author: Tom Glaze, Justice. Annabelle Clinton Imber, Justice,

text:
    Charles SIMS v. STATE of Arkansas
    CR 97-1350
    969 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998
    [Petition for rehearing denied July 9, 1998.]

      Larry Killough, Jr., P.A., for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen. and James Gowen, Law Student Admitted to Practice Pursuant to Rule XV(E)(1)(b) of the Rules Governing Admission to the Bar of the Arkansas Supreme Court, for appellee.
   Tom Glaze, Justice.

Appellant Charles Sims brings this appeal and raises one point for reversal. After a mistrial and prior to a second trial, Sims entered a conditional plea of guilty under Ark. R. Crim. P. 24.3(b). In doing so, he reserved the right to challenge on appeal the trial court’s ruling denying his motion to suppress an ounce of crystal methamphetamine found as a result of a search of his residence.

The search of Sim’s house was actually initiated as a result of information provided by California authorities who had intercepted a Federal Express package addressed to Chuck Samms at 21 McArthur Street, Cabot, Arkansas. The California officers notified Arkansas State Police Officer Steve Clemmons of their discovery, and forwarded the package to Clemmons, who arranged for its controlled delivery to the 21 McArthur address.

As a part in planning the controlled delivery, Officer Clemmons prepared an affidavit for a search warrant and presented it to Municipal Judge Joe O’Bryan. In the affidavit, Clemmons described the information concerning the package he had received from California authorities, but he further inaccurately averred, “The package was delivered to Chuck Sims, the owner of the vehicles parked in the driveway at 21 McArthur, Cabot, Arkansas.” In fact, the package had not yet been delivered to Sims’s residence, which Judge O’Bryan knew, since the package containing the illegal substance was on his desk when he reviewed the paperwork Clemmons had submitted for the search warrant. In addition, this error was perpetuated in the printed boiler-plate form of the search warrant issued by Judge O’Bryan wherein the warrant reflected, “I (Officer Clemmons) am satisfied that there is probable cause to believe that the property so described is being concealed on or in the (Sims’s) premises.” Parts of the form were appropriately stricken, but Clemmons failed to delete this “being concealed” statement in the form so as to conform to an anticipatory search.

After issuance of the warrant, Clemmons arranged for the delivery of the package to Sims’s house. Sims was not home when the delivery was made, but the package was accepted by Douglas Boyer, Sims’s brother-in-law. Within minutes after the delivery, Boyer left Sims’s house, and officers stopped him, but found no controlled substances on his person or in his vehicle. The .officers then searched Sims’s house and found the Federal Express package, containing the methamphetamine, in a microwave oven. When Sims came home about two hours later, the officers arrested him, and he was charged with the unlawful possession with intent to deliver methamphetamine.

In his challenge of the officers’ search, Sims points out that, while officers were seeking to obtain and execute an anticipatory search warrant conditioned on a future controlled delivery of the package to Sims, Officer Clemmons’s affidavit falsely reflected that the package and illegal substance had already been delivered to Sims who had concealed it in his house. In short, Sims argues that, because Clemmons’s statements were untrue and no illegal substance had yet been delivered to Sims’s house, no accurate showing of probable cause was shown to exist upon which Judge O’Bryan could issue a warrant.

In making his argument, Sims recognizes that courts have upheld the validity of anticipatory warrants, and while our court has not been confronted with the issue, the Eighth Circuit Court of Appeals, as well as other circuit courts, has upheld such practice. See U. S. v. Bieri, 21 F.3d 811 (8th Cir. 1994); U. S. v. Tagbering, 985 F.2d 946 (8th Cir. 1993) [citing Rivera v. United States, 928 F.2d 592 (2d Cir. 1991); United States v. Dornhofer, 859 F.2d 1195 (4th Cir. 1988); United States v. Wylie, 919 F.2d 969 (5th Cir. 1990); United States v. Lowe, 575 F.2d 1193 (6th Cir.), cert. denied, 439 U.S. 869 (1978); United States v. Odland, 502 F.2d 148 (7th Cir.), cert. denied, 419 U.S. 1088 (1974); United States v. Hale, 784 F.2d 1465 (9th Cir.), cert. denied, 479 U.S. 829 (1986)]. In Bieri, the court held that an anticipatory search warrant should be upheld if the independent evidence shows the delivery of contraband will or is likely to occur and the warrant is conditioned on that delivery. Sims states that, unlike in Bieri, the statements given by the officer here to the issuing judge were unreliable and insufficient to support the issuance of a warrant.

Sims also mentions the Eighth Circuit’s Tagbering case in an attempt to distinguish it from the facts here. In Tagbering, the U. S. Customs Officials in Miami, Florida intercepted a package addresed to Kim Smart, c/o Gary Tagbering, 10557 Cypress, Apt. D, Kansas City, Missouri. The customs officials forwarded the package to the Missouri authorities, and a Kansas City detective prepared a search-warrant form and an accompanying affidavit to present to a judge for issuance of an anticipatory warrant. The detective’s affidavit provided the government’s plans for a controlled delivery of the package and stated that “the warrant would not be executed unless the delivery occurs and the package is accepted.” The judge issued the search warrant and recited, “ [T] here is probable cause to believe the package will be delivered through a controlled delivery.” The controlled delivery was made as planned, and Tagbering accepted the package. He was subsequently arrested, and, pursuant to the warrant, his apartment was searched and the package and contraband were seized.

In challenging the validity of the government’s warrant, Tagbering contended the warrant was invalid because it did not expressly condition the search upon a controlled delivery, nor did the warrant reflect it would be void if the delivery did not occur. The Eighth Circuit held that the warrant, fairly construed, did condition the search because the detective’s affidavit contained the representation to the issuing judge that the warrant would not be executed until the package was delivered and accepted. The Tagbering court did say that, if the warrant was executed before the controlled delivery occurred, suppression may well be warranted. Id. at 950. Sims distinguishes his situation from Tagbering’s because here no conditional language appeared in either Officer Clemmons’s affidavit or warrant. Sims claims that, without the limiting language in the warrant, it was left solely to the officers’ discretion as to when and how the warrant would be executed.

Unquestionably, the affidavit and search warrant presented to Judge O’Bryan contained untrue statements since no delivery had been made at the time Officer Clemmons requested a warrant from the judge. Obviously, if probable cause and the issuance of a warrant were dependent on information showing that contraband had previously been delivered to Sims’s residence, the judge’s issuance of the warrant and the execution of the warrant were invalid. However, even if the warrant is defective, as argued by Sims, we conclude the contraband evidence was still admissible because the officers executing the warrant did so in good faith. See U.S. v. Leon, 468 U.S. 897 (1984); see also U.S. v. Livesay, 983 F.2d 135 (8th Cir. 1993) (court held it is well settled that, in the absence of unusual circumstances, evidence seized pursuant to a search warrant that is subsequently invalidated is still admissible).

In Leon, the Court held that the Fourth Amendment exclusionary rule should not be applied so as to bar the use of the prosecution’s case-in-chief evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, but ultimately found to be invalid. The Court further concluded that suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. (Emphasis added.) Id. at 923; see also Franks v. Delaware, 438 U.S. 154 (1978). Although we may not look to facts outside of an affidavit to determine probable cause, when assessing good faith, we can and must look to the totality of the circumstances, including what the affiant knew, but did not include in his affidavit. U.S. v. Martin, 833 F.2d 752 (8th Cir. 1987).

Sims’s only response to the State’s reliance on the good-faith exception in Leon is that Clemmons could not have relied in good faith on the warrant, given his own misguided participation in the warrant process. Such comment fails to address or resolve the good-faith issue before us.

Flere, as previously discussed,- Officer Clemmons furnished the issuing judge misinformation, but the evidence and circumstances fail to show that he intended to mislead the judge or to execute the warrant differently from the manner he represented to the judge. Sims does not question the authenticity or reliability of the information related to Officer Clemmons by the California authorities. And while Officer Clemmons misspoke in his affidavit to the judge that “the package (had been) delivered to Chuck Sims,” the judge was not misled by this misstatement, because the judge saw the package on his desk when he was reviewing the paperwork before signing the warrant. In addition, the officer told the judge that the package had not yet been delivered, but the judge approved the warrant based on the officer having stated that the package would be delivered.

In sum, even though the State’s warrant was not a valid anticipatory warrant, we hold the officers requesting and executing the warrant objectively and reasonably relied on the judge’s probable cause determination, especially since they knew the judge was aware that the package containing the contraband would be delivered and that the warrant would not be executed until delivery was accepted. Therefore, we affirm the trial court’s denial of Sims’s suppression motion.

Newberjnf and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. The majority’s description of Officer Clemmons’s affidavit as inaccurate is, at best, a misnomer. Officer Clemmons knowingly averred in his affidavit that the package had already been delivered and had been received by Charles Sims, when such was not the case. No package had been delivered to Sims at the time the warrant was sought, nor was the package finally delivered to Sims. The package was not delivered until after the warrant was obtained and delivery was made to Sims’s brother-in-law, Douglas Boyer. The majority candidly recognizes the error in the affidavit and the subsequent warrant and further recognizes that the warrant was invalid. However, they justify the validity of the search on the basis of the good-faith exception to the exclusionary rule.

