author: ANNABELLB Clinton Imber, Justice.

text:
    IN RE: the MATTER of ONE 1994 CHEVROLET CAMARO; VIN: 2G1FP32P2R2211156
    00-241
    37 S.W.3d 613
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellant.

      Dennis R. Molock, for appellee.
   ANNABELLB Clinton Imber, Justice.

This is an appeal by the State from the Arkansas County Circuit Court’s denial of its request for forfeiture of a 1994 Chevrolet Camaro car following the driver’s arrest for possession of marijuana with intent to deliver. We hold that the circuit court erred. Accordingly, we reverse and remand.

Evidence presented at the forfeiture hearing revealed that on May 3, 1999, Michael Dukes, a confidential informant for the Stuttgart Police Department, saw Matthew Wood washing a 1994 Chevrolet Camaro automobile at a car wash in Stuttgart. According to Mr. Dukes, he approached Matthew at the car wash, and during their conversation, Matthew asked: “Do you have any, you know, can I get a pound from you?” After testifying that he gave an affirmative response to Matthew’s request, Mr. Dukes explained that over the past year, Matthew had been buying approximately three to four pounds of marijuana a month from him in half-pound and pound amounts. He further stated that, although Matthew smoked marijuana, he was “mosdy selling it.” Based upon their history of business dealings, Mr. Dukes understood Matthew’s request to be a request to buy a pound of marijuana.

Shortly after the conversation with Matthew, Mr. Dukes contacted Lieutenant Frank Gonzales of the Stuttgart Police Department and told him about the conversation. Lt. Gonzales proceeded to obtain a “brick” of marijuana wrapped in gray duct tape from the Arkansas State Police and gave it to Mr. Dukes with the purpose of setting up a “reverse sting” in which Mr. Dukes would sell the marijuana to Matthew and then the police would arrest Matthew and charge him with a criminal offense. Upon receiving the marijuana from Lt. Gonzales, Mr. Dukes arranged a meeting with Matthew at Northcutt Lane in Stuttgart. Lt. Gonzales was aware of the location of the meeting and had police officers stationed nearby. When Matthew arrived at the designated meeting place, he was driving the 1994 Chevrolet Camaro automobile. Mr. Dukes delivered the marijuana to Matthew, and then Matthew gave Mr. Dukes the sum of $730.

As Matthew drove away from the meeting, he maneuvered around Lt. Gonzales’s car and sped off. The police immediately began their pursuit, with Lt. Gonzales leading the chase. Because his car was not equipped with a siren or blue lights, Lt. Gonzales eventually pulled over so that Officer Jeff King of the Stuttgart Police Department could take the lead. Officer King’s car was also equipped with a video camera that taped the chase from the time he began pursuit until it ended in front of Matthew’s residence where Matthew was taken into custody. The police officers searched his person and the car, but did not find any controlled substances.

During the chase, Lt. Gonzales had seen a gray or silver object fly out from or off of the car. Based upon that information, Deputy Bobby Lock of the Arkansas County Sheriff s Department immediately proceeded to retrace the path of the chase to Eighteenth Street and Strait Place, where he noticed tire tracks in the lawn of a residence. It was at this location that he found the “brick” of marijuana Lt. Gonzales had previously given to Mr. Dukes. Subsequent testing of the package revealed that it contained 760.4 grams of marijuana.

Following Matthew’s arrest, Lt. Gonzales advised him of his Miranda rights and interviewed him. During the interview, Lt. Gonzales asked Matthew if he sold drugs, and Matthew responded that “yes, [he] did sell drugs, but ....” At this point, the interview was abruptly terminated when Matthew’s attorney stepped in and advised him not to say anything else.

On May 21, 1999, the prosecuting attorney filed a forfeiture complaint in Arkansas County Circuit Court on behalf of the CAMEO Drug Task Force alleging that a black 1994 Chevrolet Camaro car and $140 in currency were subject to forfeiture pursuant to Ark. Code Ann. § 5-64-505 (Repl. 1997). Specifically, the complaint alleged that the Camaro was subject to forfeiture because Matthew Wood was operating it when he was arrested on May 3, 1999, and had, immediately prior to his arrest, used it to transport marijuana with the intent to deliver. The complaint also alleged that the currency was subject to forfeiture because Matthew possessed it at the time of his arrest. The complaint noted that the car was registered in the names of David H. and Lynn L. Wood. David, Lynn, and Matthew Wood filed answers to the complaint in which they admitted that the Camaro was registered in the names of David H. and Lynn Wood. They denied authorizing its use for the transportation of drugs or knowing that it was being used to transport drugs. David Wood and Lynn Wood also testified at the hearing that they were the owners of the car, that their son, Matthew Wood, was never treated as the owner, and that they had no knowledge that the car would be used or that it had been used to transport controlled substances. They did, however, admit that Matthew had their permission to drive the car and was the primary insured driver.

The forfeiture hearing was held on July 16, 1999, and August 30, 1999. On November 2, 1999, the circuit court entered an order granting forfeiture of the $140, but denying forfeiture of the 1994 Chevrolet Camaro. On December 14, 1999, the circuit court entered the following findings of fact and conclusions of law:

1. The State did not show that the owners of the vehicle in question knew their car was being used for drug trafficking; nor can the Court believe that they did[.]
2. That the current concerns over drugs, while serious, cannot be extended to allow confiscation of a person’s property when that person is neither involved in drug traffic nor has knowledge that the vehicle is so being used.
3. Calling a case of entrapment a “reverse sting” does not keep it from being entrapment.

From the circuit court’s denial of the forfeiture of the car comes this appeal by the State.

For its sole point on appeal, the State argues that the circuit court erred in denying forfeiture of the 1994 Chevrolet Camaro that Matthew was driving at the time of his arrest. On the date of Matthew’s arrest, May 3, 1999, Arkansas Code Annotated section 5-64-505 provided, in relevant part:

(a) The following are subject to forfeiture:
(1) All controlled substances ... which have been ... acquired in violation of subchapters 1-6 of this chapter;
***
(4) All conveyances, including ... vehicles ..., which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a)(1) ..., but:
(ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent and without the knowledge or consent of anyone having possession, care, or control of the conveyance with the owner’s permission;

Ark. Code Ann. § 5-64-505 (Repl. 1997). Under these statutory provisions, the burden of proof is on the State initially, pursuant to section 5-64-505 (a) (4), to show that the 1994 Camaro was used to transport illegal drugs for sale purposes. State v. One 1993 Toyota Camry, 333 Ark. 503, 969 S.W.2d 663 (1998). After the State meets its burden of proof, the owner, to avoid forfeiture of the vehicle, is then required under subsection 505(a)(4)(h) to show that: (1) the drug trafficking was committed without their knowledge or consent, and (2) without the knowledge or consent of anyone having possession, care, or control of the car with the owner’s permission. Id.

As a threshold matter, the Woods assert that the State did not meet its initial burden, pursuant to section 5-64-505 (a) (4), of proving that the 1994 Camaro was used to transport illegal drugs for sale purposes. Specifically, the Woods contend that “the record is completely void of any testimony to indicate that the alleged sale to [Matthew] was made based upon representations by [Matthew] that he intended to sell the substance.” They also contend that the State “failed to' prove that the vehicle was used to transport controlled substances at all since the State elected not to introduce into evidence the package which was purportedly sold to the driver ... and which was purportedly thrown from the vehicle[.]” Based on these arguments, the Woods appear to suggest that the trial court’s denial of the State’s request for forfeiture of the car should be affirmed even though the trial court may have stated the wrong reasons. As we have often said, “we will affirm the trial court where it reaches the right result, even though the trial court may have announced the wrong reason.” State of Washington v. Thompson, 339 Ark. 417, 428, 6 S.W.3d 82, 88 (1999). See Malone v. Malone, 338 Ark. 20, 991 S.W.2d 546 (1999); Dunn v. Westbrook, 339 Ark. 83, 971 S.W.2d 252 (1998).

While the circuit court made no explicit finding that Matthew used the Camaro to transport marijuana for the purpose of sale, the court did conclude that Matthew was entrapped. When entrapment is invoked, “it is necessarily assumed that the act charged was committed.” Young v. State, 308 Ark. 647, 651, 826 S.W.2d 814, 816 (1992). Thus, by concluding that Matthew was entrapped, the court necessarily found that he committed the act causing the forfeiture; that is, he used the vehicle to transport illegal drugs for the purpose of sale. The circuit court’s findings will not be set aside unless clearly erroneous. Ark. R. Civ. P. 52(a).

