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

text:
    Marcus HOOD v. STATE of Arkansas
    CR 96-103
    947 S.W.2d 328
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      Michael D. Ray, for appellant.

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

After a jury trial, the appellant was convicted of aggravated robbery, and sentenced to fifty years’ imprisonment. The appellant raises four points for reversal. We affirm.

On January 4, 1994, Hamburg police officer Danny Ray Smith received a call concerning an alleged armed robbery that took place at a service station. Officer Smith found that one of the gas station’s proprietors, Shorty Williamson, had been shot. Another man at the scene, Leroy Harris, provided Officer Smith with a description of a vehicle at the scene, “a small new model, new looking model green car with heavy dark-tinted windows.”

Leroy Harris had gone to the Williamson service station to get some gas. While walking inside to pay, he saw a person walking out of the station whom he later identified as Cedric Dunn. While inside, Harris saw Williamson bent over. Harris then went back outside and noticed a small, green car with tinted windows parked at the back of the station. The car subsequently left and headed south. Harris did not see who was in the car, nor did he see Dunn actually enter the car.

At trial, Hood’s friend, David Haynes, recalled that shortly before January 4, 1994, Hood went along with him to a field to shoot a chrome .357 Smith & Wesson, with a black, rubber-grip handle. After Haynes finished firing the gun, he said that he left it in Hood’s car, which he described as a small “light green-looking Honda.” Haynes did not see Hood again, but found out the next day that Hood was in jail. On cross examination, Haynes explained that he put the gun under the car seat while Hood was outside of the car, and that he did not know if Hood saw him put the gun under the seat. Haynes likewise never told Hood the gun was under the seat.

Cedric Dunn pled guilty to aggravated robbery and theft of property in relation to the Shorty Williamson shooting, and was sentenced to twenty years. Hood was married to Dunn’s aunt, and the two had known each other for eight or nine months prior to the robbery. Dunn testified that Hood came to him and “said we was going to go and rob Mr. Williamson.” He said that he rode with Hood, who was driving his aunt’s car, to Shorty Williamson’s gas station. Dunn testified that Hood parked the car and followed Dunn into the gas station, but then Hood “seen somebody and left.” According to Dunn, he pointed a gun at Williamson, who in turn struck at the gun, causing it to discharge. Williamson fell to the floor, and Dunn took some money from Williamson’s pocket and ran. Dunn further testified that the gun was a “chrome, black handle .357,” with a rubber handle, that he obtained from Hood. Hood had told Dunn that he was holding the gun for a friend. After the shooting, Dunn said.that he went back to Hood’s car and Hood drove him back to his home in Wilmot. While they were leaving, Dunn saw Leroy Harris pulling into the gas station. Dunn added that he gave Hood the money and the gun, and that Hood said he would hide the gun and they would split up the money later.

Joe Tullos was a captain with the Ashley County Sheriffs Reserve Department. On January 4, 1994, he received a radio dispatch about a “teal-green small import” that was involved in an armed robbery in Hamburg. That morning, Tullos encountered a vehicle matching the description about a mile and a half east of Wilmot. He observed the vehicle turn into the Wilmot city dump off of Highway 52. He waited for about three minutes, and then saw the vehicle pull out of the dump and continue down the highway. After following the vehicle for three miles, he pulled the vehicle over. He then arrested Hood, the only occupant of the vehicle. After Wilmot chief of police Glen Lawson arrived on the scene and advised Hood of his Miranda rights, Hood made the following statement: “Man, I never got out of the car over there.”

Officers William Setterman and David Oliver aided in the investigation of the robbery. During an interrogation, Hood volunteered to take them to the sight where he disposed of the gun. Hood took Setterman, along with Hamburg chief of police David Sims,' to the dumpsters east of Wilmot, off of a gravel road. In a grassy area Sims recovered a chrome .357 revolver. The revolver contained one spent shell casing with five live rounds.

Hood was charged with theft of property and aggravated robbery. The trial court granted Hood’s directed verdict motion with respect to the theft of property charge. However, the jury ultimately convicted Hood for aggravated robbery, and sentenced him to fifty years’ imprisonment.

1. Sufficiency of the evidence.

Hood challenges the sufficiency of the evidence to support his conviction for aggravated robbery. The State does not address the merits of his argument, but responds that the issue is not preserved for appellate review because Hood failed to abstract the trial court’s ruling on the renewal of his directed verdict motion. We agree. At the close of the State’s case, Hood’s abstract shows that he made a specific directed-verdict motion on the aggravated robbery charge alleging that there was insufficient evidence of corroboration. The abstract also reflects that the trial court found that there was sufficient evidence of corroboration to give the case to the jury. Following the close of all evidence, Hood made a general renewal of “all earlier motions,” and the abstract demonstrates that closing arguments were then made.

While Hood’s abstract contains his general renewal of the earlier, specific directed-verdict motion, see Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995) (renewed directed-verdict motion “I would renew all previous motions I have made” at close of evidence sufficient for appellate review), it fatally omits the trial court’s ruling on this motion. This court has often emphasized that the record on appeal is limited to that which is properly abstracted. See, e.g. Moncrief v. State, 325 Ark. 173, 925 S.W.2d 776 (1996). Without the trial court’s ruling, we have no basis for a decision, and are precluded from a review of this point. See Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996); Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992).

2. Sufficiency of the transcript.

Hood argues that the record in the case is inadequate for purposes of appellate review. Hood originally filed a motion to supplement the transcript, arguing that the record omitted a February 7, 1995, suppression hearing and a bench conference at trial regarding Hood’s objection to the State’s question to Setterman, “ [W]here you or did you recover anything of evidentiary value in the investigation of Shorty Williamson’s Service Station in Hamburg?” See Hood v. State, 324 Ark. 457, 920 S.W.2d 853 (1996) (per curiam). We granted the motion to supplement and remanded to reconstruct and setde the record. Id. We noted the resolvable nature of the omissions involved, and observed that even if a transcript of the proceedings could not be made, the record could nonetheless be settled pursuant to Ark. R. App. P.— Civ. 6. Id.

On June 6, 1996, the trial court held a hearing to reconstruct the record. Apparently, the court reporter who made the original record of the case, Val Dixon-Sims, failed to produce certain tapes, thus making it impossible to transcribe certain portions of pretrial hearings and a bench conference. When the initial transcript was received from Dixon-Sims, it contained none of the pretrial hearings. On remand, court reporter Margaret Norton was able to use existing tapes to prepare a partial transcript of a majority of the pretrial hearings, but there were no tapes at all of a particular suppression hearing, and the audio quality of the bench conference was inadequate.

Defense counsel explained at the June 6, 1996, hearing that the bench conference concerned the trial court’s previous failure to rule on his motion to suppress. Because the trial court had not yet issued a formal ruling on the motion, defense counsel was concerned as to whether Setterman would be able to testify to the circumstances surrounding the recovery of the gun, given that it was the fruit of an allegedly coerced statement. Defense counsel further opined that “the Court must have overruled my objection. . . because the witness then went ahead and began testifying to where they went and what they got and what they did. That appears to me to be what happened at that bench conference.” The prosecutor likewise stipulated to this version of events at the bench conference.

On June 24, 1996, a supplemental record was filed with this court containing a transcription of multiple pretrial hearings along with the June 6, 1996, reconstruction hearing. On October 21, 1996, the State filed a motion to remand with this court arguing that while the record had been settled with respect to the June 20, 1995, bench conference, it had not been settled with respect to the suppression hearing testimony of Officers Oliver and Tommy Breedlove. We granted the motion, and the trial court held another reconstruction hearing on December 4, 1996. At this hearing, defense counsel explained that tape-recorded interviews were taken from Hood on January 4, 5, and 6, 1994. According to defense counsel’s recollection, the tapes of the interviews showed that Hood was ill at the time of the statements, as indicated by Hood’s constant coughing on the tapes. Defense counsel also recalled that the police used profanity, derogatory statements, and manipulation to obtain the statements.

The remainder of the December 4, 1996, hearing focused on the reconstruction of Breedlove’s and Oliver’s testimony regarding their interview with Hood on January 4, 1994. This testimony was apparently given originally at the February 7, 1995, suppression hearing. Both the prosecutor and defense counsel attempted to recollect the questions and answers asked of Breedlove. Breed-love was also called as a witness and asked questions regarding his recollection of his testimony at the suppression hearing. The prosecutor then read a transcript of Hood’s January 4, 1994, interview prepared by defense counsel for the suppression hearing. Both the parties informed the trial court that this was an accurate recitation of the testimony adduced at the suppression hearing.