I cannot subscribe to the course of action taken by the majority. The majority’s reliance on the good-faith rule of United States v. Leon, 468 U.S. 897 (1984), is misplaced. We have had an opportunity to apply the Leon good-faith exception in Pyle v. State, 314 Ark. 165 (1993), and we stated that every fact in an affidavit need not necessarily be correct, but “ ‘must be truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.’” Id. (citing Franks v. Delaware, 438 U.S. 154 (1978)). It is not suggested, nor could it be maintained that Clemmons’s affidavit was truthful, or that he believed his affidavit to be accurate. Officer Clemmons admitted during the suppression hearing that he was aware his affidavit misrepresented the true state of affairs.

The majority responds by relying on suppression hearing testimony of Officer Clemmons and Judge O’Bryan that they knew the affidavit and warrant were false, but they also knew that no search would take place until after delivery. This, the majority holds, demonstrates that there was good faith. Such an outcome defies logic. The affidavit and the warrant were both false. Officer Clemmons knew they were false and the magistrate knew they were false. The majority, however, posits that we may look to information outside the affidavit to determine good faith, citing for support United States v. Martin, 833 F.2d 752 (8th Cir. 1987).

Martin and Leon do little to support the majority’s holding. In Leon, officers had served a search warrant on the good-faith belief that it was validly issued by the magistrate, but the affidavit establishing probable cause was insufficient. In Martin, the court was also faced with an insufficient affidavit. Nowhere in the Martin or Leon opinions is it suggested that the affidavits in question were false. Moreover, the court in Martin noted that the sufficiency of the affidavit in that case was a close question on which courts could disagree. Therefore, the court stressed that “[although we may not look to facts outside of the affidavit to determine probable cause, when assessing good faith we can and must look to the totality of the circumstances including what [an] officer . . . knew but did not include in his affidavit.” Martin, supra (citations omitted).

The majority unwisely extends the Martin holding to allow a court to go beyond an affidavit not merely to supplement an insufficient affidavit with “what [an] officer . . . knew but did not include in his affidavit,” but also to replace a false affidavit and an invalid warrant with unsworn testimony. The Martin court correctly notes that an examination of information outside the affidavit is warranted to determine good faith “where there [have] been no material false statements or misrepresentations in the affidavit.” That is exactly what occurred in this case.

We have long held that an affidavit must be supported by sworn testimony. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985); Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977); Lunsford v. State, 262 Ark. 1, 552 S.W.2d 646 (1977). Moreover, our Rules of Criminal Procedure specifically state that the application for a search warrant “shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer . . . .” Ark. R. Crim. P. 13.1(b) (emphasis added). The majority’s holding relegates this sworn-testimony requirement to a position of insignificance. Under the majority’s approach, an officer may knowingly present a false affidavit and obtain an invalid warrant, but so long as he tells the magistrate what will actually take place he has acted in good faith when the warrant is eventually executed. Such an outcome is illogical, unwise, and contrary to the law.

Furthermore, Martin states that under certain circumstances suppression remains the appropriate remedy where the warrant and affidavit are so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Martin, supra. There can be good faith only where an officer has reasonably relied upon a magistrate’s determination of probable cause. State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991).

The only information on which the probable-cause determination could be made in this case is the unsworn testimony of Officer Clemmons. In attempting to find good faith, the majority’s holding in essence allows a court to look outside a false affidavit and establish an entirely independent basis on which to hinge probable cause for a warrant that is “so lacking in any indicia of probable cause that it was rendered invalid.” Martin, supra.

For the above reasons, I must respectfully dissent.

Newbern, J., joins in this dissent.

       While the name Samms appeared on the package, the address was indisputably Chuck Sims’s.

       Other instances when evidence obtained under a search warrant may be suppressed include when an officer’s reliance on the magistrate’s probable cause determination was unreasonable, judged by an objective standard, and when the magistrate who issued the warrant departed from a neutral stance. U.S. v. Livesay, 983 F.2d 135 (8th Cir. 1993).


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Thelma VINCENT v. PRUDENTIAL INSURANCE BROKERAGE
    97-1318
    970 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Gary Eubanks & Associates, by: Robert S. Tschiemer and Within Gary Holt, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, PLLC, by: Mark N. Halbert, for appellee.
   Tom Glaze, Justice.

This case brings into issue an exclusionary clause in a hospitalization indemnity policy that appellant Thelma Vincent obtained from appellee Prudential Insurance Brokerage in 1969. On May 13, 1996, Vincent entered the hospital where she stayed until June 19, 1996. Because Vincent was Medicare eligible and the health providers were paid under the Medicare program, Prudential denied that it owed Vincent any benefits under her policy. Vincent filed suit against Prudential, alleging breach of contract, but the circuit court dismissed her suit with prejudice upon granting Prudential’s motion for summary judgment. Vincent appeals, raising three points for reversal.

Vincent’s arguments all focus on the exclusionary clause contained in Prudential’s policy, which reads as foEows:

This policy does not provide benefits with respect to:
5. Hospital confinements, convalescent nursing home confinements, services, or supplies to the extent to which they are provided for under any national or state government program or law that is not restricted to the employees of such government or to such employees and their dependents. (Emphasis added.)

First, Vincent cites Harford Fire Ins. Co. v. Carolina Cas. Ins., 52 Ark. App. 35, 914 S.W.2d 324 (1996), in support of her claim that the foregoing language is ambiguous and should be construed against the insurer and in her favor as the insured. She argues that the words “provided for” do not include a situation where the government “paid for” medical services. Instead, Vincent urges “provided for” could include a situation where the government provides services for veterans at veterans’ facilities. These added terms and suggested meaning that Vincent attempts to engraft onto the above clause fail to consider the clear language contained in the exclusionary provision which restricts payment of benefits for medical services or supplies to the extent those same benefits are provided by the government. This provision unquestionably provides for the reduction or exclusion of benefits under the policy in the event those benefits are provided by a government program like Medicare.

When reviewing insurance policies, this court adheres to the long-standing rule that, where terms of the policy are clear and unambiguous, the policy language controls, and absent statutory strictures to the contrary, exclusionary clauses are generally enforced according to their terms. Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997). We have also found it unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. Id. In other words, the terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid. Id. Because no ambiguity exists in the exclusion provision here, and it is clear that the policy is intended to reduce or exclude benefits when Medicare benefits have been provided and paid, we must reject Vincent’s argument.

Now, we turn to Vincent’s second point where she asserts the policy exclusionary clause is invalid because it conflicts with Ark. Code Ann. § 23-85-132 (Repl. 1992). This argument, too, must fail. Section 23-85-132 provides in relevant part, as follows:

Reduction of benefits to other insurance contracts prohibited.
(a) No contract of individual disability insurance sold, delivered, or issued for debvery or offered for sale in this state, directly or indirectly providing indemnity, services, or cash to an individual as a result of hospitalization, . . . shall contain a provision, reducing the benefit which would otherwise be payable to the individual in the absence of other insurance, if the reduction of benefits is due solely to the existence of one (1) or more additional contracts providing benefits to that individ ual in the form of indemnity, service, cash, or any other things of value, whether the same insurer or another insurer. (Emphasis added.)

Vincent submits that § 23-85-132 is intended to protect Arkansas citizens from an insurer offsetting its obligations to pay-benefits because an insured has “other insurance” for which the insured had contracted and paid premiums. In sum, Vincent argues that the policy exclusion here violates the intent of § 23-85-132, and that the trial court should have held Medicare was another insurance contract whose benefits under the statute would not reduce or exclude benefits to which Vincent was entitled under her Prudential policy.

The simple answer to Vincent’s contention is that Medicare is not “other insurance.” Instead, Medicare is a statutory right and constitutes federal financial assistance. See United States v. Baylor University Medical Ctr., 736 F.2d 1039 (5th Cir. 1984); Muller v. Hotsy Corp., 917 F.Supp. 1389 (N.D. Iowa 1996); and Barney v. Holzer Clinic, Ltd., 110 F.3d 1207 (6th Cir. 1997). If the General Assembly had intended to include Medicare or government programs as another insurance contract under § 23-85-132, it could have easily so provided, but it did not.

Finally, Vincent contends that an insurance company may not contract with its insured in a manner violative of public policy, and that our court should analyze § 23-85-132 in light of public policy concerns when scrutinizing the exclusionary clause in this case. In this vein, Vincent argues that, by the enactment of § 23-85-132, Arkansas’s public policy was changed to disallow an offset of benefits under other insurance policies, as noted in her second argument hereinabove.

The public policy of this state is found in its constitution and statutes, Wal-Mart Stores, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), but here Vincent fails to cite any such statutory or constitutional provision that would make Medicare exclusion clauses void as against public policy. Instead, she cites only § 23-85-132, which we have already pointed out is inapplicable to benefits provided by Medicare. Vincent refers to several cases where this court has held that certain insurance policy provisions, which reduced benefits to the insured, were violative of public policy; however, those cases involved different insurance coverage and statutes not in issue here. See Shepherd v. State Auto Property & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); O’Bar v. M.F.A. Ins. Co., 275 Ark. 247, 628 S.W.2d 561 (1982); Travelers Ins. Co. v. National Farmers Union Property & Cas. Co., 252 Ark. 624, 480 S.W.2d 585 (1972). Consequently, we find those cases are not controlling here, nor are they instructive when reviewing the validity of the indemnity hospitalization policy now in issue before us.

Because we find Vincent’s arguments without merit, we affirm the trial court’s ruling granting Prudential’s summary-judgment motion and dismissing Vincent’s complaint.

       The policy provided payment of $30.00 per day plus $300.00 in miscellaneous expenses during a hospitalization.

