author: Robert L. Brown, Justice. Annabelle Clinton Imber, Justice,

text:
    John Aaron LACY v. STATE of Arkansas
    CR 00-909
    44 S.W.3d 296
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      William R. Simpson, Jr., Public Defender, by: Steven Abed, Deputy Public Defender, and Deborah R. Sailings, Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, John Aaron Lacy, was convicted of first-degree murder and sentenced to fife imprisonment. He appeals and raises one point — the trial court erred in admitting his statement to a police officer into evidence. Specifically, Lacy contends that he unequivocally invoked his right to counsel and that his statement was taken in violation of Edwards v. Arizona, 451 U.S. 477 (1981). We hold that the trial court’s finding that the statement was freely and voluntarily given after a knowing and intelligent waiver of his Miranda rights was not clearly erroneous.

The facts are that on October 4, 1998, Beverly Henderson was staying at the Park Lane Motel in North Little Rock with her friend, Jeff Galandt, who was a truck driver. Galandt testified that he and Henderson were engaged to be married and that Henderson had been a prostitute and suffered from a drug problem. On October 5, 1998, after leaving on his truck route and not hearing from Henderson, Galandt became concerned and called the motel manager of the Park Lane Motel, Mike Patel. Patel was busy and Galandt asked Patel’s wife to have Patel check on Henderson. Patel did so and found that her motel room was in total disarray and that there was blood on the walls, carpet, and bed. He immediately notified the North Little Rock Police Department. Police officers found in their examination of the motel room that among the blood splatters was a bloody hand print on a wall.

Lacy, who was age 31 at the time, had also been staying at the Park Lane Motel on October 5, 1998, and he had been seen by another motel guest going in and out of Henderson’s room that night. As part of the investigation, North Little Rock police detectives began interviewing the guests of the motel. On October 13, 1998, Lacy voluntarily came to the North Litde Rock police station for an interview. All of the police interviews with Lacy on October 13, 1998, were videotaped. Prior to the interview, a police investigator took Lacy’s finger prints and palm print and gave him the standard Miranda warnings. While the interview was underway at the police station, the State Crime Lab found that Lacy’s palm print matched the palm print found on the wall of Henderson’s room. Upon discovering this positive match, the police considered Lacy to be in custody.

Lacy initially denied knowing Henderson or having any knowledge of what happened in Henderson’s motel room on the night in question. However, after learning of the matching palm prints, Detective Scott Armstrong, who had been asking Lacy routine questions, confronted him with the Crime Lab evidence and began interrogating him about his involvement in Henderson’s murder. Lacy continued to deny any knowledge of the murder over the next two hours. Sergeant Larry Dancy then took over the interview. During this time period, Lacy invoked his right to counsel on two occasions. After visiting with his mother, Linda Tolliver, for a prolonged period of time, Lacy asked to see Sgt. Dancy. Lacy gave a statement admitting his involvement in Henderson’s death, after receiving his Miranda warnings. He said that he had been drinking alcohol and taking cocaine at the motel and that Henderson approached him about sex. She performed oral sex on him for $20.00 in his room. After she left his motel room, he believed his wallet and a package of cocaine had been stolen. He returned to Henderson’s room and accused her of the theft. They fought. According to Lacy, she pulled a gun on him and stabbed him with scissors. He hit her and strangled her until she died. With the help of a stranger, whom he paid, he transported Henderson’s body to Mayflower, dragged her onto his mother’s property, and buried her in a shallow grave. After giving the statement, Lacy accompanied police officers to Mayflower at about midnight and showed them where the body was buried. The following day, Lacy gave a formal statement to Detective Scott Armstrong after being given his Miranda warnings.

Lacy was charged with first-degree murder, and an enhancement of his sentence was requested by the prosecuting attorney owing to a criminal record of four or more felonies, with two or more of those crimes being serious crimes which involved violence.

Lacy moved to suppress his statements and the fruits of those statements and asserted that North Little Rock police detectives continued to interrogate him after he had invoked his right to counsel in violation of Edwards v. Arizona, supra. The trial court held a hearing where testimony was taken from the detectives and Lacy. The trial court denied the motion to suppress and found that Lacy had knowingly and voluntarily given his statement. As a result, the trial court ruled that the statements were admissible.

Over Lacy’s renewed objection at trial, the audio portion of his taped statement given to Detective Armstrong on October 14, 1998, was admitted into evidence and played for the jury. The verbal statements given by Lacy to Sgt. Dancy the previous day were not presented to the jury. Dr. Charles Kokes, a forensic pathologist with the State Crime Lab, testified that Henderson died from multiple blows to the head from a blunt force and strangulation. After the trial by jury, Lacy was found guilty of first-degree murder. Based on a finding by the trial court that Lacy had previously been convicted of rape and aggravated robbery, the trial court sentenced him to life imprisonment.

Lacy contends on appeal that his right to counsel, as guaranteed by the Fifth Amendment and Miranda v. Arizona, 384 U.S. 436 (1966), was violated. We recently set out our criteria for reviewing a trial court’s ruling on a motion to suppress in the cases of Jones v. State, 344 Ark. 682, 42 S.W.3d 536 (2001) and Barcenas v. State, 343 Ark. 181, 33 S.W.3d 136 (2000). In such cases, this court views the evidence in the light most favorable to the State and makes an independent determination based on the totality of the circumstances. Barcenas v. State, supra; Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). This court wifi only reverse a trial court’s ruling on a motion to suppress, if the ruling was clearly erroneous. Barcenas v. State, supra. A statement made while an accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998). In order to determine whether a waiver of Miranda rights is voluntary, this court looks to see if the statement was the product of free and deliberate choice rather than intimidation, coercion, or deception. Diemer v. State, 340 Ark. 223, 9 S.W.3d 490 (2000).

It is well settled that when an accused requests an attorney, a police interrogation must cease until counsel has been made available to him. Edwards v. Arizona, supra. However, if the accused initiates further communication, exchanges, or conversations with police officers, any resulting statement may be admissible. See Edwards v. Arizona, supra; Chase v. State, 334 Ark. 274, 973 S.W.2d 791 (1998). In Edwards, the United States Supreme Court concluded:

We further hold that an accused, ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-485. Interrogation may take other forms than mere questioning by police officers. In Rhode Island v. Innis, 446 U.S. 291 (1980), the Court said:

[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter part of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.

446 U.S. at 301.

All of the police interviews with Lacy on October 13 -and October 14, 1998, were videotaped by the North Little Rock Police Department. The interviews and interrogation comprised eight hours and are depicted on six videotapes. Initially, Lacy denied any knowledge of the murder. The precise sequence of events, as shown on the videotapes, is as follows:

• On October 13, 1998, the first Miranda form is read to Lacy by Detective Armstrong at 2:20 p.m. and signed by Lacy. Lacy says he understands his rights “perfectly.” This rights form states that Lacy was talking to police officers regarding a “missing person.” The form was signed by Detective Armstrong. Detective' Armstrong later tells Lacy that the Crime Lab experts have concluded that his hand prints match the prints found on the motel room wall. '
• Sgt. Dancy begins speaking to Lacy approximately two hours into the interview. He points out that Lacy’s arm has been scratched and repeats that the Crime Lab has matched his finger prints. Lacy tells him that he knows he’s going to jail. He says he does not want to be in jail when his mother dies. He says his billfold came up missing. Lacy then asks Sgt. Dancy whether “the prosecuting attorney” can come over, and Sgt. Dancy responds that [they] can if you want to talk to one. Lacy asks whether Sgt. Dancy is going to quit talking to hiin if he asks to see an attorney and Sgt. Dancy says that he would. Then Lacy says “I don’t want, I don’t, I don’t....’ I want to keep talking to you. I need to talk' to my mom.” They discuss searching the Mayflower property for the body. Shortly after this discussion, Sgt. Dancy tells Lacy that it is about 6:00 p.m. Lacy asks if they will go on and take him to the Pulaski County Jail, and Sgt. Dancy asks, “Why end it that way? Is that what you want?” Lacy says, “No, just tired.”
• While he is being questioned, Lacy repeatedly asks to speak to his mother. His mother, Linda Tolliver, is brought to the police station by the detectives. Sgt. Dancy leaves Lacy and his mother alone in the room for a prolonged period of time. Sgt. Dancy testifies that he did not ask Ms. Tolliver to ask any questions on his behalf. After denying any knowledge of the crime for a long time, Lacy eventually tells his mother that the woman is dead. Several times during his conversation with his mother, Lacy asks his mother if she thinks he should talk to an attorney. She tells him to do whatever he wants to do.
• At some point after this, Ms. Tolliver leaves the room at the request of one of the detectives. Lt. Chapman of the North Little Rock Police Department asks Lacy if he can get him anything. Lacy responds that he wants to exercise his right to see an attorney and wants to go on to jail. At that point, Lt. Chapman stops talking to Lacy and leaves the interrogation room.
• After seven to ten minutes, Sgt. Dancy reenters the room with Ms. Tolliver, who has with her a sheet of paper which is the Crime Lab’s positive match up of Lacy’s hand print to the hand print at the crime scene. At Lacy’s request to speak to his mother alone, Sgt. Dancy leaves the room after staying there for a little more than one minute. Ms. Tolliver tries to persuade Lacy to tell her where the body is and to admit that he accidentally killed a prostitute. She says she is concerned about a Christian burial and about kids or animals finding the body.
• While talking to his mother alone, Lacy admits that he accidentally killed Henderson but says he wants to talk to an attorney. His mother says he could have talked to an attorney any time this afternoon but emphasizes that his palm print matches the bloody palm print found in the room. Ms. Tolliver encourages Lacy to tell the police it was an accident and that he wants to talk to an attorney. Sgt. Dancy then asks to visit with Ms. Tolliver. Ms. Tolliver returns alone, and Lacy tells her Henderson is dead and that it was an accident. Ms. Tolliver says that Lacy needs to tell Sgt. Dancy that, and Lacy says to “go get him.” After talking for about 40 minutes, Ms. Tolliver leaves the room to find Sgt. Dancy to tell him that Lacy wants to talk to him. Sgt. Dancy returns to the room.
• The following conversation then transpired:
Sgt. Dancy: I know that, or I’m reasonably sure. (Addressing Lacy:) Let me tell you something. If you’ve requested an attorney, and I don’t know that you’ve formally done that ...
Ms. Tolliver: No, he hasn’t.
SGT. DANCY: But if you have, I’m out of here. That’s the law.
LACY: Fuck the law.
Ms. Tolliver: No, I told him ...
LACY: Ain’t nobody requested anything ...
Ms. TOLLIVER: He’s going to tell you that this was an accident but he’s still going to have to have an attorney ...
Sgt. Dancy: Oh, he’s going to have to have an attorney somewhere down the road ...
Lacy: You going to charge me with first degree, second degree or manslaughter ...
SGT. DANCY: I don’t know what I’m going to charge you with until you tell me. Look, let me tell you, if you request an attorney I’m up and out of here. That’s the law.
Ms. Tolliver: He wants to tell you ...
Sgt. Dancy: I need him to tell me what happened, his side of the story and where I can find her. And because we’ve even talked about an attorney, I think before, if he wants to do that, before he even does that, I’d like to go over your rights [for] with you again, because I want it to be clear as a bell. I have to protect the integrity of this investigation, number one. I have to protect your rights as a U.S. citizen, number one. I told you in here earlier, John, that I don’t believe you went in this room with the intent of killing anybody.
Ms. TOLLIVER: Tell him about what happened.
Sgt. Dancy: But, well, no. I think I want to go over a rights form again. I want to keep the integrity ...
Ms. Tolliver: No, he wants to tell you this.
LACY: Go get the rights form.
• Sgt. Dancy leaves the room and returns with the Miranda rights form, and this conversation ensues:
LACY: I can’t talk to no attorney tonight?
SGT. DANCY: Well, yeah. You can do anything you want to, John.
LACY: Can I call an attorney now, even though I’m going to make a statement?
Sgt. Dancy: Well, an attorney is going to tell you not to, but sure you can.
Lacy: I’d rather do that.
Ms. Tolliver: John ...
Lacy: I’d rather do that and still talk to you.
Ms. Tolliver: He wants to do both.
LACY: I want to talk to an attorney.
SGT. Dancy: They’re going to tell you not to, but that’s okay. Who do you want to call?
LACY: Greg Bryant.
Ms. TOLLIVER: You’ll have to use a public defender. I can’t afford Greg Bryant.
LACY: Can you get a public defender up here?
SGT. DANCY: No. Not tonight. Not that I’m aware of.
Ms. Tolliver: It’s just what he said. He can take you and have you charged with first degree or he can take you for accidental ... manslaughter.
SGT. DANCY: I’ve never got a public defender up here at night. I don’t know.
LACY: Could you try?
SGT. DANCY: I’ll see if I can. I don’t know. This is up to you John. I’m through. I’m through.
• Sgt. Dancy leaves the room. The testimony of Sgt. Dancy is that this occurred approximately five and a half hours after the interview started, but he does not give a specific time, although a rough estimate would be about 8:00 p.m. Ms. Tolliver again asks Lacy where the body is and they discuss getting an attorney and the fact it was an accident. Lacy says the body is in Mayflower.
• About twelve minutes later, Ms. Tolliver leaves the room to get Sgt. Dancy and says that Lacy wants to talk to him. Sgt. Dancy is seen reentering the room with a Miranda rights form. Lacy says to him immediately as he enters the room: “Yeah, I did it man.” Sgt. Dancy stops him and says if Lacy wants an attorney, he is leaving. Lacy says, “Let’s do it.” Lacy is again read his Miranda rights, and Sgt. Dancy emphasizes Lacy’s right to counsel. He signs a Miranda rights form at 8:15 p.m. Unlike the earlier rights form, this form states that Lacy is talking to police offices about a homicide. Sgt. Dancy signs the form.
• Lacy discusses the details of the crime and the location of the victim’s body on his mother’s property in Mayflower. He takes the detectives to find the body in Mayflower at around midnight.
• On October 14, 1998, Detective Armstrong read Lacy his Miranda rights a third time, and Lacy signed another rights form at 4:38 p.m. Lacy is wearing a prisoner jumpsuit instead of the civilian clothes he was wearing in the videotapes on the previous day. He makes no request for counsel. Lacy gives a lengthy and detailed description of the murder. The interrogation ends at 7:39 p.m. The statement is audiotaped and played for the jury at trial.

Under the test enunciated by the Supreme Court in Edwards v. Arizona, supra, the critical inquiry for this court is whether Lacy initiated further communication with the police detectives, before making his statement to Sgt. Dancy. We believe that Lacy did. There is no question in our minds that Lacy was fully aware of his Miranda rights and specifically of his right to counsel. Indeed, he had invoked that right once with Lt. Chapman, who immediately left the room, and a second time with Sgt. Dancy, who said: “I’m through. I’m through.” Yet Lacy continued to massage the issue with his mother and asked her repeatedly whether he should talk to an attorney. Her ultimate advice was to tell the police detectives that Henderson’s death was an accident and where the body was buried and then talk to an attorney. This is the advice that Lacy chose to follow.

Lacy would now have it that after he asked for an attorney, no later statement by him would be admissible. That is not the law. The Supreme Court in Edwards v. Arizona, supra, makes it clear that an accused may initiate contact with the police even after asking for an attorney. And that is precisely what happened in the case at hand. Lacy told his mother to go get Sgt. Dancy, and when the police sergeant entered the room, Lacy said, “Yeah, I did it man.” Sgt. Dancy stopped him and went over his Miranda rights again and in doing so, underscored his right to an attorney several times. Lacy executed the Miranda rights waiver form and proceeded to tell his story.

