds. I would like to address myself to these points individually.

THE STOP AND ARREST

Officer Porterfield received a radio broadcast at 4:05 p.m. on the day of the robbery, which included a description of two suspects. No car was mentioned in the broadcast. On a hunch, he went directly to Kanis Park, met a vehicle, turned, overtook it, flipped on his blue lights, and pulled over appellant who was driving a bright orange Vega. Officer Porterfield testified that appellant was not breaking any laws or acting unusual in any way and did not fit the description of the robbers. As a matter of fact, the observed vehicle had an opportunity to turn away from the police car at an intersection, but the car passed directly by the police car and the police officer and appellant made eye contact with one another. The officer was not the least bit suspicious of appellant at this time. Nevertheless, Officer Porterfield turned around, switched on his blue lights, gave chase and pulled the vehicle over. The officer’s explanation was that the driver might be a possible witness to a robbery which had taken place perhaps an hour before (3:15 p.m. according to one witness) and at a place a quarter mile away.

Ark. Stat. Ann. § 43-432 (Repl. 1977) deals directly with the stopping of witnesses to a felony, the pertinent part of which reads:

Whenever a law enforcement officer has reasonable cause to believe that any person found at or near the scene of a felony is a material witness to the felony, he may stop that person and after having identified himself he must advise the person of the purpose of the stopping and may then demand of him his name, address, and any information he may have regarding the felony. . . .

Based on review of the record, I can find nothing to substantiate the majority’s expressed opinion that the stop was based on reasonable suspicion. To the contra, the officer was not even remotely suspicious that appellant was a suspect nor was there evidence that he suspected appellant was a material witness. The stop violated the appellant’s Fourth Amendment rights against unreasonable searches and seizures and unreasonably infringed on his right as a motorist to be free from arbitrary disruption or unrestricted lawful travel. When a police officer accosts an individual and by show of authority restrains his liberty short of arrest, the stop becomes a “seizure” of the person. Such a seizure must then be tested for reasonableness under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1 (1968). Arkansas Rules of Criminal Procedure, Rule 2.1, defines reasonable suspicion:

“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

Our statutes have also set limitations on the right of a police officer to stop and search. Ark. Stat. Ann. § 43-434 (Repl. 1977) states in part:

This Act (§§ 43-429 — 43-436) shall not be construed to:
(1) Permit an officer to stop just any passerby . . .
(2) Permit the stopping and searching of any person found in the vicinity of a felony scene, merely because he happens to be there.

There is no doubt in my mind that Officer Porterfield’s blue-light chase and pull-over of the first vehicle he observed in Kanis Park upon the pretense that the occupant (who did not fit the description of either robbery suspect) was somehow a witness to a crime committed almost an hour before and a quarter mile away was nothing short of an unreasonable and patently violative intrusion of appellant’s Fourth Amendment rights. There were other less intrusive means readily available to Officer Porterfield if he had indeed been concerned with obtaining information from the appellant. In United States v. Ward, 488 F. 2d 162 (9th Cir. 1973), the court stated:

Clearly, the narrow exception of Terry v. Ohio, supra, which allows investigative stops on grounds short of probable cause cannot be stretched so far as to allow detentive stops for generalized criminal inquiries.

The court there held that where less intrusive means were available, it then followed that “there were no exigent circumstances warranting the extreme nature of a vehicular stop by a siren on a public street.”

As far as the subsequent arrest is concerned, not only would it be illegal as the product of an illegal stop, but also, even standing alone, Officer Porterfield lacked the necessary probable cause to effect it. Officer Porterfield cited three factors for his justification of arresting the appellant: (1) that appellant was wearing tennis shoes, (2) that is pants legs appeared to be “. . . a little bit wet,” and, (3) that his hands shook when he produced his driver’s license. However, he knew none of these things until after he stopped appellant and, as a matter of fact, did not even mention shoes or wet pants in his police report.

Although the officer admitted that the appellant did not meet the description of the robbers, except for the fact he was wearing tennis shoes, he did not dismiss him. When appellant stated to the officer that there were two other persons in the car, Officer Porterfield pulled his pistol and kept the appellant covered while he approached the Vega.

I cannot allow the majority to say in effect that “the end justifies the means” as seems to be the case here. Even though Officer Porterfield’s hunch turned out to be fruitful, it cannot be said that either the stop or the arrest was based on probable cause. The reason we have set standards is in order that people may be secure in knowing what their rights are. An intrusion on anyone’s rights in this regard is a diminution of everyone’s rights. The majority opinion will allow almost any stop and subsequent arrest on the basis that the officer was merely investigating.

Admittedly, the stop was not made pursuant to the officer’s founded suspicion that appellant was involved in criminal behavior, rather, it was made to question appellant about third parties and any information he might have had about them in connection with the crime. Once he had made inquiry as to this he should have dismissed appellant. Yet, the officer has made a feeble attempt to justify his subsequent arrest on the basis of a shaking hand, damp pants legs and tennis shoes, all of which certainly do not constitute probable cause. Having found that Officer Porterfield’s stop of appellant’s car is an unreasonable intrusion under the Fourth Amendment it should be held that any and all materials discovered as a result of that stop should have been suppressed as the fruit of an unlawful stop. Wong Sun v. United States, 371 U.S. 471 (1963).

THE SEARCH AND SEIZURE

As to the search and seizure of the back compartment of the automobile, I believe the majority’s reliance on New York v. Belton, 450 U.S. 1028, 69 L. Ed. 2d 768 (1981), to be totally without basis. The United States Supreme Court’s landmark decision in Belton specifically states:

. . . we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

Firstly, this was not a lawful custodial arrest, as I have pointed out in the first part of this dissent; and, secondly, the hatchback portion of a Vega hatchback automobile can in no wise be considered as part of the “passenger compartment.” I see no way passengers could possibly fit into the luggage compartment of a hatchback automobile. One of the officers even testified that he had to take the car keys and open the hatchback (he called it a “trunk”) to get the pillowcases.

Under our decision in Moore v. State, 268 Ark. 171, 594 S.W. 2d 245 (1980), coupled with the United States Supreme Court’s decision in New York v. Belton, supra, there are three exceptions involved in a warrantless search of an automobile: (1) cases involving danger to the officers; (2) cases involving loss or destruction of evidence; and, (3) searches of the passenger compartment when such search is incident to a lawful arrest. The present case contains none of the above-mentioned criteria. Therefore, the fruits should be considered inadmissible under Wong Sun v. United States, supra. The officers had the automobile under their exclusive control, they had the appellant and two other passengers under arrest and conceivably they had the right to search the passenger compartment. But to search the hatchback portion, they would have had to submit their probable cause to an impartial magistrate for a determination and issuance of a warrant. To do otherwise would not comport with the clear provisions of the Fourth Amendment to the United States Constitution.