       Section 23-85-132(b) further provides as follows:
      (b) No contract of individual disability insurance sold, delivered, or issued for delivery or offered for sale in this state providing disability income coverage shall contain any provision for the denial or reduction of benefits because of the existence of other insurance, except as provided in § 23-85-122 or any coverages approved by the commissioner pursuant thereto and except that the benefits may be reduced to offset disability income benefits payable under the federal Social Security Act.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Dewayne Dee DILLARD v. STATE of Arkansas
    CR 97-1298
    971 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998
    [Petition for rehearing denied July 9, 1998.]

      John W. Settle, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Dewayne Dee Dillard appeals the judgment of the Sebastian County Circuit Court convicting him of two counts of sexual abuse in the first degree of two minor girls and sentencing him to eight years’ imprisonment and a $10,000 fine for each count. The Arkansas Court of Appeals certified this appeal to us; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5). Appellant raises one point on appeal concerning the trial court’s denial of his motion to sever the two charges. We affirm.

On October 11, 1996, Appellant, age thirty-five, was arrested and subsequently charged with two counts of first-degree sexual abuse of two girls, S.S., who was then thirteen years old, and T.L., who was then fifteen years old. The alleged acts of sexual abuse occurred at least four times between June 19, 1996, through August 2, 1996. An amended information charged Appellant with rape, as to S.S., by engaging in sexual intercourse with a person less than fourteen years old pursuant to Ark. Code Ann. § 5-14-103 (Repl. 1993), and the first-degree sexual abuse of T.L., by engaging in sexual contact with another person by forcible compulsion under Ark. Code Ann. § 5-14-108 (Repl. 1993).

During the trial below, S.S. testified that Appellant was her mother’s boyfriend, and that he had asked S.S. to have sexual intercourse with him well over five times prior to June 19, 1996. She stated that on each occasion, Appellant told her that it would only take three minutes and that it would not hurt. S.S. further testified that Appellant had offered her $40.00 on every occasion, if she would let him “st[i]ck it in.” S.S. testified that because her mother did not believe her allegations about Appellant, she had planned to run away from home by stealing a truck. S.S. testified that on June 19, 1996, Appellant came over to her family’s apartment at about 12:30 p.m. S.S. explained that she had called Appellant to drive her and her friend, N.S., to the location of her grandmother’s boyfriend’s truck. S.S. stated that when Appellant arrived, she and N.S. were at the apartment, and that while N.S. was downstairs, Appellant pulled S.S. into an upstairs bathroom, threw her onto the counter, pulled off her panties, and grabbed her breasts. S.S. stated that Appellant put his hand on her mouth while he “stuck his penis in [her] private.” N.S. testified that S.S. was upset when she came back downstairs and that S.S told her that Appellant had tried to touch her. N.S. stated that S.S. did not tell her that Appellant had raped her until a later date.

T.L. testified that Appellant was a friend of her parents and had visited their home about two times per week during the summer of 1996 from around July 4 through the first week of August. T.L. further testified that Appellant talked “perverted” to her “a lot” when he visited her home and asked her to have sex with him. T.L. also testified that each time Appellant asked her to have sex with him, he told her that it would only take three minutes, and that it would not hurt. T.L. further testified that Appellant made lewd remarks, admiring her breasts and buttocks, and also grabbed her breasts at least three times, using “his whole hand on [her] breastf.]” The abuse happened once in Appellant’s car, once at the laundromat, and once inside T.L.’s family’s apartment as she exited the balcony. T.L. further testified she had informed her parents about the incidents, and that they later confronted Appellant. T.L. also testified that Appellant had threatened to rape her if she would not have consensual sex with him. T.L. stated that, contrary to Appellant’s testimony, she did not have a vendetta against Appellant.

Appellant denied committing any of the alleged acts, and further stated that S.S. made up the allegations because she hated him. He claimed that S.S. had frequently called the police about him and had once attempted to smash his head with a boulder when he was asleep. When asked why he responded to S.S.’s call to help her get the truck, despite her animosity towards him, Appellant replied that he just wanted to get S.S. out of the house. When asked why he believed T.L. would lie about him, Appellant replied that T.L. was angry about him shooting fireworks with her boyfriend without inviting her.

Sergeant Bill Holohan, of the Fort Smith Police Department, testified that he investigated the allegations and interviewed Appellant and the victims after the Department of Human Services (DHS), Children and Family Services brought the case to his attention. Mary Pat Parnell, the DHS case manager, was present when Holohan interviewed Appellant. Both Holohan and Parnell testified that in the interview, Dillard denied touching S.S., called her gross, and said that he would not “bother himself with her.” Both Holohan and Parnell testified that when Appellant was asked about T.L., he responded that he hardly ever saw her. Parnell testified that Appellant tried to change the subject when he was asked about T.L., and also stated that T.L. had a boyfriend.

For his sole argument on appeal, Appellant argues that the trial court erred when it denied his motion to sever the two offenses. Prior to trial and before the close of the evidence, Appellant moved to sever the two charges and for a mistrial, arguing that the trial court had erroneously joined the two charges on the sole basis that they were the same crime or of a similar nature. He contends they were not part of a similar plan or scheme. Appellant argued that the two offenses should have been severed under Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994), in which the appellant successfully argued that the trial court abused its discretion in refusing to sever five unrelated offenses against five individual female victims in different locations.

The trial court ultimately denied Appellant’s motion, relying on Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), in which this court held that where the charge involves “unnatural sexual acts,” proof of prior similar acts is admissible to prove the defendant’s “depraved sexual instinct.” Id. at 335, 266 S.W.2d at 807.

Arkansas Rule of Criminal Procedure 22.2 provides in relevant part:

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

The decision of whether to grant a defendant’s motion for severance of two or more offenses lies within the trial court’s discretion, and this court will not reverse absent an abuse of discretion. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Where, however, the offenses are joined solely on the basis that they are of the same or similar character, a defendant has an absolute right to their severance. Id. Rule 22.2 provides further that the trial court should grant a motion for severance if necessary for a fair trial of each offense. We consider evidence of proximity in time and space in our determination of whether a single scheme or plan existed to preclude severance of the separate charges. Passley, 323 Ark. 301, 915 S.W.2d 248. See also Gillie v. State, 305 Ark. 296, 305, 808 S.W.2d 320, 324 (1991) (affirming the trial court’s decision not to sever offenses based “on a series of acts connected together . . . ‘when the offenses occurred close together in time and place.’” (citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990))).

This court has consistently allowed an exception to Rule 22.2 whenever the facts needed to prove the separate offenses are necessary for each trial, and the evidence is admissible to prove a plan, scheme, motive, or state of mind under A.R.E. Rule 404(b). Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). No abuse of discretion lies when the trial court denies severance of multiple charges under those circumstances. Richardson, 314 Ark. 512, 863 S.W.2d 572. Rule 404(b) bars admission of prior offenses “to prove the character of a person in order to show that he acted in conformity therewith,” but allows admission of such offenses to prove other purposes, including, but not limited to, “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

In Richardson, 314 Ark. 512, 863 S.W.2d 572, this court recognized that evidence of prior sexual abuse of children is admissible under Rule 404(b). In Lukach, 310 Ark. 119, 835 S.W.2d 852, this court held that the trial court did not abuse its discretion in refusing the appellant’s motion to sever separate charges of rape committed against the appellant’s two nieces, ages seven and nine, where the offenses occurred within a month of each other and were committed in a similar manner. The Lukach court explained further that where the facts necessary to prove each offense would be necessary in each trial to prove a plan, scheme, motive, or state of mind, there is no abuse of discretion in refusing to sever the trials.

This court has distinguished between Rule 404(b) and Rule 22.2, explaining that:

[T]he Rule 404(b) exceptions go beyond a plan or scheme and include any independently relevant proof such as motive, opportunity, intent, absence of mistake, and other categories. . . . The focal point of a Rule 404(b) analysis is whether the proof of the other crime, wrong, or act is relevant, not whether it was part of a single plan or scheme.

Lindsey v. State, 319 Ark. 132, 140, 890 S.W.2d 584, 589 (1994) (emphasis added). See also Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). We conclude that such evidence would be independently admissible under Rule 404(b).

In Free v. State, 293 Ark. 65, 71, 732 S.W.2d 452, 455 (1987), this court affirmed the admission of evidence of similar conduct with the same child or other children in the home “when it is helpful in showing ‘a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.’” (Emphasis added.) We recently explored the meaning of “intimate relationship” in Hernandez v. State, 331 Ark. 301, 962 S.W.2d 756 (1998), where we observed that the victims do not have to live in the same home with the accused to have an intimate relationship. In Hernandez, the State’s witness testified that her family allowed her to spend the night at the accused’s home; thus, we held that there was an intimate relationship between the witness and the accused. We explained that A.R.E. Rule 403 requires that the relevance of the evidence is measured against the risk of unfair prejudice. Id. Likewise, baby sitters and others entrusted with the care of young children may form an intimate relationship with children. See, e.g., Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991).

In Morgan, the sixty-three-year-old appellant denied that he had raped the two victims, ages twelve and seven. This court upheld the admission of four other girls’ testimony about the appellant’s prior sexual conduct toward them, which the appellant had also denied. The appellant testified that he considered the four girls as granddaughters and gave them money to buy things, and that the girls made up the sexual allegations because he had ceased giving them money. The four girls, however, testified that the appellant gave them money after their sexual encounters with him. This court again recognized that such evidence is admissible under Rule 404(b), if it is independently relevant to demonstrate motive, intent, or plan, as well as a “depraved sexual instinct” set out in Alford, 223 Ark. 330, 266 S.W.2d 804. This court further explained that the girls’ testimony was particularly relevant, because the accused had expressly denied having any sexual contact with the girls.

