author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Harold Davy CASSELL v. STATE of Arkansas
    CR 80-110
    616 S.W. 2d 485
    Supreme Court of Arkansas
    Opinion delivered June 1, 1981

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, and Gordon Cummings, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In the early morning hours of Sunday, December 21, 1975, a Springdale police officer, John Tillman Hussey, was murdered in a wooded area west of Fayetteville. The crime was particularly contemptible in that Hussey was shot four times in the back of the head with his own pistol while he was helpless, his wrists handcuffed behind him. Nearby a Travel-All van-type vehicle was set on fire and was still smoking when it was fortuitously discovered during the morning by a man who happened to be in the woods with his wife and children.

At about 3:49 that morning Officer Hussey had radioed to his headquarters that he was stopping a vehicle with license number JEX-966. A fellow officer, Brian Cobb, heard the radio communication and went at once to the place mentioned by Hussey, a point on the Fayetteville-Spring-dale highway. When Cobb arrived about four minutes after the radio message he found Hussey’s police car parked by itself on the highway, its blue lights still flashing. Officer Hussey was not in the car and could not be found.

Prompt and thorough police work — federal, state and local — enabled the prosecuting attorney to file a capital murder charge on January 26, 1976, against James Ray Renton and the appellant, Harold Davy Cassell. The information charged the defendants with having murdered Officer Hussey while he was acting in the line of duty. Bench warrants were issued, but some 30 months elapsed before Cassell was arrested in Montana in June, 1978, and returned to Arkansas in November of that year. The two cases were severed and tried separately. This appeal is from a verdict and judgment finding Cassell guilty and sentencing him to life imprisonment without parole.

Cassell’s principal argument is that the State’s proof, necessarily circumstantial for want of an eyewitness, was insufficient to support a verdict of guilty. Before narrating the testimony we again emphasize, as we have often done, that although the jury should be instructed, as it was here, that circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion, AM Cl 106, that is not the standard by which we review the evidence. Our responsibility is to determine whether the verdict is supported by substantial evidence, which means whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Brown v. State, 258 Ark. 360, 524 S.W. 2d 616 (1975); Abbott v. State, 256 Ark. 558, 561-562, 508 S.W. 2d 733 (1974). The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but we, not having had the advantage of seeing and hearing the witnesses, are guided by the substantial evidence rule. Graves & Parham v. State, 236 Ark. 936, 370 S.W. 2d 806 (1963).

The trial continued for days, resulting in a 1,597-page typewritten record. The testimony is not really in much conflict. Neither Renton nor Cassell chose to testify in this case. We state the course of events not in the order in which the witnesses testified but in a chronological sequence.

A principal witness for the State was Connie Marie Caves, who was not quite eighteen when she began living with Renton in Hot Springs. The two were joined by Cassell in September, 1975, about three months before Hussey’s murder. For at least ten months, from September, 1975, until July, 1976, Connie traveled about with Renton, Cassell, and a third man, Carl Don McLaughlin, who committed suicide several months after the Hussey murder.

The effect of Connie’s testimony was that the three men were professional criminals committing burglaries. They used assumed names, Renton becoming Jimmie Lee Ford and Cassell becoming Richard Green. The four traveled through various states together, stopping at motels and using Renton’s Travel-All van and Cassell’s brown Chrysler passenger car. The men each selected and bought the tools they needed in their criminal activities, but all the tools were kept in a bag in the possession of Renton, who appears to have been the leader of the small group. Before doing a “job” the men would decide what tools would be needed.

Connie testified that on December 18 (Thursday) the three men we have mentioned and a fourth man, Larry Lynn Wallace, left her in a motel in Dallas and started to Arkansas to do a job there. On Saturday, December 20, they checked into a Holiday Inn at Fayetteville. Cassell signed the register as Richard Green. During the afternoon the Travel-All van and the Chrysler were seen parked together in the motel parking lot, with four men standing by talking together. An employee of the Campbell-Bell store in Rogers testified that during the day he saw two or three times in the store a man he later identified as Renton, accompanied by two others he could not describe. The men weren’t doing business. “They were just there.”

The Campbell-Bell store was burglarized that night; about 30 coats were taken. The criminals may have become alarmed and left hurriedly, for they left the bag of tools, which Connie identified positively, having seen it many times. Frank Perry, who lived near the store, testified that at about 1:45 a.m. he saw a van-type vehicle and a passenger car driving “real fast” across an open field between his house and Campbell-Bell. He thought, but not with certainty, that the car was a Chrysler vehicle. An expert witness testified that a photograph of the tire tracks showed that they resembled the design of the tires on Cassell’s car, but no positive identification was possible.

Officer Hussey, as we have said, radioed at about 3:49 that he had stopped a van (unquestionably Renton’s). Hussey’s car, when found by Officer Cobb, was some 15 or 20 miles south of Rogers, headed toward Fayetteville. Darrell Harp, who drove a car in delivering newspapers in the area, testified that between 3:30 and 4:00 he saw three vehicles stopped together. A passenger car was in front, a Travel-All or surburban type vehicle about 20 or 30 feet behind it, and a Springdale patrol car behind that. It was dark, and Harp could see only the patrolman between his vehicle and the Travel-All. Harp had said in an earlier statement that the passenger car could have been a Ford, but he was uncertain about it.

A defense witness, Charles Gillman, a semi-retired person who had done some police work with the military police and with a railroad, testified that he drove by and saw three vehicles at about 3:45 a.m. He said the first one was an off-white Ford sedan, the next an International Travel-All, and the third a Springdale police car. He saw the police officer standing there. He could not see in the van, but there, appeared to be several persons, possibly two or three, in it. The van had a Texas license plate. On cross examination he said he knew the officer was in a dangerous position. He was certain in his own mind the officer was in trouble, but he did not stop. He made no report of the incident until he happened to be stopped at a roadblock a week later. He said his first statements to the police were partly in error, in that he said the third vehicle was a Fayetteville police car, the van had an Arkansas license, and there were four persons in the van. The jury could have concluded from the testimony in the entire case that Gillman was also mistaken about the off-white Ford.

McLaughlin’s sister testified that McLaughlin owned a white Ford in December, 1975, but there was no testimony that he had ever used such a car in his criminal activities. Connie testified she had never seen the vehicle. The sister testified that before her brother killed himself he telephoned her and said that he had killed a policeman in Arkansas and just couldn’t forget about it. Connie testified on rebuttal that in June, 1976, she was in Seattle with Renton, Cassell, and McLaughlin. At that time, in the presence of the others, McLaughlin said that if he ever decided to take his own life he would leave a note or letter to let people know that he would take the blame for the murder, so that his friends would not be implicated. Cassell was in on the discussion, and “he confirmed that if he was killed or anything like that he would want it blamed on him, also.” That shared willingness to have all the blame cast upon the first one to die suggests joint guilt, as would be the case if all four men were present when Hussey was shot four times. Connie also testified that once in a motel in Alabama Cassell said that he knew there was a warrant for his arrest, that he was wanted for murder, and that if he was caught he would give up.

We mention two other matters that occurred on the Sunday morning of the murder. At about 11:00 o’clock Renton and Cassell appeared at the home of John Paul Potter, a used car dealer in Oklahoma City. Renton and Cassell had used their assumed names in buying the Chrysler from Potter about 60 days earlier. Both men were nervous; Renton had shaved off his beard. They wanted to trade the Chrysler for another car. Potter’s car lot was not open for business on Sunday, but he accompanied the two men to the lot and completed a deal by which the Chrysler was exchanged for another car.

Also on Sunday morning the discovery of the still smoking van was reported to the police. Hussey’s body was found nearby, as was the license plate, JEX-966. In the ashes were snap buttons of the same kind as those on some of the coats stolen at Campbell-Bell.

Connie testified that the four men, Renton, Cassell, McLaughlin, and Wallace, returned to the motel in Dallas on December 23. By then Cassell had also shaved off his beard. All the men assumed new names and obtained new I.D.’s (identifications). The original group of four, Renton, Cassell, McLaughlin, and Connie apparently traveled together for another seven months, pursuing their course of crime over a territory ranging from Atlanta to Seattle. The change of identity served its purpose, for Cassell was not arrested until 30 months after Hussey’s murder.

We have no hesitancy in holding the proof sufficient to support the verdict of guilty. Under our law one who participates in a crime, standing by and aiding in its commission, is equally guilty with the principal who fires the fatal shot. In Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600 (1972), two men had entered a house to commit larceny. The owner of the house returned unexpectedly, and his daughter was killed in an exchange of gunfire. Regardless of who fired the fatal shot, even if it was the father, either intruder could be found guilty of murder. This language is pertinent to the case at bar:

Each conspirator or participant is responsible for everything done which followed directly and immediately in the execution of the common purpose as one of its probable and natural consequences. Bosnick v. State, 248 Ark. 846, 454 S.W. 2d 311. The burglary and larceny, if committed, or the scheme to commit these crimes, if it existed, did not terminate until the perpetrators had left the scene. Clark v. State, 169 Ark. 717, 276 S.W. 849. The acts of the participants in an effort to escape are a part of the continuous scheme or conspiracy and the act of one is the act of all. Wilson v. State, [188 Ark. 846, 68 S.W. 2d 100]; Clark v. State, supra; Maxwell v. State, 188 Ark. 111, 64 S.W. 2d 79. In the cases cited in Wilson from other jurisdictions, it is clearly recognized that the law holds a participant in a crime responsible for the acts of another acting in concert with him or in the furtherance of a common object, design or purpose. Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541 (1863); Butler v. People, 125 Ill. 641, 18 N.E. 338 (1888); Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961 (1900); Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125 (1900); Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085 (1905).

