author: Jack Holt, Jr., Chief Justice. David Newbern, Justice,

text:
    Darren WOODRUFF v. STATE of Arkansas
    CR 92-1345
    856 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993
    [Rehearing denied September 13, 1993.]

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

      Newbern and Brown, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This is a capital murder case. Darren Woodruff was sentenced to life imprisonment without parole for the capital murder of Carlos (a.k.a. “Brizzle”) Bogan outside a Eudora nightclub at approximately 1:30 a.m. on June 22, 1991. Woodrull appeals on the basis that the trial court committed error in limiting the cross-examination of a State’s witness and in not granting a mistrial because of prejudicial remarks made by the prosecutor. We affirm.

At trial, witnesses called by the State testified that Carlos Bogan was dancing when he swung around a pole in the club and kicked Woodruff. Testimony revealed that Bogan had a “habit” of swinging around poles. Bogan apologized and then Woodruff said, “No, you not gonna get off that easy.” Woodruff reportedly went outside. Then, Kevin Leonard went to Bogan and they talked. Five minutes later, Bogan exited the club behind Leonard, presumably to meet Woodruff outside.

Woodruffs brother, Renwick Redmon, testified that, on the night of the shooting, Woodruff had told him that Carlos Bogan had been bothering him, that he and Carlos were in an argument, and that Bogan had confronted him or embarrassed him in some way. Woodruff also told Redmon that if Bogan kept bothering him, he was going to shoot Bogan in the head. Other testimony revealed that Woodruff had loaned Bogan twenty dollars which had not been repaid.

Witnesses to the shooting testified that after Kevin Leonard and Carlos Bogan exited the nightclub together, they met Woodruff behind the building. There was a verbal disagreement and some pushing. Woodruff and Bogan exchanged words, and Woodruff shot Bogan in the head with a pistol.

Woodruff testified that he carried a gun for protection since he carried cash because he did not trust banks. Woodruff admitted he was drunk when the shooting took place. He testified that Carlos Bogan made sexual advances toward him in the bathroom at the Silver Dollar the night of the shooting. Woodruff said he told his brother that if Bogan approached him again like that, he would “bust his head” with his fist, not shoot Bogan with a gun. Woodruff said he was never kicked by Bogan inside the club.

Woodruff said he went outside to throw up and encountered Carlos Bogan and Kevin Leonard. He said Bogan wanted to borrow twenty dollars, Woodruff refused, and then Bogan and Kevin Leonard got into a pushing match. Bogan asked Woodruff again if he could have the money and then Bogan threatened to forcibly take the money from Woodruff, at which time Woodruff pulled his gun out of his pocket to scare Bogan. He testified that Bogan then jumped at him and pushed him, and the gun went off as Woodruff began falling. In his words, he pulled the trigger by accident.

The autopsy report introduced into evidence revealed that Bogan died from a gunshot wound to the head.

Immediately after the shooting, Woodruff walked around to the front of the club with the gun still in his hand and then fled the scene on foot. He went to Dale Handle’s house and asked for a ride across town. During that car ride, the police stopped their car, and Woodruff fled on foot.

The police officer to arrive first on the scene testified that he received a call at 2:00 a.m. to come to the Silver Dollar, which he immediately did and found Carlos Bogan on his side facing downward on the ground behind the nightclub in a dark area between the club and an abandoned building. Bogan had a weak pulse, and his vital signs quickly disappeared despite the officer’s attempt to resuscitate him.

Woodruff was arrested three days later. The Chief of Police of the Eudora Police Department testified that after his rights were read to him, Woodruff voluntarily confessed to shooting Bogan and said he had just “forgot about the whole thing when he shot Carlos.” Woodruff also allegedly said he didn’t mean to kill Bogan, although at trial Woodruff denied making any statement to the police.

LIMITED CROSS-EXAMINATION

The State called a rebuttal witness, Edward Grant, to show that Woodruff had made threatening comments about Bogan before the shooting in order to rebut Woodruff’s testimony that there was no intent and that the shooting was merely an accident.

In a nutshell, Grant testified that he heard Woodruff call Bogan into the street, and that Bogan got “loud with him.” Grant then said he asked Woodruff what the argument was about, and Woodruff said it was about a loan, and that, “The next time I’m gonna call him out . . . if he get loud, everybody gonna know about it.” Grant further testified that he was outside with other parties when he heard Bogan say, “Ya’ll ain’t going to do nothing to me.” Grant then said he saw the gun in Woodruff’s hand fire and Bogan fall to the ground.

At trial, Woodruff claimed that it was error for the court to prevent him from cross-examining Grant on the fact that Grant was being held in jail pending trial on felony charges at the time he testified against Woodruff. The State replied generally that the witness should not be questioned on these issues unless there was a conviction going to his truth and veracity.

The exchange in question reads as follows:

(RECESS)

(Whereupon, the following was held at the Bench out of the hearing of the jury.)

MR. POPE (PROSECUTOR): The State anticipated calling Edward Grant as a rebuttal witness. He is presently in jail (inaudible). He had a conviction on that (inaudible).
MR. COLVIN (DEFENSE COUNSEL): I object to being precluded from asking him what his present circumstances are and why he’s charged. He is not the Defendant, and therefore he has no Constitutional rights protecting him (inaudible), and that goes to the credibility of his testimony.
MR. POPE: No, sir, it’s not a Constitutional issue. It’s evidentiary issues and (inaudible) the Defendant should not — the witness should not be questioned on those issues unless there is a conviction going to truth and veracity in this instance. It’s not — it’s just a charge, it’s not a conviction.
THE COURT: Well, I’m gonna — excuse me, Mr. Colvin, I’m gonna deny your motion.
MR. COLVIN: Yes, sir, but, Your Honor, he is in jail, and, ah, he’s testifying in a criminal case (inaudible), and that is an element of his credibility that the jury should know to determine how much, ah, weight to give his testimony as to credibility.
THE COURT: No, sir I’m ruling — I’m ruling against you. Save your exceptions.
MR. COLVIN: On the basis of the witness, and he is not a Defendant in this cause.
THE COURT: I understand, but you’re overruled, save your exceptions.
We’ll be in session now.

(Whereupon, the following was held in open court.)

MR. COLVIN: I do save my exceptions, Your Honor, just to make sure.

As a preliminary matter, Woodruff incorrectly argues that abuse of discretion is not the proper standard of review, but we repeat that it is indeed the correct standard. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992). We have said that the use of cross-examination is an important tool in bringing the facts before the jury and wide latitude should be afforded by the trial court. Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988); Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936). Even so, the trial court must determine when the matter has been sufficiently developed and the outer limits have been reached, and unless the trial court’s discretion is abused, we will not reverse. McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980).

In examining the colloquy between court and counsel relating to defense counsel’s desire to cross-examine Grant concerning Grant’s “present circumstances” of being in jail and “why he’s charged,” defense counsel said that this information “is an element of his credibility that the jury should know to determine how much. . . weight to give his testimony as to credibility”, we can envision several different reasons why Woodruff’s counsel would want to cross-examine Grant. However, it is not apparent from the context of his questions or his statements to the trial court as to why Grant was in jail, or what possible bearing his incarceration might have on Woodruff’s trial. Counsel did not furnish or suggest to the trial court any of our rules of evidence or case law which would support his questions concerning Wood-ruff’s incarceration. Furthermore, Woodruff’s counsel did not claim or even make mention to the trial court that the information he sought could have a potential of showing bias or motive on the part of Grant.

On appeal, Woodruff now states that the evidence of Grant’s incarceration showed a compelling motive to slant his testimony and that impeachment for bias on the issue cannot be denied. This is a new argument, and we have long held that we will not consider arguments on appeal which were not raised below. Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993); Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992).