According to defense counsel, the only matter left unresolved was Officer Oliver’s statement that he was attempting to intimidate Hood during the interview. The prosecutor responded that Oliver did admit that he was trying to intimidate Hood, as well as that he had made misrepresentations to Hood regarding statements Dunn had made. Defense counsel then replied “that’s an accurate recitation of what happened at the suppression hearing, Your honor, in its entirety, I think.” The trial court suggested that Officer Oliver be called as the next witness at the reconstruction hearing, to which defense counsel responded that it would be unnecessary to call Oliver, given the prosecution’s stipulation to the “intimidation” testimony. Subsequently, the trial court again inquired whether Oliver’s testimony was necessary, and defense counsel responded:

Your honor, I think the prosecutor and I agreed to what occurred, what was said, what we’ve read into the record. So I, it surprised me, I didn’t think we would be, but I don’t believe we’ll have to put him on the stand and question him because I believe we stipulated to what he said. The arguments that were made to the Court I think have been recreated. So I don’t see any need to put him on the stand and question him, Your Honor.

On direct review, Hood now claims that the record is insufficient for our review. He first contends that the exact dates of the three suppression hearings are unknown. This is not the case. The first supplemental transcript shows that a suppression hearing was held on February 3, 1995, where Officers Sims and Setterman testified. The first supplemental transcript also shows that a suppression hearing was held on May 15, 1995, where Charlotte Tadlock testified to Hood’s health and physical condition when he was being interrogated in January. Hood also testified at this May 15, 1995, hearing. Both parties agree that there was another suppression hearing where Oliver and Breedlove testified, and that it occurred between the February 3 and May 15 hearings. While the parties never technically settled when this hearing occurred, the weight of the evidence suggests it was held on February 7, 1995.

Hood also complains that the reconstruction hearings lack substance. Again, this argument is without merit. The two supplemental transcripts total almost one-hundred fifty pages and transcribe at least in part all of the missing pretrial hearings, except for the second suppression hearing where Breedlove and Ohver testified. Moreover, the parties agreed that the December 4, 1996, reconstruction hearing adequately established the testimony from the missing suppression hearing. Thus, the record is sufficient to allow this court to review the voluntariness of Hood’s statement. Hood also argues that the record is insufficient because it lacks a transcript of the bench conference on Hood’s objection to Setterman’s testimony. However, at the June 6, 1996, reconstruction hearing, the parties agreed that the subject of the bench conference was the lack of a ruling on the motion to suppress, which motion was ultimately denied.

Finally, we must take note of two recent cases involving problems with the same court reporter, Val Dixon-Sims. In both McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997), and Jacobs v. State, 327 Ark. 498, 939 S.W.2d 824 (1997), we reversed the appellants’ convictions and remanded for new trials because the trial transcripts were inadequate for appellate review. However, McGehee and Jacobs both involved life sentences, thereby implicating Ark. Sup. Ct. R. 4-3(h). Without an adequate record, the requirements of Rule 4-3 (h) were not satisfied. See McGehee, supra; Jacobs, supra.

The present appeal is not a Rule 4-3 (h) case. We are therefore limited to considering only what is argued by the appellant on appeal. The trial transcript, when combined with the supplemental transcripts generated from the reconstruction hearings, provides us with an adequate record to fully consider the merits of Hood’s appeal.

3. Voluntariness of statement.

Hood gave three separate interviews to the police on three separate days. None of these statements was actually admitted into evidence at trial. However, Hood argues that the gun, which was recovered on the morning of January 5, was the fruit of a coerced statement on January 4. Thus, Hood maintains that the gun and its ammunition should have been suppressed at trial.

A custodial confession is presumed involuntary and the burden is on the State to show that the confession was voluntarily made. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996). When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). In determining whether a confession was voluntary, the Court considers the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Kennedy, supra; Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Kennedy, supra; Oliver, supra.

According to the officers’ testimony, the January 4 interview with Hood began at approximately 3:40 and ended one hour later. Hood was read his Miranda rights, and Hood executed a form acknowledging his rights and waiving them. According to Officer Breedlove, Hood was coughing and appeared to have a cold during the interview. Breedlove admitted that Officers Oliver and Setterman used profanity during the course of the interview. At another point in the interrogation, Officer Breedlove asked Hood “if he knew what a moron was.” At one time, an interrogating officer asked Hood, “Do I have moron written on my forehead?”

Later in the interview, Hood states that he knew a man who said he was going to get money from the bus station about a week prior to the robbery. In response, Oliver asks “Marcus, you’re still stammering around. I don’t believe that you let a seventeen-year old push you into this. I don’t care what you say, you know about it.” Ohver later says, “The truth is going to come out. We’ll discuss it again. The gun where it came from, don’t make us go back over this again, you will be up a creek. Tell me the truth. It won’t hurt you, or will not hurt you.”

Hood then admits that he gave Dunn the gun, and says that he “bought the gun from Clearly.” The following sequence occurs next:

OFFICER: I don’t think there is any use in taking a statement from you. Where is the gun?
HOOD: He has the gun.
OFFICER: Where is the gun and where is the money?
HOOD: You all can take me back, I tried to tell you.
OFFICER: You have to live with this, I don’t. Let me explain this to you where you can understand. I’m going to test your hand. What if he [Dunn] says you shot the man? I have to get prints off the gun to prove he lied to me, otherwise there is no proof you didn’t do the shooting yourself. What if [Dunn] told me this? We know he shot the man. He said he did the shooting. Without the gun we can’t prove it. It’s for your benefit.

At this point Hood admits that the gun is in a ditch on Highway 52 where Tullos turned around:

OFFICER: Where is the billfold? I need it to show that he pulled it out. What is it going to look like if he said you pulled it out of his pocket? I believe the other guy is going to squirrel out of it and leave Marcus hanging.
OFFICER OLIVER: Your wife is in okay shape at the hospital. A parole hold has been put on you. They’ll be here in the morning to get you. I need a gun and billfold if you don’t want to take the rap for shooting the man.
[Hood provides directions to the gun],
OFFICER: Are you ready to talk to us? I want to know about the gun, the money and the wallet.
HOOD: I could tell you something later on if you let me talk to him [Dunn]. I will tape record him [Dunn].
OFFICER: Why are we delaying this, Marcus?
HOOD: He showed me about eleven $100.00 bills plus a stack of twenties.
OFFICER: Your wife went in the hospital yesterday. Your health insurance is not too good. Hospitals want money, don’t they? You didn’t have any money to pay them. How the hell is [Dunn] supposed to see you from back here where you say you were parked at? Why did you let him leave with the money? Why didn’t you take some?
HOOD: Because I didn’t want money on me when travelling. He was to give it to me later. [Dunn] meant to pay Leroy off so he wouldn’t tell on me.
OFFICER BREEDLOVE: The question is how long are you going to go back to the pen and how much is your bond going to be. If I have a chance to make a recommendation on what you said today to the judge it will be $100,000 bond. That’s what I would recommend.
OFFICER OLIVER: I’m going to arrest your wife also.
HOOD: She didn’t have anything to do with it.
OFFICER BREEDLOVE: I want a written statement from you saying what happened, everything.
HOOD: I can’t spell. You can’t read it.
OFFICER: I will pick it up after a while. How far did you get in school?
HOOD: Seventh or eighth grade.

This concluded the interview. At the suppression hearing, Officer Oliver admitted that he was trying to intimidate Hood.

With regard to the statements made by the police to Hood, it is significant that there were no threats of physical violence against him or promises of leniency. In two United States Supreme Court cases cited by Hood, Arizona v. Fulimante, 499 U.S. 279 (1991), and Payne v. Arkansas, 356 U.S. 560 (1958), credible threats of physical violence were levied against the accused to obtain confessions. As to the officer’s assertions regarding Dunn’s alleged statements, we have held that misrepresentations of fact, while relevant, do not necessarily render an otherwise voluntary confession inadmissible. See Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996); Tucker v. State, 261 Ark. 505, 549 S.W.2d 285 (1977). In Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), we “[found] no fault with an interrogator trying to persuade an accused to tell the truth, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made.” Moreover, persistent questioning based upon the interrogator’s assumption of the accused’s guilt will not render a statement involuntary, particularly when the accused’s story is presumed to be untrue on the basis of statements given by other persons present at the time of the crime. Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995). As to the officers’ appeal to Hood to consider the health of his wife and the threat of her arrest, we have observed that the police may, without violating an accused’s rights, attempt to play on his sympathies or explain to him that honesty is the best policy, provided that the accused’s decision to make a custodial statement is voluntary in the sense that it is the product of the accused’s exercise of his free will. Id.; see also Misskelley, supra (police may use some psychological tactics in eliciting a custodial statement from an accused). Although the interrogating officers’ statements were obviously intended to influence Hood, we are unable to say that they were improper or contrary to basic notions of fairness, or that they procured an untrue statement.