Caselaw in Arkansas and other jurisdictions support our conclusion. In 1994, this court affirmed a trial court’s ruling to allow a suspect’s statement into evidence after that suspect (Rockett) had asked for counsel. See Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), overruled in part on other grounds Mackintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). In that case, Rockett was arrested for murder, and he requested counsel. Subsequently, he initiated contact with the police, waived his Miranda rights, and gave a statement. We stated that on appeal, we looked to the totality of the circumstances and view the evidence in the light most favorable to the State. We then concluded:

Here, we hold the record supports the trial court’s ruling admitting Rockett’s statement. Detective Smiley testified that Jazmar Kennedy, Rockett’s girlfriend, came to the jail to visit Rockett. Smiley admitted that he told Ms. Kennedy that maybe if Rockett showed some remorse the jury might give him life instead of the death penalty. After visiting with Rockett, Ms. Kennedy told Detective Smiley that Rockett wanted to talk to him. Although Detective Smiley knew that Rockett had an attorney at this point, he agreed to hear what Rockett had to say. He introduced himself to Rockett and asked if he had wanted to talk. Rockett responded in the affirmative. The two went to another room, and before Smiley said anything, Rockett said that he did not mean to kill the clerk and began to tell the whole story. Detective Smiley interrupted, Rockett’s rights were read and a Miranda form was completed, and Rockett gave a complete confession of the events at the Stax store. Both Rockett and his girlfriend denied that Rockett requested to speak to Smiley. However, it is for the trial court to decide questions of credibility and conflicts in testimony, and we will not reverse unless the decision is clearly erroneous. Everett v. State, 316 Ark. 213, 871 S.W.2d 568 (1994). Having reviewed the record, we are satisfied that the trial court’s decision was not clearly erroneous, and we affirm.

318 Ark. at 838, 890 S.W.2d at 238-239. The events in Rockett resemble what occurred in the instant case.

This court has affirmed other trial court rulings where statements were admitted into evidence after a suspect had first sought counsel. See, e.g., Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). In Stephens, we observed that in cases when the right to counsel is invoked but then waived, the proper focus is on whether the subsequent waiver of the right to counsel is intelligently and voluntarily made. Other states are in agreement with this principle. See, e.g, People v. Woolley, 178 Ill.2d 175, 687 N.E.2d 979 (1997); State v. Flack, 260 Mont. 181, 860 P.2d 89 (1993); State v. Claybrook, 736 S.W.2d 95 (Tenn. 1987).

We hold that Lacy initiated contact with Sgt. Dancy after invoking his right to counsel and that the trial court did not clearly err in finding that he knowingly and intelligently waived his Miranda rights at that time.

Lacy also argues that his mother, in effect, became an agent of the North Little Rock Police Department or at least a “go-between.” This, he contends, was utilization of the functional equivalent of the police to obtain a statement in violation of Rhode Island v. Innis, supra. We disagree. First and foremost, it was Lacy who repeatedly asked for his mother to be present. Based on the videotapes, Lacy had enormous confidence in his mother’s advice and asked her multiple times whether he should talk to an attorney. We have no doubt that Ms. Tolliver had her son’s best interests at heart, and her repeated advice to him was to tell the police that Henderson’s death was an accident, which is what Lacy ultimately did. We see nothing wrong in the police allowing Ms. Tolliver to continue to talk with her son. We note that after Lacy exercised his right to counsel with Lt. Chapman, Ms. Tolliver reentered the room with Sgt. Dancy, and Lacy dismissed Sgt. Dancy. He then visited with his mother at length. Again, that is analogous to what happened in Rockett v. State, supra.

Other jurisdictions have not seen fit to deny admission of a statement when a family member or friend has encouraged the suspect to talk after the suspect has invoked his or her right to counsel. See, e.g., Arizona v. Mauro, 481 U.S. 520 (1987) (suspect invoked right to counsel in murder of his son and wife asked to speak to suspect with police present with a tape recorder; Court upheld admissibility of statements which were used to show suspect was sane on grounds this was not police-initiated interrogation and that suspect was not subjected to compelling influences, psychological ploys, or direct questioning by police officers); Snethen v. Nix, 885 F.2d 456 (8th Cir. 1989) (suspect declined to speak to police without attorney present, but mother asked to speak to suspect who made incriminating statements in front of police; statement admissible since no evidence police questioned suspect; petition for writ of habeas corpus denied); U.S. ex rel. Whitehead v. Page, 2000 W.L. 343209 (N.D. Ill. 2000) (friend convinced suspect to confess to murder after he requested counsel; no evidence this was police-initiated interrogation; petition for habeas corpus denied); Lowe v. State, 650 So.2d 969 (Fla. 1995) (suspect confessed to girlfriend that he murdered victim after requesting counsel; police told girlfriend evidence against suspect; court affirmed admission of statement, holding no violation of Rhode Island v. Innis, supra); Cook v. State, 270 Ga. 820, 514 S.E.2d 657 (1999) (court upheld confession to murders given to suspect’s father, an FBI agent, after suspect requested an attorney; court held father was not directed by law enforcement to obtain confession).

In the instant case, Lacy had been aware for hours that the Crime Lab had matched his palm print to the one on the motel wall. This means the evidence that his mother brought into the interrogation room was nothing new to him. Further, it was Lacy who wanted to consult with his mother and seek her advice. The fact is crystal clear from a viewing of the videotapes. That this ultimately inured to the benefit of police officers does not convert Ms. Tolliver into the Department’s agent or functional equivalent, and Sgt. Dancy was adamant that Ms. Tolliver was not acting at the direction of the police department.

Lacy urges that Hughes v. State, 289 Ark. 522, 712 S.W.2d 308 (1986), is authority for reversing this case. That is not our view. In Hughes, the suspect confessed to murder to an employee of the prosecutor’s office who continued to question the suspect after she invoked her right to counsel. We held that the questioning should have stopped and invalidated the confession. The instant case is vastly different. Here, Lacy’s mother, whom he wanted to see, discussed the case with him and then Lacy initiated contact with the police.

The totality of the circumstances in the instant case supports a holding that Ms. Tolliver’s involvement did not run afoul of Rhode Island v. Innis, supra.

There is one additional point. The only statement of Lacy that was played for the jury was the statement given to Detective Armstrong the day following the interrogation by Sgt. Dancy. Detective Armstrong took the formal statement after advising Lacy, once again, of his Miranda rights. Lacy waived those rights in writing and proceeded to give his statement. No request for counsel was made. Accordingly, there was no hint of a Miranda violation when Lacy gave his formal statement to Detective Armstrong. Because the parties do not argue the point of whether what transpired the next day cured any alleged Miranda violations, we do not address it.

' The record has been examined pursuant to Ark. Sup. Ct. R. 4-3(h) for other reversible error, and none has been found.

Affirmed.

Imber and Thornton, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. I must dissent. Mr. Lacy clearly invoked his right to the assistance of counsel during interrogation when he informed. Lt. Chapman that he wished to assert his right to counsel. Lt. Chapman responded appropriately and left Mr. Lacy alone. A few minutes later, however, Sgt. Dancy returned to the interrogation room in the company of Mr. Lacy’s mother, Ms. Tolliver. It is this encounter, which the majority merely glosses over, that forces me to dissent from the decision reached by the court today.

When a suspect in custody is subjected to interrogation, the suspect must be informed of his right to counsel and his right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966). If at any time during the custodial interrogation, the suspect unambiguously invokes his right to counsel, all interrogation must immediately cease and may not be resumed, absent a break in custody. Edwards v. Arizona, 451 U.S. 477 (1981); McNeil v. Wisconsin, 501 U.S. 171 (1991). Once the suspect has invoked his right to counsel, law enforcement officers may not resume the interrogation unless it is the suspect who initiates the exchange. Edwards v. Arizona, supra.