Granted, we have stressed the importance of allowing wide latitude with respect to the admission of evidence relevant to the bias of the witness, see Wilson v. State, 289 Ark. 141, 712 S.W.2d 654 (1986) and Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); however, the argument must be properly raised and preserved for appeal.

Woodruff further argues that his constitutional rights under the Confrontation Clause of the United States Constitution were violated in that the trial court had limited his cross-examination, citing Delaware v. Van Arsdall, 475 U.S. 673 (1986), Davis v. Alaska, 415 U.S. 308 (1974), and Alford v. United States, 282 U.S. 687 (1931). U.S. Const, amend. VI. While there is a fundamental right to wide latitude in cross-examination to impeach a witness, we do not delve into the constitutional issues of confrontation since Woodruff failed to make this argument below. Again, we will not consider new arguments on appeal. Furman v. Holloway, supra; Campbell v. State, supra; Tisdale v. State, supra.

In sum, it was Woodruffs responsibility to explain to the trial court the basis upon which he desired to cross-examine Grant concerning his incarceration. Although not required to do so, a proffer of testimony under our Ark. R. Evid. 103(a)(2) would have made known to the trial court the substance of the evidence that he was asking for and, of course, would have satisfactorily explained to the court his intentions. By not doing so, Woodruff cannot now be heard to complain.

PROSECUTOR’S COMMENTS DURING CLOSING ARGUMENT

Woodruff next argues that the trial court committed prejudicial error by refusing to grant a mistrial following the prosecution’s reference during closing on rebuttal to a witness’ comment that Woodruff smiled after the shooting.

The State called Michael Holts, a witness to the shooting, who said, “I seen the fire jump out the gun, and I seen Brizzle [the victim] hit the ground, and I seen Brizzle, and I seen Darren turn around and smile and walked off.”

In his rebuttal closing argument, the prosecutor told the jury, “And if you don’t pay the price [by convicting Woodruff], I’ll guarantee you, sooner or later he’s gonna be grinning at you, just like . . .” At that point, defense counsel requested to approach the bench, the prosecutor repeated that Woodruff grinned when he killed Carlos Bogan, and defense counsel asked for a mistrial. The prosecution did not return to its closing, and the court instructed the jury. Woodruff did not ask the trial court to issue an admonitory instruction.

We have said many times that the trial court has discretion to control closing argument and is in a better position to determine the possibility of prejudice by observing the argument first hand. Sheridan v. State, supra; Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), cert. denied, 111 S. Ct. 1123 (1990). The appellate court will not reverse the action of the trial court in matters pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). There was no such gross abuse here.

We have also repeatedly stated the rule that closing arguments must be confined to questions in issue, the evidence introduced during the trial, and all reasonable inferences and deductions which can be drawn therefrom. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990). See Wilburn v. State, 292 Ark. 416, 730 S.W.2d 491 (1987); McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980); Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976); Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). Where an attorney’s comment during closing arguments is directly reflecting or inferable from testimony at trial, there is no error. The prosecutor’s reference to Woodruff “grinning” was not an inference but was a direct reference to Michael Holts’ testimony that he saw Woodruff smile after the shooting.

Not only was the prosecutor’s comment directly taken from the testimony at trial, we further hold that there was no error since Woodruff failed to request that the judge issue an admonitory instruction to the jury. Aaron v. State, 312 Ark. 19, 846 S.W.2d 655 (1993) (a mistrial will only be declared if any possible prejudice cannot be removed with an admonition to the jury). See State v. Wheat, 295 Ark. 178,747 S.W.2d 112 (1988). Failure to give an admonitory or cautionary instruction, or one limiting the effect of testimony or the purpose for which it may be considered, is not reversible error where one is not requested. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

A similar closing argument was made by a prosecutor in Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980):

. . . [T] he Deputy Prosecuting Attorney [said] in the closing of the penalty stage of appellant’s trial:
I don’t think that you can lay down at night, sleep knowing that you have allowed this man to live with the possibility of escaping again. He has already escaped once. He is an escapist.
Ladies and gentlemen, I don’t mean to create fear in you, but if you did do that, sentence him to life imprisonment with his having escaped once already and plan on holding him in any institution, I don’t care what kind of institution it is, any institution for forty years or better, you are taking a terrific risk.
Appellant’s counsel did not request the court to admonish the jury concerning these remarks. He did move for a mistrial based on them, but this motion was denied by the trial court. Appellant contends that the only logical inference that can be drawn from the statements is that the deputy prosecutor was telling the members of the jury that their lives would be in danger unless they sentenced appellant to death. However, the deputy prosecutor went on to explain that he was interrupted and that he was about to explain that the risk would be to members of society in general, not to the members of the jury. The trial court accepted this explanation, and, as noted, denied appellant’s motion for mistrial. We will not reverse the action of the trial court in matter [sic] pertaining to its controlling, supervising, and determining the propriety of the arguments of counsel in the absence of manifest gross abuse.
Had appellant’s counsel requested the court to admonish the jury, the question of refusal would have been presented, but the failure to give an admonitory instruction is not prejudicial error in the absence of a request. Prior to the closing arguments, the court had given the jury an instruction that “closing arguments, of the attorney are not evidence” and that “remarks of attorneys having no basis in the evidence should be disregarded by you.” We find no abuse of discretion by the trial court in denying appellant’s motion for a mistrial. A mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial.

Miller at 348-9, 605 S.W.2d at 345 (citations omitted).

As in Miller, we see no abuse of discretion by the trial court in denying Woodruffs motion for a mistrial.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.

Dudley, Newbern and Brown, JJ., dissent.

David Newbern, Justice,

dissenting. The majority opinion dismisses the Trial Court error in the limitation of cross-examination in this case by suggesting Woodruffs objection was insufficient to raise the issue. I disagree. The conviction should be reversed and remanded.

The majority opinion acknowledges that defense counsel had reasons for wanting to cross examine Grant, the opinion specifically recognizes defense counsel’s statement to the Trial Court that the matter of Grant’s incarceration “is an element of his credibility that the jury should know to determine how much . . . weight to give his testimony.. . .But then the opinion states:

However, it is not apparent from the context of his questions or his statements to the trial court as to why Grant was in jail, or what possible bearing his incarceration might have on Woodruffs trial. Counsel did not furnish or suggest to th.e trial court any of our rules of evidence or case law which would support his questions concerning Woodruffs incarceration. Furthermore, Woodruff s counsel did not claim or even make mention to the trial court that the information he sought could have a potential of showing bias or motive on the part of Grant.

For this Court to acknowledge that defense counsel was questioning credibility based on the fact that the witness was incarcerated by the State, a party to the case, and then to say there was no claim of a “bias” or “motive” on the part of the witness is incredible.

As stated in the majority opinion, defense counsel expressed his desire to let the jury know the status of the State’s witness, Grant, so jurors could have facts necessary to assessment of the witness’s credibility. Credibility is a broad term which encompasses many different aspects of a witness’s manner of and motivation for presenting testimony. There can be no doubt that the fact of incarceration and it’s motivating influence on a witness’s testimony is a critical component in determining his credibility which should be presented to the jury.

In Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), we made it clear that questions about the status of the individual testifying were admissible on cross-examination to show bias. We said:

It is generally permissible for a defendant to show by cross-examination anything bearing on the possible bias of the testimony of a material witness. Bethel v. State, 162 Ark. 76, 257 S.W. 740; Ringer v. State, 74 Ark. 262, 85 S.W. 410; Annot. 62 A.L.R. 2d 611 (1958). This rule applies to testimony given under expectation or hope of immunity or leniency or under the coercive effect of his detention by authorities [emphasis supplied]. Stone v. State, [162 Ark. 154, 258 S.W. 116]; Boydv. State, [215 Ark. 156, 219 S.W.2d 623]. See also Campbell v. State, 169 Ark. 286, 273 S.W. 1035; Alford v. U.S., [282 U.S. 687 (1930)]. The test is the expectation of the witness and not the actuality of a promise. State v. Little, [87 Ariz. 295, 350 P.2d 756]; Spaeth v. United States, 232 F.2d 776, 62 A.L.R. 2d 606 (6 Cir., 1956).
* * *
Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

It is also wrong for this Court to bolster its opinion by saying defense counsel in this case did not cite rules of evidence or cases in support of his desire to cross examine Grant. The suggestion is that defense counsel should have entered upon his cross examination of Grant armed with citations. Given the authorities cited above, I can think of no reason defense counsel should have anticipated any serious question about whether he could cross examine Grant about his incarceration. The colloquy between defense counsel and the Trial Court quoted in the majority opinion demonstrates that defense counsel was summarily prevented from pursuing the matter and was given no opportunity to research the point and argue rules or cases.

