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

text:
    Antonio L. BRITT v. STATE of Arkansas
    CR 97-200
    974 S.W.2d 436
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998
    [Petition for rehearing denied September 10, 1998.]

      Bowden Law Firm, by: David O. Bowden, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

       Arnold, C.J., and Glaze and Corbin, JJ., would grant.

   Annabelle Clinton Imber, Justice.

The appellant, Antonio Britt, was convicted of first-degree murder, two counts of aggravated robbery (merged with the murder convictions), two counts of kidnapping, and attempted first-degree murder. Britt was sentenced to a total of fife imprisonment in addition to 110 years’ imprisonment to be served consecutively. On appeal, Britt raises numerous issues. We hold that the trial court committed reversible error in denying Britt’s motion to suppress certain statements that were taken from him in violation of his right to a first appearance without unnecessary delay under Ark. R. Crim. P. 8.1. We also address other points that are likely to arise again on retrial.

The evidence adduced at trial showed that during the early morning hours of April 9, 1995, the victims, Jonathan Hancock and Bradley Davis, were driving in a white Chevy pick-up truck looking for drugs in Blytheville. They pulled up to a Pontiac Bonneville that was occupied by Britt, Clarence “Ray Ray” Williams, Scotty Hodges, and William Hunt. The victims asked them if they had any drugs, and Scotty Hodges walked to the driver’s side of the truck and pulled a gun on Hancock. Britt went to the passenger’s side of the truck and forced the passenger (Davis) out of the truck and into the car. Davis testified that the person that came to the passenger side of the truck was “rather skinny, and taller than I am.” Davis was six feet four inches and Britt was six feet five inches, the tallest of the four perpetrators. The man that accosted Davis placed a gun to his head and put him in the backseat of the car, and then forced him to get inside the trunk, along with Hancock.

Britt took the truck keys and drove the truck, following the Bonneville to an area adjacent to the river. Hodges accompanied Britt in the truck, while Williams and Hunt were in the Bonneville. While trapped in the trunk, Davis heard a tape continually played that had lyrics to the effect of “snatch ’em, slam ’em in the trunk, f**k ’em, kill ’em, dump ’em, we don’t give a f**k.” When the car stopped for the final time, Davis heard doors shut and the men arguing over guns. He believed that one of them said that a gun was jammed, and one said a gun was empty. The trunk opened, and Davis -was able to see an armed person at the passenger side of the truck. He and Hancock got out of the trunk, and were told to lie down and take off their clothes. The shooting began after they stripped. At one point Davis heard someone say “oh s**t, you shot him in the stomach, is he gonna die. I’m outta here.” Someone then took off running. After the shooting stopped, Davis simply lay there and heard some voices talking about “that’s what y’all white bitches deserve, you got what you came for.” After the men left, Davis saw that Hancock had been shot in the forehead. Davis was able to run and get help from a nearby tugboat. Davis had been shot in his neck, his left arm, and his left leg. Hancock died of multiple gun-shot wounds to the head, as well as blunt-force head trauma.

Britt gave four statements to the police, all of which were admitted at trial. The first statement he gave was completely exculpatory, and he denied any involvement or knowledge of a crime. In a second statement he admitted that he had been present at the crime. He said that Hodges told him to get out and drive the white truck after the victims were forced into the trunk. In this version of events Hodges struck one of the victims with his gun, which resulted in the gun discharging into the other victim. Hodges then began shooting both victims. Britt jumped in the truck, and he told Hodges to “come on.” Britt and Hodges then went back to Osceola. In a third statement, Britt admitted to possession of a gun (probably a .380) during the incident and that he gave the gun to Hodges after they left the crime scene. In the fourth statement, Britt admitted that he went to the passenger side of the truck to take the passenger to the car. Britt said that he took a wallet from one of the victims. Britt also admitted to possession of a .380 that he fired one time in the air after Hodges started shooting. Britt said that he had lied in his earlier statements “about I didn’t shoot no gun but I sh. . . , I shot the gun in the air.”

After Davis obtained help in the early morning hours on April 9, 1995, the police were on the lookout for the victims’ truck. It was spotted outside of Madison, and then it sped off and was later found abandoned in Madison. A nearby grocery-store employee testified that Britt and Hodges had come by around 5:00 or 5:30 a.m. in a white Chevy pick-up and had bought some gas. Britt was found sleeping at a residence about four blocks from where the truck was found. Immediately after Britt was arrested, the owner of the house found a wallet on the couch where Britt was sleeping. Davis later identified this wallet as the one that was taken from him.

A number of latent prints lifted from the trunk of the Bonneville and the pick-up truck were positive for Britt. Two guns were located: a Bryco Jennings .380 recovered from the Hodges’ home, and a Lorcin .380 recovered from a Freddie Malone, who said that Glen Blount gave him the pistol in the early morning on April 9. Bullet fragments removed from Hancock’s head had been fired from the Jennings gun. Various other bullets and bullet casings recovered at the site of the shooting had been either fired or ejected from both the Jennings and the Lorcin guns.

i. Sufficiency of the evidence.

In his third point on appeal, Britt challenges the sufficiency of the evidence to support his convictions. Double jeopardy considerations necessitate that this court consider challenges to the sufficiency of the evidence prior to other alleged trial error. Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). We have often stated the test in determining the sufficiency of the evidence — whether there is substantial evidence to support the verdict. Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Id. In making this determination, we review the evidence in the light most favorable to the State, and consider evidence both properly and improperly admitted. Id.

At trial, Britt moved for a directed verdict, arguing that there was no evidence linking him to the crime scene. Britt now emphasizes that the Jennings gun was found at the home of Scotty Hodges, and that the Lorcin was not connected to him either. With regard to the fingerprints on the Bonneville, Britt concedes that he was connected to the car at one point, but not when the victims occupied the car. Britt maintains that there is no proof that he was an accomplice aside from simply being present at the crime scene. This court has explained the required elements of accomplice liability as follows:

An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1993). One’s status as an accomplice ordinarily is a mixed question of law and fact. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). One’s presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983)).

Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994) (citing Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992)). This court has repeatedly held that to sustain a conviction of a felony murder, it is not necessary that the defendant be shown to have taken an active part in the killing as long as he was an accomplice and had the requisite intent for the underlying felony. O’Neal v. State, 321 Ark. 626, 907 S.W.2d 116 (1995) (citing Dixon v. State, 319 Ark. 347, 891 S.W.2d 159 (1995)).

In the present case, Britt first denied any involvement in any crime in his first statement to the police on April 9. Britt admitted that he had “rented” the Bonneville from a man known as “Big Bone.” In his second statement that day, Britt admitted that he was present with Williams, Hodges, and Hunt as Davis and Hancock were forced out of their truck and placed in the trunk of the Bonneville. He denied that he aided in placing the victims in the trunk. Britt also admitted that he drove the white pick-up to the site where the victims were shot. In this version of events Britt related that Scotty Hodges struck one of the victims in the head with a gun, resulting in the discharge of the gun at the other victim. Hodges then “went to shooting.” After this happened, Britt jumped in the pick-up and told Hodges to “come on.”

In another statement given at 12:19 p.m. on April 10, Britt admitted that he had possession of a gun from Madison, although he denied that he ever pulled the gun. In a statement given at 3:18 p.m. on April 10, Britt admitted that he went to the passenger door of the truck and escorted the passenger to the car. At the time, he knew that Hodges was attempting to rob the victims. “When I first came to the door I was, I was like wonderin’ what [Hodges] was doin’, right? He already said he fixin’ to go rob ’em but you know I went up there, then, he had the gun to dude head and I opened the door. . . I got him out, put him in the back seat of the car.” When asked whether he took anything from the victims as they were forced to undress, Britt said that he “got his wallet from him and threw it in the car.” In this version of events, Britt said that he fired his .380 gun “one time in the air” as Hodges began shooting the victims. He admitted that he had previously lied about not shooting a gun but that he had only shot the gun once in the air.

Davis testified that the person who approached him on the passenger side of the truck was skinny and taller than he was. According to the testimony, Davis was six feet four inches, while Britt was six feet five inches, the tallest of the four men that participated in the crime. Moreover, Britt had numerous fingerprints and palm prints on the trunk of the Bonneville which contradicted his version that he was not involved in placing the victims inside the trunk and removing them from the trunk. Britt admitted to driving the truck and following the Bonneville to the scene where the victims were shot. After the shootings, Britt yelled to Hodges to join him in the truck, after which they absconded. Britt also admitted to taking Davis’s wallet, which was subsequently found on the couch where Britt had been lying immediately before his arrest. Based on the foregoing, we conclude that there was sufficient evidence that Britt assisted in the commission of the crimes for which he was convicted.