This case is wholly different from those in which the only evidence to connect the accused with a crime is his association with a participant at a time and place remote from the offense. E.g., Vaughn and Wilkins v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972), distinguished in Redman v. State, 265 Ark. 774, 784, 580 S.W. 2d 945 (1979). Here the proof of joint participation and therefore common guilt is in our opinion convincing.

In our discussion we may disregard Wallace, about whom the record tells us little. The other three, Renton, Cassell, and McLaughlin, had traveled together as professional criminals for three months before the Hussey murder and continued to travel together for seven months after that murder. They used the Travel-All van and the Chrysler car when needed. All four men came from Dallas to Fayetteville in the two vehicles for the avowed purpose of committing crime. They stayed together at the motel. At least three of them, Renton and two others, familiarized themselves with the layout of the Campbell-Bell store at Rogers. All four, or at the least two or three were in the van when Hussey stopped it; so the fourth man was presumably in the lead car. The two vehicles must have been traveling together, for they both stopped after Hussey flashed his lights. At least two of the four were present at Hussey’s execution, because a second vehicle had to be used to drive the 14 miles from the burned van back to the Holiday Inn.

It is hardly possible to suppose that these experienced criminals did not suspect that Hussey had radioed a description of the van and perhaps of the other vehicle. They apparently acted upon that probability by murdering Hus-sey, by burning the Travel-All in a wooded area where its almost immediate discovery came about by chance, and by going out of their way to take the Chrysler to Oklahoma to the one dealer who knew the car and might be likely to trade for it on a Sunday morning. Renton and Cassell must have acted in haste to reach Oklahoma City as quickly as they did, for it must have taken some time to find a secluded spot in unfamiliar territory, to murder Hussey, to build a fire that effectively burned the van, to return to the motel, pack up and leave, and to drive some 200 miles to Oklahoma City. That both men were anxious to dispose of the Chrysler as soon as possible implies that the lead car stopped on the highway was the Chrysler, not an off-white Ford as stated by Gillman.

We have held that relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense. Jackson v. State, 256 Ark. 406, 409, 507 S.W. 2d 705 (1974). Flight from the scene of the crime has long been regarded as a circumstance corroborative of other proof of guilt. Stevens v. State, 143 Ark. 618, 221 S.W. 186 (1920). Every one of those relevant circumstances is shown here, plus the fact that the Campbell-Bell burglary was planned in advance and the probability that the abduction and murder of Officer Hussey were prompted by the thieves’ possession of stolen goods in the van.

To sum up, our substantial evidence rule in a case depending on circumstantial evidence means simply that the proof must go beyond presenting the jury a choice so evenly balanced that a finding of guilt must rest not on testimony but on conjecture. That is not the situation in this case. To the contrary, defense counsel have not in the course of an excellent brief ventured to formulate any theory of the crime by which Cassell might emerge as an innocent man, wrongly accused of a murder in which he had no part. Nor have we been able to reconcile such a theory with the evidence. The jury apparently found criminal complicity on Cassell’s part, because one of the mitigating circumstances unanimously specified by the jury was that the capital murder was committed by another person and that Cassell was an accomplice. The evidence supporting the verdict of guilty amply satisfies the requirement that it be substantial.

The other five points for reversal are without comparable difficulty and require little discussion. First, it is argued that the court should have had the court reporter reread certain testimony when the jury interrupted its deliberations to send a note to the judge asking for a transcript of the testimony of Frank Perry, Darrell Harp, Charles Gillman, and Larry Johnson, the last-named being a defense witness who testified that on December 20 he saw in Springdale a blue van, having Texas license tags, occupied by three men, and being driven by a man the witness identified from photographs as McLaughlin. The court denied the request for a transcript, explaining to the jury that it would take a long time to get a transcript and mentioning other obstacles.

It is insisted that the court was required by statute to grant the jury’s request, in view of Ark. Stat. Ann. § 43-2139 (Repl. 1977). We cannot consider this point, for want of an objection below. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980). The court reporter took down the judge’s remarks denying the request, but there is no record of any objection by defense counsel. The only reference to a possible objection was in the prosecutor’s oral argument when a motion for a new trial was being presented. The prosecutor then said there was a discussion at the trial bar when the note came in; so counsel evidently were present. The prosecutor also said, later: “I’m not sure if they objected or not. I think there was ... some sort of an objection, but... I can’t recall exactly what transpired.” For all the record shows, the objection may have been to the possible granting of the jury’s request, not to its denial. That attitude might well have been taken by defense counsel, since two of the witnesses named by the jury had testified for the prosecution. In any event, without an objection there is no basis for appellate review.

Second, defense counsel argues that a “death qualified” jury is more prone to convict. There was no proof to support that contention when it was made by motion in the trial court. We adhere to our previous ruling that the argument is without merit. Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980).

Third, Cassell was not denied a speedy trial. He was arrested on November 10, 1978. The next four terms of court began on January 1, April 1, July 1, and October 1. When the case was set to be tried on September 10, which would have been within the third term and therefore permissible, Criminal Procedure Rules 28.1 and 30.1 (b), Cassell moved for a dismissal. The trial court found that there had been periods of excusable delay, but even if there had not been Cassell would have been entitled under Rule 30.1 (b) only to a release on his own recognizance, not to an absolute discharge. Matthews v. State, 268 Ark. 484, 489, 598 S.W. 2d 58 (1980).

Alternatively, Cassell argues in this court that our former statute requiring an incarcerated defendant to be tried within two terms of court laid down a rule of substantive law which this court could not supersede by a rule of procedure permitting a longer delay. Ark. Stat. Ann. § 43-1708 (Repl. 1977). That statute, however, was not substantive law merely because its violation might have a substantive effect. That is true of many procedural statutes, such as a statute of limitations or a statute requiring a defendant to file an answer within 20 days after the service of summons. In criminal matters substantive law declares what acts are crimes and prescribes the punishment; procedural law provides or regulates the steps by which one who violates a criminal statute is punished. Roberts v. Love, 231 Ark. 886, 333 S.W. 2d 897 (1960). Under that distinction a speedy trial statute is procedural.

Fourth, proof of the Campbell-Bell burglary was clearly admissible as being relevant to prove both the motive and the identity of the murderers. Uniform Evidence Rule 404 (b). We have already shown that the circumstantial evidence was amply sufficient to connect Cassell with the burglary.

Fifth, when disc number 1030 was drawn from the jury wheel, the clerk erroneously copied the name of juror 1031 from the master list; so the wrong juror was summoned. Also, the names were written on a yellow legal pad before being transferred to the jury book. Both errors were trivial and did not amount to such substantial irregularities as to be a basis for a challenge to the entire jury. Ark. Stat. Ann. § 39-215 (Supp. 1979);Huckaby v. State, 262 Ark. 413, 557 S.W. 2d 875 (1977). Moreover, as in Huckaby, there is not the slightest question about the integrity of the list.

No error is shown by the abstract of other objections.

Affirmed.

Hickman and Purtle, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The State proved that a terrible crime had been committed. It proved that the appellant is no doubt a professional thief. The State did not prove by any acceptable legal standard that this appellant is guilty of killing the policeman or that he in any way aided in that crime.

I am convinced that in this case the majority is abandoning its standard of review for criminal cases. We should abide by the rule that there must be substantial evidence to support a finding of guilty. We recently defined this standard as:

... evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. Ford on Evidence, Vol. 4 § 549, page 2760. Substantial evidence has also been defined as ‘evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.’ [Emphasis added.]

Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).

In Jones, we referred to the United States Supreme Court’s requirement of proof in criminal cases because our law must meet the United States Supreme Court’s standard. The United States Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979) defined the constitutional standard for sufficiency of proof as whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

What “substantial” evidence is there that Cassell murdered the policeman? What substantial evidence is there that Cassell solicited, aided, or encouraged in any way the officer’s death? Those are the only questions before us. It was not proved that Cassell had been in Rogers, Arkansas, earlier that day when Renton visited the Campbell-Bell store. It was not even proved that he was in Rogers, Arkansas, when a burglary occurred. It was not proved with any certainty that his car, a Chrysler, was there. It was certainly not proved that he was in the Travel-All registered to Renton which was stopped by Officer Hussey. This Travel-All was stopped two hours after the burglary and twenty miles away. It was not even proved that Cassell’s vehicle was at the scene where the officer stopped a vehicle. There is no proof at all to connect Cassell to the apparent scene of the murder which occurred several miles from where the Travel-All was stopped.

There was evidence that a passenger car, a ’65, ’66 or ’67 model, with a “van or whatever” left the vicinity of the Campbell-Bell store about 1:45 A.M. At the trial a witness said he thought it was a Chrysler vehicle. He based this on the fact he had previously owned a ’65 Plymouth. There was evidence that a ’65 Plymouth is in no way similar to Cassell’s car, a ’71 Chrysler. There was evidence that a white Ford passenger vehicle with a Texas license was stopped in front of the Travel-All on the highway. There was evidence that McLaughlin owned a white Ford with Texas tags. There was no proof at all that Cassell or his vehicle were present when the officer stopped the Travel-All. One witness said “two or three” people were in the Travel-All. Another saw no one except the officer.

On this evidence the majority concludes that what happened was as follows:

At least three of them, Renton and two others, familiarized themselves with the layout of the Campbell-Bell store at Rogers. All four, or at the least two of them, committed that burglary, two vehicles being used. Gillman’s testimony for the defense indicates that two or three were in the van when Hussey stopped it; so the fourth man was presumably in the lead car. The two vehicles must have been traveling together, for they both stopped after Hussey flashed his lights. At least two of the four were present at Hussey’s execution, because a second vehicle had to be used to drive the 14 miles from the burned van back to the Holiday Inn.
It is hardly possible to suppose that these experienced criminals did not suspect that Hussey had radioed a description of the van and perhaps of the other vehicle. They apparently acted upon that probability by murdering Hussey, by burning the Travel-All in a wooded area where its almost immediate discovery came about by chance, and by going out of their way to take the Chrysler to Oklahoma to the one dealer who knew the car and might be likely to trade for it on a Sunday morning.