Appellant relies on his broad interpretation of Clay, 318 Ark. 550, 886 S.W.2d 608, to support his argument that the trial court erred in denying his motion to sever. The facts of the Clay case are distinguishable from those here. Clay was charged at age eighteen and subsequendy convicted of five unrelated sexual assaults against five individual females, who ranged from three to five years younger than the accused. In reversing the trial court’s denial of severance, this court adhered to Rule 404(b), which generally bars admission of prior offenses to prove that the defendant acted in conformity therewith. This court reasoned that prejudice almost inevitably results when a defendant is forced to testify about one crime while on trial for another offense, but also distinguished Clay’s case from situations involving the “depraved sexual instinct” exception under Alford, 223 Ark. 330, 266 S.W.2d 804. This court reasoned that Clay’s acts did not show that the accused had a depraved sexual tendency toward a particular act with a person or class of persons and concluded that because the alleged offenses had occurred over a one-year period in various locations, involved different crimes with different culpable mental states, and were committed in dissimilar manners, there was no overall proof of intent, plan, or lack of mistake.

Here, the evidence supports the trial court’s denial of severance. The thirty-five-year-old Appellant obtained access to both young female victims through his relationships with their respective parents; he stayed with S.S.’s mother off and on, and visited T.L.’s home frequently during the time frame at issue. Additionally, T.L. had lived with S.S.’s mother and Appellant for a brief period after T.L.’s house had burned. As such, we conclude that Appellant formed intimate relationships with both victims. The similarity of the manner in which Appellant committed the acts is remarkable. Both victims testified that Appellant made sexual advances toward them and grabbed their breasts on numerous occasions. S.S. testified that Appellant raped her after she had refused his ongoing demands for sexual intercourse. T.L. testified that Appellant threatened to rape her if she would not consent to sex. Both victims testified that he told them that sex would not hurt and would only take about three minutes. Moreover, the overlapping time frame of june 19, 1996, through August 2, 1996, also weighs in favor of proving Appellant’s intent, scheme, or plan.

Because Appellant’s conduct was remarkably similar toward both victims with whom he enjoyed an intimate relationship, we conclude that the evidence from each victim would be relevant and admissible in separate trials. Thus, we hold that the trial court did not abuse its discretion in denying the motion to sever the offenses.

Affirmed.

Brown, J., concurs.

Newbern and Imber, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion states that the severance of criminal offenses for trial is a matter within the discretion of the trial court but then correctly recites Ark. R. Crim. P. 22.2 and states that “when. . .the offenses are joined solely on the basis that they are of the same or similar character, a defendant has an absolute right to their severance,” citing Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). The opinion then proceeds to point out how “remarkably similar” the offenses in question appear to have been, and that discussion is presumably in support of the trial court’s refusal to sever the offenses.

One pillar of the majority opinion is, I take it, that there is an exception to Rule 22.2 when the evidence to be used by the State to prove one of the offenses is the same as that to prove the one from which it is sought to be severed, “and the evidence is admissible to prove a plan, scheme, motive, or state of mind under A.R.E. 404(b).” And yet these offenses occurred with different alleged victims, at different times, and at different places. There is no evidence whatever that each alleged offense involved a plan, scheme, motive, or state of mind relevant to the other.

Another pillar is the “intimate relationship in the home” recitation. That one simply will not hold. While evidence of alleged previous sexual events between Mr. Dillard and either of the alleged victims might be admissible pursuant to that exception to Rule 404(b), it furnishes no basis whatever for refusal to sever the alleged offenses. The same is true of the “depraved sexual instinct” or “pedophile” exception to Rule 404(b).

If our case law and Rule 22.2 are interpreted as the majority suggests, there is a direct conflict between the absolute right to severance when the basis for joinder is the “same or similar character” of the offenses charged and the “exceptions” allowing evidence of similar offenses absent a showing of a “single scheme or plan.”

We attempted to sort all of this out in Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994). We went to great lengths to discuss and describe the meaning of the words, “single scheme or plan,” and we concluded that the five separate sexual incidents allegedly committed by Mr. Clay with five girls, all of whom were 14 or younger, did not qualify as a “single scheme or plan.” We distinguished Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), and the “depraved sexual instinct” cases. We summarized the result as follows:

In summary, the alleged offenses occurred over a twelvemonth period, involve different charges, and were committed in different manners, against different victims, at different locations. They did not involve “similar acts with the same child or other children in the same household . . . showing ‘a proclivity toward a specific act with a person or class of persons.’ ” Free, 293 Ark. at 71, 732 S.W.2d at 455. There was no allegation or proof that the five offenses were planned in advance as part of a single scheme. There was no allegation or proof these crimes were part of one criminal episode. Since these five crimes were of a similar character, but were not part of a single scheme or plan, the appellant had “a right to a severance of the offenses.” A.R.Cr.P. Rule 22.2(a) (emphasis added). In addition, the culpable mental state required to be proved was different for some of the crimes. Both the severance rule and our cases mandate reversal and remand for new trials.

Even the penultimate sentence of that summary applies here, as the two charges required substantially different evidence for proof of guilt. Mr. Dillard was charged in the amended information, count one, with unlawfully and feloniously engaging in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age, Ark. Code Ann. § 5-14-108(a)(4). In count two, he was charged with unlawfully and feloniously engaging in sexual contact with another person by forcible compulsion. Ark. Code Ann. § 5-14-103(a)(1).

The Clay decision, in my view, drew away much of the confusion I have observed in our previous decisions, and it properly described the limits on the “exceptions” to Rule 22.2 and Rule 404(b). With the majority opinion in this case, we are dumped back into the swamp.

I respectfully dissent.

Imber, J., joins in this dissent.


author: Donald L. Corbin, Justice.

text:
    Joel Keith TABOR v. STATE of Arkansas
    CR 97-467
    971 S.W.2d 227
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Brenda Horn Austin, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Joel Keith Tabor entered conditional guilty pleas to the offenses of delivery of cocaine, conspiracy to deliver cocaine, and conspiracy to deliver marijuana. He was sentenced by the Boone County Circuit Court to twelve years’ imprisonment, with imposition of six years suspended, for the two cocaine charges and six years’ imprisonment for the marijuana charge. Pursuant to A.R.Cr.P. Rule 24.3, Appellant reserved the right to appeal the trial court’s denial of his motion to suppress the statements given by him to police officers. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(7), as this is a second appeal following an appeal decided in this court. See Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). For reversal, Appellant argues that the trial court erred in denying his motion to suppress, as he contends he had been granted immunity in exchange for his statements. We find no error and affirm.

Appellant was arrested for the foregoing charges on April 14, 1994, and subsequently filed a motion to suppress statements given by him to police during October and November of 1991 and January of 1994. During the interviews, Appellant admitted to participating in drug transactions involving the sale of cocaine and marijuana. Appellant later claimed that he was entitled to immunity and that the statements could not be used against him. A suppression hearing was conducted on February 13, 1995, after which the trial court denied the motion. The trial court ruled that Appellant had not been granted immunity or promised anything in exchange for his incriminating statements to police officers.

On May 12, 1995, Appellant pleaded guilty to the charges and appealed the suppression ruling to the Arkansas Court of Appeals. The State moved to dismiss the appeal because Appellant had failed to reserve his right to appeal from his guilty pleas as required by Rule 24.3. The court of appeals accordingly dismissed the appeal on January 17, 1996. Appellant then filed a petition to reinstate the appeal on the grounds that the parties had entered into a stipulation to supplement the record to reflect Appellant’s intention to enter his guilty pleas on the condition that he would be allowed to appeal the ruling on the suppression motion. The court of appeals, in a divided decision, remanded the case to settle the record. See Tabor v. State, 52 Ark. App. 251, 918 S.W.2d 189 (1996). This court granted the State’s petition to review that decision, and subsequently dismissed the appeal for want of jurisdiction for Appellant’s failure to comply with the express terms of Rule 24.3(b). Tabor, 326 Ark. 51, 930 S.W.2d 319.

Following this court’s dismissal of the appeal, Appellant successfully petitioned the trial court to withdraw his guilty pleas pursuant to A.R.Cr.P. Rule 26.1. He then entered conditional guilty pleas to the same charges on January 10, 1997, this time reserving in writing his right to appeal the trial court’s ruling on his motion to suppress in compliance with Rule 24.3. A judgment and commitment order was filed of record on February 12, 1997, and a timely notice of appeal was filed on February 18, 1997.

For reversal, Appellant argues that the trial court erred in denying his motion to suppress the statements he gave to police. He contends that the statements should have been suppressed because he had been previously granted immunity in exchange for his agreement to assist police officers in making narcotics arrests. He contends further that because he was granted immunity from prosecution by the United States Attorney for the Western District of Oklahoma, he was entitled to equitable immunity in Arkansas. Correspondingly, he argues that the trial court erred in finding that he voluntarily gave the statements after having been advised of his Miranda rights.

We do not address the voluntariness argument as a separate point because Appellant failed to raise this issue below, either in his motion to suppress or at the suppression hearing. This court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Thus, the sole issue before us is whether the trial court erred in finding that Appellant was not acting under a grant of immunity when he made the incriminating statements.