2. The April 10 statements.

Britt moved to suppress all four of his statements that were eventually admitted at trial. On appeal he brings three separate challenges to their admissibility. He argues that they were not voluntary, and that they were taken in violation of both Ark. R. Crim. P. 8.1 and 4.1. As to the two April 10 statements, we find merit to Britt’s argument that they were taken in violation of Rule 8.1, and that they should have been suppressed.

The evidence reflects that Britt was arrested between 8:30 and 9:00 on the morning of Sunday, April 9. He was taken to the St. Francis County jail. While there, he executed two rights-waiver forms, one which was read to him by Officer Bryan Crites and the other by Officer Mike Marshall. After the execution of these forms, Britt gave a statement that began at approximately 3:45 p.m. and concluded at 4:15 p.m. The second statement on April 9 began at 5 p.m. and concluded at about 6 p.m. The night of April 9 Britt was transported to the Mississippi County detention facility. On Monday, April 10, Britt again executed rights-waiver forms and was interviewed by the police resulting in two taped statements. The record reflects an “Affidavit of Probable Cause” executed by a judicial officer on Tuesday, April 11. The information was filed against Britt on June 19, 1995.

On appeal, Britt argues that he was denied a prompt first appearance as required by Ark. R. Crim. P. 8.1:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.

The first appearance must be conducted in accordance with Ark. R. Crim. P. 8.3, which provides:

(a) Upon the first appearance of the defendant the judicial officer shall inform him of the charge. The judicial officer shall also inform the defendant that:
(i) he is not required to say anything, and that anything he says can be used against him;
(ii) he has a right to counsel; and
(iii) he has a right to communicate with his counsel, his family, or his friends, and that reasonable means will be provided for him to do so.
(b) No further steps in the proceedings other than pretrial release inquiry may be taken until the defendant and his counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived his right to counsel or has refused the assistance of counsel.
(c) The judicial officer, if unable to dispose of the case at the first appearance, shall proceed to decide the question of the pretrial release of the defendant. In so doing, the judicial officer shall first determine by an informal, non-adversary hearing whether there is probable cause for detaining the arrested person pending further proceedings. The standard for determining probable cause at such hearing shall be the same as that which governs arrests with or without a warrant.

This court has specifically refused to define what an “unnecessary delay” is under Rule 8.1. See Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). In Duncan, this court held that a three-and-a-half-day delay between arrest and first appearance violated Rule 8.1 where there was no evidence in the record to suggest a reason for the delay, and the State did not offer any explanation in its brief. Rather, the record showed the delay was purposeful and that the prosecutor made a deliberate decision to hold the appellant in detention and ignore the prompt-appearance requirement. The appellant had been interrogated on the day of his arrest for two-and-a-half hours, but did not divulge any inculpatory information. Three-and-a-half days later, without being able to make any phone calls, appellant gave an incriminating statement. Two days after the first incriminating statement, he gave a videotaped confession. Given that the delay violated Rule 8.1, the court was forced to decide whether the remedy for a violation would be automatic exclusion. While the State argued that the statement was otherwise voluntary under the circumstances, the Duncan court rejected such an approach, given that voluntariness was not the only concern under Rule 8.1:

As we have said, assurance of voluntariness is not the only concern. Of equal importance is the mechanism of the first appearance that guarantees that the accused’s constitutional rights will be protected and implemented. “Indeed, [the rights afforded under Rule 8.1] are basic and fundamental rights which our state and federal constitutions secure to every arrestee.” [citation omitted]. Furthermore, if exclusion under the rule rests on a voluntariness standard, we are again faced with a swearing-match the rule was designed to avoid. As was stated well in State v. Benbo, [570 P.2d 894 (Mont. 1977)]:
Under [the voluntariness standard] the statutory requirement of an initial appearance without unnecessary delay after an arrest is practically meaningless. Only when a defendant can affirmatively show statements, admissions, or confessions attributed to him were either not made at all, or were involuntarily made, would the failure to provide him with a prompt initial appearance be taken into account. This would put an almost impossible burden on a defendant. Furthermore, there would be no incentive for arresting officers to conform their procedures to statutory requirements.

Duncan, supra. That being said, the Duncan court adopted a three-part test used in Pennsylvania: 1) the delay must be unnecessary; 2) the evidence must be prejudicial; 3) the evidence must be reasonably related to the delay. The Duncan court held that the statement at issue satisfied this test. It was “evident” that the delay was unnecessary and that the incriminating evidence was prejudicial. With respect to whether the incriminating statements were reasonably related to the delay, the court announced that it was sufficient “if it reasonably appears the delay contributed to obtaining the confession.” Id. When Duncan was first questioned, he gave nothing but exculpatory statements. Moreover, it was only after three-and-a-half days of incommunicado detention before he incriminated himself. Thus, the statements were reasonably related to the delay, requiring their suppression under Rule 8.1.

In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), the investigating officer was asked about the delay in bringing the appellant before a judicial officer. The officer responded that he was asked by the deputy prosecutor to continue to the next court date to gather evidence. Appellant moved to suppress his last two statements due to an unnecessary delay in bringing him before a judicial officer after his arrest. This court agreed in part and reversed. In examining the delay under the three-part Duncan test, there was no question that appellant could have been presented on Monday, August 27. The Clay court noted a delay to gather evidence as an example of unreasonable delay. The delay was also like the one in Duncan because it was deliberate. The statements at issue were also prejudicial given that appellant admitted to all of the elements of the crime charged, and had not done so in earlier statements. With regard to the reasonable relationship prong the Clay court held that the August 26 statement (taken on Sunday before the first possible court appearance) bore no reasonable relationship to the delay, and could be used at retrial. However, with regard to the August 28 statement, the investigating officer’s statement that the delay was taken “for evidence involving the case” made it apparent that the expectation was that appellant would admit to the murder. “Short of that, however, we can say with assurance that, if [appellant] had been taken before a judicial officer on August 27, the judicial officer would have followed Ark. R. Crim. P. 8.2 which requires the judge to assure that an accused has counsel appointed if he cannot afford one and does not choose to waive the right to counsel to defend him. Had counsel been appointed, it is most unlikely the statement made on August 28 would have been forthcoming.” Clay, supra. The Clay court also reiterated the discussion in Duncan that rejected the so-called voluntariness approach.

In other contexts, this court has refused to find a violation of Rule 8.1 where the delay has been caused in part by the initiation of contact by the defendant in the interest of negotiating a plea arrangement. See Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996) (“Landrum I”) (delay caused by defendant’s desire to give statement); Johnson v. State, 307 Ark. 525, 823 S.W.2d 440 (1992) (appellant demonstrated a willingness to talk about crimes which was analogous to situations where this court held that statements during a delay but at the initiation of the arrestee to negotiate a plea bargain were permissible). Landrum v. State, 328 Ark. 361, 944 S.W.2d 101 (1997) (“Landrum II”), similarly involved a situation where the appellant wanted to give a confession to an unsolved murder, but he wanted to discuss possible punishment first, and specifically asked to postpone the discussion because he was tired. Thus, Landrum II was distinguishable from Clay, supra, given the appellant’s desire to confess. We emphasized that the delay was not unnecessary and that the delay bore no reasonable relationship to the statement. The court articulated the following factors in determining the reasonable-relationship question under Duncan: 1) any proof that the delay was for the purpose of obtaining a confession; 2) frequency of police interrogation; 3) whether the accused was incommunicado; and 4) the passage of time. In analyzing these factors, the Landrum II court suggested that there was no evidence of police misconduct and adequate Miranda warnings were given to appellant.