Who were the two others with Renton in Rogers? We don’t know, but Cassell was not identified as one of them. Did all four or only two of them commit the burglary? We don’t know whether it was one or four. Were two vehicles used or more? Two vehicles were seen leaving the area together. What happened in the two hours between the time the vehicles were seen in Rogers and the Travel-All was stopped? We don’t know. Where is the evidence that there was a “lead” car? There is none. Where is the evidence that the two vehicles were traveling together on the highway? There is none. Who were the “two” present when Hussey was killed several miles from where the vehicle was stopped? There is no evidence that anyone was present except that obviously the officer was killed by someone and that he was found near a vehicle registered to Renton. Where is the evidence that “two” were present? Where is the evidence that a second vehicle had to be used to drive back to the Holiday Inn? There is none. That is all speculation. Where is the evidence that these criminals suspected Hussey had radioed a description of the van and “perhaps the other vehicle”? There is none. Where is the evidence that acting on that “probability” Hussey was murdered? There is none. That is all speculation.

The only hint at all that Cassell may have been present at the burglary was the weak testimony of the one witness who looked out of his window at 1:45 A.M. and saw two vehicles.

No doubt Cassell was in Fayetteville the day before; no doubt he was with Renton in Tulsa, Oklahoma, the next day. The evidence indicates that Renton and Cassell had been partners in burglary and thievery. But when the evidence is examined, as we are required to do, one can only conclude that it would be speculation to say that Cassell killed the officer or aided in any way in the murder. The State cannot place Cassell or his vehicle at the abduction scene or murder scene. It cannot even conclude that four people were present. The State’s proof simply is short of that proof required by our standard and by the United States Supreme Court’s standard.

Ours is a system that presumes innocence, not guilt; it requires the State to prove guilt by competent evidence beyond a reasonable doubt; it requires nothing of a defendant. It is a system that requires us to affirm convictions on the basis of substantial evidence, not speculation.

The State no doubt made its best effort to show guilt. Car tracks which could have been made by a thousand different cars were found outside the Rogers store. The car could have been Cassell’s or anyone else’s. But where is the proof that Cassell was there? He may have been on the highway, but where is the proof that he was there? There is no evidence Cassell participated in this murder. It is understandable why a jury in a case like this could not bring itself to apply the law. Under such circumstances it is hard for laymen to actually believe in the presumption of innocence and that the State must prove guilt beyond a reasonable doubt. It was a terrible crime and the jury had before it a criminal. It is only human to want to lay responsibility for such a crime on one who might have done it. But judges cannot so easily avoid this duty. In such cases we must adhere to our rules regardless of the nature of the crime or the character of the defendant. Otherwise, the right to a fair trial cannot exist; the law will have no integrity.

The majority distinguishes the case of Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972) as it well should. Applying the logic of that case, Cassell must be acquitted.

The question before us is not the character of Cassell. It is not the fact that a terrible crime was committed for which someone or several people should pay. We must apply the law; we must apply the test from Jones v. State, supra. Does the evidence compel a conclusion that Cassell participated in the murder? Does it force the mind to pass beyond a suspicion or conjecture? The majority has created its own script of what happened. I cannot find substantial evidence to support such speculation. I respectfully dissent.

Purtle, J., joins in this dissent.


source: Caselaw Access Project

author:
Frank Holt, Justice.
      John I. Purtle, Justice,

license: Public Domain

text:
    Jimmy Dale JORDAN v. STATE of Arkansas
    CR 81-27
    616 S.W. 2d 480
    Supreme Court of Arkansas
    Opinion delivered June 1, 1981

      Gordon L. Cummings, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of burglary with a firearm for which a twenty year sentence was imposed. A few days after filing a notice of appeal, he filed a motion to proceed informa pauperis, pursuant to Rule 18, Circuit and Chancery Court Uniform Rules, Ark. Stat. Ann Vol. 3A. After a hearing, the trial court ruled appellant had not established indigency and denied his motion for a $1,000 free transcript. The court did authorize a free transcript ($88.00) of the indigency hearing. We have accepted a transfer of this case from the Court of Appeals as sufficiently involving a legal principle of major importance on which there is little recent case law. Rule 29 (4) (b), Rules of the Supreme Court and Court of Appeals. The only issue on the appeal is whether the trial court erred in finding appellant had not established indigency.

Appellant filed a verified affidavit with his motion, stating he was not employed, he was making $600 per month at the time of his last employment on December 1, 1980, a few days before his trial; he had received no income from any other enumerated sources the past year; he had no money in checking or savings accounts; he owned no real estate, stocks, bonds, notes, automobiles or other valuable property, and his wife was dependent on him for support. At the hearing two weeks later, he testified that he was drawing unemployment benefits of $99 per week, his wife was employed, making $125-$130 per week, and his family and friends were not able to provide money for the costs of appeal. On cross-examination he admitted that he had testified at trial the previous month that he had $5,000 with which to pay a fine. However, he did not have it at that time. He did not lie to the jury since the $5,000 he had then was his family’s and was used for attorney’s fees and posting trial and appellate bonds. He had worked a couple of days for his brother before the trial. When he told the jury he was employed, he was drawing unemployment and had worked 3 or 4 days for his brother, making $24 one day. He could not work full time because he would lose his unemployment benefits. He was unemployed because his “concrete work is seasonal” and his employer had laid him off because of bad weather. He owned a 1968 Dodge for which he and his wife were paying his father-in-law $10 per week, which payments were delinquent. Other than some household furnishings. and clothing, he owned a television worth $75 and his rent was $150 per month.

When questioned by the court, appellant stated his regular employer had offered him employment in Harrison, a distance of 80-90 miles; however, he would have to drive back and forth on weekends and he did not want to leave his wife. If he made a round trip each day, gas expenses would be more than the unemployment benefits he was drawing. He had made application for employment at a nearby town. Present counsel, who was retained and paid as trial counsel, verified that he was representing appellant on appeal without charge.

A right to a transcript at public expense exists when it is established that a defendant cannot afford the costs of the transcript. Hutcherson v. State, 262 Ark. 535, 558 S.W. 2d 156 (1977); Roberts v. LaValee, 389 U.S. 40 (1967); and Griffin v. Illinois, 351 U.S. 12 (1956). Here, appellant claims no dependents other than his wife, and she is working. He was drawing $99 per week unemployment benefits at the time of the hearing. He stated in his affidavit that he was making $600 per month before being “laid off’ a few days before his trial due to the weather; however, his testimony at the indigency hearing indicated his pay was $250 per week. This previous employer had since offered him work which he refused because he would have to be away from his wife during the week.

The same trial judge had heard and observed appellant as a witness at trial and at the indigency hearing. It was for him to resolve the credibility of the witness as well as any contradictions in his testimony. The test on appellate review is whether there was an abuse of discretion by the trial judge in finding that appellant has not met his burden of establishing his asserted indigency. See Toomer v. State, 263 Ark. 595, 566 S.W. 2d 393 (1978). Here in the circumstances, we find no abuse of discretion.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority because I believe the appellant should be allowed to proceed informa pauperis. Obviously, there is no way he could raise the #1,000 which the court reporter will charge for the transcrit. He would naturally have to have additional money for attorney’s fees. All of this must be paid before he can perfect his appeal. Therefore, we are denying him the right to appeal his conviction.

What he may have earned prior to his conviction, or what he might earn in the future, is all beside the point. What he has at this time is the sum of #99 per week unemployment benefits. No man can pay his own living expenses from this amount of income. Therefore, I would grant the petition to proceed in forma pauperis.


author: Jeffery Pence, Special Justice.

text:
    NATIONAL BANK OF COMMERCE OF PINE BLUFF v. HART COTTON COMPANY, INC., C. E. HART, Marjorie C. HART, and SIMMONS FIRST NATIONAL BANK OF PINE BLUFF
    80-224
    617 S.W. 2d 343
    Supreme Court of Arkansas
    Opinion delivered June 1, 1981
    [Rehearing denied July 13, 1981.]

      Bridges, Young, Matthews, Holmes & Drake, for appellant.

      Brockman & Brockman, and Coleman, Gantt, Ramsay & Clark, for appellees.
   Jeffery Pence, Special Justice.

National Bank of Commerce of Pine Bluff, hereinafter referred to as NBC, brought this action seeking a Declaratory Judgment as to its liability, if any, to Simmons First National Bank of Pine Bluff, hereinafter referred to as Simmons, and the liability, if any, of Marjorie C. Hart, hereinafter referred to as Mrs. Hart, to NBC.

The facts in this case are not in dispute. Mrs. Hart and her husband, C. E. Hart, hereinafter referred to as Mr. Hart, deposited $10,000 into a joint savings account at NBC on March 15, 1972, and both signed signature cards establishing the savings account contract. On October 1, 1974, Mr. Hart executed a collateral assignment or pledge of the account to Simmons. This assignment was “as security for any debt executed by Hart Cotton Company, Inc.” This document was prepared by Simmons and acknowledged by NBC, and NBC stated in writing that the assignment had been properly noted on NBC’s records. Mrs. Hart, on three separate occasions in November and December, 1978, withdrew all funds from the account.

NBC through an admitted mistake allowed Mrs. Hart to withdraw the funds, even though NBC’s computer showed a “hold” on the account. NBC could not at the time of the withdrawals discover the reason for the “hold” on the account, and did not find the collateral assignment (which was in NBC’s vault) until Simmons on June 19, 1979 made written demand upon NBC for payment under the terms of the collateral assignment.

At the trial of this cause, Mr. or Mrs. Hart did not testify.