With regard to Hood’s vulnerability, he was twenty-two years old at the time of the interrogation. Additionally, he executed a rights-waiver form at the time of the interview. On January 4, 1994, he was only interrogated for approximately one hour, and was not handcuffed or bound. Also, Hood “was no stranger to the criminal justice system,” a relevant factor discussed in Misskelley v. State, supra. Officer Breedlove testified that Hood never requested any food or bathroom privileges. Charlotte Tad-lock, an emergency medical technician, examined Hood after he complained about feeling ill. She said he had a slight fever of only one-hundred degrees, which was “nothing major” in her opinion. While Hood said that he had a 104-degree temperature, this is simply a credibility determination best resolved by the trial court. Tadlock said that she gave him two aspirins, and observed that Hood appeared to be alert. Given the totality of the circumstances, we find that the trial court was correct in concluding that the January 4 statement was voluntary.

4. Failure to administer lesser-included instructions.

For this point, Hood argues that the trial court erroneously failed to instruct the jury with regard to the lesser-included offense of simple robbery. Hood’s abstract shows that he moved for an instruction on simple robbery pursuant to “AMCI 301,” which he proffered as Defendant’s Exhibit Two, in addition to the “AMCI 301” transitional instruction proffered as Defendant’s Exhibit Three. Hood’s abstract also shows that he proffered “AMCI 2103” as Defendant’s Exhibit Four, along with requested additions to “State’s AMCI 8101” and “State’s AMCI 8301”, proffered as Defendant’s Exhibit Five, as well as an objection to “State’s 9202.”

Hood has failed to abstract the instructions that were administered to the jury. More importantly, he has failed to abstract his proffered instructions. Even the record lacks the substance of the various “defendant’s exhibits” that Hood proffered. A proffered instruction must be included in the record and abstract to enable the appellate court to consider it. Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996). We thus decline to consider the merits of Hood’s argument.

Affirmed.

Newbern, J., concurring.

Brown, J., concurring.

David Newbern, Justice,

concurring. The majority opinion is correct. The ruling on Mr. Hood’s directed-verdict motion renewal does not appear in his abstract of the record. As we limit our review of the record to that which is contained in the abstract, there was, so far as we allow ourselves to be concerned, no ruling on the motion. In view of the fact that the abstract shows that the trial continued after the motion was made, we may well be in contempt of common sense as Justice Brown allows in his concurring opinion. If so, it is not the first time.

The system of presenting the record to this Court through abstracting, and limiting our review to that which has been abstracted, has served this Court for a number of years. The abstracting method has indeed been a major contributor to our practice of keeping current despite a crushing load of cases. Anyone familiar with that system, however, must be aware that it has not been free of criticism and that resulting technical rulings have deprived this Court and our Court of Appeals of opportunities to rule on the merits of cases. We have always justified the system by repeating that there are seven justices on the Court and only one record of trial. See, e.g., Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997); Duque v. Oshman’s Sporting Goods, 327 Ark. 224, 937 S.W.2d 179 (1997). Thus, each of us must have an abstract of the record because it is too much trouble or too time consuming for us to share the record.

On the other side of the “only one record” coin, however, we often say we may “go to the record” to affirm. See, e.g., Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995); Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). We obviously mean that, even though the abstract does not contain an essential item, if we can find it in the record we may recognize its existence if the result is to affirm. There also have been instances, exemplified by Justice Brown’s concurring opinion in this case, in which time has been found by a justice to go to the record to see what happened at the trial. Apparently the justice who possessed the record while the case was on appeal in this Court had no objection to sharing it with Justice Brown. So long as all appellate judges and justices maintain offices near each other and near the Clerk’s Office — in our case all in the same building — records of trial are available to any who care to see them.

The time has come again to consider being less technical. In our per curiam order of July 15, 1996, entitled, “In re: Supreme Court Rule 1-2, and Other Matters Related to the Jurisdiction of the Supreme Court and the Court of Appeals,” we noted the expansion of the Court of Appeals and discussed the role each court should play in the context of revising the manner of dividing jurisdiction. We provided for the cover sheet as the first step in identification of cases which should come to the Supreme Court where they will be decided by seven justices sitting en banc as opposed to, usually, the panels of three judges in the Court of Appeals. With the expansion of the Court of Appeals that Court will soon be relieved of the burden of the large backlog of cases it has endured the last few years. Contemplated revisions of our rules will put an end to the Supreme Court’s having to decide as many as ten or twelve cases per week so as not to develop a backlog.

By a per curiam order of October 17, 1988, entitled “In Re: Revision of Rules of the Supreme Court,” we began an experiment in which parties to cases on appeal in this State were allowed to forego presenting abstracts and to present instead an expanded “statement of the case” to be supplemented as necessary with an appendix containing photocopies of crucial pages from the record of trial. The system we devised was much the same as those used in other states and by the federal courts. Our announced purpose was to alleviate our concern “about whether our system requiring abstracting of the record is worth the effort lawyers must devote to it, and thus the money litigants must invest in it, in each case.”

Our appendix system was flawed in some ways. For example, it did not require record-page references in the statement of the case, and it had no provision for presenting a joint appendix. The main reason we called a halt to it, however, was not that such problems were insoluable; rather, it was that lawyers could not seem to get used to the idea that the statement of the case was the primary replacement for the abstract and that the appendix was to be used only as a resource tool to resolve any potential or extant dispute about facts or what had happened at the trial. Lawyers who had been made justifiably paranoid by our decisions refusing to decide the merits of cases due to incomplete abstracts seemed to have the feeling they needed to present far more than was necessary in an appendix. Appellate judges complained of needing wheel barrows to carry briefs with their appendices. There seemed to be no realization on the part of attorneys who were not accustomed to that system through federal court practice that there was no draconian provision for affirmance in the event of an incomplete appendix.

We ended the appendix experiment by our per curiam order of June 10, 1991, entitled In Re: Revision of the Rules, which we concluded with the following language:

If we find a way to bring our case load and that of the Court of Appeals within reason, we may return to the appendix system, with some revisions, because we continue to wish to implement the goals stated in our original order. We would like our system to be as inexpensive and simple as possible. Under other circumstances we will be able to exercise the patience required to permit lawyers and litigants to become accustomed to the change and to fine tune it with revisions.

In a profession devoted to achieving justice and fairness through precedent, stability and rebanee upon the past are very important; unwillingness to change is a resulting trait. Given (1) the fact that this Court and our Court of Appeals may at last be in a position to exercise the patience necessary to facilitate a major change in the manner of presenting cases to us, (2) a better effort on our part to produce a less flawed appendix-system rule, and (3) a stronger effort to educate lawyers and litigants concerning the proper use of such a system, we should be able to decide our cases more often on their merits than on the failures of lawyers or litigants to tell us what is in a record of trial which is usually just down the hall and certainly present in our conference room as we hold our decisional conference.

If we and our Court of Appeals can find the fortitude to implement a system that will permit us to reach the merits of cases which hitherto have been caught in the abstract trap, the administration of justice in Arkansas will be better served.

Robert L. Brown, Justice,

concurring. I concur in this decision but write separately because I would reach the merits of Hood’s argument and affirm based on sufficient evidence.

In Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994), we established the bright line rule that a defendant in making a motion for directed verdict must state the specific grounds supporting the motion. The Walker decision was followed by Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). In Durham, we held that when a criminal defendant makes a specific motion for directed verdict at the close of the State’s case and proceeds to present evidence on his own behalf, a general renewal of all motions at the close of the evidence suffices to preserve a sufficiency argument. See also Ark. R. Crim. P. 33.1. In the instant case, Hood complied with the requirements of Durham v. State, supra, and apprised the trial court fully of the argument he now makes on appeal. The trial court then continued the trial, according to the abstract, which is ample indication that the renewal motion was denied. (Indeed, the record includes the trial court’s ruling denying the motion.)

The majority declines to reach Hood’s sufficiency argument for the sole reason that his abstract does not reflect a ruling on the renewal motion. Under our rules, an abstract is “flagrantly deficient” only when it fails to include “such material parts of the . . . record as are necessary to an understanding of the questions presented to the Court for decision.” See Ark. S. Ct. R. 4-2(a)(6) & 4 — 2(b) (2). Here, the abstract clearly reflects a renewal of the directed-verdict motion followed immediately by the trial court’s continuation of the trial. Common sense should take hold at this juncture and direct this court to the obvious conclusion that the motion was denied.