Applying the three-factored Duncan test to the present case, it is clear that Britt was denied a prompt first appearance under Rule 8.1, and that suppression is warranted. First, the delay in bringing Britt before a judicial officer was unnecessary. Britt had been transported to the Mississippi County detention center on the night of April 9, a Sunday. Fie could have been brought before a judicial officer on Monday, April 10. A deputy prosecutor, Chris Crain, testified that he had actually been in municipal court calling the docket for bail and first appearances on the morning of April 10 before coming to the detention center to listen to portions of Britt’s interviews that day. Moreover, the officers as much as admitted that they did not take Britt before an officer on April 10 because they were collecting more evidence. Officer Crites testified that “There was further investigation to be done.” Officer Ed Guthrie stated that “I don’t know [why he was not taken in on Monday] except maybe for further investigation, further inquiries.” Other testimony was to the effect that the officers were simply too tired and unprepared to take Britt before a judicial officer on Monday. Officer Crites testified that “Well, we got back, we had been called out at approximately 2:00 or 3:00 a.m. — early Sunday morning. We were up all day Sunday. We drive to Forrest City. We’re up down there. We’re still working on this. We drive back. It’s late. We’re tired. The information wasn’t put together to be able to get him arraigned, and then plus other people were involved. More interviews needed to be done. That would be the delay right there that would have caused that.” Officer Marshall said that “We’d had a long night and a long day before and we were exhausted. We were tired, and it [the paperwork] simply was not prepared.”

The April 10 statements were also prejudicial under Duncan. While it is true that in Britt’s second statement on April 9 he admitted to being at the crime scene when the victims were abducted and shot, he gave far more detailed versions of the events, with more inculpatory statements, in the two statements on April 10. Significantly, Britt admitted to possessing a gun in the first statement on April 10, and in the second April 10 statement Britt admitted that he went to the passenger side of the truck to remove the passenger. He also admitted that he actually fired a gun once in the air, and that he had lied about not shooting a gun during prior statements.

Finally, the April 10 statements are reasonably related to the delay, unlike the April 9 statements taken on Sunday. The relevant inquiry here is whether it reasonably appears that the delay contributed to obtaining the confession. See Duncan, supra; see also Landrum II, supra (factors “relevant to this determination” are 1) any proof that the delay was for the purpose of obtaining a confession; 2) the frequency of police interrogation; 3) whether the accused was incommunicado; and 4) the passage of time). Significantly, this is not a case where the defendant initiated contact with the police for the purpose of giving a statement or to negotiate a plea arrangement. See Landrum I, supra. Rather, the delay here was deliberate, and the police admitted that the purpose for the delay was in part for “further investigation.” Obviously, the delay produced the intended result, more statements from the defendant. See Clay, supra (finding reasonable relationship between delay and statement where investigating officer admitted that delay was taken “for evidence involving the case”). Moreover, had Britt been taken before a judicial officer on Monday, April 10, and counsel been appointed, see Ark. R. Crim. P. 8.2, it is highly unlikely that the April 10 statements would have been forthcoming. See Clay, supra. Based on the foregoing, we hold that the two April 10 statements satisfy the three-pronged Duncan test and were taken in violation of Rule 8.1. Accordingly, the trial court clearly erred in denying Britt’s motion to suppress the April 10 statements. The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.

The State urges that the statements at issue were otherwise voluntary, so as not to constitute a violation of Rule 8.1. However, this same argument was made and rejected in Duncan. As we said there, “assurance of voluntariness is not the only concern” in interpreting Rule 8.1. See Duncan, supra. We decline to retreat from that pronouncement in Duncan today. The State also suggests that there should be no violation given that police had reasonable cause to arrest Britt, and that the delay in first appearance was not designed to develop reasonable cause. This argument might have more resonance if the only thing at issue here were reasonable suspicion to make a warrantless arrest, and whether Britt received a prompt reasonable-cause determination from a judicial officer. See Ark. R. Crim. P. 4.1(e); County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975). However, we reiterate that the issue here is a first appearance without unnecessary delay under Rule 8.1, not a prompt reasonable-cause determination under Rule 4.1(e). The communications required by Rule 8.3 go beyond a mere probable-cause determination, and “guarantee that the accused’s constitutional rights will be protected and implemented.” See Duncan, supra. Finally, the State suggests that suppression is not the appropriate remedy. However, this is contrary to our established law. Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989) (remedy for violation of Rule 8.1 is suppression of evidence obtained); Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981) (same).

3. The April 9 statements,

a. Voluntariness.

We now take up a number of issues that are likely to occur upon retrial. First is the issue of the April 9 statements and whether they were voluntary. When determining whether a statement is voluntary, the issue on appeal is whether the statement was “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In making this determination, we review the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Id. Relevant factors are the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Id.

In the present case, the unrefuted testimony from the officers involved was that Britt was informed of and understood his rights. All of the officers testified that no coercive tactics were used, and that Britt did not appear to be under the influence of any intoxicants. While Britt was seventeen years old, and mental examinations placed his intellectual functioning in the borderline or low-average range, this court has held that age and mental capacity are factors that we consider; however, these factors standing alone are not sufficient to suppress a confession. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). Britt highlights the fact that the interrogation room, which apparently had a glass wall, was covered with paper. This circumstance alone in no way proves that the police acted in a coercive manner. The trial court did not clearly err in denying the motion to suppress based upon the alleged involuntariness of the April 9 statements.

b. Ark. R. Crim. P. 4.1(e).

We decline to reach the merits of Britt’s argument that his statements should have been suppressed due to a violation of Ark. R. Crim. P. 4.1(e), as it purports to codify the constitutional requirement of a prompt reasonable-cause determination following a warrantless arrest. See County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 103 (1975). A review of the record reveals that this argument was never made to the trial court below. Indeed, defense counsel’s theory at trial was not that the “48-hour rule” had been violated, but that Britt was not afforded a timely Rule 8.1 first appearance because he was not brought before a judicial officer on Monday, April 10. We will not consider the merits of an argument made for the first time on appeal.

4. Judicial Bias.

In Britt’s first point on appeal, which is ostensibly labeled in terms of the trial court’s bias, Britt raises a number of issues that are better understood in terms of individual assignments of error. To the extent that Britt purports to make an independent cumulative-error argument here, we do not reach the merits due to his failure to make a cumulative-error objection below. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, 117 S.Ct. 1853 (1997); Witherspoon v. State, 319 Ark. 313, 891 S.W.2d 371 (1995). However, where Britt has made a judicial-bias argument below, we consider the merits. See Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993) (“Absent an objection below the issue of bias may not be raised on appeal.”).

a. Trial court’s questioning during voir dire.

During voir dire, the trial court questioned the panel members first and then allowed questioning by the parties. The trial court would occasionally integect questions to the panel members during questioning by the defense. During one cited sequence, defense counsel asked a panel member whether she knew about accounts of a crime in Lepanto where a father had shaken his baby to death. The panel member admitted to having strong feelings about the crime, at which point the trial court asked the panel member whether she would rely on media reports or evidence adduced in court. After a number of other questions by the trial court concerning the panel member’s exposure to media accounts, defense counsel resumed questioning, and the panel member admitted that she did form an opinion about the crime when she read a media account. The trial court then asked if she had “an opinion right now as to who did this crime?” Defense counsel then moved to strike the panel member for cause, later interposing a “continuing objection” “to the Court’s helping me out with instructions [sic]. I think that’s an unfair comment on certain things, and the Court gave objections [sic] that tend to shed light on the way a person should answer, and I think that after the Court integ'ected on the last point [concerning the panel member] her whole demeanor and defensiveness changes and I think that interferes —.” The trial court then integected that “Your objection is of record, and I’m going to continue any time I think the question is misleading or a trick bag question — which that’s what your questions are right now.”

Arkansas Rule of Criminal Procedure 32.2(b) provides that the trial judge shall put to prospective jurors any question which he thinks is necessary touching on their qualifications to serve as jurors in the cause on trial. The extent and scope of voir dire is left to the sound discretion of the trial judge, and the trial judge’s ruling will not be disturbed on appeal, absent an abuse of discretion. Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). The proper role of a trial judge in voir dire is to direct the process, being given great discretion to insure that no undue advantage is gained. Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983). Because attorneys sometimes tend to take over the voir dire process and confuse the jurors, the judge may have to step in, especially in death cases, after the questioning to insure fairness by clarifying answers. Id. However, the judge cannot, in effect, step from the bench and aid either party, and the judge cannot unfairly limit either party’s right to seek twelve people who can render a fair and impartial verdict. Id. For example, in Hobbs v. State, 273 Ark. 125, 617 S.W.2d 347 (1981), this court held that the trial court went too far in restricting the right of the defense to fully and fairly question the prospective jurors, commenting on the evidence, and generally injecting himself into the process of selecting the panel so that it could not fairly try and sentence the defendant.