There are two other facets of this case which trouble me. The initial police radio broadcast mentioned that one of the robbers was wearing black boots. In what I perceive to be an after the fact attempt to establish probable cause, at a preliminary hearing in the case, one officer testified he observed a pair of black boots sitting in the front floorboard of the vehicle. Another officer testified he saw the boots in the storage compartment of the hatchback vehicle, and a third officer testified he took the boots off of one of the other codefendants at the police station. It was stipulated that there was only one pair of boots involved. The second point is the refusal to grant appellant’s request to have the codefendants’ trial before his in order that they might be free to testify and corroborate his story that he had merely come to the park in response to their telephone call for the sole purpose of picking them up and transporting them to their home.

      Carolyn Sue Teeter, who was employed at M & M Jewelers the day of the robbery, testified at trial that she could not remember the exact time of the robbery, but set various times for when the robbery occurred; all times stated were between 3:15 and 3:55 p.m. Tim Tiulove, another employee on the day of the robbery, testified that the robbery “was somewhere in the three o’clock hour. I would say between 3:30 and 4:00 p.m."


author: George Rose Smith, justice.

text:
    Rolf Detlev KAESTEL v. STATE of Arkansas
    CR 81-70
    626 S.W. 2d 940
    Supreme Court of Arkansas
    Opinion delivered January 18, 1982

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   George Rose Smith, justice.

The appellant, Rolf Kaestel, age 29, along with two other men, Terry Spitler, 22, and Selid Holt, 20, and two women, Alice Wallace, 16, and Linda Wright, 19, was charged with aggravated robbery committed at Señor Bob’s Taco Hut in Fort Smith on February 15, 1981, and with being an habitual criminal. Kaestel was tried separately, found guilty, and sentenced to the maximum punishment of life imprisonment and a $15,000 fine. For reversal he questions the trial court’s refusal to suppress evidence obtained by a warrantless search, the legality of the identification procedure, the sufficiency of the evidence, the severity of the sentence, and the admissibility of the State’s proof of his previous convictions.

Kaestel, despite the availability of consulting counsel appointed at his request, chose to try his own case and has prepared his own abstract and briefs on appeal. He did not testify either on the motion to suppress or at the trial. All four of his codefendants testified for the State.

Except for minor discrepancies that Kaestel overemphasizes, the testimony is singularly free from dispute. Just before the robbery the five defendants were riding together at about 7:00 p.m., after dark, in Fort Smith in a large green four-door Dodge sedan owned by Linda Wright and licensed to her in Iowa. Kaestel, decidedly the oldest member of the group and apparently its leader, suggested the robbery of the Taco Hut, entered the Hut with Spider, exhibited a (toy) gun to the clerk, Dennis Schleuterman, and took about $274 in bills. When the robbers left, Schleuterman called the police, who arrived within about two minutes. Schleuterman gave a detailed description of each robber, including approximate age, height, and weight, color and length of hair, and nature and color of facial hair. Both men were white.

Wayne Redden, a citizen living up the block from the Taco Hut, had noticed that a person was sitting in the driver’s seat of a large green car parked across the street from his home. In a few moments a white male ran up and jumped in the car. After the car had started away it stopped to allow another white male to run up and get in. The car then drove off. When the police arrived, Redden went out and told them what he had seen. Schleuterman’s description of the robbers and Redden’s description of the car were broadcast by radio.

When the two robbers and their companions drove away, Kaestel and Spitler, at Kaestel’s suggestion, changed their clothes to avoid detection. Within a few minutes the group stopped at a Roadrunner gas station about three miles from the Taco Hut. They parked in an unusual way, by driving in, turning around, and backing up to the darker side of the station, away from the gas pumps. Kaestel went in the Roadrunner store. Robert Hamilton, a citizen living nearby, had heard the police broadcast, noticed the peculiar parking maneuver, connected the car with the robbery, and called the police, who arrived quickly. We note that the alert actions of the two citizens, Redden and Hamilton, were essential in the apprehension of the robbers.

The five suspects at first cooperated with the police by producing their identification. They sought to avoid suspicion by saying they had just dropped off two hitchhikers. The police, however, searched the car and found on the rear floorboard a jacket like the one described by Schleuterman and a realistic-looking plastic toy pistol under the jacket. The group were then taken to the scene of the robbery, where Schleuterman positively identified Kaestel and somewhat less positively identified Spitler. When the police searched the police vehicle in which the three men had been transported from the Roadrunner to the Taco Hut they found $179 hidden under the front seat. There was proof that no one else could have secreted the money there. Kaestel had $63 in his wallet.

We find no merit in any of Kaestel’s arguments for reversal. The trial court’s denial of the motion to suppress proof about the j acket and toy pis tol found in the car was not error, for two reasons. First, the articles were properly seized under the automobile exception to the exclusionary rule. Within that exception officers must have reasonable cause to search a vehicle. Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925); Tillman v. State, 271 Ark. 552, 556-561, 609 S.W. 2d 340 (1980). Here the vehicle corresponded to Redden’s report, which implicated it in the robbery. It contained three males, as indicated by Redden. Its peculiar maneuver at the Roadrunner aroused the suspicion of both Hamilton and the police. Finally, Schleuterman’s description of the two men was unusually complete. Kaestel says in his brief that two of the detainees “only vaguely fit the description of the suspects,” but that statement is not shown by the abstract of the record to have any basis. Both the trial judge and the jury had the opportunity to see Kaestel and Spitler and to know how accurate the descriptions were. We have no similar basis for comparison. There were also present the required exigent circumstances, in view of Mrs. Wright’s possible right to insist upon driving her vehicle away and of the difficulty of obtaining a search warrant quickly at night. Hence the warrantless search was proper. Chambers, supra.

Second, the correctness of the trial court’s ruling upon Kaestel’s motion to. suppress is actually immaterial, for the State never sought to prove the search of the car or the discovery of the jacket and pistol. To the contrary, the State rested its case after calling only six witnesses: Schleuterman to prove the actual robbery and identify the robbers; the four codefendants, to confirm Kaestel’s participation in the crime; and Redden, to corroborate the accomplices’ testimony about the group’s flight from the scene. All the testimony about what happened at the Roadrunner and about the search of the car was brought out by Kaestel himself, by cross-examining the State’s witnesses and by calling the investigating officers to testify and to produce their investigation reports. Kaestel cannot base a claim of reversible error upon testimony which he himself chose to introduce. Strode v. State, 259 Ark. 859, 537 S.W. 2d 162 (1976).