In a comparable case just last year, three justices of this court concluded that when the abstract showed that a lawyer renewed a motion for directed verdict and the trial judge immediately commenced to instruct the jury, it was clear that the trial judge had, by his actions, denied the lawyer’s renewed motion. See Danzie v. State, 326 Ark. 34, 45, 930 S.W.2d 310, 316 (1996) (Dudley, J., concurring). The same holds true in this case.

The abstract sufficiently shows that the renewal motion was denied. I would reach the merits.

       The January 4, 1994, interrogation -was reconstructed by the prosecutor and defense counsel from an abbreviated transcript prepared by defense counsel from the tape-recorded interrogation. The prosecutor read from this transcript in a narrative form, and both parties made additions and clarifications as it was read. For the sake of clarity, we have reproduced the interrogation in question and answer form.


source: Caselaw Access Project

author:
Ray Thornton, Justice.
      Tom Glaze, J.,

license: Public Domain

text:
    Shirley A. CHLANDA and Thomas D. Ledbetter v. Lewis KILLEBREW
    96-1382
    945 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Peter B. Heister and Ledbetter & Associates, Ltd., by: Thomas D. Ledbetter, for appellants.

      Davis & Goldie, by: James Goldie, for appellee.
   Ray Thornton, Justice.

This is an appeal from the trial court’s order awarding attorneys’ fees pursuant to Ark. Code Ann. § 16-22-309 (Repl. 1994) and Ark. R. Civ. P. 11. Appellant Shirley Chlanda and her attorney, appellant Thomas D. Ledbetter, were ordered to pay the amounts of $ 5,000.00 and $ 7,663.93 respectively as partial payment of Lewis Killebrew’s attorney’s fees expended by Mr. Killebrew in defending an action for conversion. Both appellants argue on appeal that the trial court erred in finding that they filed a lawsuit that was not well grounded in fact and could not be supported by a good-faith argument for the extension, modification, or reversal of existing law. Their argument is well taken, and we reverse and remand.

The facts of the underlying case are set out in full in Chlanda v. Killebrew, 326 Ark. 791, 934 S.W.2d 227 (1996). Those facts necessary to understand the instant case are as follows. Mr. Killebrew was appointed coadministrator of the estate of Milford Fuller, who was Mrs. Chlanda’s brother-in-law. After Mr. Fuller’s death, Mrs. Chlanda claimed that Mr. Killebrew was holding some jewelry, which had been given to her by her sister, Evelyn Fuller, who had predeceased Mr. Fuller by less than two months. Mr. Killebrew maintained that he did not have the jewelry. The trial court granted summary judgment, and we reversed, holding that there were disputed factual issues to be resolved. It was during the pendency of this appeal that Mr. Killebrew petitioned the trial court for sanctions.

To obtain an attorney’s fee pursuant to Ark. Code Ann. § 16-22-309(a)(l), the prevailing party must show that there was “a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney . . . .” Id. To obtain an attorney’s fee pursuant to Ark. R. Civ. P. 11, it must be shown that an attorney or party signed a pleading not grounded in fact, not warranted by existing law, or good-faith argument for a change in the law, or filed for an improper purpose. Ark. R. Civ. P. 11; Cowan v. Schmidle, 312 Ark. 256, 848 S.W.2d 421 (1993).

We determined in Chlanda I that disputed factual issues remained unanswered. Chlanda v. Killebrew, 326 Ark. at 794, 934 S.W.2d at 228. Therefore, it cannot be said that appellants were pursuing a claim that was not grounded in fact. Such violations under the statute and the rule are established only when it is patently clear that a claim has no chance of success.

See Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995).

It is apparent from the record that the trial court, based its assessment of damages against Mr. Ledbetter in part on the numerous discovery violations that he committed; however, we do not reach the issue of whether sanctions for discovery violations would be appropriate. We note that the federal rule specifically states that Rule 11 “does not apply to disclosures and discovery requests, responses, objections, and motions that are subject to provisions of Rules 26 through 37.” Fed. R. Civ. P. 11(d).

In summary, because an essential element for sanctions under Rule 11 or Ark. Code Ann. § 16-22-309 is a determination that appellants were pursuing a claim that was not reasonably based in fact or law, and because that issue was resolved by our decision in Chlanda I, the award of attorney’s fees must be reversed and remanded.

Reversed and remanded.

Glaze, J., concurs.

Tom Glaze, J.,

concurring. I concur but do not join the majority’s analysis concerning the discovery violations or application of Fed. R. Civ. P. 11(d).


author: Ray Thornton, Justice.

text:
    Kathy PORTER v. Larry PORTER
    97-228
    945 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997
    [Petition for rehearing denied July 14, 1997.]

      Daggett, Van Dover & Donovan & Perry, PLLC, by: Doddridge M. Daggett, for appellant.

      Green & Henry, by: David G. Henry, and Carl J. Madsen, for appellee.

       Newbern, J., not participating.

   Ray Thornton, Justice.

Kathy and Larry Porter, appellant and appellee, respectively, were married in the early 1970s and moved into a home owned by appellee’s father, J.W. Porter, where they resided during the entire course of their marriage. During the marriage, appellee’s father incorporated Porter’s Seed Cleaning, Inc. All of the 100 outstanding shares in the corporation were initially issued to appellee’s father. He retained fifty-one shares and gave twenty-five shares to appellee and twenty-four shares to his wife, appellee’s mother.

Appellee filed a complaint for divorce against appellant on February 28, 1995. Appellant counterclaimed for divorce, and on January 2, 1996, the chancellor granted the divorce on appellant’s counterclaim. Appellant claims error in three points of the property division.

First, appellant contends that the increase in value of appellee’s twenty-five shares of stock in Porter’s Seed Cleaning, Inc., is marital property in which she has an interest. Second, appellant complains that the trial court should have awarded her the dollar value of one-half of her husband’s interest in a closely held corporation, Jay-Lynn Farming, Inc., rather than awarding her one-half of his stock ownership. For her third point, appellant claims that she should have been awarded a marital interest in the increased value of the farm house in which she resided based on the worth of the home when she first moved into it subtracted from the worth of the home at the time of the divorce.

We cannot determine from the abstract whether the chancellor was presented with evidence of the value of the 25 shares of gift stock in Porter’s Seed Cleaning, Inc., at the time of the divorce, and no evidence was abstracted to reflect that this was not a gift. We also cannot determine from the abstract whether evidence was presented to the trial court to establish the value of the closely held corporation, Jay-Lynn Farming, Inc., nor do we find that this issue was properly preserved for appeal. Finally no evidence was abstracted which would challenge the determination that the farm house belonged at all times to appellee’s father, and that all improvements to this property were paid for by the father.

It is well established that the abstract is the record for purposes of appeal. Allen v. Routon, 57 Ark. App. 137, 943 S.W.2d 605 (1997). We have recently held that Rifle 4-2(a)(6) of the Arkansas Supreme Court Rules is violated when there are no references to pages in the abstract and only transcript citations were supplied to the court. Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994). A transcript will not be examined to reverse a lower court. Oliver v. Washington County Arkansas, 328 Ark. 61, 940 S.W.2d 884 (1997). The burden is clearly placed on the appealing party to provide both a record and an abstract sufficient for appellate review. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997); Lee v. Villnes, 328 Ark. 189, 942 S.W.2d 844 (1997). Issues unsupported by convincing argument or authority will not be considered by this court. Schmidt v. Person, Evans & Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996). This court will not entertain an argument when it cannot be determined from the abstract what arguments were made to the lower court. Cosgrove, 327 Ark. at 328, 938 S.W.2d at 830. When previously confronted with an extensive record and numerous volumes, and where the abstract was nine pages and left out relevant information and was hard to understand, this court has refused review. Jewell v. Miller Co. Elec. Comm., 327 Ark. 153, 936 S.W.2d 754 (1997).

Rule 4-2 (a) (6) of the Arkansas Supreme Court clearly requires that the abstract should contain “pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.” The purpose of an abstract is to give us an understanding of the issues on appeal. McAdams v. Automotive Rentals, Inc., 325 Ark. 332, 924 S.W.2d 464 (1996). We may affirm for noncompliance with the Rule when there is a flagrantly deficient abstract.

In the matter before us for review, appellant fails to cite to her abstract at any point in her argument. The record in this case is 906 pages and is bound in seven volumes. The abstract is not quite five pages long and does not provide any testimony, authority, or documentation or even show that appellant disagreed with the chancellor’s findings.

In summary, the record as abstracted is insufficient to demonstrate error, and we find that appellant is procedurally barred on all three issues. Affirmed.

Newbern, J., not participating.


text:
    Thomas B. STUEART v. ARKANSAS STATE POLICE COMMISSION
    96-1129
    945 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997
    [Petition for rehearing denied September 11, 1997.]