The evidence against Woodruff was strong, but that is not the question being addressed here. We must treat everyone by the same rules. If we are to maintain the quality of procedural justice we have achieved for criminal trials we cannot give up our regard for the right of any accused to engage in the adversary process, no matter how strong the evidence of guilt. Fair play requires us to abide by the rules of evidence, honor the Sixth Amendment, and not to curtail the right of cross-examination which goes to the very essence of the rights of an accused. Woodruff was entitled to a fair trial, and he did not get one.

I respectfully dissent.

Dudley and Brown, JJ., join in this dissent.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    STATE of Arkansas v. John BOSTICK
    CR 93-314
    856 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Thomas D. Deen, for appellee.
   Robert H. Dudley, Justice.

The Lake Village Municipal Court dismissed a misdemeanor charge pending against appellee Bostick. The dismissal was premised on the lack of a speedy trial. The State attempted to appeal to the Circuit Court of Chicot County. The circuit court ruled that it did not have jurisdiction to hear such an appeal by the State. The State now appeals to this court. We affirm the ruling of the circuit court.

The State acknowledges that there is neither statutory nor case authority to support its argument, but contends that Article 7, Section 14 of the Constitution of Arkansas gives it the right of appeal. The State further contends that all enabling legislation or court rules that limit the State’s unqualified right of appeal are in violation of the constitutional provision.

Article 7, Section 14, in the material part, provides: “The circuit courts shall exercise a superintending control and appellate jurisdiction over . . . corporation courts.” “Appellate jurisdiction” is not defined in the constitution. The section does not affirmatively provide that any party has an absolute right to appeal, and it is not self-executing. It does not provide whether appellate jurisdiction is de novo or by review of a record. If the State were allowed a de novo appeal it could put on entirely new proof in the circuit court, and if it were allowed an appeal to review the record, the circuit court would have to be given the power to reverse and remand for retrial.

The drafters of the constitution did not define the term “appellate jurisdiction” because they anticipated the use of enabling legislation. Such legislation had been in effect under each of the four previous constitutions, and was in effect at the time of the adoption of our present constitution of 1874. See Levy v. Lychinski, 8 Ark. 113 (1845), overruled on other grounds by Carnall v. Crawford County, 11 Ark. 604 (1851); see also Ark. Code Ann. §§ 16-91-112 & 16-91-118 (1987), enabling statutes that were parts of the criminal code of 1869 and in effect at the time of the adoption of the present constitution. (See Russell v. State, 271 Ark. 817, 611 S.W.2d 518 (1981), as to supersession of these statutes).

The present constitution must be construed in context of the law in existence at the time of its adoption. In a similar case construing “appellate jurisdiction” of this court under the constitution of 1836, we said the term “appellate jurisdiction” was not specifically defined, and “therefore the whole appellate power and jurisdiction of the Supreme Court is made by the constitution itself to depend upon the law as it stood when the constitution was adopted; subject, however, to such alterations as the legislature should from time to time prescribe by law.” State v. Graham, 1 Ark. 428, 430 (1839). Only eighteen years after our present state constitution was adopted, the Supreme Court of the United States said: “It is settled by an overwhelming weight of American authority, that the state has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon the determination by the court of a question of law.” United States v. Sanges, 144 U.S. 310, 312 (1892). An annotation states the common law as follows:

Generally speaking, under the common law as understood and administered in this country, the state or United States had no right to an appeal or writ of error in criminal cases. It is apprehended that the reason for such a policy was built on the idea that, when the state in its sovereign capacity brought a citizen into its own tribunals, before its own officers, and in obedience to its own processes, and lost, its avenging hand should be stayed except in unusual cases where the power to appeal was expressly conferred.

Annotation, Right ofprosecution to review of decision quashing or dismissing indictment, or sustaining demurrer thereto, 92 A.L.R. 1137, 1137-38 (1934).

None of the four earlier state constitutions expressly provided for appeal by the State. Rather, appeal by the State was governed by enabling legislation. See, e.g., State v. Withrow, 47 Ark. 551, 2 S.W. 184 (1886). In summary, when the present constitution is read in light of the law as it existed in 1874, it is manifest that the term “appellate jurisdiction” was not further defined because enabling legislation was already in existence, and it was understood by all that the State could not appeal in the absence of legislation. Accordingly, we hold that Article 7, Section 14 is not self-executing, and it does not give the State an unqualified right of appeal from municipal court to circuit court.

Affirmed.


author: Steele Hays, Justice.

text:
    Hazel BURNETT v. Bruce BURNETT
    92-1455
    855 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Bullock & Van Kleef, by: John D. Van Kleef, for appellant.

      David H. McCormick, for appellant.
   Steele Hays, Justice.

Hazel Burnett appeals from an order of the chancery court retroactively modifying the amount of child support payable under a decree of divorce between Hazel Burnett (appellant) and Bruce Burnett (appellee). We agree that it was error for the chancellor to retroactively modify the amount of child support due the custodial parent and, accordingly, we reverse.

The marriage between these parties was dissolved by a decree of divorce on May 1, 1991. The decree ordered Mr. Burnett to pay child support in an amount the parties had agreed to- $140 per week- into the registry of the court. The decree approved by reference the terms and provisions of a property settlement agreement signed by the parties. Neither the decree nor the agreement identifies the children as to number, age, or name, other than a reference in the agreement to Bradley Burnett as being the oldest child.

On May 15,1992, Mr. Burnett petitioned for a reduction in child support. On June 2, 1992, Mrs. Burnett petitioned for a contempt citation, alleging that Mr. Burnett was in arrears in child support to the extent of $844 for 1991 and $1,540 for 1992. Mr. Burnett denied those allegations.

Hearings were held in June and August, 1992. Mrs. Burnett testified that Mr. Burnett did not pay through the registry of the court and was in arrears in the amount due her by the sum of $2,297. It was stipulated that there were three children; that Bradley had become eighteen on September 22,1991, and was in his first year of college.

Mr. Burnett testified that though he had agreed to the amount of $140 per week he had subsequently had several job changes and each time he called his attorney to find out how much child support was due on his earnings under the Arkansas Child Support Chart. He then paid the chart amount to Mrs. Burnett. He conceded an arrearage in child support of $68.

The chancellor found that the amount of child support accrued but unpaid as of May 15,1992, was $2,297.00, but that Mr. Burnett was liable for only $68.00 because of material changes: Bradley had reached eighteen, Mr. Burnett’s earnings were lower and he had made a good faith effort to pay according to the chart.

By this appeal Mrs. Burnett has challenged the authority of the chancellor to grant a retroactive reduction in child support and relies on Ark. Code Ann. § 9-12-314(b)(c) (Repl. 1991), which reads in part:

(b) Any decree, judgment, or order which contains a provision for the payment of money for the support and care of any child or children through the registry of the court shall be final judgment as to any installment or payment of money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter or modify the decree, judgment, or order.
(c) The court may not set aside, alter, or modify any decree, judgment, or order which has accrued unpaid support prior to the filing of the motion.

Ark. Code Ann. § 9-14-234(a)(b) (Repl. 1991) contains identical language.

In Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990) we stated that these statutes were enacted to insure that child support programs of the State of Arkansas would qualify for future funding from the United States Department of Health and Human Services. As we there noted, in Title IV-D of the Social Security Act, Congress appropriated funds for such a program. 42 U.S.C. § 666(a)(9)(A)-(C) (1988) provides that each state must have procedures which require that any payment or installment of support under any child support order is:

(a)(9)(A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.

In April 1989, the Office of Child Support Enforcement of the Department of Health and Human Services issued its final rule which discusses the intent of the federal requirement. See 45 C.F.R. § 303.106 (1989); 54 Fed. Reg. 15,758 (April 19,1989).

The court in the Sullivan case held that where former spouses made an agreement as to the amount of child support due monthly, the chancellor could recognize the parties’ private agreement prior to July 20,1987 (the effective date of §§ 9-12-312 and 9-14-234). However, the corollary to that holding is that chancery courts are no longer to recognize private agreements modifying the amount of child support after the effective date of the act.

Mr. Burnett insists this case is stronger because in Sullivan there was no agreement between the parties to reduce the amount of child support. The evidence indicates that an order to reduce the amount of child support was prepared but Mrs. Burnett did not sign it. She testified that she neither agreed nor disagreed, that Mr. Burnett simply came to her and stated he was paying an amount based on his income and she took what he gave her. Mr. Burnett testified that they had agreed that the actions taken by him were acceptable to both parties. He also notes that Mrs. Burnett took no action between September 22,1991, and June 2, 1992, other than to accept the child support payments he tendered. We note that the property settlement agreement provides “no modification of this agreement shall be binding upon either party unless reduced to writing and subscribed by both parties.”

Mr. Burnett recognizes that Sullivan and the statutes cited above appear to bind the trial court to render a judgment for the arrearage. However, he also asserts that because the chancery court is a court of equity, the chancellor was not prevented from applying equitable principles.

Mr. Burnett relies upon Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991) in support of his argument. In Roark, the chancellor entered an order finding that neither of the parties had complied with the divorce decree and that both parties were estopped from raising the issue of back support. He modified the amount of child support and refused to grant a judgment for past due child support. The Court of Appeals affirmed the findings of the chancellor and stated that while it appears there is no exception to the prohibition against the remittance of unpaid child support, the commentary to the federal regulations recognizes circumstances under which a court might decline to permit the enforcement of the child support judgment. 54 Fed. Reg. 15, 761 (April 19, 1989) states:

[Enforcement of child support judgments should be treated the same as enforcement of other judgments in the State, and a child support judgment would also be subject to the equitable defenses that apply to all other judgments. Thus, if the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child support judgment.

In State v. Robinson, 311 Ark. 133, 842 S.W.2d 42 (1992), we held that because the chancery court could not directly determine visitation under RURESA, it could not indirectly determine visitation by making payment of child support dependent upon visitation. That decision overruled Roark v. Roark, supra, and Arkansas Department of Human Services v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991), to the extent they conflict with Robinson.

Mr. Burnett maintains that although the chancellor did not expressly tie his decision to equitable defenses, his findings and comments at the hearing indicate Mr. Burnett was entitled to equitable relief from the stringency of the statutes. The chancellor did note Mr. Burnett’s “good faith effort to determine the amount of support that the Arkansas Child Support Chart would require a person to pay at the plaintiffs income level.” The chancellor also stated that he did not think that it was fair to require someone to pay $ 140.00 a week for support when he may not be making but $140.00 a week and “this is a court of equity.” However, we are unable to reconcile the latter comment with the record. Mr. Burnett was working three jobs- as radio operator for the Yell County Sheriff his take home was $ 140; as court bailiff he earned $5.00 an hour, averaging $40 to $50 per week, and earned around $ 10.00 per game as an umpire at baseball games- totalling approximately $253 per week take home pay.

We agree that Mr. Burnett acted responsibly in some respects, but we are not persuaded that the clear imperative of our statutes can be overridden by the expediency of an ex parte reduction in child support even though the substituted amount is in accordance with the chart. By that action Mr. Burnett made himself the sole determiner of the amount of child support. We believe both the letter and the spirit of the statutes are aimed at removing unilateral alteration of child support by a noncustodial parent by directing that the amount fixed by the court should prevail until one parent moves to change it.

The statutes specifically provide that any decree which contains a provision for the payment of child support shall be a final judgment until either party moves to modify the order. In this case, Mr. Burnett did not file his petition to reduce support until over a year after the decree was entered. Therefore, until the motion to modify the judgment was filed, the unpaid support accrued as originally ordered.

It is also persuasive that federal statutes indicate that such orders are judgments by operation of law, with the full force, effect, and attributes of a judgment, including the ability to be enforced. In addition to Sullivan v. Edens, supra, other cases provide persuasive precedents. For example, in Cunningham v. Cunningham, 291 Ark. 377, 761 S.W.2d 941 (1988), we held that a delay of eleven years by the appellant in pursuing a judgment would not defeat her right to the accrued child support.

In summary, Ark. Code Ann. §§ 9-12-314 and 9-14-234 specifically provide that a decree shall be a final judgment until either party files a motion to modify such decree. Because the actions of Mrs. Burnett do not justify the application of estoppel to prevent the collection of past due child support payments, the chancellor erred in failing to order the entry of a judgment in the accrued amount.

While this appeal was pending, Mr. Burnett moved to dismiss because Mrs. Burnett designated only a partial record and her notice of appeal was not accompanied by a statement of points on which she intended to rely, as required by Ark. R. App. P. 3(g). Mrs. Burnett’s designation omitted the petition to reduce child support and two exhibits introduced by Mr. Burnett consisting of a schedule of employment changes and canceled checks for child support paid to Mrs. Burnett.

We find no reason to dismiss the appeal, as the materials omitted were not essential to an understanding of the issues on review. There is no disagreement as to the amount Mr. Burnett had actually paid and, hence, the exhibits were unnecessary. The fact that he petitioned in May 1992, to reduce child support is certainly pertinent, but the difference in the amount due under the decree as of that date is not controverted. We believe Rule 3(g) was substantially complied with.

For the reasons stated, the order is reversed and the case is remanded to the chancellor for the entry of an order incorporating a judgment to Mrs. Burnett in the amount of $2,297. A fee of $350 is awarded to counsel for appellant for services rendered in connection with this appeal.

Reversed and remanded.


author: David Newbern, Justice.

text:
    MOUNT OLIVE WATER ASSOCIATION v. CITY OF FAYETTEVILLE
    93-162
    856 S.W.2d 864
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Murry Law Firm, by: Kevin C. Murry, for appellant.

      La Gayle D. McCarty, Asst. City Att’y, for appellee.
   David Newbern, Justice.

This is an appeal from a summary judgment awarded in favor of the appellee, the City of Fayetteville (City), against the appellant, the Mount Olive Water Association (Association). The City provides water to the Association by contract entered February 2,1981. The contract term is 20 years with the price to be set by the City from time to time.

On November 20, 1990, the City passed an ordinance establishing current water rates at an amount higher than those being paid. The Association refused to pay the higher rate. The City sued for damages amounting to the difference between the higher rate and the amount paid by the Association. A declaratory judgment was also sought to the effect that the Association is liable for payment for future water service in accordance with the prices set out in the ordinance. The City moved for summary judgment which was granted for damages of $139,833.33 and included a declaration that the 1990 ordinance rates were valid.

The Association argues that summary judgment was improper (1) because the Court was required to regard as true assertions in the affidavit of Jerry Paschal, Manager of the Association, that the rates charged are unreasonable and disproportionate to the cost of delivery, (2) because there was no evidence presented by the City to support the Court’s conclusion that the rates were reasonable, and (3) because the City failed to comply with discovery. We affirm the decision because there remained no genuine issue of material fact to be decided by the Court. Ark. R. Civ. P. 56(c).

