author: Darrell Hickman, Justice. Steele Hays, Justice, Darrell Hickman, Justice.

text:
    John Herbert KELLENSWORTH v. STATE of Arkansas
    CR 82-1
    631 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982
    [Supplemental Opinion on Denial of Rehearing delivered April 19, 1982.]

      L. Gene Worsham and Beth G. Coulson, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

John Herbert Kellensworth, Jr. was convicted and sentenced to ten years imprisonment for rape and three years for burglary. The crimes occurred in Pulaski County, Arkansas, but the case was tried to a jury in nearby Perry County to preclude any possibility of prejudice to the defendant because of pretrial publicity.

Kellensworth’s conviction must be reversed because the trial court erroneously permitted certain testimony by Kellensworth’s former wife. The State called her after the defense rested and the sole purpose of her testimony was to impeach testimony by Kellensworth and his parents. Kellensworth’s mother had testified that Kellensworth “worshipped” his former wife and child. On cross-examination Kellensworth and his father testified that Kellensworth loved his former wife. The former wife, Vickie Kellensworth, was allowed to rebut this by testifying that Kellensworth, at various times, pulled a gun on her, tried to run her off the road, knocked her up against a brick wall, and on a separate occasion struck her.

The trial judge admitted the testimony because he considered it simple rebuttal evidence. But it was more than mere rebuttal testimony. It was offered to impeach, or discredit, the testimony of Kellensworth and his parents.

A witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. 3A WIGMORE ON EVIDENCE § 1001; Swaim v. State, 257 Ark. 166, 514 S.W. 2d 706 (1974); See Haight v. State, 259 Ark. 478, 533 S.W. 2d 510 (1976); Mathis v. State, 267 Ark. App. 904, 591 S.W. 2d 679 (1980). The reason for the rule is that to permit such a tactic would only distract the jury from the main issue, waste time and prejudice a defendant. McCORMICK’S EVIDENCE § 47 (1972).

The rule does not mean a witness can never be discredited on a collateral matter. Cross-examination is the usual tool available. Or in some instances, judicial notice can be taken of a fact which will contradict testimony of a witness.

The question of whether the matter was collateral in this case is not easy. One test of whether a fact is collateral is whether the fact is independently provable. If the fact is independently provable it is not collateral. Generally, two kinds of facts meet this test: Those that are relevant to the substantive issue in the case and those facts that show bias, interest, conviction of a crime, or want of capacity, opportunity, or knowledge of the witness. 3A WIGMORE ON EVIDENCE §§ 1004, 1005. The mother’s testimony does not seem to fall into either category and is therefore collateral.

At most, the statement by the mother would be one of “good character,” a fact any defendant can choose to place before a jury. Ark. Stat. Ann. § 28-1001, Rule 404 (Repl. 1979); Finnie v. State, 267 Ark. 638, 593 S.W. 2d 32 (1980). In that narrow sense the evidence might not be deemed collateral. Ark. Stat. Ann. § 28-1001, Rule 405, permits a defendant to offer evidence of his good character but that evidence is limited to testimony as to his reputation and opinion testimony. Such evidence may be directly challenged through cross-examination. Michelson v. U.S., 335 U.S. 469 (1948). Or the State can rebut the evidence in kind with contrary evidence of reputation. But the State cannot produce witnesses to testify to specific acts of misconduct. McCORMICK’S EVIDENCE states: “ . . . The witnesses for the prosecution are limited on direct [of their witnesses called in rebuttal] to assertions about the reputation and may not testify to particular acts or rumors thereof.” McCORMICK’S EVIDENCE § 192. Also see 29 Ark. L. Rev. 14. Rule 405 (b) provides that when character or a character trait is an essential element of a charge, claim or defense, proof may be made of specific instances of misconduct. But obviously the evidence offered is not an essential element of a charge of rape. Rule 404 (a) (1) speaks toa “pertinent trait of character.” But there is no such character trait at issue in this case. McCORMICK’S EVIDENCE identifies character traits as either moral or nonmoral. The nonmoral traits are ones of care, competence, skill or sanity; the moral character traits being peacefulness, honesty and the like. McCORMICK’S EVIDENCE § 187. Our Rules of Evidence mention only peacefulness as a trait, Rule 404 (a) (2), but do not exclude generally accepted character traits. In our judgment it is not a character trait to “worship” one’s wife. As we said, if anything, such a statement might qualify as a statement of good character in general, and only that. The State chose to disprove this general statement in a completely unacceptable way; they called Kellensworth’s former wife to tell the jury of specific acts of misconduct to contradict the testimony of the mother that Kellensworth “worshipped” his former wife and child. The prejudicial effect of the testimony cannot be denied. Threatening another with a deadly weapon and striking another are both criminal offenses. So, regardless of whether the statement by the mother was collateral, the court was wrong in permitting the prejudicial evidence to go to the jury.

The other issues raised by Kellensworth are without merit. It is argued that it was error for the State to allow the victim to testify that she had identified Kellensworth at a pretrial lineup because she admitted that she never saw Kellensworth’s face. The defense reasons that such an identification was too improbable. But at a pretrial lineup the victim picked out Kellensworth because of his posture, hair, and build. A voice identification was conducted at which the victim could not see the speakers. Each man in the lineup spoke several phrases that the victim said were spoken by her assailant. The victim positively identified Kellensworth’s voice as that of her assailant. Identification was the issue in this case and the victim was closely cross-examined about her pretrial identifications of Kellensworth. Recently we held that a victim can tell the jury she identified her assailant in a pretrial lineup. Conley v. State, 272 Ark. 33, 612 S.W. 2d 722 (1981). There was no error in allowing the testimony.

A victim of another rape was allowed to testify during the State’s case in chief that Kellensworth was her assailant. She was called during the State’s case in rebuttal to testify that she had identified Kellensworth in a lineup and in a voice identification procedure. The State also called a detective in rebuttal who testified that this victim in the separate rape case had positively identified Kellensworth as her assailant. This evidence had not been brought out during the State’s case in chief, and Kellensworth argues this was, therefore, improper rebuttal testimony. Again, identification was the critical issue in this case and Kellensworth had testified after the victim’s testimony that he was not her attacker, offering evidence of an alibi. Rebuttal is a discretionary matter with the court and we cannot say that that discretion was abused. Decker v. State, 255 Ark. 138, 499 S.W. 2d 612 (1973); See Ark. Stat. Ann. § 43-2114 (Repl. 1977).

Before the victim of the separate rape was allowed to testify that Kellensworth was her assailant the defense objected that that tetimony had no relevance to the case for which Kellensworth was being tried. The testimony was allowed solely on the issue of identification. The trial court concluded that because the circumstances of the two rapes were very much alike, the other victim should be permitted to testify. Indeed we said in Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971), that such evidence is admissible. Norris v. State, 170 Ark. 484, 280 S.W. 398 (1926). However, we do not reach that issue because it is not raised on appeal.

On appeal the objection is not that the court was wrong in permitting the evidence by the other victim, but that it was wrong in giving a cautionary instruction to the jury before the testimony because it called undue attention to the testimony and because the instruction amounted to a comment on the evidence. The instruction reads:

The Court shall admit testimony of another event that you may find to be similar to. the one charged in the Information. You will not be permitted to convict the defendant upon such testimony. Such evidence of another similar event committed under similar circumstances is admitted solely for the purpose of establishing the identity of the defendant. And you should consider such evidence for this purpose alone. Whether the two events are similar is for you to decide. The defendant is not on trial for any offense except the offenses alleged in the Information.

In no way does this instruction make a comment on the facts in violation of Art. 7, § 23 of the Arkansas Constitution. It simply tells the jury what it ought to be told regardless of the objection of a defendant: That the sole purpose of the testimony is to determine whether the two rapes were committed by the same person. The jury decides the facts. Compare to AMI 301. On remand if the defense insists the court should not give the instruction because it will call undue attention to the evidence, it should not be given.

A ski cap was found some distance from the residence of the victim. Apparently it was several blocks away. A policeman testified he was on the scene shortly after the incident and the cap was dry when there was dew on the ground. Four hairs found in the cap were examined by an expert who testified they were similar to Kellensworth’s. Kellensworth’s argument is that since the victim could not identify the cap, it should not have been admitted. The court found it relevant and we agree. Ark. Stat. Ann. § 28-1001, Rule 401 (Repl. 1979).

Finally, Kellensworth argues that the charges in another case, Case #CR 81-57, State v. Kellensworth, must be dismissed because the victim in the rape case testified against him in this trial; that was the victim who positively identified him. Kellensworth argues it amounts to double jeopardy if he is tried on that charge. Double jeopardy does not attach where there is no possibility of conviction. Ark. Stat. Ann. § 41-107 (Repl. 1977). The argument merits no further discussion.

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I do not agree that the trial court abused its discretion in permitting the rebuttal testimony of appellant’s former wife relative to his conduct toward her. The testimony was initiated, not by the prosecution but by the defense in repeated questions to appellant’s mother as to appellant’s behavior and conduct toward his wife and son. The obvious purpose was to create an impression by the jury that appellant was an adoring and devoted husband and father. No other inference is possible. Where that occurs the State is entitled to some latitude to rebut that kind of evidence with facts from which other inferences could be drawn. Otherwise, the prosecution is rendered helpless where the defense affirmatively elicits testimony which portrays the character of the accused in a false light. The testimony was not collateral and the means by which the State answered it in rebuttal falls within the “wide discretion” of the trial court, which we will not reverse absent manifest abuse. Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421 (1972); City of Fayetteville v. Stone, 194 Ark. 218, 106 S.W. 2d 158 (1937).