We hold that the trial court did not clearly err by implicidy finding that the State met its initial burden of proving that Matthew used the vehicle to transport marijuana for the purpose of sale. Mr. Dukes testified at trial that he had sold Matthew approximately three to four pounds of marijuana per month over the last year. He also testified that, although Matthew smoked marijuana, he was “mosdy selling it.” Furthermore, after Matthew was arrested and advised of his Miranda rights, Lt. Gonzales asked him if he sold drugs, and he responded: “Yes, I did sell drugs, but...” Moreover, Lt. Gonzales testified that he saw a gray or silver object fly from the vehicle being driven by Matthew. Mr. Dukes confirmed that he had sold Matthew some marijuana wrapped in gray duct tape just before the police chase began. Finally, an object matching that description was found by a police officer along the chase route within minutes of Matthew’s arrest, and subsequent testing revealed that it contained marijuana. With regard to the Woods’ contention that the State failed to introduce into evidence the “brick” of marijuana, we reject that argument on the ground that they cite no authority or convincing argument for the proposition that such a failure is fatal to the State’s case. State v. Singleton, 340 Ark. 710, 13 S.W.3d 584 (2000).

We must next determine whether the trial court erred when it denied the forfeiture of the car because “[t]he State did not show that the owners of the vehicle in question knew their car was being used for drug trafficking^]” The State has never claimed that David and Lynn Wood had any knowledge of their son’s drug trafficking or that they participated in that drug trafficking. Indeed, it stated below that “[t]here is no contention that the owners of this vehicle were aware of the[ir sons’s] activities[.]” However, that fact alone does not prohibit forfeiture pursuant to Ark. Code Ann. § 5-64-505 (a)(4)(h) (Repl. 1997). That section also places on the owners of the car the additional burden of proving that the drug trafficking was committed without the knowledge of anyone having possession of the car with their permission; that is, without the knowledge and consent of Matthew Wood. State v. One 1993 Toyota Camry, supra. David and Lynn Wood presented no such proof. The proof presented at the hearing showed that David and Lynn Wood gave Matthew Wood permission to use their car. Also, as set forth above, the trial court implicitly found that Matthew intentionally used the car to transport marijuana for the purpose of sale. Thus, David and Lynn Wood failed to meet their burden of proof under Ark. Code Ann. § 5-64-505 (a)(4)(h) to show that the car was not subject to forfeiture. Accordingly, we hold that the circuit court erred in two respects when it ruled that the car was not subject to forfeiture because the State failed to show that the vehicle’s owners knew their car was being used for drug trafficking. First, the burden of proving the requirements of section 5-64-505(a)(4)(h) is on the owners of the car rather than the State. Second, in addition to their own lack of knowledge or consent, the owners must also establish that the possessor of the car lacked knowledge. Here, there was no such proof.

The circuit court finally concluded that “calling a case of entrapment a ‘reverse sting’ does not keep it from being entrapment.” The State asks this court to reverse the circuit court because the actions of Mr. Dukes, acting in cooperation with police, did not induce or persuade Matthew to commit the offense. We agree.

Arkansas Code Annotated section 5-2-209 (Rep. 1997) states:

(a) It is an affirmative defense that the defendant was entrapped into committing an offense.
(b) Entrapment occurs when a law enforcement officer or any person acting in cooperation with him induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Here, Mr. Dukes, in cooperation with Lt. Gonzales, merely afforded Matthew the opportunity to commit the offense and did not persuade or otherwise induce him to commit the offense. The unrebutted testimony presented at trial indicated that Mr. Dukes, the police informant, approached Matthew at a car wash and engaged in conversation. Matthew then initiated the discussion about drugs by asking Mr. Dukes if he had “a pound.” Mr. Dukes said that he did, and called Lt. Gonzales, who then obtained some marijuana and gave it to Mr. Dukes to sell to Matthew so that the police could arrest him. Mr. Dukes further testified that no police officers asked him to get Matthew to buy marijuana, and he did not approach Matthew to try to sell him any marijuana. Furthermore, Matthew had been buying marijuana from Mr. Dukes for a least a year. Stated simply, there was absolutely no evidence presented to show that the police and Mr. Dukes did anything more than merely afford Matthew the opportunity to commit the offense. See, e.g., Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996). Thus, we hold that the trial court clearly erred when it found entrapment.

Reversed and remanded.

       In their briefs, the parties refer to the appellee as Matthew Wood. However, this is an in rem action against the 1994 Chevrolet Camaro.

       The Woods have not cross-appealed from that portion of the circuit court’s order granting forfeiture of the currency.

       Effective July 30, 1999, the General Assembly amended Ark. Code Ann. § 5-64-505, by, among other things, eliminating the requirement that the owner of a conveyance establish that forfeitable acts or omissions occurred “without the knowledge or consent of anyone having possession, care, or control of the conveyance with the owner’s permission[.]” Act 1120 of 1999, § 2. In their arguments to the circuit court, both parties relied on the prior version of the statute, Ark. Code Ann. § 5-64-505(a)(4)(ii) (Repl. 1997), and the owners of the Camaro did not argue that Act 1120 of 1999 should be applied retroactively. Arguments not raised below are not preserved for appellate review. Arkansas Transit Homes v. Aetna Life & Casualty, 341 Ark. 317, 16 S.W.3d 545 (2000).

       Although the Woods did not file a notice of cross-appeal, we are not precluded from reviewing the circuit court’s finding on appeal because they are not seeking something more than they received from the trial court. Arkansas Dep’t of Fin. & Admin. V. Pharmacy Assocs., 333 Ark. 451, 970 S.W.2d 217 (1998); Flemings v. Little, 324 Ark. 112, 918 S.W.2d 718 (1996).


source: Caselaw Access Project

author: RAY THORNTON, Justice.

license: Public Domain

text:
    Oscar STILLEY v. John R. YOUNG and Freddy Burton, in His Official Capacity as County Clerk of Saline County, Arkansas; Greg Brown, Margaret Ramsey, and Bob Burks, in their Official Capacities as County Election Commissioners of Saline County, Arkansas
    00-1119
    38 S.W.3d 895
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Appellant, pro se.

      Curtis E. Rickard and Friday, Eldredge & Clark, by: Joe D. Bell and R. Christopher Lawson, for appellee John R. Young.
   RAY THORNTON, Justice.

This appeal concerns the validity of an initiative petition that was sponsored and filed by appellant, Oscar Stilley. This initiative petition proposed to require Saline County (“County”) to sell its county hospital, known as Saline Memorial Hospital (“Hospital”). The ballot title and petition stated that Oscar Stilley, attorney at law, would conduct and administer the sale of the hospital in exchange for a commission fee of five-percent of the gross receipts from the sale. The proposed initiative would also abate or suspend taxes levied by the County. Appellee, John R. Young (“Young”), sought a writ of mandamus, challenging the legal validity of appellant’s initiative petition. After appellant intervened, the trial court issued the order of mandamus, ruling that the initiative petition was invalid on its face, and restraining the Saline County Board of Election Commissioners from placing the petition on the ballot. We affirm the trial court’s rulings.

I. Background

The County currently leases the hospital property to the Saline County Medical Center (“Center”), a nonprofit corporation, pursuant to a lease agreement that does not expire until the year 2020. The County has issued revenue bonds, secured by a mortgage lien on the hospital property and the rental payments made under the lease. This agreement is contained in the trust indenture contract between the County and First Commercial Bank.

On August 7, 2000, appellant filed an initiative.petition bearing the popular name of “AN INITIATED ORDINANCE TO PROVIDE FOR THE SALE OF JEFFERSON COUNTY REGIONAL CENTER, A HOSPITAL OWNED BY JEFFERSON COUNTY, ARKANSAS” with the Saline County Clerk (“Clerk”) as an initiated ordinance, pursuant to Ark. Code Ann. § 14-14-914(c) (Repl. 1998) and Amendment 7 of the Arkansas Constitution. If adopted, the initiative petition would require that the County adopt an ordinance providing for the sale of Hospital to the highest bidder. The initiative also authorizes Mr. Stilley to provide all necessary advertisement, solicitation of bids, accounting, and legal work necessary for the sale, and directs the payment of five percent of the gross selling price to Mr. Stilley. The petition further provides that, after Mr. Stilley’s five percent commission is paid, the remaining net proceeds would be split evenly in the following manner: fifty percent would go to the County Road Fund, and the remaining fifty percent would go the County General Fund, County Road Fund, and the County Library Fund in order to offset, for a time, the revenue lost by abating and suspending the County tax millages dedicated to the County General Fund, the County Road Fund, and the County Library Fund.

