author: Dale Price, Justice. Steele Hays, Justice, Tom Glaze Justice,

text:
    Kenneth Ray CLEMENTS v. STATE of Arkansas
    CR 89-214
    796 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      Watson Villines and Pamela Osment, for appellant.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

On November 7,1988, Conway Police Officer Ray Noblitt was shot and killed in the line of duty. The appellant was arrested for the crime and tried before a Faulkner County jury. The jury convicted him of capital murder and sentenced him to death by lethal injection. The appellant now seeks a reversal of his conviction. We find that the appellant was entitled to a mistrial because the prosecutor failed to provide the appellant, in a timely fashion, with the grand jury testimony of one of the state’s witnesses. Therefore, we reverse and remand. To assist in the understanding of our decision, we set out the facts in detail.

The primary witness against the appellant was his wife, Denise Clements. According to Mrs. Clements, she and the appellant left home on the evening of November 7,1988, with the intention of stealing a tractor and a trailer. They drove to a piece of property in Conway known as the old Dean Milk lot, which was used by the Loveless Tractor Company to store farm equipment. They had just hitched a trailer to the back of their truck when they were happened upon by Officer Noblitt. Mrs. Clements warned her husband of the officer’s presence, then climbed into the back of the truck. From there, she heard the appellant say, “Don’t make me shoot you,” or “Don’t make me kill you.” She then heard four to six gunshots. The appellant jumped into the truck and sped away from the scene. He stopped a few blocks away, unhitched the trailer and then drove on. He dropped Mrs. Clements off at their home and drove away, heading for his brother’s house in Quitman. At trial, Mrs. Clements identified a .44 caliber pistol found by police in northern Falkner County as the one used by the appellant to kill Officer Noblitt.

The state also presented the testimony of other witnesses. Julie Nathe, Mrs. Clements’ sister, was staying at the Clements’ residence. She testified that the Clements left the house about 10 p.m. on the night of the murder to look for a trailer. When they returned home later that evening, Mrs. Clements ran into the house to retrieve a pistol and some cigarettes for the appellant, then stayed behind as the appellant drove away. Mrs. Nathe also identified the pistol, which the state contended was used to kill Officer Noblitt, as having belonged to the appellant.

At the scene of the crime, a Conway citizen Jackie McKinley, saw a pickup with a camper leaving the Dean Milk lot immediately after the shooting. Mr. McKinley investigated the scene, discovered Officer Noblitt, and used' the police radio to summon help. The police department broadcast a description of the vehicle. Deputy C. B. Spangler, one of the many officers who were patrolling county roads after the shooting occurred, recognized the description of the vehicle as matching a vehicle owned by the appellant. While driving in the northern part of the county, Deputy Spangler saw the appellant on the side of the road standing outside his truck. The truck had a flat tire. The deputy kept the appellant under surveillance and kept him in sight until he eventually drove on to his brother’s house. The house was kept under surveillance through the night.

The appellant eluded police at this point and was at large for four days. He was finally arrested in Jacksonville, driving a stolen truck, and was charged with capital murder.

Before the appellant was brought to trial, his case became part of a larger criminal investigation conducted by a Faulkner County grand jury. A great deal of testimony was heard by the grand jury concerning the appellant’s possible involvement in the murder of Officer Noblitt. Prior to trial, the appellant filed a discovery motion seeking the substance of any grand jury testimony relevant to his case. See A.R.Cr.P. Rule 17.1(b)(i). The trial court granted this motion on February 10,1989, seven weeks before trial. However, on the morning trial was to begin, the appellant informed the court that he still had not received the grand jury testimony of two witnesses who were scheduled to testify. The prosecutor admitted that he had promised to provide the testimony, but said he had failed to order it from the court reporter. The appellant agreed to proceed with trial upon the prosecutor’s promise that the grand jury testimony would be forthcoming. The prosecutor also assured the appellant that the missing grand jury testimony would not differ from statements which the witnesses had given to the police.

The state proceeded with its case-in-chief, and a Mr. Kenneth Varner was called to testify. Mr. Varner was one of those whose grand jury testimony had not yet been provided to the appellant. At trial, Mr. Varner testified that on the night of the murder, he observed a light-colored pickup which stopped in front of his house. The driver of the truck got out, unhitched a trailer, then drove away, leaving the trailer on the roadside. Mr. Varner positively identified the appellant as the driver of the truck. This in-court identification came as a surprise to the appellant. Mr. Varner’s previous statement to police made no mention of the appellant’s identity. Mr. Varner admitted on cross-examination that the first time he told anyone he could identify the appellant was a little more than a week before trial when he visited the prosecutor’s office. He explained his failure to mention the appellant’s identity to the police by saying that he hadn’t been asked about it.

Two days after the jury heard Mr. Varner’s trial testimony, the appellant received the transcript of Mr. Varner’s grand jury testimony. The transcript revealed that, before the grand jury, Mr. Varner had affirmatively stated that he could not identify the driver of the pickup. When asked if he could tell anything about the person driving the vehicle, he responded, “not really, not as far as seein’ or tellin’ what color or anything like that of a person.” Upon reading this testimony, the appellant asked for a mistrial, or, in the alternative, that the jury be admonished to disregard Mr. Varner’s trial testimony. He argued that the prosecution’s failure to produce Mr. Varner’s grand jury testimony in a timely manner prevented him from effectively impeaching Mr. Varner’s in-court identification of him.

The court denied the mistrial motion but allowed the appellant to recall Mr. Varner as part of his own presentation of evidence. By the time the defense recalled Mr. Varner and confronted him with his grand jury testimony, eight days had passed since his trial testimony had been given. We find the court should have granted a mistrial.

We have said that information requested by a defendant in a discovery motion must be furnished in sufficient time to permit the beneficial use of it. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985). Obviously, that requirement was not met here, but a prosecutorial discovery violation does not automatically result in reversal. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In this case, we must determine first if the appellant waived any violation by accepting the state’s offer to provide the testimony later in the trial. Second, we must determine if the appellant suffered a prejudice so great as to warrant a mistrial.

The appellant’s initial agreement to the delay in providing the grand jury testimony does not, under the particular facts of this case, constitute a waiver. The prosecutor knew that the testimony should have been provided to the appellant prior to trial, and he promised to obtain transcripts of the testimony as soon as possible. Meanwhile, he assured the appellant that the missing grand jury testimony would be consistent with the statements which the witnesses had given to police. In the case of Mr. Varner’s testimony, this was not entirely true. In his statements to the police, Mr. Varner had merely said nothing about the identity of the pickup driver. Before the grand jury, he made an affirmative statement that he could not identify the pickup driver, even as to skin color.

Further, the prosecutor knew or should have known that Mr. Varner was about to give testimony in court that was wholly different than the testimony he had given the grand jury. The prosecutor had participated in the grand jury investigation and was aware of Mr. Varner’s testimony before that body. The prosecutor was also aware, by virtue of Mr. Varner’s office visit, that he would identify the appellant at trial. So, while we certainly hesitate to say the appellant was deceived in any way, we will not hold him to his waiver. The waiver was made with the implied assurance that the grand jury testimony would contain no surprises, when in fact the state knew differently.

Next, we address the mistrial question. We have said that a mistrial is an extreme sanction for a discovery violation and is to be avoided unless the fundamental fairness of the trial itself is at stake. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872 (1987). For reasons we now set out, we find that, under the circumstances of this case, the appellant suffered the type of prejudice which could only have been cured by a mistrial.

The importance of Mr. Varner’s testimony cannot be overstated. In a case based largely on circumstantial evidence, he directly connected the appellant to the crime. In addition, he cast great doubt on the appellant’s defenses, which were: (1) that his wife, Denise, was the guilty party; (2) that others were there and were the guilty parties; and (3) that the state could not place appellant at the crime scene except by the testimony of Denise who, he contended, was an accomplice. These defenses could not hold up once the appellant was identified as the pickup driver. Mr. Varner was an unbiased witness, and was the only witness, other than Mrs. Clements, to place the appellant at the scene of the crime.

The state argues, citing David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988) and Lasley v. State, 21A Ark. 352, 625 S.W.2d 466 (1981), that any prejudice to the appellant was abated since the appellant eventually confronted Mr. Varner with the grand jury testimony. The state is not correct. In David and Lasley, the appellant was provided with the missing statements in time to impeach the witness “on the spot.” Here, the trial jury was unaware for eight days that it had heard a story from Mr. Varner which was totally inconsistent with the one he had told the grand jury.

Neither was the prejudice lessened by the appellant’s use, for impeachment purposes, of Mr. Varner’s statements to the police. As previously mentioned, the grand jury testimony, unlike the statements, contained an affirmative declaration that Mr. Varner could not identify the pickup driver. In addition, the jury might well have accorded more weight to testimony given under oath before a grand jury.

Finally, we note that this case is not like David v. State, supra, in which the appellant neglected his own obligation to investigate. Two weeks before trial, the appellant’s attorneys spoke with Mr. Varner and discovered nothing to indicate he would identify the appellant in court. The combination of all these circumstances leads us to conclude a mistrial should have been granted.