In the instant case, Mr. Lacy clearly and unambiguously invoked his right to counsel when he engaged in the following exchange with Lt. Chapman:

Mr. Lacy: Y’all have just sat up here all this time, catering to me. My mom’s out there about to stroke out, but I’m just ready to go on to jail. I know y’all are going to get pissed.
LIEUTENANT: We aren’t going to be upset about it, but it’s like I told you earlier, our main concern is trying to at least get her to where she goes to a proper place.
Mr. Lacy: It’s best I go on to jail. I feel like I’ve wasted y’all’s time. I heard my mom out there getting upset.
LIEUTENANT: No, I just saw your mom. She’s fine.
Mr. LACY: I can say this about your detectives. They’re professional. I will go on and exercise my right to see an attorney. I’m ready to go on to jail.
Lieutenant: Okay.

(Emphasis added.) At that point, Lt. Chapman acted appropriately and ceased his discussion with Mr. Lacy. After a few minutes, however, Sgt. Dancy returned to the interrogation room with Mr. Lacy’s mother. Upon entering the room, Ms. Tolliver confronted Mr. Lacy with evidence of a bloody palm print belonging to Mr. Lacy that had been recovered from the room in which Ms. Henderson died. Sgt. Dancy provided Ms. Tolliver with the evidence. The following exchange then occurred:

Ms. TOLLIVER: John Aaron, now I want you to see what they’ve got here and I want you to tell me .... This is the bloody print that was on the wall, and will you read what this says? Did you accidentally do this? Son, if you accidentally did it, then if you accidentally did this, son, you need to be honest.
(Sgt. Dancy then speaks to Ms. Tolliver, telling her what he has told Mr. Lacy.)
Ms. TOLLIVER: If this woman is laying dead in the woods or someplace, would you want Blake (?) and Morgan to walk up on her?
Mr. Lacy: No.
Ms. TOLLIVER: If this lady is laying dead someplace, she needs to be tended to.
(Ms. Tolliver begins to cry and Mr. Lacy asks Sgt. Dancy if he would allow Mr. Lacy to speak with Ms. Tolliver.)
Ms. TOLLIVER: Son, I’m OK. Listen to me. Listen to me. It’s just hard for Mama to absorb everything, okay? But if this lady’s laying dead someplace, it’s the Christian thing to do to see to it she’s tended to before some little kid or an animal finds her.
(Mr. Lacy again asks Sgt. Dancy to allow him to speak with his mother. At this point, someone from outside the room interrupts to tell Sgt. Dancy that the captain wants to talk to him. Before he leaves the room, Sgt. Dancy addresses Mr. Lacy with the following comment.)
SGT. Dancy: John, I’m not trying to hurt you, man. I’m trying to he honest with you.
Mr. Lacy: I know.

(Emphasis added.)

Following this encounter, Mr. Lacy continued talking with his mother for several minutes and then eventually agreed to speak with Sgt. Dancy again. The constitutional infirmity arises because it was Sgt. Dancy, not Mr. Lacy, who reinitiated the interrogation process during the above encounter. Mr. Lacy had been sitting alone in the room after telling Lt. Chapman that he wanted to see an attorney. Sgt. Dancy reentered the room with Ms. Tolliver and observed as she attempted to convince her son to make a confession about where Ms. Flenderson’s body could be found. Had Sgt. Dancy’s involvement been limited to observation, there would be no constitutional violation. Arizona v. Mauro, 481 U.S. 520 (1987). However, Sgt. Dancy was not merely a casual observer. As noted above, Sgt. Dancy provided evidence to Ms. Tolliver to bolster her persuasive efforts. He then interrupted Ms. Tolliver’s persistent demands for information to tell her what he had already told Mr. Lacy in his own attempts to persuade him to confess. Finally, when his captain called him from the room, Sgt. Dancy turned directly to Mr. Lacy and said “I’m not trying to hurt you, man. I’m trying to be honest with you.” By integecting this statement into the conversation, Sgt. Dancy was clearly attempting to persuade Mr. Lacy to reveal incriminating information. The fact that the comment was not a direct question is irrelevant. An interrogation occurs when an officer uses any words or actions that the officer should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291 (1980). There was no conceivable purpose for Sgt. Dancy’s comment other than to elicit an incriminating response from Mr. Lacy. While Sgt. Dancy made the statement as he was leaving the room, he was nevertheless aware that Mr. Lacy’s conversation with his mother was not only being observed by other officers, but it was also being recorded on videotape. Furthermore, Sgt. Dancy was aware that Ms. Tolliver was firmly and persistently demanding that Mr. Lacy tell her where Ms. Henderson was buried.

The majority today glosses over this encounter with Sgt. Dancy, claiming that Mr. Lacy dismissed Sgt. Dancy from the room and that, when Sgt. Dancy returned, Mr. Lacy waived his right to counsel. The fact is that Mr. Lacy asked Sgt. Dancy twice to be allowed to speak privately with his mother; but, it was not until the sergeant was called from the room by a superior officer that he actually left Mr. Lacy alone with his mother. Even then, Sgt. Dancy knew that Mr. Lacy’s interaction with his mother was being observed and recorded.

After several more minutes of persuasive efforts by Ms. Tolliver, Mr. Lacy finally acquiesced to his mother’s insistence that he tell Sgt. Dancy where to find Ms. Henderson’s body. At this point, Mr. Lacy denied having requested counsel and Sgt. Dancy xe-mirandized him. However, it was too late. Sgt. Dancy had unconstitutionally reinitiated the interrogation of Mr. Lacy when he entered the room with Ms. Tolliver and actively aided her in her persuasive efforts following Mr. Lacy’s unequivocal assertion of his right to counsel. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights.” Edwards v. Arizona, 451 U.S. at 484. Once an accused has “expressed his desire to deal with the police only through counsel,” he is “not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85.

The purpose of the Edwards rule is to protect a suspect’s desire to deal with the police only through counsel. McNeil v. Wisconsin, supra. It is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,” Minnick v. Mississippi, 498 U.S. 146, 150 (1990); Michigan v. Harvey, 494 U.S. 344 (1990); McNeil v. Wisconsin, supra. The suspect’s right to counsel cannot be adequately protected where the suspect is subject to “persistent attempts by officials to persuade him to waive his rights,” as Mr. Lacy was in the instant case. Minnick v. Mississippi, 498 U.S. at 153. The prophylactic rule requiring the suppression of any statement made following police-initiated interrogation of a suspect who has asserted his right to counsel “ensures that any statement made in subsequent interrogation is not the result of coercive pressures.” Minnick v. Mississippi, 498 U.S. at 151.

To effectuate the above-stated purpose, the Edwards decision created a bright-line rule of suppression because it must be presumed that any subsequent waiver of the previously asserted right to counsel that comes at the behest of law enforcement, rather than the suspect’s own initiation, is the product of the “inherently compelling pressures” of custodial interrogation rather than the “purely voluntary choice of the suspect.” Arizona v. Roberson, 486 U.S. 675, 681 (1988) (quoting Miranda v. Arizona, supra). “The merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick v. Mississippi, 498 U.S. at 151. Its “clear and unequivocal” rule, like its predecessor Miranda v. Arizona, “has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible.” Minnick v. Mississippi, 498 U.S. at 151. “Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” Arizona v. Roberson, 486 U.S. at 681 (quoting Edwards v. Arizona, supra).

The case before us today is precisely the situation the Edwards court sought to prevent. Mr. Lacy unequivocally invoked his right to counsel. Interrogation was then reinitiated by Sgt. Dancy. Sgt. Dancy’s persuasion, combined with the extensive persuasive efforts of Ms.Tolliver, ultimately led to Sgt. Dancy’s desired result — Mr. Lacy waived his previously asserted right to counsel. But, even then, Mr. Lacy attempted to reassert that right. The following exchange occurred when Sgt. Dancy began filling out a rights form.

