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

text:
    Michael HENDERSON v. STATE of Arkansas
    CR 97-53
    953 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997
    [Petition for rehearing denied October 16, 1997.]

      William C. McArthur, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Michael Henderson was found guilty of capital murder for the shooting death of Billy Little; attempted capital murder of the victim’s brother, Arley Lithe; and aggravated robbery. He was sentenced to life in prison without parole for capital murder. He appeals on grounds of (1) insufficiency of the evidence; (2) trial court error in not suppressing his statement to police officers; and (3) trial court error in allowing hearsay statements from an uncharged co-conspirator. Henderson raises a fourth issue of trial court error in not giving a manslaughter instruction, but he concedes in his brief that our case law renders this issue either moot or harmless error. We agree with him that his statement to deputy sheriffs should have been suppressed, and we reverse and remand for further proceedings.

The events in question occurred on May 7, 1994. At trial, Arley Little testified that he and his brother, Billy Little, owned a used furniture store and that it was common for them to be carrying large amounts of cash. He stated that on May 7, 1994, he and Billy Little met with Larry Harris, who had purchased a refrigerator from them and wanted a refund because the appliance did not function properly. Little explained that he and his brother picked up the refrigerator and loaded it on their truck, refunded the money to Larry Harris, and left for an auction in DeValls Bluff. Arley Little estimated that on that date he and his brother were carrying about $16,000 to $20,000 in cash.

Little further testified that they left the auction in DeValls Bluff and drove into Pulaski County on Highway 70 after 9:00 p.m. At that time, he heard a loud noise and saw that his brother had been shot in the jaw. He testified that a small white car passed them, continued down the road, turned, came back, and fired again at the truck. On the white car’s second pass, his brother was shot in the head and collapsed on his shoulder. He testified that he took control of the truck and continued to drive along Highway 70 when the white car approached from behind and came alongside the truck for a third time. Arley said that shots were again fired into the truck and that the white car continued ahead of them until it took an entrance ramp onto Interstate 40. Arley Litde survived the incident without serious injury, but he could not identify any occupants of the white car and was unable to testify as to the precise number of shots fired into the truck. Billy Litde died as a result of the gunshot wounds to his head.

Corporal Terry Ward of the Pulaski County Sheriff s Department testified that he spoke with Larry Harris at the sheriffs department on September 27, 1994, and that Larry told him where he could find the gun that was used in the crime. The weapon, a .380 semiautomatic pistol, was retrieved in Lonoke County. Ronald Andrejack, a firearms and toolmark examiner with the Arkansas State Crime Lab, opined that the three bullets retrieved from Billy Little’s truck and the shell casings retrieved from Highway 70 were fired from the .380 semiautomatic pistol found by the investigating officers.

The issue of who fired the shots at the Little truck was contested at trial. Corporal Ward introduced a taped statement given by Henderson to Pulaski County deputy sheriffs on September 28, 1994. In that statement, Henderson explained that on May 7, 1994, he and Gary Harris, his cousin and the brother of Larry Harris, planned to rob the Littles. He stated that Gary Harris drove his white Nissan Maxima with Henderson as a passenger and they followed the Little truck after the Littles left the auction in DeValls Bluff. Henderson stated that they pulled alongside the truck to order it to pull over when the truck swerved at them. Henderson explained in his statement: “[H]e swerved at us, things got out of hand, and we passed him after I pulled the trigger the first time, and then, then I freaked out and ah, of course, I didn’t want no witnesses, you know, or anything like that, saying that we did it[.]” He stated that Gary Harris drove the vehicle but did not do any of the shooting.

Gary Harris testified at trial for the prosecution and acknowledged that he pled guilty to first-degree murder, attempted capital murder, and attempted aggravated robbery and received a sentence of 80 years’ imprisonment for his involvement in the crime. He testified that Henderson and Larry Harris, his brother, planned the robbery and that he only learned of the plan to rob the Littles the day the crime occurred. He stated that his job was to drive his car, the white Nissan Maxima. He admitted that he owned the .380 semiautomatic pistol used in the crime. He stated that they made three passes at the Little truck, and Henderson fired all of the shots.

In his own defense, Henderson testified that he turned 18 on May 4, 1994, and that he was celebrating three days later on the day of the murder by drinking alcohol and taking crystal methamphetamine when Gary and Larry Harris came to him with the idea to rob the Littles. During the robbery attempt, when their car pulled up beside the Little truck, Henderson stated that Gary Harris swerved and the gun “went off.” Henderson testified that from that point he “was just freaking out and telling Gary to go on and leave and go[.]” According to Henderson, the remaining shots, which were the fatal shots, were fired by Gary Harris. Henderson maintained at trial that he “did not personally kill Mr. Little.”

Also testifying for the defense was Jennifer Collier, Henderson’s former girlfriend, who stated that Gary and Larry Harris came to Henderson with the plan to rob the Litdes. She testified that she heard Gary Harris say later that he had “shot a round and it felt good.”

I. Sufficiency of the Evidence

We first address Henderson’s contention that the evidence against him was insufficient. We do so because the double-jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996).

At trial, Henderson moved for a directed verdict on all three counts against him on the sole ground that, while there was sufficient evidence of his intent to rob the Littles, there was no proof that he actually attempted to commit the robbery. Henderson maintains that because the charge was for capital felony murder, which requires the element of a killing in the furtherance of an enumerated felony, proof of attempted robbery was critical. Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1993).

We decline to reach the merits of this issue. Compared to the relatively narrow motion for directed verdict made by Henderson which was limited to the State’s failure to prove an actual robbery attempt, Henderson now contends that the State’s evidence was insufficient as a matter of law because his conviction rested on two untrustworthy items of evidence: (1) the testimony of an accomplice, Gary Harris, who was also charged in this matter; and (2) his statement to police officers, which should not have been admitted into evidence due to an illegal arrest. Because of this, the State urges that Henderson has changed his sufficiency argument on appeal. We agree.

It is blackletter law that a party cannot change his grounds for an objection or motion on appeal and that parties are bound by the scope and nature of their arguments made at trial. Evans v. State, 326 Ark. 279, 923 S.W.2d 872 (1996); Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). In this regard, specific arguments in support of a directed-verdict motion are waived if not made to the trial court and may not be raised for the first time on appeal. Id. Following Evans v. State, supra, we refuse to consider Henderson’s arguments of insufficient evidence made for the first time on appeal.

II. Illegal Arrest and Suppression of Statement

Prior to trial, Henderson moved to suppress his statement to Pulaski County deputy sheriffs as the fruit of the poisonous tree. His point in part was that the underlying arrest was illegal because it was made by deputies from the Pulaski County Sheriffs Department while in Lonoke County, which was outside their territorial jurisdiction. The trial court denied his motion, and he makes the same argument on appeal.

At the suppression hearing prior to trial, Corporal Terry-Ward testified about the circumstances leading up to Henderson’s arrest and his statement to Pulaski County deputy sheriffs. He testified that Gary Harris, after confessing to his involvement in the murder, volunteered to wear a body mike in order to implicate Henderson. Corporal Ward testified that he contacted Ernest Bush, who was a member of the Pulaski County Sheriff s Department and who was also a member of the Metropolitan Little Rock Violent Crimes Joint Task Force (MetRock). Detective Bush had been deputized both as a special agent with the F.B.I. and as a U.S. Marshal. He testified that his MetRock duties often caused him to act in an official capacity outside of Pulaski County, and, thus, he had been deputized throughout the state. Detective Bush testified that he acquired a body recording device from the F.B.I. and received permission to do so from his supervisor, F.B.I. Special Agent Peatross. He testified that he was not told by his supervisor to make an arrest; rather, he was given permission to use the recording device. However, he stated that Special Agent Peatross knew that he would be involved in the investigation of the crime.

Corporal Ward testified that the decision was made to arrest Henderson without a warrant in Lonoke County after overhearing his conversation with Gary Harris. It was made, after discussing the matter with a deputy prosecuting attorney, because Henderson told Harris that he would not be taken alive and that there would be a shootout if the police came to his house. Corporal Ward testified that Henderson was taken into custody due to safety considerations. Shortly after his arrest, Henderson waived his Miranda rights and gave the statement that was the subject of the suppression motion, wherein he admitted doing all of the shooting. His statement to the deputy sheriffs contradicted his testimony at trial because he placed the blame for the fatal shots on Gary Harris.

The central issue presented by this point is what effect, if any, the presence of Detective Bush, who was also a MetRock deputy and U.S. Marshal, had on the legality of a warrantless arrest by deputies of the Pulaski County Sheriff in Lonoke County. The State, citing Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979), argues that the arrest was legal because Detective Bush, who was deputized across the state, participated in Henderson’s arrest.

In Logan, a Crittenden County deputy sheriff sought to arrest Logan on charges of aggravated robbery while he was in St. Francis County. In order to effect the arrest, deputy sheriffs from Crittenden County requested the assistance of a St. Francis County deputy sheriff. After the arrest, Logan confessed to the crime and consented to a police search of his apartment. At the suppression hearing and on appeal, Logan sought to exclude his confession and the items seized as the fruit of an illegal arrest. This court dismissed the argument in summary fashion: “We need not discuss these contentions, because it is a fair inference from Davis’s testimony that Sam Hughes, the St. Francis County deputy, participated in the arrest.” Logan v. State, 264 Ark. at 922, 576 S.W.2d at 205.

