author: Annabelle Clinton Imber, Justice.

text:
    Richard BURRIS v. STATE of Arkansas
    CR 97-494
    954 S.W.2d 209
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      John W. Settle Law Firm, by: John W. Settle, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Richard Burris, was convicted of possession of methamphetamine with intent to deliver, possession of amphetamine with intent to deliver, and carrying a weapon. For these crimes, Burris was sentenced to a concurrent term of forty years’ imprisonment. On appeal, Burris challenges the sufficiency of the evidence to sustain his convictions, and the court’s denial of his motion to suppress evidence seized from his vehicle. We affirm.

On July 10, 1996, Captain Dale Best of the Arkansas State Highway Patrol noticed a 1988 Dodge pulling a trailer traveling along Interstate 40. The Florida license plate was fastened to the trailer in such a fashion that the wind caused the plate to flip upwards making it difficult to read. The last letters of the license plate were also obscured by the corner of the trailer. Captain Best testified that he had to follow the vehicle for “some distance” before he was able to read the entire license plate. In addition, the lens covering the left brake light on the trailer was partially broken causing the light to shine white instead of red.

Captain Best stopped the vehicle for the improperly displayed license plate and for the broken brake light. After telling the driver, Richard Burris, why he had been stopped, Captain Best asked Burris for his license, proof of insurance, and registration. While verifying this information, Captain Best learned that Burris had previously been arrested for weapons and drug charges, and convicted of a misdemeanor drug offense. Captain Best then asked Burris to come to the back of the trailer where he explained to him that his license plate was improperly attached and that his brake light was broken. According to Captain Best, Burris appeared to be unusually nervous and would not make eye contact.

On three occasions, Captain Best asked Burris if he had ever been arrested for criminal charges, including drugs, and Burris answered that he had never been arrested for a crime other than speeding. Because Burris appeared nervous and had previously been arrested on weapon charges, Captain Best became concerned for his safety and asked Burris if he had any weapons. Twice, Burris answered in the negative. Captain Best asked Burris for a third time if he had any weapons in the car, and Burris answered that he had a .22 caliber derringer “in the passenger’s compartment, next to the driver’s seat, toward the floorboard, on a console type arrangement.” Burris refused to give consent to search the vehicle but offered to retrieve the gun for Captain Best. Captain Best refused the offer, and asked Burris to show him where the gun was. Burris did so, and Captain Best retrieved the loaded gun from the front seat of the car.

Captain Best placed Burris under arrest, and began an inventory search of the vehicle. Captain Best estimated that Burris was arrested fifteen to twenty minutes after the initial stop. During the inventory of Burris’s vehicle, the officers found in the trunk several plastic bags containing amphetamine and methamphetamine, and a loaded .44 revolver. Burris was subsequently charged with possession of methamphetamine with intent to deliver, possession of amphetamine with intent to deliver, and carrying a weapon

The trial court denied Burris’s motion to suppress the evidence seized from his trunk, found him guilty of all three crimes, and sentenced him to a concurrent term of forty years’ imprisonment. Burris filed a timely notice of appeal from his judgment and commitment order.

I. Sufficiency of the Evidence

For his first argument on appeal, Burris challenges the sufficiency of the evidence to support all three of his convictions. When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others in order to preserve the defendant’s right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support a verdict. Williams, supra; Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Substantial evidence is direct or circumstantial evidence that is forceful enough to compel a conclusion one way or another and which goes beyond mere speculation or conjecture. Williams, supra; Ladwig, supra. In making this determination, we review the evidence in the light most favorable to the State, and consider only the evidence that supports the verdict. Williams, supra; Ladwig, supra.

Burris’s sole challenge to the sufficiency of the evidence is his argument that his conviction must be reversed if we find that the court erred in denying his motion to suppress the evidence seized from his car. We find no merit to this argument because we have continuously held that when reviewing the sufficiency of the evidence upon appeal we must consider both properly and improperly admitted evidence. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997); Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). Because the police found the drugs and guns in Burris’s vehicle, we find that there was substantial evidence to support his convictions.

II. Motion to Suppress

Burris’s second argument is that the trial court erred when it denied his motion to suppress the evidence that the police seized from his car. Burris contends that the drugs and guns should have been suppressed because the initial stop, detainment, and subsequent search of his vehicle were unlawful under the Fourth Amendment.

In reviewing the trial court’s denial of a suppression motion, we make an independent examination based on the totality of the circumstances, and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996); Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996). In making this determination, we view the evidence in the light most favorable to the State. Norman, supra; Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995).

A. Initial Stop

First, Burris claims that the initial traffic stop was unlawful, and thus, evidence seized thereafter is inadmissible pursuant to the Fruit of the Poisonous Tree doctrine as discussed in Wong Sun v. United States, 371 U.S. 471 (1963). We disagree with this assertion.

In Whren v. United States, 116 S. Ct. 1769 (1996), the United States Supreme Court recently explained that a police officer may stop and detain a motorist where the officer has probable cause to believe that a traffic violation has occurred. For example, in Wilburn v. State, 317 Ark. 73, 876 S.W.2d 555 (1994), we held that an officer had probable cause to stop a motorist when he discovered that the vehicle bore a license plate which was issued to a different car in violation of Ark. Code Ann. § 27-14-306 (Repl. 1994). Thus, the relevant inquiry is whether Captain Best had probable cause to believe that Burris was committing a traffic offense at the time of the initial stop.