Supplemental Opinion on Denial of Rehearing delivered April 19, 1982

Darrell Hickman, Justice.

The State in its petition for rehearing argues that the case of Howell v. State, 141 Ark. 487, 217 S.W. 2d 457 (1920), is directly in point and holds that the State can impeach testimony brought out on direct examination with contradictory testimony. In Howell the victim in a rape case stated on direct examination that she had never had sexual intercourse with any man except the defendant. The defense was not allowed to impeach this testimony by offering the testimony of another man. We held this was error, pointing out that the State brought up the issue on direct examination, and since it did, the defense ought to be allowed to impeach it with contradictory testimony. If the counterpoint of that situation existed in this case it would have been as follows: Kellensworth would have stated on direct examination that he had never mistreated his wife in any way by striking her or beating her. In Howell the testimony was not that the victim was chaste or had a reputation for chastity, an issue permitted to be raised in those days, but was that the victim herself had never had intercourse with anyone except the defendant. The statement was not made by a third party but by the victim herself. In this case the statement was a general statement by Kellensworth’s mother and at best could only have been a statement of opinion as to general character, not specific instances of good conduct. Furthermore, the State elicited from Kellensworth and his father on cross-examination testimony about how Kellensworth treated his wife; this subject was never raised by the defense during the direct examination of these witnesses. Due to these differences we deem Howell v. State, supra, distinguishable.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    HEBER SPRINGS LAWN AND GARDEN, INC., William L. BURGE and Hilda M. BURGE v. FMC CORPORATION
    81-240
    628 S.W. 2d 563
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982

      Ronald J. Bruno ir Associates, for appellants.

      Thomas, House & Gardner, for appellee.
   John I. Purtle, Justice.

William L. Burge and Hilda M. Burge, husband and wife, incorporated a business known as Heber Springs Lawn and Garden, Inc. The corporation became an agent and distributor for FMC Corporation during calendar year 1978. Both corporations are authorized to do business in Arkansas. A dispute arose between the parties and appellee filed a foreclosure petition in Cleburne County Chancery Court on September 22, 1980. The appellants resisted the action on the grounds that the Cleburne County Chancery Court did not have jurisdiction of the subject matter. Appellants argue the proper venue statutes are Ark. Stat. Ann. §§ 27-613, 615 and 616 (Repl. 1979). The subject matter of this action comes within the meaning of Ark. Stat. Ann. § 27-621 (Repl. 1979):

An action on a debt, account, note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.

The relief apparently sought in appellants’ motion dated February 13, 1981, was that the court dismiss the matter under the doctrine of forum non conveniens. The allegation was that Pulaski County would be the more convenient forum. The court overruled the motion and notice of appeal was filed by appellants.

We hold that the order appealed from was interlocutory in nature. We recently addressed the question of an appeal from a trial court’s interlocutory order in the case of Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W. 2d 326 (1982). In that case we held that absent a final or appealable order, the appeal to us must be dismissed. In order to avoid piecemeal litigation or confusion in the lower court’s handling of a matter, we must not interrupt the proceedings of a trial court. Denial of the motion did not dispose of any of the issues nor release any of the parties and was not final as to anything except that the trial would be held in Cleburne County. Once a final order has been entered, an appeal can be taken, and the question of venue and jurisdiction, once put in issue, is not lost by continuing through a trial of the matter. Wilson v. Wilson, 270 Ark. 485, 606 S.W. 2d 56 (1980). For the foregoing reasons, this appeal is dismissed.

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    Elaine Curtis BENNETT v. The Estate of Keith R. BENNETT, Deceased
    81-216
    628 S.W. 2d 565
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982

      Gibson ix Bearden and David E. Caywood, Memphis, Tenn., by: Michael R. Bearden, for appellant.

      Mitchell D. Moore, of Moore, Moore if Barton and Branch if Thompson, by: Robert B. Branch, Sr., for appellee.
   Robert H. Dudley, Justice.

On February 23, 1981, we declared the then existing dower statutes unconstitutional because of gender-based discrimination. Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981); Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981). The new dower statutes, Ark. Stat. Ann. title 61, Chapter 2 (Supp. 1981) did not become effective until March 25, 1981. This is another, in a series of cases, involving an attempted claim of dower before the effective date of the new dower act. See Huffman v. Dawkins, 273 Ark. 520, 622 S.W. 2d 159 (1981) and Hall v. Hall, 274 Ark. 266, 623 S.W. 2d 833 (1981). The trial court denied the widow’s right to take against the will and we affirm that decision.

Keith R. Bennett, appellant’s husband, died in an automobile accident in California on December 19, 1980. At the time decedent and appellant were separated and a divorce action was pending with the decedent having custody of their three minor children. The decedent executed a will on June 10, 1980, which was admitted to probate on January 2, 1981, which established a trust for the benefit of decedent’s wife and children. The trustee was to pay $5,000 annually to appellant plus other enumerated sums for the children’s welfare. Appellant filed an election to take against the will on April 15,1981, and later filed an amended election. A demand for allocation of dower was filed by appellant on April 23, and the decedent’s personal representative filed a response. The lower court denied the right to take against the will and this appeal ensued.

Appellant admits that the substantive right to dower became fixed on her husband’s death, but she contends that the statute authorizing the election to take against the will, Ark. Stat. Ann. § 60-501 (Supp. 1981), which was effective before the date of her election on April 15, 1981, dealt exclusively with procedure, and not with the substantive rights of the person so taking. Appellant contends that cited statute, if procedural, may be applied retroactively to allow the statutory election and, since the substantive dower statutes have been declared unconstitutional we should exercise our inherent power and apply the substantive common law of dower. The appellee responds that such a holding would amount to the same discriminatory scheme being allowed under the guise of common law. To that response the appellant answers that the capacity of common law for growth and adaptation to new conditions is one of its most admirable features. It is constantly expanding and developing and whenever an old rule is found unsuited to the present conditions, or is unsound, it should be set aside and a rule declared which is in harmony with those conditions and meets the demands of justice, which, in this case, requires extending dower to males by judicial fiat.

At the time we decided Hess, supra, and Stokes, supra, we considered and rejected the concept of extending to males, by judicial rule, dower, homestead and statutory allowances. In Hess, supra, we stated: “Under the facts in this case and the language of the statute, we can find no way to extend the benefits to the disfavored class and accordingly, we find it necessary to deny the benefits to both widowers and widows by declaring the statute unconstitutional as applied.” The overriding reason we decided not to attempt to extend the benefits to the disfavored class is that the legislature of a state has the power to give or withhold dower. The General Assembly could enact a new dower statute, as it did, or it could have withheld it altogether and it is properly a matter of statutory regulation to say what interest, if any, married persons shall have in the property of each other as an incident of the relation between them.

Affirmed.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Danna Ray DAVIS, a/k/a Danny Ray DAVIS v. STATE of Arkansas
    CR 81-108
    630 S.W. 2d 1
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982
    [Rehearing denied April 12, 1982.]

      John M. Robinson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Danny Ray Davis was convicted of robbing the First National Bank of Fort Smith. The jury found that he was a habitual offender, having been convicted of eight previous felonies, and recommended a thirty-five year prison sentence and a $10,000 fine. We affirm.

The pertinent facts are that appellant started drinking heavily on December 3,1980. During the morning and early afternoon of the 4th he continued to drink in several Fort Smith bars. He then went to a drive-in window of the bank and handed a note to the teller through a slide-out drawer. The note demanded either $500 or $5,000 and the teller gave him seven or eight ten-dollar bills and he departed. The teller and a parking lot attendant described appellant. In addition, a jacket matching the description of one which appellant had been wearing in the bars was found in the main bank building. Early the next morning Noel Harvey, a detective who knew appellant and his family, went to appellant’s apartment. Appellant invited him in, offered him a cup of coffee and began to answer questions. Appellant admits that he was given a valid Miranda warning at home as well as after he was taken to the police station. At first, appellant said that if he robbed the bank he did not remember it but later he gave a confession which was admitted into evidence over his objection. He now makes a two-fold argument that the trial court erred in failing to suppress the confession because, one, he was arrested at his residence without a warrant in violation of the doctrine announced in Payton v. New York, 445 U.S. 573 (1980) and, two, the confession was signed pursuant to a promise of leniency and assurance of help in making bail.

Payton, supra, holds that the Fourth Amendment prohibits the police from making a warrantless and non-consensual entry into a suspect’s home in order to make a routine felony arrest. Here, there was no forcible entry into appellant’s home. Instead, there was a consensual entry of the type that is not barred by Payton. State v. Filiatreau, 274 Ark. 430, 625 S.W. 2d 494 (1981).

The second prong of appellant’s suppression argument is one which, over the years, we have had to decide on a case-by-case basis by looking at the totality of the circumstances. The applicable law is simple. If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances. The totality is subdivided into two main components, first, the statement of the officer and second, the vulnerability of the defendant. Because these two factors create such a multitude of variable facts, it has been impossible for us to draw bright lines of substantive distinction.

