author: Jack Holt, Jr., Chief Justice.

text:
    Ray DANSBY v. STATE of Arkansas
    CR 94-30
    893 S.W.2d 331
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995
    [Rehearing denied March 27, 1995.]

      Jan Thornton, for appellant.

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

      Roaf, J., not participating.

   Jack Holt, Jr., Chief Justice.

The appellant, Ray Dansby, was charged and convicted of the capital murders of his ex-wife, Brenda Dansby, and Ronnie Kimble, and was sentenced by jury on each charge to death by lethal injection. It is from the verdict and sentence that this appeal is brought. As required by Rule 4-3(h), all abstracted rulings adverse to Dansby as well as the points raised on his appeal have been reviewed. We find no error from the trial court and affirm.

The facts as related by the various witnesses are these. On the morning of August 24, 1992, Brenda Dansby left her residence at 1402 North Roselawn in El Dorado to go to the store to get her eight-year-old son, Justin, some orange juice, as he was sick with a cold. Brenda’s boyfriend, Ronnie Kimble, was sleeping on a couch in the living room, while Justin was seated in a red chair in the same room watching television. According to Justin, his father, Appellant Ray Dansby, came around the side of the house to the front yard as his mother was pulling up into their driveway in her car. Ray ordered her to get out of the car twice before she complied. Justin looked out the screen door and watched as his father “had my mother like a shield” then “shot [her] in the arm and then in the neck.” Ray then came in the house, and, according to Justin, it was after Ray shot Ronnie in the chest that Ronnie got his gun, which was located underneath the couch, and positioned himself behind it. Justin had returned to his seat on the red chair, and “was afraid I was going to get shot so I lifted my feet up.” Justin further testified that he heard “clicking noises” and that Ronnie shot his gun, but that, to his knowledge, the weapon never did fire. Ray then chased Ronnie through a straight hallway to Justin’s room in the back of the house, and thereafter, Justin heard about five more shots. It was Justin’s testimony that he retreated to his mother’s room to see what had happened, and saw his father standing by Ronnie, observed him kick Ronnie twice, and heard Ray say something to him, though he could not remember what it was. As Justin exited the house, he saw his mother, who “had blood all over her neck” and “wasn’t moving.” He then left with his father, and the two walked down the road, and when they separated, Justin called the police from another residence.

Greg Riggins, Brenda’s neighbor who lived across the street, testified that he was in bed when he heard shots, at which time he jumped up and went to his front door, where he witnessed Brenda and Ray struggling with a revolver. He watched as Ray, who was standing directly behind Brenda, hit her in the back with his fist, knocking her down into the corner of the house. According to Mr. Riggins, Ray got the gun away from Brenda, stood two or three feet away from her, and shot two rounds consecutively, knocking her flat on the ground. As Brenda tried to sit up, Ray discharged another shot, which Mr. Riggins believed missed Brenda. It was Mr. Riggins testimony that “then after maybe five or six seconds he paused and the next shot went off. I assume he hit her in the head and her head launched and she went flat.” Mr. Riggins stated that Justin was standing by the second post at the front of the house and witnessed his mother’s murder. He further testified that, while he did not see any shots coming from the house, Ray ducked and hesitated before firing a shot, then went into the house after someone inside.

Several El Dorado police officers were dispatched to the residence at approximately 8:28 a.m., one of whom was Officer Larry Weaver. He arrived at the scene to find Brenda’s body outside, and Ronnie injured on the floor in the back bedroom, who was attempting to crawl and had a .38 automatic pistol laying under him which was jammed and opened where it would not work. Ronnie died several days later at an area hospital, after telling Detective Carolyn Dykes that Ray had shot him.

Shortly thereafter, Officer Mike Stegall located Ray walking on a nearby street, at which point Ray flagged him down, stating that “I’m Ray Dansby, ya’ll are looking for me.” When Officer Stegall inquired as to whether he had any guns on him, Ray replied that he had thrown them away. After being transported to the police station, Ray was verbally advised of his rights by Lieutenant Mike Hill, then stated that he left the scene with a .32 revolver and a .38 revolver, which he threw away where officers would never find them. Ray further stated to the officers that he took the weapons to Brenda’s residence because he knew that she had a .38 and that Ronnie had a handgun of some type. According to Ray, upon his arrival at the residence, he walked in the front door, where he was met by Ronnie, who was holding a handgun in his right hand “pointed down.” After an argument or discussion erupted, Ray said, “I just pulled my gun and started shooting.” After making these statements and submitting to a gunshot residue test, Ray signed a written rights waiver form, but refused to give a taped statement.

Lt. Hill stated that he was present when a .38 Interarms blue steel revolver was recovered under a manhole cover in the bottom of a drainage ditch on a street approximately three to four blocks from Brenda’s residence. At the time of recovery, the weapon, which was registered to Brenda, had five expended cartridge cases in the cylinder.

Sergeant Ricky Roberts testified that, along with a set of car keys, a purse, and a gun carrying case, four .32 caliber live rounds of ammunition were found under Brenda’s body. Additionally, seven rounds of .38 caliber ammunition were laying around her body, and another .38 round was found on the porch. Inside, Sgt. Roberts stated that there was blood behind and on the back of the couch in the living room, as well as on a dress on an ironing board and on some houseshoes which were both located behind the couch. A silver-tipped round .38 bullet was also recovered from behind the couch, similar to two rounds found in the clip and the one jammed inside the .38 Colt automatic which was recovered near Ronnie, but different from the other .38 rounds recovered.

Ann Hoff, a criminalist with the State Crime Lab, analyzed the gun shot residue kit taken from Ray, and found residue on both his hands. She received a kit submitted on Brenda by the medical examiner’s office, and also received positive results, explaining that residue found on her hands would be consistent with a struggle over the gun if it had gone off, with her hands being held up while being shot, or with her firing the gun.

Dr. Frank Peretti, Associate Medical Examiner with the State Crime Lab, performed autopsies on both victims and testified that on Brenda’s body, he located gunshot wounds near the left ear and upper chest. On Ronnie’s body, he observed gunshot wounds behind the left ear, chest, left upper back, right arm, and two superficial wounds on the left flank. It was Dr. Peretti’s opinion that Ronnie was “probably bent over” when he was shot in the back, and that the cause of death was pneumonia complicating multiple gun shot wounds.

Berwin Monroe, a firearms expert with the State Crime Lab, testified that three of the. four bullets recovered from Ronnie’s body were of the .32 caliber class, and that the fourth bullet was fired from Brenda’s gun, the .38 Interarms blue steel revolver. It was Mr. Monroe’s testimony that the bullet recovered from Brenda’s chest and the fragments recovered from her head were also fired from her gun.

Lisa Bridges, a receptionist at the prosecutor’s office, testified that she notarized an affidavit signed by Brenda on August 3, 1992, which she passed on to the deputy prosecutor, who in turn filed charges against Ray. Paula Henderson, the chief deputy clerk for the municipal court, confirmed that Ray was scheduled to appear at 9:00 a.m. on the day of the murders on charges of assault in the second degree and contempt of court. Officer James Morrow testified that on July 21, 1992, he was dispatched to Brenda’s residence after she had complained that an unwanted person, Ray Dansby, was there. At destination, he observed Brenda and Ray talking out in the yard, and recalled that as Brenda had a gun between the seats of her car, he advised her that she needed to keep it in her house. Officer Morrow further testified that he advised Ray that he needed to leave the property, that he was not to return, and that Ray left without further incident.

At trial, Larry McDuffie, a witness for the State, testified that Ray, who was his girlfriend’s half-brother, confessed to committing the murders while they were in jail together on August 24, 1992. According to McDuffie, Ray stated that he went to Brenda’s residence after she refused to “take those papers off of him,” referring to his pending municipal charges, as “he wasn’t going to go to jail for nothing this time.”

Dansby raises ten points on appeal which will be discussed in the same sequence as presented to this court, except as to a portion of Point III which relates to the sufficiency of the evidence.

Sufficiency of the evidence

Dansby combines his challenge to the sufficiency of the evidence with his third argument that the capital murder and first-degree murder statutes unconstitutionally overlap. We consider a challenge to the sufficiency of the evidence prior to a review of trial errors. See Coleman v. State, 315 Ark. 610, 869 S.W.2d 713 (1994). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, we will review the evidence in the light most favorable to the appellee and sustain the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). A defendant’s intent to commit murder may be inferred from the type of weapon used, and the nature, extent, and location of the wounds. Allen v. State, 310 Ark. 384, 838 S.W.2d 346 (1992).