In the present case, we cannot say that the trial court abused its discretion in the manner in which it questioned panel members. In the instance cited by Britt, it was not clear whether defense counsel was asking the panel member if she had formed an opinion about this case or about the Lepanto incident. In context, the trial court was attempting to ascertain whether the potential juror had prejudged the case and whether she could render a verdict based on the evidence adduced at trial rather than based on media accounts. This certainly does not amount to the court’s systematic injection into the selection process as illustrated in Hobbs, supra.

b. Trial court’s questioning of witnesses.

Britt’s next point concerns the trial court’s sua sponte questioning of witnesses. The medical examiner testified on cross-examination that he found no evidence of deviant sexual activity in his examination of Hancock’s body. Following this cross-examination, and before any further questions by the State on rebuttal, the trial court inquired of the medical examiner whether his testimony concerning injuries on Hancock’s penis was consistent with his testimony about the lack of deviant sexual activity. Defense counsel objected that “Antonio I believe is being denied a neutral and detached magistrate. From the beginning of voir dire, the Court has — and it is the Court’s right, but I think to a certain degree has in my opinion been prosecuting. It has rehabilitated witnesses. When the State does something and something is left •— or you know — when we challenge something or we do anything, the Court is quick to come back and ask a significant amount of questions as should the prosecutor, if they felt there was any —.” The trial court responded that “I’m going to ask any question that I think is appropriate to clear up a confused issue. That’s my job as judge.”

Britt further alleges that the trial court occasionally “rehabilitated” the State’s witnesses following a defense objection, without waiting for the State’s response to the objection. At one point in Officer Guthrie’s testimony, defense counsel objected to him testifying concerning the various heights of the suspects. Before the State responded, the trial court went into a foundational colloquy with Guthrie and overruled the objection. The trial court proceeded in a similar manner following a foundational objection to the introduction of clothes recovered from the trunk of the car. After a chain-of-custody objection and a bench conference concerning the introduction of certain fingerprints, the trial court told the prosecutor to “Ask [the witness] how many of ’em he took and how many of’em Marshall took and did he observe him taking the others.” The prosecutor proceeded to ask some more questions, at which point the trial court asked foundational questions, and then overruled the defense objection.

Arkansas Rule of Evidence 614(b) generally permits the trial court to interrogate witnesses, whether called by the court or by a party. We have set forth the following as the “clearly established” rule governing the trial court’s examination of witnesses by a circuit judge in a jury trial:

The judge has the right, in a criminal prosecution, to interrogate the witnesses but he has no right to usurp the place of the state’s attorney, “and prescribe the order of introduction of the witnesses, and become active in their examination”; nor has he the right to assume the duties resting on the prisoner’s counsel in the general conduct of the defense. He may ask questions which the attorneys had the right to propound, and failed to ask, when the answers to the same may tend to prove the guilt or innocence of the accused. It would be a reproach to the laws of the state, if he was required to sit and see the guilty escape, or the innocent suffer through a failure of parties or their attorneys to ask a witness a necessary question. * * * In all trials the judge should preside with impartiality. Injury trials especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness, or as to controverted facts. For the jury are the sole judges of fact, and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts.

Jordan v. Guinn & Etheridge, 253 Ark. 315, 485 S.W.2d 715 (1972) (quoting Ratton v. Busby, 230 Ark. 667, 326 S.W.2d 889 (1959)). In a criminal case, the reasons for the restraints upon the judge’s examination of witnesses are of greater importance than in civil cases. See Jordan, supra. In instances where this court has found impermissible examination of witnesses by a trial court, the judge has typically impugned the credibility of the witness at issue. See Oliver v. State, 268 Ark. 579, 594 S.W.2d 261 (Ark. App. 1980); West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973); compare with Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995) (trial court permissibly “confirmed” prior testimony by calling additional witnesses in suppression hearing).

It goes without saying that a trial judge should refrain from advocacy, especially in a criminal jury trial, and “[t]he presentation of a litigant’s case in an adversary proceeding should be left to the initiative of counsel who has the responsibility to represent the interest of his client.” See Oliver v. State, supra. In this case, the trial court’s occasional questioning of witnesses before the State’s response to a defense objection may have appeared unduly precipitous. However, it was in the context of evidentiary objections and did not impugn or bolster the credibility of those witnesses. Nor did the trial court’s questioning of the medical examiner intimate an opinion as to his credibility. Under these circumstances, we cannot say that the trial court abused its discretion.

c. Time limitation on voir dire/Strikes for cause.

After some voir dire, the trial court announced that it was going to limit each side to thirty minutes of voir dire per three-person panel. However, the trial court also stated that it would not “hold an absolute clock” if the questioning warranted. Britt objected on grounds of denying him effective assistance of counsel, and his right to an impartial jury. We find no abuse of discretion here. Significantly, it does not appear from the record that the trial court mechanically imposed this time limit.

Second, Britt objected to being forced to make strikes for cause in the presence of the panel members when the trial court announced that strikes for cause should be made at the moment they arise. While Britt suggests that the court additionally discouraged counsel from approaching the bench, the record reveals that counsel was allowed to approach the bench out of the hearing of the panel to make strikes for cause. Accordingly, the trial court did not abuse its discretion here.

d. The rap tape.

Appellant appears to make an Ark. R. Evid. 403 argument on appeal concerning the rap tape that was found in the Bonneville and was introduced and played at trial. Davis testified that while he and Hancock were locked in the trunk of the car, a tape was repeatedly played that “sounded something like” “snatch ’em slam ’em in the trunk, f**k ’em, kill ’em, dump ’em, we don’t give a f**k.” Under Ark. R. Evid. 403, the trial court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. We will not reverse the trial court’s determination absent an abuse of discretion.

In the present case, given the State’s theory of accomplice liability, we cannot say that the trial court abused its discretion in admitting the tape. The evidence was admissible as being corroborative of the intent of Britt and his accomplices in carrying out a plan similar to that suggested by the lyrics on the rap tape.

5. Jury selection issues.

Apparently, the venire panel in this case was drawn entirely from the Osceola District of Mississippi County, and did not include people from the Blytheville area, the Chickasawba District. On appeal, Britt argues that the exclusion of people from the Chickasawba District violates his constitutional right to have a jury selected from the entire county, relying on Ark. Const. art. 2, § 10. We have rejected similar arguments in the past. In Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981), overruled on other grounds, 290 Ark. 130, 717 S.W.2d 784 (1986), appellant argued that the trial court erred in not quashing a jury panel on the grounds that the jury could not properly be drawn only from the Fort Smith District of Sebastian County. We rejected this argument, noting that Ark. Const. art. 13, § 5, divided Sebastian County into two judicial districts. Moreover, Ark. Stat. Ann. § 39-205.1 (Supp. 1979) provided in part that prospective jurors for the following calendar year were to be selected among the current list of registered voters “of the applicable district or county.” Morgan, supra (emphasis in original). “Clearly both our Constitution and the statute contemplate that a jury may properly be drawn from only one district within a county having more than one district. And we so hold.” Morgan, supra.

In the present case, while there is no constitutional provision dividing Mississippi County into judicial districts as there was for Sebastian County in Morgan, there is a legislative provision providing that Mississippi County is a multi-judicial-district county. See Act LXXXI of 1901 (“That the County of Mississippi shall be divided into two judicial districts, to be called the Osceola District and the Chickasawba District.”); cf. Ark. Code Ann. § 16-13-1002 (Repl. 1994) (“The terms of the circuit courts of the counties and districts of the Second Judicial District shall commence at the times and places provided for below and shall run for a period of one (1) year:. . . (C)(i) In the Chickasawba District of Mississippi County: On the first Monday in January, (ii) In the Osceola District of Mississippi County: On the fourth Monday in February.”) Accordingly, we affirm as to this point. See Morgan, supra.

Britt also moved to quash the jury panel based on lists which indicated that the trial court had excused a number of people on those lists. On “List Four” 92 of 213 names had been stricken with the notation “excused.” Fifteen of these people were excused with a notation from the judge, while fourteen were crossed out “for various other reasons.” In his motion to quash, Britt also alluded to another list where 77 of 213 names were excused. On appeal, Britt argues that this interferes with his right to “fundamental fairness, due process of law, and a fair trial under the Sixth and Fourteenth Amendments.”