Most of the other issues presented by the appellant may not arise in the same manner upon remand, so we will not address them. However, strictly for the purpose of guiding the trial court, we will address one problem which is likely to recur. Prior to trial, the appellant asked that his wife be declared an accomplice as a matter of law, such that her testimony must be corroborated to sustain his conviction. See Ark. Code Ann. § 16-89-111(e)(1) (1987) . The trial court declined to do so and instead allowed the jury to decide whether or not Mrs. Clements was an accomplice. We agree that the evidence as presented at trial does not conclusively show Mrs. Clements was an accomplice to the murder.

A person may be liable for the conduct of another person if he is an accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402(2) (1987). Mrs. Clements, under the definition contained in Ark. Code Ann. § 5-2-403 (1987), was clearly an accomplice to the theft of the tractor and trailer. But her complicity in the murder is not so obvious. The evidence, as developed to this point, does not show indisputably that Mrs. Clements aided her husband in the commission of the murder. See Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988) . Neither does the evidence show, as a matter of law, that Mrs. Clements should share responsibility for the murder on the theory that the murder was a natural and probable consequence of the theft. See Original Commentary to Ark. Code Ann. § 5-2-403; 2 W. LaFave & A. Scott, Substantive Criminal Law, § 6.8 at 157-58 (1986). Finally we.note that Mrs. Clements cannot be considered an accomplice on the basis that she participated in an offense which was an underlying felony in a capital murder charge. The appellant was not charged with capital murder on the ground that he committed murder in the course of a felony; he was charged on the ground that he allegedly murdered a law enforcement officer. See Ark. Code Ann. § 5-10-101(a)(3) (Supp. 1989). In any event, the crime of theft is not listed in the capital murder statute as an underlying offense which would support a capital murder charge. See Ark. Code Ann. § 5-10-101 (a)(1) (Supp. 1989).

We recognize that, upon retrial, the evidence may differ concerning Mrs. Clements’ level of participation in the crime. We address this point only to aid the trial court in making a decision on the issue, should it arise again.

Reversed and remanded.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. I cannot agree that the appellant has shown prejudicial error from the state’s belated delivery of the Varner statement to the defense. Admittedly Varner’s testimony had some ambivalence as to what he saw and could remember from the night of the murder, but he admitted these discrepancies and although it is alleged the state knowingly misled the defense by representing that his trial testimony would not materially vary from his grand jury testimony, that knowledge has not been demonstrated. In complex cases, as this one is, it is almost inevitable that some oversights occur. An accused is entitled to a fair trial, not a perfect one, and it has not been shown that this appellant received less than that. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990). He was able to effectively show the jury that there were inconsistencies between Kenneth Varner’s trial and grand jury testimony and that should suffice. The direct and circumstantial evidence of the appellant’s guilt is clear and convincing and the judgment should be affirmed.

Glaze, J., joins this dissent.

Tom Glaze Justice,

dissenting. The majority reverses appellant’s jury verdict because it says the prosecutor failed to timely provide appellant with the grand jury testimony of one of the state’s key witnesses, Kenneth Varner. Before the grand jury, Varner had said that he could not really tell anything about the person he saw at the crime scene. However, at trial, Varner directly identified the appellant as the man he saw leaving the scene of the crime.

While a discrepancy existed between Varner’s grand jury and trial court testimony, appellant was fully aware of that discrepancy in Varner’s identification of appellant before trial. In fact, when Varner testified for the state and identified the appellant as the man he saw leaving the crime, appellant’s attorney cross-examined Varner on this very identification issue. In doing so, appellant used a statement Varner had made to the prosecutor only twenty-two days after the crime. Appellant’s attorney had that statement introduced into evidence and it reads as follows:

(T)here was a street light there that made it possible for me to see that there was a trailer behind the pickup truck. I could not see if there was a person behind the truck, but I saw a person get into the driver’s side of the pickup truck, about that time. The truck took off driving fast and reckless, turning south on Gum Street, and went toward Highway 64.

Nowhere is this statement does Varner suggest that he could describe or identify the person he saw get into the truck. The appellant’s attorney did an excellent job bringing out this point during his cross-examination and made Varner admit that the first time he told anyone he could identify the appellant was a little more than a week before trial when he visited the prosecutor’s office. Further, the appellant specifically asked Varner why it was not in his statement that he could identify the person, to which, Varner replied he was not asked.

Again, appellant’s attorney, during the state’s case-in-chief, did an exceptional job in impeaching Varner’s testimony that placed appellant at the crime scene. But that was not the end of it. After given the grand jury testimony during trial, he recalled Varner and cross-examined him once again on the identification discrepancy contained in Varner’s statements. The jury had a full disclosure of the inconsistencies of Varner’s statements about what he was able to see.

This court has said that it will not reverse for errors that do not affect the essential fairness of a trial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). We have also held that a defendant must demonstrate that prejudice resulted from the state’s failure to comply with its discovery obligations. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). Here, appellant never showed prejudice and the majority court’s reversing and sending this case back for another trial is wrong. I would affirm the trial court’s decision.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Terry Wade NICHOLS v. STATE of Arkansas
    RC 90-36
    796 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      J.R. Atkinson, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Terry Wade Nichols, by his attorney, J. F. Atkinson, Jr., has filed a motion for reconsideration of his motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Juan Carlos SANTANA v. STATE of Arkansas
    RC 90-45
    795 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered October 8, 1990

      J.R. Atkinson, Jr., for appellant.
    No objection.
   Per Curiam.

Appellant, Juan Carlos Santana, by his attorney, J. F. Atkinson, Jr., has filed a motion for reconsideration of his motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Michael Lynn BRYANT, et al. v. R. Wayland RUFF, et al.
    90-260
    798 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered October 10, 1990

      Ralph Patterson, for petitioners.

      William R. Bullock, for respondents.
   Per Curiam.

The petitioners seek a writ of mandamus ordering the Conway County Election Commission to place a wet-dry issue, “For or Against” the selling of alcoholic beverages, on the general election ballot for Austin Township. It is contended that the commission has refused to place the issue on the ballot because such an election may be conducted only one time every four years. Ark. Code Ann. § 3-8-208(c) (1987).

It is alleged that the issue was the subject of a special election conducted pursuant to a 1988 order of a federal court, but that that election should not count as one having been conducted within the preceeding four years because it was a special election not contemplated by Arkansas election laws.

Mandamus was sought and denied in the Conway County Circuit Court. The record of that proceeding has been provided with this petition. This is a case where our jurisdiction is in fact appellate though in form original as contemplated by Rules of the Arkansas Supreme Court and Court of Appeals 16(a). The circuit court denied the petition on the ground that an election had been conducted within the the last four years.

We also deny the petition. As we wrote in State v. Craighead County Board of Election Commrs., 300 Ark. 405, 779 S.W.2d 169 (1989):

Mandamus is traditionally regarded as a remedy to be used on all occasions where the law has established no specific remedy, and justice and good government require it. Ex parte Trapnall, 6 Ark. 9 (1845). It is a writ which is used to enforce an established right. Gregg v. Hartwick, 292 Ark. 528, 731 S.W.2d 766 (1987).

The petition in this case raises a question which is not clearly answered in our statutes, and as far as we know, it has not been litigated previously. The right the petitioners seek to assert is not one we may regard as established.

The denial of this petition does not foreclose the petitioners from raising the issue of the interpretation of our election statutes with respect to the question presented here in an action for a declaratory judgment or other proper proceeding in the future.

Petition denied.

Hays and Turner, JJ., not participating.


author: Robert H. Dudley, Justice.

text:
    Tim KINCADE v. STATE of Arkansas
    CR 90-151
    796 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Murrey L. Grider, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was tried by a jury and found guilty of delivery of a controlled substance. The Court of Appeals certified the case to this Court as it involves the Sixth Amendment issue of the right to counsel and the interpretation of one of the Arkansas Rules of Criminal Procedure.

The record does not reveal that appellant was arraigned, nor does it reveal that he was asked to give a statement of his financial worth. Further, it does not reveal that he was advised of his right to counsel. His trial was set for March 29,1988. On that date the court asked appellant if he had an attorney, and appellant responded, “I’ve talked to one. I haven’t retained him yet. I’ve got to pay him before he’s. . . .” The trial court interrupted him at that point and reset the case for August 1, 1988, but instructed him to return to court on May 24 and state whom he had employed as counsel. The appellant did not appear on May 24. On August 1,1988, the date set for trial, the appellant appeared in court without an attorney, stated that he had discussed his case with two attorneys, and twice stated that he could not afford to hire an attorney. The court asked if appellant worked. The appellant responded, “Yes sir, every day.” He added that he had just closed his business because of debt. No inquiry was made into his wages, his assets, his liabilities, or his accessibility to loans. Appellant volunteered that he had a car, and that was the only ' thing he had to sell. He was not asked about the equity, if any, he had in the car.