Dansby asserts that there is insufficient evidence of premeditation and deliberation to prove the capital murder charge; however, the evidence presented and testimony at trial defeats this assertion. Although the testimony is at variance among different witnesses as to the exact sequence of events during the shootings, there was much said as to the weapons used, and as to the nature, extent, and location of Ms. Dansby’s and Mr. Kimble’s wounds. With reference to the shots fired into Brenda, Dr. Peretti testified that he located gunshot wounds near the left ear and upper chest of her body. Greg Riggins, an eye witness to Brenda’s murder, testified as to Ray’s hesitation of several seconds before he fired the final shot into Brenda’s head. In observance of the wounds to Ronnie’s body, Dr. Peretti testified that Ronnie sustained wounds to the left ear, chest, left upper back, and right arm, as well as two superficial wounds to the left flank. Particularly, it was Dr. Peretti’s opinion that the wound to Ronnie’s back occurred when he was “probably bent over.” Ray’s son Justin, another eye witness, testified that he watched as his father kicked Ronnie twice, and that he heard his father say something after shooting him. In light of this testimony, the jury could have easily inferred that Dansby fired multiple shots into both victims in a premeditated and deliberated manner. Also significant was Larry McDuffie’s testimony that Ray admitted to having committed the murders, as Ray was troubled by misdemeanor charges which Brenda had caused to be filed against him, which was corroborated by testimony that Ray was due in court on the morning of the incident. In sum, the evidence was overwhelming that Dansby’s killings of Brenda Dansby and Ronnie Kimble were premeditated and deliberate acts.

I. Defective jury panel

Prior to trial, Dansby filed a motion to “assure cross section of community for jury,” in which he proposed, in addition to telephone summonses, that potential jurors be summoned by mail in order to assure that the jury would represent a cross-section of the community. Although Dansby asserts in his brief that the trial court denied his motion, he neither abstracts a ruling of the court, nor is one found in the record. It is Dansby’s burden to obtain a ruling on his motion, and matters left unresolved may not be raised on appeal. See Gilland v. State, 318 Ark. 72, 883 S.W.2d 474 (1994). In his brief, Dansby claims that the jury was not proper in its racial makeup and that this was error per se. Yet the record is barren of any information as to the composition of the jury or that Dansby made any specific objection in this regard. At most, the transcript of trial reveals that, prior to seating the jury, the trial court made inquiry of Dansby as to whether the jury was acceptable to him, to which Dansby replied that he “would just continue [his] Batson objection towards the whole panel.” In short, Dansby’s challenge to the jury panel on the grounds that it did not represent a cross-section of the community was neither raised nor sufficiently developed at trial for our consideration on appeal. See Hollamon v. State, 312 Ark. 48, 846 S.W.2d 663 (1993).

II. Jury’s ability to show mercy

Dansby argues that Form Three of the Arkansas Model Instructions: Criminal (2d ed.) on conclusions results in a mandatory death sentence precluding the jury’s option to show mercy. We have recently rejected the argument that Arkansas’s statutory scheme results in a mandatory death sentence in Sheridan v. State, 313 Ark. 23, 34, 852 S.W.2d 772, 778 (1993), in which we quoted from our earlier decision in Johnson v. State, 308 Ark. 7, 17-18, 823 S.W.2d 800, 806 (1992), cert. denied, 112 S.Ct. 3043 (1992):

The appellant next argues that “the Arkansas capital murder statutory scheme becomes a mandatory death statute, and as such, is unconstitutional because it does not allow the jury to show mercy to a particular defendant.” We most recently rejected this argument in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986). There, quoting from Clines, Holmes, Ritchey & Orndorff v. State, 280 Ark. 77, 82, 656 S.W.2d 684, 686 (1983), we wrote: “[Wjhatever the jury may find with respect to aggravation versus mitigation, it is free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.”

Simply put, Section (C) of Form Three provides as follows:

(C). ( ) The aggravating circumstances justify beyond a reasonable doubt a sentence of death.
(If you do not unanimously agree to check paragraph (c) then sentence Ray Dansby to life imprisonment without parole on Form 4.)

Obviously, the language in Form Three itself does permit the jury to show mercy. We thus reject Dansby’s argument on this point.

III. Overlap of offenses

Dansby next argues that the capital murder statute is unconstitutional under the Eighth and Fourteenth Amendments because there is no difference between “premeditation and deliberation” and “purposely,” and thus, the capital murder and the first-degree murder statutes impermissibly overlap. We rejected this argument in Sheridan v. State, supra:

Appellant’s second constitutional challenge is that the elements of “premeditated and deliberated” capital murder, § 5-10-101(a)(4), and the elements of “purposeful” first-degree murder, Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991), impermissibly overlap. We have previously rejected this argument based on the same rationale we have used to uphold capital felony murder and first degree felony murder. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991). As long as there is no impermissible uncertainty in the definitions of these offenses, the mere existence of any overlapping does not render a statute constitutionally infirm. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

Sheridan v. State, supra, at 33-4, 111 (quoting Ward v. State, 308 Ark. 415, 418-9, 827 S.W.2d 110, 111-2 (1992)).

IV. Motion for continuance

As we have stated many times, the denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1986). The appellant must show prejudice from the denial of the continuance, and we will not overturn the trial court’s ruling unless the appellant has demonstrated an abuse of discretion. Davis v. State, 318 Ark. 212, 885 S.W.2d 212 (1994).

On appeal, Dansby argues that trial court erred in refusing to grant his motion for continuance on the grounds that evidence provided by the State relating to its witness, Larry McDuffie, was not provided to him within sufficient time to allow his review of the information. This issue was raised at a hearing prior to trial on April 6, 1993, at which time the trial court, upon Dansby’s request, continued the case until June 9, 1993. Additionally, after hearing arguments from both sides concerning what the State was required to provide to Dansby under A.R.Cr.P. 17, the trial court ordered that the State provide information as to dispositions on McDuffie’s criminal convictions pursuant to Rule 17(a)(6).

At trial, Dansby again requested a continuance due to the absence of a witness, Calvin Pascal, a Louisiana resident, asserting that Pascal would testify that it was Dansby’s habit to a carry a gun. As the State correctly asserts, Ark. Code Ann. § 16-63-402 (1987) requires that when a witness is absent, an affidavit must be filed showing the facts the affiant believes the witness will prove and that the affiant believes these facts to be true. This was not done. See also David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Under these circumstances, the trial court did not abuse its discretion in refusing to grant a continuance.

V Credibility of state’s witness McDuffie

Larry McDuffie testified that Ray Dansby confessed to him about the murders while both were in jail, as follows. He took a .32 caliber revolver with five extra bullets to Brenda’s residence on the day in question, and upon his arrival, Brenda told him that she “wasn’t going to take the papers off so he might as well leave,” and Ronnie told him to leave too. He then shot Ronnie twice in the chest with the .32, grabbed Brenda around the neck, shot her, and took her gun. Ronnie then found out his gun wouldn’t shoot, so he ran behind the couch, and Ray shot twice in that direction. When Ronnie ran, he “shot him once in the back or the ass somewhere,” and Ronnie fell in “the kid’s room.” He then walked up to Ronnie and kicked him once, shot him, kicked him two more times, then shot him again, stating, “you die mother f-----.” After going outside to Brenda, she pleaded, “well Ray please don’t kill me,” to which he replied, “well b— you done f-----up cause I’m not gonna leave you out here in these streets when I done killed this man inside.” He then put the pistol to her head and “blowed her brains out.”

According to McDuffie, Ray stated that he was “just glad” Brenda was dead, and that “she was playing both ends against the middle and he just got tired of it.” Ray further commented that Ronnie’s gun never did fire, that Brenda’s gun was in her purse, and that he should have picked up and fired Ronnie’s gun at the door to make it look like self-defense.

Dansby argues that the trial court erred in excluding evidence of all prior criminal activity of McDuffie, thereby precluding Dansby from presenting a complete picture on the issues of bias and credibility, as Dansby was attempting to prove that McDuffie, while in jail, was acting as a police informant, and in this capacity, solicited Ray’s confession. There were numerous motions filed prior to trial by each side relating both to the admissibility of McDuffie’s testimony, and to what the State was required to disclose to Dansby in terms of McDuffie’s prior dealings with police.

After hearing Dansby’s request to admit certain jail records and booking cards in an attempt to show that McDuffie had received preferential treatment after being arrested and was thus biased in favor of the State, the court issued a detailed ruling on this issue, finding that any evidence of guarantees of immunity or promises of leniency were proper subjects for cross-examination, which was fully exercised by Dansby, but that in the absence of any direct evidence of such an agreement or promise, no extrinsic evidence would be allowed.

As to the credibility issue, the trial court’s ruling was right on the mark. As we stated recently in Biggers v. State, supra, Arkansas Rule of Evidence 608(b) governs the credibility question, which states as follows:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination ....

(Emphasis added.)