In Ruiz v. State, 299 Ark. 144, 772 S.W.2d 297 (1989), this court rejected a similar argument that mass excusáis by the trial judge constituted an abuse of the trial judge’s authority and deprived them of a jury representing a fair cross-section of the community. The Ruiz court noted the absence of any suggestion that the discrepancy in the number of venire persons scheduled for jury service, some 403 individuals, and the number actually appearing, around ninety, was the result of any attempt to influence the makeup of the jury panel. “The explained absences, as well as the unexplained, are typical of the problems encountered in summoning large numbers of people to appear for jury service and the conflicts which they perceive as valid reasons not to serve. The record, in other words, presents nothing extraordinary with respect to the composition of this pool of potential jurors. Thus the ninety or so from which twelve were selected can be assumed to be as fairly representative of a cross-section of the community as four hundred would have been, the only difference being quantitative. That being so, we find nothing compelling in the motion to quash the panel nor requiring deeper scrutiny into the matter. Ark. Code Ann. § 16-31-103 (1985) exempts certain professions and vocations from service on grand or petit juries and empowers the circuit judge to excuse anyone when for any reason the interest of such individual or the public will be materially impaired by attendance.” Ruiz, supra (emphasis in original). Moreover, the appellants failed to demonstrate prejudice. Likewise, in the present case, Britt has failed to demonstrate anything “extraordinary” with respect to his pool of potential jurors or that he was prejudiced by the excusáis. Accordingly, the trial court did not err in denying his motion to quash the panel.

6. Ark. Sup. Ct. R.-4-3(h) Compliance

The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h), and it has been determined that there were no errors with respect to rulings on objections or motions prejudicial to the appellant not discussed above.

Reversed and remanded.

Arnold, C.J., Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority court’s decision to reverse this murder conviction will needlessly affect and shorten law officers’ future investigations of reported crimes by law enforcement officers. The majority opinion, in my view, cannot be justified.

The court reverses Antonio L. Britt’s conviction based on the majority court’s assertion that he was not brought before a judicial officer in a timely fashion as required by Ark. R. Crim. P. 8.1, Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), and Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994). The majority badly misreads and misapplies Rule 8.1 and the two cases that discuss the Rule.

Rule 8.1 provides that an arrested person who is not released by citation or by other lawful order shall be taken before a judicial officer without unnecessary delay. In Duncan, we said that, where there is a delay in taking a defendant before a judicial officer after his arrest, any confession gained during the delay will be excluded from evidence if (1) the delay was unnecessary, (2) the evidence is prejudicial, and (3) the evidence is reasonably related to the delay. However, in Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996), we made it clear that the purpose in applying the exclusionary rule in cases like Duncan is to deter police misconduct.

In Duncan, the defendant was marginally retarded, and was kept incommunicado for three-and-one-half days. Duncan was not given a waiver form to sign, nor was it shown that he intentionally relinquished his rights or had a clear understanding of what his rights were. In addition, the prosecutor in Duncan took on an investigative role and, in doing so, became a witness as well as the prosecutor in Duncan’s case. From the evidence presented, the Duncan court concluded that the evidence showed the delay in arranging Duncan’s appearance in court was purposeful and that the prosecutor had made a deliberate decision to hold Duncan in detention and ignore the prompt-appearance requirement. In short, because of the State’s misconduct and delay, this court suppressed an inculpatory statement Duncan made during the delay.

This court’s decision in Clay was reversed for the same reason given in Duncan. This court in Clay said, “The delay in the case now before us was not only unnecessary, it apparently is of the same deliberate sort as we encountered in the Duncan case . . . .” The court in Clay then pointed to the State’s misconduct whereby the deputy prosecutor directed a law-enforcement officer to delay taking Clay before a judicial officer with the expectation that Clay would later admit to capital murder.

There is absolutely nothing in the record before us that even hints that there was any misconduct on any law-enforcement officer’s part in this case. But first, the issue of state misconduct aside, the record reveals that Britt obtained a prompt judicial hearing and that no unnecessary delay was evidenced in getting Britt to a hearing.

Britt and three accomplices murdered Jonathan Hancock and shot Bradley Davis shortly before 2:00 a.m. on Sunday, April 9, 1995. He was arrested the same day, and was arraigned the following Tuesday, April 11, 1995. These and other related crimes required the participation and coordination of criminal investigators from two counties, Mississippi and St. Francis.

The initial investigation commenced in Mississippi County at 2:37 a.m. on Sunday, when Hancock’s murder was first reported. The investigation then extended into St. Francis County the same day, after authorities learned the truck occupied by Hancock and Davis at the time of the shootings had been seen in Madison. The police’s finding the truck led to Britt’s and one of his accomplice’s arrest around 9:00 a.m. on Sunday. During the afternoon on Sunday, at 3:45 p.m., about seven hours after his arrest, Britt gave authorities an exculpatory statement; however, only an hour and fifteen minutes later, he admitted he had been present with other individuals at the time Hancock was killed. The record reflects that, during this short eight-hour period, Britt had been thoroughly mirandized, had been read his rights, and had voluntarily and intentionally signed and relinquished his rights.

Britt was then returned to Mississippi County for detention at 10:00 p.m. on Sunday night. On the morning of Monday, April 10, the Mississippi County Deputy Prosecutor appeared in municipal court where he learned that suspects in the Hancock murder were in custody at the jail for the crimes of murder, kidnapping, and aggravated robbery. He went to the jail to determine the status of the investigation and learned officers were taking statements from all suspects, including Britt. Blytheville Police Officer Mike Marshall explained that statements were being taken from suspects known to be involved with Britt; but because the officers were still interviewing suspects and had not completed their work, they did not take Britt to court that Monday. Officer Marshall further testified that he was also investigating Britt’s connection with another related crime, aggravated robbery. Officers took Britt to court the next day, Tuesday, after they completed their interviews with all the suspects and had completed their paperwork.

From the foregoing, it is easily concluded that once the investigating authorities learned in the wee hours of April 9, 1995, of Hancock’s murder, they collectively and expeditiously worked to locate Britt and others who were involved in the homicide. By about 9:00 a.m., April 9, Britt was arrested, and within eight more hours, Britt had given a statement implicating himself and others. At the end of the day (10:00 p.m.) on April 9, Britt was returned to the Mississippi County jail for detention. However, the investigators’ work was not yet completed, since Britt’s statement given between 5:00-6:00 p.m. on April 9 named other suspects who still needed to be interviewed.

On the morning of April 10, officers renewed their efforts by conducting interviews of these additional suspects, and reinterviewing Britt. While the officers were required to have (and did have) probable cause to arrest Britt, they were free to follow their investigation wherever it led them. This included additional interviews with Britt so long as any delay in getting him to a magistrate was not part of circumstances employed to overbear his will in order to obtain a confession. See United States v. Daniels, 64 F.3d 311 (1995), cert. denied, 516 U.S. 1063 (1996). Here, the authorities had probable cause at the time of Britt’s arrest and his confession on April 9.

Once again, the record is quite clear that there was no unnecessary delay between the time the officers first questioned Britt about Hancock’s murder and the time he confessed, thereby implicating himself and others. Most important, no police misconduct occurred during Britt’s incarceration, so there was no policy reason to apply the exclusionary rule to Britt’s April 9 inculpatory statement. See Landrum, 326 Ark. at 999, 936 S.W.2d at 507. To the contrary, the proof shows that once the state deputy prosecutor learned of Britt’s incarceration in the Mississippi County jail, he went to the jail, and was informed about the status of the investigations. Britt was then promptly taken before a magistrate the next day, April 11.

In the circumstances evident in this case, Britt was accorded a prompt appearance before a magistrate and was never made the subject of police misconduct that coerced his confession. I respectfully but strongly disagree with this court’s ruling suppressing Britt’s confession.

Arnold, C.J., and Corbin, J., join this dissent.

       This court affirmed Williams’s convictions arising out the same events in Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

       As a separate instance of bias, Britt alludes to a portion of the record where the trial court sustained an objection to the defense question “assuming you find. . . defendant guilty of capital murder. . .would life imprisonment without the possibility of parole be a consideration, or would you feel the only fair punishment was to pay with his life in kind?” Although this question clearly touches on punishment, Britt asserts that in this instance he was forbidden to “inquire of the jury if it would impose lesser-included offenses.” At any rate, the point is moot given that the jury did not convict Britt of capital murder.