The procedural rules are clear. The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession, Ark. Stat. Ann. § 43-2105 (Repl. 1977). Any conflict in the testimony of different witnesses is for the trial court to resolve. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). While we do not reverse the trial court's finding unless it is clearly erroneous, we do make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). A statement induced by fear or hope of reward is not voluntary. Greenwood v. State, 107 Ark. 568, 156 S.W. 427 (1913).

In determining the totality of the circumstances we first look at the statement of the officer. Some statements are so clearly promises of rewards that we do not find it necessary to look past the statement to decide the case. Examples are the case where a deputy prosecuting attorney told the prisoner who faced a possible death sentence that a confession “wouldnotresultin more than 21 years’ incarceration.” The prisoner confessed and received a life sentence. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975). Similarly, we reversed a conviction and the maximum sentence based on an inculpatory statement when the prisoner and his attorney were led to believe there was a mutual understanding that in exchange for the giving of information the officials would, at the least, recommend leniency and perhaps even dismiss the case. Teas v. State, 266 Ark. 572, 587 S.W. 2d 28 (1979). In other cases the officer’s statement, standing alone, does not provide sufficient information for us to decide the case. In the case at bar we do not have a clear promise of reward. Detective Harvey testified: “I told him that I didn’t think it would be hard on him if he did make a statement. I told him that considering his record there might be a possibility [of probation],.. I didn’t guarantee anything. I made that clear, there was no guarantee ...” (At this time Harvey did not know about appellant’s prior convictions.)... “I told him I would attempt to help him get his bail set, which I did.” This type of statement by the officer, standing alone, is not determinative. For example, “it would probably help if you go ahead and tell the truth” was approved. Harvey v. State, supra. “Things would go easier if you told the truth” was allowed to stand. Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979). On the other hand a confession was held improper when the officer said, “I’ll help you any way that I can.” Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979), and we reversed a conviction when a deputy prosecutor said, “I’ll help all that I can.” Shelton v. State, 251 Ark. 890, 475 S.W. 2d 538 (1972). The real difference in these cases does not lie in the statements for they, alone, are neither simple admonitions to tell the truth nor are they clear promises of reward. They can be either. The true distinction lies in the second group of factors considered in the totality of circumstances — the vulnerability of the defendant. In the first two cases cited, Harvey v. State, supra, and Wright v. State, supra, where the statements were not suppressed, the record demonstrates that the prisoner was not misled. In Harvey, the prisoner, a habitual offender, testified he understood his rights. In Wright, the 30-year-old prisoner was a habitual criminal who had been arrested some twenty times and incarcerated six or seven times and was obviously educated in criminal procedure. Under these circumstances we labeled the officer’s statement an admonition to tell the truth and not a promise of reward.

On the other hand, similar statements have been held to be promises of reward when the prisoner is vulnerable to some innuendo. “I’ll help you all I can” was the deputy prosecutor’s statement but the fact of vulnerability which led us to suppress the confession was that the prisoner requested an attorney and he was furnished the deputy prosecutor who took the statement. Shelton v. State, supra. The same “I’ll help you if I can” coupled with prisoner vulnerability caused us to suppress the confession in Tatum v. State, supra, where the prisoner was the first of three persons arrested. While he was a habitual offender and probably knew his rights, the police did not know the names of his accomplices. In reliance on “I’ll help you if I can” he gave their names and a statement. The accomplices were then allowed to plead guilty on negotiated pleas and the accomplices and the statement were used against him for conviction. Tatum v. State, supra.

In the case before us the appellant was 40 years of age with a ninth grade education, was not questioned at length, admits that he was read his rights and, most importantly, stated he understood them. He was no stranger to the criminal justice system, having been previusly convicted of eight felonies and having served time in Oklahoma. While appearing to be “hung over,” he was not physically ill. The State’s evidence was that he was lucid, understood his rights and did not rely on any promise. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Wright v. State, supra. We hold that the trial court’s ruling that the confession was voluntarily and knowingly given was not clearly against the preponderance of the evidence.

Appellant next contends that the court erred in allowing into evidence the testimony of Earl Collins, a latent fingerprint specialist with the Federal Bureau of Investigation, because there was a missing link in the chain of custody of the fingerprint card. Sergeant Arthur Langston of Fort Smith testified that he signed the fingerprint card, packaged it and mailed it, by certified mail, to the Federal Bureau of Investigation, Washington, D.C., attention Fraudulent Document Examiner and Latent Fingerprint Section. There some unknown person opened the evidence package and delivered the fingerprint card to Collins for examination. The chain is complete from that time. Obviously there is one missing link in the chain of evidence, that is, the person who opened the package at the Federal Bureau of Investigation offices in Washington, D.C. There is little likelihood there has been any tampering with the exhibit and the trial court did not abuse its discretion in admitting the evidence. In establishing a chain of custody prior to the introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, it has not been tampered with. Baughman v. State, 265 Ark. 869, 582 S.W. 2d 4 (1979). See also Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).

After the jury returned a verdict of guilty the trial proceeded to the sentencing phase and the court permitted the State to introduce into evidence photocopies of the judgment and sentence of appellant’s prior convictions in the State of Oklahoma. These records were part of the “pen packet” from the Oklahoma Department of Correction and were certified by the proper Oklahoma authority. Appellant contends the court committed error in admitting the photocopies of the prior convictions, because, although they recite that he had an attorney, they do not contain the name of his attorney. This argument is without merit and was settled in Clem & Gilbert v. State, 254 Ark. 580, 495 S.W. 2d 517 (1973). The judgments reflect the court and its officers were present in open court along with the defendant and his attorney, that thedefendant pleaded guilty and was sentenced. We are satisfied from the exhibits that appellant was represented by an attorney at each of his convictions. In addition, in his testimony, appellant referred to his attorney.

Finally, the appellant contends that the judgment is excessive. The sentence is within the range of sentences for a defendant convicted of a class B felony who has four or more previous convictions. Ark. Stat. Ann. §§ 41-1001 (2) (b) and 41-1101 (1) (a) (Repl. 1977).

Affirmed.

Hickman, Purtle and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I respectfully disagree with the view that this confession was not induced in the hope of gaining leniency. Detective Harvey’s testimony provides all the support necessary: “Knowing Danny the way I did, I told him that I didn’t think it would be hard on him if he did make a statement. Yes, sir, I did make that promise to him. I told him that considering his record there might be a possibility [of probation].” (My emphasis.) While Detective Harvey’s testimony seems forthright enough, we can be sure he offered no less than he admits — which is surely enough to render this confession as coerced, not by intimidation but by enticement. Either way, the result is the same. See Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979).

The corollary illustrates the wisdom of the rule: the officer’s promised leniency, and appellant’s misplaced hopes of leniency, were answered with a thirty-five year prison sentence for what can be aptly characterized as a strong-arm extortion of $80.00 by a drunken appellant.

Hickman and Purtle, JJ., join.


author: Steele Hays, Justice.

text:
    W. D. GRAVES v. Jerry MOORE
    81-219
    628 S.W. 2d 564
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982

      Alan Wooten and Toni Swift-Nolan of Warner ér Smith, and Roderick H. Weaver, for appellant.

      Turner ir Mainard and Jones, Gilbreath & Jones, for appellee.
   Steele Hays, Justice.

This appeal involves the effect of the Arkansas Guest Statute (§ 75-913 et seq.) where the driver and passenger are fellow employees.

Jerry Moore and Erby Daniels are employees of Dog-patch USA. With Daniels as passenger, Moore drove his pickup home to get a post hole digger and was struck by William Graves while en route. Daniels was injured and sued Graves, who counterclaimed. Moore’s insurance carrier (MFA) intervened to assert subrogation rights against Graves for its payment to Daniels of $10,000 under the uninsured motorist provision of its policy. Graves denied MFA’s allegations and joined Moore and Dogpatch as third-party defendants, asking for judgment over in the event of a recovery by Daniels.

Jerry Moore’s answer to Graves admitted that he and Daniels were acting within the scope of their employment but alleged that Daniels was a guest and so not entitled to recover against Moore except on proof of willful and wanton conduct.

Moore then moved for summary judgment alleging no genuine issue of material fact and attaching his affidavit stating he needed the post hole digger for work; that the company truck was out of gas so he used his own truck; that Daniels had not been asked to go but had gone simply for the ride. An affidavit from Daniels substantially tracked Moore’s, adding that it became necessary for them to go pick up the post hole digger; that he exercised no control over Moore and had not been asked to go.

The trial court found no genuine issue of material fact and dismissed Graves’s complaint. For reversal, Graves argues that it was error to grant summary judgment where reasonable men could differ in their interpretation of existing rights; that it was error to hold as a matter of law that Daniels was a guest in Moore’s truck and error to hold as a matter of law that Moore was not guilty of willful and wanton conduct. As we agree with the first two arguments we do not reach the third.

Graves does not argue that if Daniels is found to be a guest within the meaning of the statute then he would not be entitled to indemnification or contribution from Moore unless wanton conduct is proven. Troutman v. Modlin, 353 F. 2d 382 (8th Cir. 1965). Thus, the only question we need decide is whether the trial court erred in finding as a matter of law that Daniels was a guest in the Moore vehicle.