1. Summary judgment and reasonable rates

The burden of showing that there is no remaining genuine issue of material fact and entitlement to judgment as a matter of law is upon the summary judgment movant, and all proof submitted must be viewed most favorably to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Arle. 41, 841 S.W.2d 609 (1992). Once the movant makes a prima facie showing of entitlement, however, the respondent must meet proof with proof to show a remaining genuine issue as to a material fact. Anderson v. First Nat’l Bank, 304 Ark. 164, 166, 801 S.W.2d 273, 274 (1990). An affidavit stating only conclusions is not sufficient. Miskimins v. The City Nat’l Bank, 248 Ark. 1195, 456 S.W.2d 673 (1970). The response and supporting material must set forth specific facts showing that there is a genuine issue for trial. Id. at 1205, 456 S.W.2d at 679.

The resolution of this case requires some consideration of the obligations imposed upon each of these parties. The contract provides in relevant part:

B. The Buyer Agrees:

1.....Buyer shall purchase water from the City and not from some other source.
2. To pay the City not later than the due date given on the bill for water delivered in the preceding reading period, in accordance with the rates as established by the City from time to time that may hereinafter be established by the City from time to time. The rates for water and meter service charges presently in effect are illustrated by the attached schedule, marked Exhibit “B”, but it is understood and agreed that the City is in no way bound by said schedule, and that the City in its sole discretion has the right to increase or decrease the rates and charges shown therefor, at any time, for the Buyer as for outside City users.

The rates set by the original schedule mentioned in the contract put water rates at $.765 per 1000 gallons and $35.00 per month meter charge. The rates set in the 1990 ordinance set prices effective 8-1-90 at $1.67, effective 1-1-91 at $2.00, effective 1-1-92 at $2.29, effective 1-1-93 at $2.49 and effective 1-1-94 at $2.40 per 1000 gallons.

In support of its motion for summary judgment the City asserted that by virtue of Ark. Code Ann. § 14-234-110 (1987) it is permitted to extend water services at such rates as the legislative body may deem just and reasonable and that such rates were established by enactment of Ordinance #3519. The statute provides:

14-234-110. Waterworks operated in governmental capacity — Services to nonresident consumers.
(a) A municipality owning a waterworks system shall operate its entire system in a governmental and not proprietary capacity.
(b) (1) The municipality shall have the option of extending its services to any consumer outside the municipal boundaries, but it shall not be obligated to do so.
(2) No municipality shall be obligated to supply any fixed amount of water or water pressure to nonresident consumers, nor shall a municipality be obligated to increase the number or size of, or change the location of, any mains or pipes outside its boundaries.
(3) Water may be supplied to nonresident consumers at such rates as the legislative body of the municipality may deem just and reasonable, and the rates need not be the same as the rates charged residents of the municipality.

The responses to interrogatories show that the City is charged $1.01 per 1,000 gallons and provides water to four nonresident wholesale water customers including the Association. Three of the other nonresident customers paid the same rate as the Association, $2.00 per 1000 gallons, as of January 1991. The responses further explain that the fourth of these customers pays less because it installed additional storage facilities which reduced its maximum day demand usage. The reduced demand factor rate was offered by the City to all other wholesale customers, including the Association, but each failed to construct adequate storage facilities.

The responses also indicate that the rates charged pursuant to the ordinance are based on recommendations found in the Report on Revenue Requirements, Cost of Service, and Rates for Water and Sewer Services for Fayetteville, Arkansas prepared by Black and Veatch/Engineers-Architects of Kansas City. The recommendations include a charge for a rate of return equal to 9.8 % based on the utility basis method of computing revenue requirements set out in Water Rates, American Water Works Association M-l, 3rd Ed.. The method of computation, the report from which the recommendations were taken and the treatise from which the these recommendations arose were provided to the Association in response to requests for production of documents.

In resisting summary judgment the Association submitted the affidavit of Jerry Paschal which, as abstracted, provides:

The City of Fayetteville provides water to Mount Olive Water Association for distribution to retail customers of Mount Olive Water Association. The City of Fayetteville only transports the water and it does not bear any responsibility or costs of distributing water to the retail customers of Mount Olive Water Association. Mount Olive Water Association, pursuant to the terms of the contract, paid all of the costs involved in the construction of the water line by which the City provides water to Mount Olive Water Association. Ark. Code Ann. § 14-234-110(b)(3) states that: “Water may be supplied to nonresident consumers at such rates as the legislative body of the municipality may deem just and reasonable”. However, the rate the City of Fayetteville charges per 1000 gallons of wholesale water is not just or reasonable because it is not only disproportionate to the cost of transporting that water to Mount Olive Water Association, but that rate is also significantly greater than the wholesale rate charged by other municipalities in Northwest Arkansas.

The Association had requested that the City provide information concerning water rates charged by other cities in the region but the City responded that it had no accurate knowledge of such rates. The record is silent concerning the rates charged by any other city in the region.

The pivotal question here becomes whether the assertions of Paschal that the “rate the City of Fayetteville charges per 1000 gallons of wholesale water is not just or reasonable because it is not only disproportionate to the cost of transporting that water . . . but is also significantly greater than the wholesale rate charged by other municipalities in Northwest Arkansas” are, if taken as true, sufficient to raise an issue of material fact with respect to the “reasonableness” of the rates.

We have stated no hard and fast rule regarding what constitutes a reasonable rate or the variables properly employed by which a municipality may charge in these situations. Reasonableness of rates must therefore be dictated by the facts of each situation and the definition of “reasonable” established by the common meaning of the term.

Webster’s Third New International Dictionary (Unabridged) (1968) gives several definitions of “reasonable” including “not conflicting with reason: not absurd: not ridiculous... 6. being or remaining within the bounds of reason.” “Reasoned” is defined as “1. based on or marked by reasoning . . . 2. provided with or marked by the detailed listing or mention of reasons.” In this instance the rates are “reasoned” as that term is defined above, and there is nothing provided which shows that the charges are “unreasonable” by virtue of being absurd or ridiculous. The evidence presented by the City showed the rates were based upon “reason” and were “reasonable” in accordance with the dictionary definitions quoted.

The mere assertion that the rate charged is higher than the cost of delivery and higher than that charged by other cities is not enough to raise any issue on the question of “reasonableness” because the information provided by the City details the basis or reasons for the charges. The assertions in the affidavit do not challenge or call into question any of these reasons. We conclude the City made a prima facie showing that there were reasons for establishing the challenged rates.

As the City met its initial burden, the Association was obliged to meet proof with proof and provide some showing that the reasons advanced were not justified or sufficient or somehow resulted in discrimination. As shown in Lubin v. Crittenden Hosp. Ass’n, 295 Ark. 429, 748 S.W.2d 663 (1988), something more than conclusory assertions or denials are required. We said in the Lubin case:

In the argument section of his brief the appellant does not favor us with the specific reason he contends the trial court erred in ruling that the appellees were entitled to a summary judgment on the count involving the alleged conspiracy. He only gives us general conclusions.
The complaint on the point, as abstracted by appellant is as follows:
Appellant, Milton Lubin, filed his Complaint at Law (T. 01-09) alleging the following: A. Civil conspiracy between Appellee to injure his professional reputation and damage to his medical practice by misuse of hospital By-Laws and disciplinary procedure to attempt to discipline him.
The appellees denied this allegation in their answer. In appellant’s deposition, which was attached to appellees’ motion for summary judgment as a supporting document, the appellant admitted that he had no evidence of conspiracy against eight of the board members. In affidavits also attached to the motion as a supporting document, five of the appellees state that they did not conspire with anyone to harm the appellant. In his counter-affidavit, the appellant did not go forward and meet the above proof with proof of his own. Instead, he again denied the allegations and termed them conclusory. He further affirmed “that his investigation had now revealed evidence which confirms his allegations of conspiracy,” but he did not state what his investigation consisted of, what new proof he had, or what the conspiracy was. Our summary judgment rule requires that an affidavit in response to a motion for summary judgment be made on personal knowledge and set forth specific facts showing there is a genuine issue for trial. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). Here, there was no positive statement based upon personal knowledge to show that the appellees attempted to do an unlawful act, or achieve some unlawful purpose through a series of lawful acts.