Mr. LACY: (to his mother) You don’t want me to talk to an attorney first?
Ms. TOLLIVER: John, I don’t know. I’ve never been involved in this. But he said he wants to help you.
MR. LACY: I can’t talk to no attorney tonight?
SGT. Dancy: Well, yeah. You can do anything you want to, John.
Mr. LACY: I’d rather do that.
Ms. Tolliver: John . . .
Mr. LACY: I’d rather do that and still talk to you.
Ms. Tolliver: He wants to do both.
Mr. LACY: I want to talk to an attorney.
SGT. DANCY: They’re going to tell you not to, but that’s okay. Who do you want to call?
Mr. Lacy: Greg Bryant.
Ms. TOLLIVER: You’ll have to use a public defender. I can’t afford Greg Bryant.
Mr. Lacy: Can you get a public defender up here?
Sgt. Dancy: No. Not tonight. Not that I’m aware of.
Ms. TOLLIVER: It’s just what he said. He can take you and have you charged with first degree or he can take you for accidental ... manslaughter.
Sgt. Dancy: I’ve never got a public defender up here at night. I don’t know.
Mr. Lacy: Could you try?
SGT. Dancy: I’ll see if I can. I don’t know. This is up to you John. I’m through. I’m through.

(Emphasis added.)

Following this exchange, Sgt. Dancy left the room again, ceasing the interrogation as he is required to do. There is no evidence that the State ever attempted to contact either Greg Bryant, whom Mr. Lacy requested by name, or the public defender’s office, whom Mr. Lacy resorted to upon being informed that he could not have Mr. Bryant. Finally, after eight hours of interrogation, having been informed that he could not have the counsel he clearly and unequivocally requested on multiple occasions, Mr. Lacy confessed to the murder of Ms. Henderson without the assistance of counsel.

The majority holds that Mr. Lacy voluntarily waived his right to counsel; but, that is not the deciding issue in this case. A determination of voluntariness must certainly be made when a suspect has waived his right to counsel, but that determination is not made until after it is proven that the suspect initiated the dialogue with the police. Oregon v. Bradshaw, 462 U.S. 1039 (1983). The issue before us today is whether Mr. Lacy initiated the contact that ultimately led to his waiver of the right to counsel and his confession. To this question, the clear and unmistakable answer is no. Mr. Lacy asked for counsel repeatedly. A suspect’s request for counsel during interrogation indicates that he does not “feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation.” Arizona v. Roberson, 486 U.S. at 684. Mr. Lacy finally surrendered to the pressures of custodial interrogation and waived his previously invoked right to counsel. This ultimate waiver of his right to counsel is not surprising considering that Mr. Lacy had not been provided with the attorney he had already requested. See Arizona v. Roberson, 486 U.S. at 686 n.6. As a result of the officers’ failure to honor Mr. Lacy’s request for counsel and Sgt. Dancy’s initiation of interrogation in violation of the “clear and unequivocal” Edwards rule, Mr. Lacy’s statement should have been suppressed. For the above-stated reasons, I would reverse and remand.

It should be noted that the suppression of Mr. Lacy’s confession would not leave the State without recourse upon the retrial of Mr. Lacy. Before he invoked his right to counsel and Sgt. Dancy reinitiated the interrogation, Mr. Lacy made highly incriminating statements to Ms. Tolliver. Specifically, he told his mother that he knew Ms. Henderson was dead and that she was buried in Mayflower. In addition, the State has physical evidence linking Mr. Lacy to the crime. Thus, there is ample evidence available to the State upon retrial.

THORNTON, J., joins in this dissent.

       The record is silent as to whether Lt. Chapman informed Sgt. Dancy of Mr. Lacy’s request for counsel. Sgt. Dancy is charged with having knowledge of any assertion of the right to counsel, regardless of whether he had actual knowledge. Arizona v. Roberson, 486 U.S. 675, 687 (1988).

       As a result of these statements by Mr. Lacy, Ms. Henderson’s body eventually would have been recovered from its burial site on Ms. Tolliver’s property at Mayflower. “[W]hen, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.” Nix v. Williams, 467 U.S. 431, 448 (1984).

       The postscript at the end of the majority opinion can only be characterized as unsolicited dicta. It is certainly difficult to fathom why the majority hints at “one additional point” and then declines to address it because neither of the parties argue the point.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    James Wayne WISENER and John Fields Wisener, Individually and as Co-Trustees of the Elizabeth Hargis Wisener Trust; Brenda Wisener; and Karen Wisener v. Judith Wisener BURNS, Individually and as Co-Trustee of the Elizabeth Hargis Wisener Trust
    00-792
    44 S.W.3d 289
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      Friday, Eldredge & Clark, by: James E. Harris, Barry E. Coplin, and Robert S. Shafer, for appellants.

      B. Kenneth Johnson, for appellee.
   Annabelle Clinton Imber, Justice.

On February 1, 1978, Elizabeth Fiargis Wisener created the Elizabeth Hargis Wisener Trust, transferring several parcels of timberland to her three children, James (“Jim”) Wisener, John Wisener, and Judith (“Judy”) Burns, as co-trustees and beneficiaries of the trust. Mrs. Wisener reserved to herself the income produced from the trust property during her life. All three of Mrs. Wisener’s children were granted equal authority over the management of the trust, but Judy, the oldest, assumed primary responsibility for management of the trust and the income produced therefrom.

Mrs. Wisener died on August 28, 1991. Thereafter, the appellants, Jim and John, individually and as co-trustees of the Elizabeth Hargis Wisener Trust, filed a complaint against their sister, Judy, alleging that she had mismanaged the income from the trust. In particular, Jim and John accused Judy of making unequal disbursements to herself and her family from the trust account during the entire term of the trust. They requested relief in the Chancery Court of Bradley County, wherein they asked the court, inter alia, to order Judy to account for all trust funds that she had handled and to restore to the trust any funds for which she could not properly account. They further requested that the trial court enter a declaratory judgment equally dividing the benefits of the trust among Jim, John, and Judy, allowing for the equalization of funds already disbursed to each party, and that the trial court partition and distribute the real properties of the trust among the parties.

Judy denied any mismanagement of the income produced by the trust properties and alleged that Jim and John had failed to shoulder any responsibility as trustees of the trust or as caretakers for Mrs. Wisener. She further asserted that the income generated by the trust was the property of Mrs. Wisener and not the property of the trust; therefore, the chancery court had no jurisdiction to decide any matter pertaining to its disbursement. According to Judy, any cause of action regarding that income would fall within the jurisdiction of the probate court and the estate proceedings.

Following an extensive trial, the chancery court concluded that the trust terminated by its own terms upon the death of the life beneficiary, Mrs. Wisener, and ordered: (1) the partition of the trust property in accordance with the interests of the remainder beneficiaries under the trust; and, (2) an accounting and equalization of post-mortem distributions made by Judy from income produced by the real property that had been the trust property. These orders are not challenged on appeal. The trial court refused to order an accounting or restitution of pre-mortem distributions made by Judy from income produced by the trust property, holding that the income generated by the trust belonged to Mrs. Wisener and not to the trust. It is from this order that appeal is taken.

I. Restitution of Pre-Mortem Distributions

A. The Income Produced from the Trust Property

For their first point on appeal, Jim and John argue that the trial court erred in refusing to order restitution of all funds disbursed by Judy from the trust account before their mother’s death that cannot be clearly attributed to the maintenance and support of their mother. In an order filed on December 21, 1998, the trial court found that the corpus of the trust, which is comprised of several parcels of real property, was intact and that the value of the trust had increased significantly over the life of the trust. In addition, the trial court found that there had been no showing of mismanagement of the trust property; that the net income generated by the trust was the property of Mrs. Wisener and not the property of the trust; and that most of the net income produced from the trust property was handled by Judy due to the non-participation of the co-trustees, the desires of Mrs. Wisener, and the durable power of attorney granted to Judy by Mrs. Wisener.