We have frequently held the status of a passenger with respect to the guest statute is a fact question for the jury’s determination. Austin v. Stricklin, 240 Ark. 555, 400 S.W. 2d 671 (1966); Hoffman v. Davis, 239 Ark. 99, 387 S.W. 2d 388 (1965); Buffington v. Wright, 239 Ark. 138, 388 S.W. 2d 100 (1965); Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449 (1962); Ward v. George, 195 Ark. 216, 112 S.W. 2d 30 (1937); Carnes, Admx. v. Strait, Judge, 223 Ark. 962, 270 S.W. 2d 920 (1954). Moreover, because the guest statute is in derogation of the common law, if for no other reason, we have held guest statutes are not to be extended beyond the correction of the evil which induced their enactment. Ward v. George, supra. Thus, a passenger’s claimed status of guest will be closely scrutinized.

Here, the affidavits of Moore and Daniels do not render their relational status under the guest statute closed to genuine dispute. They are interested parties and their statements are open to challenge even where the underlying facts may appear undisputed. Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938). Graves is entitled to have the purposes and motives of their mission as co-employees serving their employer tested under cross-examination and to have the evidence, with the inferences to be drawn from it, decided by the jury as an issue of fact. Appellant points out that even Daniels’ affidavit is subject to more than one interpretation, as it states, “it became necessary for Jerry Moore and I to drive into Harrison to pick up a post hole digger. ” (Emphasis added.) We conclude that ordinarily where two employees are on a mission for their employer during regular hours of employment the status of the passenger-employee under the guest statute is a question for the jury to decide. See Ball v. Hail, supra.

We also agree with appellant’s argument that even when facts are uncontroverted, as can be said of these, if fair-minded men might honestly differ as to the conclusion to be drawn from those facts, then the question should go to the jury. Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226 (1959); St. Louis I.M. & S. Ry. v. Fuqua, 114 Ark. 112, 169 S.W. 786 (1914).

Summary j udgment is an extreme remedy and not to be readily employed. Its object is to determine whether there is an issue to be tried, not to determine the issue itself. Ashley v. Eisele, 247 Ark. 281, 445 S.W. 2d 76 (1969). Appellant Graves was entitled to have the issue of Daniels’ status under the guest statute submitted to the jury.

Reversed and remanded.


author:
Steele Hays, Judge.
      Darrell Hickman, Justice, Robert H. Dudley, Justice,

text:
    Charles TILLMAN and Charles HUGGINS v. STATE of Arkansas and Leandrew BYRD, Jr. v. STATE of Arkansas
    CR 81-47
    630 S.W. 2d 5
    Supreme Court of Arkansas
    Opinion delivered March 8, 1982
    [Rehearing denied April 12, 1982.]

      Brown fa Kesl, P.A., by: Marjorie M. Kesl, for appellant Byrd.

      McArthur fa Lassiter, P.A., by: William C. McArthur, for appellants Tillman and Huggins.

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

       Holt, Hickman, and Dudley, JJ., would grant the petition.

   Steele Hays, Judge.

Appellants were convicted of theft of property and burglary of a residence in Lonoke County, receiving concurrent ten year sentences on each charge. For reversal, they allege the trial court erred in not suppressing evidence seized without a warrant, in not permitting the introduction of statements elicited from them by the police, and in permitting a police officer to give opinion testimony. We find no error.

The facts given us are that shortly after noon on February 4, 1980, a private citizen followed the three appellants from North Little Rock to near Scott, a distance of about 15 miles, and watched them slow down and scrutinize residences along the way. He formed the belief that they were “casing” the residences for a burglary, particularly one at the intersection of Highway 130 and Walker’s Corner Road. Leaving his own pursuits, he drove to the police station at England where he reported the information to Deputy Sheriff Alan Swint. Mr. Swint knew the location to be sparsely settled, to have been subjected to a rash of recent burglaries and knew the residence of George Brown to be at that point. Appellants’ car, a bronze Cadillac, was unfamiliar to him. Swint went directly to the scene where he saw the Cadillac stopped, but positioned diagonally across the highway in such a manner as to suggest having just backed from the Brown driveway. Swint radioed another officer to investigate the residence as he followed the appellants. In North Little Rock he signalled another police vehicle to assist him and with that help he stopped the occupants and told them they were being held for suspicion of burglary. After handcuffing the appellants he received a radio report that the Brown residence had, in fact, been burglarized. With that information, he opened the trunk and observed two garment bags. One, he maintains, was partially opened, enabling him to see articles of silver service. On those facts appellants’ motion to suppress was denied.

I.

Appellants maintain the initial stop and detention was an unlawful arrest and seizure and there was no probable cause for the search. We disagree.

Our Rule of Criminal Procedure 3.1 gives a police officer the right to stop and detain for up to 15 minutes any person he reasonably suspects has committed a felony. Rule 2.1 defines the test as more than an imaginary or purely conjectural suspicion, but less than probable cause. Even the higher standard of probable cause requires much less than a certainty, as it is said to exist simply if the circumstances known to the officer would warrant a prudent man in believing a suspect had committed a crime. Henry v. United States, 361 U.S. 98 (1958); Giordenello v. United States, 357 U.S. 480 (1959). It does not depend on the same type of evidence as would be needed to support a conviction. Draper v. United States, 358 U.S. 307 (1959).

Hence, these considerations are relative, and can be compared to a ladder with four rungs: at the highest level is certain knowledge, as in the case of an eyewitness to a crime; next is probable cause, less than a certainty, but enough to satisfy a prudent man; lower yet is a reasonable suspicion; and at the lowest level, a bare or imaginary suspicion, founded on nothing more than a hunch. Applying that standard to this case, we regard the requirements of reasonable suspicion as having been fully satisfied.

To validate this conclusion one need look no farther than the landmark decision of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). The circumstances of that case provide a striking analogy to this case. Terry had appealed a conviction for carrying a concealed weapon. He was observed by a detective about 2:30 one afternoon. The officer’s interest in Terry and two companions was aroused because they walked back and forth in a particular block peering in a store window and then conferring at the corner. The officer became suspicious and believed the men were “casing” the store for a robbery. He approached the men, identified himself as a police officer, and asked for their names; he was not acquainted with any of the three by name or sight and had received no information concerning them from any source. When the men “mumbled something” in response to his question the officer grabbed Terry, “spun him around” to frisk him and found a pistol in his overcoat pocket. The Supreme Court of the United States, whose sensitivity to Fourth Amendment constraints needs no defense, affirmed a decision of the Supreme Court of Ohio that the revolver was properly admitted in evidence, holding that the officer had reasonable grounds to believe that Terry was armed and dangerous and that his behavior justified an investigative stop. The court noted that the suspects had gone through a series of acts, while innocent in themselves, when taken together warranted further investigation. And while the officer could not rely entirely on his intuition, he could draw on his experience in observing people under a variety of circumstances. The cases are rationally indistinguishable. A similar holding was reached in Adams v. Williams, 407 U.S. 143 (1972).

In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the court dealt with the problem of the United States Border Patrol’s authority to stop automobiles near the Mexican border. Referring to Terry v. Ohio, the court said:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response . . . A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (Emphasis supplied.)

In Reid v. Georgia, 448 U.S. 438 (1980), Terry v. Ohio was described as holding that conduct lawful in itself can be such as to arouse a reasonable suspicion when viewed by a trained police officer.

In United States v. Cortez, 449 U.S. 411 (1981), the court observed that while trained police officers are able to draw inferences and make deductions that might well elude others, in the final analysis investigatory stops must be justified by some objective manifestation that the person is engaged in criminal activity. Noting that the whole picture must be considered the court said:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must he seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. (Emphasis supplied.)

In this case the objective manifestations are found in the fact that the suspects were followed a considerable distance and observed to study residences along the way as if to be “casing” them; coupled to those circumstances are the knowledge and observations of Officer Swint that the area had been frequently burglarized, that the vehicle was unfamiliar to him, the occupants unknown to him and were thought to have just emerged from the Brown driveway 45 minutes to an hour after the informant observed them “casing” the residence. Singly, those circumstances indicate nothing; collectively, they add up to a reasonable suspicion. The case may be stronger than Terry v. Ohio — stores and store windows, unlike private homes, are intended to attract scrutiny. We conclude that the initial stop of the appellants was based on reasonable suspicion and hence not a violation of the Fourth Amendment.

The second phase of appellants’ argument is that the warrantless search of the automobile was a violation of the Fourth Amendment. But we believe the search comes within the “automobile exception” announced in Carroll v. United States, 267 U.S. 132 (1925). The State does not contend the search was incidental to a lawful arrest (assuming appellants’ detention amounted to an arrest), as such searches are restricted to the passenger compartment of the vehicle. New York v. Belton,1 450 U.S. 1028 (1981). What is claimed, correctly we think, is that when Officer Swint learned the Brown residence had been burglarized, at that point he had probable cause to believe the vehicle contained evidence of the crime and, hence, a search of the vehicle was proper. Rule 14.1 (a), A. R. Crim. P., gives an officer the right to make a warrantless search of a vehicle detained on a public way if he has reasonable cause to believe the vehicle contains evidence subject to seizure, and exigent circumstances require immediate action to prevent removal or destruction of such evidence. Rule 14.1 is consistent with Carroll v. United States, in permitting search and seizure whenever “probable cause to believe that the area contains evidence of a crime conjoins with any exigency arising out of the mobility and imminent disappearance of that same constitutionally protected area.” See also Chambers v. Maroney, 399 U.S. 42 (1970).

Appellants cite Burkett v. State, 271 Ark. 150, 607 S.W. 2d 399 (1980), and Scisney v. State, 270 Ark. 610, 605 S.W. 2d 451 (1980). where we held a warrantless search of wrapped parcels and suitcases was improper. But the distinguishing aspect is that in those cases the initial arrest was due merely to a faulty tail light and there was a lack of probable cause to believe the vehicles contained marijuana.