In Biggers, a witness for the State admitted on cross-examination that he had previously lied to his supervisors at work which resulted in suspension, and that he had been the subject of an investigation for theft of property. We stated that Rule 608(b) expressly prohibits the introduction of extrinsic evidence to prove such misconduct, even if the witness denied the event. Biggers v. State, supra.

The trial court was likewise correct in its ruling dealing with reference to the issue of proof to show bias. Granted, we have said that a matter is not collateral if the evidence is relevant to show bias, knowledge, or interest. See Pyle v. State, 314 Ark. 165, 862 S.W.2d 823 (1993), cert. denied, 114 S.Ct. 1306 (1994). Stated another way, if a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence. Wood v. White, 311 Ark. 168, 842 S.W.2d 24 (1992).

Here, Dansby was allowed to explore the area of bias in his cross-examination of McDuffie as a witness. He did not deny that he had been a confidential informant for the police, and further admitted that he had signed a contract with law enforcement. Dansby asserts, however, that he proffered “substantial testimony” of McDuffie’s bias that the jury should have been allowed to hear. The proffered testimony was as follows. Paula Henderson, the chief deputy clerk with the Union County Municipal Court, testified that she could not tell whether bond was set for Mr. McDuffie’s felony charge for which he had been incarcerated at the time of Dansby’s alleged confession, nor could she determine whether bond had been set or a plea had been entered on subsequent misdemeanor charges. Calvin Leveritt, a probation officer, testified that there was no indication from the records as to whether McDuffie had a first appearance on subsequent misdemeanor charges, whereas Officer Terry Davis with the El Dorado Police Department testified that he had made the arrests and that McDuffie was to be so held. W.D. Brewster, an administrator of the Union County Jail, testified that a booking card for a subsequent misdemeanor offense reflected the notation, “Hold for Detectives,” and allowed for McDuffie’s release on his own recognizance.

In making its ruling, the trial court observed that while McDuffie advised the authorities of Dansby’s confession to him only a few days after the murders, none of the extraneous evidence which Dansby sought to admit into evidence took place prior to McDuffie’s relating Dansby’s statement to the authorities. We agree with the trial court’s assessment that the proffered testimony falls short of direct evidence of an agreement or promise of immunity, and that the admission of McDuffie’s subsequent arrests on misdemeanor charges through booking cards and jail records “would call upon the jury to perform a feat of speculation or conjecture in order to relate it to [the] alleged bias.” In sum, Dansby’s proffered evidence was not relevant to show bias, and the trial court’s well-reasoned ruling was correct.

V7. Prior bad acts

Dansby further complains that the trial court erred in refusing to grant a mistrial when the State, during cross-examination of his mother, Marie Dansby, inquired “about trouble that [he] had gotten into.” We find no inquiry as such. Instead, we note that during direct examination, counsel for Dansby asked Ms. Dansby if Brenda’s and Ray’s relationship could be characterized as “on again/off again,” to which she replied affirmatively. On cross-examination, the exchange in question took place as follows:

COUNSEL FOR STATE: Would you describe their relationship as on again, off again?
WITNESS: Yes.
COUNSEL FOR STATE: Now what do you mean by that?
WITNESS: I mean it was on again and off again. When he was working, he was up here and when he wasn’t, he was home. That’s what I mean.
COUNSEL FOR STATE: Oh, so physically you mean, that when he was physically present it was on but if he was physically not present, it was off. Is that what you mean?
WITNESS: No, it was not what I mean. I mean when he would be arrested and sent to prison and all of this stuff about nothing and she would be free to do whatever she wanted to do, that’s what I mean.
COUNSEL FOR STATE: That was when it was off?
WITNESS: It had to be off then when he was locked up, that’s what you’re . . .
COUNSEL FOR DEFENDANT: Objection, Your Honor. We’ve got to approach.

The State asserts, and we agree, that one who opens a line of questioning or is responsible for the line of inquiry should not be heard to complain on appeal. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993). While the State was properly exploring an area of inquiry that was begun on direct examination, Marie Dansby’s testimony was in no way responsive to the question asked; rather, she offered the testimony on her own accord. Under these circumstances, a mistrial was not appropriate.

VII. Witness’s comment about invocation of Fifth Amendment Rights

Dansby asserts that the trial court erred in failing to grant a mistrial after Lieutenant Mike Hill made an improper reference to Dansby’s invocation of his right to remain silent under the Fifth Amendment to the Constitution of the United States. Prior to the testimony in question, Lt. Hill stated that, after he verbally read Dansby his rights, Dansby gave a statement and allowed him to take samples from his hands for a gunshot residue kit. The exchange in question took place as follows:

COUNSEL FOR STATE: Did he appear to understand his rights as you verbally advised . . .
WITNESS: Yes.
COUNSEL FOR STATE: ... him of them?
COUNSEL FOR STATE: And did you have a conversation with him about these events at all?
WITNESS: Yes, after I informed him, of course, that he had the right to remain silent. Anything he said could be used against him in a court of law, and that, you know, if he wanted to have a lawyer present during questioning he could have one. And I asked him if he understood that at any time, you know, that he didn’t wish to talk any longer he didn’t have to.
I said or I asked him it’s very important that we find this gun. I said anyone could pick this gun up. What did you do with it? At this point he began to tell me that he left the scene with two guns, a .32 and a .38, both revolvers. And that he threw them away where we would never find ’em and he wasn’t worried about anyone finding ’em.
After obtaining the gunshot residue kit, I sat down at my desk and again informed him of his rights. This time I read him his rights from the standard waiver form that we use which he again acknowledged that he understood and signed the form.
COUNSEL FOR STATE: I’ll show you what’s been marked previously as State’s Exhibit No. 2, and ask you if you can identify this, please [handing to witness].
WITNESS: Yes, this is the form that I read to Ray Dansby that morning. It’s noted here at the top 9:00 a.m., at the bottom 9:14 a.m. which would have been the time that I read directly to him from the form and that he signed it.
COUNSEL FOR STATE: Okay. And then at some point did he also decline to talk?
WITNESS: Yes, at 9: ...
COUNSEL FOR DEFENDANT: Objection.
WITNESS: ... 21 a.m.
COUNSEL FOR DEFENDANT: Objection.
THE COURT: What’s your objection?
MS. THORNTON: May we approach?

Dansby cites the United States Supreme Court decision in Griffin v. California, 380 U.S. 609 (1965), in support of his position that Lieutenant Hill’s testimony contained an improper reference to his right to remain silent under the Fifth Amendment; however, Griffin prohibits comment on a defendant’s failure to testify at trial, and is thus of no consequence here. As the State correctly asserts in its brief, Dansby mischaracterizes the elicited testimony of Lieutenant Hill as being a comment on the invocation of Dansby’s Miranda rights. See Doyle v. U.S., 426 U.S. 610 (1976); Greer v. Miller, 483 U.S. 756 (1987); Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993). To the contrary, Lieutenant Hill’s testimony demonstrated that Dansby waived his right to remain silent and gave a statement to police officers, and according to the earlier testimony of Officer Mike Stegall elicited during cross-examination, when Lieutenant Hill attempted to record Dansby’s statement, Dansby stated that he wanted a lawyer present and that he did not want to talk. In short, the testimony elicited from Lieutenant Hill was not a comment on Dansby’s right to remain silent; rather, it merely explained to the jury why there was not a taped statement. Under the circumstances here, we find no error.

VIII. Previous felony as aggravating circumstance

For his next assignment of error, Dansby argues that the court erred in admitting, during the penalty phase, a sworn statement of the victim, Brenda Dansby, recorded at his revocation hearing eight years prior to her murder. In this statement, it was her testimony that in October of 1985, Ray forced his way into her house by prying a door open with a pocketknife. She further testified that when she asked him to leave, he stated that he would not unless she went to bed with him, which she did, and that soon afterwards she reported the incident to police.

Dansby argues that Ms. Dansby’s testimony should not have been allowed during the sentencing phase of his trial because it was previously admitted at a revocation proceeding which requires a lesser degree of proof than is required to sustain a criminal conviction. We have stated that the same degree of proof is not required to sustain a finding that an aggravating or mitigating circumstance exists, as would be required to sustain a conviction if the circumstance was a separate crime. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 cert. denied, 465 U.S. 1051 (1984). If there is evidence of an aggravating or mitigating circumstance, however slight, it is sufficient to submit that issue to the jury. Id.