       The medical examiner’s testimony was videotaped and later played for the jury. In its brief, the State incorrectly suggests that the trial court offered to remove its colloquy with the witness from the videotape. A review of the record shows that the trial court only offered to remove its later admonition of defense counsel from the videotape, not its examination of the witness.


source: Caselaw Access Project

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

license: Public Domain

text:
    Cecil and Leona NELSON v. RIVER VALLEY BANK & TRUST
    97-1367
    971 S.W.2d 777

    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Oscar Stilley, for appellant.

      Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: J. Michael Cogbill and Virginia C. Trammell, for appellee.
   Annabelle Clinton Imber, Justice.

The appellants, Cecil and Leona Nelson, claimed that a demand note issued by the appellee, River Valley Bank and Trust, was usurious because the interest rate was more than five percentage points above the federal discount rate. The trial court granted summary judgment to River Valley because it held that federal law preempted Arkansas usury law. The Nelsons appeal that ruling, and River Valley cross-appeals the trial court’s denial of its request for attorneys’ fees and expenses. We affirm both rulings.

The facts of this case are undisputed. On August 2, 1993, the Nelsons obtained a loan from River Valley for the purchase of a residential manufactured home. The loan was a demand note in the amount of $16,303.73 with an annual interest rate of 9.5%. In exchange for the loan, River Valley retained a security interest in the mobile home and received a first priority mortgage on the Nelsons’ real property located in Crawford County. At the time the demand note was executed, the federal discount rate was 3%. River Valley called the demand note on June 9, 1994, and the parties executed a loan extension agreement for the remaining portion of the debt at 10.5% interest. River Valley called the note a second time on January 5, 1995, and the parties executed another loan extension agreement at 11% interest. The Nelsons continued to pay the note until they found another source of credit in May of 1996.

In January of 1997, the Nelsons filed a complaint, on their own behalf and on behalf of all other similarly situated persons, alleging that this type of loan by River Valley was usurious in violation of Article 19 § 13 of the Arkansas Constitution, which sets the maximum lawful rate of interest at five percent above the federal reserve discount rate. In response, River Valley argued that section 501 of the Depositor Institutions Deregulation and Monetary Control Act (Monetary Control Act), 12 U.S.C. § 1735f-7a, preempted Arkansas usury law. Both parties subsequently moved for summary judgment.

On July 31, 1997, the trial court granted summary judgment in favor of River Valley. In its order, the trial court ruled that the Monetary Control Act preempted state usury law when the loan was secured by either: 1) a first lien on residential real property, or 2) a first hen on residential manufactured housing, and the lender complied with consumer-protection regulations. Because the Nelsons’ loan was secured by both a lien on real property and a security interest in the mobile home, the trial court ruled that the section of the Monetary Control Act that allowed the highest interest rate was applicable. The court then concluded that “the part of the statute which preempts loan[s] secured by first liens on residential real property is controlling and federal law preempts the Arkansas Constitution and the loan is not usurious.” Accordingly, the trial court dismissed the Nelsons’ usury complaint with prejudice. Approximately one month later, the trial court denied River Valley’s motion for attorneys’ fees and expenses. The trial court did not rule upon the Nelsons’ motion for class certification prior to dismissal of their complaint.

I. Preemption

On appeal, the Nelsons contend that the trial court erred when it granted summary judgment in favor of River Valley. As we have said on numerous occasions, summary judgment is appropriate when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Golden Tee, Inc. v. Venture Golf Schs., Inc., 333 Ark. 253, 969 S.W.2d 625 (1998); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). In making this determination, we view the evidence in the fight most favorable to the Nelsons, as the parties resisting the motion, and resolve all doubts and inferences in their favor. Golden Tee, supra; Adams, supra.

Article 19 § 13 of the Arkansas Constitution (as modified by Amendment 60) provides that “[t]he maximum lawful rate of interest on any contract entered into after the effective date hereof shall not exceed five percent (5%) per annum above the Federal Reserve Discount Rate at the time of the contract.” Ark. Const., art. 19, § 13(a)(i). If a party claiming that a loan is usurious prevails, he or she is entitled to “twice the amount of interest paid” on the note, and the remaining portion of the loan, if any, is deemed void. Ark. Const., art. 19, § 13(a)(ii). When the Nelsons signed their loan containing a 9.5% interest rate, the federal reserve discount rate was 3%. Hence, the loan would be usurious if the Arkansas Constitution governed.

Arkansas usury law, however, is preempted by section 501 of the Monetary Control Act of 1980 if the loan meets certain conditions. In re Lawson Square, Inc., 816 F.2d 1236 (8th Cir. 1987); Draper v. Castle Home Sales, Inc., 711 F. Supp. 1499 (E.D. Ark. 1989), aff'd, 894 F.2d 1341 (8th Cir. 1989). Specifically, subsection 501(a)(1) of the Monetary Control Act provides that:

The provisions of the constitution or the laws of any State expressly limiting the rate or amount of interest, discount points, finance charges, or other charges which may be charged, taken, received, or reserved shall not apply to any loan . . . which is —•
(A) secured by a first hen on residential real property, by a first lien on stock in a residential cooperative housing corporation where the loan is used to finance the acquisition of the stock, or by a first lien on a residential manufactured home.

(codified at 12 U.S.C. § 1735f-7a(a)) (emphasis added). Subsection 501(c) of the Monetary Control Act adds the following conditions to federal preemption:

The provisions of subsection (a)(1) shall not apply to a loan . . . which is secured by a first lien on a residential manufactured home unless the terms and conditions relating to such loan . . . comply with consumer protection provisions specified in regulations prescribed by the Federal Home Loan Bank Board.

(codified at 12 U.S.C. § 1735f-7a(c)).

In Troutt v. First Fed. Sav. & Loan Ass’n, 280 Ark. 505, 659 S.W.2d 183 (1983), we held that subsection 501(a) of the Monetary Control Act preempted Arkansas usury law because Troutt’s loan was secured by a first lien on residential real property. Likewise, in Rhode v. Kremer, 280 Ark. 136, 655 S.W.2d 410 (1983), we found federal preemption of Arkansas usury law when a loan was secured by a lien on a mobile home as mentioned in subsection 501(c). This case is different from Troutt and Rhodes because the Nelsons’ loan was secured by a first lien on residential real property and a first lien on the mobile home.

On appeal, the Nelsons argue that pursuant to subsection 501(c), a note secured by a first lien on a mobile home must comply with the consumer-protection regulations regardless of whether the note is also secured by a Hen on residential real property. We disagree with this interpretation for several reasons.

First and foremost, the accompanying regulations to the Monetary Control Act explain that:

The provisions of the constitution or law of any state expressly limiting the rate or amount of interest . . . shall not apply to any Federally-related loan:
(1) Made after March 31, 1980; and
(2) Secured by a first lien on:
(i) Residential real property;
(ii) Stock in a residential cooperative housing corporation when the loan is used to finance the acquisition of such stock; or
(iii) A residential manufactured home: Provided, That the loan so secured contains the consumer safeguards required by § 590.4 of this part.

12 C.F.R. § 590.3 (1998) (emphasis added). This regulation defeats the Nelsons’ argument because it clearly provides that compliance with consumer safeguards is not required when the loan is secured by a first hen on residential real property. We also find persuasive the fact that section 501 of the Monetary Control Act and regulation 590.3 are written in the disjunctive, thereby indicating that Congress intended our state usury law to be preempted if any one of three situations exists. See Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979) (describing the meaning of the word “or” in a state statute).

Finally, Congress gave explicit instructions on how to interpret apparently conflicting provisions of the Monetary Control Act when it said in section 528 that:

In any case in which one or more provisions of, or amendments made by, this title, section 529 of the National Housing Act, or any other provision of law . . . apply with respect to the same loan . . . such loan . . . may be made at the highest applicable rate.

Pub. L. No. 96-221, § 528, 94 Stat. 168 (1981) (emphasis added).

In Bank of New York v. Hoyt, 617 F. Supp. 1304 (D.R.I. 1985), the Rhode Island District Court explained that:

Section 528 itself informs the Act as an entirety: Congress recognized the imbricated texture of certain borrowings and ordained that, in such circumstances, the provisions of federal law most hospitable to the viability of the loan should apply.

