author: ROBERT L. BROWN, Justice.

text:
    Erich Lynn DIEMER v. STATE of Arkansas
    CR 99-638
    9 S.W.3d 490
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Meredith Wineland, for appellant.

      Mark Pryor, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   ROBERT L. BROWN, Justice.

This is an appeal from a judgment of conviction where the appellant, Erich Lynn Diemer, was convicted of rape, kidnapping, and residential burglary. He was sentenced to two life terms for rape and kidnapping, and 240 months for residential burglary, with the sentences to run concurrently. He raises two points on appeal: (1) the evidence supporting the convictions for rape, kidnapping, and residential burglary was insufficient; and (2) the trial court erred when it denied his motion to suppress his confession. Neither point has merit, and we affirm.

At trial, the victim in this matter, J.G., testified to the following events. On May 22, 1997, she was sixteen years old and living with her mother and stepfather in a house located on Highway 298 in Saline County. That morning between eight and nine o’clock, she was wearing a one-piece bathing suit under sweat pants and a tee shirt in her house. She saw a car pass by and stop, and Diemer, whom she knew, walked up to her porch. J.G. went outside, and Diemer asked her to go swimming. She refused, and he persisted. When she turned to go back into the house, he pulled the back of her hair and grabbed her from behind.

Diemer forced her into his car and tried to kiss her, which she protested. He drove her to his house, took her into his bedroom, and began fondling her. She told him to stop. They got back in his car, drove by the house of one of his friends, and ultimately drove down a dirt road in the woods. Diemer forced her out of the car and took her to a clearing in the woods by the river. He pulled her over into a mud puddle, turned her on her stomach, pulled out a knife (she had seen a knife in his car), and put it to her throat. He then pulled her sweat pants down, ripped her bathing suit at the bottom, rubbed mud between her legs, and raped her anally. She screamed and tried to get away, and he threatened to cut her. He turned her over and raped her vaginally and finally ejaculated in her mouth.

When he was through, he took her to the river bank and threatened to have “some friends in a white van” take her to Cuba. He also said he would kill her if she came back or told anyone in her family what had happened. Next, he tied her hands behind her back with his shoestrings and rifled through her purse. He took her house key, money, jewelry, and a photograph of her daughter. He then choked her until she blacked out. When she came to, he said: “You’re a hard bitch to kill.” He choked her again, and she passed out for a second time. When she awoke, he had gone. She walked down the road to a house, freed her hands, and called her mother and 911. A deputy sheriff from the Saline County Sheriff’s Department arrived at the scene, and she was taken to the hospital. According to witnesses and photographs introduced into evidence, her wrists were bleeding, she was covered in mud, and she had cuts, bruises, and scrapes on her legs.

Later that same day, J.G.’s stepfather, Bryant Kendall Riggin, came home for lunch and found the door open. Diemer was in the house and pointed one of Riggin’s own pistols, a Ruger semiautomatic, at him. Diemer was acting “crazy,” according to Riggin, and told Riggin he wanted to kill him. Riggin grabbed the gun, pushed Diemer down, and forced him out of the house. He described Diemer as being barefoot, muddy, and wearing short pants.

That afternoon, Diemer was arrested by Saline County deputy sheriffs. According to Sergeant Troy White of the Sheriff’s Department, Diemer told him after his arrest: “I fucked up this time, didn’t I, sarge?” Diemer was interrogated by Detective Kevin Thompson. According to the detective, Diemer first signed a form waiving his Miranda rights and then admitted that he tried to have anal sex with J.G. and had vaginal sex with her. He also admitted, in the detective’s words, that he “copulated on her mouth.” He further stated that he knocked her out down by the river and tied her up with shoestrings. He also said that he tried to steal Riggin’s pistols, but Riggin grabbed him and threw him out of the house.

At trial before a jury, Diemer testified that he and J.G. had consensual sex at his house after drinking alcohol and playing pool. They then went to the river and sniffed crystal methamphetamine, after which she started throwing rocks at him. He hit her and knocked her out, and when she began foaming at the mouth from what he believed to be a drug overdose, he tied her wrists with his shoelaces to keep her from running out into the road. Diemer was convicted and sentenced as previously set out in this opinion.

Diemer raises sufficiency of the evidence as his second point on appeal, but double jeopardy considerations require this court to consider sufficiency of the evidence before the other points raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998).

Diemer challenges the sufficiency of the State’s proof relative to the rape, kidnapping, and residential burglary convictions. We do not reach the merits of this challenge, however, because we conclude that Diemer waived consideration of this issue at trial.

Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a defendant in a jury trial move for a directed verdict on insufficiency of the evidence at the conclusion of the State’s case and again at the close of the case. Failure to do so constitutes a waiver of the issue. Diemer moved for a directed verdict at the end of the State’s case on the counts of kidnapping and residential burglary only and then failed to make any directed-verdict motion at the close of the case. Hence, his waiver of the issue for purposes of this review is clear and obvious. See, e.g., King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996); Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995).

Diemer next contends that the trial court clearly erred in denying his motion to suppress his confession. The State argues in its brief that Diemer’s abstract was deficient in that essential matters relating to this issue such as the suppression motion were omitted in contravention of Ark. Sup. Ct. R. 4-2 (a) (6). We further note that the trial court’s ruling on the suppression question also was not abstracted. This case, however, involves a sentence of fife imprisonment, and, as a consequence, we must review all errors prejudicial to Diemer under Ark. Sup. Ct. R. 4-3 (h). Under this rule, it is incumbent on the appellant to abstract all rulings adverse to him on all motions, and it is incumbent on the Attorney General to make certain and certify that this has been done and to brief all points argued by the appellant “and any other points that appear to involve prejudicial error.” When the record is reviewed, it is obvious that a motion to suppress the confession was made and that a ruling by the trial court occurred. Thus, we will address the suppression issue.

The trial court ruled that Diemer made a knowing and intelligent waiver of his Miranda rights and, therefore, his confession was voluntary. Our law is clear that confessions made in police custody are presumed to be involuntary, and the burden is on the State to prove the confession was voluntary and that any waiver of Miranda rights was knowingly and intelligently made. See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). This proof must be by a preponderance of the evidence. Id. In order to determine whether a waiver of Miranda rights is voluntary, one must decide whether the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Riggs v. State, supra; Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). In making this determination, we review the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Riggs v. State, supra; Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). This court considers the following factors in making its decision — age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Rankin v. State, supra.

Diemer was twenty years old when he was interrogated and had an I.Q. of 77. He was reading on a third-grade level, according to State Psychiatrist Dr. Paul DeYoung. Age and mental capacity are factors to be considered, but they alone do not suffice to warrant the suppression of a confession. See Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996), for example, this court affirmed the trial court’s admission of a confession when the defendant was age 17, had an I.Q. of 72, and was reading on a third-grade level.

Various law enforcement officers testified that Diemer was nervous but that he did not appear to be intoxicated at the time he confessed. Detectives Kevin Thompson and Mark Knowles testified that he received the Miranda warnings, signed a waiver form, and acknowledged that he understood his rights. Detective Thompson testified that Diemer was not coerced or threatened to induce a confession. Detective Knowles, who watched the interrogation on a TV monitor in the next room, confirmed that fact.

Diemer testified that the detectives told him what to say before his confession and that Detective Thompson wore his pistol during the interrogation, fidgeted with it, and laid it on the table. This was intimidating, according to Diemer. Detective Thompson testified that wearing a pistol during interrogations was normally not the office policy but that he did not recall whether he was wearing a pistol at the time. He stated that he did not know if he touched his pistol during the interrogation, but that there was no reason for him to be “fidgety.” He denied telling Diemer what to say in his confession. Both Detective Thompson and Detective Knowles denied that any threats were made.

The circumstances surrounding the taking of Diemer’s confession are certainly in conflict, but we have said: “When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses.” Wright, 335 Ark. at 408, 983 S.W.2d at 403; see also Riggs v. State, supra. As in the Wright case, no other credible evidence was presented that Diemer was coerced or threatened outside of his own testimony. The trial court heard testimony from Diemer and the police officers involved, assessed their credibility, and denied the motion to suppress. We cannot say that the trial court’s denial of the motion to suppress was clearly erroneous.

The record in this case has been reviewed for other prejudicial error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found.

Affirmed.

       He was also convicted of two misdemeanors — assault in the first degree and criminal trespass with sentences in the Saline County jail. Those convictions and sentences are not an issue in this appeal.

       The Point To Be Relied On in Diemer’s brief refers to aggravated assault rather than residential burglary, but the argument relates to the residential burglary conviction.


source: Caselaw Access Project

author: ANNABELLE Clinton IMBER, Judge.

license: Public Domain

text:
    STATE of Arkansas v. Timothy Mark STEPHENSON and Jonathan Fries
    CR 99-967
    9 S.W.3d 495
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellant.

      Frank Shaw, for appellee.
   ANNABELLE Clinton IMBER, Judge.

Appellees, Timothy Mark Stephenson and Jonathon Fries, were convicted of possession of a controlled substance with intent to deliver, and simultaneous possession of drugs and firearms. Each appellee was originally sentenced by the trial court to a term of ten years’ imprisonment on the simultaneous-possession charge. Upon motion by the appellees, the trial court set aside their respective sentences and entered amended orders of conviction, in which it sentenced each appellee to ten years’ imprisonment, but suspended the sentences conditioned upon the successful completion of other requirements. The State appeals from the trial court’s decision to amend the appellees’ sentences, asserting that the suspended sentences were unauthorized and illegal. We agree and therefore reverse.