Kaestel argues that the identification procedure used by the police was unduly suggestive and prejudicial, in that (1) he was first identified by Schleuterman in a dim light, after Kaestel had been brought back from the Roadrunner, and (2) he should have been placed in a lineup. We perceive no unfairness in the procedure. To the contrary, Schleuterman’s identification meets various tests that have been enumerated: At the time of the crime he had the opportunity to look at Kaestel in a good light at close range; his detailed description of Kaestel is not shown to be inaccurate; only minutes elapsed between the crime and Schleu ter man’s identification; and Schleuterman has never wavered in his certainty about Kaestel’s identity. See Reed v. State, 271 Ark. 526, 541, 609 S.W. 2d 898 (1980). Moreover, the fundamental question is whether the pretrial identification so tainted Schleuterman’s in-court testimony as to give rise to a substantial likelihood of misidentification. Here the possibility of misidentification is nonexistent, for Schleuterman’s identification is confirmed beyond a doubt by the testimony of Kaestel’s codefendants.

In view of the facts we have already stated, Kaestel’s arguments that the evidence does not support the verdict and that the testimony of his accomplices was not corroborated are not of sufficient merit to warrant discussion. As to the severity of the sentence, except in capital cases we do not review the severity of a sentence within the lawful maximum and not affected by error in the trial, that determination having been committed to the jury by the Constitution and statutes. Osborne v. State, 237 Ark. 5, 170, 371 S.W. 2d 518 (1963). Finally, Kaestel agreed that he had been convicted of robbery in New Mexico, and the proof of his two felony convictions in Alabama was supported by photographs taken in Alabama and by fingerprints taken there and matched by later ones taken in Arkansas. We find no substantial defect in the State’s prima facie proof of previous convictions, the evidence being sufficient if it satisfies the jury beyond a reasonable doubt. Ark. Stat. Ann. § 41-1003 (Repl. 1977). (The case was tried before the effective date of Act 252 of 1981.)

We have reviewed all objections brought to our attention, whether argued or not, as is our practice in life imprisonment cases. We are convinced that Kaestel had in fact no defense to the charge and that he received a completely fair trial, free from prejudicial error.

Affirmed.


author: John I. Purtle, Justice.

text:
    Helen M. BRANTLEY and Nall BRANTLEY v. STEWART BUILDING AND HARDWARE SUPPLIES, INC.
    81-180
    626 S.W. 2d 943
    Supreme Court of Arkansas
    Opinion delivered January 18, 1982

      Sanford L. Beshear, Jr. and Edward L. Staten, P.A., for appellants.

      Coleman, Gantt, Ramsey ir Cox, by; Martin G. Gilbert, for appellee.
   John I. Purtle, Justice.

The appellants sued the appellee for injuries received by one of the appellants, Helen M. Brantley, while she and her husband, Nall Brantley, were shopping in appellee’s hardware store. She pled ordinary negligence and res ipsa loquitur. The court refused an instruction on res ipsa loquitur and the jury returned a verdict for the appellee. A motion for new trial was denied. On appeal it is argued: (1) the jury verdict was not supported by substantial evidence; (2) the trial court improperly instructed the jury as to appellants’ burden of proof; (3) the court erred in submitting to the jury the question of Helen Brantley’s negligence; and, (4) the court erred in refusing to give the appellants’ requested instruction on res ipsa loquitur (AMI Civil 611).

The facts reveal that appellants, Helen M. and Nall Brantley, went into appellee’s hardware store for the purpose of making a purchase. Mrs. Brantley made a selection and during the process of paying for the item, a pipe rolled off the checkout counter and struck her foot thereby causing injuries. At the trial Mrs. Brantley denied any acts of negligence and argued it was the negligence of the appellee which caused her injury. The only testimony regarding Mrs. Brantley’s negligence was elicited from her on cross-examination wherein the appellee’s attorney asked her if it were “possible” that she touched the pipe at the time she was paying for her purchase. Her response was to the effect that she “supposed it was possible.” There is no statement by anyone else reflecting any negligence on the part of Mrs. Brantley. There was no evidence indicating the manner in which the pipes were placed on the checkout counter. There were two or three pipes on the counter which did not roll off. In fact, both the appellants and the appellee denied even knowing the name of the clerk who waited on Mrs. Brantley. The appellee’s employees testified that the pipes were never displayed on the counter but were displayed in a vertical position in another section of the store. At the close of the evidence no witness had testified as to the length of time nor the manner in which the pipes had been resting upon the counter.

The instructions given by the court were a source of considerable disagreement between the parties. The complaint alleged negligence on the part of the appellee and also claimed res ipsa loquitur. The answer denied any negligence and asserted that the injuries were due to appellant’s own negligence.

We first consider whether the verdict was supported by substantial evidence. The appellants alleged negligence, and it was their duty to prove it unless the doctrine of res ipsa loquitur applied. Mrs. Brantley testified she did not touch the piece of pipe before it rolled onto her foot. However, the evidence shows that the pipe rolled off at the time when she was reaching for her change from the sales clerk at the checkout counter. It is as probable that Mrs. Brantley touched the pipe as it is that the clerk touched the pipe. This is a matter clearly within the discretion of the jury. Under the negligence theory of the case the appellee had no burden of proving that it was free from negligence. Therefore, in the absence of a res ipsa loquitur situation, the appellants failed to persuade the jury that the appellee was negligent.

The appellants then argue that the jury was improperly instructed. Appellants argue the court improperly gave AMI 1105 as modified. Instead, they insisted that AMI 1104 should have been given. They argue that AMI 1105 is a “slip and fall” situation and that this was not the case before the court. In view of the fact that we are later holding that this was not a res ipsa loquitur case we think the court properly gave AMI 1105.

Another argument is that the court should not have given AMI S05 (b) but should have given AMI 305 (a) as tendered by the appelants. AMI 305 (a) stated that it was the duty of the defendant to use ordinary care for the safety of the appellants, while 305 (b) stated it was the duty of all persons to use ordinary care for their own safety and the safety of others. Under the circumstances of this case we feel the court properly gave 305 (b) because it requires both parties to use ordinary care.

The appellants further objected to giving AMI 2102 which is the comparative negligence instruction. Again, we think the court was correct in view of this being an ordinary negligence case rather than one involving res ipsa loquitur.

The third point argued is that the court should not have given an instruction on the negligence of Mrs. Brantley. The court gave AMI 206 over the objection of the appellants. This instruction simply says that appellee had a defense contending that Helen M, Brantley was guilty of negligence which proximately caused her own injuries. The instruction further states that a party who asserts the defense of negligence on the part of a person claiming damage has the burden of proving this defense. We cannot see where this instruction could possibly be prejudicial to the appellants as it requires the appellee to prove the negligence of the appellant under the circumstances in this case. Appellants consider the instruction to be inappropriate based upon their assumption that there was no evidence that Helen M. Brantley was guilty of any negligence whatsoever. We have previously stated that the jury could have determined from the facts that Helen Brantley was negligent. Therefore, it was not error to give this instruction.