The court set a new trial date for October 24, 1988, but instructed appellant to return to court on August 31, to report what efforts he had made to hire an attorney and to disclose his financial worth. On August 31, the appellant appeared and reported that he had talked to a third attorney and “through borrowing and this and that and the other I’ve got just about enough and by the end of next week I’ll have his fee paid, so I guess he’ll be representing me.” Appellant was not asked about his income or net worth, accessibility to loans, or other money. The case was set for November 1, but was then reset for February 21, 1989. On February 21, the appellant appeared without counsel and was not questioned further about it. The trial court ordered the trial to proceed with appellant representing himself. The trial court did appoint standby counsel to answer any questions appellant might have.

The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Gibson v. State, 298 Ark. 43, 764 S.W.2d 617 (1989). Before an accused manages his own defense he must knowingly and intelligently waive the right to counsel. Faretta v. California, id.; Gibson v. State, id. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Brewer v. Williams, 430 U.S. 387 (1977); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). The burden is on the government to clearly demonstrate a waiver of counsel. Carnley v. Cochran, 369 U.S. 506 (1962); Philyaw v. State, id. A trial court must inquire of an accused’s ability to retain counsel, and, if the accused is an indigent, counsel must be appointed for him. A.R.Cr.P. Rule 8.2. This provision is to insure compliance with the constitutional mandates. See comment to rule.

As the statement of fact shows, there was no inquiry into the appellant’s ability to retain counsel as required by A.R.Cr.P. Rule 8.2(a), and as recommended by the Bench Book for Arkansas Judges (criminal cases) § 5.10(4). When asked why he did not have an attorney, appellant stated that he could not afford to hire one. At that juncture, the trial court was under a duty to make further inquiry, by whatever means appropriate, into appellant’s financial condition in order to satisfactorily determine whether he could, in fact, hire an attorney. United States v. Cohen, 419 F.2d 1124 (8th Cir. 1969), citing Wood v. United States, 389 U.S. 20 (1967); Philyaw v. State, id. (The cited federal cases rely upon a federal statute comparable to A.R.Cr.P. Rule 8.2.) The trial court did not inquire into his ability to employ an attorney, and forced the appellant to represent himself. “Forcing a criminal defendant to go to trial pro se without conducting an appropriate inquiry into his financial ability to afford counsel constitutes a denial of that defendant’s Sixth Amendment right to counsel.” United States v. Barcelon, 833 F.2d 894, 896-97 (10th Cir. 1987), citing United States v. Cohen, 419 F.2d 1124 (8th Cir. 1969). No showing of prejudice is necessary when a trial court erroneously denies appointment of counsel altogether because prejudice to the defendant is presumed. Penson v. Ohio, 488 U.S. 75 (1988).

The appellant assigns as a second point of error an improper question by the prosecutor. We need not address the matter as it is not likely to arise again upon retrial.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Frank PILCHER v. STATE of Arkansas
    CR 90-89
    796 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Richard L. Hughes, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The appellant, Frank Pilcher, was convicted of capital felony murder and sentenced to life imprisonment without parole. The evidence showed that Pilcher shot the decedent, Jeffery E. Rhoades, to avoid paying for cocaine he had bought from Rhoades. The state presented testimony of Marissa Lynn Bragg, appellant’s girlfriend, who witnessed the acts from which the charges arose. Bragg was granted immunity from prosecution in exchange for her testimony. Appellant asserts four points for reversal.

I

Pilcher argues that the trial court erred in denying his motion to dismiss for lack of venue in Saline County, where Pilcher was tried. The state stipulated that the shooting occurred in Grant County. Appellant cites Ark. Const, art. 2, § 10, which provides that the accused is entitled to a trial by jury in “the county in which the crime shall have been committed.”

Pilcher met with Rhoades at Rhoades apartment in Saline County where Rhoades delivered one fourth ounce of cocaine “on front” to Pilcher. Pilcher and Bragg invited Rhoades to go with them to get the money to pay for the cocaine. The robbery was completed and the homicide occurred in Grant County and thereafter the body was returned to Saline County.

The relevant statute is Ark. Code Ann. § 16-88-108(c) (1987), which provides:

Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.

Under the statute, venue was proper in either Saline or Grant County. The delivery of the cocaine on credit and Pilcher’s invitation to Rhoades to accompany him were acts “requisite to the consummation of the offense.” Also, appellant and Bragg returned to Saline County and disposed of Rhoades’s body in a trash dump. In Thrash v. State, 291 Ark. 575, 587, 726 S.W.2d 283, 287 (1987), we held that venue was proper in the county where appellant hatched the plan to commit the robbery-murder and to which the body was returned.

II

Prior to cross-examination of witness Marissa Bragg, the court limited defense counsel’s inquiry regarding the identities of other individuals from whom Bragg and Pilcher had purchased drugs. Appellant argues that this line of questioning was an attempt to raise an inference that there may have been an accomplice to the homicide, from which the jury could infer that Bragg was biased and protecting some person(s) who might have actually committed the crime. Pilcher maintains this denial violated the Confrontation Clause and deprived him of the right to demonstrate that Bragg was biased.

The trial court ruled that the identity of the individuals was not relevant and, without a proper foundation, was merely a collateral issue. The trial court was correct. A.R.E. Rule 401, 402. Moreover, the effect of the intended testimony would have been to encourage the jurors to form an opinion based on supposition. See Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990); Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985).

Ill

Pilcher next contends the trial court erred in refusing to declare Marissa Bragg an accomplice as a matter of law. Instead, the court instructed the jury to determine whether Bragg was an accomplice to the robbery and murder of Jeffery Rhoades.

An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages or coerces the other person to commit it, aids, agrees to aid or attempts to aid the other person in planning or committing it, or fails to make a proper effort to prevent the commission of the offense, provided he has a legal duty to prevent it. Ark. Code Ann. § 5-2-403 (1987). It is the defendant’s burden to prove that a witness is an accomplice whose testimony must be corroborated. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). A person’s status as an accomplice is a mixed question of law and fact, and the issue should be submitted to the jury where there is evidence to support a jury’s finding that the witness was an accomplice. Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). The finding of the jury is binding unless the evidence shows conclusively that the witness was an accomplice. Cate v. State, 270 Ark. 972, 606 S.W.2d 764 (1980).

The record reveals that Pilcher and Bragg, using Bragg’s pickup truck, went to the apartment of Jeffery Rhoades where the cocaine purchase was instigated. They then led Rhoades (following on a motorcycle) through a remote area to a point near Tull in Grant County. Bragg testified the purpose of the trip was to lose Rhoades “through the bottoms” in the Tull area. Although Bragg was present at the scene and helped load Rhoades’s body in the back of her truck, she denied any knowledge that Pilcher intended to murder Rhoades. Bragg said she was in the truck when she heard Rhoades say, “Man, this is just twenty-five dollars.” Then she heard a gunshot. Bragg testified that she and Pilcher were not planning a murder and nothing in the evidence points conclusively to the contrary.

Mere presence at the scene of the crime or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law. Spears v. State, 280 Ark. 577, 660 S.W.2d 91 (1983). Nor does a grant of immunity alone cause a witness to be an accomplice as a matter of law. Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). The facts do not show conclusively that Bragg was an accomplice. The trial court was correct in refusing to declare her an accomplice as a matter of law and properly submitted the issue to the jury.

IV

Finally, when the state rested defense counsel moved for a directed verdict. The motion was denied. Pilcher contends that had the trial court correctly ruled that Marissa Bragg was an accomplice as a matter of law, the motion of directed verdict should have been granted because there was insufficient evidence to corroborate her testimony.

Appellant did not move for a directed verdict based on the state’s failure to corroborate the testimony of Marissa Bragg. Instead, defense counsel simply moved for a directed verdict on grounds that there was insufficient evidence to find appellant guilty of capital felony murder or any crime. Because there was a failure to raise the specific basis for a directed verdict at trial, Pilcher cannot now challenge it on appeal.

Under Ark. Code Ann. § 16-91-113 (1987), as put into effect by our Rule 11(f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

       “On front” means in effect the drugs are sold on credit.


author: David Newbern, Justice.

text:
    Benny HUGHES v. STATE of Arkansas
    CR 90-20
    797 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Dale Grady and William F. Magee, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

Benny Hughes was charged with capital murder for having caused the deaths of two persons with the deliberate and premeditated purpose of causing the death of a person. Hughes testified that he shot Dave Potter and Hughes’s wife, Leree, but he contended the shooting of Potter was in self defense and the shooting of Leree was accidental. A jury found Hughes guilty of first degree murder, and he was sentenced to life imprisonment. Hughes raised 15 points of appeal. We have combined some of them for discussion. The judgment is affirmed.

Police were called to the Hughes home at Lockesburg in Sevier County at 3:39 p.m. on December 28, 1988, by Judy DeWitt who had found Leree Hughes there, with most of her hair cropped off and shot but still breathing. She had also found the dead body of Dave Potter in the house. Mrs. Hughes died shortly thereafter in a hospital. Ms. DeWitt was a close friend, coworker, and ex-sister-in-law of Mrs. Hughes. She had let herself into the Hughes home upon stopping by to pick up Mrs. Hughes on her way to work. She told the police that Benny Hughes was a person who could have done the shooting but that he was in California.