Appellants also press the argument that the garment bags were closed and, hence, under the “suitcase doctrine” there was an expectation of privacy in such containers, as recognized in Arkansas v. Sanders, 442 U.S. 753 (1979), and United States v. Chadwick, 433 U.S. 1 (1977). But that fact issue was disputed and the trial court apparently relied on the officer’s testimony that one of the garment bags was open and its contents clearly visible to him. Had the garment bags been closed, then the rationale of the suitcase doctrine might arguably apply on the theory that when the suspects and the . containers are in custody, exigent circumstances disappear and a warrant can be sought at leisure. But even that is a debatable point, as the language of footnote 13, page 764, Arkansas v. Sanders, supra, suggests:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar rools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred by their outward appearance.

Appellants argue inferentially that exigent circumstances disappear when the suspects and the vehicle itself are in custody, but that is not the law and, if reason prevails, will not become the law. Containers the size of suitcases can be readily secured in police custody but the impracticality of securing an automobile is self-evident, as the United States Supreme Court noted in Chambers v. Maroney, supra, where the court reviewed the automobile exception:

Carroll v. U.S. holds a search warrant unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. Hence an immediate search is constitutionally permissible. (Page 51.)

This is not to deny the existence of that school of cases which has barred a warrantless search of automobiles where both the suspect and the vehicle are in custody. (See Jenkins v. State, 253 Ark. 249, 485 S.W. 2d 541 (1972), Steel v. State, 248 Ark. 159, 450 S.W. 2d 545 (1970), Coolidge v. New Hampshire, 403 U.S. 443 (1971), Preston v. United States, 376 U.S. 364 (1963).) But those decisions distinguish a search at the scene of arrest as opposed to a search remote in time and distance from the situs of the arrest, under circumstances more conducive to the securing of a search warrant. We think the trial court correctly denied the motion to suppress.

II.

Secondly, appellants ascribe error to the refusal to allow the introduction of statements elicited from them by the police. Although appellants declined to testify, they sought to introduce statements each had given the police after their arrest. The statements claimed they had bought the articles (consisting of a mink coat and an estimated $20,000.00 worth of silver service) for $300.00 from two men they met that morning at a McDonald’s restaurant and known to them only as Larry and Mike. The statements were offered as an admission against penal interest, under Rule 804 (b) (3), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), on the theory that the statements exposed them to a charge of receiving stolen property. Before statements against penal interest are admissible under Rule 804 the court must be satisfied that the corroborating circumstances clearly indicate the trustworthiness of the statement. See Welch v. State, 269 Ark. 208, 599 S.W. 2d 717, cert. den. 449 U.S. 996 (1980). The circumstances surrounding these statements fail decidedly to meet that test and the trial court was right to exclude them.

III.

Finally, appellants contend that the court erred in allowing the deputy to give an opinion that the Cadillac had backed from the Brown driveway just before he saw it. Rule 701, Uniform Rules of Evidence, allows a lay witness to state an opinion if it is rationally based on his perception and would be helpful to a clear understanding of his testimony or to the determination of a fact issue. Whether the car had backed from the Brown driveway was a relevant issue. But more, its diagonal position in the highway, relative to the driveway, and its movement as he observed it, provided a rational basis for the opinion he gave. The difficulty of verbalizing the movement of objects and physical events often requires some degree of opinion by the observer and the speed and movement of automobiles, as of people, illustrate the reason for the rule. See Mathis v. State, 267 Ark. App. 904, 591 S.W. 2d 279 (1979). The trial court did not err in allowing the testimony.

The judgments are affirmed.

Hickman, J., consurs.

Holt, Purtle, and Dudley, JJ., dissent.

Darrell Hickman, Justice,

concurring. I concur because of the views I expressed in my dissenting opinion in Moore v. State, 268 Ark. 171, 594 S.W. 2d 245 (1980).

Robert H. Dudley, Justice,

dissenting. The plurality opinion affirms two seizures, one, a seizure of the defendants and two, a seizure of the evidence. Both violate the Fourth Amendment.

I

Seizure of the Defendants

Stopping an automobile and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979), A stop and arrest without a warrant is valid only when the arresting officer has reasonable grounds to believe that the arrested person has committed a crime. Ark. Stat. Ann. § 43-403 (Repl. 1977); Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970). Reasonable grounds under the Arkansas statute equate with the federal standard of probable cause for arrest. Tweedy v. United States, 435 F. 2d 702 (8th Cir. 1970). The majority opinion impliedly admits that at the time Deputy Swint stopped the appellants he did not know a crime had been committed and, at that moment, did not have probable cause for arrest. Yet, that is exactly what occurred as the appellants were arrested without probable cause. The testimony of Deputy Swint is clear:

Q. Where were you located when you stopped the defendants?
A. Just south of Superwood on Highway 130.
Q. Did you turn on your lights?
A. Yes, sir.
Q. And did they promptly stop, or did you have to give chase?
A. No, sir, they promptly stopped.
Q. When you stopped the vehicle, what did you do?
A. Came out with my shotgun, advised the subjects to step out of the car, placed them on the trunk of the vehicle, patted them down, handcuffed them, and one at a time, placed them in my vehicle. I advised them they were being held on suspicion of burglary.
Q. So upon taking them out, you advised them they were under arrest for suspicion of burglary?
A. Right.
Q. And you restrained them, placed them physically under arrest in your vehicle in Pulaski County?
A. Yes, sir.
Q. And what did you do with the three defendants and with the car at that time?
A. At that time, about that time, Officer Todd had arrived. I told him about everything and I think an England officer, England police officer had also arrived, and he advised to go ahead and take them to the Lonoke Sheriff’s office and we would get the England officer to stand by the vehicle until the wrecker gets there. I did so.
Q. Did you then transport the three defendants to the jail?
A. Yes, sir.

To constitute an arrest, as opposed to an investigatory stop, there must be three simultaneous occurrences. One, there must be a seizure. Two, the seizure must be performed with the intent to make an arrest, rather than make a temporary investigation, and three, the prisoner must understand he is being arrested rather than merely being stopped for investigation. These three events occurred. The appellants were arrested without probable cause and as a result, the evidence seized should have been suppressed. Nothing more need be said on this point.

The plurality of my brothers on this bench deny that there was an arrest, but insist there was only an investigatory stop, that relatively new dimension by which seizures based on less than probable cause can be made and still comply with the reasonableness standard of the Fourth Amendment. Rules 2 and 3 of the Rules of Criminal Procedure, Ark. Stat. Ann. Vol. 4A (Repl. 1977), labeled "Pre-Arrest Contacts” and "Detention Without Arrest,” deal with investigatory stops.

Rule 3.1 provides that a law enforcement officer may detain, for up to fifteen minutes, any person who he reasonably suspects is committing, has committed, or is about to commit a felony. Reasonable suspicion is required for an investigatory stop as distinguished from the probable cause required for an arrest. This lesser standard is defined in Rule 2.1 as:

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

The Supreme Court of the United States has now recognized four situations where seizures based on less than probable cause, or reasonable suspicion, have complied with the reasonableness standard. See Erickson, Pronouncements of the United States Supreme Court Relating to the Criminal Law Field 1980-81, The National Journal of Criminal Defense, Vol. VII (1981).

First, in Terry v. Ohio, 392 U.S. 1 (1968) a limited stop and frisk was approved. Second, in Adams v. Williams, 407 U.S. 143 (1972) a stop was approved to investigate an informant’s tip that the person stopped was armed and carrying narcotics. Third, in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Court held that border patrol officers may make investigatory stops of vehicles near the country’s borders if there are articulable facts that reasonably warrant a suspicion that the vehicle contains illegal aliens. Fourth, in United States v. Cortez, 449 U.S. 411 (1981), a case involving an investigatory stop similar to the one before us, the Court held that objective facts and circumstantial evidence suggesting that a particular vehicle may be involved in criminal activity may provide a sufficient basis to justify an investigatory stop of that vehicle. Recognizing that investigatory stops are subject to restraints against unreasonable seizures imposed by the Fourth Amendment, the Court defined the factors that create an objective manifestation that the person is, or is about to be, engaged in criminal activity. The analysis of that objective manifestation may include articulation of objective observations, information from police reports, or consideration of modes or patterns of operation of criminals. It is from these data that a trained officer draws inferences and makes deductions that might elude an untrained person. United States v. Cortez, supra.

Our rule and the comparative statute authorize an investigatory stop, Hill v. State, 275 Ark. 71, 628 S.W. 2d 285 (1982); Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56 (1978), and the Supreme Court of the United States has held that investigatory stops can be valid. United States v. Cortez, supra. The Fourth Amendment does not require probable cause or reasonable grounds for this type of stop. The required standard for an investigatory stop is a reasonable suspicion as shown by an objective manifestation that the suspect is, has been, or is about to be, engaged in criminal activity.

In the case at bar the arresting officer had a report that three men were reconnoitering residences. He knew there had been previous burglaries in the area. However, he did not know that a crime had been committed and he did not know one was about to be committed. He arguably did not think he had cause to stop the appellants when he first saw them because he did not stop them. He had no additonal articulable facts when he finally stopped appellants’ car.