The statute in question is codified at Ark. Code Ann. § 5-4-604(3) (1987), which permits the State to prove, as an aggravating circumstance, that the defendant has previously committed a violent felony. In this instance, we have held that this provision applies to crimes not connected in time and place to the killing for which the defendant has just been convicted. See Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, 479 U.S. 1101 (1987). Arkansas Rule of Evidence 804(b)(1) provides the following hearsay exception:

Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

At the revocation hearing, Brenda’s testimony was given under oath, and not only was Ray represented by counsel and thus had the opportunity to cross-examine her testimony, Brenda was in fact cross-examined. Looking at Ms. Dansby’s recorded testimony, there was some evidence that Dansby had previously committed a felony involving violence to her, and under these circumstances, the trial court did not abuse its discretion in allowing the transcript of her testimony to be admitted during the penalty phase.

IX. AMCI Form 2

Dansby argues that the court erred in denying his request to submit his version of Form Two of the Arkansas Model Jury Instructions: Criminal (2d ed.) on mitigating circumstances, which added sixteen possible mitigating factors. Since the jury recommended the penalty of death by lethal injection on each charge, we consider it appropriate to give a full recital of both Dansby’s proffered instruction on mitigating circumstances, and Form Two of the AMCI which was utilized by the trial court in its instruction to the jury. Dansby’s offered form reads as follows:

A. () We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
(Check applicable circumstances and specify any additional ones.)
1. () Ray Dansby turned himself in to the police and did not try to hide from or flee from police.
2. () Ray Dansby cooperated with the police by giving a statement and telling them what had happened.
3. () Ray Dansby had a good work history at El Dorado Paper Bag.
4. () Ray Dansby has a lot of family support.
5. () Ray Dansby was well liked and respected in his community.
6. () Outside of his relationship with Brenda Dansby, Ray Dansby has had no involvement with the law.
7. () Outside of problems in his relationship with Brenda Dansby, Ray Dansby has been law abiding.
8. () Ray Dansby has always been a quiet person and has kept to himself.
9. () Ray Dansby has demonstrated his ability to adjust and contribute while incarcerated.
10. () While the relationship between Ray and Brenda Dansby was tumultuous, Ray Dansby was not the only person responsible.
11. () Ray and Brenda’s relationship could be characterized as on again/off again.
12. () Ray Dansby loved Brenda Dansby.
13. () Although the homicide was not justified, the evidence indicates that the homicidal act occurred during an argument or fight.
14. () From the evidence, it is clear that the victims in this case had loaded weapons.
15. () From the evidence, it is clear that the victims intended to and in fact, did use their weapons.
16. () Other: Specify in writing._
B. () One or more members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree.
[repeat same sixteen factors]
C. () There was evidence of the following mitigating factors, but the jury unanimously agreed that they did not exist at the time of the murder.
[repeat same sixteen factors]
D. () There was no other evidence of any mitigating circumstances. (Check if applicable.)

The standard version of Form 2 submitted to the jury reads as follows:

A. () We unanimously find that the following mitigating circumstances probably existed at the time of the murder:
() The capital murder of Brenda Dansby was committed while Ray Dansby was under extreme mental or emotional disturbance.
() The capital murder of Brenda Dansby was committed while Ray Dansby was acting under unusual pressures or influences or under the domination of another person.
() The capital murder of Brenda Dansby was committed while the capacity of Ray Dansby to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect, intoxication, or drug abuse.
( ) The youth of Ray Dansby at the time of the commission of the capital murder of Brenda Dansby.
( ) The capital murder of Brenda Dansby was committed by another person and Ray Dansby was an accomplice and his participation relatively minor.
() Ray Dansby has no significant history of prior criminal activity.
() Other specify in writing:_
B. () One or more of the members of the jury believed that the following mitigating circumstances probably existed, but the jury did not unanimously agree:
[repeat same factors]
C. () There was evidence of the following mitigating factors, but the jury unanimously agreed that they did not exist at the time of the murder:
[repeat same factors]
D. () There was no evidence of any mitigating circumstance.

Relying on our decision in Sheridan v. State, supra, the trial judge offered the following explanation:

If you find unanimously that one or more aggravating circumstances exist, you should then complete Form 2, which deals with mitigating circumstances. However, you are not limited to this list. You may, in your discretion, find other mitigating circumstances.

This explanation is verbatim that which was offered in Sheridan v. State, supra, to which we responded as follows:

In support of his argument, Sheridan cites Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the United States Supreme Court found that a criminal defendant’s Eighth Amendment prohibition upon the infliction of cruel and unusual punishment is violated when he is sentenced to death and no instructions were given informing the jury that it could consider and give effect to mitigating evidence of the defendant’s mental retardation and former abuse received. The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown, 479 U.S. 538 (1987); Roberts v. Louisiana, 431 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. California v. Brown, supra. Not only must relevant mitigating evidence be admitted, it must actually be considered, which in appropriate cases means specifically instructing the jury to do so. Penry v. Lynaugh, supra; Eddings v. Oklahoma, 455 U.S. 104 (1982). In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid. Hitchcock v. Dugger, 481 U.S. 393 (1987).
Applying these U.S. Supreme Court rules to the instant case, it is clear to us that the jury was not limited to the mitigating factors listed on Form 2 but was invited by the judge to consider any others they saw fit and to write them in the blank spaces provided in each category. Therefore, the submission of Form 2 to the jury instead of the form proffered by Sheridan did not act as an impermissible exclusion of relevant mitigating factors. The court specifically told the jurors that the mitigating factors listed were not the sole ones to be considered and that they could consider other factors.

Sheridan v. State, supra, at 37-8, 779.

X. Number of aggravating circumstances required

For his final point of error, Dansby asserts that Arkansas’s statutes, particularly Ark. Code Ann. § 5-4-603 (Repl. 1993), require that more than one aggravating circumstance be present for a jury to impose the death penalty. We rejected this argument in Hayes v. State, 280 Ark. 509, 509-H, 660 S.W.2d 648 (1983). In Hayes, this court referred to Ark. Stat. Ann. § 1-201 (Repl. 1977), which is codified in Ark. Code Ann. § 1-2-203(b)(1987), and provides as follows:

Whenever, in any statute, words importing the plural number are used in describing or referring to any matter, parties, or persons, any single matter, party, or person shall be deemed to be included, although distributive words may not be used.

In referring to this statute, we said in Hayes that the only requirement is that the jury unanimously find at least one of the aggravating circumstances to exist before it can impose the death penalty. Hayes v. State, supra.

It is significant to note that, with respect to each charge, the jury found three aggravating circumstances in this case: (1) that Dansby previously committed another felony an element of which was the use or threat of violence to another person or creating substantial risk of death or serious physical injury to another person; (2) that in the commission of the capital murder, Dansby knowingly created a great risk of death to a person other than the victim; and (3) that the capital murder was committed in an especially cruel or depraved manner. In short, we find no merit to Dansby’s argument on this point.

XI. Proportionality review of death cases

We have recently undertaken a proportionality review of capital cases involving the death penalty. See Sheridan v. State, supra. Particularly, we have recently “agreefd] that the killing of more than one person ‘automatically’ converts] [the case] into a death case.” Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993). In Cox, we reasoned that this automatic death qualification is “because appellant committed the capital offenses under a circumstance that the legislature had enumerated as an aggravating factor.” Id. The jury found Dansby guilty of the murders of Brenda Dansby and Ronnie Kimble, and as such, its consideration of the death penalty was not error.

We find no prejudicial errors warranting reversal and accordingly, affirm the decision of the trial court.

Roaf, J., not participating.


source: Caselaw Access Project

author: Robert H. Dudley, Justice. Donald L. Corbin, Justice,

license: Public Domain

text:
    Thomas BURROUGHS, Rev. Robert Nelson, Jr., Sidney A. Warner, Jr., Elbert Smith, Wanda Hensley, Lillian Hodges, Earl Allen, Barry E. Brown, Individually and as Representatives of a Class of Persons Known as the Residents of West Memphis, Arkansas v. Mayor Keith INGRAM, Roberta Jackson, Sam Lehr, Randy Dalton, James Cooper, Maggie Boals, Pritchard Horton, Gehric Bruce, James Pulliam, Tracy Catt, Al Boals, Sherry Anderson, Mike Murphy, Jack Hogan, Jim Featherston, Loutelious Holmes, the City of West Memphis
    93-1061
    893 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Mike Everett, for appellants.

      Kent J. Rubens', and David C. Peeples, West Memphis City Attorney, for appellees.
   Robert H. Dudley, Justice.

Special meetings of the West Memphis City Council were called, before December 3, 1992, under the authority of Ordinance No. 219. The ordinance provided that a special meeting could be called only when all members of the council either were present or waived notice of the meeting in writing. The ordinance was adopted in 1952 and governed special meetings of the City Council for forty years. On December 3, 1992, Ordinance No.. 219 was amended by Ordinance No. 1561. The latter ordinance amended the original ordinance to provide that a special meeting can be called by the Mayor simply notifying all of the council members. Consequently, it would no longer be necessary for all of the council members to either be present or waive notice in writing. The ordinance amending the method of calling special meetings contained an emergency clause. The validity of that emergency clause is the subject of this case.