Benny Hughes was seen by a police officer driving his truck in Sevier County and was apprehended at 8:46 p.m. on the day the shootings were discovered. There is some question whether he was given a Miranda warning at that time, but one officer testified the warning was given. On his way to jail in a police car, Benny Hughes made incriminating statements. The officers did not attempt to ask him questions and told him he should not say anything until they could get to the station where they could “do it right.” He persisted in speaking and related facts which are much the same as the ones he related at the trial.

Hughes said he had begun a trip to California on December 27, to begin working for his brother-in-law in a tree trimming business. He had made it to Arizona but changed his mind, deciding that the money was not worth being separated from his family. When he got back to his home between 2:00 and 3:00 p.m. on December 28, the front door was locked. He went in a rear entrance and encountered Leree in a hallway. She had just come out of a bedroom and was adjusting her shirt. He asked her what was going on, and she replied that he did not want to know.

The conversation progressed to the point where she admitted she had been seeing Dave Potter. Hughes slapped her, knocking her against the wall and injuring her lip. He then told Leree it was over between them and went out to his truck to bring in his things and dump them on the floor in the living room. He said that when he returned to the house he noticed Leree’s split lip and took her into the bathroom to treat it. He said they discussed the situation and decided to make up. However, he then asked her if she had slept with Potter and she replied that she had. He then pushed her, and she fell, injuring her head.

Hughes testified he apologized for having caused her to fall and noticed that her head was bleeding. He then took scissors and cut some of her hair so he could treat the cut. However, he ended up cropping her hair short over her whole head. He said his “subconscious” must have taken over because he had recently seen a movie where townspeople cut off the hair of a woman accused of adultery. He said Leree did not protest the cutting, and when he apologized for it she said it was alright because she had inflicted a far greater harm upon him, and they would “watch it grow back together.”

While Leree was sweeping up her hair, Hughes went into their bedroom where he found Leree’s gun lying on a table. He took it into the bathroom to ask Leree why it was out where the children had access to it, and the gun accidentally went off, startling them both. He then walked into the bedroom after Leree who intended to change her shirt which had blood on it. At that time he heard a noise behind him and he turned. He said he thought at first he caught sight of a dog in the other room. He then thought it was a large green frog. Instead, it was Potter who was, he said, coming at Hughes with a small knife. Hughes said he fired shots over Potter’s head, and one of the shots grazed Potter’s head. He told Potter to leave or he would be a dead S.O.B. Potter acted as if he were going to leave, but was hesitating because he was dazed by the bullet graze on his head. Hughes said Potter then attempted to attack Hughes again, and Hughes shot him twice.

Hughes saw Leree slump to the floor during his final altercation with Potter. He thought she had just fainted. He cradled her in his arms then realized her brain was coming out as she had been shot in the head and was bleeding. He then returned to Potter’s body, which was lying face down on the floor, and shot him again. He left the house and drove his truck as if in a “dream” to Antlers, Oklahoma, where he realized what had happened and then headed back to Sevier County. He disposed of the gun which has not been found.

Hughes testified that he went to the home of a relative where he learned that Leree was still alive, and he decided to turn himself in. He said he tried several times without success to telephone Randall Wright, a deputy prosecuting attorney, to find out what he should do. At that point he was arrested. He made a formal statement which was tape recorded and transcribed.

The only discrepancy between Hughes’s formal statement and his testimony at trial was that he had brought his things in from the truck when he first arrived at home, rather than going . out to get them after his initial encounter that afternoon with Leree as he said at the trial. The formal statement was excluded from evidence because the court concluded that Hughes should not have been questioned after he requested to be put in touch with Mr. Wright. The court did, however, permit the prosecution to refer to the statement for the purpose of impeachment of Hughes’s testimony by pointing out the discrepancy.

The knife with which Hughes said Potter attacked was not found in the Hughes home by the officers who investigated the crime. After the trial, Hughes moved for a new trial on the basis of newly discovered evidence, contending that the knife had been found but had been stolen before a hearing could be held.

1. Sufficiency of the evidence and instructions

In some five points of appeal, Hughes questions the sufficiency of the evidence to support the conviction of first degree murder and instructions he contends were erroneous. We will not consider whether the evidence was sufficient because no motion for directed verdict was made. Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989); Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988).

Nor did Hughes object to the instructions given by the trial court or proffer ones he now suggests should have been given. He thus did not preserve for appeal any complaint about the court’s instructions. Wade v. State, 290 Ark. 16, 716 S.W.2d 194 (1986); Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

2. Refusal to suppress statements

Hughes contends the court should have suppressed the statements he made while seated in the police car. He contends he mentioned repeatedly that he had tried to get in touch with Randall Wright, and thus the statements he made in the presence of the officers should be suppressed. He does not contend he specifically asked to see Mr. Wright at that point.

When a suspect is questioned by police and requests the presence of counsel, the questioning must cease until counsel is provided. Edwards v. Arizona, 451 U.S. All (1981); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). Here, it is undisputed that the officers present attempted to get Hughes to stop telling them what had happened. There is no evidence that Hughes was questioned until he gave the statement that was ultimately suppressed and not allowed into evidence.

Even if there had been some error in allowing testimony as to what Hughes said in the police car, we would not reverse. Hughes cannot show prejudice, as the statements he allegedly made then were consistent with his self-defense testimony given .at the trial.

3. Defect in probable cause affidavit

It is contended that the information should have been quashed because the affidavit which was given in support of the arrest warrant for Hughes was dated the day after the arrest occurred. A motion was made to quash the information on that basis. The trial court did not rule on the motion but said it would be cleared up by the magistrate who had issued the warrant. The prosecutor contended the discrepency was the result of a typographical error.

We decline to consider the point further because the court made no ruling on the motion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990); Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990); Dildine v. Clark Equipment Co., 285 Ark. 325, 686 S.W.2d 791 (1985).

4. Admissibility of "occult” material

A briefcase containing “occult” material was found in the Hughes home. Hughes sought to introduce the items, which consisted of books and magazines, into evidence. His contention that they were relevant apparently was to the effect that Potter, Leree, and Judy DeWitt were involved in a sex, drug, occult scheme to kill him. The state contended that Hughes wanted them into evidence only to inflame the jury and that they would be irrelevant and unfairly prejudicial to the state’s case. The court heard extensive argument on the relevancy of the items and held them inadmissible.

We cannot hold that the court erred. A trial court’s determinations on questions of admissibility of evidence are discretionary. We do not reverse unless an abuse of discretion has been shown. Walker v. State, supra; White v. Clark Equipment Co., 262 Ark. 158, 553 S.W.2d 280 (1977).

5. Impeachment by suppressed statement

As noted above, the prosecution was allowed to refer to the formal statement Hughes gave at the police station for the purpose of pointing out the discrepancy between that statement and Hughes’s trial testimony.

No error occurred. In Harris v. New York, 401 U.S. 222 (1971), the Supreme Court held that a statement which had been suppressed for failure to give a Miranda warning could be used in cross-examination to impeach an accused who had given a contradictory statement at trial. We relied on the Harris case in Hendrickson v. State, 290 Ark. 319, 719 S.W.2d 420 (1986). There the trial court’s ruling admitting a statement of an accused had resulted in reversal of a conviction. In the second trial the prosecution used the same statement for purposes of impeachment, and we declined to reverse, pointing out that the rationale of the Harris case applied. It applies directly in this case.

6. The new trial issues

The decision whether to grant a new trial is within the discretion of the trial court. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985); Harvey v. State, 261 Ark. 47, 545 S.W.2d 913 (1977). As we pointed out in the Vasquez case, citing Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979), newly discovered evidence is a least favored ground for granting the motion. We find no abuse of discretion in the court’s failure to grant a new trial on the basis that the knife allegedly used by Potter had been found.

We can hardly hold that the trial court abused its discretion in refusing to grant a new trial on the basis of newly discovered evidence which Hughes could not produce for the court’s consideration. Even if the court had been required to believe that a knife like the one Hughes thought he saw in Potter’s hand had been found, we could not reverse because the matter would still have been one for the trial court’s discretion, and no abuse would have been shown.

Nor do we find any abuse in the trial court’s failure to grant a new trial on the basis that an auxiliary policewoman was allowed to sit as a juror. No objection was made to the juror on voir dire, and there is no complaint that the opportunity to question her was limited in any way.

The remaining point argued with respect to the refusal to grant a new trial is also one that was waived. The contention is that a juror had a conversation with Deputy Prosecutor Wright during the trial.

During a recess a juror inquired of Wright about his mother’s health. He responded she was fine and, then he walked out of the jurors’ presence. Even if there were any possibility of prejudice resulting from this conduct, we would not consider it for, as the judge pointed out in ruling on the new trial motion, no mention of the conversation was made during the trial, and thus the objection was waived.