The State appeals pursuant to Ark. R. App. P. — Crim. 3(b) and (c) (1999), which authorizes review when the Attorney General, after inspecting the trial record, is satisfied that error has been committed to the prejudice of the State and that the correct and uniform administration of the criminal law requires such review. We accept appeals by the State when our holding would be important to the correct and uniform administration of Arkansas criminal law. Ark. R. App. P. — Crim. 3(c); see also, State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997). We have previously held that “sentencing and the manner in which such punishment provisions can be imposed arise in every criminal case where a conviction is obtained, and the application of these statutory sentencing procedures to convict defendants requires uniformity and consistency.” State v. Freeman, 312 Ark. 34, 846 S.W.2d 660 (1993). Likewise, it is well settled that the State may appeal the imposition of a void or illegal sentence by the trial court. See, e.g., State v. Kinard, 319 Ark. 360, 891 S.W.2d 378 (1995); State v. Rodriques, 319 Ark. 366, 891 S.W.2d 63 (1995); State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994). Thus, we accept jurisdiction of this appeal.

The relevant facts are not in dispute. On April 13, 1999, the appellees were found guilty of possession of a controlled substance with intent to deliver, a Class B felony, in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997), and simultaneous possession of drugs and firearms, a Class Y felony, in violation of Ark. Code Ann. § 5-74-106 (Repl. 1997). The trial court originally sentenced each appellee to probation on the Class B felony charge, and to ten years’ imprisonment in the Arkansas Department of Correction on the Class Y felony charge. The appellees then filed motions to set aside verdict and sentence, in which they urged the trial court to impose a sentence of years on the Class Y felony charge, but suspend “all or a portion thereof.” After a hearing on the motions, the trial court amended each appellee’s sentence in amended orders of conviction which state in pertinent part as follows:

The Court finds that on the Simultaneous Possession of Drugs and Firearms charge a sentence for a period of 10 years in the Arkansas Department of Correction shall be imposed but suspended upon successful completion of other requirements, terms and conditions contained in this order.

On June 23, 1999, the trial court filed amended judgment and disposition orders in accordance with its amended orders of conviction. The State contends that the amended sentences on the Class Y felony charge of simultaneous possession are illegal and void.

In Arkansas, sentencing is entirely a matter of statute. Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995). Accordingly, sentencing may not be other than in accordance with the statute in effect at the time of the commission of the crime. Id. Where the law does not authorize the particular sentence pronounced by a trial court, that sentence is unauthorized and illegal, and the case must be reversed and remanded. Id.

When a defendant is convicted of a Class Y felony, the General Assembly has specifically provided that a trial court shall not suspend imposition of sentence as to a term of imprisonment or place the defendant on probation. Ark. Code Ann. § 5-4-104(e)(l) (A)(iii) (Repl. 1997); see also Ark. Code Ann. § 5-4-301 (a)(1)(C) (Supp. 1999). Furthermore, section 5-4-104(e)(l)(B)(ii) (Repl. 1997) prohibits a trial court from suspending execution of sentence. When a sentence is pronounced and then suspended, the trial court has suspended execution of sentence. Meadows v. State, supra; Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999).

Here, the appellees were convicted of simultaneous possession of drugs and firearms, a Class Y felony. Ark. Code Ann. § 5-74-106(b)(Repl. 1997). The trial court was therefore mandated by the General Assembly to sentence the appellees to a term of imprisonment of “not less than ten (10) years and not more than forty (40) years, or life.” Ark. Code Ann. §§ 5-4-104(c), 5-4-401 (Repl. 1997). The trial court had no statutory authority to suspend the imposition of sentence or to suspend execution of sentence. Ark. Code Ann. §§ 5-4-104(e)(1)(A)(iii), 5-4-104 (e)(1)(B)(ii). Because the trial court exceeded its statutory authority by imposing and suspending each appellee’s ten-year sentence, we must reverse and remand. In doing so, we instruct the trial court to reinstate its original sentences of ten years’ imprisonment on the Class Y felony charge of simultaneous possession of drugs and firearms.

Reversed and remanded.


author: RAY Thornton, Justice.

text:
    The ARKANSAS PUBLIC DEFENDER COMMISSION v. The Honorable David BURNETT
    99-1262
    12 S.W.3d 191
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000
    [Petition for rehearing denied March 2, 2000.]

      Mark Pryor, Att’y Gen., by: Robert Russell, Chief Deputy Att’y Gen., and Patricia Van Ausdall Bell, Ass’t Att’y Gen., for petitioner.

      Sloan, Rubens & Peeples, by: Kent J. Rubens; and McDaniel & Wells, P.A., by: Dustin McDaniel, for respondent.
   RAY Thornton, Justice.

The petitioner, The Arkansas Public Defender Commission (the Commission), asks this court to issue a writ of prohibition against respondent, Craig-head County Circuit Judge David Burnett, and in its petition alleges that the judge was wholly without jurisdiction to order the Commission to pay legal fees for attorneys the trial court appointed to represent two minors in a civil action. We granted the Commission’s request for expedited consideration of the matter and had the parties brief the issues for our review. We treat the petition as one of certiorari and grant the writ in the Commission’s favor.

The issue in this petition arises from a civil suit filed in Craig-head County (the county) against Mitchell Johnson and Andrew Golden, the minors convicted of the March 1998 killings of four students and a teacher in Jonesboro. The suit, filed by the victims’ families, also named the minors’ parents, the gun manufacturer, and several other parties as defendants in the suit.

At the time the civil suit was filed, Johnson and Golden were in the custody of the Department of Human Services’s Division of Youth Services (DHS). DHS petitioned the trial court to appoint lawyers for the minor defendants, contending that as an arm of the executive branch it could not provide a defense in a civil action. Relying upon Ark. Code Ann. § 14-20-102 (Repl. 1998), which established a county fund providing, among other things, for the discretionary appointment of counsel for minors in a civil action, the trial court appointed attorneys ad litem for the minors.

The county sought to intervene, seeking reconsideration of the court’s order and contending that the applicable statute relating to payment for counsel was Ark. Code Ann, § 16-61-109 (1987) which provides that plaintiffs in the civil suit should be required to pay the attorney’s fees for minors in a civil action. The county then filed a supplemental motion to reconsider or clarify the original orders appointing attorneys ad litem. The county argued that the original orders did not specifically detail who was responsible for covering the cost of the minors’ attorneys.

On October 11, 1999, the trial court entered an order of clarification that denied the county’s request to intervene and noted that a substantial portion of the funds which had been established in the county for the purposes stated in Ark. Code Ann. § 14-20-102 had been allocated to the Commission pursuant to Ark. Code Ann. § 16-10-307 (Supp. 1999). The court then ordered the Commission to pay the attorneys’ fees for the minors in the civil suit.

The Commission had not participated in any way in either the underlying civil action or in the proceedings relating to the appointment and payment of attorneys for the minor defendants. Contending that the trial court’s order violated the constitutional protection of sovereign immunity, the Commission filed a petition for a writ of prohibition against the trial court’s order in this court. The trial court’s order appears to have transferred the statutory authority of the county to pay such fees to the Commission, but does not reflect any consideration of other alternatives, such as the appointment of guardians ad litem, or charging attorney’s fees to the plaintiffs.

We hold that although the Commission has sought a writ of prohibition, a writ of certiorari is the more appropriate remedy. A writ of prohibition cannot be invoked to correct an order already entered, and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we carve through the technicalities and treat the application as one for certiorari. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id. We also note that neither the county nor DHS are participating in this proceeding, and on the record before us we cannot evaluate DHS’s appearance in the case.

We choose to treat the petition as a writ of certiorari and determine only whether the Commission was protected by the doctrine of sovereign immunity, thereby rendering the trial court’s order for the Commission to pay attorneys’ fees a plain, manifest, clear, and gross abuse of its discretion. Article 5, Section 20, of the Arkansas Constitution provides that “the State of Arkansas shall never be made defendant in any of her courts.” Id. We have held that this constitutional prohibition is not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Brown v. Arkansas State HVACR Lie. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999); Beaulieu v. Gray, 288 Ark. 395, 398, 705 S.W.2d 880, 881 (1986); Page v. McKinley, 196 Ark. 331, 336, 118 S.W.2d 235 (1938). Where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction. Brown, supra. Further, where a suit is brought against an agency of the state with relation to some matter in which the appellee represents the state in action and liability, and the state, though not a party of record, is the real party in interest so that a judgment for the plaintiff would operate to control the action of the state or subject the state to liability, the action is, in effect, one against the state and is prohibited by the constitutional bar. Id.

We have also held that tapping the State’s treasury for payment of damages will render the State a defendant and violate the principles of sovereign immunity. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); State Office of Child Supp. Enforcem’t v. Mitchell, 330 Ark. 338, (1997); Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). Unless sovereign immunity is waived, the doctrine prohibits imposing liability upon the State. We have recognized two exceptions to the doctrine of sovereign immunity: (1) where the State is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).