Two proposed ordinances were subsequently introduced, proposed Ordinances No. 1564 and 1565, and were read for the first of the three required times at a regular council meeting. Proposed Ordinance No. 1564 would create a West Memphis Water and Light Commission, convey the city-owned water, electric, and waste water utility facilities to the newly created commission, and provide for appointment of commissioners. Because it also contained an emergency clause, all of this would be accomplished before four of the city council members’ terms ended December 31, 1992. Proposed Ordinance No. 1565 would combine the municipal offices of clerk and treasurer into one office, and, again, it would take effect before the four council members’ terms ended. The proposed ordinances were read for the second time at a special meeting called by the Mayor. One city council member neither waived notice of the special meeting nor did he attend. It was agreed that the second reading of the two proposed ordinances at the special meeting was effective only if the emergency clause of Ordinance No. 1561, the ordinance amending the requirements for a special meeting, was valid. The proposed ordinances were next read at a regular council meeting on December 17, 1992, and both of them passed. They went into effect immediately because both contained an emergency clause.

Appellants, individually and as a class, filed this suit against appellees, the City of West Memphis and various city officials, and sought a declaration that Ordinances Nos. 1564 and 1565 were invalid. They also sought an injunction restraining any action under No. 1564 involving the city-owned water, electric, and waste water utility facilities.

The chancellor ruled that the emergency clause of Ordinance 1561, the ordinance amending the method of calling special meetings, is valid and consequently declined to declare Ordinances Nos. 1564 and 1565 invalid. We hold that the emergency clause of Ordinance No. 1561 does not state an emergency, and, as a result, the ordinance did not go into effect immediately. Consequently, we reverse and remand.

An emergency clause in a city ordinance has a significant effect on the people’s right of referral, and, as a result, the subject of emergency clauses is expressly provided for in the Initiative and Referendum Amendment. See Ark. Const, amend. 7. It provides that the people reserve unto themselves the power to repeal all “municipal legislation of every character.” Id. The people are given “not less than thirty nor more than ninety days after the passage” to refer an ordinance to the people, and, if referred, an ordinance does not become effective until it is approved by the people, unless it contains an emergency clause. Id. City councils are authorized to enact an emergency clause and make an ordinance effective immediately only when it is “necessary for the public peace, health and safety,” and, in that event, “a measure shall become effective without delay.” Id. Significantly, the Amendment states that “[i]t shall be necessary, however, to state the fact which constitutes such emergency.” Id. (emphasis added). It is necessary that two-thirds of all members of a city council vote separately on the ordinance going into effect immediately. Id.; see also Cunningham v. Walker, 198 Ark. 928, 930-31, 132 S.W.2d 24, 25 (1939).

Prior to the adoption of Amendment 7, an emergency clause was attached to almost all laws enacted. To prevent the practice, the framers of Amendment 7 expressly inserted in the Amendment the requirement that facts constituting the emergency be expressly stated. Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937). Since that time, we have said that it is a matter of legislative determination whether an emergency exists that requires the enactment of an emergency clause, but pursuant to Amendment 7, it is a judicial determination whether facts constituting an emergency are stated. Cunningham, 198 Ark. at 931-32, 132 S.W.2d at 26. In Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929), we held that an emergency clause which does not state a fact that constitutes an emergency is invalid. In Gentry, we said there must be some statement of fact to show that “a real emergency existed.” Gentry, 194 Ark. at 920, 110 S.W.2d at 501. In Cunningham, we said the “academic declaration of a known governmental requirement” is not a statement of a real emergency, and the statement of some “administrative truism” is not the statement of a real emergency. Cunningham, 198 Ark. at 932, 132 S.W.2d at 26.

In Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957), and in Cunningham, we set out the test for determining if a real emergency has been stated. We said that if reasonable people might disagree about whether the enunciated fact states an emergency, the clause will be upheld. However, if reasonable people would not think that the facts stated constitute an emergency, then the legislative body has acted arbitrarily and in violation of Amendment 7, and the courts will set the emergency clause aside. The test is analogous to that applied in sustaining the verdict of a jury. Cunningham, 198 Ark. at 932, 132 S.W.2d at 26.

Section 14-14-908 of the Arkansas Code Annotated of 1987, in implementation of Amendment 7, provides in pertinent part: “An emergency ordinance may be enacted only to meet public emergencies affecting life, health, safety, or the property of people.” Ark. Code Ann. § 14-14-908(a) (1987).

The emergency clause in Ordinance No. 1561, the ordinance containing the amendment for special meetings of the council, provides:

It having been found and determined by the City Council of the City of West Memphis, Arkansas, that the existing procedures for calling special meetings of the City Council are more restrictive than required by law and should be amended in order to provide for the efficient operation of city government and that time is of the essence, an emergency is hereby declared to exist, and this ordinance being necessary for the preservation of the public peace, health, safety and welfare of the citizens of West Memphis, Arkansas, shall be in full force and effect from and after the date of its passage and approval.

The first fact stated is that “the existing procedures for calling special meetings of the City Council are more restrictive than required by law.” No fair-minded person would think the statement sets out a “real emergency.” The word “emergency” in its most accepted usage means some sudden or unexpected happening that creates a need for action. The clause does not recite a fact showing that some sudden or unexpected happening has occurred, nor does it give a reason that the ordinance providing for special meetings must immediately be amended. There is no statement showing that the ordinance that had provided for calling special meetings for forty years had, for some unexpected reason, become so ineffectual that an emergency existed. There is no statement, as required by Amendment 7, to show that either the public peace, or health, or safety required that the forty-year special-meeting ordinance needed immediate and emergency amendment. The statement was nothing more than an “academic declaration of a known governmental requirement,” and such declarations do not validly state an emergency. Cunningham, 198 Ark. at 932, 132 S.W.2d at 26.

The next fact stated is that the then-existing ordinance should be amended “to provide for the efficient operation of city government.” Again, no fair-minded person would think the statement sets out a real emergency, for governments should always be operated efficiently, and many, if not most, statutes and ordinances have something to do with governmental efficiency. Governmental efficiency in this ordinance meant calling special meetings by notice by the Mayor, and that does not state an emergency. There is no statement to show that some unforeseen occurrence caused the existing ordinance for special meetings to be injurious to life, health, or safety. We declared a comparable statement of fact did not constitute the statement of an emergency in Gentry.

The final fact recited is the statement that “time is of the essence.” This phrase contains no fact showing that it is material to the ordinance; it adds nothing to the phrases already set out. It is boilerplate. The ordinance might as well have provided “this is an emergency,” and that is not sufficient to meet the requirements of Amendment 7. Gentry, 194 Ark. at 921, 110 S.W.2d at 501.

In Gentry, we wrote:

To hold that the legislature could state a fact as constituting an emergency, which obviously did not constitute an emergency, and which no one would believe constituted an emergency, would simply abolish the amendment [Amendment 7] adopted by the people.

Id. at 921, 110 S.W.2d at 501. The same reasoning applies in this case. No fact was stated in the emergency clause of Ordinance No. 1561 that required the ordinance to become effective immediately in order to preserve either the peace or the health and safety of the public, as required by Amendment 7. To uphold the emergency clause under such circumstances would be to abolish the amendment adopted by the people.

Reversed and remanded for proceedings consistent with this opinion.

Glaze, Corbin, and Brown, JJ., dissent.

Donald L. Corbin, Justice,

dissenting. The majority opinion correctly cites the standard this court must apply in deciding this case — whether reasonable minds would disagree that the enunciated facts state an emergency. Cunningham v. Walker, 198 Ark. 928, 132 S.W.2d 24 (1939).

A picture is worth a thousand words, so if the reader will indulge me, visualize this scenario: seven justices seated around a large conference table debating the ultimate legal issue of whether the wording in the emergency clause of the ordinance sufficiently reflected an emergency. Four justices said no and three said yes. The reader will enjoy observing whether we had seven, four, or three reasonable minds.

I think it patently clear that the four to three divided vote of this court illustrates the differing of reasonable minds. If the seven justices of this court are of reasonable minds and are divided four to three in answering the ultimate legal issue, then the only permissible conclusion in this case is that the law-making body recited sufficient facts to constitute an emergency. Here, the majority disregards the obvious and mandatory answer to the question presented, and persists in producing inconsistent, unpredictable law which reduces the lawyers of this state to guesswork when advising their clients. The citizens of this state deserve better.