At the suppression hearing the deputy admitted that he only had the information from an unknown and unidentifiable informant, the knowledge there had been prior burglaries in the area and appellants’ car was near Brown’s home. His testimony is clear.

Q. So at the time you stopped them some distance down the road, you were, at that time, not aware of any crime that they had committed?
A. I believed they had committed one.
Q. I understand you believed that, even though you had no knowledge of that.
A. No proof at that time, no, sir.
Q. You did not even know whether a crime had been committed, is that correct?
A. For sure, no, sir.
Q. So you made a stop in Pulaski County out of your jurisdiction?
A. Along with a Pulaski County Deputy.
Q. They were not trying to evade you, no hot pursuit?
A. No, sir.
Q. And the only thing that you were basing that arrest on was the discussion that you had had with an unknown male?
A. Yes, sir.
Q. You had no knowledge of whether what he was telling you was truthful or untruthful, reliable or unreliable?
A. At the time he was telling me, no, sir.
Q. So you made the arrest, you had them in custody, placed them in your vehicle before you learned of any violation, if any, that they had committed?
A. I had them in my vehicle before I was certain whether or not the residence had been burglarized.
Q. Did they ever call on the radio and tell you these men had burglarized the place?
A. No, sir.
Q. Or did they give you any information concerning them burglarizing the home?
A. No, sir, he advised me the residence had been burglarized.
Q. So the only thing you knew at that time was you observed this vehicle on the road in front of or near this home, and had followed it?
A. Yes, sir.
Q. That’s the only thing you had to connect them with any crime in this area?
A. Yes, sir.

There was no testimony introduced to demonstrate the modes or patterns of the earlier burglaries. There was no testimony to show if the earlier burglaries had taken place in the daytime or at night; no testimony to demonstrate if the police suspected one or more burglars; no testimony about the method of transportation used; and no testimony about footprints or fingerprints from the earlier burglaries. Deputy Swint admitted he did not know appellants and he knew nothing about their backgrounds. The appellants’ manner of dress was not unusual and there was nothing suspicious about their appearance. He quite simply did not articulate a reasonable suspicion.

Articulated objective facts or articulated circumstantial evidence suggesting that a particular vehicle may be involved in criminal activity can provide a sufficient basis to justify an investigative stop of a vehicle. The test is whether under the totality of the circumstances — the whole picture — the officers are able to articulate a particularized and objective basis for suspecting the particular person stopped of criminal activity. The specificity in the information is the touchstone on which a legitimate investigative stop is made. United States v. Cortez, supra. In the case before us the officer did not articulate specific facts to reasonably suspect appellants had committed a crime. An inarticulable hunch is not sufficient to justify an investigatory stop. The articulation of facts or data is the only testimony from which the trial court can determine whether a trained police officer has drawn inferences and made valid decisions or whether an officer just played a hunch with no real grounds. When an officer does not articulate a reasonable suspicion for the investigatory stop it should be declared unlawful.

A hypothetical example, using facts comparable to the case at bar, will demonstrate the reason. Suppose you, the reader of this opinion, own a puppy and it strays away from your home. You get in your car and drive a few blocks, across a county line, and begin carefully looking for your pup. Some unknown and unidentifiable person sees you “casing” the neighborhood and calls the police. A policeman knows that there have been burglaries in the area and he sees your car in front of a house which had been burglarized some months ago. According to the plurality opinion those facts are sufficient for the officer to follow you back into your original county (under a doctrine, not discussed by the plurality of “hot pursuit to investigate”) and stop you pursuant to Rule 3.1. There were no stronger facts articulated in the principal case. Just as you would have been stopped on an unarticulable hunch in the hypothetical case, these appellants were stopped. The reason for requiring the articulation of a reasonable suspicion is obvious.

Since the stop was not shown to be lawful the evidence should have been excluded. Wong Sun v. United States, 371 U.S. 471 (1963).

II

Seizure of the Evidence

On the proof before the trial court the evidence should have been suppressed for a second reason. The general rule is that a seizure of evidence without a warrant is, per se, unreasonable. Katz v. United States, 389 U.S. 347 (1967). Unless the warrantless seizure in this case fits into an exception the evidence seized must be suppressed. The facts determine whether this case fits into an exception.

After the appellants were handcuffed and in the patrol car Deputy Swint opened the trunk of their car which was parked on the highway. He saw two bags in the trunk, a flowered-type one on the bottom and a black one on top. The flowered-type bag was zipped shut but the black one was partially unzipped and the deputy saw some silver inside. He stated that he could not identify it as the silver belonging to the Browns and he admitted that for all he knew it could have belonged to appellants. He closed the trunk and called Fulmer’s Wrecker Service to tow the car to some type of sheriff’s compound at Lonoke. Miles and perhaps hours later, at some type of sheriff’s compound, a warrantless search of the car was conducted. Deputy Swint’s testimony is emphatic that the car was not searched on the highway:

Q. But your testimony is that you did not search the vehicle on the highway?
A. No, sir.
Q. Irrspective of how you wrote your report, Mr. Swint, did you search those suitcases on the highway?
A. No, sir.
Q. Were they searched at the Sheriff’s office?
A. They was inventoried at the Sheriff’s office, yes, sir.
MR. EDWARDS: That’s all.
THE COURT: Was anything removed from the automobile before it was returned to the Sheriff’s office?
A. Just the three people.
THE COURT: Any property of any kind?
A. No, sir.
Q. You had the vehicle under control, is that correct? You had the three men out of it?
A. Yes, sir.
Q. You had the keys to it?
A. Yes, sir.
Q. You had officers there guarding it?
A. Yes, sir.
Q. And it was returned to the Sheriff’s office?
A. Yes, sir.
Q. And I assume once it got there, or wherever the Sheriff’s office is located, that you had it under guard, or whatever it took to make it secure?
A. Yes, sir.

Those facts do not allow this case to fit into an exception to the general rule. The Supreme Court of the United States has set forth only one narrowly drawn exception where a seizure of evidence can be based on less than probable cause. It is the protective search doctrine set out in Terry v. Ohio, supra, and Adams v. Williams, supra. It authorizes a search of the clothing and that area which is immediately reachable by the arrested person. The basis of this exception is that the arresting officer has every right to assure himself that the person does not have within reach a weapon, although the weapon may be evidence. The rationale of this exception is applicable to an investigatory stop, an arrest, or any other seizure. This exception to the general rule against warrantless searches is not applicable because this was not a frisk for the officer’s protection.

There is another exception that is not as severely limited as the first exception. It is based on probable cause and is the search incident to arrest doctrine, but it is not applicable. “Once an accused is under arrest and in custody, then a search made at another place without a warrant, is simply not incident to arrest.” Chambers v. Maroney, 399 U.S. 42 (1970), quoted in Jenkins v. State, 253 Ark. 249, 485 S.W. 2d 541 (1972).

The “plain view” exception, Chimel v. California, 395 U.S. 752 (1969), is not applicable as Deputy Swint did not have a plain view of the inside of the trunk of the car.

The plurality opinion concedes that the most recent “automobile exception” case, New York v. Belton, 450 U.S. 1028 (1981), is not applicable but argues that the 1925 “automobile exception” case of Carroll v. United States, 267 U.S. 132 (1925) is applicable. The 1925 case states that a warrantless search is valid “where it is not practical to secure a warrant because the vehicle can be quickly moved out of the locality or j urisdiction in which the warrant must be sought. ’ ’ In this case the car was in custody and could not be moved.

The plurality opinion states:

What is claimed, correctly we think, is that when Officer Swint learned the Brown residence had been burglarized, at that point he had probable cause to believe the vehicle contained evidence of the crime and, hence, a search of the vehicle was proper.

The quoted statement is contrary to the law as announced by the Supreme Court of the United States and followed by the court in Jenkins v. State, supra at 252, where we stated:

It is true that there is language in the Chambers case suggesting that probable cause alone is sufficient to sustain a warrantless search of an automobile, but that point of view seems to have been rejected in the later case of Coolidge v. New Hampshire, 403 U.S. 443 (1971). There Justice Stewart speaking upon this point for the majority of the court, had this to say about a contrary position taken in Justice White’s dissent in the Coolidge case: “If we were to agree with Mr. Justice White that the police may, whenever they have probable cause, make a warrantless entry for the purpose of making an arrest, and that seizures and searches of automobiles are likewise per se reasonable given probable cause, then by the same logic any search or seizure could be carried out without a warrant, and we would simply have read the Fourth Amendment out of the Constitution.

The plurality could validly contend that the case of Colorado v. Bannister, 449 U.S. 1 (per curiam 1980) stands for the proposition that when the police have probable cause to believe the vehicle contains evidence of a crime a warrantless search is permissible even when the car has been moved to the police station. Perhaps that leaves Arkansas with a higher standard than the United States for our cases, which are directly in point, hold that a warrantless search of a vehicle is invalid unless there is both probable cause and exigent circumstances. Jenkins v. State, supra; Steel v. State, 248 Ark. 159, 450 S.W. 2d 545 (1970). Arkansas cases directly in point should govern even if the plurality believe that our standard is a more stringent standard than the minimum required by the Constitution of the United States.

We need not determine whether the rule is more restrictive than the principles to be distilled from various Supreme Court decisions, for, of course there is no constitutional objection to a rule of law which provides more protection to individual liberty than the minimum required by the Constitution of the United States.

Meadows v. State, 269 Ark. 380, 602 S.W. 2d 636 (1980).