In the present case, the Commission’s sovereign immunity has not been waived. First, the Commission, which is not a party to the civil suit, neither entered its appearance in the matter nor sought specific relief from the trial court. Further, the Commission’s sovereign immunity has not been waived statutorily by the General Assembly. The two statutes relied upon by the trial court do not impose an obligation upon the Commission to provide attorneys’ fees for minors in civil suits. Specifically, Ark. Code Ann. § 14-20-102 states:

(a)(1) There is hereby created on the books of the treasurer of each county in the state a fund to be used for the purpose of paying reasonable and necessary costs incurred in the defense of indigent persons accused of criminal offenses and in the representation of persons against whom involuntary admissions procedures for mental health or alcohol and narcotic commitments or criminal commitments have been brought, and for representation in civil and criminal matters of persons deemed incompetent by the court due to minority or mental incapacity, which have been brought in any trial courts, chancery courts, juvenile courts, probate courts, or city or county division of municipal courts, including, but not limited to, investigative expenses, expert witness fees, and legal fees.

Id. (Emphasis added.) The statute that allocated a portion of county funds established by Ark. Code Ann. § 14-20-102 to the Commission, Ark. Code Ann. § 16-10-307, does not contain language authorizing the Commission to expend public funds for civil representation of a minor. The duties of the Commission in Ark. Code Ann. § 16-87-306 (Supp. 1999) are stated as follows:

The public defender in each judicial district shall have the following duties:
(1) Defend indigents within the district as determined by the circuit, municipal, city, police, juvenile, probate, or chancery courts in the district in all felony, misdemeanor, juvenile, guardianship, and mental health cases, all traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration;

Id. (Emphasis added.)

There is no declaration of legislative intent to waive the Commission’s sovereign immunity, nor is there any requirement that the Commission have responsibility for attorney’s fees in civil cases. Specifically, the instruction of Ark. Code Ann. §§ 16-10-307 and 16-87-306 is to provide representation for indigents in cases in which there is a potential for loss of liberty. The provision of Ark. Code Ann. § 14-20-102, granting authority for the trial court to appoint attorneys for minors in civil litigation to be paid by county funds, was not incorporated in the statutes establishing and defining the duties and responsibilities of the Commission.

As the county is not a party to this proceeding, we make no determination as to whether the county may be required to pay the attorneys’ fees under the provisions of Ark. Code Ann. § 14-20-102. Neither do we address questions relating to the responsibility of the parents, the plaintiffs, the custodians, or the guardians of the minor defendants.

From the record before us we conclude that there has been no waiver of the Commission’s sovereign immunity. It follows that the Commission is protected by the doctrine of sovereign immunity and is not responsible for paying the minors’ attorneys’ fees. Accordingly, the trial court’s order forcing the Commission to pay the minors’ attorneys’ fees was a plain, manifest, clear, and gross abuse of its discretion requiring the issuance of a writ of certiorari to protect the sovereign immunity of the Commission.

Writ of certiorari granted.

CORBIN, J., not participating.

IMBER, J. concurs.


author: RAY THORNTON, Justice.

text:
    Louis Kenjuan COBB v. STATE of Arkansas
    CR 99-631
    12 S.W.3d 195
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

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

      Mark Pryor, Att’y Gen., by: Kelly S. Terry, Ass’t Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant, Louis Kenjuan Cobb was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. Pursuant to Anders v. California, 386 U.S. 738 (1976) and our Sup. Ct. R. 4 — 3(j) (1), his attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal. Appellant’s brief filed by counsel outlines the four adverse rulings and states that there are no meritorious grounds for appeal. The State agrees that there is no merit to appellant’s appeal. Appellant has not filed a pro se brief arguing additional points for reversal. We conclude that there are no meritorious issue raised from the rulings that were adverse to appellant. Accordingly, we grant counsel’s motion to withdraw and affirm appellant’s conviction and sentence.

Appellant’s conviction resulted from the shooting death of Steven Tyler on March 16, 1998. The testimony presented at trial established that Mr. Tyler was dating the mother of appellant’s child. Appellant was upset with the victim, whom he thought was taking too much parenting responsibility for appellant’s child. On the night of the murder, appellant followed Mr. Tyler to his home, and, armed with a gun, went inside to discuss the matter. An argument occurred and Mr. Tyler, who was unarmed, was shot twice, once in the back and once in the chest. Mr. Tyler’s body was discovered by his roommate, Napoleon Tillman.

At trial, appellant admitted to shooting Mr. Tyler. However, he argued that he was acting only in self-defense and that the killing was not premeditated or deliberated. The trial court denied appellant’s motion for directed verdict. At the close of the evidence, appellant requested that the trial court give the jury an instruction on manslaughter. The trial court, finding that manslaughter was inconsistent with appellant’s defense of self-defense, declined to give the instruction. The jury found appellant guilty of capital murder.

Sufficiency of the Evidence

The first adverse ruling we must discuss is the trial court’s denial of appellant’s motion for a directed verdict. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before all other points raised. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). At the close of the State’s case, appellant moved for a directed verdict arguing that the evidence was insufficient to establish that he had acted with premeditation and deliberation. The trial court denied the motion. As we find no error in this ruling, we affirm.

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. The evidence may be either direct or circumstantial. Only evidence supporting the verdict will be considered. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every hypothesis is left to the jury to decide. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. McDole v. State, 339 Ark. 391 , 6 S.W.3d 74 (1999). The trier of fact is free to believe all or part of a witness’s testimony. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Bangs, supra. The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

The evidence presented at trial was sufficient to support appellant’s capital murder conviction. First, Napoleon Tillman, Mr. Tyler’s roommate, testified. He stated that when he came home from work on March 16, 1998, he found Mr. Tyler’s dead body on the floor of their apartment. He also testified that neither he nor Mr. Tyler owned a gun.

Next, Lori Baker, appellant’s former girlfriend and Mr. Tyler’s girlfriend at the time of his death, testified. She stated that on the night of the murder she called Mr. Tyler’s residence and was informed that appellant was there. She further testified that later that night appellant came to her home and informed her he had met with Mr. Tyler. Finally, she testified that appellant told her he knew where Mr. Tyler lived because he had followed him home from work.

Then, Detective Kevin Simpson from the Little Rock Police Department testified. He stated that he found a ,9mm semi-automatic pistol, with one loaded black clip, along with two five rounds in the case in appellant’s car.

Doctor William Sturner, the Chief Medical Examiner for the Arkansas State Crime Laboratory, also testified. He stated that it was more likely than not that the first gunshot wound Mr. Tyler suffered caused him to suffer paralysis and put him in a state of shock such that the victim would not be able to fend off the shooter or protect himself in any way. Doctor Sturner further testified that the second wound had been inflicted while Mr. Tyler was lying on his back with the shooter standing at contact range directly over him.

Finally, appellant, Lewis Cobb testified. He stated that on the day of the murder he had gone to Mr. Tyler’s home to have a conversation regarding his relationship with appellant’s daughter. Appellant noted that he had been wanting to have this conversation with Mr. Tyler “for a while”. He further testified that he had a gun, which he had purchased seven days before the murder, when he went into Mr. Tyler’s home. Appellant then stated that he did not know whether Mr. Tyler had a gun when he went into his home but that based on his clothing he would have had no place to hide a gun on his person. He also testified that he shot Mr. Tyler and “he fell down” and that he did not know why he shot him the second time— “there was no reason.” Appellant finally stated that he left the house after the murder and did not try to get help for Mr. Tyler.

Pursuant to Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Id. Premeditation is not required to exist for a particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id.

We conclude that according to these standards, the State introduced sufficient evidence to show that appellant acted with premeditation and deliberation when he shot Mr. Tyler. Specifically, it was possible for the jury to have found that appellant, who had wanted to talk with the victim “for a while” and went to Mr. Tyler’s home with a recendy purchased gun, acted with premeditation and deliberation when he shot the unarmed victim in the back causing him to suffer paralysis, and then shot him a second time at point-blank range in the chest and left him to die. Accordingly, the trial court’s denial of appellant’s request for a directed verdict was not erroneous.

Lesser Included Offense Instruction

Following the presentation of evidence, the court instructed the jury on capital murder and the lesser included offenses of first degree and second degree murder. Noting that the manslaughter instruction was inconsistent with the justification defense, the court refused appellant’s proffered manslaughter instruction. It is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). We will affirm a trial court’s decision to exclude an instruction on a lesser included offense only if there is no rational basis for giving the instruction. Id. Pursuant to Ark. Code Ann. § 5-10-104 (Repl. 1997), and appellant’s proffered jury instruction, an individual commits manslaughter if “he recklessly causes the death of another person.” Id. In this case, where appellant admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the “recklessly causing” element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err.

Relevancy of Mr. Tillman’s Testimony

Counsel next contends that the trial court did not abuse its discretion when it overruled an objection to a statement made by Mr. Tillman during his testimony. The exchange in dispute is as follows:

Q: [ Prosecutor John Johnson] Did he [Mr. Tyler] have any other interests?
A: [Napoleon Tillman] He loved music.
Q: Was he involved in any aspects of music?
A: Yeah, he does, [sic]
Jeff Weber [defense attorney]: Object to the relevance of this.
The Court: Overruled.