In Hoyt, the federal court used section 528 to reconcile two contradictory sections of the Monetary Control Act: section 511 dealing with financing for third-party residential construction, and section 501(a) dealing with loans secured by a first mortgage on residential real property. Id. The Nelsons argue that section 528 is inapplicable when two sw&sections of the Act are contradictory. We find no merit in this argument because section 528 clearly states that it applies to contradictory “provisions” which could equally mean sections or subsections. In any event, section 528 applies in “any case in which one or more provisions . . . apply with respect to the same loan.” § 528, 94 Stat. 168.

In the case before us today, preemption under subsection 501(a)(1) is clear because the Nelsons’ loan was secured by a first hen on residential real property. Flence, there is no limit on the maximum rate of interest that may be charged on the note. In contrast, if the Nelsons’ loan violated a single provision of the federal consumer protection regulations, there would be no preemption under subsection 501(c), and River Valley would be limited to charging 5% above the federal discount rate. Because subsection 501(a)(1) clearly allows for a greater rate of interest than subsection 501(c), and thus is more “hospitable” to preemption in this case, we conclude that the trial court did not err when it held that subsection 501(a)(1) was the controlling provision of the Monetary Control Act.

For these reasons, we hold that the trial court did not err when it held that Arkansas usury law was preempted by subsection 501(a)(1) of the Monetary Control Act. Accordingly, we affirm on direct appeal.

II. Attorneys’ Fees

On cross-appeal, River Valley argues that the trial court erred when it denied its request for attorneys’ fees. It is well settled under Arkansas law that attorneys’ fees are awarded only when expressly provided for by a statute or rule. Security Pac. Hous. Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). We have also clarified that the decisions of whether to award fees and how much to award are discretionary determinations that will be reversed only if the appellant can demonstrate an abuse of discretion. Security Pac., supra; Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990).

In this case, River Valley filed a motion asking for attorneys’ fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1995). The trial court denied River Valley’s motion without explanation, and thus we are unable to determine if the court found, in its discretion, that attorneys’ fees were not warranted in this case, or that Ark. Code Ann. § 16-22-308 was inapplicable. Without a specific ruling, it is impossible for us to say that the trial court erred. Accordingly, we also affirm on cross-appeal.

Affirmed on direct appeal and cross-appeal.

Corbin and Thornton, JJ., concur.

Ray Thornton, Justice,

concurring. I concur with the result reached by the majority, but would affirm on direct appeal based on my conclusion that there was substantial compliance with the applicable consumer protection regulations. In my view, compliance with these regulations is required to extend the preemption of state usury laws with respect to the financing of a manufactured home.

Corbin, J., joins.

       Section 528 was never separately codified. Instead, section 528 appears in the historical note following the codification of section 501 at 12 U.S.C. § 1735f-7.


author: Ray Thornton, Justice.

text:
    Keith L. GRAYSON and Grayson & Grayson, P.A. v. BANK of LITTLE ROCK
    98-149
    971 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Grayson Holleman & Grayson, P.A., by: Keith L. Grayson and Leslie H. Herrington, for appellants/cross-appellees.

      Buzbee & Hawk PLC, by: J.R. Buzbee, for appellees/crossappellants.
   Ray Thornton, Justice.

The principal question in this case is whether an attorney is liable for conversion for distributing the cash proceeds of a settlement agreement, which was subject to a security interest, when the secured party neither obtained a writ of garnishment nor an order of delivery. The appellants, Keith Grayson and Grayson & Grayson, P.A., were the attorneys for American Eagle Contracting Corporation (AECC) in a Chapter 11 bankruptcy proceeding. The appellee Bank of Little Rock (the Bank) held a perfected security interest in all of AECC’s corporate assets, including after-acquired property. When AECC defaulted on its loan with the Bank, the Bank sought to take possession of its secured collateral, including the cash proceeds of a settlement agreement reached between AECC and Marshall Insurance Agency (Marshall) in another lawsuit. Grayson, who was also the attorney in the Marshall lawsuit, refused the Bank’s demand to turn over the proceeds. He retained a portion of those proceeds as attorney’s fees, paid the bankruptcy trustee, and remitted the remainder to his client, AECC. The Bank brought action against Grayson for conversion. Finding no disputed issues of material fact, the trial court granted the Bank’s motion for summary judgment, ruling that Grayson converted that portion of the proceeds which he retained as his fees. Grayson appeals from that decision on several grounds. The Bank cross-appeals, contending that the court erred when it declined to find conversion of the entire settlement recovery. We affirm in part, reverse in part, and remand with instructions.

AECC petitioned for bankruptcy relief after it defaulted on its bank loans. Following the petition, the Bank and AECC entered into a temporary cash collateral order. Grayson signed that order on behalf of AECC. In that order, AECC acknowledged that the Bank had a lien on the assets of AECC’s estate, including accounts receivable, contract rights, general intangibles, and the proceeds of those assets. The order further provided that the hen extended to all postpetition assets.

During the course of AECC’s bankruptcy proceeding, Gray-son filed suit against Marshall on behalf of AECC to recover an overpayment of workers’ compensation insurance premiums. The parties settled for $7500. When Grayson sent notice of the settlement to all AECC creditors, the Bank objected, alleging that it had a security interest in the settlement proceeds and was therefore entitled to the proceeds as part of the Bank’s cash collateral.

After learning of Grayson’s lawsuit against Marshall, the Bank obtained release from the bankruptcy’s automatic-stay provision. The Bank then obtained an order of replevin to recover all of its secured collateral from AECC, and mailed this order to Grayson.

Soon after the bankruptcy judge awarded Grayson attorney fees in the amount $12,069, the judge dismissed the case. Grayson then distributed the Marshall settlement proceeds. He retained $3500 for attorney fees earned in the bankruptcy case, and paid $1000 to the bankruptcy trustee and the $3000 balance to AECC.

After Grayson distributed the settlement proceeds, the Bank sued Grayson for conversion. The Bank claimed that Grayson was well aware of the Bank’s security interest in those proceeds yet wrongfully distributed them after refusing the Bank’s demand. The Bank also sued AECC in replevin to recover all secured collateral in AECC’s possession. Grayson petitioned the court to consolidate the cases, but that motion was denied. The trial court then decided the conversion matter on summary judgment in favor of the Bank in the amount of $3500. The parties agreed that there were no genuine issues of material fact in dispute.

However, Grayson argues that, as a matter of law, the Bank was not entitled to the settlement proceeds because it had not taken the necessary steps to gain a possessory interest in those proceeds. Grayson complains that because the Bank never served a writ of garnishment or an order of delivery on him, he was relieved of any duty to preserve the collateral for the Bank. The Bank argues that it did not need to obtain an order of delivery or writ of garnishment to obtain a possessory interest. Instead, the Bank argues that its objection to the motion to settle the pending Marshall lawsuit, the temporary cash order, and the order of replevin served to give Grayson notice of the Bank’s perfected-security interest and its right to possess the settlement proceeds. The Bank contends that Grayson’s refusal to turn over the proceeds effected a conversion, and on cross-appeal, alleges that the trial court erred when it did not find Grayson liable for conversion of the entire $7500 amount. We agree.

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 66, 961 S.W.2d 712, 715 (1998) (citing Pugh v. Griggs, 327 Ark. 577, 824 S.W.2d 387 (1992)). Normally, we view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. However, where the parties have agreed that there is no genuine issue as to any material fact, that rule is inapplicable, and we simply determine whether the appellees were entitled to judgment as a matter of law. City of Little Rock v. Pfeifer, 318 Ark. 679, 684, 887 S.W.2d 296, 298 (1994). The trial court will not be reversed unless the court’s findings are clearly erroneous. See McQuillan v. Mercedes-Benz Credit Corp, 331 Ark. 242, 961 S.W.2d 729 (1998); Ark. R. Civ. P. 52(a).

The first question we address is whether Grayson had a lien on the settlement proceeds. Grayson argues that, as the attorney of record for AECC, he is entided to an attorney’s lien on the settlement proceeds pursuant to Ark. Code Ann. § 4-9-310 (Repl. 1991). That section provides the following:

§ 4-9-310 Priority of certain liens arising by operation of law.
When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a hen upon goods in possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the hen is statutory and the statute expressly provides otherwise. (Emphasis added.)