The issue to be decided by this Court is whether NBC, due to NBC’s admitted mistake in allowing the funds to be withdrawn, is entitled to a setoff against Mrs. Hart’s funds which are currently on deposit at NBC.

The Chancellor ruled that Simmons was entitled to Judgment against NBC pursuant to the collateral assignment, and that NBC has no setoff or claim on funds belonging to Mrs. Hart now on deposit at NBC.

Ark. Stat. Ann. § 67-552 (d) sets forth the rights of Mr. and Mrs. Hart to their joint savings account and states as follows:

“If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the entirety, tenants in common, or otherwise, a banking institution shall pay withdrawal requests, accept pledges of the same and otherwise deal in any manner with the account or certificate of deposit upon the direction of any one (1) of the persons named therein whether the other persons named in said account or certificate of deposit be living or not; unless one (1) of such persons named therein shall by written instructions delivered to the banking institution designate that the signature of more than one (1) person shall be required to deal with such account or certificate of depost [deposit].”

Clearly NBC is bound to Simmons by virtue of the collateral assignment and by the provisions of the statute. Mr. and Mrs. Hart are bound by the statute, the joint savings account contract with NBC, and by the collateral assignment of the account executed by Mr. Hart.

NBC is relying upon Section 67-552 (d) for its protection in accepting pledges of a joint account and we think rightfully so.

The Chancellor points out that this Court in Wood v. Wright, 238 Ark. 941 (1965) stated in discussing the nature of the entirety property that “neither spouse owns an indi-vided one-half interest in any entirety property and that the entire entirety estate is vested and held in each spouse.” When Mr. Hart executed the collateral assignment of the joint savings account pursuant to Section 67-552 (d), Mr. or Mrs. Hart no longer had any right as a matter of law to withdraw funds from the account unless a release was first obtained from Simmons.

Upon Mrs. Hart wrongfully being allowed to withdraw the funds due to the admitted mistake of NBC, an indebtedness from Mrs. Hart to NBC was created. As Mrs. Hart, subsequent to the withdrawals, had purchased a certificate of deposit from NBC, a mutuality of indebtedness came into existence, and as there were no restrictions on the certificate of deposit, the essential elements for a setoff were established to allow a setoff by NBC.

The Chancellor ruled as to the constitutionality of Section 67-552 (d) and the Court has carefully considered this issue and the remaining issues and found them to be without merit.

To find that NBC should be monetarily penalized for its admitted honest mistake and allow Mrs. Hart to gain from such mistake would be misplacing the equities and not doing justice.

We therefore affirm as to judgment in favor of Appellee, Simmons, against Appellant, NBC, and reverse as to the Chancellor’s denial of relief by way of setoff sought by Appellant, NBC, against Appellee, Marjorie C. Hart.

Frank Holt, Justice, not participating.


author: Richard B. Adkisson, Chief Justice.

text:
    STATE of Arkansas v. Charles WASHINGTON and L. C. WASHINGTON
    CR 81-5
    617 S.W. 2d 3
    Supreme Court of Arkansas
    Opinion delivered June 8, 1981

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellant.

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellees.
   Richard B. Adkisson, Chief Justice.

This is an appeal by the State from an order of the Pulaski County Circuit Court dismissing charges of first degree battery against appellees, Charles and L. C. Washington, for failure of the State to bring them to trial within three terms of court.

The order of dismissal was entered on October 27, 1980, pursuant to Rule 30.1(a), Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977), which provides:

[A] defendant not brought to trial before the running of the time for trial, as extended by excluded periods, shall be absolutely discharged. This discharge shall constitute an absolute bar to prosecution. ...

Since each appellee was on bail or lawfully at liberty prior to the date charges were filed in cricuit court, the speedy trial provisions of Ark. VIII, Rules 27.1 — 30.2, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977) began to run from the time of arrest and require that the appellees be brought to trial before the end of the third full term of court after arrest. Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978).

The terms of court in Pulaski County begin on the first Monday in March and the fourth Monday in September. Ark. Stat. Ann. § 22-310 (Repl. 1962). Thus, the relevant court terms are:

March 5, 1979

September 24, 1979

March 3, 1980

September 22, 1980

Appellees were arrested sometime prior to the March 5, 1979, term of the Pulaski County Circuit Court. Therefore, the trial must have been held before September 22, 1980.

The State contends that this case should not have been dismissed for a denial of the right to a speedy trial as there were two excludable periods of time within the three terms of court which had run — one period based on the unavailability for trial of the appellees and the second period based on the time between the State’s entry of a nolle prosequi and the time the charges were refiled.

First, the State argues that the third term of court following arrest was extended by the period of delay resulting from appellees’ absence or unavailability pursuant to Rule 28.3 (e) which provides:

The period of delay resulting from the absence or unavailability of the defendant. A defendant shall be considered absent whenever his whereabouts are unknown. A defendant shall also be considered unavailable whenever his whereabouts are known but his presence for the trial cannot be obtained or he resists being returned to the state for trial.

The burden is on the State to prove an excludable period is legally justified. State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980). To do this the State relies primarily on the docket sheet notes kept by the trial judge:

CRIMINAL DOCKET

Case No.: 79-0801 State of Arkansas vs. Battery, First Degree L. C. Washington Charles Washington

Date of Filing: May 1, 1979

Date of Orders Orders of Court

08/25/79 Scheduled 10/3/79, 8:30 a.m. to sound the docket on L. C. Washington

08/25/79 Charles Washington scheduled 9/12/79, 8:30 for P&A.

09/12/79 Pass to October 11, 1979 Charles failed to appear on recognizance bond and sheriff has [not] served warrant on L. C. Washington

10/03/79 Pass from 11/8/79 for report from sheriff.

11/08/79 L. C. Washington, Charles Washington — Pass to 12/13/79 for clerk to issue warrant and for sheriff to report. L. C. to surrender today. Passed to 12/13/79.

11/16/79 Tom Carpenter represents defendant; waive reading of information; plea of not guilty; jury trial; pass both defendants to 12/13/79 at 8:30 for P&A of L. C. and trial setting. Charles to remain on recognizance bond.

12/13/79 L. C. Washington — Waives reading of information. Plea of not guilty is entered. Jury trial requested 3/5/80. Pretrial February 14, 1980.

02/14/80 Pretrial hearing — negotiations extended to 2/28/80.

02/27/80 Nolle Prosequi Order filed.

10/07/80 Motion to dismiss for lack of speedy trial filed.

The record reflects that this case was filed in circuit court on May 1, 1979, and a bench warrant was issued for the arrest of L. C. Washington (L. C). At this time L. C. was free on a $2,500 bond which had been made while the case was pending in Little Rock Municipal Court. The State claims L. C.’s time for trial was extended since he was unavailable from August 25, 1979, when he failed to appear “to sound the docket” until he appeared on November 16, 1979. Neither the docket sheet nor any other information in the record reflects that L. C. or his bondsman were notified of any date on which he was required to appear.

Charges were also filed against Charles Washington (Charles) in circuit court on May 1, 1979, but no bench warrant was issued for him. Charles had been recognized for all subsequent appearances by the Little Rock Municipal Court which was the examining court.

The State claims Charles’s time for trial was extended since he was unavailable from September 12, 1979, when he failed to appear for his scheduled plea and arraignment until he appeared on November 16, 1979. The court apparently attempted to notify Charles of this date by way of a letter addressed to him at 1821 1/2 South Valentine in Little Rock. This address is not given by the State on the back of the Information; nor can the address be found in any of the court records; nor is there a finding by the court or any indication in the record that Charles might be at this address.

The primary burden is on the State to assure that cases are brought to trial. Barker v. Wingo, 407 U.S. 514, 529 (1972). It is incumbent upon the State to prove the delay was legally justified. State v. Lewis, supra. In regard to the unavailability of appellees, the trial court, in its order of dismissal, found the “claimed excludable period of time was not due to the defendants being unavailable, but because the Sheriff failed to follow through in the serving of the proper notice or warrants.” However, no testimony was offered by the State to show that the appellees were unavailable. Instead, the State relies solely on the court’s docket sheet notations as the basis for the appellees’ unavailability, but these notes are inconclusive and sketchy. There being no showing by the State to the contrary, we must rely on the court’s findings in its order of dismissal to the effect that the delay was caused by the failure of the Sheriff to notify appellees. This finding seems to be substantiated by the record since the court did not order a bail bond forfeiture on L. C. Washington or change Charles Washington’s status of being on personal recognizance.

Second, the State contends that the period from the nolle prosequi order, filed on February 27, 1980, until charges were refiled was an excludable period as to both defendants under Rule 28.3 (f) which provides:

If the charge was dismissed upon motion of the prosecuting attorney and thereafter a charge is filed against the defendant for the same offense or an offense required to be joined with that offense, the period of delay from the date the charge was dismissed to the date the time limitations would commence running as to the subsequent charge had there been no previous charge.

The court order dismissing charges for lack of speedy trial reflects that permission was earlier granted for the nolle prosequi of the Information “when the prosecuting attorney could not obtain the cooperation of a material witness in order to prepare for trial”; the court then ruled “there are no excludable periods . . . [and] Rule 30.1 (a) requires a dismissal.”

The State has apparently attempted to use the procedure of taking a nolle prosequi to bypass Rule 28.3 (d) where an excludable period may be granted the State under certain circumstances. The action by the State of entering a nolle prosequi or dismissing with leave to refile does not toll the running of our speedy trial provisions under Rule 28.3 (f) absent a showing of good cause for the period of delay. The United States Supreme Court, in holding the speedy trial provisions of the Sixth Amendment of the United States Constitution applies to the states through the Fourteenth Amendment, held in Klopfer v. North Carolina, 386 U.S. 213 (1967), that the State is not relieved of a speedy trial limitation placed upon it merely because the defendant is permitted absolute release pending disposition of the charges. The Arkansas procedure, here, is the same as the North Carolina statute construed in Klopfer which provided for nolle prosequi “with leave” which meant the defendant was not discharged.