After appellant filed his initiative petition, the Clerk had ten days to evaluate its sufficiency, pursuant to Ark. Code Ann. § 14-14-915(d) (Repl. 1998), and on August 16, 2000, the Clerk determined that the petition contained sufficient signatures and certified the sufficiency of the signatures.

On August 24, 2000, Young, a citizen, resident, taxpayer, and registered voter in the County, filed a petition for writ of mandamus, challenging the legal validity of the initiative petition and seeking to prohibit its inclusion on the November ballot. Young also filed a motion to expedite, requesting a hearing within seven days, pursuant to Rule 78(d) of the Arkansas Rules of Civil Procedure.

On August 31, 2000, the Saline County Circuit Court held a hearing on the matter. Mr. Stilley moved to intervene on the morning of the hearing, and the trial court granted his motion. At the hearing, Saline County Judge, Lanny Fite, testified that it would not be in the best interest of the County to sell the Hospital. Judge Fite further testified that Mr. Stilley’s initiative petition did not contain any procedure to permit him to make the administrative decision to sell county property, but gives his statutory authority as a judge to Mr. Stilley. Judge Fite also testified that the petition would stop the collection of property taxes in Saline County, and he would object to that provision.

At the conclusion of the hearing, the circuit court ruled that the petition was invalid on its face and restrained the Saline County Board of Election Commissioners and the Clerk from placing the petition on the general election ballot. The trial court entered its order of mandamus, stating that the initiative petition was invalid because it is “inconsistent with the provisions of Amendment 7 of the Arkansas Constitution, [and because] it interferes with and is inconsistent with the executive powers of the county judge to sell county property.”

Mr. Stilley brings his appeal from this order. He also joins appellee/respondent, Freddy Burton, in her official capacity as County Clerk of Saline County, and Greg Brown, Margaret Ramsey, and Bob Burks, in their official capacities as Election Commissioners of Saline County.

II. Initiative petition as legally invalid

The sole issue on appeal challenges the trial court’s order of mandamus. This same issue was raised in Stilley v. Makris, 343 Ark. 673, 38 S.W.3d 889 (2001), where Mr. Stilley sought the reversal of an order of mandamus from Jefferson County Circuit Court that invalidated his initiative petition for the sale of Jefferson Regional Medical Center. In Stilley, supra, we affirmed the trial court’s order of mandamus, holding that Mr. Stilley’s initiative petition violated the provisions of Amendment 7 and the general laws of Arkansas. As we stated in Stilley, supra, we do not consider the issue moot because it is one of public importance that is likely to recur.

In the present case, Mr. Stilley filed an initiative petition in Saline County that was substantially the same as his initiative petition in Jefferson County. The Saline County Circuit Court’s order invalidated the initiative petition on the grounds that it violated the county judge’s authority to sell county property, and we affirm the trial court’s ruling on the basis of our rationale in Stilley, supra, where we discussed at length that the petition violated the powers of the county judge and the county court with respect to the sale of county-owned property, contravened the statutory procedures for selling county property, violated the duties of the county court to appropriate proceeds from the sale of county property, violated Arkansas law governing the levy of property taxes by the county, and constituted an impairment of contract. Based upon our review of the issues presented in this case, and upon our holding in Stilley, supra, we conclude that there was no error in the Saline County Circuit Court’s finding that Mr. Stilley’.s initiative petition was invalid on its face. Accordingly, we hold that the writ of mandamus to prohibit the inclusion of the initiative on the November ballot was appropriate, and we affirm.

Affirmed.


author: PER CURIAM.

text:
    William HASSELL v. STATE of Arkansas
    CR 01-171
    37 S.W.3d 620
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Robert L. Hertzfield, Jr., for appellant.
    No response.
   PER CURIAM.

Appellant William Hassell, by and through his attorney, has filed a motion for rule on clerk. His attorney, Robert L. Herzfeld, Jr., states in the motion that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Anthony O’Neil HUGHES v. STATE of Arkansas
    00-964
    37 S.W.3d 619
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Mary M. Rawlins, for appellant.
    No response.
   PER CURIAM.

Appellant, Anthony O’Neil Hughes, by and through his attorney, has filed a motion for rule on the clerk. His attorney, Mary M. Rawlins, states in the motion that the record was tendered late due to a mistake on her part.

Appellant Anthony O’Neil Hughes was adjudicated delinquent for having committed the offenses of residential burglary, felony theft of property, and criminal mischief in the first degree. An order of adjudication was entered on March 2, 2000. Notice of appeal was timely filed on March 31, 2000, but appellant did not timely file the original order extending the time for the filing of the record. Hughes v. State, 342 Ark. 59, 25 S.W.3d 430 (2000) (per curiam). Appellant’s counsel then filed a motion for rule on the clerk, and on September 14, 2000, we denied her motion and instructed appellant’s counsel to file within thirty days of the per curiam order a motion and affidavit in which she accepts full responsibility for not timely filing the record in this case. Hughes, supra. The motion and affidavit ordered by our per curiam were due on October 14, 2000, and we received the affidavit on January 24, 2001, and the motion for reconsideration was received on January 29, 2001.

We have long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on her part. Beavers v. State, 341 Ark. 649, 19 S.W.3d (2000). Although appellant’s counsel was late in complying with our September 14, 2000, per curiam order, appellant’s counsel admits her failure to timely file the record in this case, and asks that we reconsider our denial of her motion for rule on the clerk. Accordingly, we hold that the motion for rule on the clerk is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.


author: CURIAM.

text:
    IN RE: Kelli S. CASHION (Arkansas Bar ID # 96006)
    01-17
    38 S.W.3d 897
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Lynn Williams, for petitioner.

      Respondent, pro se.
   CURIAM.

This is an original action brought by the Supreme Court Committee on Professional Conduct. The Committee petitions this court for an order requiring Kelli S. Cashion to appear before this court and show cause why she should not be held in contempt for willfully disobeying the Committee’s “Findings and Consent to Discipline Order” entered July 17, 2000. The Committee further asks this court to order Ms. Cashion to comply with the specific terms of that order.

The Committee’s petition gives this summary:

4. In this petition, it is alleged that Ms. Cashion has willfully disobeyed a Committee order. On July 17, 2000, the Committee caused to be filed with the Arkansas Supreme Court Clerk, the Findings and Consent Order of Discipline (attached as Exhibit “1”) which cautioned Ms. Cashion for her conduct, in a complaint filed against her involving her clients, Pamela Lewis and Clayton Edmondson, CPC Docket No. 2000-005. As part ofthe Findings and Order, the Committee ordered Ms. Cashion to pay $6,635.61 restitution to Pamela Lewis and $7,235.16 to Clayton Edmonson (sic) within thirty days of the filing of the Findings and Consent Order of Discipline. As of the date of the filing of this petition, M[s]. Cashion has failed to pay ... either person the restitution as required by the Finding and Order of Consent to Discipline to the Committee or communicated with the Committee why she cannot pay the sanction.

Pursuant to the Committee’s petition, we order Ms. Cashion to appear before this court at 9:00 a.m. on March'8, 2001, for consideration of the relief requested in the petition, including why she should not be held in contempt.

It is so ordered.


text:
    IN RE: Carl Frederick MOYER (Arkansas Bar ID # 90067)
    01-14
    37 S.W.3d 618
    Supreme Court of Arkansas
    Opinion delivered February 22, 2001

      Lynn Williams, for petitioner.
    No response.
   PER CURIAM.

This is an original action brought by the Supreme Court Committee on Professional Conduct. The Committee petitions this court for an order requiring Carl Fredrick Moyer to appear before this court and show cause why he should not be held in contempt for wilfully disobeying the Committee’s “Findings and Consent to Discipline Order” entered September 19, 2000. The Committee further asks this court to order Mr. Moyer to comply with the specific terms of that order.