      Benny M. Tucker, for appellant.

      Winston Bryant, Att’y Gen., by: Rick D. Hogan, Deputy Att’y Gen., for appellee.

       ' Glaze, J., would grant.

   Ray Thornton, Justice.

Appellant Officer Thomas B. Stueart was terminated from the Arkansas State Police after he tested positive for marijuana use during a random drug screening pursuant to the Department’s Drug Free "Workplace Policy. He appealed his termination to the Arkansas State Police Commission, which upheld it. The Pulaski County Circuit Court affirmed on appeal. Stueart argued to the Commission, as he does to this court, that certain required procedures set forth in the Drug Free Workplace Policy were omitted and that this prejudiced substantial rights. This point is well taken, and establishes reversible error. We hold that because the Commission ignored its own rules in affirming Stueart’s termination, its decision was based upon unlawful procedure. Ark. Code Ann. § 25-15-212(h)(3) (Repl. 1996). Accordingly, we reverse.

Pursuant to the Drug Free Workplace Act of 1988, the Arkansas State Police adopted a Drug Free Workplace Policy by General Order No. 104. The stated purpose of the order was to establish “the policies and procedures of the Arkansas State Police governing alcohol or drug testing of employees” and to prohibit “alcohol or drug abuse or drug misuse by employees, either on or off duty.”

The policy sets out specific steps to be taken in the chain of custody to ensure the reliability of the testing and to prevent tampering. A Drug Custody and Control form is used to properly document each step of the testing process. This required documentation is to show who received the samples, who opened them, and who tested them. The employee is required to sign the form at the time he is tested to confirm that he is the donor of the sample, that he has not altered it in any way, that the bottle was sealed in his presence with a tamper-proof seal, and that the information provided on the form and on the label affixed to the specimen is correct.

At the end of the testing, the laboratory is required to submit any positive results to the authorized Medical Review Officer for confirmation of results. The Medical Review Officer is defined in the policy as “[a] licensed physician or designated person who reviews all positive drug test results to determine whether or not such results were due to the tested employee’s proper use of a prescribed medication.” The policy states, “A positive test result shall only be reported when both the initial and confirmatory tests have been completed and the positive result is not adequately explained to the satisfaction of the Medical Review Officer by consultation with the employee or the employee’s physician.” [Emphasis in original.]

At the hearing, both sides agreed that the chain of custody was flawed because the forms were not filled out correctly by the persons in the chain. However, there was testimony at the hearing that established who received the specimen at each point, who opened it, that it remained sealed until received by the testing facility, and who tested it. The specimen was taken from Stueart at his home in Ashdown. The officer in charge of collecting the specimen took it to his home and put it in the refrigerator overnight. He then delivered it to another officer, who delivered it to yet another officer at a designated point on the highway, and that officer took it to Baptist Medical Center in Arkadelphia. The specimen was taken by courier the next day to Baptist Medical Center in Little Rock, the testing facility, where it was tested.

While Stueart did not sign the donor certification on the form, he testified that he gave a specimen to the officer as established by the testimony at the administrative hearing. However, the fatal flaw was that the final steps in the procedure were omitted entirely. These requirements are, as stated in the policy:

(1) that any positive results be submitted to the authorized Medical Review Officer for confirmation of results; and (2) that a positive test shall only be reported when both the initial and confirmatory tests have been completed and the positive result is not adequately explained to the satisfaction of the Medical Review Officer by consultation with the employee or the employee’s physician. [Emphasis in original.]

It was undisputed that these steps were omitted. Dr. Don Cashman, supervisor of the toxicology lab at Baptist Medical Center, testified on cross-examination as follows:

Q. What did you do when you saw that the results of this test were positive?
A. We sent those results to the Arkansas State Police.
Q. You have reviewed the policy. Now have you come to an opinion that you did not follow the policy?
A. It’s correct, yeah. Our process did not follow their policy.
Q. The last page of the drug policy, number 5, it says, “Submit any positive results to the authorized Medical Review Officer for confirmation of results.” Was that done?
A. No.
Q. And the bottom part, it says in 6a, “A positive test result shall only be reported when both initial and confirmatory results have been completed and the positive result is not adequately explained to the satisfaction of the Medical Review Officer by consultation with the employee or the employee’s physician.” Was that done?
A. There [sic] results were not submitted to a medical review officer.
Q. So 6a was not done, either; is that correct?
A. That’s correct.

By affirming Stueart’s termination in the face of an admitted failure to follow the Department’s stated policy, the Commission failed to follow its own rules. This failure distinguishes this appeal from a typical appeal from an exercise of judgment by an administrative agency in which our standard of review is limited to a determination of whether the agency’s action is arbitrary and capricious, or whether its findings are unsupported by the record. See, e.g., Arkansas Dep’t of Human Servs. v. Kistler, 320 Ark. 501, 898 S.W.2d 32 (1995). Rather, we are concerned with whether the Commission’s decision is based upon unlawful procedure. Regional Health Care Facilities, Inc. v. Rose Care, 322 Ark. 767, 912 S.W.2d 409 (1995). We have held that a procedure is “unlawful” when an agency fails to follow that which it has prescribed. Id. As the District of Columbia Circuit Court of Appeals stated in Panhandle Eastern Pipeline Co. V. F.E.R.C., 613 F.2d 1120 (D.C. Cir. 1979), which we quoted in part in Rose Care, “It has become axiomatic that an agency is bound by its own regulations. The fact that a regulation as written does not provide [the agency] a quick way to reach a desired result does not authorize it to ignore the regulation . . . . ” Id. at 1135. The decision of an administrative agency may be reversed “if the substantial rights of the petitioner have been prejudiced because the administrative findings . . . are . . . made upon unlawful procedure.” Rose Care, 322 Ark. at 771, 912 S.W.2d at 411 (quoting Ark. Code Ann. § 25-15-212(h)(3)).

The rights that were prejudiced in this case were indeed substantial. Although the United States Supreme Court has definitively approved drug testing, even when conducted without a reasonable suspicion that the subject is “using,” the Court has said that the collection and testing procedure must satisfy reasonableness requirements in order to protect the employee’s constitutional rights. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602 (1989).

For such a test to be “reasonable,” it must be reasonably related to the objectives of the test “as actually conducted.” National Federation of Fed. Employees v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987). We find the following guidelines instructive in determining whether a methodology of drug testing meets the reasonableness requirement:

In determining whether the searches “as actually conducted” were reasonable, the methodology of the searches must be examined in relation to the goals of the drug testing methods. If the, testing is not conducted in ways in which there is absolute confidence in the reliability of the results, then the purposes of testing are not secured. Treating someone for drug abuse who is not a drug user is counter-productive, as is disciplining someone who is not a drug user. ... It is critical that testing procedures be accurate and rehable.

Kevin B. Zeese, Drug Testing Legal Manual, § 5.01 [3] [d] at 5-18.39 (1995).

Stueart clearly had substantial rights that were placed at risk by the screening for drugs. Not only did he have a right to standards of reasonableness under the Fourth Amendment and under the Due Process Clause, but he also had a substantial interest in continued employment. Adherence to the procedure adopted by the agency to ensure absolute confidence in the reliability of the results was essential to protect these substantial interests. However, in affirming Stueart’s dismissal, the Commission ignored its own requirement that the results be confirmed by a medical review officer. This failure to follow its own rules deprived Stueart of the rights that the procedure was designed to protect.

The testimony of Dr. Henry F. Simmons at the hearing illustrates the importance of the responsibilities of the Medical Review Officer. Dr. Simmons, who serves as a medical review officer for the Little Rock Police Department, testified as follows:

[Assuming [the chain of custody is] intact, then I have to conduct, as a licensed physician ... an interview with the individual, unless he or she expressly declines the opportunity, to look for a medical basis for the result.
If I can find a medical basis, then I can make a negative report to the company. If I can’t, I have to make a positive report.

It is readily apparent from this description of this medical review officer’s duties, which are identical to those of the Medical Review Officer in the Arkansas State Police Program, that Stueart was deprived of the substantial rights protected by this procedure. He was deprived of the opportunity for an expert to determine whether there might be another explanation, besides marijuana use, for the positive result. Unlike the flaws in the chain of custody, this breach cannot be cured with affidavits and testimony.

Stueart properly raised this issue during the hearings before the Commission, and it ruled that the omission of the Medical Review Officer’s report was irrelevant. His argument and the Commission’s response are quoted in pertinent part as follows:

MR. YEARGAN: What I’m saying, sir, is the State Police has used the policy to terminate an individual, but it did not follow the procedures set forth in the policy to terminate him.
CHAIRMAN EILBOTT: I understand, but my question is, what is the relevance of a medical review officer where the substance is not a substance that is due to the tested employee’s proper use of a prescribed medication?
MR. YEARGAN: It wasn’t followed through. No one ever checked with him. It wasn’t done.