The majority relies heavily on its own assertion that the facts recited in the instant emergency clause amount to an “administrative truism” or an “academic declaration of a known governmental requirement” which is prohibited by Cunningham. See id., 198 Ark. at 930, 132 S.W.2d at 26. However, the majority makes no attempt to distinguish the similar case of Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957), although the majority cites with approval the law from that case. In Mann, this court held that a legislative act providing an ‘“improved and superior method for the administration and government of cities of the first and second class’” validly stated an emergency. Id. at 1139, 303 S.W.2d at 892.1 see no distinction in the emergency clause upheld in Mann and the emergency clause invalidated in the present case.

I respectfully dissent.

Brown, J„ joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    John Henry CLAIBORNE v. STATE of Arkansas
    CR 94-845
    892 S.W.2d 511
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Clarence Walden Cash, for appellant.

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

Around eight o’clock on the morning of April 1, 1993, an armed burglar broke into the home of Cloy Evans in southwest Little Rock. When the burglar discovered that Evans was inside the home, he ordered him to sit down and stay there. The burglar-robber was in Evans’s home for nearly an hour, and during that time he kept checking on Evans to be certain that he did not try to get away or call the police. Evans observed the burglar-robber during this time. When he left, the burglar took a twenty-gauge shotgun, two twenty-two caliber rifles, ammunition, a fishing rod, jewelry, watches, a small amount of cash, and a blue and white cap.

A short time later, about nine the same morning, a burglar broke and entered the home of Evans’s next door neighbors, Homer and Vivian Allbritton. The burglar was dressed the same as the burglar who had broken into the Evans home earlier, except that he was wearing a blue and white cap that was identical to the one taken from Evans. The burglar-robber held a shotgun on Homer Allbritton and told both of the Allbrittons to lie on the floor. The robber took jewelry and money and left in the couple’s 1983 Mercury.

The next day a Little Rock police officer responded to a call about a suspicious person matching the burglar-robber’s description. The officer testified that the person was walking with a limp, as though he was carrying something in his pants leg. The suspicious person went behind a building, and after he came out from behind the building the officer searched him. He was not carrying a weapon, but the officer searched the building and found two sawed-off shotguns and an Uzi machine gun.

Appellant was charged with two counts of aggravated robbery, two counts of burglary, two counts of theft of property, one count of kidnapping, one count of criminal use of prohibited weapons, and one count of possession of a firearm by a felon. He was convicted of the two counts of burglary, the two counts of aggravated robbery, the one count of kidnapping, and the two counts of theft of property. The charge of criminal use of prohibited weapons was dismissed. The charge of possession of a firearm by a felon was severed for a separate trial. Appellant was sentenced as a habitual offender to forty years for the burglary of the Evans home, one hundred years for the aggravated robbery of Evans, thirty years for the theft of Evans’s property, forty years for kidnapping Evans, forty years for the burglary of the Allbritton home, one hundred years for the aggravated robbery of the Allbrittons, and thirty years for the theft of the Allbrittons’ property. The trial court ordered that all of the sentences, except one, be served consecutively. The result is that appellant was sentenced to a total of three hundred and forty years in prison. We affirm the judgment of convictions.

Appellant’s first assignment of error, and its subpoint, involve the trial court’s rulings allowing the victims to identify appellant as the person who committed the crimes. After the policeman arrested appellant, Cloy Evans and Homer and Vivian Allbritton were called to the police station to view a lineup for identification purposes. They viewed the lineup separately. Evans “positively” identified appellant as the person who broke into his home and committed the crimes. Vivian Allbritton first identified appellant as a “look-alike” and then changed her identification to “positive.” Homer Allbritton did not make an identification.

Appellant moved to suppress both the lineup identification and the in-court identification on'the ground that the lineup was impermissibly suggestive. In addition, at the suppression hearing, appellant moved to have Vivian Allbritton placed under the exclusionary provisions of Rule 615 of the Arkansas Rules of Evidence while Cloy Evans testified. The trial court ruled that Vivian Allbritton was a victim and had a right to be present under Rule 616. See A.R.E. Rule 616. Appellant replied that Vivian Allbritton was not a victim of the crimes committed against the person and property of Cloy Evans. The trial court then, ruled that even if Vivian Allbritton did not have a right to be present as a victim of the crimes against Evans’s person and property under Rule 616, she was riot a witness to those crimes and would not testify about them; therefore, she could not be excluded under Rule 615. Evans testified that he viewed the lineup of six men for about one minute before identifying appellant. Vivian Allbritton also testified that she had identified appellant. The trial court denied the motion to suppress the out-of-court identification by the two victims.

At the trial, in the State’s case-in-chief, Cloy Evans and Vivian Allbritton each identified appellant. Both described the good lighting when he was in their homes and their resulting ability to clearly see appellant.

We will not reverse a trial court’s ruling on the admissibility of an identification unless it is clearly erroneous, and we do not inject ourselves into the process of determining reliability unless there is a substantial likelihood of irreparable misidentification. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Here, there were no suggestive elements to the lineup identification procedure, and there were sufficient aspects of reliability surrounding the identification to permit its use as evidence. It was then for the jury to weigh its credibility. Id.

As a subpoint of this first assignment appellant contends that the trial court erred in interpreting Rule 616 of the Arkansas Rules of Evidence to allow Vivian Allbritton to remain in the courtroom at the suppression hearing while Cloy Evans identified appellant. The trial court’s ruling involving Rule 616 was correct. Vivian Allbritton was a victim of the crimes committed against her and her property and therefore had a right to be present under the rule. She was not a witness to the crimes committed against Evan’s person and property, and therefore did not have to be excluded as a witness to those crimes.

For his second assignment of error, appellant contends that he was unfairly prejudiced by the deputy prosecutor asking questions about guns and displaying guns to the jury, but he has not brought up a record sufficient for us to review this assignment. The record reflects the following. Appellant was charged with criminal use of prohibited weapons as a result of the officer’s discovery of the sawed-off shotguns and the machine gun. At trial, the State asked the officer about the arrest of appellant. Appellant objected and was allowed to question the witness out of the presence of the jury. During the in camera hearing, the trial court ruled that the State did not have enough evidence to go to the jury on the charge of possession of illegal firearms, and prohibited any mention of the weapons. The trial court further ordered the prosecutors to remove the weapons from the courtroom. A good while later, at the end of the officer’s testimony, appellant’s counsel moved for a mistrial and stated that it was “based upon the display of those guns and the mention earlier ... [a]t the beginning of the officer’s testimony of the Uzi and the sawed-off shotguns.” The motion was denied.

There is nothing in the record, other than counsel’s statement, to indicate that the jurors earlier had heard any testimony about the weapons or that the jurors saw the weapons. It is clear from the record that the Uzi machine gun was in a bag, and the record does not reflect that it was ever taken out of the bag or that the bag was shown to the jury. The police officer testified out of the hearing of the jurors about the weapons. During the in camera hearing there were several references to “these guns,” apparently referring to the shotguns, as if the attorneys were looking at them, but the record does not reflect where the guns were before the hearing started. During the hearing the trial judge stated:

Now, the next question is, on counsel’s objection, putting these weapons in front of the jury which has not been done yet and presenting these weapons to the jury without sufficient basis, would probably put error in this trial for any other charges that you have. (Emphasis added.)

After the judge made the ruling which prohibited showing or mentioning the weapons, he told the prosecutor to remove the weapons before the jury returned. In sum, appellant has not brought up a record sufficient to show that any of the jurors saw the weapons or heard any comment about them. It is appellant’s duty to bring up a record sufficient to show that the trial court erred, and failure to do so results in a waiver of the argument on appeal. Stewart v. State, 316 Ark. 153, 870 S.W.2d 752 (1994).

Appellant’s final point involves the length of the two sentences for aggravated robbery. Appellant is a habitual offender with seven prior convictions. Section 5-4-501 of the Arkansas Code Annotated of 1987 provides in pertinent part:

(b) A defendant who is convicted of a felony committed after June 30, 1983, and who has been previously convicted of four (4) or more felonies or who has been found guilty of four (4) or more felonies, may be sentenced to an extended term of imprisonment as follows:
(1) For a conviction of a Class Y felony, a term of not less than ten (10) years nor more than life.

Ark. Code Ann. § 5-4-501(b)(l) (Repl. 1993). The jury imposed a sentence of one hundred years for each of the aggravated robbery convictions. The trial court ordered these two sentences and all others, except one, to be served consecutively so that the sentences amounted to a total of three hundred and forty years. Appellant argues that the two senténces for one hundred years each are illegal and excessive because they are longer than he can reasonably be expected to live; therefore, they are “more than life.” See Ark. Code Ann. § 5-4-501 (b)(1). Apparently, appellant is attacking the sentences as being facially illegal. See Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986).