In the instant case, the State argues that, as in Logan, Detective Bush participated in the arrest, thus avoiding any illegality. The State also cites this court to the standard of review, which carries a presumption in favor of the trial court’s determination that the arrest was legal, with the burden of proving error resting on the appellant. See Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997); Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989). Henderson, however, directs this court’s attention to Perry v. State, 303 Ark. 100, 102, 794 S.W.2d 141, 142-43 (1990), where we stated the blackletter law:

A local peace officer acting without a warrant outside the territorial limits of the jurisdiction under which he holds office is without official power to apprehend an offender, unless he is authorized to do so by state statute. (Citing authority.)

Id. After citing Davis v. Mississippi, 394 U.S. 721 (1969), this court went on to conclude that evidence obtained as a direct result of an illegal detention was subject to the exclusionary rule.

In Perry, this court also listed the four instances where the General Assembly had delegated the authority for law enforcement officers to make an arrest outside of their jurisdictions: (1) “fresh pursuit” cases under Ark. Code Ann. § 16-81-301 (1987); (2) when the police officer has a warrant for arrest, as provided by Ark. Code Ann. § 16-81-105 (1987); (3) when a local law enforcement agency requests an outside officer to come into the local jurisdiction and the outside officer is from an agency that has a written policy regulating its officers when they act outside their jurisdiction, as stated in Ark. Code Ann. § 16-81-106(3)-(4) (Supp. 1995); and (4) when a county sheriff requests that a peace officer from a contiguous county come into that sheriff’s county and investigate and make arrests for violations of drug laws pursuant to Ark. Code Ann. § 5-64-705 (Repl. 1993). Perry v. State, 303 Ark. at 103, 794 S.W.2d at 143. None of those situations applies to the instant case.

At the time of Henderson’s arrest, three things are certain: (1) no federal offense was involved; (2) Detective Bush was not involved in a MetRock operation; and (3) Detective Bush was not given explicit permission by Special F.B.I. Agent Peatross to effect an arrest. While we can infer that he “participated” in the arrest under the reasoning of Logan v. State, supra, absent a federal crime or specific authority from his F.B.I. supervisor to make the arrest, Detective Bush had no authority to arrest Henderson for a state crime in Lonoke County. Hence, the arresting officers only had the authority to arrest that is granted a private citizen. Perry v. State, supra.

Though we hold that Henderson’s arrest was illegal, we still must examine whether that ultimately decides the matter. Before Henderson gave his incriminating statement to the deputy sheriffs in Pulaski County one hour after his arrest in Lonoke County, he was given his Miranda warnings. Thus, the question arises whether the Miranda warnings salvage a statement made by an accused irrespective of the illegality of the arrest. Though neither Henderson nor the State addresses the case of New York v. Harris, 495 U.S. 14 (1990), we feel constrained to do so.

In New York v. Harris, supra, police officers entered Harris’s home without an arrest warrant, transported him to the police station, read him his Miranda rights, and took an incriminating statement. The New York Court of Appeals suppressed the statement as the fruit of a Fourth Amendment violation, and the Supreme Court reversed regardless of the fact that the arrest was made in Harris’s home without a warrant in violation of Payton v. New York, 445 U.S. 573 (1980). The Court stated:

We hold that, where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.

Neiu York v. Harris, 495 U.S. at 21.

The case before us is not a Harris situation where the sanctity of the home was at issue. While probable cause clearly existed for Henderson’s arrest before his statement was given, comparable to the circumstances in Harris, the arresting officers had no authority to make an arrest in a different jurisdiction — Lonoke County. To hold otherwise would countenance a procedure where an arresting officer could, with impunity, effect an arrest outside of his county, bring the accused back to his jurisdiction, and take an incriminating statement so long as the arresting officer advised the accused of his Miranda rights before obtaining the statement. We do not believe that Harris goes that far, and we decline to sanction police arrests beyond their territorial borders. The policy considerations behind our decision are significant. As we said in Perry v. State, supra:

The traditional concept of territorial jurisdiction for peace officers is a sound one since a local community is best served by the requirement that local officers familiar with local neighborhoods make arrests in the community. People v. Hamilton, 666 P.2d 152 (Colo. 1983). If such a concept were not followed a Pocahontas policeman could make an arrest in Paragould, a Texas Ranger could make an arrest in Fordyce, and a K.G.B. agent could make an arrest in Fort Smith. Such a “practice would lead to more violence than it would suppress.” McCaslin v. McCord, 116 Tenn. 690, 94 S.W. 79 (1906).

Perry v. State, 303 Ark. at 103, 794 S.W.2d at 143.

We hold that the statement of Michael Henderson given to deputy sheriffs in Pulaski County shortly after an illegal arrest in Lonoke County must be excluded. It was, therefore, error to receive it into evidence. Nor can we subscribe to the State’s alternative argument that sufficient evidence remained at trial irrespective of Henderson’s statement to the deputy sheriffs to support a guilty verdict and the sentence. Without Henderson’s statement that he alone fired the fatal shots, the jury would be left with a “swearing match” between Gary Harris and Henderson as to who was the trigger man. Though under his own scenario, Henderson was an accomplice to the killing, we cannot say that his status as the actual killer did not influence the jury’s verdict of capital murder as opposed to first-degree murder or second-degree murder as well as his sentence of life without parole. We reverse and remand this matter for further proceedings.

There is one final matter that may reoccur on retrial. The prosecutor attempted to have Gary Harris testify about what Larry Harris told him about the plan to rob the Littles. Defense counsel objected on hearsay grounds and because the co-conspirator exception did not apply since Larry Harris had not been charged. We agree with the State that statements by a co-conspirator are not hearsay, if made during the course of and in furtherance of a conspiracy. See Ark. R. Evid. 801(d) (2) (v). Moreover, we agree that Rule 801 (d) (2) (v) applies when a conspiracy is proved at trial by evidence independent of the statement regardless of whether the declarant is charged as a conspirator. Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 510 U.S. 1197 (1994); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).

Reversed and remanded.

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

W.H. “Dub” Arnold, Chief Justice,

dissenting. I respectfully disagree with the majority opinion that the arrest of appellant was illegal and that the statement made after being apprised of his Miranda rights should have been suppressed. First, it is my opinion that the arrest was a lawful arrest. Secondly, even if the arrest was illegal, the statement made by Henderson should not have been suppressed.

Detective Ernie Bush testified that he is a detective with the Pulaski County Sheriffs Department, a deputized U.S. Marshall, and a Deputized Special Agent with the F.B.I. Detective Bush is assigned to MetRock, the Metropolitan Little Rock Violent Crimes Task Force. He further testified that often his duties take him out of Pulaski County, so he was deputized with authority to act throughout the state.

In this case, Special Agent Peatross of the F.B.I., Detective Bush’s supervisor, authorized him to use a body recording device on Gary Harris in Lonoke County. Detective Bush was present with other Pulaski County officers in Lonoke County when the device was used and appellant was arrested. At the time of the arrest, Deputy Bush was a duly sworn law enforcement officer with the authority to arrest appellant in any county in Arkansas. He was authorized by his supervisor to participate in the investigation, and his presence along with the Pulaski County officers made the arrest legal following Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979).

According to Logan, the mere presence of an officer with a commission entitling him to make an arrest legitimizes an arrest even if that officer is not the person who actually makes the arrest. The presence and acquiescence of a duly authorized officer is the key to determining whether an arrest is authorized. In this case, Detective Bush was duly commissioned to make arrests in any county in Arkansas. As the majority noted, his presence and participation in Henderson’s arrest certainly give an inference that he participated in the arrest. This inference validates the arrest and makes it a permissible arrest pursuant to Logan.

Secondly, even if the arrest was unlawful, the statement given by Henderson should not be suppressed. Before Henderson gave any statement, he was advised of his Miranda rights at least an hour after his arrest. Henderson then gave the incriminating statement that he fired the gun that killed Billy Little.

In New York v. Harris, 495 U.S. 14, 18 (1990), discussed supra by the majority, the United States Supreme Court based its ruling upon the fact that the police had probable cause to arrest Harris, so he was not unlawfully in custody when he was taken to the police station, given his Miranda warnings, and interrogated. The Court noted that the existence of probable cause was the defining factor in whether evidence should be suppressed as fruits of an illegal search.

In Harris, the Court noted:

‘We have declined to adopt a ‘per se’ or ‘but for’ rule that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.’

citing United States v. Ceccolini, 435 U.S. 268, 276 (1978). Additionally, the Court concluded that Payton v. New York, 445 U.S. 573 (1980) “was designed to protect the physical integrity of the home . . . not to grant criminal suspects . . . protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime.” Harris, 435 U.S. at 17. Once officers have probable cause to arrest, a suspect is not unlawfully detained when taken into custody, regardless of whether the actual arrest was legal. Id. at 18.

In Harris, the Court examined the cases of Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); and Taylor v. Alabama, 457 U.S. 687 (1982) and determined that these cases stand for the proposition that “indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” Harris, 435 U.S. at 19. Such a close relationship occurs when the police wrongly have control of a defendant’s person in the absence of probable cause. In an instance where probable cause exists prior to arrest, the police have justification to question a suspect prior to arrest, so “subsequent statement^] [are] not an exploitation of an illegal entry” into a home or an exploitation of an illegal arrest. Id. at 19.