7. Plain error

Hughes contends that a combination of pre-trial publicity about his original trial attorney, Phil Barton, having been arrested for possession of marijuana, combined with prosecutorial misconduct, amounted to “plain error.”

The only mention of the attorney came when Hughes’s trial counsel was trying to show that Barton had discovered evidence at a crime scene which was overlooked by the police. There were other references to marijuana. Judy DeWitt testified she had seen Hughes use it. A box containing the drug was found in the home, and there was a contention that DeWitt had planted it there.

By invoking a “plain error” rule, Hughes seems to recognize that no objections were made at trial in support of the complaint he makes now, and there was no request for admonition of the jury. We require error to be pointed out at the trial, and we do not reverse for “plain error.” State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990).

8. Wright’s participation in the trial

Hughes contends the participation of Randall Wright in his trial was prejudicial because he was being prosecuted by the very lawyer with whom he contended he had wanted to discuss his case. We decline to rule on the point because, again, no motion was made at the trial to exclude Mr. Wright, and the issue was not raised in his motion for a new trial. The issue was not preserved for appeal. Hamm v. State, supra.

In accordance with Rules of the Arkansas Supreme Court and Court of Appeals 11(f), we have reviewed the abstracts for reversible error, and we find none.

Affirmed.


author: Tom Glaze, Justice.

text:
    Camille GARRETT, Records Supervisor, Department of Correction v. Larry McDONAGH
    CR 90-123
    796 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellant.
    No brief filed.
   Tom Glaze, Justice.

Twenty-four days of jailtime credit is the subject in dispute in this appeal. Larry McDonagh, appellee, was sentenced to a total of nine years imprisonment for his convictions of false imprisonment and battery. After sentencing, an “agreement” was made that the appellee would be released on his prior bond money until he could be transported to the Department of Correction. Under the terms of that “agreement,” appellee could not leave his house without permission from the sheriffs department and was required to telephone and report to the department twice a week. After staying at home for twenty-four days, the appellee returned, as requested, to the sheriffs department so he could be transported to the Department of Correction.

The Department of Correction refused to give the appellee jailtime credit for the twenty-four days, reasoning that he was not in lawful confinement at the sheriffs department. Appellee filed a writ of mandamus in the trial court to compel the Department of Correction to give him the jailtime credit that he requested. The trial court granted the writ. As its sole issue on appeal, the appellant Department of Correction argues that giving the appellee credit for the twenty-four days violates Ark. Code Ann. § 16-93-610 (1987). We disagree, and therefore affirm. This court has never addressed the issue of whether a prisoner could receive jailtime credit for time he spent at his residence with his liberties restricted. Other state and federal courts, however, have applied similar statutes to time spent outside the usual prison confinement. See Annotation, Defendant’s Right to Credit for Time Spent in Halfway House, Rehabilitation Center, or Similar Restrictive Environment as a condition of Pretrial Release, 29 A.L.R. 4th 240 (1984); see, e.g., Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983) (defendant given credit for time she spent in a battered women’s shelter); Hart v. State, 588 S.W.2d 226 (Mo. Ct. App. 1979) (defendant given credit for time spent in research hospital). Contra Robinson v. State, 828 F.2d 71 (2d Cir. 1987); Villaume v. United State Department of Justice, 804 F.2d 498 (8th Cir. 1986) (where federal courts, construing 18 U.S.C. § 3568, held no credit unless time spent in actual custodial incarceration, imprisonment or institutional confinement); Heitman v. State, 622 S.W.2d 760 (Mo. Ct. App. 1981) (defendant found not entitled to credit for time spent at his home where he was restricted to stay during nighttime hours and call the sheriff each night at 10:00 p.m.). In allowing jailtime credit for time spent outside a usual prison setting, states have focused on the degree to which a defendant’s freedom is restricted. In the recent case of State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Wis. Ct. App. 1989), the Wisconsin court awarded the defendant jailtime credit for the period of time he was out of jail because of an overcrowded jail, a condition that was no fault of defendant’s.

In Arkansas, computation of a prisoner’s sentence is controlled by § 16-93-610, which provides the following:

(a) Time served shall be deemed to begin on the day sentence is imposed, not on the day a prisoner is received by the Department of Correction. It shall continue only during the time in which a prisoner is actually confined in a county jail or other local place of lawful confinement or while under the custody and supervision of the Department of Correction.
(b) The sentencing judge, in his discretion, may direct, when he imposes sentence, that time already served by the defendant in jail or other place of detention shall be credited against the sentence.

As we are reminded by the appellant, we must construe statutes just as they read by giving the words their ordinary and usually accepted meaning. Wilcox v. Safley Constr. Co., 298 Ark. 159, 766 S.W.2d 12 (1989).

Here, while appellee was not actually confined in a county jail awaiting his trip to the Department of Correction, he certainly was lawfully and continuously confined to his local place of residence until he was informed to report to the sheriffs department for his transportation. It is undisputed that the delay in time for appellee to report to the Department of Correction was not his fault, and he undisputably met the restrictions imposed upon him, requiring his restricted, uninterrupted confinement to his home. Accordingly, we believe the trial court was correct in finding appellee was entitled to credit for this twenty-four day period of confinement and granting the writ of mandamus enforcing that period of time.

For the above reasons, we affirm.


author: Otis H. Turner, Justice.

text:
    Robert Sherman ROBINSON v. STATE of Arkansas
    CR 90-140
    797 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Otis H. Turner, Justice.

The appellant, Robert Sherman Robinson, was convicted on charges of theft by receiving, aggravated robbery, theft of property, first degree assault, and felon in possession of a firearm. He was also found to be an habitual offender with four prior felony convictions and was sentenced to a total of 155 years imprisonment under the sentence enhancement provisions of Ark. Code Ann. § 5-4-501 (1987).

On March 2,1990, the appellant was tried for breaking into an automobile and removing valuables, threatening several people with a firearm, and then commandeering a truck and fleeing the scene. The jury rendered a guilty verdict, and, during the sentence phase, the state offered, over the appellant’s objection, proof of four prior felony convictions: a 1974 guilty plea to a second-degree murder charge; and three 1978 guilty pleas to charges of robbery, theft of property with a value exceeding $2,500, and second-degree battery. With sentence enhancement, the appellant received 30 years for theft by receiving, 80 years for aggravated robbery, 30 years for theft of property, and 15 years for possessing a firearm. The sentences, imposed consecutively, amount to 155 years, less 226 days of jail credit.

For reversal, the appellant’s sole contention challenges the sentence enhancement, alleging that , his prior convictions of robbery and theft of property with a value of over $2,500 should be considered as a single conviction because the theft occurred in the course of the robbery. The appellant’s argument is without merit, and we affirm the judgment of the trial court.

Arkansas Code Annotated § 5-12-102 (Supp. 1989) provides, in part:

(a) A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

We have previously held that “the Arkansas Criminal Code has redefined robbery in a way that the focus of aggravated robbery has shifted from the taking of property to the threat of physical harm to the victim. . . . [0]ne consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place.” (Emphasis added.) Birchett v. State, 294 Ark. 176, 181, 741 S.W.2d 267, 270 (1987). See also Higgins v. State, 270 Ark. 19, 20, 603 S.W.2d 401, 402 (1980), which explicitly rejects the argument that theft of property is a lesser included offense of aggravated robbery: “[T]he offenses are separate and distinct and not dependent upon the same evidence to support the convictions.”

The appellant attempts to make his point by analogizing robbery and burglary, citing the following provision from the habitual offender statute, Ark. Code Ann. § 5-4-501 (c):

For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.

No such formula exists with respect to robbery, and, in the absence of such specific language, we decline to write into the legislation a provision that the legislative branch has failed to enact, presumably by design, in relation to the statutory definition of robbery.

Nor are the appellant’s 1978 convictions of robbery and theft of property conceptually connected. Just as the burglary and battery convictions in Shockley v. State, 291 Ark. 251, 724 S.W.2d 156 (1987), arising from the shooting of a policeman responding to a burglary report, were held to be “entirely separate and not subject to being counted as one offense under the habitual offender statute,” so here separate acts resulting in separate convictions are involved. Robbery is characterized under Title 5 of the Arkansas Code in Subtitle 2 as an offense against the person, while theft appears under Subtitle 4 as an offense against property.

Theft of property is defined at Ark. Code Ann. § 5-36-103 (Supp. 1989):

(a) A person commits theft of property if he:
(1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof; or
(2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.

Clearly, a transfer of property is essential for the completion of the crime of theft; on the other hand, as noted in the quotation from Ark. Code Ann. § 5-12-102(a) and Birchett and Higgins, no transfer of property is required for the completion of the crime of robbery—only physical force or the threat thereof is necessary.