The Commission was clearly presented with Stueart’s argument that the failure to follow procedure, the required final step of a medical review officer’s evaluation, deprived him of substantial rights. The Commission determined — notwithstanding its own requirement for a final evaluation by a medical review officer — that the failure to follow its own rules was irrelevant.

We hold that the Commission’s failure to follow its own rules prejudiced the same substantial rights that the rules were promulgated to protect, and that this failure requires that we reverse the decision of the Commission to terminate Stueart. We direct that Stueart be reinstated and restored to the benefits of his employment, with appropriate consideration given to set-offs from earnings and benefits that he may have received. We reverse and remand to the trial court with instructions to remand to the Commission for further action consistent with the holdings of this opinion.

Glaze and Brown, JJ., dissent.

Tom Glaze, Justice, dissenting. I respectfully dissent. To the Arkansas State Police Commission’s credit, it has adopted a Drug Free Workplace policy, and in being called on to enforce that Policy, the Commission upheld Officer Thomas B. Stueart’s test, showing he was positive for marijuana use. While minor deviations occurred in following the State Police Department’s drug-testing rules when testing Stueart, the Commission upheld Stueart’s test because he failed to show how those deviations in any way tainted his test results.

If a criminal defendant had been arrested and tested for drugs, and procedural deviations occurred in the handling of the defendant’s specimen, our case law would require the defendant to show the evidence had not been tampered with before the test results would be excluded at trial. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997) (The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering). Here, the majority opinion declines to follow that accepted case law. Instead, the majority adopts a rule whereby Officer Stueart can have his test excluded from the Commission’s consideration even though he has failed to show his test had been tampered with or that he had been prejudiced by the manner in which the test had been processed. I submit that Officer Stueart’s rights were fairly protected, and the Commission’s right to terminate him was supported by substantial evidence — which, from the record, is the only issue addressed and decided by the Commission and circuit court.

Even the majority opinion expresses agreement that the evidence reflects that Officer Stueart’s voluntarily given specimen was properly taken from Stueart and sealed, and that the specimen remained sealed until it was tested at the Baptist Medical Center in Litde Rock. And while the majority seems to agree that no tampering appears to have occurred with Stueart’s specimen, it complains only that (1) Stueart failed to sign the urine-donor form, and (2) no medical review officer was asked to confirm Stueart’s positive test results or to consult with him to determine if there might be another explanation for the results.

Two observations need to be made. One, Stueart’s failure to sign the donor form was insignificant, and he made no assertion that anything occurred to the specimen as a result of his having failed to sign the form. In fact, the record reflects Stueart’s urine specimen had been taken and sealed in his presence, and the sample remained sealed until tested. Two, although no medical review officer was assigned to review Stueart’s drug test to determine another explanation for the positive results, Stueart had every opportunity to present an expert at his hearing to offer explanations that might have accounted for such results. Instead, Stueart merely relied on the testimony of Dr. Henry Floyd Simmons, who gave no alternative explanation except to say, categorically, “I can tell you with utter confidence that as soon as I realized that the employee applicant had not signed the chain of custody, it (the test) would have been over.” Simmons stated that, in federal (not state) testing procedures, federal law required him to end his review in such circumstances. Under the State Police Department’s policy, a medical review officer’s function is to review all positive test results to determine whether such results were due to the employee’s proper use of a prescribed medication. Significantly, Dr. Simmons and Dr. Cashman testified that there is only one FDA drug that would actually make one positive for marijuana and that was Marinol — which Stueart was not taking. Dr. Simmons’s opinion concerning the law or legal validity of the chain of custody matter in this state case is irrelevant. State law places the Commission in the role to weigh the evidence to determine if discrepancies in the chain of custody in this case tainted Stueart’s test.

At this stage, I would point out that there was more than substantial evidence to support the Commission’s findings and termination decision, and that evidence, bearing on Stueart’s test results, was largely made by Dr. Dan Cashman, supervisor of the toxicology lab at Baptist Medical Center.

Again, the evidence reveals that the specimen was taken and sealed in Stueart’s presence and remained sealed until received for testing. Cashman testified that when he received the subject specimen, the external chain of custody information contained Stueart’s name which was entered into the computer. The specimen was assigned lab number 62149 which followed the specimen throughout the testing procedure. This numbered, urine specimen received a value number of .2872, meaning it tested positive for THC. The specimen was then retested and THC was confirmed. Cashman further explained that he had satisfied himself that the chain of custody was proper and that he had a clean specimen.

Finally, the majority opinion cites Regional Health Care Facilities, Inc. v. Rose Care, Inc., 322 Ark. 767, 912 S.W.2d 409 (1995), for the rule than an administrative agency may be reversed if the substantial rights of the petitioner have been prejudiced because the administrative findings are made upon unlawful procedure. That rule is good law, but, as discussed above, Stueart simply offered no evidence concerning how he was prejudiced by the minor deviations found in the State Police Department’s chain of custody in handling Stueart’s specimen. While I agree the Department failed to comply with its own drug-testing procedure and Stueart’s right was violated in this respect, Stueart was not shown to have been prejudiced. Obviously, his job termination is not the prejudice in issue. If that were true, a defendant charged with a drug offense could always have his test results suppressed when minor discrepancies occurred in the State’s chain of custody merely because he had been arrested, tried, and convicted.

In conclusion, the record here reflects Stueart’s urine sample had been taken and sealed in his presence, and the sample remained sealed until tested. Furthermore, substantial evidence reflects that the specimen tested was Stueart’s and the test showed positive for marijuana. The majority opinion fails to mention any prejudice which affected Stueart as a result of the procedural deviations that occurred in this matter. The only prejudice I can conceive is that Stueart was prevented from giving his explanation as to why his tests returned positive, but Stueart was given an extensive hearing where he could have offered such an explanation and did not.

Because I believe substantial evidence exists that supports the Commission’s decision, I would affirm.

Brown, J., joins this dissent.

       When asked if he had had contact with marijuana, Stueart did testify that he had attended some boat races where there was a smell of marijuana, but he could not determine where the smell came from. Both Doctors Simmons and Cashman opined that passive smoke was an unlikely explanation.


author: Per Curiam.

text:
    Aaron Michael HODGE v. STATE of Arkansas
    CR 97-406
    945 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      David Copetín, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Aaron Michael Hodge moves the court for leave not to abstract an audiotape and videotape exhibit. Rule 4-2(a)(6) of the Supreme Court Rules provides that exhibits need not be abstracted where it is impractical to do so and where this court waives the requirement on motion.

With respect to abstracting the audiotape, Hodge maintains its quality is poor. Despite the questionable quality, what can be abstracted of the audiotape should be abstracted, assuming the tape was played to the jury and the statement is a point on appeal. Only if the statement is completely incomprehensible should abstracting be deferred.

With respect to the videotape, a description of what is on the videotape and how it is irrelevant, unconstitutional, and prejudicial must be included in the abstract. We recently have stated that the failure to abstract the prejudicial parts of a videotape precludes our consideration of the videotape on appeal. Evans v. State, 326 Ark. 279, 931 S.W.2d 136 (1996); Donihoo v. State, 325 Ark. 483, 931 S.W.2d 69 (1996).

Denied.


text:
    Will Alfred JAMES v. STATE of Arkansas
    CR 97-311
    945 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      James P. Massie, for appellant.
    No response.
   Per Curiam.

Will Alfred James, by his attorney, has filed a second motion for rule on the clerk. His attorney, James P. Massie, requests that the clerk accept the late record, and he admits in his motion that the record was tendered late due to a mistake on his part. Mr. Massie also requests that this court appoint another counsel in order to relieve him from representation.

We find that an error causing delay in submission of the brief on appeal, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion to allow acceptance of the belated brief. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Because Mr. Massie admits mistake in this second motion, appellant’s motion for rule on the clerk to accept the belated record is therefore granted.

Appellant also requests that the court appoint another attorney to represent appellant due to the fact that Mr. James lacks the financial resources to continue this appeal. Once the notice of appeal has been filed, Rule 16 of the Rules of Appellate Procedure — Criminal requires that trial counsel continue to represent a convicted defendant throughout appeal unless the supreme court relieves counsel and appoints new counsel. See also Ark. Sup. Ct. R. 4-3(j)(l). Counsel may not abandon an appeal merely because the client lacks the money for the appeal. Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996). Regardless of the defendant’s financial circumstances, when an attorney knows of his desire to appeal, the attorney is obligated to do the following before he may be relieved: (1) file a notice of appeal; (2) file a partial record, consisting of at least the judgement and notice of appeal in the appellate court, along with a motion to be relieved containing a statement of the reasons for the request to withdraw; (3) mail a copy of the motion to be relieved to the defendant. Id. at 29, 923 S.W.2d at 281.