It is undisputed that Henderson was given his Miranda warnings and waived those rights. In the case before us, the police did have probable cause to detain Henderson. There is no evidence that the detention violated his Fourth Amendment rights. The majority bases the suppression of Henderson’s statement on the fact that the police should not be sanctioned in effectuating arrests beyond their territorial borders. Despite the fact that I disagree with the majority’s conclusion that the arrest was illegal, this should not affect the legitimacy of a statement made once Henderson was in custody. The statement made while Henderson was in custody was not the outcome of an exploitation of his rights guaranteed by the Fourth Amendment.

For the foregoing reasons, I respectfully dissent from the majority opinion and contend that the judgment of the trial court should be affirmed.

Glaze, J., joins.

Thornton, J., joins to the extent that the opinion expresses that Henderson’s arrest was lawful.

       The jury verdict at sentencing was life without parole for capital murder and six years for attempted capital murder. The judgment and commitment contains only the conviction for capital murder and a sentence of life imprisonment without parole.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Rogelio REYES and Basilio Reyes v. STATE of Arkansas
    CR 96-1385
    954 S.W.2d 199
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Thomas Travis, for appellants.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellants Rogelio Reyes and Basilio Reyes appeal from judgments for possession of cocaine with intent to deliver, possession of drug paraphernalia, and possession of marijuana. Rogelio Reyes, as a habitual offender, was sentenced to life in prison, 30 years in prison, and one year in prison, respectively, for each of the convictions plus fines totaling $11,000. Basilio Reyes was sentenced to prison time of 40 years, 10 years, and one year, respectively, for each of his convictions plus fines of $11,000. The trial court ordered all sentences for prison time to run concurrently.

The Reyeses now appeal and assert two grounds: (1) the search of a vehicle at police headquarters was an illegal search and it was error not to suppress the items seized; and (2) it was error for the court not to order the prosecutor to divulge the identity of the confidential informant. We affirm the trial court on both points.

The State’s case relied almost exclusively on the testimony of Fort Smith Police Detective Dennis Alexander. Detective Alexander testified that during the early morning hours of April 8, 1995, a warrant was obtained to search Room 28 of the Capri Motel located in Fort Smith. He explained that prior to getting the warrant, a confidential informant engaged in a controlled buy in that room and exchanged marked money for a bag of crack cocaine. Detective Alexander testified that once the warrant was received, he and Fort Smith Police Detective Wayne Barnett entered Room 28 with the search warrant and found the Reyeses alone in the room.

Detective Alexander testified to several items of contraband found in the motel room, including a bag containing 10 rocks of crack cocaine found in a white sock in the bed’s headboard; a bag of powder cocaine found in the same white sock in the bed’s headboard; a bag containing marijuana and rolling papers found in a brown sock in the bed’s headboard; digital scales and a vinyl case located on the dresser; $590.00 in cash taken from Basilio Reyes’s wallet; and $123.00 from the wallet of Rogelio Reyes, which included five marked bills given to the confidential informant. Detective Alexander estimated conservatively that the street value of the seized crack cocaine was about $5,000 and the value of the powder cocaine was about $3,600.

Detective Alexander also testified that he found car keys on the table that were linked to a tan 1987 Ford sedan parked on the motel parking lot near the door of the room. He stated that the confidential informant told him the vehicle belonged to the Reyeses. He testified that upon searching the vehicle, the police officers discovered a box of baking soda in the trunk, while a narcotics dog led them to a large test tube found between the battery and firewall under the car’s right front fender. The test tube contained a colored residue later identified as having a cocaine base. The drug paraphernalia and test tube were not tested for fingerprints.

On cross-examination, Detective Alexander admitted that the room was rented by a person named Carl Jones, who was not arrested in connection with the drug offenses. When asked his reason for seizing and searching the Ford sedan, he explained that it was not uncommon to find additional drugs and paraphernalia in automobiles identified under these circumstances because drug dealers rarely keep their entire supply together in case of an encounter with police. Detective Alexander added that the Capri Motel was one of Fort Smith’s cheaper motels; that it was located in a high-crime area of town; and that he had executed many search warrants at that motel in the past.

At the close of the State’s case, the Reyeses proffered into the record a subpoena for Carl Jones and Carl Jones’s rap sheet, which contained numerous offenses. Basilio Reyes then testified in his own defense through the use of an interpreter. He explained that he and his brother had stopped at a bar in Fort Smith, when a tall man asked them if they wanted to “be with” a woman. They agreed and followed the man to the Capri Motel, where he had a room. The man said that he would go get the woman and some pizza, and Rogelio Reyes gave him $100 for the pizza. The man later returned with pizza and beer but no woman. The man explained he was still trying to get the woman or women. Shortly after he left, according to the testimony, the Fort Smith police officers barged into the room and arrested them.

I. Sufficiency of the Evidence

We first consider the Reyeses’ argument regarding insufficiency of the evidence because the double-jeopardy clause precludes a second trial when a judgment of conviction is reversed for insufficient evidence. King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996); Jones v. State, 323 Ark. 655, 916 S.W.2d 736 (1996). The Reyeses argue that the prosecution failed to link them to the contraband found in the motel room. Insufficiency of the evidence is raised at trial by a motion for directed verdict. Counsel for the Reyeses, however, made only a general motion for directed verdict at the close of the State’s case and then failed to renew the motion at the close of all the evidence. These lapses make it clear that this point is procedurally barred. See Ark. R. Crim. P. 33.1; Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996).

II. Suppression of Vehicular Search

Prior to trial, the Reyeses moved to suppress the items seized from the Ford sedan because the search occurred without a warrant. At the suppression hearing, Detective Alexander testified that he employed a first-time confidential informant who told him that the Reyeses were in Fort Smith to distribute cocaine. He testified that when he executed the warrant, he saw the car that had also been described by the confidential informant sitting in the Capri Motel parking lot. After the arrests, the car was removed by police officers from the motel parking lot because it was located in a high-crime area and taken to the Fort Smith Police Department for the search.

On cross-examination, Detective Alexander stated that he was able to connect Rogelio Reyes to the automobile by calling in the license-plate number over the police radio and doing an NCIC search. He admitted that both Reyeses were in custody and incapable of gaining access to their car when it was searched.

a. Standing.

The Reyeses’ first task is to prove that they have standing to challenge the legality of the search. This court will not reach a Fourth Amendment argument where a defendant has failed to show that he has an expectation of privacy in the object of the search. See McCoy v. State, 325 Ark. 155, 925 S.W.2d 391 (1996); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Only Rogelio Reyes was tied to the Ford sedan by Detective Alexander’s NCIC search. Basilio Reyes, however, proved no connection with the vehicle, and, therefore, his expectation of privacy is deficient. See, eg., Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997) (passenger lacked standing to challenge search of pickup truck); McCoy v. State, supra (driver without possessory interest in vehicle lacked standing to challenge its search). We conclude that Basilio Reyes has no standing to challenge the search of the car. The remaining discussion under this point will only apply to Rogelio Reyes.

b. Rule 14.1

In reviewing the denial of a motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses only if the decision is clearly contrary to the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), supp. op. denying reh’g, 327 Ark. 576-A, 940 S.W.2d 440 (1997); Mullinax v. State, 321 Ark. 41, 938 S.W.2d 801 (1997). This court views the evidence in the light most favorable to the State. Id.

When police officers conduct a search without a warrant, we begin our review with the basic premise that a warrantless search is unauthorized. Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996); Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). However, exceptions to the warrantless search rule have been recognized, including the exigency exception under Rule 14.1 of the Arkansas Rules of Criminal Procedure. Rule 14.1(a) provides in part:

An officer who has reasonable cause to believe that a moving or readily moveable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public [.]

Ark. R. Crim. P. 14.1(a).

Reasonable cause, as required by Rule 14.1, exists when officers have trustworthy information which rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Bohanan v. State, supra; Willett v. State, 298 Ark. 588, 769 S.W.2d 744 (1989). On these facts, reasonable cause is supported by the following: (1) the Ford sedan was found parked near the motel room to be searched; (2) a large amount of contraband was found in the motel room as were the Reyeses and the car keys; (3) Rogelio Reyes was linked to the car by the confidential informant and by the NCIC search and had marked bills from the controlled buy on his person; and (4) Detective Alexander asserted that in his experience it was common to find items of contraband in the car of a dealer when the dealer is captured in possession of controlled substances at another location. Based on these facts, it was entirely reasonable for police officers to believe that contraband would also be found in Rogelio Reyes’s car.

Moreover, we have no doubt that the car was parked in an “area open to the public,” as Rule 14.1 requires, since it was on the motel parking lot. Compare Haygood v. State, 34 Ark. App. 161, 807 S.W.2d 470 (1991) (holding that the parking lot of an apartment complex was an area open to the public even though the apartment complex was privately owned).

The remaining question is whether the Ford sedan was “moving or readily movable,” so as to qualify for the Rule 14.1 exception. This court has observed, as has the United States Supreme Court, that an automobile does not enjoy the same constitutional protection a home does because of an automobile’s mobility and because one does not have the same expectation of privacy in an automobile. Vinston v. State, 274 Ark. 452, 625 S.W.2d 533 (1981), cert. denied, 459 U.S. 833 (1982), citing Chambers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925). In this same vein, we held in Bohanan v. State, supra, that a vehicle located on a street was readily movable despite the fact that the car had a flat tire, the rationale being that the tire could have been changed in a matter of minutes. See Bohanan v. State, supra.