Affirmed.


author: Dale Price, Justice.

text:
    Maurice CLEMMONS v. STATE of Arkansas
    CR 90-141
    796 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      William R. Simpson, Jr., Public Defender, and Llewellyn J. Marczuk, Deputy Public Defender, by: Donald L. Thompson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant was convicted of aggravated robbery and theft and sentenced to 25 years on the robbery charge and 10 years on the theft, to be served consecutively. On appeal, he does not challenge his theft conviction. He does claim there was insufficient evidence to support his aggravated robbery conviction, arguing that, at .the most, the evidence supports only a conviction for ordinary robbery. We affirm the conviction.

The facts developed at trial were that around midnight on June 6, 1989, the appellant, along with two other men, approached Miss Karen Hodge in the parking lot of a Little Rock hotel bar. One of the men pretended to be armed with a gun and took Ms. Hodge’s purse containing $16 and a credit card. The sequence of events is best described in Miss Hodge’s trial testimony:

Q. (Prosecutor): If you would, tell us what occurred at that point?
A. (Miss Hodge): Well, I had my keys in my hand and I went to my car. And by that time, when I started to put my key in the car, they had gotten behind my car and one of them walked up to me and he had his — well, I assumed it was his finger in his jacket and he said, ‘I’ve got a gun. Give me your purse or I’m going to shoot you.’
Q. When this person said, ‘Give me your purse or I’ll shoot,’ what did you do?
A. Well, I was just flabbergasted that this was all taking place. So, I said, ‘Well, goddam it, why don’t you just shoot.’
Q. Okay. What happened at that point?
A. Then he punched me.
Q. Where did he strike you?
A. On the side of my head because I started to turn my head. He knocked me back against the hood of my car.
Q. Do you know what you were struck with?
A. His fist.
Q. Okay. At that point what occurred?
A. I put my arm out and he tore the purse off my arm and took off.
Q. Why did you do that?
A. Because I didn’t want to get hit again or hurt.
Q. Okay. Were you afraid?
A. Oh, yes. When he hit me, I was.

Miss Hodge identified the appellant as the man who threatened her and took her purse. There was no contention by the prosecutor that the appellant had actually used a gun to perpetrate the robbery.

Aggravated robbery is defined in Ark. Code Ann. § 5-12-103(a)(1) (1987) as follows:

A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed.

The rationale for allowing an aggravated robbery conviction if one merely represents that he is armed was stated in Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985):

The legislature has made no provision for lesser punishment of those threatening their victims with phony weapons precisely because the victims perceive no difference in the two types of threats.

There is no question that the appellant made the representation by both word and conduct of being armed with a deadly weapon. That was sufficient to satisfy the statutory requirement. Appellant argues that this case is governed by Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980). There the appellant placed his hand under his shirt and admittedly tried to induce his victim into believing he was carrying a gun. The victim apparently realized that the appellant was unarmed. We made the following statement:

We are not persuaded that the appellant’s hand under his shirt, even with the admitted intention of conveying to the victim that he was armed, is sufficient representation to satisfy the requirements of aggravated robbery in the absence of the victim’s appreciation that he was armed. It is clear from [the victim’s] testimony that she did not attach any special significance to this conduct and certainly did not perceive it to be in any way threatening. In fact, she did not even mention this particular conduct during her testimony until the prosecutor specially raised it by a leading question. Since the appellant’s subjective intent does not control what is objectively conveyed to another, a hand under a shirt has no meaning in the context of the aggravated robbery statute unless the victim at least perceives it to be menacing.

Fairchild is distinguishable on its facts from this case. There, no oral representation was made that the robber had a deadly weapon. He merely had his hand under his shirt. He acknowledged that he tried to induce the victim to believe that he had a gun. We reduced the conviction to robbery in Fairchild because the victim did not perceive the hand under the shirt to be menacing.

We hold that where a defendant verbally represents that he is armed with a deadly weapon that this is sufficient to convict for aggravated robbery regardless of whether in fact he did have such a weapon. Where no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon.

Affirmed.


author: Dale Price Justice. Tom Glaze, Justice,

text:
    Tracy KASTL v. STATE of Arkansas
    CR 90-124
    796 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Patricia A. Page, for appellant.

      Steve Clark, Att’y Gen., John D. Harris, Asst. Att’y Gen., for appellee.
   Dale Price Justice.

Tracy Kastl, age 17, was found to be a delinquent and was convicted of being a minor in possession of alcohol. Pursuant to Act 93 of 1989, the appellant’s driver’s license was suspended for a period of one year. Appellant brings this appeal, raising two arguments: (1) there was insufficient evidence to support her conviction, and (2) Act 93 of 1989 violates the Equal Protection Clause of the United States Constitution and Ark. Const, art. 2, §§ 2 and 3. We find the evidence was insufficient to support the conviction; therefore we reverse and dismiss without reaching the constitutional issue.

In February 1990, appellant was one of five passengers in a vehicle that was parked in a parking lot in Waldron, Arkansas. The vehicle was owned by Terry Lunsford and driven by Jamie May.

While on routine patrol about 10 p.m., Officers Johnny Smith and Ronnie Eisenhower of the Waldron City Police spotted beer cans beside the vehicle. They conducted a search of the vehicle with a flashlight and discovered a six pack of Coors Light beer lying on a “flat” in the hatch compartment of the vehicle behind the appellant. Randy Crowell, one of the passengers, admitted to purchasing the beer and claimed ownership.

Although neither officer was certain of the appellant’s exact position in the car, it was alleged by Officer Eisenhower that the appellant was a passenger in the back seat.

A portable breathalyzer test was administered, but the results were not provided. However, Officer Smith testified that the test indicated the passengers had consumed alcohol, although no evidence was presented as to the time of the alleged consumption, or whether it was recent. The officers testified that the appellant did not have in her hand or lap any alcoholic beverage and further testified that the reason the citation was given was because consumption had been indicated.

Ark. Code Ann. § 3-3-203 (1987) states in pertinent part the following:

(a) (1) It shall be unlawful for any person under the age of twenty-one (21) years to purchase or have in possession any intoxicating liquor, wine or beer.
(2) For the purposes of this section, intoxicating liquor, wine, or beer in the body of a minor shall not'be deemed to be in his possession.

Appellant cites Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1926), as holding that “possession” of intoxicating liquors within the meaning of statutes making possession unlawful is usually defined as “having personal charge of or exercising the right of ownership, management, or control over,” and it has also been held that there must be a conscious and substantial possession by the accused, as distinguished from a merely involuntary or superficial possession.

Appellant contends that while the testimony and evidence adduced might prove that the appellant had consumed alcohol, neither actual nor constructive possession of alcohol was proved. Neither of the officers at the scene of the incident testified to having seen the appellant with any beverage, nor did they testify that she even had knowledge that the beer was in the hatch of the vehicle. Further, the statute is clear that alcohol in the body of a minor shall not be deemed to be in his or her possession.

The state contends that the appellant had “constructive possession” of the alcohol because it was in the vehicle in which she was an occupant. In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), we defined the differences between actual and constructive possession as it relates to controlled substances:

The problem with joint occupancy arises because of the rule that when joint occupancy is the only evidence the State has, there must be some additional link between the accused and the contraband. . . .If evidence is presented that indicates joint occupancy and occupancy is the only evidence the State offers to prove possession, it must either provide the necessary link or prove the accused was in sole possession.

See also Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

The appellant was clearly not in actual possession of the beer in this case. The question then becomes whether there was sufficient evidence to show she was in constructive possession. In determining whether there is sufficient evidence to support a verdict, the court views the evidence in the light most favorable to the state and will affirm the conviction if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988).

The following was presented by the state to prove constructive possession of the beer by the appellant: (1) beer cans were found laying between the vehicle in question and another parked vehicle; (2) a six-pack of Coors Light beer was found lying inside the vehicle in the hatch area behind the appellant, and according to Officer Eisenhower, all the appellant would have had to have done was “just turn around and reached and grabbed it [the beer];” and (3) the appellant had a smell of intoxicating alcohol about her person.

The state’s evidence that there were beer cans beside the vehicle, that beer was found in the immediate proximity of the appellant in the vehicle, and that there was the smell of beer on the appellant’s person are not sufficient evidence of constructive possession. Applying Osborne v. State, supra, the state has not proven the additional evidence necessary to link the appellant to possession of the beer.

Reversed and dismissed.

Hays, Newbern and Glaze, J.J., dissent.

Tom Glaze, Justice,

dissenting. The majority, in my view, has abandoned its appellate rule on reversing this matter. In viewing the evidence in the light most favorable to the state, as is our duty, I believe substantial evidence exists to support the appellant’s conviction.

The appellant, Tracy Kastl, a seventeen-year-old girl, was convicted of being a minor in possession of alcohol. Her driver’s license was suspended for one year.

It is well established the state need not prove the appellant, as the accused, had actual possession of the contraband; constructive possession is sufficient. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), we said that constructive possession can be implied when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control, or to the joint control of the accused and another. We recently said that the state can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances, indicating the accused’s knowledge and control. One such circumstance is when the contraband is found on the same side of the car as the accused was sitting or in his or her immediate proximity. See Plotts, 297 Ark. at 70, 759 S.W.2d at 795. Here, it is undisputed that Tracy was seated in the immediate proximity of a six pack of beer. However, there are even more facts to show Tracy’s knowledge and control of the beer or contraband seized in this case.