The Committee’s petition reflects that a complaint was filed against Mr. Moyer regarding his representation of Lesa L. Horne. The Committee’s order reflects that on September 4, 1998, Mr". Moyer filed suit on behalf of Ms. Horne in the Boone County Circuit Court. A bench trial was held on March 5, 1999, and a letter opinion was issued on March 18, 1999. The letter reflectéd the trial court’s award of a $580 judgment in favor of Ms. Horne. The letter also instructed Mr. Moyer to prepare the judgment. Despite numerous attempts, Ms. Horne was unable to communicate with Mr. Moyer regarding the entry of the judgment. On October 4, 1999, Ms. Horne attempted to file a writ of execution to collect the judgment from the defendant. On October 21, 1999, the trial court rescinded the writ of execution based on Mr. Moyer’s failure to prepare the judgment. Subsequently, on November 8, 1999, the trial court dismissed the lawsuit due to Mr. Moyer’s failure to prepare and submit the judgment.

According to the Committee’s order, Mr. Moyer asserted that he had prepared the judgment, and he believed that it had been sent to the trial court. Mr. Moyer was unaware that the trial court had ultimately dismissed the lawsuit due to his failure to prepare the judgment. However, Mr. Moyer did accept responsibility for the fact that the judgment had not reached the trial court and had not been entered.

Based on the foregoing facts, the Committee found that Mr. Moyer’s conduct had violated Arkansas Model Rules of Professional Conduct 1.3, 1.4(a), and 8.4(d). The Committee accordingly reprimanded Mr. Moyer for his conduct and ordered him to pay Ms. Horne $580 in restitution, pursuant to Section 8A(3) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. The Committee further ordered that the restitution shall be paid no later than thirty days from the filing of its order. The petition currently before this court reflects that as of January 4, 2001, Mr. Moyer has failed to make restitution to his client as ordered.

Pursuant to the Committee’s petition, we order Mr. Moyer to appear before this court at 9:00 a.m. on March 8, 2001, for consideration of the relief requested in the petition, including why he should not be held in contempt.

It is so ordered.


author: TOM GLAZE, Justice.

text:
    OSCAR STILLEY v. Maurice HUBBS, Robert Garner; Patti Hill, In Her Official Capacity as County Clerk of Crawford County, Arkansas; Kenneth Chitwood, Bill Coleman, and Helen Campbell, in Their Official Capacities as County Election Commissioners of Crawford County, Arkansas
    00-1141
    40 S.W.3d 209
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001
    [Petition for rehearing denied April 5, 2001.]

      Appellant, pro se.

      Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellees.
   TOM GLAZE, Justice.

We assumed jurisdiction of this case because it involved an election issue of first impression. Sup. Ct. R. l-2(a)(4) and (b)(1). However, we recently decided the same issue in Stilley v. Henson, 342 Ark. 346, 28 S.W3d 274 (2000). In Henson, Sebastian County had a one percent sales and use tax, but, on August 7, 2000, Oscar Stilley filed an initiative petition with the Sebastian County Clerk to give the voters the opportunity to approve or disapprove an ordinance to reduce the existing tax to one-half of one percent. The Sebastian County Clerk certified the sufficiency of Mr. Stilley’s petition for placement of the issue on the November 7, 2000, general election ballot. Harold Henson filed a petition for writ of mandamus in Sebastian County Circuit Court, challenging the validity of Stilley’s initiative petition. The Sebastion County Circuit Court allowed Mr. Stilley to intervene to argue the validity of his initiative petition, but the circuit court rejected his argument and granted Henson a writ of mandamus on September 11, 2000. The circuit court, ordered the Sebastian County Clerk and the Sebastian County Board of Election Commissioners to refrain from placing Stilley’s proposed measure on the ballot. In affirming the circuit court’s decision on October 12, 2000, we held the initiative petition was facially invalid and failed to comply with Amendment 7 to the Arkansas Constitution because it was contrary to the specific enactment procedures mandated by Ark. Code Ann. §§ 26-74-201, et seq. (Repl. 1997 and Supp. 1999), for levying or repealing a countywide sales and use tax. Id. at 349.

As he had done in Sebastian County, Stilley filed an identical initiative petition on August 7, 2000, with the Crawford County Clerk. The purpose of the petition was to allow the Crawford County voters to approve or disapprove a proposed ordinance which would reduce Crawford County’s one percent sales and use tax to one-half of one percent. Maurice Hubbs and Robert Garner, Crawford County voters, petitioned the Crawford County Circuit Court to declare Stilley’s initiative petition facially invalid and contrary to Amendment 7 to the Arkansas Constitution and existing state laws. After permitting Mr. Stilley to intervene in the action to defend the validity of his initiative petition, the Crawford County Circuit Court, on September 18, 2000, granted the relief requested by Hubbs and Garner, held Stilley’s petition to be facially invalid, and commanded the Crawford County Clerk to decertify her original finding that the initiative petition was sufficient. Again, like he did in the Henson case in Sebastian County, Stilley appealed the Crawford County Court’s decision to this court and, making the same arguments as he urged in Henson, he submits that the lower court’s ruling that his initiative petition is facially invalid should be reversed. For the same reasons we set out in Henson in affirming the Sebastian County Circuit Court on this issue, we now affirm the Crawford County Circuit Court’s decision.

Hubbs and Garner additionally requested and were awarded attorney’s fees in the amount of $7,500.00 by the Crawford County Circuit Court; Stilley now contends the trial court erred in making such an award because no statute authorized it. Stilley cites the case of Arkansas Oklahoma Gas Company v. Waelder Oil & Gas, Inc., 332 Ark. 548, 966 S.W.2d 259 (1998), for the general rule in Arkansas that attorney’s fees are not awarded unless expressly provided for by statute or rule.

In defending the award of attorney’s fees, Hubbs and Garner argue Stilley did not make the objection or argument concerning the fees he now makes on appeal; therefore, he faded to preserve the issue for appellate review. Furthermore, they submit statutory authority does exist for a court to impose sanctions in the form of an attorney’s fee up to $5,000.00 under Ark. Code Ann. § 16-22-309 (Repl. 1999), when the trial court finds there is a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney. Hubbs and Garner argue that Stilley could not in good faith have considered his Crawford County initiative petition a valid measure when he argued its validity in the Crawford County Circuit Court, when only one week earlier, the Sebastian County Circuit Court had ruled an almost identical initiative petition facially invalid. Because § 16-22-309 limits an award of attorney’s fees to $5,000.00, they agree to accept a remittitur reducing the $7,500.00 awarded to them to $5,000.00.

As to the preservation issue raised by Hubbs and Garner, we note the record reflects that they requested attorney’s fees without mentioning any statute or court rule, nor did they specify an amount. At the end of the parties’ hearing, the circuit court generally concluded, “All right, the court’s going to allow you [Hubbs and Garner] a fee of $7,500.00.” Stilley made no response at the hearing, nor did he question the fee by posttrial motion after the trial court included its award of attorney’s fees as a part of its final order.

In awarding attorney’s fees under Ark. Code Ann. § 16-22-309(c) (Repl. 1999), the trial court may pronounce its decision on the fees at the conclusion of the trial or special proceeding without written motion and with or without presentation of additional evidence. The judgment for attorney’s fees, if any, shall be included in the final judgment entered in the action. Id. On appeal, the question as to whether there was a complete absence of a justiciable issue shall be determined de novo on the record of the trial court alone. Ark. Code Ann. § 16-22-309(d) (Repl. 1999). In Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991), this court, in applying these statutory provisions, held that where the trial court awards attorney’s fees in its final judgment, the party or attorney ordered to pay the fee may then question the validity of the award on appeal merely by requesting a de novo review of the question as to whether a justiciable issue existed below. Thus, even though Stilley never questioned the attorney’s fee award at trial, we conclude he can question that award on appeal by a de novo showing that a justiciable issue existed in this case. Of course, if a justiciable issue is shown, the Crawford County Circuit Court erred in awarding attorney’s fees. Our review reflects the court erred.