In the instant case, it is uncontroverted that the Reyeses were in custody at the time the vehicle was removed to the police department. The State argues, however, that the threat the car would be removed by a third party still existed. We agree. We reached the same conclusion in Vinston v. State, supra, when we said:

The seizure of a vehicle is justified when confederates or others might remove a vehicle. U.S. v. 1972 Chevrolet Nova, 560 F.2d 464 (1st Cir. 1977); See W. Ringel, Searches and Seizures, Arrests and Confessions, § 11.3 (1980).

274 Ark. at 456, 625 S.W.2d at 536.

We are further aware of the fact that the United States Supreme Court recently reversed the Pennsylvania Supreme Court in two cases on this very issue. See Pennsylvania v. Labron, 116 S. Ct. 2485 (1996)(per curiam), rev’g Com. v. Kilgore, 677 A.2d 311 (Pa. 1995); Com. v. Labron, 669 A.2d 917 (Pa. 1995). In Labron, the respondent was arrested after police officers saw him sell narcotics taken from the trunk of a car parked on a public street. The Pennsylvania Supreme Court determined that the subsequent search of the trunk was unlawful because the vehicle was stationary and was not supported by exigent circumstances. In Kilgore, a confidential informant gave respondent’s accomplice money for drugs in a parking lot. The accomplice drove to a farmhouse and obtained the drugs from Kilgore. Once the delivery occurred, the police arrested Kilgore and searched his truck, which was parked in the driveway of the farmhouse, and found cocaine. The Pennsylvania Supreme Court again determined that no exigent circumstances existed.

The Supreme Court, however, reversed and explained:

If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more. As the state courts found, there was probable cause in both of these cases: Police had seen respondent Labron put drugs in the trunk of the car they searched, and had seen respondent Kilgore act in ways that suggested he had drugs in his truck. We conclude the searches of the automobiles in these cases did not violate the Fourth Amendment.

Pennsylvania v. Labron, 116 S. Ct. at 2487 (internal citation omitted). In both of these cases, the cars were parked and the vehicles were searched after those accused were placed under arrest. Thus, the ability of the defendant to move the car was not the pivotal factor. Indeed, in Kilgore the suggestion that drugs were in the truck was enough to satisfy probable cause.

The weight of authority appears to support the conclusion that an exigent circumstance exists when a car is readily movable by any person and not just the defendant. See United States v. Brazel, 102 F.3d 1120 (11th Cir. 1997); United States v. Sinisterra, 11 F.3d 101 (5th Cir. 1996); United States v. Reed, 26 F.3d 523 (5th Cir. 1994), cert denied, 115 S. Ct. 1116 (1995); People v. Lee, 914 P.2d 441 (Colo. App. 1995); Jones v. State, 681 A.2d 1190 (Md. App. 1996); Reyes v. State, 910 S.W.2d 585 (Tex. App. 1995). But see State v. Harnisch, 931 P.2d 1359 (Nev. 1997). Two state appellate courts looked, in addition, to factors such as location of the car in a high-crime area, potential for theft, and potential movement by family or friends as important considerations in determining exigency. See People v. Lee, supra; Reyes v. State, supra.

Likewise, in the case at hand the Reyes brothers could not have moved the car because they were in custody. But that is not to say that a third party, either a confederate or thief, could not have done so. The car sat in the parking lot of a motel in a high-crime area during the early morning hours. The fact of the Reyeses’ arrest would certainly have been known to people at the motel. Under such circumstances, for the police to have left the vehicle unattended would have been foolhardy. Moreover, a search warrant for the motel room had been obtained and executed. For one officer to have watched the car while another officer obtained a second search warrant directed at the car, given these facts, appears unnecessary and impractical. See Chambers v. Maroney, supra. We decline to hold that the trial court erred in refusing to suppress the test tube and baking soda taken from the car.

III. Identity of the Confidential Informant

Prior to trial, the Reyeses moved the trial court to require disclosure of the name and address of the confidential informant used for the controlled buy because this knowledge was essential to the preparation of an adequate defense. The trial court took the motion under advisement and asked for briefs. No ruling was made.

At trial, defense counsel in opening statement referred to the “frame job” by the confidential informant who had rented the room. He then renewed his motion during his cross-examination of Detective Alexander. When counsel began asking Detective Alexander about Carl Jones’s involvement in the crime, the prosecution objected to any questions pertaining to whether he was the confidential informant. The record reflects the following colloquy in a sidebar conference:

PROSECUTOR: I think the Officer is going to state in response to that question that the investigation determined it was not Carl Jones’ cocaine, and that he had denied that he had placed the cocaine in there. We have no objections to that question being asked and being answered like that, but I do not want to get into a rule 509 issue about his actual identity, the informant, so with the Court’s permission, with the defense being present, I’d like to go over and tell the officer to answer that question with a truthful answer, that they did interview him and that he denied that he’d placed the cocaine.
DEFENSE COUNSEL: I have no doubt he denied it.
THE COURT: I’m going to let you ask him, but I want you to stay away from this confidential aspect, but you can ask him.
DEFENSE COUNSEL: Then, I would like to renew my motion for disclosure of confidential informant. This has very great bearing on the defense of my clients. I’d like to renew my motion.
PROSECUTOR: I’m going to let him ask questions, and there’ll be honest answers, but I’m not going to let him get in to reveal who the informant is.
THE COURT: O.K., go ahead.

The motion to disclose was never made again.

The first question presented is whether this point is barred from appellate review. It is blackletter law that the appealing party must obtain a ruling in order to preserve an argument for appeal and that the failure to do so constitutes a waiver of the issue. See, e.g., Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997); Burton v. State, 327 Ark. 65, 937 S.W.2d 634 (1997). We conclude that while the trial court’s ruling could have been more precise, the issue before the trial court was obvious, and the trial court decided it adversely to the Reyeses.

Turning to the merits, we discussed the confidential informant privilege in Hill v. State, 314 Ark. 275, 280, 862 S.W.2d 836, 839 (1993):

[Disclosure shall not be required of an informant’s identity where his identity is a prosecution secret, and a failure to disclose will not infringe upon the constitutional rights of the defendant. Rovario v. United States, 353 U.S. 53 (1957). “When the disclosure of the informant’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” Id. at 61-62. In determining whether the privilege shall prevail, the trial court must balance the public interest in getting needed information against the individual’s right to assert a defense. The trial court must consider the crime charged, the possible defenses, the significance of the informant’s testimony, and any “other relevant factors.” Id. at 61. The burden is upon the defendant to show that the informant’s testimony is essential to his defense. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973).

Id. See also Ark. R. Crim. P. 17.5(b); Ark. R. Evid. 509.

This court has held repeatedly that trial courts do not abuse their discretion in denying requests to reveal the identity of a confidential informant when the defendant is merely charged with possession of a controlled substance, and when the informant’s involvement supplied only a lead to the officers and provided information leading to the issuance of a search warrant. See, e.g., Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986); Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985), cert. denied, 474 U.S. 945 (1985); Jackson v. State, 283 Ark. 301, 675 S.W.2d 820 (1984); Robillard v. State, 263 Ark. 666, 566 S.W.2d 735 (1978); Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977).

In the case before us, the Reyeses were not charged with delivery of a controlled substance which would have directly involved the confidential informant who bought the cocaine with marked bills, but only with possession with intent to deliver. Hence, the confidential informant did not directly participate in the crime though his involvement led to the search warrant. Still, the Reyeses maintain that knowing the identity of the confidential informant was essential to their defense that Carl Jones, who had reserved Room 28, had framed them.

The facts in Hill v. State, supra, are instructive. There, Hill was charged with manufacturing or possessing with intent to manufacture a controlled substance. Hill’s defense was that he was entrapped by an individual named Ronnie Prescott, who purportedly offered him $10,000 to manufacture an illegal chemical and who, he suspected, was the confidential informant. Evidence elicited at trial from law enforcement officers proved that Prescott was working generally for them as an informant though that work was never tied specifically to the Hill case. The trial court declined to order the prosecution to reveal the name of the confidential informant, and this court concluded as follows:

In sum, the trial court’s rulings regarding disclosure of whomever might have been the informant were correct. However, the ruling was in error when appellant’s counsel limited the request to disclosure of whether Ronnie Prescott was the informant and it had already been shown that disclosure might be a substantial factor in his defense.

Hill v. State, 314 Ark. at 281, 862 S.W.2d at 839.

The case at hand is distinguishable from Hill v. State, supra, in that the proper motion was never made by the defense. Here, there was evidence before the jury that Carl Jones reserved Room 28 in his name and the testimony by Basilio Reyes indicating that the “tall man” had orchestrated the brothers’ arrest. Indeed, defense counsel argued to the jury that Carl Jones was the true culprit in all of this. We have some doubts that additional evidence establishing Carl Jones as the confidential informant was a substantial factor in the Reyeses’ defense when possession of contraband with intent to deliver was the charge. But, more importantly, the Reyeses failed to move for disclosure that Carl Jones was the confidential informant. This they were required to do under Hill v. State, supra. Because the proper motion was never made, we find no error by the trial court on this point.