The trial court refused to order an accounting or restitution of the pre-mortem distributions from the income produced by the trust property for two primary reasons: (1) Jim’s and John’s nonfeasance in failing to perform their own duties as trustees made them equally liable for any mismanagement that may have occurred; and, more importandy, (2) the funds Jim and John wanted restored to them were the property of Mrs. Wisener and not the property of the trust. Based upon this second reason, the trial court ruled that, upon Mrs. Wisener’s death, the authority to pursue restitution of any misappropriated funds remained with her probate estate.

We review decisions of the chancery court de novo, but we do not set aside findings of fact unless they are clearly erroneous. Kinghorn v. Hughes, 297 Ark. 364, 367, 761 S.W.2d 930 (1988). When reviewing trust cases in Arkansas, we have followed the Restatement (Second) of Trusts. McPherson v. McPherson, 258 Ark. 257, 5223 S.W.2d 623 (1975).

Jim and John first argue that the trial court clearly erred in finding that the income generated by the trust property belonged to Mrs. Wisener and not to the trust. They rely upon the case of Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998), to support their argument that, as a matter of common law, the earnings of a trust fund belong to the trust. However, the Phillips decision is inapposite. In that case, the U.S. Supreme Court held that interest income generated by funds held in Interest on Lawyers Trust Account (IOLTA) accounts is the “private property” of the owner of the principal for purposes of the Takings Clause of the United States Constitution. Id. The issue in this case is not who owns the interest generated by money in an interest-bearing account; rather, the issue here is who owns the income generated by the trust property. While reciting the general rule that “interest follows principal,” Jim and John acknowledge that the instrument creating the trust may provide otherwise.

“Whether proceeds or income from . . . particular property are included within the operation of a trust is determined by the will or intent of the settlor and the language of the trust instrument.” 90 C.J.S. Trusts § 172(b) (1955). “A trust instrument is to be construed so as to effectuate its purpose, which is ordinarily, or primarily, to be determined from its terms.” 90 C.J.S. Trusts § 173 (1955). When the purpose of the trust is ascertained, that purpose will take precedence over all other canons of construction. Id. The purpose of a trust is to be ascertained from its terms. Id. The terms of a trust include the “manifestation of intention of the settlor with respect to the trust” provisions. RESTATEMENT (SECOND) OF TRUSTS § 4 (1959).

The question presented, therefore, is whether the trial court erred in finding that, under the terms of the Elizabeth Hargis Wisener Trust, the income generated from the corpus of the trust belonged to Mrs. Wisener and not to the trust itself. In order to answer this question, we must address the terms of the trust. The introductory provisions of the trust agreement provided, in relevant part, as follows:

The trust established by this Agreement is generally created in order to: (1) immediately and irrevocably transfer the trust property noted below from the Grantor’s estate and to the designated beneficiaries; (2) reserve to the Grantor for fife the income produced from such trust property; (3) release the Grantor from the duties and responsibilities required for management of such trust property; and (4) provide for effective and continuing management, growth and further development of the trust property during the existence of this trust.

Paragraph one of the agreement designated the property to be transferred by the trust. That property consisted of various parcels of real property described in the document marked Exhibit A and attached to the trust agreement. A review of the stated purpose of the agreement therefore reveals that it was Mrs. Wisener’s purpose in creating the trust to convey the real property described in Exhibit A to her children and to divest herself of the necessity of managing that property while reserving to herself the income produced by that property for the rest of her life.

Although the trust agreement also authorized the trustees to determine the manner in which the expenses incurred in the administration of the trust, as well as the cost of repairs and improvements to the trust property, should be apportioned as between corpus and income, the express terms of the trust agreement limited the authority of the trustees. In apportioning or assessing such cost or expenses against current income produced from the trust property, the trustees could not render that income insufficient to support and maintain Mrs. Wisener in the same style and manner to which she was accustomed. The dispositive provisions of the trust provided for the trustees to pay all of the net income produced from the trust property to Mrs. Wisener during her lifetime, such that upon her death the entire trust property would be conveyed by warranty deed or bill of sale to Judy, Jim, and John, as remainder beneficiaries of the trust.

A review of the terms of the trust document thus reveals that Mrs. Wisener’s intent at the time of the trust’s creation was that the income generated by the trust belonged to her. She gave the trustees the authority to invade that income for the purpose of administering the trust, but only to the extent that the costs of administration would not affect her lifestyle. Furthermore, the trustees could not invade or use the corpus of the trust, i.e., the land, in order to support and maintain Mrs. Wisener in the style to which she was accustomed. Her interest as the “life beneficiary” was limited to the income generated off of the land. In other words, the corpus belonged to the trust and the income belonged to Mrs. Wisener. The trustees were charged with the responsibility of determining the extent to which the costs of administration would be taxed to the trust or to Mrs. Wisener. We conclude that the terms of the trust agreement support the trial court’s finding that “[t]here is nothing in the trust document which incorporates the income back into the Trust or designates the income to be trust property.”

A review of the evidence presented at trial demonstrates that Mrs. Wisener’s conduct after the creation of the trust also supports a finding that her intent was to treat all income generated by the trust during her lifetime as her own property. The intention of the settlor at the time of creation of a trust may be shown by facts occurring after that time. RESTATEMENT (SECOND) OF TRUSTS, § 4, cmt. a (1959). Although the extent to which Mrs. Wisener was aware of Judy’s distributions from the income is disputed, it is undisputed that she became aware no later than 1986 that Judy was using the income from the trust for purposes other than the support and maintenance of Mrs. Wisener. In 1986, Jim informed Mrs. Wisener that Judy had made disbursements from income generated by the trust to pay for the college education of her daughters and that Judy intended to make similar disbursements to pay for the education of Jim’s sons. Not only did Mrs. Wisener not complain about this conduct, she suggested that Jim accept Judy’s offer to pay for his sons’ education from the income generated by the trust. Furthermore, on June 3, 1983, Mrs. Wisener executed a durable power of attorney granting Judy authority to handle all of Mrs. Wisener’s financial affairs, including the authority to withdraw any or all money deposited in Mrs. Wisener’s name or “any or all other money to which I am entitled.” Mrs. Wisener never filed any kind of action or complaint about the manner in which Judy administered her finances; nor did Mrs. Wisener ever revoke the durable power of attorney.

In sum, after reviewing the record and the trust instrument, we cannot say that the trial court clearly erred in determining that, under the terms of the trust, the income generated by the trust was the property of Mrs. Wisener and not the property of the trust.

B. Standing

Because we find no error in the trial court’s finding that the income generated by the trust belonged to Mrs. Wisener rather than the trust, we must determine whether Jim and John can maintain an action for the mismanagement of that income prior to Mrs. Wisener’s death. The trial court made no express finding regarding standing, but dismissed the claim for restitution after finding that the income belonged to Mrs. Wisener. Jim and John suggest that this finding contains within it an inherent finding that they lack standing. We agree.

A party has no standing to raise an issue regarding property in which he or she has no interest. Nash v. Estate of Swaffar, 336 Ark. 235, 242, 983 S.W.2d 942 (1999); McCollum v. McCollum, 328 Ark. 607, 612, 946 S.W.2d 181, 184 (1997); Boyle v. A.W.A., Inc., 319 Ark. 390, 394, 892 S.W.2d 242 (1995). Jim and John instigated this action in chancery in their capacities as co-trustees and beneficiaries of the Elizabeth Hargis Wisener Trust. The property for which Jim and John demand an accounting and restitution belonged to Mrs. Wisener and not to the trust. Under these circumstances, Jim and John, as beneficiaries of the trust and as co-trustees, have no interest in the property at issue. Accordingly, they have no standing to maintain the claim.

Jim and John insist, however, that the RESTATEMENT (Second) of Trusts, § 200, cmt. e (1959), supports their claim to standing. That comment states:

If there are several trustees, one or more of them can maintain a suit against another to compel him to perform his duties under the trust, or to enjoin him from committing a breach of trust, or to compel him to redress a breach of trust committed by him. A trustee is not precluded from maintaining such a suit by the fact that he himself participated in the breach of trust, since the suit is on behalf of the beneficiary.