To point out the obvious, when Stilley pursued his defense of his proposed initiative measure in the Crawford County litigation after the Sebastian County Circuit Court ruling, our court had, as of that date, not yet considered or decided the issue presented in the Sebastian and Crawford County cases. Accordingly, Stilley appealed both decisions in an attempt to overturn those two courts’ holdings. The Sebastian County case, Henson, reached us first, and in deciding that appeal, we were required to determine if a justiciable issue was involved. Our court, in determining whether a justiciable issue existed, relied on Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996), where this court said the following:

It has been said that the pertinent issue in cases such as this one “is not the hypothetical question of whether the law, if passed, would be constitutionally defective; rather, it is the present and ripe question whether the measure’s proponents are entitled to invoke the direct legislation process at all.”

Our court in Henson concluded that the justiciable issue to be decided was whether Stilley could reduce the existing countywide one percent sales and use tax by invoking the direct-initiative process. Of course, we answered the issue by saying no in Henson and, as stated hereinabove, that decision controls the identical issue presented in this appeal. Because the initiative-petition issue Stilley raised in the Sebastian County and Crawford County lawsuits involved a justiciable issue, we reverse the Crawford County Circuit Court’s award of attorney’s fees.

Whether Stilley should have continued with part of the recent appeal is a separate question, which we now address as we are authorized to do under Rule 11 of the Rules of Appellate Procedure — Civil. Rule 11 in pertinent part provides that the supreme court or the court of appeals “shall impose a sanction upon a party or attorney or both for taking or continuing a frivolous appeal.... For purposes of this rule, a frivolous appeal is one that has no reasonable legal or factual basis.” Id. at (b). (Emphasis added.) Such sanctions “may include, but are not limited to, dismissal of the appeal; striking a brief, motion, or other paper; awarding actual costs and expenses, including reasonable attorney’s fees; imposing a penalty payable to the court. ...” Id. at (c). A party by motion may request sanctions be imposed or the appellate court may impose a sanction on its own initiative. Id. at (d). If the court on its own initiative determines that a sanction may be appropriate, the court shall order the party or attorney to show cause in writing why a sanction should not be imposed. Id.; compare Jones v. Jones, 378 Ark. 684, 944 S.W.2d 121 (1997).

Here, as previously discussed, the case of Stilley v. Henson, supra, is controlling of the same issue in this appeal. That decision was handed down by this court on October 12, 2000; nonetheless, Mr. Stilley continued his Crawford County appeal. He filed his original brief on October 6, 2000, and Hubbs and Garner filed their responsive briefs on November 13, 2000, wherein they pointed to the Henson opinion as deciding this appeal. Instead of dismissing part of this appeal in light of the Henson decision, Stilley, in his reply brief filed on November 17, 2000, merely continued to disagree with Henson by saying it was “fatally flawed.” Stilley further stated in his reply brief that “if this court chooses once again to ignore what cannot be refuted, obviously [he] is stuck with [the] rule of law” stated in Henson.

Because of Mr. Stilley’s refusal to accept this court’s decision in Henson and his continued pursuit of this appeal even though the Henson decision — more than four months earlier — disposed of the identical issue in this appeal, we conclude that a sanction may be appropriate. Therefore, we order Mr. Stilley to show cause in writing why a sanction should not be imposed against him. Such writing shall be filed no later than seven days after the date of this opinion. If he files a writing, Hubbs and Garner may have four days to respond from the date of Stilley’s writing.

For the reasons stated above, we affirm the Crawford County Circuit Court’s decision to grant Hubb’s and Garner’s request for writ of mandamus, but reverse that court’s award of attorney’s fees. Concerning the collateral matter involving whether this court should impose a sanction under Rule 11, we will accept the parties’ writings under the foregoing schedule, and will then issue a supplemental opinion deciding whether Rule 11 sanctions will be imposed.

Appellant, pro se.

Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellees.

SUPPLEMENTAL OPINION on DENIAL of REHEARING

March 22, 2001

PER CURIAM. In this appeal, we issued our opinion on March 1, 2000, wherein we affirmed the Crawford County Circuit Court. We did so because the central issue was identical to the one we already decided four months earlier in our decision in Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000). Upon pointing out that attorney Oscar Stilley had continued this appeal even though he was aware the Henson decision had considered and disposed of the identical issue presented in this appeal. We concluded sanctions under Rule 11 of the Rules of Appellate Procedure — Civil might be appropriate. Rule 11 provides the court shall impose a sanction upon a party or attorney or both for taking or continuing a frivolous appeal. We directed Mr. Stilley to show cause why a sanction should not be imposed against him, and we also allowed appellees to respond. Both Mr. Stilley and appellees have filed their writings.

Mr. Stilley asks court members to disqualify and, alternatively, requests we refrain from imposing any sanctions. We conclude that disqualification is clearly inappropriate in these circumstances and that sanctions must be imposed. In this case, the paramount issue was whether Mr. Stilley’s initiative petition was faciaEy invalid and failed to comply with Amendment 7 to the Constitution because it was contrary to the specific enactment procedures mandated by Ark. Code Ann. §§ 26-74-201, et seq. (Repl. 1997 and Supp. 1999) for levying or repealing a countywide sales and use tax. We answered this exact issue in Henson. While Mr. Stilley voices dissatisfaction with this decision, this court discussed and distinguished the arguments and citations of authorities presented by Mr. Stilley.

Mr. Stilley’s responsive writing disavows any need for Rule 11 sanctions, but he continues to present the same arguments he made in Henson. We determine a fair sanction in these circumstances would be the award of a reasonable attorneys’ fee to appellees for requiring appellees to go forward in defending this appeal. See Rule 11(c); see also Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997). Therefore, we order that Mr. Stilley pay appellees the amount of $2,000.00, and do so within twenty days from the issuance of this supplemental opinion.

       The time for filing a petition for rehearing in the Henson case ended on October 30, 2000. Stilley, however, filed no such petition, nor did he move to dismiss his Crawford County case.

       Mr. Stilley also refers to this court’s decisions in “Dramshop Act” cases decided over the past years where the court eventually rejected earlier common law decisions. Those cases have no significance here where Mr. Stilley simply refused to accept this court’s mandate in Henson which was issued only four months earlier.


author: ROBERT L. Brown, Justice.

text:
    Jimmy D. MURRAY v. STATE of Arkansas
    CR 00-1044
    37 S.W.3d 641
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      Edmundo G. Rogers, for appellant.

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

Appellant Jimmy D. Murray

appeals from a dismissalof his appeal by the Benton County Circuit Court. He raises multiple issues relating to whether the City of Rogers Municipal Court entered a judgment, which began the time period in which a notice of appeal and record were required to be filed under our Inferior Court Rules. We hold that the circuit court properly dismissed the appeal as untimely, and we affirm that dismissal.

The facts of this case follow. On July 29, 1998, a citation was issued to Murray, accusing him of committing the offense of nonsupport, a Class D felony. Subsequently, the circuit court entered an order granting the prosecutor’s motion to transfer the case to the Rogers Municipal Court on a reduced charge of nonsupport, which was a Class A misdemeanor. Later, a summons was issued by the Rogers Municipal Court for Murray to appear in court on May 24, 1999, at 10:30 a.m.

Apparently, a hearing was held. At the bottom of the issued summons, these handwritten notations appeared, followed by the signature of Special Municipal Judge Edwin McClure and the date of May 24, 1999:

Guilty
$2,780 Restitution
$1,000 Pine jail time + fine + cos[ts]
$75 Costs suspended if restitution paid
90 days in BC Jail within 30 days
Okay fine to paid [sic] to Mary Skaggs Edwin McClure
5.24.99

At the top of this document was the Rogers Municipal Court Clerk’s stamp dated June 22, 1999. On June 24, 1999, Murray filed a notice of appeal in the Benton County Circuit Court. On that same date, the Rogers Municipal Court record was filed with the circuit court clerk.

At an arraignment hearing on July 26, 1999, the prosecutor moved to dismiss the appeal on the basis that it was not timely filed. Murray then filed an answer to the motion and brief in support. Attached to the brief were the following: (1) a copy of the municipal court summons referenced above; (2) an affidavit by Cynthia Rogers of The Rogers Law Firm in which she stated that she had filed a notice of appeal and requested and paid for a transcript from the Rogers Municipal Court on June 21, 1999; that the transcript could not be prepared immediately by the court; and that on June 23, 1999, the court informed her at 4:30 p.m. the transcript was ready and could be picked up the next morning; and. (3) an affidavit by Edmundo Rogers, Murray’s attorney, wherein he stated that he was shown the files and records kept by the Rogers Municipal Court Clerk; those files were not bound; and the documents of separate cases were kept in a manila folder and placed in a filing cabinet with other decisions and cases of the court.