The City argued that the statute permits it to charge nonresident customers at a reasonable rate which may be greater than that charged to residents and the contract permits it to change the rates at its discretion. The Trial Court agreed there is no contractual or statutory barrier prohibiting the City from charging a rate greater than the bare cost of transporting the water. We concur that neither the contract nor the statute creates such a barrier. The only barrier is the reasonableness standard which we find to have been met in this case.

In Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287 (1957), interpretation of the statutory provisions now codified as § 14-234-110 resulted in our concluding that the rates charged by a municipal waterworks are indeed subject to judicial review, and we defined the outer limits of reasonableness for rate making. We said:

Neither the statute nor the ordinance is void on its face, as the appellees contend. Granted that the rates charged by a municipally owned public utility must be reasonable and free from arbitrary discrimination, it does not follow that the exaction of an increased charge for services supplied beyond the city limits is prima facie invalid.
* * *
In holding that the ordinance before us is ostensibly valid we do not imply that there is no limit to the rates that a city may impose upon its nonresident patrons. Although that view prevails in South Carolina, [citation omitted], as a general rule it is held that the municipality’s charges must be “fair, reasonable, and just, uniform and nondiscriminatory.” [citations omitted]. . . . Needless to say, the reasonableness of the rates fixed by the city council is a matter open to judicial review. North Little Rock v. Rose, 136 Ark. 298, 206 S.W. 449; Camden Gas Corp. v. Camden, 184 Ark. 34, 41 S.W.2d 979.
The burden of proving the city’s rate schedule to be arbitrary and unreasonable rested upon the plaintiffs, for the ordinance is entitled to the presumption of validity that legislative enactments ordinarily receive. Camden Gas Corp. v. Camden, supra.

In the Delony case, the plaintiffs contended the variation between urban and suburban rates was unauthorized as a matter of law, but no testimony was offered to show that the difference is unjustified as a matter of fact. The City of Little Rock adduced testimony that sustained the higher charges imposed upon nonresident consumers. We said “on the undisputed evidence we must conclude that the appellees failed to meet the burden of proving the new rate schedule to be unreasonable and arbitrary”.

While we are dealing with a summary judgment motion in this instance, and it is true that the initial burden of showing reasonableness fell upon the City, we find ample evidence in support of the rates charged in the pleadings and discovery documents as set out above to establish this initial showing. The City made its prima facie case that there is a rational basis for the difference in the rates charged and both the statute and the contract permit charging different rates. Having made its showing in this situation the burden of showing that the rates are “unreasonable” fell upon the Association, and it was required to come forward with some evidence that there were indeed differing rates being charged similar customers by other municipalities and that that comparison or the comparison between the cost of delivery and the rate being charged somehow rendered the challenged rates “unreasonable.” We find no allusion to facts or evidence to sustain this burden and affirm the entry of summary judgment.

2. Discovery violation

The Association argues that the City failed to respond completely to its interrogatory requests and that it was error for the Court to grant summary judgment in the absence of these responses. No argument concerning the discovery was presented to the Trial Court, and we decline to address an issue not raised there. Union Nat’l Bank v. Barnhart, 308 Ark. 190, 823 S.W.2d 878 (1992). The failure, of which the Association’s brief here accuses the City, to show all rates since 1981 for all users, is irrelevant to the question of uniformity under the 1990 ordinance as the discovery information shows that all the nonresident customers are paying at the same rate or provides an explanation for varying rates.

Affirmed.


author: Donald L. Corbin, Justice. Jack Holt, Jr., Chief Justice,

text:
    STATE of Arkansas v. Leotis MOSLEY
    CR 93-222
    856 S.W.2d 623
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993

      Winston Bryant, Att’y Gen., by: Clementine Infante, Asst. Att’y Gen., for appellee.

      Robert P. Remet, for appellee.
   Donald L. Corbin, Justice.

Appellee was charged with being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103 (Supp. 1991), possession of beer in a dry city in violation of Ark. Code Ann. § 3-3-307 (1987), and possession of marijuana in violation of Ark. Code Ann. § 5-64-401 (Supp. 1991). Appellee filed a motion to suppress seized evidence alleging no probable cause existed for the issuance of the search warrant. After a hearing on the matter, the trial court determined the search warrant was overbroad in including appellee’s vehicle and person without any indication evidence might be found in those places. The trial court also determined the statements concerning the reliability of the confidential informant (C.I.) were insufficient and conclusory. Therefore, the trial court suppressed all items seized pursuant to the search warrant. The State of Arkansas filed this interlocutory appeal from the trial court’s decision. On appeal, the state first contends the trial court erred when it determined the affidavit was insufficient to establish probable cause. The state next contends that even if the affidavit was insufficient, the officers relied on the warrant in good faith and, therefore, we should reverse the trial judge on the basis of United States v. Leon, 468 U.S. 897 (1984).

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, and we reverse only if the ruling is clearly against the preponderance of the evidence. Illinois v. Gates, 462 U.S. 213 (1983); State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991). We view the evidence in the light most favorable to the appellee. State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990). Under the totality-of-the-circumstances analysis,

[t]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for . . . concluding]” that probable cause existed.

Rainwater v. State, 302 Ark. 492, 494, 791 S.W.2d 688, 689 (1990).

The affidavit for the search warrant provided as follows:

The undersigned being duly sworn deposes and says: That he has reason to beleive [sic] that on the person in the vehicle and/or on the premises known as
Leotis Mosley
510 Watts St.
Warren, Arkansas 71617 [Directions omitted.]
located in the City of Warren, County of Bradley, State of Arkansas, there is now being concealed certain property, or persons, namely: cocaine, crack, marijuana and any other controlled substances, records, money, firearms, drug paraphanalia and fugitive felon Eric Durrell Stewart
which is being concealed and possessed in violation of Ark. State Law
and that the facts tending to establish the foregoing grounds for the issuance of a Search Warrant are as follows: C.I. states at the above listed residence he has seen crack cocaine, belonging to Leotis Mosley, and Eric Durrell Stewart. C.I. says that he has seen the drugs & Stewart inside the residence within the past 4 hours. This officer has known this C.I. for the past 8 yrs. This officer has received reliable information in the past from this C.I. This officer has always found this C.I. to be truthful in the past. [Portions inserted by affiant in italics.]

The search warrant was issued by Judge Robert Garner. No record was made of any information in addition to the affidavit which may have been presented to the issuing magistrate. Therefore, only the affidavit may be considered to determine whether probable cause existed to issue the warrant. State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Ark. R. Crim. P. 13.1(b).

In granting the motion to suppress, the trial court said:

[E] ven mindful of Leon, the Leon rule, this Court has been the vehicle, this Judge has been the vehicle through whom Sergeant Goffin has gotten several search warrants in the past.
The Court agrees here that there’s merit to the motion to suppress and is going to grant it.
First of all, I guess it’s an overused phrase, so much of it is boilerplate. And as Mr. Bunch artfully points out, you can change the name and the location of the house and it fits so many other situations. But, then, it’s a normal type situation.
The problem here is that the Court — The Court has these particular problems: It does appear to be overbroad based on the record; that is, person and vehicle when there’s nothing in the record to show any probable cause to search a person or a vehicle.
Also there are basically just two conclusory statements about the reliability of the Cl, and the Court really feels that more can be done on that. Quite frankly, the Court feels this same Cl, although not knowing who it is, but just what I listened to here, that it was not on the record and there’s no record that it was presented to the other issuing magistrate, is the same Cl that the same officer has used on at least four or five other occasions within the last year to obtain search warrants from this Judge.
I’m not aware to those search warrants or the affidavits or the applications having been successfully attacked. And I think the reason is there was a way to do it. And the information that was given at that time, while it may not all be on the affidavit, is certainly all on the tape that was made of the officer’s sworn testimony to the Judge at that time.
But, here, the Court reluctantly concludes that this effort falls short on the record of what was presented to the issuing magistrate on July 14. Now, that’s all we can go on. It cannot be buttressed nor bolstered later on in a suppression hearing.
So the Court rules that the motion has merit and will suppress the warrant, the search and any evidence seized as a result of it.