Arkansas Rule of Evidence 401 states “ ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Arkansas Rule of Evidence 402 states “all relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.” Id. Additionally, we have held that a ruling on the relevancy of evidence is discretionary, and we will not reverse absent an abuse of discretion. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991). Moreover, we note that we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999); see also Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). We apply this standard of review to evidentiary rulings made in the guilt phase of capital cases. Id. Thus, in this case, where appellant has admitted to killing Mr. Tyler, and it has been established by sufficient evidence that he acted with premeditation and deliberation, whatever harm may have resulted from Mr. Tillman’s testimony about Mr. Tyler’s interest in music was harmless.

Prosecutor’s Statement

The final ruling adverse to appellant resulted from an objection made following a question posed by Prosecutor John Johnson during cross examination of appellant. Mr. Johnson’s question referenced the fact that appellant’s first criminal act was murder. He asked; “Mr. Cobb, when you embarked on a life of crime you certainly picked the big time, didn’t you?” Appellant’s attorney objected to this question and the trial court overruled the objection. We have noted that trial courts, must be, and are, vested with wide discretion in determining whether the remarks of counsel are within their legitimate scope, or whether they transcend the bounds set for them by the well established rules of practice. Adams v. State, 176 Ark. 916, 5 S.W.2d 946 (1928). We will always reverse where counsel goes beyond the record to state facts that are prejudicial to the opposite party, unless the trial court, by its ruling, has removed the prejudice. But we do not reverse for the mere expression of opinion of counsel in their argument before juries, unless the expression is so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect. Id. Here, it is difficult to see how the prosecutor’s question was harmful to appellant because appellant had previously testified to the facts noted in the question and the testimony was already before the jury. Specifically, appellant admitted that he killed Mr. Tyler and testified that he had been convicted of no other crimes prior to the murder and the prosecutor’s question simply reiterated facts already in evidence. Accordingly, the trial court did not abuse its discretion in overruling appellant’s objection.

4-3 (h) Review

In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.

From the review of the record and the briefs before us, we find the appeal to be without merit. Counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


author: PER CURIAM.

text:
    Steven E. HILL v. STATE of Arkansas
    CR 99-1341
    13 S.W.3d 142
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Petitioner, pro se.
    No response.
   PER CURIAM.

Steven E. Hill was found guilty by a jury of murder in the second degree and was sentenced to eighteen years’ imprisonment. The court of appeals affirmed. Hill v. State, 64 Ark. App. 31, 977 S.W.2d 234 (1998). The mandate of the court of appeals was issued on November 24, 1998. Sixty-five days later, on January 28, 1999, Hill filed in the trial court a motion seeking an extension of time to file a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The motion was granted, and Hill filed his petition on February 24, 1999. The petition was denied, and Hill lodged an appeal of the order in this court. The appeal was dismissed on the ground that the petition filed in the trial court was untimely. Hill v. State, CR 99-1341 (December 9, 1999). Now before us is appellant Hill’s pro se motion seeking to have the appeal reinstated.

As we said when the appeal was dismissed, Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued upon affirmance of the judgment. The mandate in appellant’s case was issued on November 24, 1998, but appellant did not file his petition under the rule until February 24, 1999, which was ninety-two days after the mandate was issued. Appellant argues that it constitutes an injustice for his petition to be considered untimely because he was hampered in various ways in his effort to prepare the petition; and, furthermore, he relied on the fact that the lower court granted his motion for extension of time to file the Rule 37 petition.

Neither argument can excuse the failure to file the petition within the sixty-day period provided in the rule inasmuch as the time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). In Benton v State, supra, the Rule 37 petition was delivered to the circuit judge who ruled on it, but it was never filed with the circuit clerk. We held that filing the petition with the circuit clerk was critical for purposes of establishing jurisdiction. Similarly, in the case before us the Rule 37 petition was not timely filed to establish jurisdiction. Because the time limits set forth in the rule are jurisdictional in nature, a trial court cannot extend the time to file a Rule 37 petition even if a motion for extension of time is filed before the the sixty-day period allowed by Rule 37.2(c) elapses.

Motion denied.


author: Per Curiam. RAY THORNTON, Justice,

text:
    L. Lynn HOGUE, Individually, and the People of the State of Arkansas, Upon the Relation of L. Lynn Hogue v. James NEAL, In His Capacity as Executive Director of the Arkansas Supreme Court Committee on Professional Conduct; and Carlton Bailey, Sue Winter, Dr. Patricia Youngdahl, Richard A. Reid, Kenneth Reeves, Bart Virden, and Win A. Trafford, In Their Capacity as Members of the Arkansas Supreme Court Committee on Professional Conduct
    99-1451
    12 S.W.3d 186
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      L. Lynn Hogue, Southeastern Legal Foundation, Inc., for petitioners.

      James A. Neal, Executive Director, Arkansas Supreme Court Committee on Professional Conduct, by: Lynn Williams, for respondents.
   Per Curiam.

Petitioner L. Lynn Hogue, an Arkansas licensed attorney, petitions this court for a writ of mandamus against respondents, James Neal, as Executive Director of the Arkansas Supreme Court Professional Conduct Committee (Committee), and the seven committee members, to compel them to perform their duties required under the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Hogue filed his complaint with Neal and the Committee on September 15, 1998, regarding Arkansas licensed attorney William Jefferson Clinton, Arkansas Bar No. 73019. Hogue alleged Mr. Clinton’s misconduct included conduct inimical to, and destructive of, the administration of justice, such as lying, deceit, perjury, fraud, dishonesty, untrustworthiness, obstruction of justice, subornation of perjury, and witness tampering. In support of his allegations, Hogue filed with his complaint (1) the Referral to the United States House of Representatives from the Office of Independent Counsel; (2) a copy of the Affidavit of Monica Lewinsky, dated January 7, 1998; (3) an excerpt from the transcript of Mr. Clinton’s deposition testimony in Jones v. Clinton dated January 17, 1998; and (4) an exhibit to that deposition, containing the court’s definition of “sexual relations.” Hogue alleged Neal acknowledged receipt of Hogue’s complaint by letter dated September 23, 1998, but took no further action. Hogue further asserts that, on February 18, 1999, he sent a letter requesting that action be taken on his complaint, but none was taken by Neal and the Committee.

Hogue also points to United States District Judge Susan Webber Wright’s April 12, 1999 opinion and order in Jones v. Clinton, 36 F. Supp.2d 1118, holding Mr. Clinton in contempt for willful failure to obey the court’s discovery orders and finding that Mr. Clinton willfully lied under oath in his deposition and in sworn interrogatory responses. Apparently, Judge Wright’s order was mailed to Neal and the Committee on April 13, 1999. Hogue asserts that, as of the filing of his petition for writ of mandamus, on December 13, 1999, Neal and the Committee have taken no action on his complaint, have refused to provide Hogue with any information, have not assigned Hogue’s case a docket control number, and have not taken any action with regard to Judge Wright’s complaint. Hogue seeks to compel Neal and the Committee to take action on his and Judge Wright’s complaints as provided by the Disciplinary Procedures and Model Rules adopted by this court.

Neal and the Committee responded to Hogue’s petition on December 20, 1999, stating that matters before the Committee are confidential unless specifically excepted under Section 4 of the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law. They further allege Hogue has failed to state an established right to enforce and a ministerial duty to be compelled by a writ of mandamus. Neal and the Committee assert they have acted solely within their authority and discretion.

Neal and the Committee are correct that, initially, formal complaints are absolutely privileged under Section 4A(1), as are actions and activities arising from or in connection with an alleged violation of the Model Rules by an attorney licensed to practice law in this state. Id. 4A(2). However, the Executive Director and Committee do have certain mandates they must follow once a complaint is initiated under this court’s regulations. We attempt to summarize the ones pertinent to Hogue’s (and Judge Wright’s) complaint(s).

First, the Executive Director has the duty to receive all complaints, and once he determines the complaint is supported with sufficient evidence, the Director shall process a formal complaint, direct it to the attorney for response, and assign the case a docket control number. Section 3(B). If the Director decides the complainant’s allegations fall outside the purview of the Committee, the complaining party may request a review before the Alternate Committee on Professional Conduct. Id. Once the Executive Director determines a complaint should be processed, the Director shall advise the attorney and furnish him or her a copy of the formal complaint. It is significant to note that our procedures mandate that the Committee accept and treat as a formal complaint any writing signed by a judge of a court of record in this state. Section 5A. Thus, a judge’s complaint requires little or no action by the Executive Director or Committee before the Committee must begin its procedures in notifying the attorney of the charges against him or her, so the attorney can explain or refute them. Section 5E. The attorney’s mailing address on record with this court’s clerk constitutes the address for service of mail. Id. In this case, Mr. Clinton’s address is listed with the clerk’s office as follows: White House, Room 214, East Wing, Washington, D.C. 20500.

Upon service of the formal complaint, the attorney shall have twenty days in which to file a written response, but is allowed thirty days when she or he is a non-resident. Section 5E If the Director has not received a timely response, the Director shall proceed to issue ballots to the Committee members. The Director shall provide a copy of the attorney’s response to the complainant within ten days of receiving it and advise that the complainant has seven days in which to rebut or refute any allegations or information contained in the attorney’s response. Id.