On May 23, 2000, an order was entered by the circuit court which contained these findings:

3. The date of May 24, 1999, is the date of entry of judgment in Rogers Municipal Court.
4. The means by which the Rogers Municipal Court entered said judgment — the handwritten notation on the March 18, 1999, Rogers Municipal Court summons to Defendant — complied with the relevant law and rules of procedure for entries of judgment.
5. Defendant’s appeal from said judgment to the Benton County Circuit Court was untimely.
6. Because the appeal was untimely, this case is dismissed for lack of jurisdiction and remanded to Rogers Municipal Court for execution of sentence.

The basis of the circuit court’s dismissal of the appeal for lack of jurisdiction was Murray’s failure to file the appeal within thirty days of the entry of the municipal court judgment. See Inferior Ct. R. 9.

Murray appeals the circuit court order and first contends that that court erred in ruling that the handwritten notations by Special Judge McClure at the bottom of the summons was a judgment. He further contends that our Inferior Court Rules do not define what form a judgment must take and that, as a result, we must look to the Arkansas Rules of Civil Procedure for the appropriate rule pursuant to Inferior Ct. R. 10. Rule 10 reads:

Where applicable and unless otherwise specifically modified herein, the Arkansas Rules of Civil Procedure and rules of evidence shall apply to and govern matters of procedure and evidence in the inferior courts of this State.

Specifically, Murray cites this court to Ark. R_. Civ. P. 58, which requires that every judgment “shall be set forth on a separate document.” Because the alleged judgment was not on a separate document, Murray contends it was invalid.

We disagree because our Inferior Court Rules contain a specific provision governing entry of judgments. Subsections (b) and (c) of Rule 8 provide:

(b) Upon the Merits. Where the court has decided the case, it shall enter judgment in favor of the prevailing party for the relief to which he is deemed entided.
(c) Docket Entry. The court shall timely enter in the docket the date and amount of the judgment, whether rendered by default or upon the merits.

Inferior Ct. R. 8(b), (c). Furthermore, we have held that Inferior Ct. R. 8(c) and 9 “reflect that an inferior court, such as the municipal court, enters any judgment it renders by entering, in a timely manner, the date and amount of the judgment in the court’s docket.” West Apartments, Inc. v. Booth, 297 Ark. 247, 250, 760 S.W.2d 861, 863 (1988).

This court has, therefore, made it clear by rule and caselaw that a judgment is entered in municipal court by entering the date and the amount of the judgment in the court’s docket. The ultimate question before us is whether Special Judge McClure’s notations of his disposition of the case constituted a docket entry for purposes of Rule 8(c). We conclude that it did.

The term “docket” is defined in Black’s Law Dictionary 495 (7th ed. 1999), as “[a] formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case[.]” As already noted, entry of the date and amount of the judgment in the court’s docket is entry of the judgment under our Inferior Court Rules. This procedure is categorically different from the procedure for entry of judgment in courts of general jurisdiction under Ark. R. App. P. — Civ. 4(d) and Administrative Order 2(b)(2), where it is stated that a judgment is entered when stamped “filed” by the clerk.

We turn then to the testimony of Lee Pestel, Chief Court Clerk for the Rogers Municipal Court. She testified in the hearing before the circuit court that because the computers were down, she was using a different file system. She explained the new filing system in this colloquy:

Defense Counsel: Okay, thank you. And, uh, how — after the judge renders a judgment, how do you docket these cases? How do you ■— what, what is the process of docketing the cases?
Ms. PESTEL: Um, the cases are put in a file folder, dated, and then in (sic) alphabetical order.
Defense Counsel: Okay, in alphabetical order?
Ms. Pestel: Um-hmm.
Defense Counsel: Do you — you don’t have a docket numbering system, correct? There is no system like you give a case a number in the docket, you just do it by alphabetic order?
MS. PESTEL: We are unable to do that right now.
Defense Counsel: Okay. Okay. Now, do you usually docket them the same day or do you sometimes leave it for the next morning? The judge says, tells the people, “You are guilty” or he awards, he awards — he has put it in a file folder. Do you guys usually put it in the file cabinets, the docket file cabinets that same day or sometimes the next morning?
MS. PESTEL: No, sometimes the next morning, sometimes two or three days later.

We do not agree with Murray that for a docket entry to be made in municipal court, it must be done in a docket book. Certainly, Inferior Ct. R. 8(c) does not require that. In this case the disposition of the case and the penalty were written on the summons and then signed and dated by the Special Judge. That satisfies the definition in Black’s Law Dictionary and suffices as a docket entry under Inferior Ct. R. 8(c). Moreover, we do not consider the fact that the municipal court clerk may have filed the manila folder in this case one, two, or three days later as material or determinative. Filing the manila folder did not constitute a docket entry. A docket entry occurred when the pertinent information was written on the summons by the Special Judge. Nor do we read Ms. Pestel’s testimony to say that docketing occurred when the manila envelopes were filed.

Because there was an entry of judgment on May 24, 1999, Murray was required to file hi's appeal in the circuit court clerk’s office within thirty days from the date of the entry of judgment. See Inferior Ct. R. 9(a). In the instant case, the entry of judgment took place on May 24, 1999, and Murray’s thirty days expired on June 23, 1999. Murray filed his notice of appeal and record on June 24, 1999, one day outside of the thirty-day time limit. In appeals from municipal court to circuit court, it is the filing of the municipal court record with the circuit clerk that perfects the appeal. See Inferior Ct. R. 9(b). This Court has held that the thirty-day requirement is mandatory and jurisdictional. See, e.g., Smith v. State, 316 Ark. 32, 870 S.W.2d 716 (1994); Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Allred v. State, 310 Ark. 476, 837 S.W.2d 469 (1992). Because appellant failed to timely file his appeal in the circuit court, the circuit court was without jurisdiction to decide the appeal and properly dismissed it.

Affirmed.


author: ANNABELLE CLINTON Imber, Justice.

text:
    Antonio L. BRITT v. STATE of Arkansas
    CR 00-535
    38 S.W.3d 363
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      Perkins, Wilson & Associates, P.A., by: Ronald C. Wilson, for appellant.

      Mark Pryor, Att’y Gen., by: Jeffrey A. Weber, Ass’t Att’y Gen., for appellee.
   ANNABELLE CLINTON Imber, Justice.

Antonio Britt was convicted of first-degree murder, attempted first-degree murder, and two counts of kidnapping following a jury trial in the Mississippi County Circuit Court. He was sentenced by the jury to three terms of life imprisonment plus an additional thirty years to be served consecutively. He appeals his conviction, challenging the sufficiency of the evidence to support a conviction of first-degree murder or kidnapping, the trial court’s denial of his motion to suppress inculpatory statements, and the trial courts refusal to instruct the jury on the lesser-included offenses of second-degree murder and manslaughter.

This is Mr. Britt’s second appeal in this matter. We reversed his first conviction and remanded the case for retrial, holding that the trial court erroneously denied Mr. Britt’s motion to suppress two statements made on April 10, 1995, in violation of his right to be taken before a judicial officer without unnecessary delay pursuant to Ark. R. Crim. P. 8.1. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998) (Britt I). This appeal arises from his conviction following retrial. We find no error and affirm the judgment of the trial court.

In the early morning hours of April 9, 1995, Bradley Davis and Jonathon Hancock were cruising around Blytheville in a white Chevrolet pick-up truck looking for drugs when they came upon a white Bonneville at a four-way stop. The Bonneville was occupied by Mr. Britt, Scotty Hodges, William Hunt, and Clarence “Ray Ray” Williams. Mr. Davis and Mr. Hancock asked the men if they had any drugs, and the four, men in the Bonneville instructed Davis and Hancock to pull over. Mr. Davis, who is six feet, four inches tall, testified that, when they pulled over, a thin black man who was taller than himself tapped on the truck window with a gun and told him to get out. Mr. Britt was the only one in the Bonneville who matched this description. He demanded Mr. Davis’s money and, upon learning that Mr. Davis had no money, told Mr. Davis that he would take his life instead. He ordered Mr. Davis at gunpoint into the Bonneville and told him to lay down on the floorboard where he could not be seen. Mr. Britt then changed his mind and ordered Mr. Davis to get into the trunk of the car. Mr. Davis complied and discovered that Mr. Hancock was already in the trunk.