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, viewing the evidence in a light most favorable to the State, and we reverse only if the ruling is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996). The credibility of witnesses who testify at a suppression hearing about the circumstances surrounding the appellant’s in-custody confession is for the trial judge to determine, and we defer to the superior position of the trial judge in matters of credibility. Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994); Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991). Conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

The record reflects that Sergeant Sam Martin, of the Harrison Police Department, and Special Agent Lonnie Cox, of the Federal Bureau of Investigation, interviewed Appellant on three occasions, October 8, 1991, October 11, 1991, and November 8, 1991. Trooper David Lafferty, of the Arkansas State Police, and Chief Deputy Jim Carr, of the Marion County Sheriffs Office, subsequently interviewed Appellant on January 13, 1994. The record reflects further that prior to being questioned in three of the four interviews, on October 8, 1991, November 8, 1991, and January 13, 1994, Appellant was advised of his Miranda rights from a statement-of-rights form, which he signed, acknowledging that he understood his rights. The transcripts of those three taped interviews were admitted into evidence along with the rights forms. A fourth interview, which occurred on October 11, 1991, was not tape recorded and the record does not indicate whether Appellant waived his rights by signing a rights form on that occasion.

During the suppression hearing, the State did not dispute that Appellant had received a letter of immunity from the United States Attorney for the Western District of Oklahoma. The letter, dated April 1, 1991, reflects:

The United States Attorney’s Office, Oklahoma City, Western District of Oklahoma, is investigating numerous federal violation[s], including narcotics activities of persons known to you and who are currently being investigated by the Federal Bureau of Investigation.
It is our understanding that you are knowledgeable regarding these activities, and are willing to cooperate fully with the federal government in this matter.
Accordingly, the agreement is that in return for your total cooperation, your truthful testimony, consensual monitoring, and your full help in developing evidence against these persons or their associates and others who are similarly involved in these activities, the United States Attorney’s Office of the Western District of Oklahoma will not prosecute you for any federal offense related to the aforementioned illegal activities. Any violation of this agreement could result in the presentation of charges to the Grand Jury for your participation and involvement in these activities.

The letter further reflects that the offer of immunity in exchange for cooperation was accepted and agreed to on April 17, 1991, and was signed by Appellant.

It is Appellant’s contention that the federal immunity agreement was arranged by Agent Cox and that, pursuant to that agreement, Cox required him to cooperate with Sergeant Martin. He argues that because of this connection between Agent Cox and Sergeant Martin, he was entitled to assume that the immunity from federal prosecution in Oklahoma also applied to the statements he made in Arkansas. He asserts that his reliance on the federal immunity agreement was justified by the warnings and admonitions given by the officers, urging him to “come clean” and tell them everything he knew about local drug deals. He asserts further that it is evident from the text of the interviews that he was being required to give his full cooperation to the local authorities. As such, he claims that he is entitled to immunity for equitable reasons.

The granting of immunity is not a constitutional right, but merely one authorized by statute. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997) (citing Fears v. State, 262 Ark. 355, 556 S.W.2d 659 (1977)). The reason to grant immunity is to aid in the prosecution of criminals by inducing witnesses to testify against them. Id. It is within the prosecutor’s discretion to grant immunity when it is in the public’s interest to do so. Id. In the absence of a statutory provision for the grant of immunity, it is within the exclusive discretion of the prosecuting attorney to determine whether a person will be granted immunity in exchange for his or her testimony. Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977). Where immunity is granted pursuant to statute, the claimant must show that his or her right to immunity falls within the parameters of the statute. Id. Despite the fact that a claimant may not be entitled to statutory immunity, he or she may still have a claim for relief on equitable principles. Id. The burden of proving the existence of an immunity agreement and compliance with it rests with the claimant. Young v. State, 316 Ark. 225, 871 S.W.2d 373 (1994).

There are two statutory provisions in Arkansas specifically authorizing grants of immunity. Arkansas Code Annotated § 16-43-605 (Repl. 1994) provides for the grant of immunity in general:

No prosecuting attorney shall grant immunity until he has applied for and obtained in each case a written order from the judge of the circuit court approving the grant of immunity. No such immunity shall be granted by a prosecuting attorney until after the individual has declined to answer questions or has requested immunity before answering questions.

Likewise, Ark. Code Ann. § 5-64-706 (Repl. 1997) provides for immunity in exchange for the giving of evidence concerning violations of the Uniform Controlled Substances Act:

(a) The prosecuting attorney of any judicial district in this state or any grand jury properly convened according to law, with the approval of the circuit judge, shall have the authority to grant immunity from criminal prosecution with respect to matters revealed by the testimony of anyone giving evidence concerning a violation of the Uniform Controlled Substances Act, subchapters 1-6 of this chapter. However, immunity shall not extend to pegury committed in the testimony.
(b) No prosecuting attorney shall grant immunity until he has applied for and obtained in each case a written order from the judge of the circuit court approving the grant of immunity.
(c) No such immunity shall be granted by a prosecuting attorney until after the individual has declined to answer questions, or has requested immunity before answering questions.

It is evident from the record in this case that Appellant does not qualify for immunity under either of the two foregoing statutes. There was never any agreement to grant Appellant immunity made by the prosecuting attorney in Boone County. Moreover, even had there been such an agreement, it would not have been enforceable under either statute without the written approval of the circuit court. Accordingly, we must view Appellant’s claim as one of equitable immunity only.

On the subject of equitable immunity, this court has written:

[D] etermination of a claimant’s equitable entitlement to immunity, when opposed by the prosecuting attorney, should lie within the sound judicial discretion of the trial court, which should see that the public faith pledged by the public prosecutor, in the furtherance of justice, is kept by giving due regard to promises and inducements made and held out by him, when the claimant has fulfilled his agreement in good faith. It is appropriate to consider the extent of the claimant’s performance of the bargain. In doing so, it should be remembered that the primary purpose of the exchange is to facilitate the prosecution of crime, not to grant immunity.

Hammers, 261 Ark. at 599, 550 S.W.2d at 439 (citations omitted) (footnote omitted). In Hammers, upon which Appellant relies, there was no dispute by the prosecutor that an agreement of immunity had existed at one time. There, the prosecutor had attempted to revoke the grant of immunity, contending that the appellant had not fulfilled her part of the agreement. Here, however, Appellant has not even established that there ever was an immunity agreement between himself and the Boone County prosecutor. Our review of the evidence leads us to the conclusion that the trial court did not abuse its discretion in refusing to recognize Appellant’s claim of immunity based upon equitable principles.

Sergeant Martin testified that at the time he had decided to interview Appellant about the local Harrison drug trade, he was aware of prior contact between Appellant and Agent Cox. Martin stated that he first became aware of Appellant when his name came up during Martin’s investigation of Danny Forrest and Larry Howard. Martin stated that he was not sure how he discovered the relationship between Cox and Appellant, but that he had talked with Cox about interviewing Appellant. Martin stated that Cox then told him that he would attempt to get Appellant to agree to talk to Martin, but that there were restrictions on what Martin could discuss with Appellant. Martin stated that Cox told him that Appellant was involved in some cases in Oklahoma, but that Martin could not get into any of that during the interview. Martin stated that there was never any discussion about the exact nature of the relationship between Cox and Appellant with respect to Appellant providing Cox with information. Martin stated that the only thing he understood about the relationship between Cox and Appellant was that it was an area that he could not discuss with Appellant.

During the course of the October 8, 1991 interview, Appellant admitted to participating in drug transactions involving the sale and distribution of cocaine, occurring within the previous ten days, in which Appellant stated that he had sold cocaine for Howard. During the October 11, 1991 interview, Appellant described an attempted transaction in May or June of 1991, involving himself, Howard, Forrest, and Flynt Ray, to sell a large quantity of marijuana. Appellant indicated that he had received $1,000 for attempting to set up that deal. Martin testified that Appellant’s participation in those drug sales was not sanctioned by him or the FBI. Martin stated that although Agent Cox was present during the interviews, Cox did not indicate in any way that Appellant’s participation in those drug transactions was done on behalf of the federal government. Martin stated that neither he nor Cox threatened Appellant or promised him any leniency in exchange for his full cooperation. Martin indicated, however, that he told Appellant that if he would cooperate with him in the investigation of Forrest, Howard, and Ray, Martin would inform the prosecuting attorney about such cooperation and would see if something could be worked out to help Appellant, ostensibly on any local charges that he might face. Martin explained that during the interviews, he was attempting to recruit Appellant to assist the officer in making drug buys, but that Appellant did not cooperate with him after the interviews and was never signed up as a cooperating individual. Martin stated that there was no agreement between him and Appellant that would have authorized Appellant to buy or sell drugs on behalf of the government, and that Appellant did not, at any time during the interviews, indicate that he believed that he was acting on behalf of Martin or any other governmental agency.

Trooper LafFerty testified about interviewing Appellant on January 13, 1994. LafFerty stated that the interview took place at the Marion County Sheriffs Office in Chief Deputy Carr’s office. LafFerty stated that he and Carr had decided to interview Appellant in preparation of an upcoming trial for Flynt Ray. Specifically, Lafferty stated that they wanted to ask Appellant about Ray’s access to a certain telephone in a duplex owned by Appellant. Lafferty stated that they were not interviewing Appellant for the purpose of getting him to make incriminating statements. Lafferty indicated, however, that they elected to advise Appellant of his Miranda rights because Lafferty had an active investigation file on Appellant. Lafferty explained that his investigation file on Appellant was separate and distinct from the case against Ray, for which they were interviewing Appellant. Lafferty stated that Appellant understood his rights, and that he agreed to speak to the officers without an attorney.