This provision is rendered inapposite to the case at hand by the finding that the income was not a part of the trust; rather, the income belonged to Mrs. Wisener. Thus, the suit brought by Jim and John is not maintained on behalf of a beneficiary of the trust as there is no trust property at issue. Furthermore, the RESTATEMENT (Second) of Trusts, § 214 cmt. b (1959), states:

A particular beneficiary cannot maintain a suit for a breach of trust which does not involve any violation of duty to him. Thus if the breach of trust consists only in the failure to pay income to a hfe beneficiary, the beneficiary entitled to the principal cannot maintain a suit for breach of trust. So also, where the breach of trust is merely in the failure to make trust property productive and the principal is in no way affected, the hfe beneficiary but not the remainderman can maintain a suit.

Consequently, any attempt by Jim and John to maintain this action in their capacities as remaindermen entitled to the principal of the trust is also unavailing. Finally, Jim and John contend that Judy failed to prove a valid inter vivos gift by Mrs. Wisener from income produced by the trust. Such a contention is rendered moot by their lack of standing to prosecute this action.

II. The Agreement to Equalize

On December 7, 1988, Jim, John, and Judy executed an agreement whereby they stated that “any indebtedness owing to the trust by any of the trustees as their individual obligation or any such obligation owing to the Warren Bank and Trust Company or any other party, which is secured by property of the Trust, that shall be outstanding and unpaid at the date of distribution of the Trust, shall be counted as and constitute a portion of the share and distribution to which each such Trustee-Beneficiary shall be entitled and that such amount, including any interest due, shall diminish the distribution to such beneficiary.” The agreement was made, according to its preamble, because the trustees had “with the concurrence of the other Trustees and the lifetime beneficiary, used certain trust property as security for certain obligations of the Trustees individually.” For their second point on appeal, Jim and John argue that the trial court erred by not requiring Judy to restore to the trust, pursuant to this agreement, any excess disbursements made to herself or her family from income generated by the trust during Mrs. Wisener’s lifetime.

The plain language of the agreement clearly limits its application to obligations “secured by the property of the Trust.” We have already determined that the income generated by the trust was the property of Mrs. Wisener and not the property of the trust. Consequently, the terms of the agreement do not apply to the distribution of funds from the income.

Furthermore, all three trustees testified at trial that they executed the agreement because they had all received personal loans secured by the trust property, i.e. timberland. The purpose of the agreement, according to the testimony of all three trustees, was to ensure that, when the trust was distributed, any property encumbered by one of their personal loans would be distributed to the one who created the encumbrance and that, if a Hen resulted against trust property because of one trustee’s failure to make payments on a loan secured by that property, the lien would attach only to that trustee’s portion of the trust property upon distribution.

The trial court ordered the partition of the trust property and the equalization of post-mortem distributions from the income produced by the real property that had been the trust property. In so doing, the trial court has given effect to the 1988 agreement to equalize to the extent it is applicable to the present situation. Jim and John have offered no authority or convincing argument to support their assertion that the agreement should be extended to require equalization of pre-mortem distributions made from the income reserved to Mrs. Wisener. We hold that the trial court did not clearly err in refusing to order equalization of the pre-mortem distributions pursuant to the 1988 agreement.

Affirmed.

       Brenda and Karen Wisener, wives of Jim and John, are also named plaintifís and appellants in this action. Brenda and Karen make no claims independent of those raised by Jim and John. Thus, for simplicity in referencing the parties, we incorporate the claims of Brenda and Karen into those raised by Jim and John, and our holdings with respect to the claims of Jim and John apply with equal force to Brenda and Karen.

       Judy’s husband, Craig Burns, was also named as a defendant but was dismissed by the trial court pursuant to a motion for judgment on the pleadings.

       The trial court’s finding that the corpus of the trust was intact recognized that one parcel of the trust property had been sold by the agreement of all three trustees following the death of Mrs. Wisener in order to pay estate taxes.

       The trial court also denied the appellants’ oral motion at trial to amend their pleadings to add to the designation of parties by identifying the plaintiffs as beneficiaries of Mrs. Wisener’s estate and Judy as administrator of Mrs. Wisener’s estate.


author: Ray Thornton, Justice. Annabelle Clinton Imber, Justice,

text:
    WESTERN CARROLL COUNTY AMBULANCE DISTRICT (aka WCCAD); Bayard Biossat, Jack Faulkner, and William W. Woodward, in Their Official Capacities as Commissioners of WCCAD; City of Eureka Springs, Arkansas; Carroll County, Arkansas; Carolyn Williams, Phillip Jackson, Kay Phillips, Cindy Vowell, and Shirley Doss, in heir Official Capacities as Assessor, County Judge, Collector, Treasurer, and Clerk for Carroll County, Arkansas v. C. Rodney JOHNSON, Leonard R. Fowler, and Marvin D. Hoffman
    00-1271
    44 S.W.3d 284
    Supreme Court of Arkansas
    Opinion delivered May 24, 2001

      John Casteel, for appellants.

      Oscar Stilley, for appellees.
   Ray Thornton, Justice.

This appeal arises from a grant of a partial summary judgment in an illegal-exaction case. In 1992, the Carroll County Quorum Court adopted ordinance No. 92-13, which created the Western Carroll County Ambulance District and provided for a tax assessment of two mills on both real and personal property. The purpose of the assessment was to acquire vehicles and equipment and was for the maintenance and operation of an ambulance service for the use and benefit of residents and property owners in the district.

On September 22, 1998, appellees, C. Rodney Johnson, Leonard R. Fowler, and Marvin Hoffin, as representatives in a class action filed a complaint against appellees, the Western Carroll County Ambulance District (“WCCAD”) and others in their official capacities, alleging that they were taxpayers of Carroll County and that the County did not have the authority to impose the tax on personal property. Other appellants include Bayard Biossat, Jack Faulkner, and William W. Woodward, who are commissioners of WCCAD. Phillip Jackson is the Carroll County Judge to whom service is given in disputes involving Carroll County. Carolyn Williams, Kay Phillips, and Cindy Vowell are the assessor, collector, and treasurer, respectively, of Carroll County. Carroll County and Eureka Springs are political subdivisions of the state of Arkansas.

Carroll County had collected personal property tax for the benefit of WCCAD in the following amounts: $9, 824.00 for 1994, $11,261.82 for 1995, $13,191.26 for 1996, $14,797.79 for 1997, $15,328.38 for 1998, and $15,861.97 for 1999. The total amount of personal property tax collected for the years 1994 through 1999 is $80,265.22.

Appellees filed a motion for partial summary judgment based upon Ark. Code Ann. § 14-282-102 (Repl. 1998), which authorizes an ambulance service district to be formed upon a petition signed by a majority in value and area of the owners of real property within an improvement district and to assess benefits against real property to pay for the service. Alternatively, the statute forms a district by the adoption of an ordinance of the quorum court that imposes a millage property tax and is ratified by a vote of the people. WCCAD responded, alleging that an ambulance district may be formed either by a petition from the real property owners of the proposed district or by a quorum court ordinance and general election. WCCAD acknowledged that if a district is formed by petition of real property owners, then the benefits are to be assessed only against red property. WCCAD argued that if the district is formed by a quorum court ordinance and a general election, then millages may be imposed upon both real and personal property.

Following a hearing on the matter, the Carroll County Chancery Court granted appellees’ motion for partial summary judgment, in compliance with Ark. R. Civ. P. 54(b), ruling that appellants did not have the legal authority to collect a two-mill tax on the personal property of the residents of Western Carroll County Ambulance District and that the collection of such tax constituted an illegal exaction. Appellants now bring an appeal from this order. We disagree with the trial court’s ruling and reverse.