The next stage or procedure requires the Executive Director to provide Committee members copies of pertinent pleadings and other information specified in Section 5G, and each member is to vote on the action to be taken on the formal complaint. If the Committee votes to take no disciplinary action against the attorney, the Executive Director shall so notify the complainant and attorney. Section 5H. If the Committee votes to impose a sanction, the attorney shall be notified of the Committee’s findings and decision and advised that he or she has a right to a hearing before the Committee. The attorney shall also be advised that in the absence of a request for a hearing, such findings and order will be entered in the Committee files and filed as a public record with the clerk’s office. Id.

From the facts as we know them, Hogue filed his complaint on September 15, 1998, and Neal, as Executive Director, was then required to furnish Mr. Clinton with a copy of that complaint. Service should have been performed under Section 5E, as we discussed above. Also, as already discussed, Neal was mandated to provide the attorney’s response to the complainant within ten days from receiving it. Hogue asserts that no docket control number has been assigned his complaint, nor has he received any information from Neal or the Committee about any action taken regarding his allegations. Neal and the Committee offer no explanation except to indicate that confidentiality controls the information at this stage of the proceedings and that their duties are discretionary and not ministerial in nature. While what Neal and the Committee argue is a correct statement of our procedures in Sections 2, 3, and 4, Neal and the Committee have mandatory duties that they must initiate under other procedures discussed above, in order to afford Hogue an opportunity to respond to Mr. Clinton’s response, if he files one. Certainly, the same can be said of the complaint and referral from Judge Wright.

If Neal and the Committee have failed to initiate the procedures required to initiate and process Hogue’s and Judge Wright’s complaints, then we order they take such action forthwith. See Sexton v. Arkansas Supreme Court Comm. on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989) (the supreme court is affirmatively charged with the duty of making and, by implication, of enforcing rules governing the practice of law and the conduct of lawyers). If Neal and the Committee have initiated such action already, Hogue and Judge Wright can expect to receive that notice and information called for under this court’s procedures as discussed above. Once the court’s rules and procedures are complied with and the parties are permitted to join issues, the Committee can then properly consider the allegations and arguments on their merits.

Arnold, C.J., and Thornton, J., concur.

RAY THORNTON, Justice,

concurring. I agree with the conclusion that the Committee should follow its rules and procedures in processing this complaint as they would any other. However, I write to emphasize that we are not deciding any issues concerning the merits of the complaint and nothing in this opinion should be construed as commenting upon the merits. I am authorized to state that Chief Justice ARNOLD joins in this concurrence.

Concurrence.

       A reasonable extension may be granted by the Director or chairperson of the Committee in accordance with Section 5F(2).

       Other rebuttal, surrebuttal, and calculation of time limitation provisions are contained in Section 5F, but we need not address those specific provisions at this point.


text:
    STATE of Arkansas v. Robert A. ROBBINS; Bobbye Jeanne Robbins, Next Friend and Intervenor
    CR 98-1394
    9 S.W.3d 500
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellant.
    No response.

      Jeff Rosenzweig, for next friend and intervenor.
   PER CURIAM.

On December 2, 1999, we issued a writ of certiorari for the record in this case so that a review for prejudicial errors could be conducted. See State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999) (Robbins). Following the issuance of the writ, we received numerous motions filed by the State as well as a number of motions filed by Mr. Rosenzweig on behalf of Bobbye Jeanne Robbins.

First, we note that the State incurred no new responsibilities pursuant to our opinion in Robbins, but continues to have the responsibilities previously articulated by court rules. Specifically, as we stated in Robbins, the Attorney General s office will continue to be responsible for certifying to us that all objections have been abstracted and will retain the duty of briefing any other points that appear to involve prejudicial errors. See Ark. Sup. Ct. R. 4-3 (h).

Next, we note that it was the intent of this court that the counsel appointed pursuant to our decision in Robbins would not serve as a representative of a party but rather would assist the court in its review. Because of Mr. Rosenzweig’s representation of Bobbye Jean Robbins, a conflict of interest exists and that conflict prevents Mr. Rosenzweig’s appointment to perform the mandatory review duties set out in Robbins. Accordingly, we relieve Mr. Rosenzweig and hereby appoint Ms. Lea Ellen Fowler to perform the duties outlined in Robbins to assist this court in its review of the record. Specifically, appointed counsel shall abstract the record and assist the court in its determination (1) whether any errors raised in the trial court are prejudicial to the defendant, in accordance with Ark. Code Ann. §16-91-113(a) (1987) and Ark. S. Ct. R. 4-3 (h); (2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980) have occurred; and (3) whether other fundamental safeguards were followed. See Robbins, supra.

Finally, noting that the court reporter has assured the parties that the record will be available in February 29, 2000, we stay the briefing time of this case until the record is filed with this court and the clerk has established a briefing schedule.

Motion to stay briefing schedule granted and counsel appointed.


text:
    STATE of Arkansas v. Clay King SMITH
    CR 99-353
    12 S.W.3d 629
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Mark Pryor, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., for petitioner.

      No response.
   PER CURIAM.

On March 18, 1999, judgment was entered reflecting that Clay King Smith had been found guilty by a jury of five counts of capital murder and sentenced to death. Counsel for Mr. Smith lodged a partial record on appeal from the judgment, and we granted a stay of execution on April 15, 1999. Mr. Smith subsequently filed a pro se motion to withdraw the appeal and have the matter remanded to the trial court for execution of the death sentence. In an unpublished per curiam order entered on July 8, 1999, we remanded the matter to the trial court for a hearing on whether Mr. Smith has the capacity to understand the choice between life and death and to knowingly and intelligently waive his right to appeal his sentence of death. Pursuant to our decision in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), the State now submits to this court a transcript of the lower court’s proceedings on remand, along with its petition for writ of certiorari, and requests that we review those proceedings and affirm the trial court’s finding that Mr. Smith is competent to waive his appeals, including his postconviction remedies under Ark. R. Crim. P. 37.5.

The State filed its petition for writ of certiorari in this case before our decision in State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999), was handed down on December 2, 1999. We held in Robbins that this court has an affirmative duty to review the record in all death-penalty cases for egregious and prejudicial errors. State v. Robbins, supra. In so holding, we modified and overruled Franz to the extent that it conflicts with the Robbins decision. Id. However, we noted that “a person sentenced to death may waive his personal right to appeal” and that an automatic review of the record by this court “does not interfere with a competent defendant’s right to waive his right to appeal.’Id. at 386, 5 S.W.3d at 55. We concluded that an automatic review of the entire record would be useful when we are evaluating whether a defendant’s waiver of his right to appeal was proper under Franz. Id. Furthermore, we held that such a review of the entire record would enable us to determine (1) whether any errors raised in the trial court are prejudicial to the defendant, in accordance with Ark. Code Ann. § 16-91-113 (a) (1987) and Ark. Sup. Ct. R. 4-3 (h); (2) whether any plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), have occurred; and (3) whether other fundamental safeguards were followed. Id.

Pursuant to our decision in Robbins v. State, supra, we conclude that an automatic review is necessary in this case where the death penalty has been imposed and where Mr. Smith has expressed his desire to waive his right to appeal the death sentence. Accordingly, we issue a writ of certiorari directing the Jefferson County Circuit Clerk and the court reporter for the Jefferson County Circuit Court, Second Division, to prepare and file the complete record in this case within ninety days from the date of this order. We also appoint Tammy Harris, 212 Center St., Suite 100, Litde Rock, AR 72201, to assist this court in its review of the record as outlined in State v. Robbins, supra. Specifically, appointed counsel shall abstract the record pursuant to Ark. S. Ct. R. 4-3 (h) and argue any errors prejudicial to Mr. Smith.

Writ of Certiorari issued; appointment of counsel.


author: Per Curiam.

text:
    Oscar STILLEY v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas
    99-1387
    12 S.W.3d 189
    Supreme Court of Arkansas
    Opinion delivered January 27, 2000

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: Dennis Hansen, Ass’t Att’y Gen., for respondent.
   Per Curiam.

On November 29, 1999, petitioner Oscar Stilley filed an original action, requesting our court to enter a declaratory judgment determining the legality of the sufficiency of the ballot title and popular name of a proposed constitutional amendment attached with an initiative petition filed by the Arkansas Casino Corporation (ACC) with the Secretary of State. Stilley seeks the relief under Amendment 7 to the Arkansas Constitution and Act 877 of 1999 (codified at Ark. Code Ann. §§ 7-9-501 - 7-9-506 (Supp. 1999)). He contends the popular name and ballot title of ACC’s proposed constitutional measure are materially incomplete, deficient, and defective. The respondent Secretary of State filed a motion to dismiss Stilley’s action on December 22, 1999, arguing that (1) this court lacks subject-matter jurisdiction, (2) Stilley has failed to exhaust his remedies, and (3) Stilley’s action is not ripe for review by this court until the Secretary of State has completed her review of ACC’s initiative petition as required by Act 877.

Once ACC filed its initiative petitions, a taxpayer and voter, like Stilley, was authorized to petition the Secretary of State to determine the legal sufficiency of ACC’s initiative petitions. § 7-9-503(a)(1). The taxpayer was then required to notify ACC, by certified mail, that he had filed a petition for sufficiency determination. § 7-9-503 (a) (2). Thirty days after receipt of the taxpayer’s petition, the Secretary of State, after consultation with the Attorney General, must decide and declare the following issues:

(1) Whether the popular name and ballot title of the measure are fair and complete; and
(2) Whether the measure, if subsequendy approved by the electorate, would violate any state constitutional provision or any federal constitutional, statutory, or regulatory provision or would be invalid for any other reason.