However, even if one discards all that has been written to this point as peripheral to the search of appellants’ bags, the search of the bags still must fail. Both bags were completely closed, with the black one being zipped together completely and the flowered one being partially zipped. In the recent case of Robbins v. California, 450 U.S. 1039 (1981), the California Highway Patrol officers stopped the petitioner’s car because he was driving erratically. One of the officesr asked petitioner for his license and registration, and when he opened the car door to get out the registration, the officers smelled marijuana smoke. One of the officers patted the petitioner down, and discovered a vial of liquid. The officers then searched the passenger compartment of the car and found marijuana as well as equipment for its use. After putting the petitioner in the patrol car, the officers opened the tailgate of the station wagon, uncovered a recessed luggage compartment, and found two oblong packages wrapped and sealed in green opaque plastic garbage bags. The officers unwrapped the packages and found 30 pounds of marijuana.

Petitioner, who was charged with various drug offenses, filed a pretrial motion to suppress the marijuana found in the two packages. The motion was denied and petitioner was convicted. The California Court of Appeals affirmed the judgment. Certiorari was granted and the case was remanded for further consideration in light of Arkansas v. Sanders, 442 U.S. 753 (1979). On remand, the court of appeals again found the warrantless opening of the packages constitutionally permissible, since the trial court reasonably could have concluded that the contents of the packages could have been inferred from their outward appearance. The Court again granted certiorari because of the continuing uncertainty as to whether closed containers found during lawful warrantless automobile searches may be searched without a warrant.

In a plurality decision written by Justice Stewart, the Court held that the contents of a closed container are fully protected by the Fourth Amendment’s warrant requirement, unless the container is such that its contents are in plain view.

Relying on United States v. Chadwick, 433 U.S. 1 (1977) and Arkansas v. Sanders, supra, the Court rejected the contention that the “automobile exception” to the Fourth Amendment warrant requirement justifies the warrantless search of closed containers found inside the automobile. Justice Stewart stated that Chadwick and Sanders make it clear that a closed piece of luggage found in a lawful search of a car, is constitutionally protected to the same extent as closed pieces of luggage found anywhere else.

Respondent argued that the nature of the container may diminish the constitutional protection and that the Fourth Amendment protects only containers commonly used to transport personal effects. The Court rejected the argument for two reasons: (1) the Fourth Amendment protects people and their effects, whether the effects are personal or impersonal; and (2) it would be difficult if not impossible to perceive any objective criteria to determine what is commonly used to transport personal effects.

Justice Stewart stated that the wrapped marijuana did not fall under the exceptions announced in a footnote in Arkansas v. Sanders, supra. The footnote states that containers whose contents can be inferred from their outward appearance, for example a kit of burglary tools or a gun case, and containers whose contents are open to plain view, do not require a search warrant under the Fourth Amendment. These exceptions refer to items in a container that is not closed, or to containers which so clearly announce their contents, whether by their distinctive configuration, their transparency, or otherwise, that their contents are obvious to an observer. Justice Stewart concluded that the vague testimony of the police officer who said that he had heard that contraband was wrapped in a particular way did not establish that marijuana is ordinarily “packaged this way,” and thus, did not cause the packages to fall within the exceptions announced in Sanders. In a footnote, the Court stated that the prosecution did not argue that the search of the packages was incident to a lawful custodial arrest or that the petitioner consented to the search of the packages. See New York v. Belton, supra.

Robbins, supra, should not be ignored.

A second ground given by the plurality opinion for validating the search is:

. . . Rule 14.1 (a), A. R. Crim. P., gives an officer the right to make a warrantless search of a vehicle detained on a public way if he has reasonable cause to believe the vehicle contains evidence subject to seizure, and exigent circumstances require immediate action to prevent removal or destruction of such evidence.

Rule 14.1 (a) simply is not applicable. The vehicle was not “detained on a public way” when searched; rather it was locked in a sheriff’s compound. There was no testimony of “evidence” subject to seizure. No witness testified that even one piece of the Browns’ property was identifiable. There were no exigent circumstances as the car was locked up in a compound and the appellants were in jail.

Perhaps, in this case, we have forgotten the proper role of the appellate court. It is nothing more and nothing less than to review the trial below and determine whether the appellants received a fair trial, not a perfect trial, but a fair trial. Precedent of this court as well as that of the Supreme Court of the United States hold that the evidence should have been suppressed. The trial court did not so hold and, as a consequence, the appellants did not receive a fair trial. I would grant apellants a new and fair trial. I dissent.

I am authorized to state that Mr. Justice Holt and Mr. Justice Purtle join in this opinion.

      Time is not an issue here and presumably the stop had not exceeded 10 to 15 minutes when the suspected burglary was confirmed.

      “The Automobile Exception: What It Is and What It Is Not — A Rationale in Search of a Clearer Label” by Judge Charles Moylan, 27 Mercer Law Review 987 (1975).

      Where it was held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Larry ANDERSON v. STATE of Arkansas
    CR 82-10
    630 S.W. 2d 23
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982
    [Rehearing denied April 19, 1982.]

      Paul E. Hopper of Coop & Hopper, for appellant.

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

      Purtle, J., would grant the petition.

   George Rose Smith, Justice.

The information charged that Anderson delivered a quarter of a pound of marihuana to each of two undercover officers, for a consideration of $135 each. The jury’s verdicts were “Guilty,” with a five-year sentence on each count. For reversal Anderson argues that the State’s proof was insufficient, because nothing of value was exchanged for the marihuana. We do not regard that exchange as being essential to the commission of the offense charged.

The undercover officers’ testimony was that they had arranged to buy two quarter-pounds of marihuana from one Ronald Wills. When they went to Wills’s house, Anderson answered the doorbell and accompanied them to their car to complete the purchase. They said that Anderson confirmed the agreed price of $135, said that the marihuana was of good quality, and handed each officer a plastic bag of marihuana. The officers, fearing that Anderson had seen their identification lying on the seat of the car, arrested him without first paying for the drugs. Anderson denied that there had been any discussion of marihuana or of a price. He said that as he was leaving the house Wills handed him a paper sack. He testified he accompanied the officers to their car because he wanted a ride, and he thought he was giving them a sack containing old clothes. The jury evidently believed the State’s testimony.

Our statute is, with some amendments, the Uniform Controlled Substances Act, 9 U.L.A. 187 (1979). The Uniform Act does not require a sale of a controlled substance, only its delivery, the definition being:

“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship. [Our italics.]

The Supreme Court of Mississippi reasoned that the word delivery was used “to relieve the state of the task, oftentimes difficult if not impossible, of proving the consideration paid for the contraband, its intentions being to thwart the exchange or transfer of the substance whether accompanied by consideration or not.” Wilkins v. State, 273 So. 2d 177 (Miss., 1973).

Our legislature modified the Uniform Act’s definition of delivery by inserting the further requirement that it be “in exchange for money or anything of value.” Ark. Stat. Ann. § 82-2601 (f) (Repl. 1976). It is reasonable to believe that the added words were intended to make the comparatively severe penalty for delivery inapplicable to a gratuitous transfer, such as the action of two or more persons in smoking one marihuana cigarette by passing it around. Our legislature, however, left intact the Uniform Act’s provision that a delivery includes an attempted transfer. Here the jury could find from substantial evidence that Anderson attempted to transfer the two bags of marihuana in exchange for an agreed sum of money and had completed his part of the transaction. The proof therefore supports the convictions.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The only issue presented to the court is whether Ark. Stat. Ann. § 82-2601 (f) (Repl. 1976) requires proof of the delivery to be accompanied by receipt of money or anything of value in exchange for the controlled substance. To begin let us read the whole of Section (f) which states:

“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance in exchange for money or anything of value, whether or not there is an agency relationship.

I have read this section several times and I cannot discover anything ambiguous about it. It simply states that a delivery is completed when the person delivering or attempting to deliver a controlled substance receives money or anything of value in exchange therefor.

Ark. Stat. Ann. § 82-2642 (Repl. 1976) reads as follows:

For the purposes of this Act (§§ 82-2641 — 82-2643), the term “delivery” means the actual or attempted transfer from one person to another of a controlled substance included in Schedule I of Act 590 of 1971 (§ 82-2605), as amended, in exchange for money or anything of value, whether or not there is an agency relationship.

The two statutes are for all practical purposes identical. Both state that the delivery or attempted delivery must be in exchange for money or anything of value. There is nothing difficult about the words or the manner in which they are used. There has been no change of the definition of the word “delivery” since 1971, thus I believe the General Assembly is satisfied with the law as it is written. The Uniform Controlled Substances Act was obviously intentionally changed by the General Assembly.

Ark. Stat. Ann. § 82-2617 (a) (Supp. 1981) reads as follows:

Except as authorized by this Act (§§ 82-2601 — 82-2638) it is unlawful for any persons to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

From the above language it is quite clear that the General Assembly made it a violation of the law to “deliver” or possess with “intent to deliver” a controlled substance. The state of Arkansas very carefully changed the Uniform Controlled Substances Act by inserting the additional requirement that the “delivery” must be “in exchange for money or anything of value.” The most logical conclusion to be reached by the addition of the words “in exchange for money or anything of value” is to distinguish the crime of “delivery” from that of “intent to deliver” which is included in the same sentence under Ark. Stat. Ann. § 82-2617 (a). Also, another logical reason is that it was the intention of the legislature to prevent a person who gives away a controlled substance from suffering the same harsh penalty as one who sells or deals in controlled substances.