By Per Curiam this date we are changing Rule 28.3 (f) to reflect our holding in this case that the period of delay must be for good cause shown.

Affirmed.


author: George Rose Smith, Justice.

text:
    Lauren MAXWELL v. SOUTHSIDE SCHOOL DISTRICT
    80-312
    618 S.W. 2d 148
    Supreme Court of Arkansas
    Opinion delivered June 8, 1981
    and amended on denial of rehearing July 20, 1981

      Cearley, Gitchel, Mitchell & Bryant, P.A., for appellant.

      Carter & Woods, for appellee.
   George Rose Smith, Justice.

The question here is whether the appellee school district substantially complied with state law in refusing to renew the contract of the appellant, Lauren Maxwell, as a music teacher for the school year 1980-81. We are unable to agree with the circuit court’s conclusion that the district’s termination of Mrs. Maxwell’s contract was in substantial compliance with the law.

During the 1979-80 school year Mrs. Maxwell was still a probationary teacher, in her second year with the district. On March 19, 1980, the day before a scheduled meeting of the school board, the school principal hurriedly filled out a form recommending, not quite wholeheartedly, that Mrs. Maxwell be rehired. The next day, however, the school board met and voted not to renew Mrs. Maxwell’s contract, apparently in response to complaints (not in the record) made by unidentified parents. On the same day the board sent Mrs. Maxwell a notice stating merely that the board had voted not to renew her contract. No reasons were given.

On April 9 Mrs. Maxwell requested a public hearing and asked for a specification of the charges and circumstances, with the names of witnesses. The school board responded with a brief generalized statement of three reasons, without details or names of witnesses. After a public hearing on April 24 the board took the matter under advisement. On May 3 it released a written opinion adhering to its original non-renewal decision. Mrs. Maxwell pursued the only remedy afforded by the statute, an appeal to the circuit court. Ark. Stat. Ann. § 80-1264.9 (Repl. 1980).

The district is right in its argument that Mrs. Maxwell has not shown a violation of the Teacher Fair Dismissal Act of 1979. §§ 80-1264 et seq. That act contemplates that the school superintendent will first recommend a teacher’s non-renewal; but we have held that the school board can refuse to renew even though, as here, the superintendent recommends renewal. Fullerton v. Southside Sch. Dist., 272 Ark. 288, 613 S.W. 2d 827 (1981). Moreover, although the act requires that a tenured teacher be given reasons for non-renewal, there is no similar requirement as to a probationary teacher. § 80-1264.3. No violation of the Dismissal Act is shown.

There is, however, another consideration. Ordinarily a school district cannot by the adoption of a tenure policy give a teacher a tenure beyond that authorized by law. Nethercutt v. Pulaski County Spec. Sch. Dist., 251 Ark. 836, 475 S.W. 2d 517 (1972). The legislature, however, has specifically required school districts to adopt written personnel policies, which must be reviewed annually and be supplied to the teachers. §§ 80-1256 et seq. We do not imply that such policies have the force of law, since legislative power cannot be delegated, but we do agree with the view that as a matter of contract law and fair dealing even a non-tenured teacher may reasonably expect the district to comply substantially with its own declared policies. See Burnaman v. Ray City Ind. Sch. Dist., 445 F. Supp. 927, 936 (S.D. Tex. 1978). In the present case Mrs. Maxwell had received a copy of the district’s personnel policies.

The appellee’s policies on dismissal and non-renewal contain this explicit language:

When the board of education receives evidence which it considers sufficient to dismiss or not renew the contract of a teacher, it shall notify the teacher in writing. Such notice shall: (a) advise the teacher of the cause or causes of his proposed dismissal in sufficient detail to fairly enable him to show any error which may exist; (b) advise him, that upon request in writing, the names and nature of the testimony of witnesses against him shall be furnished; (c) advise him, that upon request in writing, he will be accorded a hearing at which he may be represented by legal counsel and introduce witnesses in his own defense.

Mrs. Maxwell, upon being notified of the board’s action, requested a public hearing, a specification of the charges, and the names of witnesses. The board set a hearing date, but it gave no detailed information about the charges nor the names of any witnesses. At the ensuing hearing Mrs. Maxwell answered the vague charges against her, but no witness appeared to contradict her version of what seems to have happened — minor disciplinary incidents within the school. Ten days after the hearing the school board adhered to its non-renewal of Mrs. Maxwell’s contract, but the record is completely silent about the evidence that led the board to reach its original decision on March 20.

Here the school board, at or before its March 20 meeting, unquestionably received evidence it considered sufficient to require that Mrs. Maxwell’s contract not be renewed. The district’s policies required that Mrs. Maxwell be given detailed notice of her proposed dismissal and an opportunity to present her defense before the board made its decision. The board, however, gave Mrs. Maxwell no notice whatever, acted upon evidence not even yet disclosed, and informed Mrs. Maxwell of her discharge.

The facts here are materially different from those in the Fullerton case, supra, even though the same school district and the same personnel policies were involved in both cases. In Fullerton the school board, after having decided to renew the teacher’s contract, received patrons’ complaints that led the board to notify the teacher that the board had decided to reconsider the renewal of his contract. Before any decision had been made the teacher asked for and was given a hearing, which at his request was a closed session. He was presented with copies of the complaining patrons’ statements and had an opportunity to respond to them. It was not until a week later that the board decided not to renew the contract. We upheld the board’s action, because we found substantial compliance with controlling principles.

In the case at bar there was not even colorable compliance with the district’s personnel policies. The board’s written policies embodied in basic fairness that is inherent in the requirements of notice and an opportunity to be heard, but both requirements were brushed aside. The board reversed proper procedure by making its decision first and then hearing the evidence. That action cannot be sustained. Kruse v. Board of Directors of Lamoni Community, 231 N.W. 2d 626 (Iowa, 1975); In re Swink, 200 Atl. 200 (Pa. Super., 1938). Moreover, it is a basic rule of fair play in administrative matters that all the evidence be in the record. St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W. 2d 447 (1980). It is impossible for the circuit court or for this court to review the board’s action with no knowledge of what evidence led to its March 20 decision not to renew Mrs. Maxwell’s contract.

In summary, although a school district has great latitude in fixing the exact scope of its personnel policies, Act 400 of 1975 not having specified the content of those policies, a district is not free simply to disregard its rules currently in force. That is what was done here. We must conclude that the non-renewal of Mrs. Maxwell’s contract cannot be upheld.

The circuit court’s judgment must be reversed, which entitles the appellant to recover back pay for one school year, subject to the district’s right to offer proof in mitigation of damages. Newton v. Calhoun County Sch. Dist., 232 Ark. 943, 341 S.W. 2d 30 (1960); Barham v. Welch, 478 F. Supp. 1246 (E.D. Ark. 1979). The cause is remanded to the circuit court for the determination of the amount of back pay to be awarded and of the appellant’s right to reinstatement if that is sought.

Reversed and remanded, the mandate to issue immediately.


author: Steele Hays, Justice.

text:
    Paul RUIZ and Earl VAN DENTON v. STATE of Arkansas
    CR 80-147
    617 S.W. 2d 6
    Supreme Court of Arkansas
    Opinion delivered June 8, 1981
    [Rehearing denied July 6, 1981.]

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellants were first convicted in Logan Circuit Court of crimes of capital murder in the June 29, 1977, robbery, kidnapping and shooting deaths of Marvin Ritchie and Opal James. The jury returned death sentences. On appeal, we reversed the trial court’s denial of motions for a change of venue, pointing to the oppressive and unprecedented pre-trial publicity surrounding the crimes. Ruiz & Van Denton v. State, 265 Ark. 875, 582 S.W. 2d 915 (1979). On remand, the case was transferred to the Conway Circuit Court, the most distant in that judicial district. In the second trial, verdicts of guilt were again returned and in the penalty phase the jury found a number of aggravating factors, no mitigating factors and again imposed sentences of death by electrocution. This appeal is from the second conviction.

While serving life sentences, appellants escaped from the Oklahoma State Prison on June 23, 1977. On the morning of June 29 they were seen near the town of Magazine, in Logan County, parked along Scott Creek Road in a 1972 Ford automobile with a Louisiana license. The record is silent as to where or how, but sometime early that morning, the marshal of Magazine, Marvin Ritchie, came in contact with appellants. His shirt was taken from him and he was placed in the back of his car, his hands handcuffed behind his back. That same morning David Small and Opal James, employees of the Corps of Engineers, were working in the area of Blue Mountain Lake. Driving a Corps of Engineers’ pickup truck, they met Marshal Ritchie’s car on the road to Ashley Creek Park at around 9 o’clock. The marshal’s car drove across the road, blocking their path, and appellants got out of the car brandishing pistols. Paul Ruiz was wearing Marshal Ritchie’s shirt. Small and James were robbed of their shirts and billfolds and put in the back seat of the car with Marshal Ritchie. Appellants asked about roads leading west, which of them knew the area best, and were told Opal James. Appellants concealed the marshal’s car in a drainage ditch and ordered Ritchie and Small into the trunk handcuffed together. Small’s watch was taken from his wrist and one appellant said “you know what we’ve got to do.” The other answered, “yes, I do.” Two shots were fired, one into the brain of Marvin Ritchie, the other into the chest of David Small, and the trunk was closed.

At around 2:30 that afternoon a search party discovered the vehicle and opened the trunk to find Marvin Ritchie dead and David Small critically wounded, but alive and able to provide crucial testimony in trial. Two days later the truck and the body of Opal James were discovered in a wooded area north of Oden in Montgomery County, the body already badly decomposed. Death was caused by a single bullet through the head. The appellants were arrested on July 8, 1977, in Portland, Oregon. Additional testimony, including ballistics and fingerprinting, further connected appellants and the crimes. Neither appellant testified.