For their sole point on appeal, appellants argue that the trial court erred in granting appellees’ motion for partial summary judgment based on its finding that, as a matter of law, appellants did not have the legal authority to collect a two-mill tax on the personal property of the residents of Western Carroll County Ambulance District. Specifically, appellants argue that Ark. Code Ann. § 14-282-102(e)(1)(A) provides for an establishment of an ambulance service improvement district by an ordinance ratified by a vote of the people and authorizes the levy of a two-mill tax upon both real and personal property.

Arkansas Code Annotated § 14-282-101 et seq. (Repl. 1998) promulgates two methods by which local governments establish, finance, and manage an ambulance service improvement district. Arkansas Code Annotated § 14-282-101 outlines the purpose, of these methods:

It is the purpose and intent of this chapter to authorize the establishment, and to prescribe the procedure for the establishment, of improvement districts for the purpose of providing ambulance services to residents of the districts and to prescribe the procedure for assessing the property in the district to finance the services.

Id.

Arkansas Code Annotated § 14-282-102, provides for two methods by which an ambulance service improvement district can be created. The first method, adopted by Act 1221 of 1975, allows a majority of the owners of real property to file a petition with the county court. Ark. Code Ann. § 14-282-102(a). That statute provides:

(a) Upon the petition of a majority in value and area of the owners of real property in any designated area, it shall be the duty of the county court to lay off into an improvement district the territory described in the petition and to name three (3) commissioners of the district.

Id. When this method of forming a district by petition is followed, taxes may only be imposed by an assessment of benefits upon real property. Id.

The second method by which an ambulance service district may be created is by an ordinance of the quorum court. That method is prescribed by Ark. Code Ann. § 14-282-102(e)(1)(A), first adopted by Act 498 of 1989, which provides:

(e)(1)(A) An ambulance service district that is composed of an area within a county as established by the quorum court of the county may be created by ordinance of the quorum court. The ordinance shall designate the area to be served. However, in no event shall the area include less than a whole precinct and all precincts must be contiguous. The ordinance shall also set forth the method the ambulance service district shall assess the persons residing therein or the property owners having property located therein.

Id. (Emphasis added.) The ordinance of the quorum court is subject to the approval of a majority of voters residing within the boundaries of the district. Id.

The issue before us is whether taxes imposed by this second method may be levied against all property, both real and personal. We review issues of statutory construction de novo, as it is for this court to decide what a statute means. Hodges v. Huckahee, 338 Ark. 454, 995 S.W.2d 341 (1999). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

The basic rule of statutory construction is to give effect to the intent of the General Assembly. Ozark Gas Pipeline v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000). Where the language of the statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Burford Distributing, Inc. v. Starr, 341 Ark. 914, 20 S.W.3d 363 (2000).

Applying these well-established principles to the interpretation of Ark. Code Ann. § 14-282-102, it is clear that an alternative method of taxation is provided by subsection (e). The key sentence is found in subsection (e) and reads: “The ordinance shall assess the persons residing therein or the property owners having property located therein” (emphasis added). The phrase, “assess the persons residing therein,” applies to possible assessment of taxes to each person residing within the district, while the disjunctive phrase, “assess . . . the property owners having property located therein [the district]” indicates that all property located within the district is subject to taxation.

We have held that there is not the slightest difference between real and personal property except so far as such difference is created by particular statutes. Hoing v. River Valley Gas Co., 196 Ark. 1165, 121 S.W.2d 513 (1938). Here, the statute adopted by Act 498 of 1989 and amended by Act 457 of 1991 does not distinguish between real and personal property, and the principle announced in Hoing, supra, means that the word, “property,” includes both real and personal property.

' Appellees argue that the provisions relating to the creation of a district by petition of the owners of real property, found in subsection (a), limits the tax base for either method of creating an ambulance district to the imposition of assessed benefits upon real property. However, a review of the history of Ark. Code Ann. § 14-282-102 reveals otherwise. See Ozark Gas Pipeline, supra. In Act 1221 of 1975, the General Assembly promulgated subsections (a), (b), and (c) of the current statute, which codifies the first method of assessment of real property by a petition of the owners of real property. It was not until 1989 that the General Assembly promulgated subsection (e) for the first time.

Act 498 of 1989 promulgated subsection (e) for the first time, and is entitled, “An Act to Amend Arkansas Code 14-282-102 to Establish an Additional Method of Establishing an Ambulance Service District; and for Other Purposes.” Act 498 specifically provides that the assessment provisions of Act 1221 of 1975 are not applicable to the newly established means of forming a district. Arkansas Code Annotated § 14-282-102(e) states:

An ambulance service district created by this procedure shall be exempt from the assessment procedures set out in this chapter. The taxes collected pursuant to the ordinance shall be administered by the county as an enterprise fund, but shall be levied and collected as county taxes.

Ark. Code Ann. § 14-282-102(e)(3). In other words, subsection (e) establishes an alternative method of imposing a tax millage upon all property within the district.

We hold that the intent of the legislature in adopting an alternative means of forming an ambulance service district by the vote of all eligible voters in the district, as prescribed by subsection (e), allows for the imposition of taxes upon both real and personal property. Hoing, supra. Accordingly, we reverse the trial court’s grant of partial summary judgment.

Reversed and remanded.

Brown and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. I disagree with the majority’s holding that the amended version of Chapter 282, Ambulance Service Improvement Districts, specifically Ark. Code Ann. 14-282-102(e)(1)(A), includes personal property. While I agree that the amended version of the statute uses plain and unambiguous language, there is no basis for the conclusion that the term property as used in section 14-282-102 refers to anything other than real property.

The basic rule of statutory construction is to give effect to the intent of the legislature. See Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999). The legislature used the words “real property” and “property” interchangeably in section 14-282-102(a) and (b) when it designated the original method of creating improvement districts. In Section 14-282-102(b), the statute states the purpose of the ambulance district to be for the “benefit of the property holders within the district.” Id. The language is clarified to indicate that “the ambulance services would be a benefit to all the real property located in the district. Id. (emphasis added). Construing this language just as it reads and giving every word meaning and effect, “property” refers to the real property within the described area.

How then does the term “property” take on a new meaning in section 14-282-102(e)(1)(A)? The majority takes an unwarranted leap in its construction of the statute by assuming that because the legislature set out to create an alternative method of creating and funding an ambulance district, they assigned multiple meanings to a single term used within section 14-282-102. In order to make this leap the majority relies on this court’s statement in Hoing v. River Valley Gas Co., 196 Ark 1165, 1169, 121 S.W.2d 513, 515(1938) that “[i]n this country, there is not the slightest difference between real and personal estate except so far as such difference is created by statute.” This expression of the law, used historically in he context of fixtures, objects appurtenant, etc., does little more in the present context than beg the question. The statute at issue in this case, when enacted as Act 1221 of 1975 and when amended by the enactment of Act 498 of 1989, did in fact differentiate between real and personal property.

The amended language adopted by Act 498 of 1989 includes an additional method to form an ambulance improvement district, permitting formation by ordinance of the quorum court. This alternate method demands that the ordinance “set forth the method the ambulance service shall assess the persons residing therein or the property owners having property located therein” Id. (emphasis added). The use of the term “property” in this amended version should be construed within the total context of section 14-282-102 to include the real property located within the district.

In any event, if the language used in the amendment were to be considered ambiguous, the cardinal rule in construing tax legislation requires that, “a tax cannot be imposed except by express words indicating that purpose, andwhere there is ambiguity or doubt it must be resolved in favor of the taxpayer.” Pledger v. The Grapevine, Inc., 302 Ark. 18, 786 S.W.2d 825 (1990). Another rule of tax law construction is that express designation for one thing mayproperly be understood to exclude another. Leathers v. A&B Dirt Movers, Inc. 311 Ark. 320, 844 S.W.2d 314 (1992). Under these rules of statutory construction, the term “property” as used in Section 14-282-102(e)(1)(A) should be construed to mean real

BROWN, J., joins in this dissent.