Mr. Davis and Mr. Hancock were driven around in the trunk of the Bonneville for awhile with loud, verbally abusive rap music playing. The men in the Bonneville repeatedly turned the music down and asked loudly if Mr. Davis and Mr. Hancock were ready to die. During this time, Mr. Britt was driving the victims’ truck and following the Bonneville.

The vehicle finally stopped in an area adjacent to the Mississippi River and the men were allowed out of the trunk. They were ordered to strip, but Mr. Davis hesitated to do so completely because he was afraid of being raped. He told his abductors that there was no need to rape anyone, and one of them replied “Well, that’s not going to happen. We’re just going to kill you.” Mr. Davis then removed the remainder of his clothing and sat on the ground as ordered. He felt a bullet hit him in the arm so he rolled over onto his side and pretended to be dead, at which point he heard a voice say that he had been shot in the gut, so they had to finish the job. Another voice replied “Well, watch this.” Mr. Davis then saw a hand with a gun pressed to Mr. Hancock’s head and watched the trigger being pulled. Mr. Davis laid on the ground with his eyes shut and was shot two more times, although he did not remember feeling it. When the shooting ended, Mr. Davis heard one of the men say “What are you bitches going to do now?” And another replied “Not s**t.” Someone poured beer on his face and then he heard the men drive away.

Mr. Davis was able to make his way to a tugboat on the river and find help. Mr. Davis survived the incident despite gunshot wounds to the back of his neck, his right ear, his left arm and his leg. Mr. Hancock was shot on the right side of his forehead at close range and had a “contact gunshot wound” on the top of his head, indicating that the gun was held against Mr. Hancock’s head when it was discharged. He also had a gunshot wound to his left hand, a blunt force head injury, and several abrasions to his hands and back. Mr. Hancock died as a result of multiple gunshot wounds with blunt force trauma to the head.

Police discovered the white Bonneville at the scene with Mr. Davis’s and Mr. Hancock’s clothing inside. They also discovered three live .380 caliber rounds, two .380 caliber spent shell casings, a shell lead, a container of Budweiser and a cassette tape containing a rap song identified by Mr. Davis as the song being played while he was in the trunk. Mr. Britt’s fingerprints were lifted from the Bonneville. A check of the registration revealed that the Bonneville belonged to a resident of St. Francis County. When they learned that Mr. Davis and Mr. Hancock had been driving a white Chevrolet pickup, which was not found at the scene, the Mississippi County Sheriffs Department put out a description of the truck, advising area law enforcement agencies to be on the lookout for it, especially in St. Francis County where the vehicle found at the scene was registered.

Around 6:50 a.m. on April 9, 1995, a St. Francis Deputy Sheriff, William Faulk, passed the truck going- in the opposite direction on a highway outside Madison, Arkansas. He turned his vehicle around in order to follow the truck and found it abandoned on the side of the road in Madison. Deputy Faulk learned from the sales clerk of a nearby grocery that the truck had been occupied by Mr. Britt and Mr. Hodges. Based on this information, the St. Francis County officers went to the home of Mr. Britt’s cousin, Diane Lee, where they found Mr. Britt asleep on the sofa and arrested him on charges of theft by receiving. Mr. Britt’s fingerprints were lifted from the truck and Mr. Davis’s wallet was discovered by Ms. Lee on the sofa where Mr. Britt had been sleeping. Officers eventually located two handguns: a Lorcin .380 caliber automatic and a Bryco Jennings .380 caliber semiautomatic. Most of the bullets, shell casings, and bullet fragments recovered at the scene of the shooting and all of those recovered during the autopsy of Mr. Hancock were forensically connected to the two recovered handguns.

I. Sufficiency of the Evidence

For his first point on appeal, Mr. Britt argues that the trial court erred by denying his motions for directed verdict made at the close of the State’s case and at the close of all of the evidence. We disagree. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, supra.

Mr. Britt was convicted of murder in the first degree, attempted murder in the first degree, and kidnapping. On appeal, he challenges the sufficiency of the evidence to support his conviction on all charges.

Mr. Britt was convicted of first-degree murder in the death of Mr. Hancock. A person commits murder in the first degree if:

(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; or
(2) With the purpose of causing the death of another person, he causes the death of another person.

Ark Code Ann. § 5-10-102(a) (Repl. 1997).

Mr. Britt was convicted of the attempted first-degree murder of Mr. Davis. A person attempts to commit an offense if he:

(2) Purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
(b) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.

Ark. Code Ann. § 5-3-201 (a)(2), (b) (Repl. 1997).

Mr. Britt was also convicted of two counts of kidnapping arising out of the events leading to the death of Mr. Hancock and shooting of Mr. Davis.

(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
*****
(3) Facilitating the commission of any felony or flight thereafter; or
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him;

Ark Code Ann. § 5-ll-102(a) (Repl. 1997).

The evidence presented at trial, viewed in the light most favorable to the State, demonstrated that Mr. Britt, along with three of his friends, encountered Mr. Davis and Mr. Hancock at a four-way stop, forced them at gunpoint into the trunk of the Bonneville, drove to the river and forced the two men to strip. They then shot the two men repeatedly, stole their pickup truck and Mr. Davis’s billfold, and abandoned the injured men. Mr. Hancock subsequently died as a result of the shooting.

Mr. Britt argues, however, that the trial court erred in failing to direct a verdict on his behalf because his mere presence at the crime scene was insufficient to convict him and the State failed to prove he actually committed the alleged crimes ."This argument is without merit. The evidence detailed above demonstrates that Mr. Britt’s involvement in the kidnapping of Mr. Davis and Mr. Hancock and in the murder of Mr. Hancock and attempted murder of Mr. Davis went far beyond mere presence. The evidence, when viewed in the light most favorable to the State, revealed that Mr. Britt forced Mr. Davis out of the truck at gunpoint, stole his billfold, threatened to kill him, forced him into the trunk of the Bonneville, followed the Bonneville to the river in the stolen pickup, left the scene with Scotty Hodges, whom Mr. Britt named as the shooter, and was still with Mr. Hodges in the stolen pickup as of 6:00 a.m. when they were seen together by a store clerk.

Even if Mr. Britt did not pull the trigger on the gun that was used to kill Mr. Hancock or to attempt to kill Mr. Davis, the evidence was sufficient to convict him of the murder and the attempted murder as an accomplice.

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:
(1) Solicits, advises, encourages, or coerces the other person to commit it; or
(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403 (Repl. 1997).

The evidence set out above was clearly sufficient to convict Mr. Britt of first-degree murder, attempted first-degree murder, and kidnapping.

II. Motion to Suppress

Mr. Britt argues in his second point on appeal that the trial court erred by denying his motion to suppress two statements that he made on April 9, 1995, because he was not afforded a reasonable-cause determination within forty-eight hours of his arrest as required by Arkansas Rule of Criminal Procedure 4.1. We disagree.

"When this court reviews a trial court’s ruling on a motion to suppress, we review the' evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances.” Gilbert v. State, 341 Ark. 601, 605, 19 S.W.3d 595, 598 (2000) (citing Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999)). We will reverse a trial court’s ruling on a motion to suppress only if the ruling was clearly erroneous. Id.

Ark. R. Crim. P. 4.1 provides, in relevant part, that:

(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony
*****
(e) A person arrested without a warrant shall not be held in custody unless a judicial officer determines, from affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person has committed an offense. Such reasonable cause determination shall be made promptly, but in no event longer than forty-eight (48) hours from the time of arrest, unless the prosecuting attorney demonstrates that a bona fide emergency or other extraordinary circumstance justifies a delay longer than forty-eight (48) hours. Such reasonable cause determination may be made at the first appearance of the arrested person pursuant to Rule 8.1.