Finally, it is argued that the court erred in failing to give the res ipsa loquitur instruction which is AMI 611. This instruction simply states that in addition to the rules of law that the court has given with respect to ordinary care and negligence, there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged injury occurred. In such case the appellants would have had the burden of proving three things: (1) that the alleged injury was attributable to the pipe which was under the exclusive control of the appellee; (2) that in the normal course of the event no injury would have occurred if the appellee had used ordinary care while the pipe was under its exclusive control; and, (3) that appellee in its control of the pipe owed a duty to appellant to use ordinary care. The jury would have been required to find that evidence of all three propositions had been proven by appellant before they would have been permitted to find on behalf of the appellant under this instruction. We cannot find from the evidence presented in this case that the pipe was under the exclusive control of the appellee. The evidence strongly indicates that the pipe had been moved from the display area where it was ordinarily kept by the appellee. Evidence as to this element is simply not in the record. A recent case decided by the Court of Appeals, Fleming v. Wal-Mart, Inc., 268 Ark. App. 559, 595 S.W. 2d 241 (1980), deals with the res ipsa loquitur question. In Fleming the trial court directed a verdict for the store owner in a case where the complaint alleged the doctrine of res ipsa loquitur applied. The Court of Appeals stated:

Absent some evidence of customer abuse or some other unforeseeable or uncontrollable event, which would explain the occurrence in question without negligence on the part of the defendant, it is only logical to conclude that the cabinet fell as the result of the negligence of Wal-Mart, and the doctrine of res ipsa loquitur is applicable. The burden of going forward with the evidence was thus shifted to the defendant at the close of plaintiff’s case, and the verdict should not have been directed.

In the present case, there were other possibilities which the jury could consider other than the negligence of the appellee being the sole cause of the appellant’s injuries.

By this decision, we do not imply that the theory of res ipsa loquitur cannot be used when there is also presented the question of specific negligence. We held in the very well-reasoned opinion in Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968), that both issues could be presented to the jury under proper circumstances.

Affirmed.


author: Steele Hays, Justice.

text:
    Mary Katherine VANDIVER et al v. WASHINGTON COUNTY, ARKANSAS et al
    81-146
    628 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered January 18, 1982
    [Rehearing denied March 8, 1982.]

      Boyce R. Davis, for appellants.

      Kim. Smith, Pros. Atty.; James M. McCord, City Atty; and James B. Blair, of Blair, Cypert, Waters ir Roy, for appellees.

      Hickman, J., would grant the petition.

   Steele Hays, Justice.

Appellants are four householders of Washington County residing within an area affected by Ordinance No. 80-5, adopted by the Washington County Quorum Court on February 14, 1980. The ordinance imposes an annual fee of $15.00 on each household (except those served by another company) to meet the cost of providing emergency medical services to the area. The ordinance was submitted to a referendum election and was ratified by a vote of 3,437 to 1,807.

After ratification Washington County entered into a contract with Central Emergency Medical Service, Inc., leasing ambulances and equipment to the corporation, which agreed to provide continuous emergency medical services to the area. The county provided the funds necessary for CEMS to operate under an approved budget. On termination or default, the leased equipment reverted to the county.

Appellants filed suit challenging the constitutionality of the ordinance, the legality of the $15.00 fee, seeking a restraining order against further collections and a refund of all amounts collected. Over objection from appellants, CEMS and the city of Fayetteville were permitted to intervene.

The case was heard on a stipulation of facts and on cross-motions for summary judgment. The chancellor held the annual levy was a fee for services rather than a tax, that the ordinance did not violate the Constitution of Arkansas by lending the credit of the county, nor operate to deny appellants equal protection of the law, or take property without due process, but that the ordinance was not adopted in accordance with Act 51 of 1979 (Ark. Stat. Ann. § 82-3410 et seq.) and, hence, invalid. He declined to order a refund of undistributed fees totaling $56,326.40. Both sides appeal, alleging a number of errors. We affirm on appeal and reverse on cross-appeal.

It should first be mentioned that appellees have challenged appellants’ abstract under Rule 9. The abstract is seriously inadequate. Without the supplemental abstract, it would be wholly impossible to follow the arguments without consulting the single record, which greatly hampers review. When the abstract omits the ordinance under attack, the chancellor’s memorandum opinion, the final order, all exhibits, and portions of pertinent testimony, it becomes impossible to understand and weigh the arguments so that they may be fairly decided. On request, appellees’ time and cost in supplying a supplemental abstract will be allowed.

Before considering substantive issues we take up the procedural argument that the chancellor erred in permitting interventions by the city of Fayetteville and CEMS under A. Civ. P. Rule 24 (b). He found the intervenors had a vital interest to protect and had questions of law and fact in common with the primary litigation. Permissive intervention under Rule 24 (b) is discretionary and subject to reversal only upon a showing of abuse. Pulaski County Board of Equalization v. American Republic Life Insurance Co., 233 Ark. 124, 342 S.W. 2d 660 (1961). We find no showing of the wrongful exercise of discretion; indeed, the interest of the intervenors in the litigation seems clear.

Next, we consider the argument of cross-appellants that the chancellor erred in holding (1) that Ordinance No. 80-5 was improperly enacted and (2) that there was no substantial compliance with Act 51. We agree the chancellor erred and must be reversed. Two recent acts are relevant to the issue: Act 742 of 1977, the “Arkansas County Government Code” enacted pursuant to Amendment No. 55, and Act 51 of 1979, which dealt more specifically with emergency medical services and imposed procedures not appearing in Act 742. The basic questions raised are under which of the two acts could Ordinance No. 80-5 be enacted, and whether the procedures followed by the Quorum Court in adopting the ordinance were sufficient to meet the requirements of those acts.

The Quorum Court originally elected to proceed under Act 742, however, approval of the proposal was submitted to a referendum petition giving some indication of an intent to proceed under Act 51.

Relying on a general principle of statutory construction, the chancellor held the specific grant of authority under Act 51 was controlling over the general grant of authority under Act 742 and consequently the procedures and requirements of Act 51 must be met.

The chancellor correctly found Act 742 (Ark. Stat. Ann. § 17-3801 et seq.) gives the Quorum Court authority to provide for emergency medical services but held that the authority created under Act 742 is limited by the procedural requirements of Act51. Namely, the Quorum Courtmustset a date for a public hearing on the question and cause notice of the time and place of the hearing to be published in a newspaper of general circulation in the county or in the area proposed to be served. Further, the ordinance “shall specifically describe the area to be included within the system, describe the services to be provided the residents of the area and shall specifically state the estimated cost of the services. ...” (Section 82-3411.) The chancellor found the evidence insufficient to satisfy the requirements of a public hearing, publication of notice, and found the ordinance did not sufficiently describe the services to be provided.

Cross-appellants contend Act 742 and Act 51 provide alternative procedures for establishing emergency medical services and the Quorum Court elected to proceed under Act 742. Their argument is bolstered in the light of the language of Section 7 of Act 51, which provides:

The procedures prescribed herein for the establishment of an emergency medical services program and the furnishing of emergency medical services shall be supplemental to and shall not be construed to repeal or modify any law presently in existence relating to the furnishing of such services. (Emphasis supplied.)