A sentence of “more than life” is defined by this court as life without parole or death. Malone v. State, 294 Ark. 127, 130, 741 S.W.2d 246, 248 (1987); see also Franklin v. State, 308 Ark. 539, 825 S.W.2d 263 (1992). Therefore, the two sentences of one hundred years each are within the statutory limits and thus are not facially illegal. Franklin, 308 Ark. at 542, 825 S.W.2d at 265. Appellant additionally contends that the foregoing definition violates the Due Process and Double Jeopardy clauses and the prohibition against cruel and unusual punishment of the United States Constitution. However, he made no such argument in the trial court, and we will not consider an argument, even a Constitutional argument, raised for the first time on appeal. Collins v. State, 308 Ark. 536, 826 S.W.2d 231 (1992).

Affirmed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    Vickie LAWSON v. Evelyn A. SIPPLE
    94-586
    893 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered February 20, 1995

      Brazil, Clawson, Adlong, Murphy & Osment, for appellant.

      Grady & Adkisson, P.A, by: William C. Adkisson, for appellee.
   Robert H. Dudley, Justice.

Plaintiff, Evelyn Sipple, purchased a lot on Camilla Lane in the Stonebridge subdivision in Conway in December of 1992. At that time she lived out of state, but wanted to immediately start construction of a home on the lot, so she asked her daughter, a resident of Conway, to look after construction of the home. Defendant Vickie Lawson’s home is located directly across the street from plaintiff’s lot. Camilla Lane runs north and south, and plaintiff’s lot is on the east side of the street. Defendant installed her mailbox on plaintiff’s side of Camilla Lane in 1989 when an employee of the United States Postal Service told defendant that Camilla Lane had been designated a rural route with delivery only on the east side of the street. Defendant’s mailbox is directly in front of plaintiff’s home, on plaintiff’s side of the street, and interfered with the construction of a sidewalk from plaintiff’s front door to the street, blocks part of a yard sprinkler system, and interferes with grading the lawn.

During construction of plaintiff’s home, her daughter asked defendant to move her mailbox to the northwest corner of plaintiff’s lot where another neighbor’s mailbox was located and where plaintiff intended to place her mailbox. Defendant refused to move her mailbox, so plaintiff’s daughter removed it. Defendant reinstalled it at the original location, and, after yet another move, defendant again relocated the mailbox to its original position, which is directly in front of plaintiff’s front door, and, this time, encased it inside a brick structure.

In September of 1993, following completion of her home, plaintiff filed this suit in chancery court and sought an injunction ordering defendant to move her mailbox structure away from directly in front of plaintiff’s home and to the northern boundary of plaintiff’s lot. Defendant answered and filed a counterclaim in which she alleged that plaintiff interfered with the delivery of her mail by taking down her mailbox and by parking in front of the box. She asked that plaintiff be ordered to refrain from removing her mailbox and from interfering with delivery of her mail.

At the conclusion of the trial, the chancellor requested that both parties file posttrial briefs. The chancellor subsequently issued a letter opinion. After receiving the letter opinion, defendant filed a request under Rule 52 of the Arkansas Rules of Civil Procedure for the chancellor to make specific findings of fact and conclusions of law. Another hearing was held, and the chancellor entered the final decree finding that plaintiff owned title in fee simple to the middle of Camilla Lane subject to an easement in favor of the City of Conway for use as a public street, that no one has an absolute right to home delivery of mail, and that defendant had no right to place her mailbox on plaintiff’s property. The chancellor ordered the mailbox removed, awarded damages to plaintiff in the amount of $125, which was the cost of having the mailbox moved, and awarded attorney’s fees of $1200, as well as costs. We affirm and modify in part and reverse in part.

Defendant first argues that the trial court was without subject matter jurisdiction because of the exclusive federal authority over the Postal Service. The doctrine of federal preemption is based upon the supremacy clause in article VI of the United States Constitution. Under the supremacy clause, state laws that “interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution” are invalid. Gibbons v. Ogden, 22 U.S. 1, 211 (9 Wheat.) (1824). It involves a congressional intent to supplant state authority in a particular field. Jones v. Rath Packing Co., 430 U.S. 519 (1977).

Section 8 of article I of the United States Constitution vests Congress with the exclusive authority to establish post offices and post roads. Congress created the United States Postal Service to carry out the duties regarding the delivery of mail. See 39 U.S.C. §§ 101(a) & 102 (1988). The Postal Service is required by Congress to maintain an efficient system of mail delivery nationwide. 39 U.S.C. § 403 (1988). Pursuant to its postal powers, Congress may designate the route over which the mail shall be carried and what may be carried in the mail, and it may prescribe all measures necessary to secure the mail’s speedy transit and prompt delivery. In re Rapier, 143 U.S. 110 (1892).

Although Congress and the United States Postal Service have the exclusive authority to control the delivery of mail, it does not follow that a dispute involving the location of a mailbox must be decided only in federal district court, and defendant has not cited us to any federal law providing that jurisdiction of disputes involving mailboxes must be heard exclusively in the federal courts. While not exactly on point, section 409 of title 39 of the United States Code is an indication of Congressional intent not to supplant the authority of state courts to decide disputes such as the current one. It provides in pertinent part,

Except as provided in section 3628 of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court under the provisions of chapter 89 of title 28. . . .

39 U.S.C. § 409 (1988) (emphasis supplied). Thus, even in cases in which the Postal Service is a party, federal district courts do not have exclusive jurisdiction. Another strong indication that federal jurisdiction is not exclusive is found in a section of the Domestic Mail Manual. This publication is compiled by the United States Postal Service and is incorporated into the Code of Federal Regulations. 39 C.F.R. § 111.1 (1994). Section 151.524 of the Domestic Mail Manual provides in pertinent part, “On new rural or highway contract routes, all boxes must be located on the right side of the road in the direction of travel by the carrier. Boxes must be placed to conform to state laws and highway regulations.” (Emphasis added.)

In summary, the doctrine of preemption does not, in itself, operate as a bar to state court jurisdiction. State court jurisdiction is barred only when the federal statutory or regulatory scheme expressly provides that the exclusive jurisdiction to decide an issue is in the federal district courts or a federal agency. State courts can, and often do, interpret federal law. Accordingly, we do not dismiss for lack of state court jurisdiction.

Defendant’s second point of appeal is that plaintiff was not entitled to the order requiring defendant to remove her mailbox without some proof that she suffered an injury different from the public at large because the encroachment is on a public right-of-way. See Mergenschroer v. Ashley, 244 Ark. 1238, 429 S.W.2d 120 (1968). We do not reach the issue because defendant did not make this argument below, and we will not consider it for the first time on appeal. See Grandjean v. Grandjean, 315 Ark. 620, 869 S.W.2d 709 (1994).

In her posttrial brief defendant made a different argument. She argued that plaintiff was without standing to object to the location of the mailbox because the City of Conway, not plaintiff, owned the land upon which it was located. Defendant also made a factual argument at trial that plaintiff was not entitled to bring the action because, by the terms of the subdivision plat, plaintiff only owned to the edge of the fifty-foot right-of-way for the street. However, the restrictive covenants state that “[t]he owners of the separate lots in Stonebridge Subdivision shall own the fee simple title to the center line of all streets upon which said lots abut, subject to the public easement [street right-of-way] aforesaid.” The chancellor found a fifty-foot right-of-way for Camilla Lane and that Camilla Lane itself was only twenty-seven feet wide. Therefore, the right-of-way extended eleven and one-half feet on either side of the paved street onto the property of the abutting landowners. Thus, the chancellor found that defendant’s mailbox was located on property owned by plaintiff in fee simple, but within the public street right-of-way. As such, plaintiff has rights as owner of the servient tenement, including the right to bring an action in order to direct placement of a structure within the easement. See Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 899 S.W.2d 756 (1994).

Defendant’s third assignment is that the chancellor erred in refusing to make a requested finding on “whether the delivery of mail within a dedicated street right of way is a public roadway purpose.” Appellant alleges that the failure of the chancellor to act on this request was error under Rule 52(a) of the Arkansas Rules of Civil Procedure, which provides in pertinent part, “If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon. . . .”

The chancellor specifically addressed this requested finding and ruled: “The Court specifically declines to make a conclusion as to whether as a matter of law the delivery of mail within a dedicated street right of way is a public roadway purpose. The Court finds that there is no evidence on that issue.” While the chancellor stated that he declined to answer the requested finding he did, in effect, make a finding on the matter — that the evidence was insufficient to make a finding. The defendant was entitled to no more. A party is not entitled to a direct answer on every specific requested finding if the trial court’s findings adequately address the issues. See Southeast Ark. Landfill, Inc. v. State, 313 Ark. 669, 858 S.W.2d 665 (1993). In any event, this is an appeal from a chancery court. We review such cases de novo, see Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995), and, consequently, we would not reverse on this point of appeal even if the chancellor had refused to make a finding. All of the facts necessary to decide the issue are before us, and we can make a de novo determination of the matter. Those facts are discussed in defendant’s next assignment of error.