Near the beginning of the interview, Chief Deputy Carr informed Appellant that he was not a suspect in any investigation in Marion County, and that he wanted to limit the interview to Appellant’s knowledge of Ray, the “target of the investigation.” Lafferty testified that Carr then began to question Appellant about Ray having threatened him over some money owed for a drug deal. Lafferty stated that, in response, Appellant claimed that he was cooperating with the FBI and the Harrison Police Department, and that Appellant then proceeded to discuss the same attempted marijuana transaction involving Howard, Forrest, and Ray, which he had earlier divulged to Sergeant Martin and Agent Cox. Lafferty stated that there was no discussion of any agreement in exchange for Appellant’s statement that day, and that neither he nor Carr promised Appellant anything in exchange for his statement. As to Appellant’s claim that he was working for the FBI and the Harrison Police Department, Lafferty stated that he was not aware that Appellant was working for those agencies. Lafferty stated, however, that he had previously been informed that Appellant had assisted the FBI in a narcotics investigation in Oklahoma. Appellant’s previous assistance in Oklahoma was of no apparent concern to Lafferty, as he explained that he was not working on anything involving Oklahoma.

Appellant testified that he had received a letter of immunity from both the federal authorities in Oklahoma and the local authorities in Arkansas. When asked on cross-examination about proof of the alleged letter of immunity in Arkansas, Appellant conveniently stated that the letter had been in his car, and that since the State had impounded the vehicle, he did not have the ability to retrieve the letter. Appellant did, however, acknowledge that his attorney had access to the car and could have retrieved such letter. Appellant also stated that the $1,000 that he had received in May or June of 1991 was really for rent that Ray had owed him, not for participating in a drug deal, as he had previously told Sergeant Martin and Agent Cox.

Notably missing from the hearing was the testimony of Agent Cox. The record reflects that the suppression hearing was adjourned to a later date in order to obtain Agent Cox’s testimony. That testimony was apparently never obtained prior to the time the trial court ruled on the motion. Despite the lack of live testimony from the agent, Cox’s statements made during the course of the October 8, 1991 interview are most telling on the issue of Appellant’s claim of equitable immunity. Cox stated in no uncertain terms that Appellant had not been cooperating with him as previously arranged, and that Appellant had been “freelancing” by purchasing and then selling cocaine in situations other than controlled drug buys. Cox stated: “We had an agreement, me and you. But you broke that agreement and you really haven’t come clean with me[.]” Presumably, the agreement that Cox referred to as broken by Appellant was the federal immunity agreement. The transcript of that interview is, however, completely devoid of any discussion of an offer of immunity in exchange for working with the officers in Arkansas.

In denying the motion to suppress, the trial court found that the only immunity from prosecution granted to Appellant was on a federal level in Oklahoma for events prior to April 1, 1991. The trial court found further that Appellant’s claim that he had participated in the Arkansas interviews under a reasonable belief that he would continue to be granted immunity was without merit. The trial court found incredible Appellant’s claim that he was involved in illegal drug activity only to assist law enforcement. The trial court found further:

The subsequent interviews by Mr. Martin in October and November 1991 and by Officer Carr in January 1994 at no time mentioned a grant of immunity. Mr. Tabor was advised of his rights under Miranda and voluntarily talked to the officers. He never inquired about immunity. Mr. Tabor was no novice to the criminal justice system. He was certainly aware of his right to counsel. There was never any discussion of Tabor’s not being prosecuted. Indeed the sole reason for his agreeing to assist the officer in making a buy from Forrest was to get Tabor out from under any criminal filing against him. [Emphasis added.]

Based on the foregoing testimony and the unequivocal statements made during the first interview by Agent Cox, along with the fact that Appellant was, at a minimum, advised of his Miranda rights prior to the three taped interviews, it is difficult to understand how Appellant could have reasonably believed that he had been granted immunity in exchange for his cooperation. Moreover, even if Appellant had believed that he had been given immunity, the testimony by Sergeant Martin that Appellant never upheld his end of the bargain is sufficient evidence to support the trial court’s ruling. We cannot say that the trial court abused its discretion in ruling that Appellant was not entitled to immunity, equitable or otherwise, from the use of his incriminating statements against him.

Furthermore, Appellant’s claim that he only gave the incriminating statements because he had been warned by Agent Cox and Sergeant Martin to “come clean” and tell the truth has no merit. Appellant concedes to this court that he gave the incriminating statements hffiore the officers had admonished him to “come clean” with his information, and before either officer had discussed the possibility of Appellant assisting them in making controlled drug buys in Arkansas. Accordingly, we conclude that the trial court’s denial of Appellant’s motion to suppress the statements was not clearly erroneous or clearly against the preponderance of the evidence.

Affirmed.

       There is a discrepancy in the record regarding the date of the first interview. Testimony from Sara Martin indicates that the interview occurred on October 8, 1991, while the transcript of the statement reflects that the interview took place on October 9, 1991.


text:
    UMLIC 2 FUNDING CORPORATION v. Frank W. BUTCHER and Juanita J. Butcher
    97-935
    970 S.W.2d 211
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Wright, Lindsey & Jennings, by: H. Keith Morrison, for appellant.

      Robert M. Abney, P.A., for appellees.
   Donald L. Corbin, Justice.

Appellant UMLIC 2 Funding Corporation appeals the order of the Arkansas County Circuit Court, Northern District, dismissing its foreclosure action against Appellees Frank W. Butcher (deceased) and Juanita J. Butcher. The trial court found that the statute of limitations barred the claim and, further, that Appellant had not refiled the action within one year after the dismissal. Appellant raises two points on appeal, presenting an issue of first impression and of substantial public interest; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (4). We hold that Appellant’s claim is not barred under the statute of limitations, and we reverse.

On March 23, 1989, Appellees executed a promissory note in favor of Grand Prairie Savings and Loan Association (Grand Prairie) in the amount of $30,000. The terms of the promissory note provided that the note was:

due on demand, if no demand then in monthly installments [of $790.02] beginning April 23, 1989, and continuing on the same day of each month thereafter until March 23, 1990 when a balloon payment in the amount of $24,575.34 will be due.

It is not disputed that Appellees defaulted on the note, having failed to make any payments after December 1, 1989. On January 25, 1990, Grand Prairie went into receivership. The Resolution Trust Corporation (RTC) was appointed as the receiver of the failed savings and loan on behalf of the Federal Deposit Insurance Corporation (FDIC). The RTC thus succeeded to all of Grand Prairie’s rights and interests in the note. The RTC first filed this foreclosure action against Appellees on August 29, 1990. On June 30, 1992, the trial court dismissed the complaint without prejudice for failure to prosecute.

On June 5, 1993, the RTC assigned all of its rights, title, and interest in the note to Appellant, a private corporation. Appellant refilled the case on December 20, 1994, having previously made written demand to Appellees. The trial court denied Appellant’s first motion for summary judgment, in which Appellant argued that the six-year statute of limitations found in 12 U.S.C. § 1821(d)(14) (1994) applied to Appellant, as an assignee of the RTC. Appellant alternatively argued that the six-year statute of limitations found in Ark. Code Ann. § 4-3-118 (Repl. 1991) applied. The trial court later denied Appellant’s second motion for summary judgment, in which Appellant argued that pending litigation tolled the statute of limitations, and that, as such, the action was not barred by any of the applicable statutes of limitations, including the five-year limitations period found in Ark. Code Ann. § 16-56-111 (Supp. 1989). Appellant argued in the alternative that section 16-56-111 allowed partial recovery.

In response to Appellant’s motions for summary judgment, Appellees moved for dismissal of the action on the basis that the entire claim was barred by the limitations period found in section 16-56-111, which governs written instruments. On May 26, 1997, the trial court dismissed the complaint, ruling that the foreclosure action was barred because it fell outside the five-year statute of limitations for written instruments. The trial court also based its decision to dismiss the claim on the fact that the case had not been refiled within one year after the previous dismissal. This appeal followed.

In ruling on Appellees’ motion to dismiss, the trial court considered the Appellees’ affidavits, Appellees’ answers to interrogatories, exhibits, and the parties’ briefs in support of and in response to Appellant’s motions for summary judgment. As the trial court considered matters other than the pleadings, we address the motion to dismiss as one for summary judgment under ARCP Rule 56. McQuay v. Guntharp, 331 Ark. 466, 963 S.W.2d 583 (1998). Matters to be considered in summary-judgment proceedings include affidavits, depositions, admissions, and answers to interrogatories. Id. Rule 56(c) provides for summary judgment when the evidence submitted by the moving party proves that there are no genuine issues of material fact to be determined, and that the moving party is entitled to judgment as a matter of law. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). The non-moving party must then present proof with proof and demonstrate that a material fact survives. Id. We review the evidence presented to the trial court in the light favoring the nbnmoving party, resolving all questions against the movant. Id. Summary judgment is appropriate where the statute of limitations clearly bars the action. Id.

Appellant first argues that the trial court erred in holding that the statute of limitations barred its action, contending that the action was timely under three alternative statutes. Specifically, Appellant argues that the six-year statute of limitations provided in section 1821(d) (14) applies to this promissory note. Appellant alternatively argues for recovery under sections 4-3-118 and 16-56-111. We hold that the federal limitations period is appropriate under the facts of this case; thus, we need not address Appellant’s alternative arguments.

Section 1821(d)(14) provides in part:

(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the [Federal Deposit Insurance] Corporation as conservator or receiver shall be —•
(i) in the case of any contract claim, the longer of—
(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
....
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of Hmitations begins to run on any claim described in such subparagraph shall be the later of —
(i) the date of the appointment of the Corporation as conservator or receiver; or
(ii) the date on which the cause of action accrues. [Emphasis added.]