On appeal, six instances of error by the trial court are alleged. They have been reviewed along with other objections as required by Rule 36.24, A. R. Crim. P. We find no reason to reverse.

Appellants first argue that the offenses should have been severed. They were charged under Ark. Stat. Ann. § 41-1501 (1) (a) and 41-1501 (1) (c) (Repl. 1977) with the deaths of two persons while committing robbery and kidnapping; they contend that there is insufficient evidence that these offenses occurred during the same criminal episode. They concede a similar point was raised in the first appeal, but they submit the issue was presented differently then, i.e., whether the evidence was sufficient to support the contention that both murders occurred during the course of a single criminal episode. Whereas, the issue raised now is whether the offenses should have been severed for purposes of trial, there being no common plan or scheme. Granted, the new wording is altered slightly, and if the issue is now presented in a different context, it leaves the substance of the argument essentially unchanged. In either case, if the evidence supports a determination that both homicides occurred as a part of the same criminal episode, or were parts of a series of connected acts, then it was not incumbent on the trial court to grant a severance, and certainly not mandatory. The trial court had that discretion and its discretion was not abused.

We disagree that these two murders are not within a single criminal episode or a series of connected acts. Rule 21.1 (b), A. R. Crim. P., permits the joinder of two offenses in one information when they are based on “a series of acts connected together ...” All three men were taken prisoner within a brief period of time, robbed, kidnapped and transported some distance to the drainage ditch where Opal James witnessed the shooting of Marvin Ritchie and David Small, the latter surviving through no credit to the appellants. The fact that Opal James’s death did not occur until later does not disconnect it from the entire episode, as it is plain that his death was deferred solely because he was needed to guide the appellants in unfamiliar territory. We find no greater merit in the argument now than before. In the earlier appeal, it was said:

We fail to understand why appellants would seriously ask us to declare that the evidence in this case was insufficient to support the verdict rendered by the jury. The fact that Marvin Ritchie was killed on the morning of June 29, 1977, and that Opal James was killed 13 or 14 hours later, in Montgomery County or Scott County, does not prove that these two men were not killed in the same criminal episode.

Appellants invoke Rules of Crim. Proc., Rule 22.2 (a) (1976):

Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.

They argue that the offenses are not part of a single scheme or plan. That assertion is debatable, but whether they were part of a single plan or simply random, disconnected crimes is beside the point, because they constitute one criminal episode and when a series of acts are connected that is enough to give the state a right to join them in a single information. Rule 21.1, supra.

The commentary to Rules 21, 22 and 23 states that they are designed “to promote expeditious disposition of criminal cases” without resulting in prejudice to the defendants and without unreasonably restricting the trial court’s discretion in finding the right balance between the two opposing interests. (See Commentary, Article VI, Ark. Stat. Ann., Vol. 4. p. 488.) Rule 22.2, which appellants cite, gives an absolute right of severance when the offenses have been joined solely on the ground that they are of the same or similar character. (Commentary, p. 489 ) Here, the offenses cannot be said to have been joined solely on that ground for the reasons we have stated, and the trial court properly declined to grant a severance.

Appellants refer to the victim in Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657 (1980), though conceding a different context. Rowe involved the principle of double jeopardy, the issue being whether the conduct of the accused constituted a single offense as opposed to two offenses. That is not the question here, so no guidance is provided by the Rowe decision.

Secondly, it is urged that the court erred in excusing certain jurors for cause. The argument here is bi-fold, that three of the 21 jurors excused by the court because of opposition to the death penalty should not have been excused for cause under the precepts announced in Witherspoon v. Illinois, 391 U.S. 510 (1968) and in Boulden v. Holman, 394 U.S. 478 (1969), and that other jurors were improperly excused because of relational ties to a secretary of the prosecuting attorney. First, appellants earnestly submit that jurors Harold Scroggins, Jo Ann Everett and James Moore did not demonstrate fixed opposition to the death penalty and, therefore, their dismissal by the court was not in keeping with Witherspoon, where it is held that conscientious or religious scruples against the death penalty are not disqualifying; a juror must indicate that he will automatically vote against it under any circumstances. We find these jurors gave a clear indication that they would not vote for death whatever the circumstances. It is true that all were in some respects ambivalent in their responses, depending on how the question was phrased, however, in the end all three came short of meeting the test oí Witherspoon and Boulden, that in spite of conscientious scruples against capital punishment they would consider and even impose the death penalty depending on the circumstances. Appellants point out that each of the three expressed a willingness to “consider” death as a possible punishment and contend that this suffices. But all three qualified their responses by saying that they would not vote for the death penalty notwithstanding their willingness to consider it. To say that one would consider the death penalty but would not vote for it is nothing more than a play on words and fails the test of Witherspoon.

Appellants point to a “yes” answer by juror Everett when asked if she would consider both choices, life or death; but the question she was answering was expressly limited to whether she would merely “consider” the two options, as opposed to whether she could then vote on the basis of her consideration:

A: I could consider it but I could never vote for it.
Q: Well, I’m not asking you —I’m not asking you how you would vote at that time. I’m just saying would you consider it?
A: In other words, could I consider —
Q: — The two alternatives, you know, you have two choices. Would you give consideration to both of them and not put your mind blank on one or the other. We wouldn’t want you to go out and say, “My mind is made up for the death penalty only,” or “My mind is made up for the life.” We would want you to consider both choices if the Judge instructed you in that way. Could you do that?
A: Yes.

Ms. Everett made it clear by repeated answers that she drew a distinction between considering the death penalty and voting for the death penalty and that she would not vote for the death penalty “under any circumstances.” Nor are we willing, as appellants argue, simply to take a single answer or even the last answer given by a juror to counsel, whose questions have a partisan slant, as determinative and final; we prefer to examine the overall inquiry, especially questions posed by the trial judge in keeping with Witherspoon as a surer gauge of a juror’s willingness to weigh all the penalties of the law against the evidence and vote accordingly. We have said several times since Witherspoon that the trial judge is in a better position to weigh the contradictions jurors often demonstrate when asked to say beforehand how they would vote on so profound an issue as life or death. Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934 (1980); McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979). The questions and answers of the other two jurors are not essentially different and we believe the trial court was justified in excusing all three under Witherspoon.

The second phase of this point is that juror Joe Allison was excused by the court after having been accepted by both sides because it was learned that he was a cousin to a secretary of the prosecuting attorney. Two other jurors appear to have been excused for a similar reason. Appellants argue that neither Ark. Stat. Ann. § 39-105 (Repl. 1980) nor § 43-1920 (Repl. 1977) is applicable, the first dealing with kinship to a party or an attorney and the second dealing with a variety of relationships from which a bias might be implied. We can find no merit in the argument. The matter was brought to the trial court’s attention by the prosecutor, as it should have been, on the assumption that for a cousin of one of his secretaries to serve on the jury would, at least, give the appearance of bias, especially in light of the fact that, the secretary was expected to be frequently in the courtroom and actively involved in assisting the prosecutors, While the trial judge’s discretion is said to be limited to the issue of actual bias (Gammel v. State, 259 Ark. 96, 531 S.W. 2d 474 [1976]), we are not willing to say he is without discretion to excuse a juror on his own where the issue of bias may be more implied than actual even though it does not fall clearly within the two statutes. It would be impossible for the statutes to cover every conceivable circumstance touching on a juror’s possible bias. The court’s discretion here was exercised in appellants’ favor, as opposed to Henslee v. State, 251 Ark. 125, 471 S.W. 2d 352 (1971), where employees of a company whose lands defendant was charged with burning were permitted to serve as jurors by the trial judge, resulting in a reversal. We said there: “Not only should a trial be fair, it should also appear to be fair ...” Here, the trial judge simply showed an abundance of caution by excusing jurors having the appearance of an implied bias favoring the prosecutor and we could not justify treating that as an abuse of discretion. The same issue was.addressed in Strode v. State, 259 Ark. 859, 537 S.W. 2d 162 (1976):

Since a party is not entitled to have any particular juror, the erroneous rejection of a competent talesman is not prejudicial, in the absence of a showing that some biased or incompetent juror was thrust upon him.

No such showing was attempted here.

'The next assertion of error deals with two black and white photographs, 8x10, which were received in evidence during the guilt phase of the trial. They show the body of Marvin Ritchie lying face down, partially handcuffed, in the trunk of the vehicle where he and David Small were shot. It is claimed the photographs are inflammatory and, beyond that, since the same jury heard both the guilt and penalty phases of trial, the jury was tainted by the introduction of the photographs in its penalty deliberations, a novel argument. This contention is built upon language in Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979), where, discussing the same proposition, we said that the introduction of photographs could not have prejudiced the accused in the penalty phase because the jury chose the lesser punishment, or life. Here, the jury chose the death penalty. But that is dictum rather than precedent, and because that reasoning may have been correct in Gruzen in view of the outcome, does not mean that the reverse is true. The answer lies in the two photographs and we think the court committed no error in receiving them. They are of little evidentiary value, so far as we can observe, but they are relatively free of anything prejudicial. The wound is barely evident; no blood is visible; the face of Marshal Ritchie is not seen; even the posture of the body is relaxed and uncontorted. There is no trace of anything lurid or odious. In short, we find nothing that might be expected to arouse passion or prejudice. Further, it appears these same photographs were challenged in the first appeal and found not to be prejudicial.