Curiously, Section 6 of Act 51 specifically imposes the same notice of hearing and referendum requirements to enact an ordinance levying service charges for any emergency medical services programs established prior to the act and Section 8 states that all laws and parts of laws in conflict are repealed.

A universal rule in construing statutes, and a settled maxim of the common law, is that all acts passed upon the same subject are in pari materia, and must be taken and construed together and made to stand if capable of being reconciled. McFarland v. Bank of State, 4 Ark. 410, 4 Pike 410 (1842); Morrison v. State, 40 Ark. 48 (1883); Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 749 (1980). Interpreting Act 51 in harmony with Act 742 is difficult, at best, and can be accomplished only at the expense of plausibility. Under Act 51 the Quorum Court must set a date for a public hearing and publish notice of the time and place, whereas under Act 742 no such requirements are imposed. If the acts were intended to provide alternate methods, then Act 51 would be effectively rendered a nullity, as there would be no reason for a Quorum Court to choose the more arduous route required by Act 51 when it could accomplish the same result more easily under Act 742. Where statutes cannot be reconciled through interpretation, then construction is the proper course. The cardinal rule in construing statutes is said to be that it is the duty of the court to ascertain and give effect to the intention of the Legislature. We believe the chancellor was correct in finding that Act 742 is governed by the requirements of Act 51, as this is the only logical interpretation that gives effect to both acts. John May Company v. McCastlain, 244 Ark. 495, 426 S.W. 2d 158 (1968); Perry County v. House, 196 Ark. 317, 117 S.W. 2d 342 (1938).

Cross-appellants also argue that the procedures followed by the Quorum Court substantially complied with the hearing, notice and referendum requirements of Act 51 and that the referendum election at which Ordinance No. 80-5 was approved cured any procedural defects. The argument is convincing. In enacting the ordinance, the Quorum Court (1) set a date for public hearings on the question of providing emergency medical services to a designated area of the county, (2) published notice of dates, time and place of each hearing in a newspaper of general circulation in the county and the area proposed to be served, (3) gave all interested parties residing in the designated area an opportunity to appear and be heard for or against the proposal, and (4) described the area to be included (six specified school districts), the services to be provided (emergency medical services, defined in Act 51 as “the transporting of the acutely ill or injured and the medical care provided to such person prior to arrival at a medical facility”), the estimated cost ($15.00 per household) and the proposed method of financing (a fee of $15.00 per household).

On November 8, 1979, the Quorum Court set two dates for public hearings: December 4, 1979, in West Fork and December 6, 1979, in Fayetteville. Notice of the dates, time and place of these hearings was publicized through frequent newspaper articles in three of the largest newspapers of general circulation in the county; the hearings were well attended. From November 9, 1979, to June 22, 1980, no less than 40 prominent news articles appeared informing the public of the proposal to provide emergency medical services to those parts of Washington County no longer receiving services. On June 24, 1980, the ordinance was approved by a decisive vote: 3,437 for to 1,807 against. Certainly the thorough news treatment given the ordinance afforded the electors actual notice of what they were voting on.

In Hildreth v. Taylor, 117 Ark. 465, 175 S.W. 2d 40 (1915), we adopted the rule of substantial rather than strict compliance in connection with requirements of providing notice in a newspaper on a referendum of a constitutional amendment, stating:

. . . (A) literal compliance is not required, and that a failure to publish the notice within the time specified does not itself prevent the people from adopting a measure at an election as specified in the Constitution. In order to defeat the submission, it must at least be shown that the omission to publish amounted to such a radical disregard of the requirements imposed by the legislature that it probably affected the result of the election. At 471.

Section 3 of Act 51 directs that “the ordinance shall be subject to the referendum which may be exercised in the manner prescribed in Amendment 7 to the Constitution of Arkansas.” On several occasions this court has employed a liberal attitude toward referendums in meeting the requirements in Amendment 7: Johnson & Rosenkrantz v. Munger, 260 Ark. 613, 542 S.W. 2d 753 (1976); Coleman v. Sherrill, 189 Ark. 843, 75 S.W. 2d 248 (1934); Reeves v. Smith, 190 Ark. 213, 78 S.W. 2d 72 (1935).

In Leigh v. Hall, 232 Ark. 558, 339 S.W. 2d 104 (1960), we said, “This court is definitely committed to the proposition that Amendment Seven should be liberally construed to effectuate its purpose.”

Where the voters have overwhelmingly approved a county ordinance whose ballot title contains sufficient information to enable them to cast their ballots with a fair understanding of the issues presented, we deem it our duty to sustain the election. Becker v. Riviere, 270 Ark. 219, 604 S.W. 2d 255 (1980). In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280 (1953), we declared the approved rule to be:

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.

The chancellor’s holding that Ordinance No. 80-5 is invalid because of procedural defects is contrary to the general rule that “after the election shall have been held, general provisions must yield in order to support the result of the election. ” McKenziev. City of Dewitt, 196 Ark. 1115, at 1118, 121 S.W. 2d 71 (1938); Johnson & Rosenkrantz v. Munger, supra. In Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485(1936), we held that insufficiency of a petition to initiate local law was of no consequence after the question was voted on and passed. It is the duty of the Court ‘‘to sustain elections which have resulted in a full and fair expression of the public will.” Chaney v. Bryant, 259 Ark. 294, 532 S.W. 2d 741 (1976). Moreover, the chancellor’s memorandum opinion (T. 107) incorrectly placed the burden of proving the sufficiency of the public hearing and publication of notice of the hearing on the proponents of the ordinance rather than on the opponents, where it rightfully lay. Delony v. Rucker, 227 Ark. 869, 302 S.W. 2d 287 (1957); City of Little Rock v. Linn, 245 Ark. 260, 432 S.W. 2d 455 (1968). It is incumbent on those attacking the validity of a statute to show its invalidity. Henderson v. Russell, 267 Ark. 140, 589 S.W. 2d 565 (1979); Pierce v. City of Hope, 127 Ark. 38, 191 S.W. 405 (1917).

Appellants urge us to hold that substantial compliance was not pleaded and is being raised for the first time on appeal. But we decline. Whether the pleadings implicitly raised the theory of substantial compliance need not be decided, as it was expressly argued below and, therefore, it cannot be said the issue was not first presented to the trial court. (Pages 76 and 112 of the record.)

For affirmance, appellants contend that the agreement between GEMS and the Washington County Quorum Court makes Ordinance No. 80-5 unconstitutional as it operates to lend the credit of the county to a non-profit corporation and the chancellor erred in refusing to consider that argument. We think the chancellor was entirely correct in holding that the issue before him was the validity of the ordinance, rather than the agreement, and we readily agree with him that the ordinance itself reveals no constitutional flaw; in fact, no serious argument is made on that score. Appellants argue that when the ordinance and the agreement are construed together the credit of the county is affected and that both were before the court. It is true the agreement was part of the written stipulation of the parties, but it is clear its introducdon was limited to show CEMS’ interest in the litigation and not in connection with the substantial issues of constitutionality. At a pretrial hearing counsel for appellants argued the agreement was not in issue (T. 163) and after intervention was ordered counsel for appellants and CEMS expressly stipulated that the precedent would prohibit “raising any issue based on the contract between CEMS and Washington County.” (T. 178.)