Appellant asserts that this provision applies to private institutions that have been assigned rights and interests from the RTC. Appellant relies on decisions by the Eighth Circuit United States Court of Appeals that have extended federal protection to private transferees of federal institutions. See, e.g., Community Bank of the Ozarks v. F.D.I.C., 984 F.2d 254 (8th Cir. 1993); Federal Deposit Ins. Corp. v. Newhart, 892 F.2d 47 (8th Cir. 1989). These decisions are grounded in the common law of assignments and sound fiscal policy. Newhart, 892 F.2d 47. Appellant further relies on out-of-state authority from jurisdictions that have extended the six-year federal statute-of-limitations period to assignees and other transferees of federal holders in due course. See Tivoli Ventures, Inc. v. Bumann, 870 P.2d 1244 (Colo. 1994); Cadle Co. II, Inc. v. Stamm, 633 So. 2d 45 (Fla. App. 1 Dist. 1994); and Investment Co. of the Southwest v. Reese, 875 P.2d 1086 (N.M. 1994). We consider it significant that the overwhelming majority of courts to consider this issue have extended the six-year federal limitations period to private-party assignees. See Cadle Co. II, 633 So. 2d 45.

In Newhart, 892 F.2d 47, the Eighth Circuit extended federal holder-in-due-course status to assignees of the FDIC, in accord with the Supreme Court’s decision in D’Oench, Dhume & Co. v. F.D.I.C., 315 U.S. 447 (1942). In D’Oench, Dhume & Co., the Court held that when the FDIC purchases a note in its corporate capacity, the obligor cannot assert defenses based on secret, oral agreements with officials associated with the failed financial institutions. The Court reasoned that such side agreements could adversely affect FDIC-insured assets. The Eighth Circuit held that, under the D’Oench, Dhume doctrine (codified at 12 U.S.C. § 1823(e) (1994)), a private transferee acquires the rights of its federal transferor and concluded that the FDIC’s protected status runs with notes sold to subsequent purchasers. The Eighth Circuit explained that a primary purpose of the rule is to encourage the purchase and assumption of failed banks, rather than liquidation of the assets. The court explained further that such purpose would be defeated if subsequent purchasers were denied the same protection.

Because section 1821(d)(14) is silent regarding the rights of transferees and assignees, state courts addressing this issue have looked to the federal courts and the applicable state common law for guidance. See, e.g., Cadle Co. II, 633 So. 2d 45. Consequently, there has been a trend of state courts applying their own common law to fill the gaps in section 1821(d)(14) with the generally established rule that an assignee steps into the shoes of an assignor. Id. See also Federal Financial Co. v. Hall, 108 F.3d 46 (4th Cir. 1997) (rejecting the district court’s holding in WAMCO, III, Ltd. v. First Piedmont Mortg., 856 F. Supp. 1076 (E.D. Va. 1994), that the six-year federal statute of limitations is personal to the RTC and inseparable from the RTC’s status of conservator or receiver).

Moreover, subsequent to the time this action was filed, the Arkansas General Assembly codified our fundamental common-law principle with the passage of Ark. Code Ann. § 4-3-203 (b) (Repl. 1991), which provides:

Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course .... [Emphasis added.]

We adopt the six-year limitations period set forth in section 1821(d)(14), and hold that it applies to private transferees and assignees of federal institutions that serve as conservators and receivers. Section 1821(d)(14)(B) specifies that the statute of limitations begins to run on the later of (1) the date that the Corporation is appointed, as conservator or receiver, or (2) the date that the cause of action actually accrued. Here, the RTC was appointed as receiver of Grand Prairie in January 1990. Appellees did not make any payments on the note after December 1, 1989. Thus, employing either date, it is apparent that Appellant timely filed its foreclosure action on December 20, 1994.

Additionally, we conclude that the trial court erred in finding that Appellant’s claim was barred for its failure to refile the claim within one year of the date that the first claim, filed by the RTC, was dismissed without prejudice. In Blaylock v. Shearson Lehman Bros., Inc., 330 Ark. 620, 622, 954 S.W.2d 939, 940 (1997), we emphasized that “[w]hen a nonsuit has been made effective, a new action may be filed within one year of the nonsuit or within the applicable statute of limitations, whichever is longer.” Here, the trial court’s order of dismissal was expressly without prejudice. Because we have determined that the federal six-year statute of limitations applies, we hold that the trial court erred in finding that the foreclosure action was barred because it was not filed within one year. We therefore reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.


author: Robert L. Brown, Justice.

text:
    Sherry Lou HENDERSON v. LITTLE ROCK SCHOOL DISTRICT and Dr. Don Roberts, Superintendent, In His Official Capacity and Linda Pondexter, President, Dr. Katherine Mitchell, Michael Daugherty, Judy Magness, John A. Riggs, IV, Patricia Gee and Susan Strickland, In Their Official Capacity As Members of the Little Rock School District Board of Directors
    97-990
    969 S.W.2d 662
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Vincent C. Henderson, II, for appellant.

      Friday, Eldredge & Clark, by: Christopher J. Heller and Daniel L. Herrington, for appellees.
   Robert L. Brown, Justice.

This appeal arises out of appellant Sherry Lou Henderson’s employment with the appellee Little Rock School District as a fine arts-music teacher. Henderson was transferred from Central High School to Woodruff Elementary School and Geyer Springs Elementary School following the 1993/ 94 school year. She filed a grievance regarding this transfer. She was then transferred or assigned to teach music at Mablevale Elementary School by letter dated August 12, 1996, signed by Brady Gadberry, Director of Labor Relations for the School District. She was advised in that letter that her failure to report to work would be considered an abandonment of the job. Henderson contested Gadberry’s authority to transfer her and did not report to work. The School District treated this as a resignation.

On October 11, 1996, Henderson filed an amended petition with the circuit court and prayed for a writ of mandamus and declaration reinstating her and automatically renewing her contract for the 1996/97 school year under the Teacher Fair Dismissal Act. She specifically sought assignment and transfer to Parkview High School under the School District’s Professional Negotiations Agreement. She further sought additional salary for the 1994/95, 1995/96, and 1996/97 school years due to additional college hours earned beyond her Master’s degree.

The circuit court granted summary judgment in favor of the School District and appellee Litde Rock School District Board Members. However, in doing so the circuit court added the following footnote to the judgment:

Finally, Petitioner argues that she is entitled to additional compensation under the PNA because she had earned additional college credits after she obtained her Master’s degree. See ¶¶ 32-37 of Petition and Complaint. This issue is not before the Court on the present motion, and Petitioner may pursue this issue if she gives notice to the Court and opposing counsel.

At oral argument before this court, counsel for the parties stated that this issue noted in the footnote remains unresolved.

Henderson now appeals and questions the authority of Brady Gadberry to assign or transfer her to Mablevale Elementary School and raises other issues as well. We must dismiss this appeal without prejudice due to a violation of Rule 54(b) of our Rules of Civil Procedure.

Rule 54(b) states in pertinent part that any decision which adjudicates fewer than all of the claims of the parties shall not terminate the matter regarding any of the claims of the parties. We recently presented a synopsis of our law relating to Rule 54(b) in Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998):

We have said many times that the failure to comply with Rule 54(b) and adjudicate all claims against all parties is jurisdictional and renders the matter not final for purposes of appeal. See, e.g., Richardson v. Rodgers, 329 Ark. 402, 947 S.W.2d 778 (1997); Tucker v. Lake View Sch. Dist. No. 25, 323 Ark. 693, 917 S.W.2d 530 (1996); State Farm Mut. Auto Ins. Co. v. Thomas, 312 Ark. 429, 850 S.W.2d 4 (1993). Because a violation of Rule 54(b) relates to the subject-matter jurisdiction of this court, we must raise the issue on our own. Richardson v. Rodgers, supra; Tucker v. Lake View Sch. Dist. No. 25, supra; Reeves v. Hinkle, 321 Ark. 28, 899 S.W.2d 841 (1995); Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994). Subject-matter jurisdiction cannot be waived by the parties or by this court. Dean v. Tallman, 331 Ark. 127, 959 S.W.2d 41 (1997).

Hodges, 333 Ark. at 251, 968 S.W.2d at 621.

There is no question but that an issue raised by Henderson in her complaint relating to back pay remains to be decided. Hence, the violation of Rule 54(b) deprives this court of subject-matter jurisdiction. Moreover, the circuit court did not certify this appeal to our court under Rule 54(b) on the basis that there was no just reason to delay this appeal, even though one issue remained to be resolved. We do not countenance piecemeal appeals. Hodges v. Huckabee, supra; Cortese v. Atlantic Richfield, 317 Ark. 207, 876 S.W.2d 581 (1994).

Appeal dismissed without prejudice.

Newbern and Imber, JJ., not participating.

Special Associate Justice Randolph Baltz joins in this opinion.

Special Associate Justice Daniel D. Ives joins in this opinion.


author: Ray Thornton, Justice.

text:
    ARKANSAS DEPARTMENT of FINANCE AND ADMINISTRATION and Merck-Medco Managed Care, Inc. v. PHARMACY ASSOCIATES, INC.
    97-1293
    970 S.W.2d 217
    Supreme Court of Arkansas
    Opinion delivered June 4, 1998

      Winston Bryant, Att’y Gen., by: Glen Hooks, Asst. Att’y Gen., for appellant D.F.& A.

      Mitchell, Williams, Selig, Gates & Woodyard PLLC, by: Byron Freeland and Mark N. Halbert, for appellant Merck-Medco Managed Care, Inc.

      Dover & Dixon, P.A., by: M. Darren O’Quinn, for appellee.
   Ray Thornton, Justice.