This court presently has no knowledge regarding appellant’s contractual relationship with Mr. Massie or his financial ability to pay Mr. Massie for services rendered. Until Mr. Massie presents a motion that includes appropriate documentation such as an affidavit of indigency, if applicable, together with a statement of reasons supporting his withdrawal, this court will neither relieve counsel from representation nor appoint new counsel. For the foregoing reasons, we deny the portion of this motion requesting that we appoint another attorney.

The present motion for rule on the clerk is granted in part and denied in part. A copy of this opinion shall be forwarded to the Committee on Professional Conduct.


text:
    Clarence MIXON v. STATE of Arkansas
    CR 97-452
    945 S.W.2d 383
    Supreme Court of Arkansas
    Opinion delivered June 9, 1997

      John Stroud III, for appellant.
    No response.
   Per Curiam.

The. appellant, Clarence Mixon, has previously filed a motion for rule on the clerk. See Mixon v. State, 328 Ark. 534, 944 S.W.2d 829 (1997). We denied the motion because Mixon’s attorney, John Stroud III, had not admitted fault for filing the notice of appeal prior to the entry of the judgment and commitment order. Mr. Stroud has since submitted an affidavit accepting responsibility for failing to perfect Mixon’s appeal.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to treat the motion as one for belated appeal and grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Jack JONES, Jr. v. STATE of Arkansas
    CR 96-541
    947 S.W.2d 339
    Supreme Court of Arkansas
    Opinion delivered June 16, 1997

      Craig Lambert and Arkansas Public Defender Commission, Capital, Conflicts, and Appeals Office, by: Elizabeth Johnson and DiDi Sailings, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, Jack Jones Jr., was convicted of the capital murder and rape of Mary Phillips, and the attempted capital murder of Lacy Phillips. He was sentenced to death by lethal injection, life imprisonment, and thirty years’ imprisonment, respectively, for the crimes. We affirm the convictions and sentences.

On the afternoon of June 6, 1995, seventeen-year-old Darla Phillips dropped her eleven-year-old sister Lacy off at Automated Tax and Accounting Service in Bald Knob, where their mother, thirty-four-year old Mary Phillips, worked as a bookkeeper. Mary was planning to take her daughter to a 3:00 p.m. dentist appointment. Darla and her fifteen-year-old brother Jessie were expecting their mother and little sister to return to their home in Bradford around 4:30 p.m. or 5:00 p.m. They never arrived.

A black-haired male entered the business before Lacy and her mother could leave for the dentist’s office. According to Lacy’s testimony at trial, the man had a teardrop tattoo on his face and more tattoos on his arm. The man had come into the business earlier that day to borrow some books. When he returned, he complained that he had been given the wrong book. He then told Lacy and her mother that he was “sorry,” but that he was “going to have to rob (them).” He ordered Mary to lay down on her stomach, and then made Lacy lay down on top of her mother. After retrieving the cash out of the register, he took them into a small break room. The man took Lacy into a bathroom off of the break room, tied her to a chair, then left. When he returned, Lacy, now crying, asked the man not to hurt her mother, to which he replied, “I’m not. I’m going to hurt you.” He began to choke Lacy until she passed out. After Lacy lost consciousness, Jones struck her at least eight times in the head with the barrel of a BB gun, causing severe lacerations and multiple skull fractures. When Lacy woke up, she saw blood and began to vomit. She went back to sleep and awakened later when police, seeing her bloodied body and thinking she was dead, were taking photographs of her.

Police found Mary’s body nude from the waist down. A cord from a nearby Mr. Coffee pot was wrapped around her neck and wire was tied around her hands, which were positioned behind her back. Bruises on her arms and back indicated that she had struggled with her attacker prior to her death. According to autopsy results, Mary died from strangulation and blunt-force head injuries. Rectal swabs indicated that she had been anally raped before she was killed.

Based on Lacy’s description of the assailant, Arkansas State Police Investigator Jerry Brogdon went to Jones’s residence and asked him if he would accompany him to the White County Sheriff s Office. At destination, Jones was read his Miranda rights and signed a waiver-of-rights form. He admitted that he had committed the crimes because he wanted to get revenge against the police. He reasoned that his wife had been raped, and that the police had done nothing about it.

Admission of photograph

Jones first claims that the admission of a State’s Exhibit 49, a photograph of Lacy’s skull taken prior to surgery, should not have been admitted into evidence at his trial. According to him, the photograph was cumulative of the other photographs introduced and was unduly prejudicial.

We recently discussed the guideposts in determining whether a trial court abuses its discretion in admitting photographs in Camargo v. State, 327 Ark. 631, 940 S.W.2d 631 (1997):

We have often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” Id. at 228, 781 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Other acceptable purposes are to show the condition of the victim’s bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded. Berry v. State, 290 Ark 223, 718 S.W.2d 447 (1986). The same guidelines that apply to photographs also apply to videotapes. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

327 Ark. at 637-8. An essential element of the attempted murder charge was the degree of intent. To secure a conviction for attempted capital murder, the State had to prove that Jones, “with [a] premeditated and deliberated purpose,” attempted to cause Lacy’s death. Ark. Code Ann. § 5-10-101(a)(4). We have often held that the nature and extent of a victim’s wounds is relevant to a showing of intent. Camargo v. State, supra; citing Kemp v. State, 324 Ark. 178, 919 S.W.2d 943, cert. denied 117 S.Ct. 436 (1996); and Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995).

In the present case, prior to trial, the State initially sought to admit ninety-nine photographs. The trial court denied admission of these photographs on the basis that they were cumulative of others that it was admitting into evidence. The trial court, did, however, admit a second set of photographs, thirty-nine in number, that were offered by the State. The photo at issue is among these thirty-nine photographs and was the only one that Jones objected to at trial. It depicts Lacy’s skull with the scalp peeled back and was taken prior to her surgery.

The trial court conducted a preliminary hearing on the admission of the photograph at issue. Dr. Harold Smith, the neurosurgeon who performed Lacy’s surgery, testified that the photograph was a fair and accurate depiction of Lacy’s skull prior to the surgical procedure. According to Dr. Smith, the photograph would assist him in his testimony and was the only one that demonstrated the multiple and depressed fragments of bone that were driven down into Lacy’s brain. It was Dr. Smith’s opinion that, without this photograph, his testimony would be more difficult for a lay person to understand. After hearing this testimony, the trial court ruled that the photo was admissible on the basis that it depicted Lacy’s life-threatening and serious injuries and would help Dr. Smith explain the nature and extent of Lacy’s injuries to the jury.

We agree with the trial court’s assessment that the photograph aided the jury in understanding Dr. Smith’s testimony regarding the nature and extent of Lacy’s head injuries. The trial court very carefully considered the photograph at issue and made a well-reasoned determination to allow its admission. In sum, we cannot say that the trial court abused its discretion in admitting the photograph.

Inconsistent verdict forms

Jones also claims that he is entitled to a new sentencing trial due to the jury’s inconsistent findings regarding certain mitigating circumstances. The jury in his case unanimously found, on Form One, that the following five aggravating circumstances existed: (1) Jones had previously committed another felony involving the use or threat of violence; (2) in the commission of capital murder, he knowingly created a great risk of death to a person other than the victim; (3) the capital murder was committed for the purpose of avoiding or preventing an arrest; (4) the capital murder was committed for pecuniary gain; and (5) the capital murder was committed in an especially cruel or depraved manner. On subsection (a) of Form Two, the jury unanimously found that the following three mitigating circumstances probably existed: (1) Jones cooperated with the police by voluntarily accompanying them to the police department; (2) he cooperated with the police by giving them a full confession and accepting full responsibility for these offenses; and (3) he had a turbulent and troubled childhood.

On Form Three — Conclusions, the jury found that one or more aggravating circumstances did exist beyond a reasonable doubt at the time of the murder; that the aggravating circumstances outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist; and that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Upon Jones’s request, the trial court modified Form Three to read that, if the jury made these three findings, it may sentence Jones to death. On Form Four, the verdict form, the jury indicated that, after careful deliberation, it was sentencing Jones to death. The signature of each juror appears on this form. Jones does not take issue with the jury’s findings on Form One, subsection (a) of Form Two, Form Three, or Form Four.