Appellants next contend that the chancellor erred in declaring the levy imposed by the ordinance to be a fee and not a tax. The chancellor relied on Holman v. City of Dierks, 217 Ark. 677, 233 S.W. 2d 392 (1950), where it was held that the imposition of an annual sanitation tax of $4.00 on each household and business to pay the cost of periodic spraying with insecticides was a charge for service and not a tax, citing Cooley on Taxation (3rd Ed.), p. 5. See also Housing Authority of Blytheville v. City of Blytheville, 228 Ark. 736, 310 S.W. 2d 222 (1958). We can see no material distinction between this case and Holman and we believe the Holman decision governs. The levy is imposed for a particular purpose, it is for a service, the funds are separately allocated to pay for that service, and householders similarly served by another provider are relieved of the levy. We believe the chancellor was correct.

We are also urged to reverse the chancellor for refusing to order a refund of the undisbursed fees collected under the ordinance and for refusing to allow testimony that the fees were paid under protest, but as we are upholding the validity of Ordinance No. 80-5 discussion of these points is needless. The chancellor’s award of an attorney’s fee pursuant to Ark. Stat. Ann. § 84-4601 (Repl. 1980) is reversed. Munson v. Abbott, 269 Ark. 441, 602 S.W. 2d 649 (1980).

Appellants’ request for an attorney’s fee and costs pursuant to Rule 9 (e) (1) and Rule 24 (d) is denied.

Affirmed on direct appeal, reversed on cross-appeal and remanded for the entry of an order not inconsistent with this opinion.


text:
    Jimmy Dale JORDON v. STATE of Arkansas
    CR 81-27
    626 S.W. 2d 947
    Supreme Court of Arkansas
    Opinion delivered January 18, 1982

      Gordon L. Cummings, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

This appeal is brought from the Washington Circuit Court for a burglary conviction. The appellant was found to have been previously convicted of four or more felonies subjecting him to an extended term of punishment pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). In addition, he was sentenced pursuant to Ark. Stat. Ann. § 41-1004 because he was found to have “employed a firearm” in furtherance of the burglary. In his bifurcated trial, the jury recommended a twenty-year prison sentence.

Our jurisdiction is invoked under Supreme Court Rule 29 (1) (c), in that the validity, interpretation, construction, or constitutionality of an act of the General Assembly is involved.

On appeal it is insisted that (1) the trial judge erred in not disqualifying himself and (2) in allowing the defendant’s confession into evidence; (3) § 41-1004 is unconstitutionally vague and (4) the evidence was insufficient to support a finding that appellant “employed a firearm” within the meaning of the statute. The fourth point alone has merit but does not require reversal as it is clear the sentence was not extended under § 41-1004.

At 1:00 a.m. on August 13, 1980, the Ozark Steel Company in Fayetteville was burglarized. Gasoline was siphoned from company vehicles and an unsuccessful attempt was made to open a safe.

Four burglars were interrupted by police and employees of Ozark Steel. In an ensuing chase, at least one shot was fired by the police. Two suspects were arrested on the premises and the appellant was arrested sometime later by Officer Joey Boersma in a nearby wooded area. Appellant appeared exhausted and had superficial cuts and scratches sustained, evidently, running through underbrush. At approximately 1:50 a.m. appellant was taken to the Fayetteville Police Station where he signed the standard Miranda rights form.

Appellant was questioned by Officer J. O. Surles. After, refusing to implicate others, appellant was allowed to go to the telephone room to make a call. Having just learned that one of the suspects might be armed, Officer Surles spoke, so he says, from across the room to say, “Jimmy, there's an empty holster. Before anyone gets killed, do any of the other guys have a gun?” Shortly thereafter appellant confessed to the burglary, giving the details and the names of the other participants.

Appellant argues the trial judge should have disqualified himself because he had actively prosecuted him in three of the four prior felony convictions relied on for the enhancement of punishment.

Although this precise question has not been addressed by this court, other jurisdictions have rejected the argument by holding a trial judge is not disqualified from hearing a criminal prosecution because he had been a prosecutor in a prior conviction used to enhance the punishment for a current offense. Nichols v. State, Tex. Cr. App., 494 S.W. 2d 830 (1974); Morgan v. State, Tex. Cr. App., 503 S.W. 2d 770 (1974); Hawthorne v. State, Tex. Cr. App., 459 S.W. 2d 826 (1970). This argument has also been rejected where earlier convictions are applied under an habitual criminal statute. Maloney v. Maxwell, 174 Ohio 84, 186 N.E. 2d 728 (1962).

Appellant also argues that bias is shown by the judge’s out-of-court statement, made two days after his fourth felony conviction, which was suspended. Judge Gibson is said to have told appellant he would send him to the penitentiary if he came before his court again. But admonitions of this sort are not unusual following a suspended sentence and are generally prompted by nothing more than to impress upon the defendant the need to stay out of trouble. Without some added element, they are not to be regarded as evidence of a residual bias.

Appellant cites Burrows v. Forrest City, 260 Ark. 712, 543 S.W. 2d 488 (1976), to support his argument. In Burrows, the trial judge’s comment that a defendant should bring his toothbrush to a hearing to revoke a suspended sentence, along with other statements indicating bias or prejudice against the appellant, was sufficient to require disqualification. Burrows is distinguishable in that the statement there was made just before the hearing. Here, the statement was made when no criminal proceedings were pending against appellant. The comment can be reasonably construed as merely a warning and not an indication of lasting bias by the trial judge that would affect any proceeding that might happen in the future.

Appellant cites Article 7, § 20, of the Arkansas Constitution:

Disqualification of judges — Grounds. No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court.

There is no evidence of a violation of this section, as the interest referred to is a pecuniary or a proprietary interest, Mears v. Hall, 263 Ark. 827, 569 S. W. 2d 91 (1978); Forman v. Marianna, 43 Ark. 324 (1884), and the reference to having been “of counsel” obviously relates to the case being tried. Bledsoe v. State, 130 Ark. 122, 197 S.W. 17 (1917).

The fundamental issue we must consider here is whether under the circumstances the judge’s impartiality might “reasonably be questioned.” (See Code of Judicial Conduct, Canon 3, subdivision C.) The appellant was heard on the allegation of bias. The record shows the trial was conducted in an impartial manner and there is no indication that any of the judge’s rulings were the result of bias. The jury sat in both stages of the bifurcated trial and the judge only followed its verdict and recommendation in sentencing. We find no objective intimation of bias or prejudice and even the appearance of bias, which appellant insists is present, we regard as subjective.