In considering only that testimony in support of the trial court’s verdict, David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985), the evidence shows as follows:

* Officers Smith and Eisenhower drove on to the lot where the car, in which Tracy was a passenger, was parked. There was a beer can by the car and one on the lot. The officers had been on the lot earlier and no beer cans were on it.
* Five people were in the car, two young men in the front and Tracy and two young men in the rear seat. A six pack of beer was seen immediately behind the rear seat and the beer was within arm’s reach of Tracy.
* Several of the subjects were seen with open beer cans between their legs, although Tracy was not one of them.
* Both officers smelled the odor of intoxicating beverage about Tracy’s person.

The foregoing evidence speaks for itself. The trial judge could have reasonably inferred that Tracy had been drinking and that Tracy was within arm’s reach of the six pack of beer found in the car. Some of the others in the car had open beer cans in their possession, and it is fair to infer occupants of the car had discarded two beer cans onto the lot—one of the cans was located immediately next to the car.

From this evidence, the trial judge, as factfinder, could have reasonably believed Tracy had knowledge and control of the beer located in the car. In fact, to have found and decided otherwise would, in my estimation, have ignored the obvious. The trial judge’s decision should clearly stand.

Hays and Newbern, JJ., join this dissent.


author: Special Justice Stanley D. Rauls. David Newbern, Justice,

text:
    CITY OF LITTLE ROCK, et al. v. Jamie D. WATERS, et al.
    90-127
    797 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990
    [Rehearing denied November 19, 1990.]

      Mark Stodola, City Attorney, by: Thomas M. Carpenter, Asst. City Att’y, for appellant.

      Jack, Lyon & Jones, P.A.,by. Eugene G. Sayre, for appellee.

      Dudley and Turner, JJ., not participating.

   Special Justice Stanley D. Rauls.

This is an appeal from an order of the Chancery Court of Pulaski County ruling that the “local compensating use tax” (use tax) imposed by Act 31 of the First Extraordinary Session of 1987 (Act 31) violates the equal protection clauses of both the United States and Arkansas Constitutions.

The appellants, City of Little Rock, et al. (City), allege two points of error for reversal: (1) that an act of the General Assembly, which imposes a use tax by operation of law, does not violate the equal protection clause of either the United States or the Arkansas Constitutions, and (2) that there is no basis in the record to support the Chancellor’s ruling that Act 31 is unconstitutional. We agree with the City’s arguments and reverse and remand.

There are several tax statutes in effect in Arkansas which pertain to sales and use taxes. Of primary importance to this appeal are four acts:

1. Act 991 of 1981, as amended by Act 26 of the First . Extraordinary Session of 1981 (codified at Ark. Code Ann. § 26-74-301 to -317 (1987))—a one percent countywide sales tax;
2. Act 26 of the First Extraordinary Session of 1981 (codified at Ark. Code Ann. § 26-74-201 to -221 (1987))—a one percent countywide sales and use tax;
3. Act 827 of 1987 (repealed); and
4. Act 31, supra (codified at Ark. Code Ann. § 26-74-319 (1989))

Both Act 991 and Act 26 represent enabling legislation that permits the counties, by referendum, to impose taxes upon their residents. By Act 991, the Arkansas Legislature authorized counties to call an election for the levy of a one percent sales tax. The imposition of that sales tax by county ordinance requires the positive vote of a majority of the qualified electors in the county at an election called for that purpose. Under section 3, the ballot is to be substantially in the following form:

[ ] “FOR adoption of a one percent (1 %) sales tax within (Name of county)”
[ ] “AGAINST adoption of a one percent (1 %) sales tax within (Name of county)”

Act 26 authorizes counties, again by election, to impose a sale and a use tax. Under section 3 of this act, the ballot is to be substantially in the following form:

[ ] “FOR adoption of a one percent (1 %) sales and use tax within (Name of county)”
[ ] “AGAINST adoption of a one percent (1 %) sales and use tax within (Name of county)”

Act 26, section 17 further provides:

In all counties which have, prior to the effective date of this Act [December 1, 1981], adopted a local sales tax under Act 991 of 1981, there is also hereby levied a local compensating (use) tax which shall in all respects be administered and enforced in accordance with the provisions of Act 991 of 1981 and the ordinance levying the local sales tax.

By special election held on February 2, 1982, Pulaski County voters approved the imposition of a sales tax. Although the official ballot and voting instructions called for a vote upon the imposition of a tax under Act 991 as amended by Act 26, the ballot contained the wording from section 3 of Act 991 and made no mention of a use tax. By county ordinance adopted on March 23,1982, the Pulaski County Quorum Court attempted to levy a complementary use tax. A class action filed by taxpayers of Pulaski County resulted in a ruling by this Court which held that a county may not impose a use tax without an election held specifically for that purpose. Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986).

On April 8, 1987, the governor signed Act 827 of 1987, which had been unanimously approved by the General Assembly. That act provided:

SECTION 1. In all counties which have, prior to the effective date of this Act, adopted a local sales tax under the provisions of Act 991 of 1981, or Act 26 of the First Extraordinary Session of 1981, there is also hereby levied a local compensating use tax. In those counties which have previously adopted a local sales tax under the provisions of Act 991 of 1981, the local compensating use tax levied herein shall in all respects be administered and enforced in accordance with the provisions of Act 991 of 1981. In those counties which have previously adopted a local sales tax pursuant to Act 26 of the First Extraordinary Session of 1981, the local compensating use tax levied herein shall in all respects be administered and enforced in accordance with the provisions of Act 26 of the First Extraordinary Session of 1981.
SECTION 2. All laws and parts of laws in conflict with this Act are hereby repealed.

The cause of action in this case originated on May 14,1987, with a complaint for declaratory judgment filed by the Arkansas Commissioner of Revenue (Commissioner). The Commissioner requested a determination regarding the validity of Act 827 of 1987 which, on June 12, 1987, was repealed by Act 31. In addition to repealing the prior act, Act 31 stated:

SECTION 1. In all counties which adopt a local sales tax under the provisions of Act 991 of 1981 or Act 26 of the First Extraordinary Session of 1981 or which have, prior to the effective date of this act [September 4,1987], adopted a local sales tax under the provisions of Act 991 of 1981, or Act 26 of the First Extraordinary Session of 1981, there is also hereby levied a local compensating use tax. The rate of use tax levied by this Act shall be the same as that of the sales tax in the county. No additional tax shall be levied by this Act where a use tax is otherwise levied under the provisions of Act 26 of the First Extraordinary Session of 1981. Any tax levied under the provisions of this Act shall be levied, collected and administered in accordance with the provisions of Act 26 of the First Extraordinary Session of 1981.

Like the act which it repealed, Act 31 had been unanimously approved by the General Assembly. After the effective date of Act 31, a use tax was collected for Pulaski County by the Commissioner based upon that act and the sales tax approved in the 1982 election.

The appellees, Jamie D. Waters, et al. (Waters), without objection, were permitted to intervene and proceed as plaintiff members of a taxpayer class that contested the validity of Act 31. Other counties had, by referenda, adopted both a sales and a use tax and were therefore excluded from the tax imposed by Act 31. The Chancellor determined that there was no legitimate governmental objective served by depriving Pulaski County residents of the same right to vote for a use tax as had been exercised by residents of other counties and ruled that Pulaski County voters should have been given the opportunity to vote on the use tax issue.

The City initially contends that Act 31 is not violative of the equal protection clause in either the United States or Arkansas Constitutions and is therefore constitutional.

The particular equal protection arguments advanced by Waters and adopted by the Chancellor were premised upon two underlying assumptions: (1) that citizens in Arkansas had a fundamental right to vote for the imposition of a use tax enacted by the General Assembly, and (2) that the collection, pursuant to Act 31, of such a use tax in Pulaski County without collecting the same tax in counties that had already imposed a use tax deprived citizens of equal protection under the laws.

A state’s power to impose a use tax is not conferred. It inheres in the sovereign and is plenary. See 68 AM. JUR. 2d Sales and Use Taxes § 184 (1973). The right of the State of Arkansas to tax its citizens through the General Assembly was expressly conceded by the framers of the constitution. Ark. Const, art. 2, § 23. The General Assembly was authorized to delegate its taxing authority and impose restrictions upon any authority delegated to counties. The counties’ authority to levy a tax through Act 991 and Act 26 could only be exercised by referendum. See Ragan v. Venhaus, supra. However, that restriction imposed upon subordinate governmental entities in no way limited the General Assembly’s power to tax. See also County of Howard v. Rotenberry, 286 Ark. 29, 688 S.W.2d 937 (1985).

The right of citizens to vote on the imposition of sales and use taxes is alleged to exist because of a perceived statutory scheme to give citizens the opportunity to accept or reject such a tax through referendum. It is clear that the legislature intended to limit county governments’ authority to tax its residents by requiring an election. However, we do not find any indication that the legislature intended to relinquish or restrict its own power to tax. Where a use tax is imposed by the General Assembly, as with Act 31, there is no fundamental right of citizens to vote on that issue.