The majority is quite misleading in quoting the Uniform Controlled Substances Act, seeing as how the section of the Uniform Act in question was never adopted in Arkansas. The Mississippi case cited also seems to interpret the Uniform Act, rather than the law as it reads in Arkansas. If the majority wishes to uphold the Uniform Controlled Substances Act rather than the applicable Arkansas statutes, they are in effect rewriting our laws. This is exactly what the majority’s opinion has done. It is not our responsibility to change the charges to meet the results obtained at the trial. It is the state’s responsibility to place and prove the proper charge against an accused. The results of the State’s failure to do so is usually to try the case again in a proper manner.

We have interpreted part of this statute on numerous occasions. In Curry v. State, 258 Ark. 528, 527 S.W. 2d 902 (1975), we upheld the conviction for delivery of a controlled substance and stated:

The act [of delivery] is condemned any time the transfer is “in exchange for money or anything of value.”

In the case of Ryan v. State, 260 Ark. 270, 538 S.W. 2d 702 (1976), we upheld a conviction for “possession of a controlled substance (marijuana) with intent to deliver.” In upholding this portion of the statute we stated:

Of course, as to the second phase of the argument, the intent to deliver element is a legal presumption embodied in Ark. Stat. Ann. § 82-2617 (d) (Supp. 1975).

Our decisions clearly reveal that Ark. Stat. Ann. § 82-2617 provides penalties for “delivery” and also for “possession with intent to deliver. ’ ’ We have upheld convictions on both of these provisions but we have never before been called upon to ignore the provision of the law which requires the exchange of “money or anything of value.”

I agree with the majority that “delivery” includes “attempted transfer.” However, “attempted transfer” does not include “accepting money or anything of value.” Such construction amounts to rewriting the statute. We are bound by the rule of strict construction in this case. Austin v. State, 259 Ark. 802, 536 S.W. 2d 699 (1976). It is pure semantics to argue that the word “attempted” modifies “transfer” but if it does, it certainly does not modify the phrase “in exchange for money or anything of value.”

It is plain from the record that a charge of “attempted delivery” could have withstood-scrutiny and still given the appellant a felony conviction. However, in view of the undisputed fact that no money or anything of value was given in exchange for the marijuana I would reverse rather than rewrite the law.


author: Frank Holt, Justice.

text:
    Thomas J. McMURTRAY v. Patricia McMURTRAY
    81-215
    629 S.W. 2d 285
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982

      Howell if Price, P.A., for appellant.

      John C. Calhoun of Owens, McHaney & Calhoun, for appellee.
   Frank Holt, Justice.

This appeal questions the chancellor’s division of property in a divorce action. Appellant argues that the chancellor erred in holding that a nonfunded account, which appellant owned in a corporation, had vested and was marital property subject to equal division. Ark. Stat. Ann. § 34-1214 (Supp. 1981) (Act 705 of 1979).

Appellant was employed in 1973 by a corporation which was partly owned by appellee’s father. In 1977, during the parties’ first marriage of 15 years, the company gave him an incentive contract by the terms of which appellant would own the equivalent of 5% of the book value of the corporation’s common stock at the end of each fiscal year. The stock was nontransferable. The account was distributable or payable to appellant or his estate upon his death, resignation, or termination of employment. His employer retained the option to make a distribution in a lump sum or pay 25% initially and the balance, without interest, within one year or purchase an annuity. The appellant argues his contractual right in the nonfunded account was acquired in 1977 as his sole and separate property, remained his property after his 1978 divorce and continued to be his separate property upon the parties’ remarriage in 1979 notwithstanding their 1978 property settlement agreement by which appellee relinquished her interest in the stock. In other words, appellant asserts that the stock he owned in the corporation was not marital property since it was acquired before and not during their second marriage.

Section 34-1214 (B) (5) provides:

For the purpose of this statute, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
The increase in value of property acquired prior to the marriage.

In a property settlement at the time of their first divorce, the appellee relinquished any rights she had to any “stock” in the company in exchange for the equity in their home. We have said that a property settlement survives a reconciliation unless the court can find an intention or express agreement that it shall not survive. Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251 (1977). Here, the trial court held it was the parties’ intentions to abrogate the property settlement when they remarried. He found that the property each possessed as a result of their first divorce was brought back into the second marriage and used as joint property with “intent to make it a family.” It is undisputed that upon remarriage, after nine months, the appellee took $10,000, the balance of the $13,000 equity in their home which she had received pursuant to the property settlement, and used it as a down payment on another home for themselves. The property was titled in their joint names. Both signed a note and mortgage to her mother for additional funds to purchase a new home. The appellant placed his paycheck into a joint account, and appellee wrote checks to pay their expenses. They filed a 1979 joint income tax return.

The finding of a chancellor on a fact question will not be disturbed on appellate review unless the finding is clearly erroneous (clearly against the preponderance of the evidence). ARCP. Rule 52, Ark. Stat. Ann. Vol. 3A (Repl. 1979). Ratliff v. Thompson, 267 Ark. 349, 590 S.W. 2d 291 (1979). Here, we cannot say the chancellor’s finding is clearly erroneous that the settlement was abrogated by the intention and actions of the parties and that the corporate account was marital property subject to equal division.

In the alternative, the appellant argues the benefits he would receive under the incentive agreement with his employer were “retirement benefits” which should not be considered marital property inasmuch as the value of the benefits or balance due on the account is speculative, citing Paulsen v. Paulsen, 269 Ark. 523, 601 S.W. 2d 873 (1980); Knopf v. Knopf, 264 Ark. 946, 576 S.W. 2d 193 (1979); Lowrey v. Lowrey, 260 Ark. 128, 538 S.W. 2d 36 (1976); Fenny v. Fenny, 259 Ark. 858, 537 S.W. 2d 367 (1976). These cases are inapplicable. Here, appellant terminated his employment in July, 1980, during the parties’ marriage or preceding the second divorce. At that time his employment agreement was modified whereby appellant would be paid immediately, as of August 15, 1980, 25% of his corporate fund for the preceding fiscal year, which ended September 30, 1979. According to appellant, his corporate fund on that date was worth about $82,000 ($22,000 in 1977, $40,000 in 1978). He was paid about $20,500 with the understanding that upon completion of the audit for the fiscal year 1980, he would be paid the reflected balance, without interest, within one year or by July 1981. The chancellor correctly held that his interest in the company stock was vested and fully distributable to him as of July, 1980, and, therefore, marital property subject to equal division on the date of their divorce in January, 1981. Bachman v. Bachman, 274 Ark. 23, 621 S.W. 2d 701 (1981).

Appellant next asserts that appellee is not entitled to one-half of the account before income taxes inasmuch as it would result in an unequal distribution of the property; i.e., appellant will be subject to payment of all the tax on this item of marital income, resulting in appellee’s portion being tax free. Therefore, appellant argues the income tax on this marital property should be equally divided. Stated another way, there is no equal division of this item which the chancellor specifically held to be marital property with each being entitled to a one-half share. Appellee responds that this argument was not presented to the trial court and, therefore, should not be considered on appeal. Furthermore, appellant’s argument is based upon assumptions and speculations.

Following the rendition of the decree, the appellant, by present counsel who was retained following trial, filed a timely motion for a new trial based upon the issue of the division of the corporate funds received by him as marital property alleging that an excessive award was granted to appellee inasmuch as appellant would be required to pay all of the income tax and appellee’s portion would be tax free thereby unduly enriching appellee. After argument of counsel, a special chancellor found that the requested new trial should be denied inasmuch as the “court considered all matters raised by defendant’s motion.”

A review of the chancellor’s findings reflects that all property, including the corporate fund, is marital property and subject to equal division. § 34-1214 supra. In accordance with this finding the court directed that their home should be sold and the net proceeds divided equally; that repayment of $1,400, which they borrowed from appellee’s mother to pay their joint 1979 income tax, should be shared equally and that all other personal property is marital property and, unless otherwise agreed, shall be sold with the net proceeds divided equally. Further, “the court finds that all debts, including medical, are joint debts of the marriage, and either party who paid on such indebtedness will be given credit for same.” Appellant has paid most of the outstanding family indebtedness. As to the income tax indebtedness, appellant approximates that he would receive by July, 1981, a total of $112,000 for the corporate fund following completion of the 1980 audit. He then estimates that a total of $33,409 will be due and payable in income taxes which he must pay from his one-half portion. She should be required to pay one-half, $16,704.50, of this indebtedness; otherwise, he would realize only $22,591 net ($56,000 less $33,409) while appellee would receive $56,000 net.

As indicated, the chancellor held that all property, and specifically this corporate fund, is marital property; that upon a sale of any item of property the net proceeds should be divided equally; and, also, that all debts are joint debts of the marriage with each party receiving credit for any payment thereon. In the circumstances, we feel a fair interpretation of the chancellor’s findings requires that the appellee should share equally in whatever the income tax indebtedness is on this marital property. We agree that appellant’s figures are based upon speculation and assumptions; however, if within 17 calendar days, appellee is willing to accept his figures as being sufficiently correct, her share should be reduced by $16,704.50 (one-half of $33,409). Otherwise, we must remand the cause for a determination of the amount of income tax indebtedness with each party paying one-half.

Affirmed as modified.

Hickman and Dudley, JJ., would affirm.