Under the same tide, “goods” are defined as “all things which are moveable at the time the security interest attaches or which are fixtures (§ 4-9-313), but does not include money . . . .” Ark. Code Ann. § 4-9-105(h) (Supp. 1997).

Grayson acknowledges that cash proceeds of a lawsuit are not “goods.” Nevertheless, he argues that this section applies here because the “spirit” of the statute recognizes that a person ought to be compensated for services he rendered before anyone else may collect on a lien, regardless of whether the lien is for goods or intangibles.

Grayson offers no convincing authority or argument in support of his contention. We do not consider assignments of error that are unsupported by convincing legal authority or argument unless it is apparent without further research that the argument is well taken. Porter v. Harshfield, 329 Ark. 130, 139, 948 S.W.2d 83, 87 (1997); J & J Bonding, Inc. v. State, 330 Ark. 599, 602, 955 S.W.2d 516, 518 (1997). Without convincing authority, we cannot accept Grayson’s argument when the General Assembly made it clear that money does not fall within the definition of goods.

We note that attorneys acquire a lien on their client’s cause of action under Ark. Code Ann. §§ 16-22-301 — 304 (Repl. 1994). Subsection 16-22-304(a) provides that this lien attaches to the proceeds of the lawsuit upon service of a written notice to the adverse party. Subsection 16-22-304(b) further provides that, in the absence of notice, this lien attaches “from and after the commencement of an action ... in the action ... in which the attorney . . . has been employed to represent the client.”

This section gives an attorney’s lien on the proceeds of the same cause of action for which the attorney has been employed to represent the client. The Hen attaches when summons is issued. See Union Sawmill Co. v. Pace, Campbell & Davis, 163 Ark. 598, 260 S.W. 428 (1924). The abstract of the record shows that Grayson intended to apply the settlement proceeds against his bankruptcy cause of action. To the extent that Grayson is claiming a lien on the proceeds of the Marshall suit for services he performed in the bankruptcy proceeding, the attorney-lien statute is not applicable. This interpretation is consistent with the well-recognized general rule, which states that an attorney’s lien extends only to fees and disbursements rendered in the particular action in which they were incurred, and does not cover a general balance due the attorney, or charges rendered in other causes, or charges in causes not intimately connected with the particular action. Wanda E. Wakefield, Attorney’s Charging Lien as Including Services Rendered or Disbursements Made in Other Than Instant Action or Proceeding, 23 A.L.R.4th 336 (1983). See Davis v. Webber, 66 Ark. 190, 49 S.W. 822 (1899) (holding that in a suit to enforce an attorney’s hen for services rendered in a certain suit on property received as a result of that suit, it was error to include in the judgment a fee for services rendered in a different suit). Cf. Camp v. Park, 226 Ark. 1026, 295 S.W.2d 613 (1956) (extending the attorney’s lien to suits arising from, and incidental to, the main cause of action).

Because we hold that Grayson does not have an attorney’s Hen on the settlement proceeds, we do not need to consider his next argument that his lien is superior to the Bank’s perfected-security interest.

We address next the issue of conversion. Grayson argues that, because the Bank failed to obtain a writ of garnishment, the Bank did not have a right to possession of the collateral secured by its security agreement, and therefore, there could be no conversion. Grayson’s argument lacks merit. Under our secured-transactions law, when a debtor defaults under a security agreement, the “secured party has on default the right to take possession of the collateral.” Ark. Code. Ann. § 4-9-503 (Repl. 1991). The secured party may enforce its claim by reducing the claim to judgment, foreclosing, or otherwise enforcing the security interest by any available judicial procedure. § 4-9-501. Further, these rights and remedies are cumulative and their exercise will not effect an election of inconsistent remedies. Id.; Williams v. Westinghouse Credit Corp., 250 Ark. 1065, 468 S.W.2d 761 (1971).

Under the terms of the security agreement here, the debtor, AECC, was in default when it stopped making payments on its loan with the Bank. The Bank acquired the right to possession of AECC’s assets at that time. To recover its collateral, the Bank filed a replevin action against AECC. In that action, the trial court found that the Bank had a perfected security interest in AECC’s corporate assets and its proceeds; AECC was in default of its loan; and that the Bank was entitled to possession of the property. The court also ruled that the circuit clerk was authorized to issue an order of delivery. When the Bank discovered that Grayson held funds subject to its security interest, it made a demand for those funds, which Grayson refused. The Bank then pursued this conversion action against Grayson.

We have held that an action in conversion is appropriate when a creditor is entitled to possession of money after default and a transferee of the debtor has wrongly refused his demand to surrender the collateral. See Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993); City Nat’l Bank v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990); see also, 1A Peter. F. Coogan et al., Secured Transactions under the Uniform Commercial Code § 8.08[2] [b] (1988).

In Goodwin, we defined this tort as follows:

Conversion is the exercise of dominion over property in violation of the rights of the owner or person entitled to possession. Conversion can only result from conduct intended to affect property. The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights.

Goodwin, 301 Ark. at 187, 783 S.W.2d at 338 (internal citations omitted). If the defendant exercises control over the goods in exclusion or defiance of the owner’s rights, it is a conversion, whether it is for defendant’s own use or another’s use. Reed v. Hamilton, 315 Ark. 56, 59, 864 S.W.2d 845, 847 (1993). When Grayson distributed the settlement proceeds, he exercised dominion over the property that the Bank was entitled, by law, to possess. Because the material facts are not disputed, we cannot say the trial court clearly erred when it granted summary judgment on the issue of conversion as a matter of law.

As his final argument, Grayson contends that the trial court erred when it refused to consolidate its case with the case pending against AECC. He argues that both actions involved the recovery of the settlement proceeds, and arose under the same set of facts and circumstances. He also claims that AECC was an indispensable party to the action. Ark. R. Civ. P. 42(a) provides for consolidation when actions that involve a common question of law or fact are pending before the court. Consolidation exists for convenience and economy in judicial administration. Hunter v. McDaniel Constr. Co., 274 Ark. 178, 623 S.W.2d 196 (1981). Further, it is within the sound discretion of the trial court to order consolidation. Missouri Pac. R.R. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).

It is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the court for decision. Ark. Sup. Ct. R. 4-2(a)(6); Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996).

Grayson has failed to provide us with an adequate abstract of the record to consider the issue of consolidation. Ark. Sup. Ct. R. 4-2(b)(2). Without the pleadings from the suit against AECC, we cannot conduct a meaningful review of Grayson’s argument. Because he gives us no information on which he bases his contention, we cannot consider whether, in fact, the cases are so similar that the interests of justice would have been served by consolidation. We affirm this finding of the trial court.

On cross-appeal, the Bank contends that the court erred when it found that Grayson converted only $3500 and awarded that amount to the Bank. Instead, the Bank argues that Grayson converted the entire $7500 settlement when he kept $3500, paid $1000 to the U.S. Trustee, and paid the balance to AECC.

The act of dominion over property in violation of the rights of the owner or person entitled to possession is conversion, even if the property is turned over to a third party. Reed v. Hamilton, 315 Ark. 56, 59, 864 S.W.2d 845, 847 (1993) (holding that an act of conversion may occur even when the alleged converter derives no personal benefit from the transfer). The law is settled that an agent may become a converter when he receives property on behalf of his principal, if the agent negotiated the transaction, even though he may have acted in good-faith ignorance of the plaintiffs rights. 1 Fowler V. Harper et al., The Law of Torts § 2.15A (3rd ed. 1996).

We hold that Grayson converted the entire $7500, whether he was acting for himself or as AECC’s agent when he distributed the settlement proceeds. As we stated above, the Bank was entitled to possession of all cash proceeds when AECC defaulted on its loan. When Grayson subsequently refused the Bank’s demand to turn over the setdement proceeds, he became liable for conversion as to the entire amount. The trial court erred when it found that Grayson converted only that portion of the settlement proceeds that he kept for himself.

The trial court’s finding of conversion is affirmed. However, we reverse and remand with instructions to modify the judgment to reflect damages consistent with this opinion.

       In response to interrogatories, Mr. Grayson stated that he actually recovered $11,600 in fees in the bankruptcy case; he received a $7500 pre-petition retainer, $600 for a stay-violation, and then recovered $3500 firom the Marshall settlement.