Appellants claim that they should have been permitted to voir dire the jury between the guilt phase and the penalty phase of the trial. Citing cases holding that due process requirements of the Constitution apply equally to the penalty phase of a capital case, appellants maintain that a motion for a second voir dire of the jury should have been granted. It is urged that counsel needed to question the jurors to determine if they would consider both options open to them and could disregard evidence in the first phase of the trial not relevent to the issues in the penalty phase. That argument has freshness, but we find nothing cited to support this thesis and as the appellee points out, it could serve no useful purpose except to prolong the trial in view of the language of Ark. Stat. Ann. § 41-1301 (c) that the 'same jury shall sit in both stages of the trial. Upholding this argument would constitute a major disruption in: the statutory scheme of capital trials under Arkansas law,-— a scheme we have approved in several past decisions. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. denied 434 U.S. 878 (1977); Swindler v. State, 267 Ark. 418, 592 S.W. 2d 91, cert. den., 449 U.S. 1057, 101 S. Ct. 630 (1980). Besides, the questions counsel regards as necessary could have been asked during the initial voir dire proceedings. So it cannot be said that our statutory scheme deprives counsel of the opportunity to ask all the questions he deems essential.

Appellants next submit that the jury ignored mitigating evidence presented during the penalty phase, so the death penalty was the result of passion or prejudice. Evidence was presented in the second phase that both appellants suffered from character disorders which, it is said, might cause extreme pressures or emotional disturbance during the time the murders were committed. The second part of their equation is: since extreme emotional disturbance is one of the mitigating factors provided for in Ark. Stat. Ann. § 41-1304 (Repl. 1977), it follows that the jury disregarded that evidence, as shown by its failure to make a finding of any mitigating circumstances. The flaw in this premise lies in the argument itself — it is said that by finding no mitigating circumstance, the jury “completely disregarded” such evidence, while in the same breath conceding that it was not required to do so. But if the jury was not required to make such a finding, how can it be said the evidence was disregarded? It may have been disbelieved or it may have been seriously regarded and in the end rejected. For that matter, the only evidence of the presence of extreme emotional disturbance was the opinion testimony of two clinical psychologists that emotional pressures in certain situations typically accompany the disorders said to belong to these appellants. Gruzen v. State, supra; Curry v. State, 271 Ark. 913, 611 S.W. 2d 745 (1981). The gist of this same argument is dealt with and decided adversely in Miller v. State, 269 Ark. 341, 605 S.W. 2d 430 (1980) and Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979) and cases cited there.

This brings us to appellants’ final point. They argue that our capital felony murder statute, § 41-1501 (1) (a) (Repl. 1977) and our first degree murder statute, § 41-1502 (1) (a) are overlapping and, therefore, constitutionally vague. We recognized the overlapping in Cromwell v. State, 269 Ark. 104, 598 S.W. 2d 73 (1980) and Martin v. State, 261 Ark. 80, 547 S.W. 2d 81 (1977) concluding that some overlapping is unavoidable:

In the first place, it is impossible to avoid the use of general language in the definition of certain offenses. State v. Weston, 255 Ark. 567, 501 S.W. 2d 622 (1973). Moreover, the prosecutor or grand jury is often compelled to choose one of two or more offenses, no matter how precise the statutes may be. For example, the conflicting testimony of eyewitnesses may, depending on their varying credibility, establish capital murder if the accused committed robbery but only murder in the first degree if he committed a lesser felony such as theft of property, battery or aggravated assault. §§ 41-2103, -2203, -1601, and -1604. There can be no constitutional objection to the exercise of a reasonable discretion in that situation. Cromwell, page 107.

We also concluded in Cromwell that the similarity of the wording of the two statutes could not have been unintentional in view of the long study given the criminal code by the drafting committee and the legislature and may have been intended to benefit the accused:

The actual wording of the statute may have been chosen to lighten the possible punishment that might be imposed for conduct falling within the strict definition of capital murder — a consequence that might be acceptable both to the prosecution and to the defense. If that is not true in a particular case, presumably the defense can ask that the State be required to elect between two degrees. In any event, we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses. Cromwell, page 107.

This concept of our statutes was re-examined in Wilson v. State, 271 Ark. 682, 611 S.W. 2d 739 (1981), supplemental opinion delivered March 9, 1981, and reaffirmed on the same arguments raised in this appeal. Appellants cite Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 232 (1980) and Roberts v. Louisiana, 428 U.S. 325 (1976), which are of no avail, as our statutory scheme is not flawed as were those of Alabama and Louisiana. Under Alabama law the jury could not consider lesser included offenses in capital crimes and was limited to either an acquittal or a conviction, in which case death was mandatory, and, hence the jury was deprived of the “third option” of a lesser punishment, which the United States Supreme Court held to be unconstitutional. In Roberts, Louisiana’s statutory scheme was found to be deficient. The jury in Louisiana was always instructed as to lesser included offenses (even where the evidence failed to support such a finding), the error of Louisiana’s procedure being that if the jury found both elements of first degree murder, i.e., that the accused had a specific intent to kill while engaged in a felony (in this case robbery) the death penalty was mandatory. In contrast, our scheme binds the jury in no such fashion, as it is free to impose life without parole in preference to death, notwithstanding a finding of guilt on capital felony murder charges. Moreover, if the evidence is such that the jury is instructed on lesser included offenses, it may lessen the punishment accordingly as its further option.

Finally, this trial resulted in a lengthy record — nine volumes, 3,311 pages. Counsel for appellants and for appellee, following our rules, have cited and commented on many objections raised below but not argued on appeal. It would be of no value to list them singly as we find no prejudicial errors.

The sentences are affirmed.


text:
    Herbert JACKSON v. STATE of Arkansas
    CR 80-270
    617 S.W. 2d 13
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      E. Alvin Schay, State Appellate Defender, by: John Settle, Deputy Public Defender, for appellant.

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

Following a jury trial in Sebastian County Circuit Court appellant, Herbert Jackson, was convicted of first degree murder, sentenced to life imprisonment, and fined ÍH5,000 as an habitual offender. He now appeals alleging that the trial court erred in finding that his two statements were voluntarily made. Appellant asserts that he was incapable of comprehending his Miranda rights and of giving a voluntary statement regarding the crime due to his drunken and drugged condition.

In reviewing the voluntariness of confessions we make an independent determination based upon the totality of the circumstances resolving all doubts in favor of individual rights and safeguards, and the trial court’s holding will not be reversed unless clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). The State bears the burden of proving the voluntariness of in-custodial confessions by a preponderance of the evidence under Ark. Stat. Ann. § 43-2105 (Repl. 1977); and, any conflict in the testimony of different witnesses is for the trial court to resolve. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1980).

A Denno hearing was conducted by the trial court on appellant’s motion to suppress his statements. Testimony was taken from prosecutor Ron Fields and detective James Davis on behalf of the State, and from the appellant, his brother, Roy Jackson, and Fort Smith police officer C. C. Davis on behalf of the appellant. Both statements were introduced at this pre-trial hearing along with the results of a breathalyzer test and a Miranda rights form which was signed by the appellant, all without objection.

Prosecutor Fields testified that he took a statement from appellant at 8:30 p.m. on May 3, 1980, in the presence of detectives James Davis and Charles James; that he explained the Miranda rights to appellant and received his acknowl-edgement of understanding; that no coercion, threats or promises were used to obtain the statement; that appellant was very responsive during the questioning and was coherent; that no slurred speech was evident; that, other than the odor of alcohol, there were no evident physical characteristics indicating intoxication; and, that appellant gave specific details of his movements around the victim’s car before the shooting took place.

Next, detective James Davis testified that on May 3 he had arrested the appellant at 6:30 p.m. following a chase; that Miranda rights were given to the appellant at the time of the arrest and were later read to him from a police department form at the jail, and the appellant indicated his understanding of his rights (although refusing to talk at that time); that appellant had no trouble in walking and had no slurred speech at the time of arrest; that although he had alcohol on his breath, appellant was not drunk in his opinion; that on May 4 at 5:25 p.m. appellant was again advised of his rights and signed Form 59-A; that appellant then gave an oral statement in his presence which was typed by defective Mike Brooks and which was later signed by the appellant; that appellant was in no way threatened or coerced to make the statement and that no promises were made to him to obtain it, although appellant was “very nervous.”

Fort Smith police officer C. C. Davis testified without objection as a qualified breathalyzer examiner and stated that he had given the appellant a breath test at 10:11 p.m. on the night of May 3 and that appellant registered .09 percent according to the chart that came out of the machine. Officer Davis then testified that the alcohol content of the body declines at a rate of about .02 percent per hour and hypothesized that if one assumed that the appellant was in custody and did not have any alcohol between 6:00 and 10:00 p.m. then one could add approximately .02 percent per hour from the time he was arrested until the test was given to arrive at his blood alcohol content at 6 o’clock earlier that evening. That, using this formula, that would be approximately .17 percent blood alcohol content at 6 o’clock and about .12 percent at 8:30 p.m.; that appellant would not necessarily be intoxicated but would be under the influence under these conditions.

The appellant’s brother, Roy Jackson, next testified that he was a trusty at the jail at the time appellant was brought in and that he saw him and noticed that his eyes were “real red” and that “he looked like he had been on drugs.” He testified that he had seen his brother drunk before and that he wasn’t drunk, he was just drugged. Roy Jackson further testified that appellant was acting like he had been on dope two or three days; that he was sluggish and had a strange walk; that alcohol did not make his eyes red.

The last to testify was the appellant, Herbert Jackson. He stated that on the date of his arrest he had left work early in the morning and began drinking both beer and gin and smoking angel dust during both the morning and afternoon hours; that he did not remember being arrested; that, although he remembered seeing Mr. Fields, he didn’t remember making the first statement; that angel dust affected his mind so that he was “high” when he talked to Mr. Fields; that he remembered being pulled out of the jail cell three times; that the day after the incident he didn’t even remember whether or not he was fed; that he remembered giving a statement on Sunday (the day after the incident) to some police officers and seeing the waiver of rights form which was introduced as Exhibit No. 2 by the State; that he recognized his signature on the form; that he didn’t recall whether or not he had been advised of his rights by either Mr. Fields or the police officers before either statement was taken; that he had been arrested in the past between 100 and 150 times and was aware of his rights on some of those occasions and was not so aware on others; that he remembered being asked several times if he was drunk.