The state only presents argument as to the trial judge’s ruling that the evidence seized on the premises should be reversed. Thus, the trial judge’s rulings as to the suppression of evidence which may have been found in appellee’s vehicle or on his person are not challenged and remain in effect. As to the trial judge’s determination that evidence seized on the premises should be suppressed because the statements regarding the reliability of the of the C.I. were insufficient, the state contends the affidavit establishes the basis of the C.I.’s information and sufficiently sets out the reliability of the C.I. under the “totality of the circumstances test.” We agree.

Ark. R. Crim. P. 13.1 (b) was amended by Per Curiam issued February 5,1990, and effective March 1,1990, to reflect language consistent with the Gates decision and the “totality of the circumstances test” developed therein. In the Matter of the Committee on Rules of Pleading, Practice, and Procedure-Criminal, 301 Ark. 635, 783 S.W.2d 840 (1990). As amended, Ark. R. Crim. P. 13.1(b) provides:

The application for a search warrant shall describe with particularity the persons or places to be searched and the persons or things to be seized, and shall be supported by one (1) or more affidavits or recorded testimony under oath before a judicial officer particularly setting forth the facts and circumstances tending to show that such persons or things are in the places, or the things are in possession of the person, to be searched. If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained. An affidavit or testimony is sufficient if it describes circumstances establishing reasonable cause to believe that things subject to seizure will be found in a particular place. Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied, if the affidavit or testimony viewed, as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

(Emphasis added.) There is no substantive distinction between the terms “reasonable cause” and “probable cause.” Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989).

Under Ark. R. Crim. P. 13.1 (b) as amended, it is not fatal if the affidavit fails to establish the veracity of the C.I. if the affidavit viewed as a whole provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place. The affidavit, viewed as a whole, establishes that drugs (crack cocaine) and a fugitive felon (Eric Durrell Stewart) were seen inside the residence of appellee within the past four hours. This is sufficient to establish probable cause to issue a search warrant for the premises. Additionally the affidavit did establish the veracity of the C.I. to some extent. The affidavit provided the affiant had known the C.I. for eight years, had obtained reliable information from the C.I. in the past, and had always known the C.I. to be truthful. Therefore, the trial judge incorrectly determined the evidence seized from the premises as a result of the search should be suppressed.

We reverse and remand for further proceedings consistent with this opinion.

Holt, C.J., dissents.

Jack Holt, Jr., Chief Justice,

dissenting. I respectfully dissent to the majority’s holding that the trial court’s ruling to suppress seized evidence was clearly against the preponderance of the evidence.

In granting the motion to suppress, the trial court describes the affidavit for a search warrant as “boilerplate,” and “over-broad,” which it is, and noted in particular “that there are basically just two conclusory statements about the reliability of the C.I.” and that “the Court really feels that more can be done on that.” It is obvious that the court’s remarks were directed toward the fact that the affiant did not set forth any particular facts as to the informant’s reliability. Ark. R. Crim. P. 13.1(b) provides in pertinent part: “If an affidavit or testimony is based in whole or part on hearsay, the affiant or witness shall set forth particular facts on . . .” (Emphasis added.) The record is devoid of any statement or proof in this regard.

To overcome this requirement, the majority relies on the additional language contained in Rule 13.1(b) which states:

Failure of the affidavit or testimony to establish the veracity and bases of knowledge of persons providing information to affiant shall not require that the application be denied, if the affidavit or testimony viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

Based on my examination of both the “boilerplate” and written portion of the affidavit for a search warrant, I cannot accept the fact that this document provides a substantial basis for. the finding of reasonable cause to issue the warrant in question. Even though we make an independent determination of the correctness of the trial court’s ruling based on the totality of the circumstances, we can only reverse the trial court if viewing the evidence in the light most favorable to appellee, State v. Villines, 304 Ark. 128, 801 S.W.2d 29 (1990), we determine the ruling is clearly against the preponderance of the evidence. Illinois v. Gates, 462 U.S. 213 (1983).

I not only join the trial court’s concern over the use of a boilerplate form of affidavit with nothing more than conclusory statements about the reliability of the confidential informant -1 am especially troubled in my examination of the record as I find that all of the written insertions on both the affidavit for a search warrant and the warrant itself seem to have been written by the same person. This strongly suggests that the search warrant was based not upon the judicial officer’s findings as required by Rule 13.1, but rather upon the findings of the party seeking the warrant.

As mentioned in the majority opinion, no record was made of any information which may have been presented to the issuing magistrate. At most, we have for our consideration an affidavit for a search warrant and the warrant itself which is attached to this opinion.

In viewing the evidence in the light most favorable to the appellee, as we must do, I can only reiterate that I do not think the ruling of the trial court was clearly against a preponderance of the evidence before him.

I would affirm.


author: Robert L. Brown, Justice.

text:
    Anthony TUCKER v. STATE of Arkansas
    CR 92-1044
    855 S.W.2d 948
    Supreme Court of Arkansas
    Opinion delivered June 28, 1993
    [Rehearing denied September 13, 1993.]

      Wilson & Associates, by: J. L. Wilson, for appellant.

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

The appellant, Anthony Tucker, a juvenile at the time of the crimes, appeals from convictions for aggravated robbery and kidnapping and sentences of forty years for each offense, to run concurrently. He raises specifically the failure to comply with Batson v. Kentucky, 476 U.S. 79 (1986) in jury selection, deficiencies in the juvenile transfer procedure and decision, an involuntary statement given to a police officer, and ineffective counsel. We conclude that there is no merit to any of these arguments, and we affirm.

On the morning of January 10,1991, Tucker, age 14, forced his way into the home of Katie Dillard in Brinkley at knife point. Dillard, at the time, was 58 years old. Tucker forced her to drive him to her bank in her car and withdraw the balance in her checking account, about $200.00. Afterwards, Tucker drove Dillard’s car to a lake near a wooded area. Once at the lake, he dragged Dillard out of her car and threw her into the water and tried, unsuccessfully, to drown her. Failing in that attempt, he forced her into the trunk of her car and drove around in the car for a period of time. He picked up at least two of his friends and showed Dillard, who was still in the trunk, to them.

Tucker abandoned the car later in the day. The car was found by three men who rescued Dillard and took her to the Brinkley police station, where she identified the appellant from a school yearbook as her abductor. Tucker was arrested at his uncle’s house that evening. His mother asked specifically that he not be questioned until she could be present or could arrange for an attorney. The appellant was placed in a holding cell at the police station. According to Officer Connie Wilhite of the Brinkley City Police Department, Tucker asked the police officer to stay with him. The appellant later, according to police officers, was advised of his rights, and he gave an oral statement in which he confessed to the entire crime to Brinkley Police Officer Mark Hamner. Tucker contests that he gave any statement voluntarily.

Tucker was charged with aggravated robbery, attempted murder, and kidnapping. He then filed a motion to transfer the matter to juvenile court. A hearing was held, where testimony from witnesses was taken. Following the hearing, the court denied the motion. Tucker next filed a motion to suppress the statement which he made to Officer Hamner on the basis that he was a minor without counsel or an adult present when he made the statement. No ruling was obtained on the motion.