After deciding the foregoing issues, the Secretary of State must, in writing, notify the taxpayer and the measure’s sponsor of her decisions. § 7-9-503(d). If the Secretary of State declares the popular name or ballot title on the initiative measure legally insufficient, the sponsor — here ACC — may then attempt to cure that insufficiency. § 7-9-504(a). After the Secretary of State issues her decision, the petitioner/taxpayer (Stilley), sponsor of the measure (ACC), and any Arkansas taxpayer and voter shall have the right to petition our court to review the Secretary of State’s decisions. § 7-9-505.

In this case, ACC complains that Stilley never filed a petition with the Secretary of State questioning the popular name and ballot title of ACC’s initiative measure. Instead, after ACC filed its initiative petitions, the Attorney General issued an opinion on August 31, 1999, approving and certifying ACC’s measure’s popular name and ballot tide, which the Secretary of State immediately approved and certified, as well. Rather than follow the Act 877 procedures discussed above that requires a taxpayer to petition the Secretary of State, requesting her to determine the legal sufficiency of ACC’s initiative petitions, Stilley waited until after the Attorney General and the Secretary of State approved ACC’s proposed measure’s popular name and ballot title before raising any question concerning ACC’s initiative petition’s legal sufficiency. Moreover, he did so by fifing an original action in this court, rather than petitioning our court for review as is provided under § 7-9-505.

Stilley clearly failed to follow the dictates of Act 877 as we have fully set out above, thus we are unable to address the ballot-title and popular-name issues he seeks to resolve by original action in this court. On January 25, 2000, Stilley actually arrived at this result by joining in a motion with the Secretary of State to dismiss this action. Of course, we agree with Mr. Stilley’s and the Secretary of State’s joint motion. Therefore, we dismiss this case without prejudice.

In dismissing the action, we feel obliged to point out the case of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), where the court considered Act 280 of 1989 (codified at Ark. Code Ann. § 7-9-107(e) (Repl. 1993)), and which, like Act 877 of 1989, established an early timetable by which an initiative measure’s popular name and ballot title could be certified by the Secretary of State and reviewed by the Supreme Court. In a split decision, the Finn court held Act 280 unconstitutional, because the Act purported to permit this court to review a decision of the Secretary of State with respect to the ballot-title portion of an initiative petition; however the only authority given this court by Amendment 7 is the authority to review the Secretary of State’s certification of a “petition” which includes both the ballot title and the signatures. The Finn case is still cited as precedent. Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (1998),

but see Glaze and CORBIN, JJ., concurring.

       Section 7-9-503(d) specifically limits the Secretary of State to review and decide the two issues set out above in § 7-9-503(b) and excludes questions regarding the sufficiency or validity of the initiative petitions — here submitted by ACC. (Emphasis added.)

       Within fifteen days after a correction or amendment is filed with the Secretary of State, the Secretary of State must notify the taxpayer and sponsor of the measure, Stilley and ACC, of her declaration by certified mail when her decision is issued § 7-9-504(b).

       In 1995, the General Assembly tried to remedy this ballot title/popular name problem by a proposed Constitutional Amendment 3, but that proposed amendment was defeated at the November 5, 1996, General Election. In view of the rationale in the Finn case, the question arises whether an act like Act 877 of 1999 passes constitutional muster.


author: Donald L. Corbin, Justice. ANNABELLE Clinton Imber, Justice, WH. “Dub” Arnold, Chief Justice,

text:
    Tiny Standoak BABB, Gregory Franks, Shilena Easter, Michael Easter, Felisha Easter, Frederick Easter, and Daryl Standoak v. Leanna MATLOCK and Curtis Standoak
    99-127
    9 S.W.3d 508
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000
    [Petition for rehearing denied March 9, 2000.]

      Willie E. Perkins, Jr., for appellants.

      Brent Baber, for appellees.
   Donald L. Corbin, Justice.

This is a wrongful-death case in which we are asked to interpret the term “beneficiaries,” as provided in Ark. Code Ann. § 16-62-102(d) (Supp. 1999). Appellants Tiny Standoak Babb, Gregory Franks, Shilena Easter, Michael Easter, Felisha Easter, Frederick Easter, and Daryl Standoak are the grandchildren of Allean Standoak, who died on March 29, 1997. Allean had four children: Appellee Leanna Mat-lock, Appellee Curtis Standoak, Theadoris Standoak, and Shirley Standoak. Appellants are the children of Theadoris Standoak and Shirley Standoak, both of whom predeceased Allean. In December 1997, Appellee Leanna Matlock was appointed special administratrix of Allean’s estate for the purpose of bringing a wrongful-death suit. In August 1998, the Garland County Probate Court entered an order of settlement in the wrongful-death action. The order reflected that after payment of attorney’s fees and satisfaction of liens held by Medicare and Medicaid, the remainder of the settlement was divided between Appellees, the two surviving children. Appellants subsequently filed a motion to intervene in the wrongful-death action, claiming that they were Allean’s heirs at law and thus beneficiaries of the settlement. The probate judge denied intervention, and this appeal followed. Our jurisdiction of this case is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1), as it involves issues of first impression. We affirm.

We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id. The questions presented by this appeal are: (1) whether the definition of “children” as used in section 16-62-102(d) should be interpreted broadly so as to include the descendants of those children of the deceased who predeceased the deceased; and (2) whether the relationship of in loco parentis continues past the age of majority for purposes of claiming as a beneficiary to a wrongful-death suit. We conclude that the answer to both questions is “No.”

There was no cause of action for wrongful death at common law. Simmons First Nat’l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966). Thus, because the action is a statutory creation and is in derogation of or at variance with the common law, we construe the wrongful-death statute strictly. Id. Strict construction necessarily “requires that nothing be taken as intended that is not clearly expressed.” Lawhon Farm Servs. v. Brown, 335 Ark. 272, 279, 984 S.W.2d 1, 4 (1998). Given that narrow standard, we must reject Appellants’ first argument, that we should broadly construe the class of statutory beneficiaries to include persons not specifically named.

Section 16-62-102(d) provides:

The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.

Clearly, grandchildren of the deceased person are not included in the group of statutory beneficiaries. It is equally clear that the term “children” means living children, as the entire group of beneficiaries is qualified by the term “surviving.” Thus, children who are not living at the time of the deceased person’s death are not among the statutory beneficiaries, and, correspondingly, neither are the deceased children’s heirs at law. Accordingly, we reject Appellants’ assertion that they are beneficiaries to the wrongful-death settlement.

We also reject the claim raised by Appellants Tiny Standoak Babb and Gregory Franks that they are beneficiaries because they are persons to whom the deceased stood in loco parentis. Their claim is based on the fact that Allean raised them after each of their mothers had died. Appellees argue that this fact is of no consequence to the wrongful-death action, because both Babb and Franks were over the age of eighteen and were not disabled at the time of Allean’s death. Thus, Appellees assert that the relationship of in loco parentis terminates at the time the children reach the age of majority, unless they are disabled. The probate court agreed with Appellees.

Babb and Franks do not dispute that they were both adults at the time of Allean’s death and that neither one of them suffers from any disability. They maintain, however, that the loss they suffered as a result of Allean’s wrongful death is not lessened by the fact that Allean was no longer supporting them, financially or otherwise, at the time of her death. In this respect, they contend that their legal position is no different from that of Appellees, who were also adults at the time of Allean’s death. We disagree.

This court has defined the term “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991) (quoting Black’s Law Dictionary 708 (5th ed. 1979)). One who stands in loco parentis to a child puts himself or herself “in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption.” 59 Am. Jur.2d Parent and Child § 75, at 217 (1987) (footnote omitted). The relationship may be abrogated at will by either the person assuming the parental duties or the child. Id. Thus, the relationship is a temporary one, unlike that of adoption. Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965). The question then is when does the relationship end, provided that it is not voluntarily abrogated by either party.

Although this court has not specifically addressed this issue, the general rule appears to be that the relationship of in loco parentis ends when the child reaches the age of majority and is not disabled. See 67A C.J.S. Parent & Child § 154, at 551 (1978) (footnote omitted) (providing that “[o]rdinarily, a person cannot stand in loco parentis to an adult who is not mentally or physically incapacitated from providing for himself’). This is consistent with the general rule that a parent is legally obligated to support his or her child at least until the time the child reaches majority. See Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985). Once a child reaches majority and is physically and mentally capable, the legal duty of the parent to support that child ceases. Id. Conversely, the duty of support does not cease at majority if the child is mentally or physically disabled and needs support. Id.

Here, there is no evidence that Babb or Franks, both of whom were adults and suffered from no disability, were relying on Allean’s support at the time of her death. Thus, they are not beneficiaries under the wrongful-death statute, as Allean did not stand in loco parentis to them at the time of her death. We are aware of the impact that this decision may have on the ever-increasing number of children in this state who are being raised, but not formally adopted, by grandparents and other relatives. Indeed, we may be tempted to sympathize with Appellants’ position that their loss is in no way lessened merely because Allean was no longer contributing to their support. Nevertheless, we believe that any expansion of the right of recovery under the wrongful-death statute lies within the province of the General Assembly, not this court. We thus affirm the probate court’s ruling on this point. Accordingly, because we conclude that all Appellants lacked standing to claim any interest in the settlement procured as a result of Allean’s wrongful death, we summarily affirm the remaining points on appeal.