This testimony was contradictory to both of the statements introduced at the pre-trial hearing against the appellant. In the May 3 statement appellant stated that he had “understood every word ... [the prosecutor] said”; that he had only two to three beers that day and was not drunk. In his second statement, the appellant indicated that during the day he had a six-pack of beer. No mention was made in either statement of appellant’s having smoked angel dust or of having had gin that day.

We cannot say that the trial court’s finding of volun-tariness with regard to either statement was clearly erroneous after reviewing the totality of the circumstances in light of the superior position of the trial court to judge the credibility of the witnesses.

Where life imprisonment or death is imposed in the court below, the Supreme Court shall review the entire record for errors prejudicial to the right of the appellant. Rule 36.24, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977). To facilitate this review, Rule 11(f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1979) was promulgated. Under this rule both the counsel for appellant and counsel for the State must examine the record page by page to be certain that all the objections are brought to the Court’s attention. We have examined all objections and find no error.

Affirmed.


author: George Rose Smith, Justice. Richard B. Adkisson, Chief Justice,

text:
    STATE of Arkansas v. Floyd HOFFMAN
    CR 81-4
    617 S.W. 2d 16
    Supreme Court of Arkansas
    Opinion delivered June 15, 1981

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellant.

      Richard E. Holiman and Bob Dawson, for appellee.
   George Rose Smith, Justice.

Floyd Hoffman and his wife Jerrie were jointly charged with theft of property from VIP *4, a self-service filling station at Sherwood. The two defendants, after their pleas of not guilty, were represented by separate attorneys and filed various separate motions. Floyd alone filed a motion to suppress evidence obtained by means of an assertedly invalid search warrant. The trial judge entered an order which states that, “after a hearing on the evidence,” the motion to suppress is granted. The State, in taking this interlocutory appeal, designated for the appeal only that part of the record containing the search warrant and the suppression order. Floyd’s counsel additionally designated the affidavit for the search warrant and “any recorded testimony taken in the form of argument,” none being actually supplied. Floyd is in fact the only appellee, though counsel have styled their briefs as if both the accused were appellees.

Various challenges to the affidavit are made, but we rest our affirmance of the suppression order on the single ground that the affidavit fails to establish the necessary “reasonable cause to believe” that any specific documents would actually be found by a search of the premises described in the affidavit. Criminal Procedure Rule 13.1 (d). We quote the body of the affidavit:

The undersigned, being duly sworn, deposes and says:
That he has reason to believe that on the premises known as the VIP # 4, at the Sherwood exit of U.S. 67 and 167 at Trammell Road at the southeast corner of the U.S. 67 access road and Trammell Road, a self-service gas station, a one story concrete block building, white in color, in Pulaski County, Arkansas, there is now being concealed certain property, namely documentary evidence relating to the cash receipts of the station, the sales of gasoline through the station’s pumps, other documents pertaining to the apparent falsification of pump readings and receipts on daily sales reports, money and deposit slips, personal and business, said evidence tending to show a violation of Arkansas law.
That the facts tending to establish the foregoing grounds for issuance of a search and seizure warrant are as follows:
I am the owner and operator of VIP #4, a self service gas station at the intersection of U.S. 67-167 and Trammell Road, Sherwood, Pulaski County, Arkansas. Mrs. Jerri Hoffman is my employee. Her husband helps her and they live on the premises in the building. This station is open every day but Sunday.
As a part of their duties, they prepare daily sales and receipt reports. These reports show the readings of the eight pumps every day at 11:00 A.M. The readings are added up, and the total from the previous day is subtracted. This should give the total gallons sold.
For several months, I have suspected that the pump readings on the reports have been falsified to show that less gas had been sold than actually was. For instance, the final April, 1978, report (which was not immediately caught because of my office’s oversight) with actual readings showed a shortage of more than $6,900 gas. The actual readings were placed on the reports then. The reports of August, September, and October also had substantial shortages.
On November 13, 1978, the meter readings were noted on the report. (Exhibit A) At 9:30 p.m., Patt Foley, an investigator with the Prosecuting Attorney’s Office, read the pumps and reported them to his office. (Exhibit B) The November 14, 1978, report (Exhibit C) shows readings lower than the readings obtained by Foley the previous day. (Exhibit D compares them.) This confirms to me that meter readings are actively being falsified on the reports by Mr. and Mrs. Hoffman. If so, they have not been remitting the full amount received contrary to their duties, and I reasonably believe that they are stealing from me in violation of Arkansas law. This business has not produced much income since the Horrmans [Hoffmans] have worked there. I have been advised by the Prosecuting Attorney to seek an audit, and I will do so.
[Signed] Wayne H. Babbitt
Affiant

Exhibits A and C to the affidavit were photocopies of the Hoffmans’ daily reports for November 13 and 14. The reports, in tabular form, listed the numerical readings for the various pumps for regular and for premium gasoline, the total cash received for regular and for premium, and a few charge account sales by names and amounts. Exhibit B was a photocopy of Investigator Foley’s report of his readings at 9:30 p.m. on November 13, identifying the different pumps. Exhibit D was a photocopy of Foley’s comparisons which reflect, for example, that one pump was shown by the Hoffmans as having a reading of only 941404 on November 14, but Foley had recorded that pump as reading 942891 on the preceding evening, which Foley interpreted as indicating a shortage of 148.7 gallons. Three other similar numerical shortages are shown.

It can be deduced from the affidavit and its exhibits that for several months Dr. Babbitt had suspected that the Hoffmans were not reporting all the gasoline they sold. Foley’s investigation, confined as it was to a single day, suggests that the Hoffmans were able to turn back the meters on the pumps as a means of concealing their supposed day-to-day thefts of cash. The State has not seen fit to bring up a record of the evidence and exhibits that may have been introduced below; so we have only the affidavit and the warrant on which to reach a conclusion.

Under both the Federal and State constitutions the issuance of a search warrant must be based upon an oath “particularly describing” the thing to be seized. Here, however, Dr. Babbitt’s affidavit shows how far from certain he was about what was to be seized: “... documentary evidence relating to the cash receipts of the station, the sales of gasoline through the station’s pumps, other documents pertaining to the apparent falsification of pump readings and receipts on daily sales reports, money and deposit slips, personal and business-, said evidence tending to show a violation of Arkansas law.” (Italics ours.) Nothing specific, only a dragnet description of anything incriminating that might be found in the building.

Inferences about the likely location of items are permissible, but the inferences must be reasonable. LaFave, Search and Seizure, 706 (1978). Here there is no reasonable basis for an inference that any particular document would be discovered by a search. The affidavit, it is true, does assert that the Hoffmans “prepare daily sales and receipt reports.” In fact, two of those reports were attached to the affidavit. Presumably Dr. Babbitt also had the earlier ones. But why would the Hoffmans keep any records that might contradict their false reports? Why, even, would such contradicting records ever have come into existence? If the Hoffmans could turn back the pump meters, as indicated by Foley’s report, it would obviously be a simple matter for them to make out the daily reports at 11:00 a.m. as they were required to do, pocket the cash receipts for perhaps the next hour or so, and then turn back the meters to the figures shown on the daily report. Under that simple plan not one document disclosing their embezzlements would ever have come into existence, none being needed. We are compelled to conclude that although Dr. Babbitt may have had a solid basis for suspecting that he was being defrauded — a fact that might have been shown, as the prosecuting attorney suggested, by an audit — he had no reasonable basis for a description of “the thing to be seized.” The Constitution does not permit the police to search a person’s home in the vague hope that something of an incriminating nature may be discovered.

Affirmed.

Adkisson, C.J., and Hays, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. I dissent from the majority’s holding that “the affidavit fails to establish the necessary ‘reasonable cause to believe’ that any specific documents would actually be found by a search of the premises described in the affidavit.” On the contrary, the affidavit made by the owner of the premises which were searched supplies ample reason to believe that specific documents would be found: First, it was the Hoffmans’ duty to prepare as business records daily sales and receipt reports showing readings of the eight gasoline pumps at the business. Second, the affiant stated that in April a $6,900 shortage was disclosed by comparing the reports of the Hoffmans with the actual pump readings; also, the reports for August, September and October indicated substantial shortages. Third, on November 13 an investigator with the prosecuting attorney’s office took a meter reading of the gasoline pumps and when this reading was compared with the reports received from the Hoffmans a substantial shortage was disclosed. And fourth, the Hoffmans lived on and operated this service station business out of the premises for which the search warrant was issued.

It is reasonable to conclude as did the affiant that the Hoffmans were stealing after consistent shortages were reflected by examining the August, September, and October reports. The affiant’s suspicions were specifically confirmed by an investigation conducted by the prosecuting attorney’s office, the results of which were attached to and made a part of the affidavit for the search warrant.

Where else would the daily sales and receipt reports be located if not on the business premises? These records were required to be kept and common sense tells us that business records are kept at the business.

The majority pose a phantom situation in which the Hoffmans would not keep damaging records reflecting their theft of the owner’s funds. Viewed objectively, it is easy to imagine how a thief would act to avoid detection, but experience tells us thieves do not always act reasonably. People act unwisely by stealing and generally are not omniscient in covering up their crimes. Under the majority’s reasoning no search warrant could be issued if there was any conceivable set of circumstances demonstrating that evidence of the theft would not be located on the premises to be searched.

I am authorized to state that Hays, J., joins me in this dissent.