On February 18,1992, the appellant was tried before a jury comprised of the following racial composition: six blacks, five whites, and one oriental. During the jury selection process, the appellant made a challenge under Batson v. Kentucky, supra, to the State’s peremptory challenges to remove two black jurors, Early Mae Starr and Shirley Jones. The state contended that it had a racially neutral reason for striking these two jurors, and the circuit court agreed. The appellant then made another Batson challenge to the state’s peremptory challenge of Eric Thompson, a black male. The State gave two reasons for striking Thompson: first, he appeared to have trouble understanding the proceedings, and, secondly, he expressed doubts about whether he could sentence Tucker to the Arkansas penitentiary. The court ruled that the reasoning was racially neutral and excused Thompson. A fourth challenge to a juror, Mr. Allen, was made under Batson and that, too, was denied.

The jury found the appellant guilty of all three charges and sentenced him to 30 years for attempted murder, 40 years for kidnapping, and 40 years for aggravated robbery, to run concurrently.

Tucker filed two motions for a new trial. In the second motion, he claimed ineffective assistance of counsel at trial and the circuit court’s lack of jurisdiction to hear an attempted murder charge against a fourteen-year-old. A hearing was conducted, following which the circuit court vacated the attempted murder conviction and thirty-year sentence. The court denied the motion with regard to ineffective counsel.

I. BATSON CHALLENGE

Tucker first contends that the circuit court erred in excusing Eric Thompson, a black man, because the state’s peremptory strike was racially motivated. Race was a factor in the trial, according to Tucker, because he is black and the victim, Dillard, is white.

In support of his position, the appellant points to the fact that Thompson was a member of a cognizable racial group. According to Tucker, the state vacillated when giving its reason for striking Thompson. At first, the prosecutor said that Thompson had difficulty understanding the proceedings. Later, the prosecutor gave two reasons for challenging Thompson: he had difficulty understanding the proceedings, and he expressed doubts that he would be able to send Tucker to prison, if the appellant were found guilty. The appellant further argues that though black women were seated on the jury, Thompson was challenged as a black male. He also contends that when the prosecutor argued that Thompson would have difficulty putting “them” in jail, this was a racial comment on the part of the prosecutor. Finally, Tucker alluded to a history of racial discrimination in Monroe County.

We first take note of the fact that the voir dire of juror Thompson was not included in the record; only the succeeding discussion on the Batson objection was. As part of that discussion, the attorneys and the circuit court reconstructed what occurred during voir dire. This court, nevertheless, is at somewhat of a disadvantage not having at our disposal the precise questions and answers pertaining to this juror.

We next observe that at the time the state challenged Thompson the racial composition of the jury was four blacks, five whites, and one oriental. The record shows that Batson motions were made regarding two previous jurors and denied. Tucker, however, does not argue that the previous strikes form a pattern of racial discrimination or comprise part of a prima facie case of purposeful discrimination. In considering the various arguments he does advance, we are unable to conclude under these facts that Tucker raised a prima facie case of racial discrimination in connection with the challenge to Thompson.

We have considered the Batson decision several times in recent years. See Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993); Watson v. State, 308 Ark. 444, 825 S.W.2d 569 (1992); Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991); Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990). In doing so, we have addressed what procedures are appropriate for a Batson determination, recognizing that the United States Supreme Court specifically declined to formulate procedures in the Batson decision for purposes of implementing it.

In Batson, the Supreme Court held that when a defendant makes a prima facie case of purposeful racial discrimination in juror challenges, this shifts the burden of proof to the state to prove that the exclusion of jurors is not based on race. The state must then give a neutral explanation of the juror strikes. If the state fails in this, a sensitive inquiry in the nature of a more comprehensive hearing must follow. In Colbert v. State, supra, we outlined the procedure further:

We now believe that our previous interpretations of the Batson holding were misdirected only to the extent that we have said that Batson requires a “sensitive inquiry” by the trial court in every instance, notwithstanding the validity of the state’s explanation for its peremptory challenges.
We now hold that upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state’s explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.
The standard of review for reversal of the trial court’s evaluation of the sufficiency of the explanation must test whether the court’s findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant’s objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.

304 Ark. at 254-255, 801 S.W.2d at 646. We endorsed the Colbert reasoning most recently in Hollamon v. State, supra.

In the case before us, the circuit court requested that the prosecutor explain the challenge to Thompson. The prosecutor objected to this since he did not believe that Tucker had made a prima facie case of purposeful discrimination. Following his objection, the prosecution did give his explanation. We agree with the prosecutor that this was not necessary. Under these circumstances, there was no inference of purposeful discrimination that could be made and, hence, no prima facie case which required a neutral explanation.

At the time of the challenge to Thompson, four blacks were seated on the jury. Though, again, we are hampered without the record of the voir dire proceedings before us, the subsequent discussion among the court and counsel presents no basis upon which an inference of racial prejudice could be made. The mere fact that a black juror has been struck is not enough in the face of a jury already comprised of four black members to shift the burden to the state to come forward with a neutral explanation. Nor can any meaningful weight be given to the prosecutor’s use of the pronoun “them” in discussing the prospective juror’s reluctance to sentence members of his own race to prison. And, finally, no reason or authority has been advanced to extent Batson to gender challenges within a racially cognizable group. We can divine no reason for doing so in this case.

In sum, we affirm the circuit court in finding no violation of Batson v. Kentucky. Under these circumstances, however, we are of the opinion that the state was not required to present a neutral explanation and that a prima facie case of purposeful racial discrimination had not been made.

II. JUVENILE TRANSFERS

Tucker next argues that the hearing on his motion to transfer this matter to juvenile court did not meet the due process standards required by Ark. Code Ann. § 9-27-318 (Supp. 1991).

Tucker, however, failed to include a transcript of the juvenile transfer hearing in the record. Thus, we are at a loss to determine what precisely transpired at the hearing. Without a transcript of the hearing, we must assume that the court ruled correctly based on the arguments and testimony presented. See Woosley v. Arkansas Real Estate Comm’n, 263 Ark. 348, 565 S.W.2d 22 (1978); Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

We can glean from the circuit court’s order denying the transfer that a hearing was held and testimony taken. Moreover, it is evidence that the court clearly did consider the seriousness of the crimes charged which involved violence. We have held that it is not necessary for the court to give equal weight to each of the factors in § 9-27-318(e). Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh ’g denied 304 Ark. 402A, 805 S.W.2d 80 (1991). We have also held that the information alone is sufficient evidence of the serious and violent nature of the crime to support an order denying the motion to transfer. Id.

There was no error by the circuit court in disallowing the transfer. We affirm the court on this point.

III. VOLUNTARY STATEMENT

Tucker next urges that the circuit court erred in admitting his statement because the facts reveal that it was not given voluntarily. It is not necessary for us to address this issue. The record reflects no ruling from the circuit court on Tucker’s motion to suppress the statement. In addition, when the statement was relayed to the jury by Officer Hamner, there was no objection by counsel. The issue, therefore, is not preserved for our review. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993) (supplemental opinion); Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).

IV. INEFFECTIVE COUNSEL

For his final point, Tucker argues that he was entitled to a new trial because his trial counsel was ineffective.

The current Rule 37 of the Arkansas Rules of Criminal Procedure became effective January 1, 1991, and provides the procedure for collateral attacks on judgments of conviction. The crimes at issue occurred after the effective date of our current Rule 37. Rule 37 sets forth the procedure to be followed to collaterally attack a judgment of conviction based on ineffective counsel. We have held that we will not consider collateral attacks on a judgment of conviction, including ineffective counsel, as part of the direct appeal. See, e.g., Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1993); Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983). This point, accordingly, is not properly before us.

Affirmed.

       The final racial makeup of the jury was six blacks, five whites, and one oriental.