II.

Appellant contends that his confession was coerced and should have been suppressed by the trial judge. He argues that he was exhausted, bloody from the cuts and scratches, thirsty and in need of medical attention. He points out that Officer Boersma arrested him at gun point, made him lie on his stomach to handcuff him and that his head may have been struck as he got into the police car. He insists that Officer Surles’ remark should be interpreted as a threat on his life. The officer denies that his words had any reference to appellant, but merely to the other officers and suspects.

But whether these circumstances are taken severally or collectively they fail to suffice. Appellant’s rights were read to him when he entered the police station and there is no evidence that he was unreasonably denied medical attention or water except for a momentary interval when he first arrived at the station. He argues that Officer Surles’ remark was threatening but the trial court found that insufficient to suppress the confession and though we review the record independently we need not shun its findings. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). We see no basis to reverse. We cannot say that the comment could not have been taken as appellant claims, but the more plausible interpretation is consistent with the officer’s explanation. Had the appellant been denied needed attention, subjected to prolonged questioning or intimidating circumstances, his arguments would be more convincing, but those elements are not present.

Appellant also argues that Officer Boersma was a material witness and should have been produced by the State at the Denno hearing. Relying on Hayes v. State, 269 Ark. 47, 598 S.W. 2d 91 (1980), he points out that Boersma held a revolver on him 20 minutes before the questioning at the station. But there is no indication that this officer was involved in the events at the station and the State was not required to produce him.

III.

Appellant argues Ark. Stat. Ann. § 41-1004 (Repl. 1977) is unconstitutionally vague in that “employed” is not defined. The statute reads in part:

Sentence to imprisonment for felony — Extended term for use of firearm. — (1) If a defendant is convicted of a felony and the trier of fact finds that the person so convicted employed a firearm in the course of or in furtherance of the felony, or in immediate flight therefrom, the maximum permissible sentence otherwise authorized by section 901 [§ 41-901] or section 1001 [§ 41-1001] shall be extended by fifteen (15) years. (Emphasis added.)

In Barnes v. State, 258 Ark. 565, 528 S.W. 2d 370 (1975), we held a similar statute not to be unconstitutionally vague. Webster defines “employ” as “1. To make use of, as an instrument, means or material; to apply, use; as to employ a pen in writing. ...”

The Arkansas Model Jury Instructions, AMCI 6001, utilizes the word “use” rather than “employ” in its instruction for § 41-1004 where the defendant is also charged with being a habitual offender. The Arkansas cases construing § 41-1004 utilize the words “use” and “employ” interchangeably. Welch v. State, 269 Ark. 209, 599 S.W. 2d 717 (1980); Rust v. State, 263 Ark. 351, 565 S.W. 2d 19 (1978). We conclude the trial court was correct in ruling § 41-1004 was not unconstitutionally vague and that "employed” is a word of common usage and understanding, thus not requiring further definition. Where a man of average intelligence would not have to speculate as tb the meaning of the statute, the constitutional requirement of specificity is met, since fair warning of the proscribed conduct is given. Rowan v. Post Office Department, 397 U.S. 728 (1970); United States v. Harris, 347 U.S. 612 (1954); Newton v. State, 271 Ark. 427, 609 S.W. 2d 328 (1981); Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).

IV.

Finally, we consider whether the evidence was sufficient to support the j ury’s finding that a firearm was employed by appellant in the commission of the burglary or in flight. The testimony is conflicting as to whether the appellant or a co-defendant had possession of the revolver while siphoning the gasoline or while in the building attempting to break open the safe. There is no evidence in the record that the appellant made any use of the firearm for any purpose in the commission of the felony or in flight. Use of the verb “employed” rather than “in possession” compels us to conclude the Arkansas General Assembly intended something more than mere possession.

Since we have not ruled on the specific question we look elsewhere. California has two statutes relevant to this issue: West’s Ann. Pen. Code § 12022, which enhances the punishment by one year if a person is armed during any felony and § 12022.5, which enhances the punishment by two years if a firearm is used in the commission of a felony.

In People v. Chambers, 102 Cal. Rptr. 776, 498 P. 2d 1024 (1972), § 12022.5 was interpreted to require more than mere possession:

[5] We next direct our attention to that conduct which constitutes use of a firearm within the meaning of the statute.5 By employing the term “uses” instead of “while armed” the Legislature requires something more than merely being armed. (People v. Washington (1971), 17 Cal. App. 3d 470, 474, 94 Cal. Rptr. 882.) One who is armed with a concealed weapon may have the potential to harm or threaten harm to the victim and those who might attempt to interrupt the commission of the crime or effect an arrest. (See People v. Pheaster (1963), 215 Cal. App. 2d 754, 30 Cal. Rptr. 363.) Although the use of a firearm connotes something more than a bare potential for use, there need not be conduct which produces a fear of harm or force by means or display of a firearm in aiding the commission of one of the specified felonies. “Use” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” (Webster’s New Internal. Diet. (3d ed. 1961).) At 1027. (Footnote omitted.)

The question was also addressed in In Re Culbreth, 130 Cal. Rptr. 719, 551 P. 2d 23 (1976), at 26.

[3] It is clear that the terms “uses” was deliberately employed by the Legislature when it adopted section 12022.5. To “use” means, among other things, “to carry out a purpose or action by means of,” to “make instrumental to an end or process,” and to “apply to advantage.” (People v. Chambers, supra, 7 Cal. 3d at p. 672, 102 Cal. Rptr. at p. 779, 498 P. 2d at p. 1027.)

Appellee relies on United States v. Moore, 580 F. 2d 360 (Ninth Circuit 1978) which construes 18 U.S.C.A. 924 (c) (1), the Federal counterpart to § 41-1004. Moore was found to have violated the statute by mere possession of a firearm in an attempted bank robbery. Moore is distinguishable in that 18 U.S.C.A. 924 (c) specifically prohibits either 1) the use of a firearm to commit a felony or 2) the unlawful carrying of a firearm during the commission of any felony.

Many states specifically provide for increased sentences for mere possession of firearms related to the commission of a felony, but Arkansas has no such law. We find no jurisdiction which imposes a mandatory 15 year extension of sentence to run consecutively for mere possession of a firearm in the commission of a felony. We conclude § 41-1004 applies only where a firearm is used by the defendant in furtherance of the commission of a criminal offense.

Although we find the evidence insufficient to support the finding that appellant violated § 41-1004, we find no reason to reverse as his sentence was not extended. Had it been, he would have received a sentence of 35 years rather than the 20 the jury recommended. The trial was bifurcated and appellant was found guilty of burglary and to have committed four or more previous felonies, thus 20 years is the minimum sentence he could have received under § 41-1001 (2) (b) irrespective of the issue of the firearm.

Affirmed.

Hickman, J., dissents.


text:
    In Re: The Code of Judicial Conduct
    81-258
    627 S.W. 2d 1
    Supreme Court of Arkansas
    January 18, 1982
   Per Curiam.