With regard to Rogelio Reyes, the record has been reviewed pursuant to S. Ct. Rule 4-3 (h) for other reversal error, and none has been found.

Affirmed.

Glaze, J., joins in the opinion but concurs on point III.

       At one point, Basilio Reyes referred to “his car” through an interpreter on cross-examination, but the NCIC search belies this assertion.


author: Annabelle Clinton Imber, Justice.

text:
    Dexter ROSEBY v. STATE of Arkansas
    CR 97-122
    953 S.W.2d 32
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Willard Proctor, Jr., for appellant.

      Winston Bryant, Att’y Gen., by; Kelly K. Hill, Deputy Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Dexter Roseby, was sentenced to life imprisonment without parole for the capital murder of Lee Andrew Byrd, Jr. Roseby raises four arguments on appeal. Finding no reversible error, we affirm.

On January 8, 1996, Officer Timothy Hobbs discovered the body of Lee Andrew Byrd, Jr., in the snow-covered woods behind the Pilgrim Rest Baptist Church in Woodson. Byrd had been shot once in the back of his left thigh, and bled to death. A jury found Dexter Roseby guilty of the capital murder of Byrd under Ark. Code Ann. § 5-10-101 (a)(4) (Supp. 1995), which states that a person commits capital murder if he or she kills another person with a “premeditated and deliberate purpose.” Because the State did not seek the death penalty, the court imposed the sentence of life imprisonment without parole. From his judgment and commitment order, Roseby filed a timely notice of appeal,

I. Sufficiency of the Evidence

Roseby challenges the sufficiency of the evidence to support his conviction of capital murder. When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); cert. denied, 117 S. Ct. 436 (1996); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S.Ct. 246 (1996). On appeal, Roseby claims that his conviction must be reversed because the State failed to present sufficient evidence that he killed Lee Andrew Byrd with a “premeditated and deliberate purpose” as required by Ark. Code Ann. § 5-10-101(a)(4) (Supp. 1995).

We have held on numerous occasions that Ark. R. Crim. P. 33.1 requires a criminal defendant to make a specific motion for a directed verdict that apprises the trial court of which element of the crime the State has failed to prove. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). Specifically, in Webb we refused to consider the appellant’s argument that the State failed to prove that he killed the victims in a premeditated and deliberate manner because the appellant faded to raise this issue in his motion for directed verdict. Webb, supra.

At the conclusion of the State’s case, Roseby made a motion for a directed verdict stating that the State had failed to present direct evidence linking Roseby to the crime. Roseby did not mention in his motion that the State failed to prove the “premeditated and deliberate” element of capital murder. Hence, we conclude that Roseby has not preserved this issue for appeal.

II. Motion for a Continuance

For his second argument, Roseby contends that the trial court erred when it denied his request for a continuance so that he could obtain another attorney. It is well settled that the right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995); Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Hence, it is within the trial court’s discretion to grant a continuance so that a criminal defendant may obtain a new attorney, and this decision will not be reversed absent an abuse of discretion. Edwards, supra; Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). In Edwards, we further explained that in making this determination, the trial court may consider the following factors: 1) the reasons for the change, 2) whether other counsel has already been identified, 3) whether the defendant has acted diligently in seeking the change, and 4) whether the denial is likely to result in any prejudice to defendant. Edwards, supra.

In this case, Roseby’s attorney announced on the morning the trial was to begin that his client wanted him to withdraw from the case so that he could obtain another attorney. Roseby then explained to the judge that he wanted a continuance because he and his attorney were not prepared for trial. Roseby further alleged that his attorney rushed him into a decision regarding his trial, and that he did not adequately discuss the case with him. Roseby, however, did not disclose whether he had already obtained substitute counsel.

The trial court found that Roseby’s attorney was competent and had diligently filed several pretrial motions on Roseby’s behalf. Moreover, the judge was greatly influenced by the fact that Roseby’s attorney had been working for him for approximately eight or nine months, yet Roseby waited until the day of the trial to ask for new attorney. Based on these facts, we cannot say that the trial court abused its discretion when it denied Roseby’s motion. Accordingly, we also affirm on this point.

III. Use of Peremptory Challenges

Next, Roseby argues that the State used its peremptory challenges at trial to exclude African-Americans from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment as construed in Batson v. Kentucky, 476 U.S. 79 (1986). In making this determination, we apply the following three-step analysis. First, the defendant must make a prima facie case that racial discrimination is the basis for excluding the juror. Second, if the court concludes that the defendant has made this showing, the State must provide a racially neutral explanation for striking the juror. The trial court must then determine from all the relevant circumstances the sufficiency of the offered explanation. Finally, if the court is not satisfied with the State’s explanation, it must conduct a sensitive inquiry, and the defendant must explain how the State’s racially neutral explanation is merely a pretext. See, Sonny v. Balch Motor Co., 328 Ark. 321, 944 S.W.2d 87 (1997); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997).

As the United States Supreme Court recently noted in Purkett v. Elem., 514 U.S. 765 (1995), “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Moreover, we accord great deference to the trial court’s determination of whether the peremptory strike was exercised in a discriminatory manner, and we reverse that decision only if it is clearly against the preponderance of the evidence. Sonny, supra.

According to the above analysis, we must first determine whether Roseby established a prima facie case of discrimination. After asking a juror a couple of questions, the State asked the judge to excuse the juror, and the following colloquy occurred:

ROSEBY: I understand the State has struck an African-American Juror who from — after asking basically one question. There’s a question in my mind as to what they could’ve [sic] gleaned from — his demeanor was similar to that of the other witnesses. There was nothing about what he said, so we would ask that he be reseated under Batson v. Kentucky because there doesn’t seem to be any sort of legitimate reason for striking him, other than his race.
STATE: Your honor, he failed to make eye contact. He was unresponsive to my questions. I’ve sat other African-Americans on the panel and did not strike those individuals. There’s still African-American potential jurors out in the gallery.
COURT: 'Well, I think out of the eleven different remaining, there’s three black folks on the jury. So I just don’t think there’s any systematic exclusion. I don’t think that the State should have to respond to that at this point. If I see that there is something systematic, I’ll require it then.

On appeal, the State argues that the preHminary inquiry of whether Roseby made a prima facie case is not moot because the State proceeded to offer a racially neutral explanation instead of addressing whether a prima facie case had been established. We have previously held that the prima facie determination is moot on appeal when the trial court skipped this step and ruled upon the second issue of whether the State had provided a racially neutral explanation. Wooten, supra; Cleveland v. State, 326 Ark. 46, 930 S.W.2d 316 (1996); Prowell v. State, 324 Ark. 335, 921 S.W.2d 585 (1996). However, it is the court’s failure to render a ruling on the prima facie determination, and not the State’s decision to offer a racially neutral explanation instead of attacking the establishment of a prima facie case, that renders the issue moot. See Wooten, supra; Cleveland, supra; Prowell, supra.

In this case, the State offered a racially neutral explanation instead of attacking the defendant’s prima facie case. However, unlike Wooten, Cleveland, and Prowell, we find that the trial court ruled on the prima facie issue when it declared that there was no evidence of systematic discrimination. Hence, the issue is not moot, and we must determine if the trial court’s ruling in this regard is clearly against the preponderance of the evidence.

A prima facie case of the discriminatory use of peremptory challenges may be established by: 1) showing that the totality of the relevant facts gave rise to an inference of discriminatory-purpose, 2) demonstrating total or seriously disproportional exclusion of African-Americans from the jury, or 3) showing a pattern of strikes, questions, or statements by a prosecutor during voir dire. Braw, supra; Wooten, supra; Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996).

In this case, three of the eleven seated jurors were African-American, and there were several other African-Americans remaining in the gallery. Although this is not the end to our inquiry, we have previously held that this is a very persuasive challenge to the establishment of a prima facie case. Bragg, supra; Cleveland, supra. Additionally, Roseby did not present any evidence that the prosecutor made racial statements or asked racial questions. Finally, Roseby did not present any other evidence or factors that might have allowed the court to infer that the State was using its peremptory challenges in a discriminatory manner. Based on these facts, we cannot say that the trial court’s ruling that Roseby failed to establish a prima facie case was clearly against a preponderance of the evidence. Accordingly, we affirm on this point.

IV. Hearsay

Finally, Roseby argues that the trial court violated Ark. R. Evid. 613 when it allowed the State to impeach Lynette Daniels with questions about a prior unsworn statement. During the trial, the State called Lynette Daniels to the stand and asked her a series of questions regarding her contact with the defendant in early January. Daniels explained that she saw Roseby at a liquor store early that afternoon, and that he drove her to her grandmother’s home which was next door to the victim’s house. Daniels then denied seeing Roseby approach the victim’s home, and denied that he made any statements to her about the victim. At this point, Daniels admitted that several people had threatened to kill her if she testified in court. The State then asked Daniels if she recalled giving an unsworn statement to Detective Ward on January 11, 1996, and Daniels. answered in the affirmative. When the State attempted to ask Daniels about statements she made to Detective Ward, Roseby promptly objected claiming that the State could not impeach her because she had not yet made an inconsistent statement.