What Jones does challenge is the confusing manner in which the jury completed subsections (b) and (c) of Form Two. In subsection (b), the jury indicated that one or more of the jurors believed that the following mitigating circumstances probably existed, but that they did not unanimously agree that such mitigating circumstances probably existed: (1) Jones suffered from the mental disease or defect of attention-deficit hyperactivity disorder; (2) despite his efforts, Jones was repeatedly misdiagnosed and treated with inappropriate medications; (3) Jones’s parents were often inconsistent in disciplining their children; (4) Chris Jones loves and is dependent on his father, Jack Jones; and (5) Chris Jones would be harmed psychologically if his father were sentenced to death.

Subsection (c) of Form Two instructed the jury to check the applicable factors where they believed that there was some evidence presented to support the mitigating circumstances offered, but where they unanimously agreed, after considering the evidence, that it was insufficient to establish that the mitigating circumstances probably existed. Despite the fact that subsection (c) instructed the jury not to check any factors in this section that it had checked in any other section, the jury checked the following factors that it had also checked in subsection (b): (1) Jones suffered from the mental disease or defect of attention-deficit hyperactivity disorder; (2) despite his efforts, Jones was repeatedly misdiagnosed and treated with inappropriate medications; (3) Jones’s parents were often inconsistent in disciplining their children.

In support of his argument that the jury’s inconsistent findings require reversal, Jones relies on our decisions in Camargo v. State, supra\ and Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). We think that the facts in those cases are distinguishable from those presently before us. In Camargo, Form Three on “Conclusions” was the form in dispute:

(a) () One or more aggravating circumstances did exist beyond a reasonable doubt, at the time of the commission of the capital murder.
(b) (X) The aggravating circumstances outweigh beyond a reasonable doubt any mitigating circumstances found by the jury to exist.
(c) () The aggravating circumstances justify beyond a reasonable doubt a sentence of death.

The Camargo jury only marked (b) on Form Three. On appeal, we concluded that, because the jury failed to mark (a) and (c), a reversal of the death sentence was mandated due to a failure to comply with Ark. Code Ann. § 5-4-603 (a) (b) and (c) (Repl. 1993), which requires that the jury unanimously return these three written findings in order for a death sentence to be imposed. Id. at 645. Unlike the Camargo jury, Jones’s jury made these three necessary statutory findings on Form Three.

. In Willett, the jury completed subsections (a) and (c) of Form Two in a conflicting manner. In subsection (a), the jurors unanimously found that the following mitigating circumstances probably existed at the time of the murder: (1) that Willett had no prior history of criminal conduct, (2) that he had been a model prisoner, and (3) that he had cooperated with police by voluntarily giving a statement about the crimes at issue. However, in subsection (c), the jurors found that there was evidence of the same three circumstances, but unanimously agreed that they were not mitigating circumstances. In reversing Willett’s death sentence, we held that, “On this record, it is impossible to discern whether the jury found any mitigating circumstances. Therefore, we reverse the judgments of sentence to death and remand for resentencing.” Id. at 628. Conversely, in this case, it is not impossible to determine whether the jury found any mitigating circumstances. They clearly found three: (1) Jones cooperated with the police by voluntarily accompanying them to the police department; (2) Jones cooperated with the police by giving them a full confession and accepting full responsibility for these offenses; and (3) Jones had a turbulent and troubled childhood.

In deciding this issue, the State asks us to clarify our previous interpretations of the United States Supreme Court’s decision in Skipper v. South Carolina, 476 U.S. 1 (1986). We agree that we must do so. In Willett and Camargo, we interpreted Skipper too broadly to mandate reversal in all cases involving errors relating to mitigating circumstances. Willett, 322 Ark. at 628; Camargo, 327 Ark. at 645.

In Skipper, the Supreme Court held that it was error to prohibit Skipper from introducing the testimony of two jailers and a visitor who would have testified that he had made a good adjustment in jail between his arrest and his trial. The Court held that the exclusion of this evidence denied Skipper his right to place before his sentencer all relevant evidence in mitigation of punishment, and that the exclusion of relevant mitigating evidence at Skipper’s trial “impeded the sentencing jury’s ability to carry out its task of considering all relevant facts of the character and record of the individual offender.” Id. at 8. In Willett, our parenthetical explanation of Skipper went beyond the actual holding of the case. While we agree that the rule in Skipper provides that the exclusion of relevant mitigating evidence from the jury’s consideration can never be harmless, we do not read Skipper to preclude the application of a harmless-error analysis to errors relating to the jury’s consideration of that evidence. In the present case, Jones does not complain that he was unable to present relevant mitigating evidence to the jury. In fact, the record reflects that Jones presented his mitigating evidence through the testimony of nine witnesses who testified on his behalf during the penalty phase of his trial.

We must also clarify our previous interpretations of Ark. Code Ann. § 5-4-603 (d)(Repl. 1993), which reads as follows:

(d) On appellate review of a death sentence, if the Arkansas Supreme Court finds that the jury erred in finding the existence of any aggravating circumstance or circumstances for any reason and if the jury found no mitigating circumstances, the Arkansas Supreme Court shall conduct a harmless error review of the defendant’s death sentence. The Arkansas Supreme Court shall conduct this harmless error review by:
(1) Determining that the remaining aggravating circumstance or circumstances exist beyond a reasonable doubt; and
(2) Determining that the remaining aggravating circumstance or circumstances justify a sentence of death beyond a reasonable doubt.
(e) If the Arkansas Supreme Court concludes that the erroneous finding of any aggravating circumstances by the jury would not have changed the jury’s decision to impose the death penalty on the defendant, then a simple majority of the court may vote to affirm the defendant’s death sentence.

(Emphasis added.) We have previously interpreted this provision to allow us to conduct a harmless-error analysis only if the jury found no mitigating circumstances. Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Kemp v. State, supra. However, a plain reading of this provision reveals that it applies when the jury makes an error in finding that an aggravating circumstance exists. There was no such error in this case. The statute simply prescribes a set of parameters where this court must engage in a harmless-error analysis. It does not preclude us from conducting harmless-error analysis in other situations.

We agree with the State that this issue is controlled by our decision in Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied 499 U.S. 913 (1990). In that case, Wainwright asserted that the trial court erred in denying his motion for judgment notwithstanding the verdict, which was based on his argument that the jury made inconsistent findings regarding a mitigating circumstance. On one form, the jury unanimously found that Wainwright did not resist when arrested; on another form it found this same mitigating factor did not exist. We recognized that, although the jury may have been inconsistent on this factor, it was clear in unanimously finding that three aggravating circumstances existed at the time appellant committed the murder. We affirmed the trial court’s ruling that the error was harmless since the jury had specifically found that the aggravating circumstances outweighed beyond a reasonable doubt all mitigating circumstances, and that each juror, when individually polled, stated that he or she had voted for the death penalty. Id. at 387. The Eighth Circuit Court of Appeals held that the jury’s inconsistent findings did not rise to an Eighth or Fourteenth Amendment violation where the jury specifically found that three aggravators outweighed beyond a reasonable doubt all mitigating circumstances. Wainwright v. Lockhart, 80 F.3d 1226 (8th Cir. 1996), cert. denied, 117 S.Ct. 395 (1996).

In this case, the jury made inconsistent findings with regard to the following factors: (1) Jones suffered from the mental disease or defect of attention-deficit hyperactivity disorder; (2) despite his efforts, Jones was repeatedly misdiagnosed and treated with inappropriate medications; and (3) Jones’s parents were often inconsistent in disciplining their children. It is unclear whether some or none of the jurors determined that these factors constituted mitigating circumstances. However, even if we were to resolve the confusion in Jones’s favor and assume that some of the jurors did conclude that these factors constituted mitigating circumstances, it is clear that the jury unanimously concluded that five aggravating circumstances existed, and that these aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist. To be sure, nothing in the forms indicated to the jury that a mitigating circumstance must have been found unanimously before it could be considered in the weighing process. Pickens v. State, 301 Ark. 244, 783 S.W.2d 341, cert. denied 497 U.S. 244 (1990). The jury further found that the aggravating circumstances justified beyond a reasonable doubt a sentence of death. Moreover, the jury was instructed that, if it made these three statutory findings, it may sentence Jones to death. Each juror signed a verdict form sentencing Jones to death, and each juror indicated orally that he or she had voted for the death penalty.

Because the jury specifically found that five aggravators outweighed beyond a reasonable doubt any mitigating circumstances found by any juror to exist, we conclude that any inconsistencies by the jury in the completing of subsections (b) and (c) of Form Two were harmless error. See Wainright v. State, supra.

Other errors

The transcript of the record in this case has been reviewed in accordance with Arkansas Supreme Court Rule 4-3 (h), which requires, in cases in which there is a sentence of life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16-91-113(a)(1987). No errors have been found.

Affirmed.