BROWN and ImbER, JJ., concur.

Arnold, C.J., and Thornton, J., dissent.

ANNABELLE Clinton Imber, Justice,

concurring. I agree with the result reached by the majority based upon the plain language of Ark. Code Ann. § 16-62-102 (Supp. 1999). Section 16-62-102(d) provides for two categories of in loco parentisbeneficiaries: “persons standing in loco parentis to the deceased person,” and “ persons to whom the deceased stood in loco parentis.'” The first category is written in the present tense. Thus, beneficiary status in that category is accorded only to persons who stand in loco parentis to the deceased at the time of death. The statute’s next phrase defining the second category of in loco parentis beneficiaries can be and should be similarly construed to refer only to persons to whom the deceased stood in loco parentis at the time of death. The use of the past tense in the latter phrase merely indicates that a deceased person cannot stand in loco parentis to anyone following his or her death. Both categories of in loco parentis beneficiaries are thereby capable of being construed consistently and harmoniously. Inequities would necessarily result if the statute were construed otherwise, with beneficiary status being limited to an in loco parentis relationship at the time of death as to one in loco parentis category, but not as to the other in loco parentis category.

For these reasons, I would affirm the probate court’s ruling based upon the plain language of section 16-62-102(d) and our case law interpreting the term in loco parentis.

BROWN, J., joins in this concurrence.

WH. “Dub” Arnold, Chief Justice,

dissenting. I disagree with the majority in holding that the relationship of in loco parentis does not continue past the age of majority for purposes of claiming as a beneficiary to a wrongful-death suit. Appellants Tiny Standoak Babb and Gregory Franks were raised by their grandmother, Allean Standoak, after their parents died. “Raise” is defined in the dictionary as: “to give (children) a parent’s fostering care : bring up : NURTURE, REAR.” Webster’s Third New International Dictionary 1877 (1986).

Appellees argue that the relationship of in loco parentis terminated at the time each of the children reached their majority. The wrongful-death statute sets forth those who are considered as beneficiaries. Section 16-62-102(d) provides:

The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.

(Emphasis added.)

This Court has not specifically addressed this issue until this case. The majority now holds that the relationship ends when the child for whom the deceased stood in loco parentis reaches the age of majority but not when the natural child reaches the age of majority. The statute makes no distinction as to children, whether natural or those for whom the deceased has stood in loco parentis, regarding whether they are beneficiaries even after reaching the age of majority. Therefore, I fail to see why the majority has made such a distinction. I, therefore, respectfully dissent.

Thornton, J., joins.


author: Donald L. Corbin, Justice.

text:
    Tamara NATION v. Bill AYRES and Carol Ayres, Husband and Wife; Edward A. Allen and Elizabeth Buchanan Allen, Husband and Wife
    99-497
    9 S.W.3d 512
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000

      Andy E. Adams, for appellant.

      Robert J. Gladwin, for appellees.
   Donald L. Corbin, Justice.

This is an appeal from an order of the Washington County Circuit Court, finding that Appellees Bill and Carol Ayres and Edward and Elizabeth Allen were entitled to the establishment of a private road over property belonging to Appellant Tamara Nation. This case was certified to us from the Arkansas Court of Appeals as Appellant urges this court to overrule precedent dating from 1906. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(b)(5). For reversal, Appellant argues that the court below erred in laying a private road across her property where the road did not produce the least inconvenience to her as required by Ark. Code Ann. § 27-66-402(c) (Repl. 1994). We find no error and affirm.

The record reflects that Appellant purchased land in rural Washington County in 1993. After conducting a title search, Appellant determined that there were no easements on the land. There was, however, an abandoned railroad bed running across Appellant’s land. Appellees, who are adjacent landowners, are landlocked. Appellee Dr. Edward Allen testified that until 1993, he had traveled across the railroad bed in order to reach his land. At that time, however, Appellant placed a pile of rubble on the railroad bed to prevent his passage across the railroad bed.

Appellees subsequently filed a petition in the county court to establish a private road over Appellant’s land. Pursuant to Ark. Code Ann. § 27-66-401 (Repl. 1994), the county court appointed three viewers to determine the necessity of a private road. After investigating three possible routes for a private road, the viewers determined that a path following the abandoned railroad bed would provide the least inconvenience to all parties involved. The county court recognized that the route suggested by the viewers would place the road near Appellant’s home. Concerned with the inconvenience such a route might cause Appellant, the county court ordered the viewers to consider whether an alternative route could be brought in from County Road 33 and then intersect with the railroad bed farther away from Appellant’s home. After reexamining this possibility, the viewers determined that such a route was not feasible because it was too steep and required a significant amount of dirt work and clearing.

The county court agreed with the determination of the viewers and ordered that the private road should follow the abandoned railroad bed. In reaching its conclusion, the court considered the benefit of the road to Appellees, as well as the inconvenience it would cause Appellant. To accommodate any inconvenience resulting from the road passing near Appellant’s home, the court ordered that the road should narrow from thirty feet to twenty feet in the area near Appellant’s home. Appellant was also awarded damages in the amount of $1,500.00. Appellant appealed the decision of the county court to the circuit court. After conducting a trial de novo, the circuit court upheld the order of the county court. This appeal followed. In reviewing this matter, we consider the evidence in a light most favorable to appellees and affirm unless the decision of the trial court is clearly erroneous. Ark. R. Civ. P. 52; Bean v Nelson, 307 Ark. 24, 817 S.W.2d 415 (1991); Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983).

The circuit court relied on the controlling statutory provision, as well as this court’s interpretation of that statute, in determining that a private road across Appellant’s land was necessary. Section 27-66-402(c) governs the duties of viewers and provides as follows:

If they or a majority of them shall be of the opinion that a private road is necessary and proper, as prayed in the petition, they shall lay out the road in a manner that produces the least inconvenience to the parties through whose land the road shall pass.

This court’s case law interpreting and applying this statute dates back to the decision in Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906). In Pippin, this court held:

In determining whether such a road is necessary, the court must, of course, take into consideration, not only the convenience and benefit it will be to the limited number of people it serves, but the injury and inconvenience it will occasion the defendant through whose place it is proposed to extend it. After considering all these matters, it is for the court to determine whether the road is, within the meaning of the law, necessary or not.

Id. at 21, 93 S.W. at 65. The rule as set forth in Pippin has been consistently followed by this court in all subsequent cases involving the establishment of a private road. See, e.g., Bean, 307 Ark. 24, 817 S.W.2d 415; Castleman v. Dumas, 219 Ark. 463, 652 S.W.2d 629 (1983); Armstrong, 279 Ark. 24, 648 S.W.2d 450; Ahrens v. Harris, 250 S.W.2d 938, 468 S.W.2d 236 (1971); Riggs v. Bert, 245 Ark. 515, 432 S.W.2d 852 (1968); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Roth v. Dale, 206 Ark. 735, 177 S.W.2d 179 (1944); Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936); Houston v. Hanby, 149 Ark. 486, 232 S.W. 930 (1921).

Appellant, however, now urges this court to overturn this line of cases. She argues that this court’s interpretation of section 27-66-402(c) is an improper extension of the plain and ordinary meaning of the statute. Appellees argue in response that the trial court did in fact apply the correct standard in establishing the private road over Appellant’s land. Appellees further argue that this court has previously held that where a statute has been construed and that construction consistently followed for many years, such construction should not be changed. See O’Daniel v. The Brunswick Balke Collender Co., 195 Ark. 669, 113 S.W.2d 717 (1938). We agree with Appellees.

This court has held that a basic rule in construing a statute is to give consistent and uniform interpretations to that statute so that it does not mean one thing at one time and something else at another time. Arkansas Dep’t of Human Servs. v. Harris, 322 Ark. 465, 910 S.W.2d 221 (1995). Furthermore, this court has said that as time passes, the interpretation given a statute becomes a part of the statute itself. Id; Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978).

Such reasoning certainly applies in the present situation. The language in section 27-66-402 is virtually identical to the language of the statute as it was originally enacted. Considering the fact that our case law on this subject has been consistent for almost one hundred years, logic dictates that if the General Assembly believed that we were incorrectly interpreting the statute, it would have taken the opportunity to draft new statutory language to prevent such an incorrect interpretation. This court has often held that the General Assembly is presumed to have enacted a law with full knowledge of court decisions on the subject, and enacted the law with reference to those decisions. Harris, 322 Ark. 465, 910 S.W.2d 221; Smith v. Ridgeview Baptist Church, Inc., 257 Ark. 139, 514 S.W.2d 717 (1974); J.L. McEntire & Sons, Inc. v. Hart Cotton Co., Inc., 256 Ark. 937, 511 S.W.2d 179 (1974). Appellant has faded to present a compelling argument warranting reversal of this court’s case law. Accordingly, we decline to overturn our precedent.