The State then asked Daniels to review her unsworn statement to refresh her memory. Daniels replied, “I don’t remember telling him this because I was under the influence of drugs. I can’t remember.” Daniels then reviewed the statement and again declared, “I just don’t remember telling him all this; I don’t.” The State then asked Daniels the following series of questions over Roseby’s objections:

STATE: Did you tell Detective Ward that Dexter told you he —
DANIELS: I don’t remember.
STATE: — was looking for Junior?
DANIELS: I don’t remember. I don’t remember.
STATE: Did you tell Detective Ward that they went to Junior’s house looking for him?
DANIELS: I don’t remember telling him that either.
STATE: Did you tell Detective Ward that they said they were going to kill him?
DANIELS: No, I don’t remember telling him that.

On appeal, Roseby claims that the above testimony was allowed into evidence in violation of Ark. R. Evid. 613(b) which states that:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

We find that this argument fails for several reasons.

First, Roseby argues that the State should not have been allowed to impeach Daniels with her unsworn statement to Detective Ward because she declared that she could not remember instead of directly contradicting her prior statements. We have previously explained that an “inconsistent statement” as used in Rule 613, is not limited to those instances in which diametrically opposite assertions have been made. Truck Ctr. v. Autrey, 310 Ark. 260, 836 S.W.2d 359 (1992); Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 697 S.W.2d 114 (1985). Rather, we have adopted Judge Weinstein’s view that a witness’s prior statement is admissible whenever a reasonable person could infer on comparing the whole effect of the two statements that they have been produced by inconsistent beliefs. Truck, supra; Flynn, supra.

Of particular applicability to this case is our holding in Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). As in this case, in Chisum a hostile witness, who was the defendant’s sister, claimed that she had forgotten what she had told the police in a prior unsworn statement. Id. The State then allowed the witness to review her prior statement in an effort to refresh her recollection. Id. After reviewing the statement, the witness again claimed that she did not recall any of her prior statements implicating the defendant. Id. We found her statements that she “forgot” were sufficiently inconsistent to allow the introduction of her prior sworn statement. We have reached this same conclusion in numerous cases where a witness claimed to have forgotten a prior statement that is unfavorable to the defendant. Hughey v. State, 310 Ark. 721, 840 S.W.2d 183 (1992); Flynn, supra; Humpolak v. State, 175 Ark. 786, 300 S.W.2d 426 (1927); Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889).

As in Chisum, Daniels was the defendant’s relative and she was clearly hostile to the State. In addition, Daniels claimed that she had been threatened by several people not to testify. In Hughey, supra, we clarified that considerable discretion must be given to the trial court when determining where to draw the line in the impeachment of a hostile witness. In light of these facts, we cannot say that the trial court abused its discretion when it found that Daniels’s assertions that she could not recall her statements to Detective Ward were sufficiently inconsistent to allow her to be impeached with her prior statement under Rule 613(b).

Additionally, we find no error because the trial court properly instructed the jury as follows:

Evidence that a witness previously made a statement which is inconsistent with his testimony at trial, may be considered by you for the purpose of judging the credibility of the witness but may not be considered by you as evidence of the truth of the matters set forth in that statement.

During deliberations, the jury sent a note to the judge asking if they could consider the statements Lynette Daniels made to Officer Ward, and the trial court repeated its prior instruction. Thus, the jury was given the proper cautionary instruction not once, but twice, and we can assume that the jury heeded the court’s admonishment. See Hughey, supra.

Moreover, we do not agree with Roseby’s assertion that our decision in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), is controlling. In Roberts, an eyewitness gave an unsworn statement to the police implicating the defendant in the murder of the defendant’s wife. Id. The witness later gave the police two additional statements in which he admitted that his original statement was untrue. Id. At trial, the State called the witness to the stand and impeached him with his initial statement that implicated the defendant. Id. We held that such impeachment was “a mere subterfuge” for the State’s true intention of introducing the hearsay statement as substantive evidence of the defendant’s guilt. Id. We also found that the hmiting instruction to the jury directing them to consider the statements for impeachment only did not cure this error. Id.

In this case, there was no evidence that the State knew that Daniels would contradict her earlier statement to Detective Ward. Thus, we do not find that the State called Daniels for the sole purpose of introducing inadmissible hearsay under the guise of impeachment. Thus, as with Roseby’s other three arguments on appeal, we find no reversible error. .

V. Arkansas Supreme Court Rule 4-3(h)

In accordance with Ark. S. Ct. R. 4-3 (h), the record has been reviewed for rulings decided adversely to Roseby but not argued on appeal, and no reversible errors were found.

Affirmed.

       The victim, Lee Andrew Byrd, Jr., was also known as “Junior” and “Junior Byrd.”


author: Per Curiam.

text:
    Randy ALLEN v. STATE of Arkansas
    CR 97-998
    950 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Stuart Vess, for appellant.
    No response.
   Per Curiam.

Appellant, Randy Allen, by and through his attorney, has filed a motion for a rule on the clerk. We treat this motion as a motion for belated appeal. His attorney, Stuart Vess, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Neal HALL v. STATE of Arkansas
    CR 96-875
    951 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      William M. Pearson, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Neal Hall, was convicted of rape and kidnapping and was sentenced to prison for forty years and five years, respectively. The Trial Court ordered that the terms be served concurrently. Hall filed a motion for a new trial in which he alleged that the prosecutor failed to disclose, pursuant to a discovery request, that a material witness had a felony conviction. We affirmed the Trial Court’s denial of that motion in Hall v. State, 306 Ark. 329, 812 S.W.2d 688 (1991). Hall subsequently sought habeas corpus relief in federal court on a claim of ineffective assistance of counsel. The United States District Court for the Eastern District of Arkansas ordered that a writ of habeas corpus would issue unless Hall was allowed to file a motion for a new trial pursuant to A.R.Cr.P. Rule 36.4 in state court. The Trial Court held a hearing and denied Hall’s motion for a new trial. Hall now appeals that order. We affirm.

On appeal, Hall argues that the Trial Court erred in denying relief on his ineffective assistance of counsel claim. Specifically, he contends that his counsel failed to move to suppress evidence that was seized from his residence and his car pursuant to a faulty nighttime search warrant. Hall argues that if his attorney had filed the motion, the evidence seized pursuant to the warrant would have been suppressed and the outcome of the trial would have been different.

To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

The facts surrounding the incident that led to Hall’s conviction and the execution of the search warrant are these. Early in the morning on October 18, 1989, the eleven-year-old victim was walking to school when she was approached by a man driving a white older model car. The victim described the man to police as a young man in his early twenties who had dirty-blond shoulder-length hair. She also stated that the man was wearing a blue baseball cap, light pants, a jean jacket, and boots. The victim stated she got into the car because the man flashed a gun at her.

Two other witnesses saw the victim get into the white car. Gladys Franklin, who was acquainted with both Hall and the victim, positively identified Hall as the driver of the white car. Mike Módica, a school bus driver, also stated that he saw a young girl matching the victim’s description get into a white car that was driven by a man with blond hair “that was longer than normal for a man.”

During the trial, the victim testified that her assailant drove her to a remote location where he raped her vaginally, orally, and anally. Additionally, the victim made an in-court identification of the appellant as her attacker.

Based on the information received from the victim and other witnesses, the police identified Hall as a suspect in the rape and went to his home to make an arrest. Hall was arrested at 7:00 p.m., and a search of his vehicle and residence was executed at 8:58 p.m. 1

In this appeal, Hall argues that the affidavit was not sufficient to justify a nighttime search, and that a challenge to the warrant would have lead to the suppression of evidence that corroborated the victim’s description of her attacker and the vehicle. The State argues that even if the evidence seized pursuant to the warrant had been suppressed, there was still sufficient evidence to convict Hall, and for that reason, Hall did not suffer prejudice as a result of his attorney’s alleged error. We agree.

The victim testified that her attacker drove an older model white car, and that he had blond shoulder length hair. Gladys Franldin testified that she was acquainted with Neal Hall for about two years, and that she saw the victim talking to him as he sat in the driver’s seat of an older model white car. Ms. Franklin stated that on the morning of October 18, 1989, Hall had close to shoulder-length hair. Ms. Franklin also testified that she saw Hall driving the same car in the parking lot of her apartment complex earlier that morning. As indicated above, Mike Módica, the school bus driver, saw a young girl matching the victim’s description talking to the driver of an older model white car. Mr. Módica also described the driver as having long hair. Two other witnesses, Veronica Mathis and Brooks Evance, testified that they saw a car similar to Hall’s vehicle parked at the location where the victim alleged that she was raped.

Furthermore, the victim testified concerning the circumstances of the rape and made an in-court identification of Hall as her attacker. According to the abstract, the reliability of that identification was not challenged, and Hall does not raise any issue regarding a failure to challenge that identification in this appeal. We have often held, moreover, that the uncorroborated testimony of a rape victim may constitute substantial evidence to sustain a conviction of rape. See Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995). Accordingly, Hall was not prejudiced by his attorney’s alleged failure to suppress evidence that served to corroborate the victim’s testimony.

Affirmed.


text:
    Anthony SANDERS v. STATE of Arkansas
    CR 97-961
    950 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered September 18, 1997

      Jerry Larkowski, for appellant.
    No response.
   Per Curiam.

Appellant Anthony Sanders was convicted on December 5, 1996. No timely notice of appeal was filed. In a motion for belated appeal, Sanders asserts he had instructed his trial attorney, Mark Jesse, to file an appeal, but Jesse failed to do so. Sanders’s new attorney, Jerry Larkowski, now files a motion for belated appeal, stating Sanders has been denied his right to effective assistance of counsel.