Petitioners request clarification of our per curiam order relating to the Code of Judicial Conduct as set out in 255 Ark. 1075 which relates to solicitation of funds on behalf of judicial candidates. In the order no definite time limit was set within which a committee on behalf of a judicial candidate could solicit and accept campaign contributions.

We are of the opinion that definite time limits are required by the Code of Judicial Conduct and are necessary in order to provide assurance of compliance with the per curiam order and the code. Therefore, we hold that campaign funds may be solicited and accepted on behalf of a judicial candidate beginning 180 days prior to the first election in which he is a candidate. Should funds be received prior to the 180-day limitation they should be returned to the contributor. If funds are received personally by a judicial candidate, he should promptly turn them over to his campaign committee. This order does not change the per curiam in 255 Ark. 1075 in any other manner.

Hickman, J., not participating.


text:
    MIDWEST BUSLINES, INC. et al v. Lee A. MUNSON, Judge et al
    81-213
    622 S.W. 2d 187
    Supreme Court of Arkansas
    Opinion delivered October 13, 1981

      Janis Richardson, Ark. Transportation Commission, for petitioners.

      Don A. Smith, for respondents.
   Per Curiam.

The application for a temporary writ of prohibition is denied, the petitioners having appeared by their counsel in the trial court without questioning its jurisdiction. We treat the petition, however, as a petition for a writ of certiorari to correct a proceeding that is erroneous on the face of the record and as to which no other adequate remedy appears. Bridges v. Ark. Motor Coaches, 256 Ark. 1054, 511 S.W. 2d 651 (1974). The trial judge was in error in issuing a temporary restraining order without setting an expeditious hearing to determine whether the temporary restraining order should be dissolved, as required by Civil Procedure Rule 65 (b). Various hearings to be conducted by the Arkansas Transportation Commission do not satisfy the requirements of the Rule just cited. Upon application of any party to the case the trial court is directed to hold a hearing within ten days to determine whether the temporary order should be continued in force or be dissolved.

Hays, J., not participating.


author: Richard B. Adkisson, Chief Justice.

text:
    Dennis Ray MATTHEWS v. STATE of Arkansas
    CR 81-96
    627 S.W. 2d 20
    Supreme Court of Arkansas
    Opinion delivered January 25, 1982

      William R. Simpson, Jr., Public Defender, by: Steven R. Davis, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury appellant, Dennis Ray Matthews, was convicted of rape and sentenced to 50 years in prison and to a fine of $15,000. On appeal appellant argues that the trial court erred in allowing identification testimony of appellant by the victim regarding (1) a previous photo lineup, (2) a previous physical lineup, and (3) an in-court identification. These arguments are without merit. We affirm.

On November 30, 1980, at approximately 5:00 a.m. appellant entered a Seven Eleven Food Store on West 65th Street, Little Rock. The victim was working alone as the store clerk. During the next 15 to 20 minutes appellant carried on a conversation with the victim and purchased two pieces of bubble gum. After the purchase appellant began questioning the victim about the burritos in the sandwich stand. Appellant then asked the victim about a sandwich that was not labeled so the victim walked to the sandwich counter to look at it; on her way back to the register appellant grabbed her from behind and put a steak knife to her throat. He then took her to a secluded embankment behind the Seven Eleven Food Store and raped her. During the rape the victim noticed the knife was on the ground. She picked it up and threw it. After the rape, appellant ordered her to find the knife. She located the knife but tried to kick it away. And in doing so she stumbled and fell down a hill, breaking her knee. She hobbled to a nearby apartment complex where a group of teenagers found her.

Appellant alleges that the photographic lineup was suggestive and prejudicial and, therefore, that evidence of the victim’s identification of him in the lineup should not have been admitted. Appellant claims prejudice because he was the only one wearing a jacket, because the side views of him were cut off, because his picture was slightly out of focus, and because the other suspects did not resemble appellant.

We cannot agree that the photo lineup was prejudicial. It consisted of six snapshots, all in color and all the same size. All the suspects were young white males of about the same age with hair color ranging from medium to dark brown. Side views of two other suspects besides the appellant were partially cut off. All of the suspects’ pictures appear to be slightly out of focus. However, each of the suspects’ features, including appellant’s, are clearly distinguishable. The fact that appellant was wearing a jacket while the others were in shirts does not in itself make the photo lineup suggestive. In short, we see nothing suggestive or prejudicial about this photo lineup.

Appellant argues that the physical lineup conducted after the photo lineup was also so suggestive and prejudicial that the victim’s identification of appellant at the lineup should not have been admitted into evidence. Appellant alleges prejudice because the other suspects did not resemble appellant, because appellant was the only suspect in both the physical and photo lineups, and because a defense attorney who was present at the lineup was not allowed to speak with appellant.

An examination of a photograph of the physical lineup reveals that all six suspects were young white males of about the same age, dressed alike, and had similarly colored hair of approximately the same length. Also, contrary to appellant’s argument that appellant was by far the tallest, there does not appear to be a significant difference in the heights of the six suspects. In any event appellant’s tallness was to his advantage because the victim apparently thought her assailant was somewhat shorter than appellant.

The fact that a defense attorney was at the lineup but was not allowed to speak with appellant or position him in the lineup is an insufficient reason to hold the lineup suggestive and prejudicial. The purpose of an attorney’s presence at a lineup is to ensure the fairness of the procedure. At the time of the lineup the defense attorney did not object to the fairness of this lineup. And appellant has failed to show that he was in any way prejudiced by the fact the attorney was not allowed to speak with him or position him.

The fact that the appellant was the only participant in both lineups does not make the last lineup conducted suggestive or prejudicial. Appellant was identified in the first and second lineups both of which were properly conducted. There was no prejudice.

Appellant argues that because the two lineups were suggestive and prejudicial, the victim’s in-court identification of appellant should have been suppressed. Since we have found both lineups to be without error, we cannot agree with this contention. Reliability is the linchpin in determining the admissibility of identification testimony for confrontations. Manson v. Brathwaite, 432 U.S. 98 (1977); McCraw v. State, 262 Ark. 707, 561 S.W.2d 71 (1978).

The evidence in this case points to the reliability of appellant’s identification. The victim testified that appellant remained in the store, which was well lighted, for 15 to 20 minutes before the rape, and did not attempt at any time to cover his face. During this time appellant carried on a conversation with her, and purchased bubble gum. It is clear from these facts that she had ample opportunity to observe him. Furthermore, she testified that she had been trained to carefully observe people in the store.

The victim was at all times certain that appellant was her assailant. She testified that she recognized him immediately in the photographic lineup, and that she recognized him “right on the spot” at the physical lineup. At trial she stated that there was no doubt in her mind that appellant was her assailant. In viewing the totality of the circumstances, it is clear that the victim’s identification of appellant was reliable.

Affirmed.