Id. (Emphasis added.) The mandatory language of Rule 4.1 thus requires that an arrestee be taken before a judicial officer for a reasonable-cause determination within forty-eight hours of arrest. Id. See also County of Riverside v. McLaughlin, 500 U.S. 44 (1991). Relying upon this rule, Mr. Britt argues that, because he was not taken before a judicial officer within forty-eight hours, his statements must be suppressed. In response, the State asserts that Mr. Britt was afforded a reasonable-cause determination within forty-eight hours as required by Rule 4.1; but that, even if the reasonable-cause determination was made outside the forty-eight-hour time limit, suppression of the evidence is not the proper remedy.

The evidence presented below pertaining to the time of Mr. Britt’s arrest consisted of two St. Francis County police reports, the testimony of Diane Lee, and the prior testimony of Sgt. Crites from the Mississippi County Sheriffs Office. First, Mr. Britt presented the report of Deputy Faulk from the St. Francis County Sheriff s Office, which stated that Deputy Faulk first encountered the stolen pickup truck at approximately 6:50 a.m. and, in the course of events that followed, Mr. Britt was arrested. Deputy Faulk’s report did not say what time Mr. Britt was arrested. The prosecutor submitted to the trial court a St. Francis County arrest report stating that Mr. Britt was arrested by Officer Leary at 10:50 a.m. on the charge of theft by receiving. Mr. Britt also introduced the prior sworn testimony of Sgt. Crites of the Mississippi County Sheriffs Office, wherein he testified that he was “not real sure” what time St. Francis County notified him that they had Mr. Britt in custody, but it was during the morning of April 9, 1995, and possibly between 7:00 and 9:00 a.m. Finally, during the course of the trial, Mr. Britt presented the testimony of his cousin, Diane Lee, who said that Mr. Britt was arrested in her home at approximately 8:00 a.m.

The trial court was faced with conflicting evidence concerning the time at which Mr. Britt was arrested. The parties agreed, however, that a reasonable-cause determination was made two days later, on April 11, 1995, at approximately 9:30 a.m. If the evidence, when viewed in the light most favorable to the State, supports the finding that Mr. Britt was arrested at some time after 9:30 a.m. on April 9, 1995, then we cannot say the trial court clearly erred in denying Mr. Britt’s motion to suppress.

Among the evidence before the trial court was an arrest report listing the time of arrest as 10:50 a.m. on April 9, 1995. The trial court gave considerable weight to this report and, in fact, weighed its credibility against other evidence. Specifically, the trial court noted, in determining how much weight to afford the St. Francis County arrest report as compared to the testimony of Sgt. Crites, that the “report’s by the arresting officer. I think it would have a little more effect than what an officer that wasn’t even present in the county would be trying to say.” Because the trial court had before it an arrest report that it clearly found to be credible and that stated the time of arrest by St. Francis County was 10:50 a.m., we cannot say the trial court clearly erred when it found that Mr. Britt was afforded a reasonable-cause determination within forty-eight hours of his arrest. Because there has been no violation of Rule 4.1, we need not decide what the appropriate remedy for such a violation would have been.

III. Lesser-included Offenses

Mr. Britt’s final argument on appeal is that the trial court erred by refusing to instruct the jury on the lesser-included offenses of second-degree murder and manslaughter.

It is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. Brown v. State, 325 Ark. 504, 929 S.W.2d 146 (1996); Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992); Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). We will affirm a trial court’s decision to exclude an instruction on a lesser included offense only if there is no rational basis for giving the instruction. Brown v. State, supra; Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988).

Spann v. State, 328 Ark. 509, 513, 944 S.W.2d 537, 539 (1997); Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000).

In the instant case, there was no rational basis to instruct the jury on the lesser-included offenses of manslaughter or second-degree murder. To be entitled to an instruction for manslaughter, Mr. Britt must demonstrate some evidence presented at trial that could support a finding by the jury that he was acting under extreme emotional disturbance, that acted recklessly or negligently, or that he aided another in the commission of suicide. Ark. Code Ann. § 5-10-104 (Repl. 1997). No such evidence was presented.

Similarly, to be entided to an instruction on the lesser-included offense of second-degree murder, Mr. Britt must be able to point to evidence in the record that supports a finding that he acted with a “knowing” mental state rather than a “purposeful” mental state or that he and his accomplices acted with the intent of only causing serious physical injury. Ark. Code Ann. § 5-10-103 (Repl. 1997). All of the evidence presented at the trial in this matter indicated that Mr. Britt or an accomplice placed a gun against Mr. Hancock’s head and pulled the trigger at point-blank range twice, once on the forehead, once on the top of the head. Furthermore, all of the evidence presented tended to demonstrate that Mr. Britt and his accomplices carried out the murder of Mr. Hancock and the attempted murder of Mr. Davis in an execution-like manner. There was no evidence in the record that demonstrated Mr. Britt or his accomplices acted with any mental state other than with the purpose of causing the deaths of both Mr. Hancock and Mr. Davis. Therefore, the trial court did not err by refusing to instruct the jury on the lesser-included offenses of manslaughter and second-degree murder.

IV 4-3 (h) review

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a). None have been found.

Affirmed.

       We recognize that Mr. Britt also introduced the previous trial testimony of St. Francis County Officer Don Partman, who took part in the arrest of Mr. Britt. At the first trial, Officer Partman testified that the arrest occurred “1*11 say in between 8:30 and 9:00 o’clock. It was mid morning, I guess; somewhere up in there.” However, this evidence was not entered until after the trial court denied the motion to suppress and after the statements were entered into evidence. Furthermore, the trial court discredited this testimony because of its vagueness, noting that Officer Partman was not really certain what time the arrest occurred. He merely knew that it occurred mid-morning.


text:
    William BENTON and Meigs R. Brainard v. Helen McClinton BRADLEY, County and Probate Clerk of Jefferson County, Arkansas, Board of Election Commissioners, Trey Ashcraft, Chairman of the Majority Party, Wayne Easterly, Secretary, Anne E. McClaran, Commissioner, Taylor Eubank, Executive Director, and Waymond Brown
    00-1181
    37 S.W.3d 640
    Supreme Court of Arkansas
    Opinion delivered March 1, 2001

      John Cone and Evans Benton, for appellants.

      Earnest E. Brown, Jr., for appellee.
   RAY THORNTON, Justice.

The issue presented by this case is whether the order of the trial court, denying appellant’s petition for a writ of mandamus to prevent Waymond Brown from consideration as a candidate for Second Division Pine Bluff Municipal Judge, should be reversed after the election has been held and after Waymond Brown has taken the office of municipal judge. We do not reach this issue on appeal because it is moot, and we dismiss the appeal.

This case is a companion case to Benton v. Gunter, 342 Ark. 543, 29 S.W.3d 719 (2000) (“Benton I”), where we affirmed a trial court’s ruling that appellant, William Benton, was not a resident of Pine Bluff, and therefore, Benton’s name was removed from the ballot because he did not fulfill the residency requirement for the candidacy of Second Division Pine Bluff Municipal Judge. Although the issues in Benton I, supra, were decided by the trial court at the same time as those presented by this case, the matters were filed and conducted in separate dockets, and the two appeals were taken as separate appeals. The appeal in Benton I, supra was expedited, and we decided the case before the November, 2000 election. This appeal was not expedited and now reaches us for review. Appellants now ask that we reverse the trial court’s determination that Waymond Brown was qualified to be a candidate, and that we reverse the trial court for failing to issue a writ of mandamus to exclude Brown from the November ballot.

The issue presented in this appeal might have been expedited and presented to us for decision prior to the November election. Because the matter was not expedited, the issue before us is now moot. We have held that the appropriate procedure for contesting the eligibility of a candidate and removing that candidate from the ballot before election is a mandamus action in conjunction with an action for declaratory judgment. Valley v. Bogard, 342 Ark. 336, 28 S.W.3d 269 (2000); Jacobs v. Yates, 342 Ark. 243, 27 S.W.3d 734 (2000); State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989).

Any review by us of the trial court’s interpretation of Waymond Brown’s qualifications for candidacy of Second Division Pine Bluff Municipal Judge would not only be untimely, but would also constitute an advisory opinion. We have often said we do not render advisory opinions. McCuen v. McGee, 315 Ark. 561, 868 S.W.2d 503 (1994). There are exceptions where the public interest is involved, and the issue tends to become moot before it can be fully litigated. Benton has not suggested that this case is such an exception, and we are not persuaded that an exception should be made in this case. Accordingly, we dismiss.

Dismissed.