We remand this matter to the trial court to conduct a hearing to determine if Sanders had requested his counsel, Mark Jesse, to file an appeal, and direct the trial court to make its findings and remand them to this court within thirty days.


author: W.H. “Dub” Arnold, Chief Justice. Annabelle Clinton Imber, J.,

text:
    Albert DIRICKSON v. STATE of Arkansas
    CR 97-224
    953 S.W.2d 55
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Lajearía Jones, Public Defender, by: Deborah R. Sailings, for appellant.

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

The appellant, Albert Allen Dirickson, was convicted of three counts of attempted capital murder and single counts of attempted rape and residential burglary. He was sentenced to a total of 140 years’ imprisonment for the offenses. Naked, intoxicated, and armed with a hunting knife, appellant unlawfully entered the home of Lyndell and Nedra Martin in DeQueen, Arkansas, on September 5, 1995, and stabbed Mrs. Martin and her eleven-year-old and sixteen-year-old sons. On appeal, the appellant contends that the trial court erred in denying his motions for funds to hire a neuropsychologist and for a continuance to obtain an additional mental evaluation to more folly investigate his diagnosed congenital abnormality, “agenesis of the corpus callosum.” We hold that the trial court did not abuse its discretion in denying appellant’s requests and affirm.

We recently reviewed the guidelines to which we adhere in determining whether the denial of a continuance is error in Miller v. State, 328 Ark. 121, 124, 942 S.W.2d 825, 827 (1997):

The grant or denial of a continuance is within the sound discretion of the trial court, and the decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Turner v. State, 326 Ark. 115, 931 S.W.2d 86 (1996). . . A.R.Cr.P. Rule 27.3 provides:
The court shall grant a continuance only upon a showing of good cause and only for so long as necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.
The following factors are to be considered by the trial court in deciding a continuance motion: (1) The diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Turner, 326 Ark. 115, 931 S.W.2d 86.

The pertinent facts to this appeal are as follows. The felony information was filed in appellant’s case on September 5, 1995. On September 11, 1995, the defense filed a motion giving notice that they intended to raise the defense of mental disease or defect. On this same date, the trial court entered an order committing appellant to the state hospital for a mental evaluation.

While in jail awaiting trial, appellant began complaining of headaches and was seen by Dr. Richard Ridlon, who ordered a CAT scan that was conducted on October 9, 1995. Dr. John Pestaner interpreted the CAT scan and opined that appellant had a dysgenetic corpus callosum. Dr. Pestaner suggested that appellant be evaluated by a neurologist.

On November 22, 1995, the defense filed a motion for continuance on the ground that the mental evaluation had not been completed. On March 1, 1996, the original trial date, the trial court granted the defense motion and set a new trial date of July 1, 1996. Subsequently, on March 27, 1996, appellant was admitted to the state hospital for evaluation.

In a letter dated May 1, 1996, Drs. Michael J. Simon and O. 'Wendall Hall III of the state hospital announced their conclusions that, at the time of the commission of the alleged offenses, appellant did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, had the capacity to have the culpable mental state to commit the offenses charged, and was capable of cooperating with an attorney in the preparation of his defense. According to Dr. Simon, a clinical psychologist, despite appellant’s attempts to exaggerate his problems, appellant’s alcohol problem was the most significant factor in his alleged criminal behavior. While in the state hospital, appellant underwent a magnetic resonance imaging scan of the brain, an electroencephalogram, and a full neurological evaluation. The letter further indicated that a neurologist, Dr. Reginald J. Rutherford, had conducted a forensic evaluation of appellant and had determined that he had an “agenesis of the corpus callosum,” an “incidental congenital abnormality” that, in his opinion, would not influence appellant’s mental state or behavior and had “no connection” to his alleged criminal behavior.

At a June 20, 1996, pretrial hearing, appellant’s trial counsel admitted to having received a copy of the state hospital’s May 1, 1996, letter “a few days” afterwards. However, it was not until June 6, 1996, that counsel asked the trial court to order the state hospital to send supporting documents from the mental evaluation for her review. On June 12, 1996, the trial court granted the request.

On June 13, 1996, the defense filed a motion for continuance for the purpose of obtaining and examining appellant’s records from the state hospital. On June 25, 1996, the defense filed another motion for continuance for the purpose of having Dr. Michael Gelbort, a neuropsychologist from Chicago, Illinois, evaluate appellant. On June 26, 1996, the defense filed a motion requesting funds to help pay Dr. Gelbort’s $3,750.00 fee. On June 28, 1996, the defense filed yet another motion for continuance, this time for the purpose of allowing an Arkansas neuropsychologist, Dr. Ronald Huisman, to examine and evaluate appellant. In support of the motions, appellant submitted the affidavits of both physicians. Dr. Gelbort averred that very serious behavioral disorders and discontrol syndromes can occur with agenesis of the corpus callosum. Dr. Huisman averred that appellant had not been adequately evaluated and needed a neuropsychological evaluation. According to Dr. Huisman, there are multiple syndromes associated with appellant’s condition, and approximately one-half of patients with this condition have seizure disorders or mental retardation. The trial court denied appellant’s requests, stating that appellant’s abnormality appeared to have been negated by his intoxicated condition, that Dr. Gelbort had a financial interest in being paid for his opinion, and that it was in the best interests of society for the case to proceed.

Appellant contends that the trial court’s rulings in his case violated the principles espoused in Ake v. Oklahoma, 470 U.S. 68 (1985), in which the Supreme Court held that when a defendant makes a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that the State assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. In Arkansas, the statutory procedures to be followed when the defense of mental disease or defect is raised are found in Ark. Code Ann. § 5-2-305 (Repl. 1993). We have repeatedly held that a defendant’s right to examination under Ake is protected by an examination by the state hospital as provided by this statute. Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), cert. denied 115 S.Ct. 1126 (1995); Day v. State, 306 Ark. 520, 816 S.W.2d 852 (1991); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829 (1991); Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied 499 U.S. 913 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). An evaluation performed under this section does not normally require a second opinion, Richmond v. State, 320 Ark. 506, 899 S.W.2d 64 (1995), and further evaluation is discretionary with the trial court. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). Stated simply, the State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). In the present case, appellant was examined at the state hospital, and, thus, the requirements under Ake were satisfied.

Appellant maintains that the State’s own experts, particularly a Dr. Knight, a psychologist at UAMS, evaluated appellant and recommended that he see a neuropsychologist. However, appellant has not abstracted any records that indicate that he was seen by a Dr. Knight, much less any recommendation by a State’s expert that appellant needed to be evaluated by a neuropsychologist. As we have said many times, the record on appeal is confined to that which is abstracted. Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997). Moreover, there is nothing in the record to indicate that a Dr. Knight made such a recommendation. It is the appellant’s burden to bring up a record sufficient to show that the trial court erred. Winters v. Eiders, 324 Ark. 246, 920 S.W.2d 833 (1996). For these reasons, we will not consider this portion of appellant’s argument.

Appellant further relies on two cases from the Eighth and Eleventh Circuits; however, a review of the facts in those cases reveals that they are clearly distinguishable. In Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994), Starr had been previously placed in institutions for the mentally retarded and had been diagnosed as mildly to moderately retarded. In that case, the Eighth Circuit held that an additional opinion may be justified when it has been shown that further examination could aid the defense. In Cowley v. Stricklin, 929 F.2d 640 (11th Cir. 1991), Cowley had been previously committed to mental institutions some 16 times and had been diagnosed as a schizophrenic. While the appellants in Starr and Cowley had significant histories of mental illness, appellant’s mental history in the case at bar began only after he was jailed for the present offenses. As Dr. Rutherford observed, appellant’s abnormality had gone undiscovered for some twenty-eight years. Thus, appellant’s argument is unpersuasive.

Even if we were to hold that appellant’s evaluation at the state hospital was insufficient, it was appellant’s burden to prove the existence of a mental disease or defect. See Miller, 324 Ark. at 124. He could have attempted to do so as early as October of 1995, when he complained of headaches and his condition was discovered. As in Miller, the defense chose to employ the strategy of waiting to see what the State’s doctors would find before seeking to obtain their own experts for an evaluation. Moreover, appellant’s trial counsel admitted to having received the state hospital’s report “a few days” after it was written on May 1, 1996. However, she waited over one month to request supporting documents on June 6, 1996. In sum, appellant was not diligent in attempting to secure the necessary information on which to build a defense of mental disease or defect. Miller, 328 Ark. at 129.

Appellant has also failed to show that the probable effect of Drs. Gelbort’s and Huisman’s testimony would be to establish that appellant’s condition prevented him from appreciating the criminality of his conduct. See Miller, supra. According to appellant’s trial counsel, Dr. Gelbort was concerned about appellant’s blood alcohol level because it affects the abnormality. The state hospital report indicated that appellant’s alcohol problem was the most significant factor in his criminal behavior. Under these circumstances, the probable effect of Dr. Gelbort’s testimony would have been of little benefit to appellant’s defense.

Based on the foregoing, we hold that the trial court did not abuse its discretion in denying appellant’s motions for expert funds and a continuance.

Affirmed.