Defendant’s fourth assignment is that the chancellor erred in failing to find that delivery of mail within a street right-of-way is a public roadway purpose. The argument has merit. The grant of the easement to the City of Conway was for “public streets.” We have considered the fact that a road was used as a mail route in determining whether a road had become a public road through adverse use. See White v. County of Faulkner, 269 Ark. 304, 601 S.W.2d 827 (1980). In addition, the General Assembly has recognized the public nature of mail delivery by enacting legislation giving a county judge the discretion to designate as a county road any road that is used as a mail route or a free rural mail delivery route if the road is designated as a mail route by the Postal Service. Ark. Code Ann. § 27-66-205 (Repl. 1994).

We have discussed the nature of a “public use” that is encompassed by a grant of an easement for a public street and have written:

There is a generally recognized distinction between a highway in the country and a street in a municipality, as to the mode an extent of the use and enjoyment, and, consequently, as to the extent of the servitude in the land upon which they are located, the urban servitude being much more comprehensive than the rural. Streets within the limits of municipal corporations are subject to many uses by the public to which highways in the country are not subject. Moreover, as a village grows into a town and the town grows into a city, the rights of the public in its streets are correspondingly broadened. As a rule, country highways are needed only for purpose of passing and repassing, and, subject to some exceptions, the rights of the public and of the authorities in charge are confined to the use of the surface, with such rights incidental thereto as are essential to such use. Streets, however, may be used for many purposes other than travel, such as construction of sewers and drains, the laying of gas and water pipes, the erection of telegraph, telephone and electrical power lines, and a variety of other improvements, beneath, upon, and above the surface, to which in modern times they have been subjected.

Padgett v. Arkansas Power & Light Co., 226 Ark. 409, 413, 290 S.W.2d 426, 428-29 (1956).

The “public use” that is encompassed by the grant of an easement for a public street is sufficient to include the delivery of mail. Miller v. Nichols, 526 A.2d 794 (Pa. Super. Ct. 1987). Accordingly, defendant’s argument that the trial court erred in failing to find that delivery of mail within a street right-of-way is a public use of the right-of-way is well taken. Defendant deduces that, because of the error, we must reverse and dismiss this case, because an abutting landowner can only complain about the use of a street right-of-way when the right-of-way is subjected to a new servitude that is inconsistent with its public purpose. See Freeze v. Jones, 260 Ark. 193, 539 S.W.2d 425 (1976); Padgett v. Arkansas Power & Light Co., 226 Ark. 409, 290 S.W.2d 426 (1956). She argues that the plaintiff cannot complain about the use of the street for delivery of mail within the street right-of-way, and, therefore, we must reverse and dismiss and leave her mailbox at the location of her choice.

Defendant’s statement of law is a valid one, but it misses the issue and, as a result, leads to the wrong result. Even though we hold that authorized rural mailboxes, as part of the federal postal system, serve a public purpose and may be maintained within the right-of-way of a street, it does not follow that a mail patron has the unlimited right to place his or her mailbox on the land of another, without notice to either the servient landowner or to the owner of the dominant right-of-way, and without regard to where those parties wish the mailbox to be located. Also, it does not necessarily follow that there are no possible issues of just compensation to either the servient landowner or the right-of-way owner, or that a court can not determine where the mailbox should be placed. Rather, our holding is that the mail patron has a floating easement for the placement of a mailbox in the right-of-way dedicated for “public use.”

In discussing a floating easement, we have recently written:

Where such right-of-way is reserved, or expressly granted and not defined, the owner of the servient estate, in the first instance, has the right to delimit it, and, in the event of his failure to do so, it may be selected by the grantee of the easement; but, in either case, the location must be a reasonable one, taking into consideration the interest and convenience of both the dominant and servient estates.

Carroll Elec. Coop. Corp. v. Benson, 319 Ark. 68, 73, 889 S.W.2d 756 (1994) (quoting Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 271, 261 S.W. 645, 648 (1924)). We have also written that the owner of the dominant estate must use the property so as to not interfere with the servient estate holder’s right to the utilization and enjoyment of his estate. Davis v. Arkansas La. Gas Co., 248 Ark. 881, 454 S.W.2d 331 (1970).

A good part of the discussion in our decisional conference on this case was devoted to whether we should modify the chancellor’s order because of the unusual procedure in this case. The facts surrounding the issue are as follows. Plaintiff filed this suit and asked only that the defendant be ordered to remove the mail receptacle from its present location and to place it at the northern boundary of plaintiff’s property where the mail receptacles of other property owners are placed. In her trial brief plaintiff stated that the defendant had no right to place her mailbox wherever she chose along the street right-of-way, although the plaintiff would allow her to place the mailbox along the north line of the plaintiff’s property. Plaintiff’s complaint and brief asked only the relief to which we hold she is entitled. On the other side, the defendant has steadfastly insisted that she has the unqualified right to place the mailbox wherever she chooses on plaintiff’s servient estate. The issue joined by the pleadings in the trial court was whether defendant would prevail and be able to place the mailbox wherever she chose, or whether the plaintiff would prevail and the chancellor would order the mailbox moved to the north line of plaintiff’s property as requested by plaintiff. Surprisingly, the chancellor granted plaintiff more relief than asked and ruled that “the defendant has no right to placement of her mailbox on plaintiff’s property and is directed and ordered to remove it forthwith.” Even after the chancellor’s order, the plaintiff in her brief in this court renewed her offer as follows: “Since before this cause of action was initiated, the appellee [plaintiff] has indicated her willingness for the appellant [defendant] to locate her mailbox on appellee’s north line, where her own mailbox is located as well as those of other neighbors. That offer has been renewed in the complaint filed by the appellee, and by separate post-trial letter briefs to the trial court. Appellee maintains that position, enabling appellant to obtain the curbside service over which she now seeks to make a “federal issue.” In oral argument before this court, both plaintiff’s counsel and defendant’s counsel were asked if they thought a modification of the trial court’s order would be just under these unusual circumstances. Quite naturally, plaintiff’s counsel showed no enthusiasm for such a modification and pointed out that the defendant had never requested such relief, but did not disclaim either her pleadings in the trial court or her statement in her brief in this court.

Under these circumstances, we think it is just to modify the decree to provide that the defendant may place her mailbox in the servient right-of-way, but the location must be a reasonable one, taking into consideration the interest and convenience of plaintiff’s servient estate. Thus, we affirm the holding of the chancellor that the defendant does not have the right to place her mailbox wherever she chooses in the right-of-way, but modify it to provide that she may place it in the right-of-way subject to plaintiff’s right to delimit, and we remand for further proceedings consistent with this holding. Finally, we note that defendant did not make the City, the owner of the dominant estate, a party to her counterclaim.

Defendant’s final point of appeal is that the chancellor erred in awarding attorney’s fees to the plaintiff. The chancellor awarded $1,200.00 in fees pursuant to section 16-22-309 of the Arkansas Code Annotated of 1987. That statute awards fees “[i]n any civil action in which the court having jurisdiction finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party or his attorney.” Ark. Code Ann. § 16-22-309(a)(l) (Repl. 1994). Subsection (b) defines when there is an absence of a justiciable issue:

In order to find an action, claim, setoff, counterclaim, or defense to be lacking a justiciable issue of law or fact, the court must find that the action, claim, setoff, counterclaim, or defense was commenced, used, or continued in bad faith solely for purposes of harassing or maliciously injuring another or delaying adjudication without just cause or that the party or the party’s attorney knew, or should have known, that the action, claim, setoff, counterclaim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

From our de novo review of the record, we conclude that the chancellor abused his discretion in awarding fees under this standard. This was a case of first impression in this jurisdiction. The issues raised by defendant in defending the action and in pursuing her counterclaim had a basis in fact and a partial basis in law, as she is entitled to place her mailbox in the right-of-way. While counsel was in error in arguing that our cases gave her the unfettered right to place her mailbox wherever she chose, there was nothing to indicate that the argument was made in bad faith or that it was made solely for the purpose of harassing or of maliciously injuring the plaintiff.

Affirmed and modified in part and reversed in part.

Glaze, J., concurring in part and dissenting in part.

Tom Glaze, Justice,

concurring in part, dissenting in part. The majority opinion correctly holds that authorized rural mailboxes, as part of the federal postal system, serve a public purpose and may be maintained within the right-of-way of a street. I also agree that the location of Ms. Lawson’s mailbox in the right-of-way must be a reasonable one. However, because this review is de novo, I would decide and mercifully end this case, and based upon the record before us, would order the Lawson mailbox to be placed at the northeast corner of Ms. Sipple’s lot where other mailboxes are located. In my view, the “floating easement” law is inapplicable to the facts here and unnecessarily complicates the analysis of the case.