Our review of this matter, however, does not end with our refusal to overturn precedent. Appellant argues in the alternative that our interpretation of the statute should not be applied to her case. Appellant contends that the trial court erred in placing the road as it did because there is another possible route coming off County Road 33 and intersecting with the railroad bed that would cause her less inconvenience. This court has previously rejected similar arguments, however. See Bean, 307 Ark. 24, 817 S.W.2d 415; Castleman, 279 Ark. 463, 652 S.W.2d 629. In Bean, this court upheld the circuit court’s finding that a private road was necessary even though alternative routes were available, noting that such an alternative route would prove costly to the appellees. Likewise, in Castleman, this court rejected the appellant’s contention that another route was available because there was no evidence in the record to support such a contention.

Here, while Appellant did present some evidence regarding the location of another possible route across her land, such evidence was in conflict in the court below. One of the viewers testified that they considered this alternate route and determined that it was not feasible and that Appellant would only gain a few extra feet from this route. The viewer further testified that it was obvious that the railroad-bed route had been in place and used as a road for some time, thus making it the best alternative for a private road. To the contrary, Appellant presented testimony of a contractor that such a route could be cleared for approximately $2,500.00. The contractor’s testimony, however, was couched in general terms. This court has held that disputed facts and determinations of the credibility of witnesses are within the province of the factfinder. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The circuit court clearly gave more weight to the findings of the appointed viewer than to the testimony of the private contractor. Based on the evidence presented below, we cannot say that the circuit court clearly erred in determining that a private road following the railroad bed was necessary.

Affirmed.


author: Annabelle Clinton Imber, Justice.

text:
    Betty DICKEY, Jefferson County Prosecuting Attorney v. SIGNAL PEAK ENTERPRISES, et al.

    99-57
    9 S.W.3d 517
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000
    [Petition for rehearing denied March 9, 2000.]

      Mark Pryor, Att’y Gen., by: Lori L. Freno, Ass’t Att’y Gen., for appellant.

      Louis L. Loyd, for appellees.
   Annabelle Clinton Imber, Justice.

In this appeal, the Jefferson County Prosecuting Attorney challenges the jurisdiction of the Jefferson County Chancery Court to enjoin a potential criminal prosecution. The appellees own and operate amusement machine vending businesses in various locations within the City of Pine Bluff, Arkansas. The following notice was sent by the Jefferson County Prosecuting Attorney to appellees on September 23, 1998:

Dear Bingo and/or Arcade Operator: Take this as notice that any operation that constitutes gambling as described in the Arkansas Constitution, Article 19, [sjection 14, and more specifically defined in Arkansas Code Annotated 5-66-101, et [seq] must cease immediately. Effective October 5[J 1998, any such operations will be subject to the full extent of prosecutory enforcement.

On October 5, 1998, appellees John and Kathy Erwin, Signal Peak Enterprises, and B & B Enterprises filed a petition and application for temporary restraining order, injunctive relief, and declaratory judgment in the Chancery Court of Jefferson County, Arkansas, against the City of Pine Bluff, Betty Dickey, in her official capacity as the Jefferson County Prosecuting Attorney, and W.C. Brassell, in his official capacity as the Sheriff of Jefferson County (“the Respondents”). The appellees alleged in the petition that the action threatened by the Prosecuting Attorney in the above-quoted notice, if taken against them, would be in contravention of the law, and that the amusement machines used in their respective businesses were legal. Furthermore, appellees argued that they would suffer immediate and irreparable harm to their vested property rights, including their businesses, their business relations, and their good will, if the respondents were not immediately restrained from taking prosecutorial action against them, and that they had no adequate remedy at law. Appellees also asked the court to declare that:

A. [Appellees’] amusement machines are not “gambling devices” as defined [in] Ark. Code Ann. Sections 5-66-101 et seq. or by the Arkansas Constitution Article 19, Section 14, but, in fact, are specifically authorized by Ark. Code Ann. Sections 26-57-401 et seq.
B. [Appellees] have followed the guidelines of Ark. Code Ann. 26-57-401 et seq., in that the [appellees] have not allowed any player of machine to exceed the Single Play Maximum Limits.
C. That the internal policies of the [respondents] used to interpret and enforce Ark. Code Ann. Sections 5-66-101 et seq., are arbitrary, discriminatory and selective, and have caused the [appellees] to suffer, and continue to suffer, irreparable injury to vested property rights with no adequate remedy at law.
D. That amusement machines do not constitute “lotteries” as defined in Arkansas Constitution Article 19, Section 14 and are thus not prohibited by the Arkansas Constitution.

The Jefferson County Chancery Court held a hearing on October 6, 1998, to consider appellee’s petition for injunctive and declaratory relief. At that hearing, the Prosecuting Attorney argued that the chancery court did not have jurisdiction to hear the case. The chancery court granted the injunctive relief requested by appellees and entered a temporary restraining order on October 15, 1998. The chancery court subsequently granted motions to intervene by appellees Charles D. Nixon, Charles and Elizabeth Babcock, Sammy Gray, and Robert J. Susen, who also own and operate amusement machine vending businesses in the City of Pine Bluff, Arkansas. On October 23, 1998, the Prosecuting Attorney filed answers to the petitions filed by appellees, and pled affirmatively that the chancery court lacked subject matter jurisdiction. Pursuant to a request by the chancellor, all parties filed briefs with the chancery court on the issue of its jurisdiction to hear the case. The chancery court concluded that it had jurisdiction to grant an injunction against the prosecuting attorney’s office, and that its earlier temporary restraining order should be converted into a preliminary injunction. The preliminary injunction order was filed on December 15, 1998. The Prosecuting Attorney now brings an interlocutory appeal to this court and argues that the trial court lacked subject matter jurisdiction because courts of equity may not enjoin anticipated criminal prosecutions and because appellees have an adequate remedy at law. We reverse and dismiss.

The appellant first argues that the chancery court lacked subject matter jurisdiction because courts of equity do not have jurisdiction to enjoin potential criminal prosecutions. As we stated in Deaderick v. Parker, 211 Ark. 394, 396, 200 S.W.2d 787, 788 (1947), “[i]t is a familiar rule in this state that courts of equity will not interfere by injunctions to prevent anticipated criminal prosecution.” We reaffirmed that general rule recently in Billy / Dot, Inc. v. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995). In that case, the operator of a bingo establishment asked the chancery court to enjoin the Prosecuting Attorney from closing its bingo operation and from imposing penalties. Id. The chancery court concluded that it had no authority to issue such an injunction and dismissed the complaint. Id. We affirmed and restated the general principle: “[o]ur cases are legion that chancery courts will not interfere to enjoin anticipated criminal prosecutions.” 322 Ark. at 275, 908 S.W.2d at 337. We also acknowledged in Billy / Dot, Inc. v. Fields that there is a narrow exception to the rule that chancery court will refrain from interfering with prosecutorial functions, but “that exception is limited to the chancery court’s protection of property rights in the form of lawful businesses.” 322 Ark. at 275, 908 S.W.2d at 337. The exception, however, did not apply in Billy / Dot, Inc. v. Fields because the operation of a bingo establishment was not a lawful business. Id.

The chancery court found in this case that the appellees established on a prima facie basis that certain amusement machines complied with the licensing and taxation provisions for coin-operated amusement devices in Ark. Code Ann. §§ 26-57-401 et seq. (Repl. 1997 and Supp. 1999). Based on that finding, the chancery court concluded that this case fell within the limited exception to the general rule noted in Billy/Dot, Inc. v. Fields. We disagree. The notice provided by the Prosecuting Attorney stated that any operation that constitutes gambling under Article 19, section 14, of the Arkansas Constitution and the Arkansas Criminal Code would be subject to prosecution. Thus, the notice by the Prosecuting Attorney limited the threat of prosecution to illegal gambling operations, which is clearly a prosecutorial function. In contrast, when a city council proceeded summarily to close a hotel, we held that the hotel’s owner was entitled to a hearing in a court of competent jurisdiction before her property right to carry on a lawful business could be taken from her. Texarkana v. Brachfield, 207 Ark. 774, 183 S.W.2d 304 (1944). Similarly, we held that a court of equity could not deprive a diamond appraiser of his right to carry on his lawful business of conducting diamond appraisals by means of an injunction. Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.W.2d 924 (1943). Here, the notice by the Prosecuting Attorney was aimed exclusively at illegal gambling operations, not lawful business operations.

Under these circumstances, we hold that the general rule prohibiting chancery courts from interfering with prosecutorial functions applies in this case. Accordingly, the chancery court had no jurisdiction to enjoin the Prosecuting Attorney from prosecuting any operation that “constitutes gambling as described in the Arkansas Constitution, Article 19, [s]ection 14, and more specifically defined in Arkansas Code Annotated 5-66-101, et [seq]....” In light of this holding, we need not address appellant’s corollary argument that the chancery court lacked subject matter jurisdiction because appellees have an adequate remedy at law.

Reversed and dismissed.

       Steve Dalrymple has succeeded Ms. Dickey as Jefferson County Prosecuting Attorney.

       The petition included the following description of the amusement machines:
      [Appellees’] amusement machines are the type that display a video amusement game on a 3X3 matrix or other matrix, similar to a tic-tac-toe board. During the play of this amusement machine, various symbols appear on the board. These machines were developed with several important features such as “skill stop” and a mandatory “freeze point” which allows a player to use skill to affect the outcome of the game. Further, the machines only give coupons to winning players which may be redeemed for merchandise.