Glaze, Imber, and Thornton, JJ. dissent.

Annabelle Clinton Imber, J.,

dissenting. I must disagree with the majority’s conclusion that appellant is not entitled to an additional expert evaluation under the principles enunciated by the United States Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985).

Based upon rulings by this court in Richmond v. State, 320 Ark. 506 899 S.W.2d 64 (1995), and by the Eighth Circuit Court of Appeals in Starr v. Lockhart, 23 F.3d 1280 (8th Cir. 1994), our review of this case should begin with the following inquiries: 1) did appellant show that sanity at the time of the offense was likely to be a significant factor, 2) did appellant make a showing that an independent expert would have aided in his defense and 3) would a denial of such assistance result in an unfair trial. I would find that all the above inquiries should be answered in the affirmative.

With regard to the first inquiry, the court’s order for a mental evaluation was sufficient to show that appellant’s sanity at the time of the offense was likely to be a significant factor. With regard to the second inquiry, the facts support appellant’s contention that an expert would have aided in his defense. It is undisputed that a CAT scan performed at DeQueen Regional Hospital in October of 1985 revealed that the appellant suffered from a brain abnormality known as agenesis of the corpus callosum.

Following this initial evaluation, appellant spent thirty-five days at the state hospital and was examined by Dr. Reginald J. Rutherford, a neurologist, who confirmed the brain abnormality, but opined that the abnormality would not influence appellant’s® mental state or behavior. AppeEant then arranged for Michael Gelbort, Ph. D. neuropsychologist, to review and evaluate his medical records. Dr. Gelbort opined that appeEant’s condition was a “rare and significant condition,” with which “serious behavior disorders and discontrol syndromes can occur,” and recommended further evaluation by a neuropsychologist or behavioral neurologist.

Furthermore, Ronald Huisman, Ph.D. neuropsychologist, testified that appeEant’s medical records included a recommendation by Dr. Armani, a neurologist at the University of Arkansas Medical Center, that appeEant be further examined by a neuropsychologist. Because a neuropsychological examination was never performed, Dr. Huisman concluded that appeEant had “not been adequately evaluated” and that further evaluation was necessary to assess the “degree to which this man is impaired.”

The above facts indicate that appellant made a more than adequate showing that an “independent expert would have aided in his defense.” Starr, supra. It is clear from the information presented to the court that further evaluation by a neuropsychologist would help determine the true nature of the effects of appellant’s brain abnormality and thereby aid in his defense. Without the assistance of further evaluation, appellant was left without the ability to determine whether he had a viable defense based on mental defect. “The right to psychiatric assistance . . . means the right to use the services of a psychiatrist in whatever capacity the defense counsel deems appropriate — including to decide, with the psychiatrist’s assistance, not to present to the court particular claims of mental impairment.” Smith v. McCormick, 914 F.2d 1153, 1157 (9th Cir. 1990).

The trial court denied appellant’s request for funds to hire an expert witness based upon the opinion of the state’s neurologist that the brain abnormality would not influence appellant’s mental state or behavior, especially in light of the appellant’s intoxication at the time of the crime. Although there was some evidence that appellant’s brain abnormality would have no effect on his mental state or behavior, appellant introduced evidence to show that such ' a determination was premature, because appellant had never been evaluated by a neuropsychologist as recommended by not only Drs. Gelbort and Fluisman, but also by Dr. Armani at the University of Arkansas Medical Center. Given such an incomplete evaluation, the trial court should have appointed a competent neuropsychologist to “conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Ake, supra. “The validity of the defense should then have been for the jury to decide.” Cowley v. Stricklin, 929 F.2d 640, 643 (9th Cir. 1991). Considering the above points, it is clear that appellant made an adequate showing that a denial of expert assistance resulted in an unfair trial, especially in light of the fact that a defense of mental disease or defect was appellant’s only viable defense.

The majority attempts to distinguish the Eighth Circuit’s ruling in Starr, supra, by suggesting that the appellant in Starr had a significant history of mental illness, whereas appellant’s mental history in this case began only after he was jailed for the present offenses. The majority’s distinction ignores appellant’s history of headaches and blackouts, and a below average I.Q. score (80).

The majority further states that “the state is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial.” I must respectfully disagree with that characterization of appellant’s actions. After the trial court denied appellant’s original request for funds to hire an out-of-state neuropsychologist, appellant tried to find a qualified expert in Arkansas. Appellant’s counsel attempted to procure an expert from the V.A. hospital in Little Rock, but that expert did not do “criminal work.” Ultimately, appellant’s counsel hired a neuropsychologist in Arkansas to review appellant’s medical records. Considering these attempts by appellant’s counsel to locate an expert, it is clear that appellant was not “expert shopping” for a second opinion. Rather, appellant was merely attempting to obtain the neuropsychological evaluation that had never been done, notwithstanding recommendations by several experts that such an evaluation was necessary.

For the above reasons, I must respectfully dissent.

Glaze and Thornton, JJ., join in this dissent.


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

text:
    STATE of Arkansas v. Frankie E. HART
    CR 97-168
    952 S.W.2d 138
    Supreme Court of Arkansas
    Opinion delivered September 25, 1997

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellant.

      Dunham & Faught, P.A., by: James Dunham, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The State brings this interlocutory appeal under Ark. R. App. P. — Crim. 3(c), asserting the ground that the circuit court improperly suppressed items seized from appellee Frankie E. Hart’s home. The Attorney General contends, as it is required to do under the rule, that the correct and uniform administration of justice requires our review of the circuit court’s ruling. Because we disagree that the correct and uniform administration of justice is at issue here, we dismiss the appeal.

The undisputed facts in this case are as follows. On April 17, 1995, at approximately 9:15 a.m., Arkansas State Trooper Bill Glover was driving west on Highway 64 near London, Arkansas, when a white Corvette bearing Oklahoma tags pulled out in front of him. Having seen the vehicle several times in the area for over one month, Trooper Glover decided to follow it for the purpose of checking to see that its tags were properly registered. When the officer observed the vehicle make a sudden right turn into a parking lot without activating a signal, he approached the driver and asked for his license. Shortly after Trooper Glover identified the driver as appellee, Trooper James Stephens arrived at the scene with his narcotics dog. Despite the fact that both troopers repeatedly instructed appellee to keep his hands out of his pockets, he refused to do so. Trooper Stephens eventually requested appellee to empty his pockets. When appellee failed to completely empty one of his pockets, Trooper Stephens felt the pocket and removed a leather pouch containing a vial of what was later identified as methamphetamine. Appellee was placed under arrest. His car was searched, but no other narcotics were found.

Later that same day, the troopers contacted Officer Stephen Brown, coordinator of the Fifth Judicial Drug Task Force, who had information that appellee was dealing in narcotics. Officer Brown prepared a sworn affidavit and obtained a search warrant for appellee’s residence from Judge Benny E. Swindell. Officer Brown and others executed the warrant later in the afternoon and discovered over three pounds of methamphetamine, various items of drug paraphernalia, marijuana, and various firearms. Appellee was charged with improper use of tags, possession of a controlled substance with intent to deliver, simultaneous possession of a controlled substance and firearms, and possession of drug paraphernalia. Appellee filed a pretrial motion to suppress the items seized from his residence. Following a hearing, the circuit court ruled that the search warrant was invalid because Officer Brown’s affidavit contained conclusory allegations as well as references to confidential and anonymous sources with no factual indications of reliability. In ruling that the evidence seized from appellee’s home would be suppressed, the circuit court refused to apply the good-faith exception to the exclusionary rule enunciated in United States v. Leon, 468 U.S. 897 (1993), in which the Supreme Court held that objective good-faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event the magistrate’s assessment of probable cause is found to be in error.

The sole point raised in the State’s appeal is whether the circuit court erred by not applying the good-faith exception to the exclusionary rule. Before addressing this issue, we must first decide whether this interlocutory appeal is properly before us under Rule 3(c). Particularly, we must decide whether the correct and uniform administration of justice requires us to review this question.

The circuit court’s refusal to apply the good-faith exception in this case necessarily depended upon its assessment of whether Officer Brown acted in good faith in relying on the issuing magistrate’s determination that the affidavit for search warrant demonstrated probable cause. In answering this question, the circuit court was required to apply an objective standard, which requires officers to have a reasonable knowledge of the Arkansas Rules of Criminal Procedure. See Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993). Thus, the circuit judge was called upon to decide whether an objective, reasonable officer with Officer Brown’s training and experience would have had the good-faith belief that the affidavit established probable cause to search appellee’s residence. The circuit court viewed both the facts and the law and determined that the good-faith exception did not apply.

Because the issue presented in this appeal involves a mixed question of law and fact, an interpretation of our rules with widespread ramifications is simply not at issue here. See State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). We have similarly held:

Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — ■ Crim. 3(c).

State v. Harris, 315 Ark. At 597; State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715 (1993); quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). We only accept appeals by the State when our holding would establish a precedent that would be important to the correct and uniform administration of justice. State v. Rice 329 Ark. 219, 947 S.W.2d 3 (1997); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1995). Because the circuit court’s decision in the present case required him to review unique circumstances and decide mixed question of law and fact, we must conclude that the correct and uniform administration of justice is not at issue. Accordingly, we dismiss the appeal.

Appeal dismissed.

Glaze, Imber, and Thornton, JJ. dissent.