Equal protection analysis further depends upon the existence of some classification which impermissibly distinguishes between citizens. That classification may be contained in the wording of a statute; it may be found to exist because of an uneven application of a statute to different groups; or it may arise where different burdens are imposed on different classes of persons. American Trucking Ass’n v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986). Even where classifications are established, the United States Supreme Court has consistently held that, when structuring internal tax schemes, “. . .the States have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation,” Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359 (1973), and the courts are reluctant to interfere with legislative policy decisions. Regan v. Taxation with Representation of Washington, 461 U.S. 540, 547-48 (1983).

Here, there was no impermissible classification established by the language of Act 31 or its application, and the use tax did not impose different burdens on different classes of persons. By passing their own sales and use tax under Act 26 (or by approving neither), citizens of any county have the same opportunity to avoid the imposition of the use tax otherwise imposed by Act 31. Conversely, a tax under Act 31 will be applied to every county adopting only a sales tax under Act 26 or Act 991. The language of Act 31 does not distinguish between citizens of the various counties, nor is any ultimate effect upon the counties by that act due to an improper classification that would invoke equal protection analysis. Pulaski County may choose to tax its residents differently from citizens in other counties. However, that does not impair the General Assembly’s authority to levy a tax that avoids duplicate taxation in those counties already imposing both a sales and a use tax. (The use tax, regardless of whether imposed by the State or by the county, is ultimately credited to the particular county in which it was collected.) The end result is that where a sales tax is imposed under Act 991 or Act 26, a use tax will also be levied (if not by the county, then by the State). Rather than imposing a different burden on citizens, the legislature has taken a step toward equalizing that burden.

Waters suggests that it was not fair to impose, without a vote, the Act 31 tax on residents of some counties while residents of other counties had the opportunity to impose the tax upon themselves through referenda. Waters also argues, quite persuasively, that it was unfair for the General Assembly to subsequently impose a use tax upon voters in Pulaski County who, in 1982, thought they were adopting only a sales tax. One must also question whether Pulaski County voters thought that, by imposing only a sales tax, they could restrict the State’s power to subsequently impose a use tax more than five years later.

The tax structure in this state is based upon many different types of taxes, some of which are imposed by direct vote of the citizens and some of which are imposed by the citizens’ duly elected representatives. Where those representatives fail to carry out the desire of the people, citizens are afforded the opportunity to voice their concern either directly to those legislators or at the polls when those officials face reelection. Whether a tax is fair should be decided by the legislators of this state who are elected by the people for that purpose. Here, the members of the General Assembly voted unanimously to impose a use tax, and the governor subsequently signed Act 31. This court’s function, as one of the three branches of government, is confined to the question of the validity and interpretation of the actions taken by the other two branches. We find that the use tax imposed by Act 31 was a valid exercise of authority by the Arkansas Legislature.

The record reflects various other constitutional challenges to the validity of Act 31, each of which will discussed below since chancery court cases are reviewed de novo. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988).

I. LOCAL LEGISLATION

The City contends that Act 31 does not represent local legislation prohibited by the Fourteenth Amendment to the Arkansas Constitution. We agree that there is nothing in the act or its application that would support the contention that Act 31 is either local or special legislation. When analyzing legislation under the Fourteenth Amendment to the Arkansas Constitution, we have distinguished between general, local, and special legislation as follows:

A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less than the whole. Board of Trustees v. Beard, 273 Ark. 423,620 S.W.2d 295 (1981) citing Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969).

That a statute may ultimately affect less than all of the State’s territory does not necessarily render it local or special, Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984). As noted in Littleton, legislation may run afoul of the fourteenth amendment, however, when a class established by the statute has no reasonable relation to the statute’s purpose or the legislation omits an area that would naturally be included. Id. As previously discussed, there is no classification established by, or inherent limitation contained in, Act 31. The exclusions outlined in Act 31 prevent duplicate taxation in those counties that have imposed both the sales and use tax envisioned by prior legislation, and we cannot say such an exclusion is arbitrary or unreasonable. According to the stipulated facts, at least three other counties have, since the effective date of Act 31, enacted only sales tax ordinances for which Act 31 now imposes a compensating use tax. Act 31 will apply to any county subsequently adopting anything other than both a sales and a use tax ordinance and cannot, therefore, be considered local legislation.

II. LEGISLATION BY REFERENCE

Another argument presented regarding Act 31 is that it does not violate the specificity requirements of Ark. Const, art. 5, § 23, which provides as follows:

No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be reenacted and published at length.

This portion of the Constitution has repeatedly been held to be inapplicable to an amendatory statute. See e.g. Hall v. Ragland, 276 Ark. 350, 635 S.W.2d 228 (1982). A comparison of Act 31 with Act 827 and section 17 of Act 26 reveals that Act 31 was an amendatory statute to section 17 of Act 26 that incorporated all of the language of that section in the subsequent reenactment.

Section 17 of Act 26 levied a use tax in all counties which, prior to its enactment, adopted only a sales tax under Act 991. Act 827 subsequently added Act 26 sales taxes and provided exclusions to avoid duplicate taxation. In repealing Act 827, Act 31 again used wording identical to section 17 of Act 26, adding the tax rate to be used and references to Act 26 for the administration, collection and levy of the tax. There can be no doubt that both Act 827 and Act 31 were amendments to section 17 of Act 26 and both of the amendatory acts contained all of that portion of the act which was amended. Act 31 was, from its effective date forward, a valid amendment of section 17 of Act 26.

III. DELEGATION OF AUTHORITY AND VAGUENESS

In the chancery court, Waters contended that the delegation of substantive determinations to the Commissioner by Act 31 constituted an impermissible delegation of legislative power to the executive branch of government by the legislature. Waters also contended that Act 31 was void because its wording was so vague that it failed to provide judicial certainty as to the meaning of the statute. These arguments are premised upon the contention that Act 31 was an impermissible enactment by reference and must be construed without reference to any other act. As noted herein, Act 31 was an amendment to section 17 of Act 26 and must be read in conjunction with that act. Act 26, as amended, is not vague and contains no improper delegation of authority.

IV. DUPLICATE TAXING PROVISIONS

As previously noted, taxpayers in Pulaski County successfully contested a county ordinance that was improperly enacted. Ragan v. Venhaus, supra. Waters proposes a public policy argument that the taxpayers’ victory should not be taken away simply because the General Assembly enacted what is suggested to be backup or stacked tax provisions.

The State’s taxing authority is much broader than the limited authority delegated to the counties under Act 991 and Act 26. The improper adoption of a tax by a county does not prohibit the subsequent imposition of the same or similar tax by the proper authority. We find no violation of public policy for taxes validly imposed.

For the foregoing reasons, this case is reversed and remanded with instructions to remove the injunctions previously issued.

Reversed and remanded.

Special Justice G. Allen Wooten joins in this opinion.

Newbern, J., dissents.

Dudley and Price, JJ., not participating.

David Newbern, Justice,

dissenting. A major premise of the majority opinion is that the compensating use tax is one imposed by the General Assembly. In my view, the General Assembly only authorizes the imposition of the tax. It is imposed by a vote of the people who will pay it. Act 31 of the First Extraordinary Session of 1987 permits a vote to be taken using the ballot form which, in accordance with Act 991 of 1981, only apprises the voters that they are voting on a sales tax. The people are not told they will adopt a use tax as well.

The court’s opinion states: “By passing their own sales and use tax under Act 26 (or by approving neither), citizens of any county have the same opportunity to avoid the imposition of the use tax otherwise imposed by Act 31.” What of the voters in the cities or counties who pass a sales tax pursuant to Act 991 and unwittingly subject themselves to a use tax as well? The “opportunity” is but a sham with respect to voters who are informed only that they are voting on a sales tax.

The laudable balancing nature of a compensating use tax does not excuse the failure to inform the voters of what they are voting on. In other election contexts, such as ballot title reviews, we insist on full disclosure. Arkansas Women’s Political Caucus v. Reviere, 283 Ark. 463, 677 S.W.2d 846 (1984). See also Gaines v. McCuen, 296 Ark. 513, 758 S.W.2d 403 (1988); Ferstl v. McCuen, 296 Ark. 504, 758 S.W.2d 398 (1988); Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). Allowing voters to be misled in the case of a compensating use tax will lead to allowing them to be hoodwinked on other matters. I would insist on full disclosure in this case and affirm the chancellor’s decision.

I respectfully dissent.


text:
    Johnny WHITAKER v. STATE of Arkansas
    RC 90-50
    796 S.W.2d 347
    Supreme Court of Arkansas
    Opinion delivered October 15, 1990

      Don Lloyd Cook II, for appellant.
    No response.
   Per Curiam.

Johnny Whitaker, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

However, the motion does not state good cause for granting the motion as discussed in our per curiam issued February 5, 1979, 265 Ark. 964. If the attorney for Whitaker will concede that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.