The question in this case is whether a state agency can claim the competitive-advantage exception under the Arkansas Freedom of Information Act (the FOIA) on behalf of the person who supplied the information. Appellants are the Arkansas Department of Finance and Administration (DF&A) and Merck-Medco Managed Care, Inc. (Medco). The appehee Pharmacy Associates, Inc. sought disclosure of Medco’s successful bid proposal from DF&A. When DF&A delivered the documents with certain proprietary information deleted, Pharmacy Associates filed suit under the FOIA to obtain disclosure of the deleted material. The trial court found that this information fell within the competitive-advantage exception as to Medco, but that the exception did not apply when the documents were “owned” by the State or when the State did not have a “proprietary interest” in the information. The trial court’s decision is reversed and the case is dismissed.

DF&A, through its State Employee and Public School Personnel Board, issued a request for proposal (RFP) for a pharmacy-benefit manager to manage the State Employee and Public School Health Coverage Program. The manager provides a network of pharmacies where State employees and public school personnel can have their prescriptions filled for a negotiated discount price. Seven pharmacy-benefit managers responded to the RFP with bid proposals, including Medco and Pharmacy Associates. The proposals contained financial and other information projecting the degree of savings that the plan would produce, reflecting data analyses and strategies. Each bidder marked certain information proprietary, except Pharmacy Associates.

DF&A awarded the contract to Medco, and incorporated Medco’s proposal into the contract by reference. Pharmacy Associates, ranked last among the seven bidders, then requested a copy of the contract, including Medco’s proposal. When DF&A received the request, it turned to Medco to justify the confidentiality of the items that Medco had marked as proprietary. DF&A reviewed Medco’s response and determined that certain information in the proposal was not disclosable as it fell within the competitive-advantage exception. DF&A then delivered a copy of Medco’s proposal to Pharmacy Associates with the proprietary information deleted.

Pharmacy Associates sued under the FOIA to obtain the deleted material. Specifically, Pharmacy Associates requested Medco’s data regarding expected formulary rebates; the cost-effectiveness rationale; administrative fees; performance, savings, and service guarantees and penalties; total annual savings; and pharmacy network analyses. After hearing testimony and reviewing the documents in camera, the trial court issued a letter opinion that later became the judgment. In that opinion, the court found that the competitive-advantage exception applies to the information that Medco and DF&A sought to protect. Nevertheless, the court ordered DF&A to release the documents to Pharmacy Associates, ruling that the exception does not apply when the State owns the documents or does not have a proprietary-interest in the information. The appellants appeal this ruling.

To determine whether the General Assembly intended to preclude the State from asserting the competitive-advantage exception for confidential bid information contained in a state contract, we observe the FOIA’s policy considerations and our rules for construing it. Under the FOIA, a person can inspect and obtain copies of all “public records,” unless the law provides otherwise. Ark. Code Ann. § 25-19-105(a) (Supp. 1997). The term “public records” is defined to include all records maintained in public offices or by public employees that contain information about the performance or lack of performance of official functions. Ark. Code Ann. § 25-19-103(1) (Repl. 1996). The General Assembly states its specific intent to exempt eleven categories of information from disclosure in subsection 25-19-105(b). In subsection 25-19-105(b)(9)(A), the General Assembly exempts “files which, if disclosed, would give advantage to competitors or bidders[.]”

We liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Arkansas Dep’t of Health v. Westark Christian Action Council, 322 Ark. 440, 443, 910 S.W.2d 199, 201 (1995). In conjunction with this rule of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Id. A statutory provision for nondisclosure must be specific. Id.; § 25-19-105(a). Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Westark Christian Action Council, 322 Ark. at 443, 910 S.W.2d at 201. At the same time, we will balance the interests between disclosure and nondisclosure using a common sense approach. See National Park Medical Ctr., Inc. v. Arkansas Dep’t of Human Serv’s., 322 Ark. 595, 911 S.W.2d 250 (1995); Sebastian County Chapter of the American Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993).

In the present case, the trial court erred in its interpretation of the FOIA and the competitive-advantage exception for the following reasons. First, by its terms, the FOIA is only invoked when a public record is sought. By definition, a public record is one that a government unit (or any other agency wholly or partially supported by, or expending, public funds) keeps in the discharge of its duties. § 25-19-103(1); Black’s Law Dictionary 1231 (6th ed. 1990). Pharmacy Associates would have no cognizable claim for Medco’s proposal under the FOIA if the proposal were not kept by the State. See Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987) (stating that for a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within the act’s definition of public record, and not be exempted by the act or other statutes).

Second, if we accept the court’s view that the documents are subject to disclosure because they are owned by the State, then subsection 25-19-105(b), listing the exceptions to the disclosure rule, becomes meaningless and superfluous, contrary to the rules of statutory interpretation. See, e.g., Locke v. Cook, 245 Ark. 787, 793, 434 S.W.2d 598, 601 (1968) (stating that the statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be given to every word in the statute if possible).

Third, the court’s interpretation is contrary to the plain and unambiguous language of the competitive-advantage exception provision. That section does not include a further limitation providing that documents owned by the state are not included in the exception. See § 25-19-105(b)(9)(A). Nor does this exception require the State to possess a proprietary interest in the files for the exception to apply, as suggested by the trial court. The court’s interpretation adds language to the statute that is not there.

In plain and unambiguous language, the General Assembly carved out a specific exception to the disclosure rule for those government records that would give advantage to competitors or bidders. In Arkansas Highway and Transp. Dep’t v. Hope Brick Works, Inc., 294 Ark. 490, 496, 744 S.W.2d 711, 714 (1988), we said that this exception is clearly intended to prevent competitors from obtaining information about others seeking the same type of work or furnishing material to the state. In that regard, the issue is whether release of the information would result in competitive harm to the person who supplied it. Whether the government entity has a proprietary interest in the records in its possession is not the sole inquiry.

Courts construing the parallel provision of the federal FOIA have stated that the exception “may be applicable even though the Government itself has no interest in keeping the information secret.” National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). In Morton, the United States Court of Appeals for the D.C. Circuit noted that “the exemption may be invoked for the benefit of the person who has provided commercial or financial information if it can be shown that public disclosure is likely to cause substantial harm to his competitive position.” Id. We see merit in this position. See, e.g., Young v. Rice, 308 Ark. 593, 596, 826 S.W.2d 252, 254 (1992) (stating that, where there is no dispute over the fact that the record requested is a public record, the “record keeper” has the burden of proving the record is exempt from disclosure).

It should be noted, however, that we cannot say the State is without a special interest in this case. DF&A argues that, as a state agency involved in receiving bids for government contracts, it wants to protect the integrity of the bidding process. DF&A maintains that in a bidding situation, it is imperative that the State have as much information about the company as it can obtain, much of which is highly sensitive. Federal courts have also recognized that government entities have a special interest in protecting a bidder’s confidential information. See National Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974); Orion Research Inc. v. EPA, 615 F.2d 551 (1st Cir. 1980). In Orion Research, the United States Court of Appeals for the First Circuit observed that forcing a state entity to disclose a bidder’s confidential financial information would have the effect of diminishing the prospect of original and candid bids in the future. Id. at 554 (quoting Orion Research, Inc. v. EPA, No. 5071, slip op. at 7 (D. Mass. Jun. 15, 1979)). In articulating the basis of the state’s interest, the court quoted the following from the district court opinion:

Competing firms would be less likely to include novel ideas in their responses to solicitations for fear that their confidentiality requests would not be honored and competitors would get the benefit of their innovative theories.
...
Moreover, disclosure of . . . successful proposals would enable competing firms to emulate features common to the plans selected.

Id.

In this case, the pharmacy-benefit manager contract is rebid every two years. Because the trial court found that certain information in Medco’s proposal fell within the competitive-advantage exception, we can reasonably conclude that if Pharmacy Associates is able to obtain a complete copy of Medco’s proposal, Pharmacy Associates (or other competitors) could use Medco’s proprietary information to improve its competitive position. A practice such as this would not only be detrimental to Medco, but also to DF&A in the quality of information it receives in response to its RJFPs in the future. It is this harm that the competitive-advantage exception was intended to prevent. We believe that this result is consistent with the rule of narrow statutory interpretation that gives effect to the unmistakable intent of the General Assembly.

As their final argument, the appellants urge us to affirm the trial court’s finding that the competitive-advantage exception applies to the information that DF&A is seeking to protect. We do not reach this issue because, as vye have often said, an appellant may not raise an issue on appeal when he obtained a favorable ruling granting the relief requested at trial. See Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998); see also Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

Although Pharmacy Associates argues that this finding was erroneous, it did not do so by cross-appeal. A cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Flemings v. Littles, 324 Ark. 112, 113, 918 S.W.2d 718, 719 (1996). An appellee must give notice of cross-appeal in order to obtain affirmative relief. Barnhart v. City of Fayetteville, 321 Ark. 197, 209-10, 900 S.W.2d 539, 545 (1995).

Here, Pharmacy Associates is asking us to reverse the trial court’s finding that the competitive-advantage exception applies to the information Pharmacy Associates seeks. By this request, it is seeking more relief than it received from the trial court. Therefore, Pharmacy Associates’ appeal must come by way of a cross-appeal with the required notice. Because Pharmacy Associates did not give the required notice, we are precluded from reviewing the court’s finding on appeal.

Reversed and dismissed.

       5 U.S.C. § 552(b)(4) exempts “trade secrets and commercial or financial information obtained from a person and privileged or confidential” from disclosure.