We have previously explained that probable cause exists when the facts and circumstances within an officer’s knowledge are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994); Johnson v. State, 299 Ark. 223, 772 S.W.2d 322 (1989). In assessing the existence of probable cause, our review is liberal rather than strict. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997).

During the suppression hearing, Captain Best testified that he had difficulty reading Burris’s license plate because it was fastened to the trailer in such a fashion that the license plate flipped upwards in the wind, and because the last digits of the plate were obscured by the corner of the trailer. Based on these facts, we find that Captain Best had probable cause to believe that Burris was violating Ark. Code Ann. § 27-14-716(b) (Repl. 1994), which provides that:

Every license plate shall, at all times, be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than twelve inches (12“) from the ground, measuring from the bottom of such plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.

Although a further justification for the initial stop is unnecessary, Captain Best also testified during the suppression hearing that he stopped Burris because the lens of the trailer’s left tail light was partially broken causing it to shine white instead of red. According to Ark. Code Ann. § 27-36-215(a)(l) (Repl. 1994):

Every motor vehicle, trailer, semitrailer, and pole trailer, and any other vehicle which is being drawn at the end of a train of vehicles, shall be equipped with at least one (1) tail lamp mounted on the rear, which, when lighted as required, shall emit a red light plainly visible from a distance of five hundred feet (500’) to the rear.

Because we find that Captain Best had probable cause to believe that Burris was committing two traffic violations, we find that the initial stop was lawful.

In reply, Burris argues that he was not guilty of violating either Section 27-14-716(b) or 27-36-215(a)(l). According to Whren, all that is required is that the officer had probable cause to believe that a traffic violation had occurred. Whren, supra. Whether the defendant is actually guilty of the traffic violation is for a jury or a court to decide, and not an officer on the scene. For example, in State v. Jones, 310 Ark. 585, 589, 839 S.W.2d 184, 186 (1992), we emphasized that “it should be kept in mind that we are not dealing with the guilt or innocence under the [traffic] ordinance, [but] merely with whether there was probable cause to conclude the ordinance had been violated.” Moreover, we have repeatedly held that the degree of proof sufficient to sustain a finding of probable cause is less than that required to sustain a criminal conviction. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996). Thus, we find no merit to this argument.

B. Detainment

Next, Burris argues that the evidence should have been suppressed because Captain Best had no legal reason to detain him for fifteen to twenty minutes after he was initially stopped for the traffic violations. Although Burris did not raise this argument in his motion to suppress, he clearly developed this argument during the suppression hearing, and the State failed to object. Thus, we find that the issue is properly preserved for appeal.

According to Terry v. Ohio, 392 U.S. 1 (1968), given the lawfulness of the initial stop, the question is whether the resulting detention was “reasonably related in scope to the circumstances which justified the interference in the first place.” Arkansas Rule of Criminal Procedure 3.1 states that an officer may detain a suspect for not more than fifteen minutes or “for such time as reasonable under the circumstances” if the officer has a reasonable suspicion that the person is committing, has committed, or is about to commit either “1) a felony, or 2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property.” A reasonable suspicion has been defined as a suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). In making this determination, the trial court may consider several factors, including, but not limited to: (a) the demeanor of the suspect; (b) the gait and manner of the suspect; (c) any knowledge the officer may have of the suspect’s background or character; and (d) any apparent effort of the suspect to avoid identification or confrontation by the police. Ark. Code Ann. § 16-81-203 (1987).

In this case, Captain Best detained Burris for approximately fifteen to twenty minutes to explain to him the traffic violations for which he was stopped and to question him about his possible possession of guns and drugs. Captain Best testified that he detained and questioned Burris because: 1) he was aware that Burris had been previously arrested on drug and gun charges; 2) Burris lied to him about his prior arrests; 3) Burris appeared unusually nervous and avoided eye contact; and 4) he was concerned for his own safety.

Burris argues that Captain Best should not have been able to consider his prior convictions and arrests under Ark. Code Ann. § 16-81-201(1) (1987), which states that the subchapter shall not be construed to:

Permit an officer to stop just any passerby and Search him, nor allow the search of any person merely because he has a criminal record.

(Emphasis added.) We find that this argument fails for two reasons. First, the statute states that an officer may not “stop” a passerby and search him because he has a criminal record. Captain Best stopped Burris for traffic violations, not because of his criminal record. Additionally, the statute says that a person may not be searched “merely” because he or she has a criminal record. Captain Best retrieved a loaded weapon from Burris’s car only after Burris disclosed that he had the weapon in his vehicle, and not merely because he had a criminal record. Furthermore, the inventory search of Burris’s car occurred after Burris’s arrest and not merely because he had a criminal record.

For these reasons, we find that Captain Best had a reasonable suspicion that Burris was in possession of drugs which is a felony under Ark. Code Ann. § 5-64-401 (Supp. 1995). Moreover, Captain Best detained Burris for only fifteen or twenty minutes which we find is “reasonable under the circumstances” as required by Rule 3.1. Thus, we conclude that Captain Best lawfully detained Burris.

C. Warrantless Search of the Vehicle

Finally, Burris contends that the warrantless search of his vehicle violated his rights under the Fourth Amendment. Because Burris failed to raise this argument in his motion to suppress or during the suppression hearing, we refuse to consider it for the first time on appeal. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995); Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994).

For these reasons, we conclude that there was sufficient evidence to support Burris’s convictions, and that the trial court did not err when it denied Burris’s motion to suppress. Accordingly, we affirm Burris’s convictions.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Willie Gaster DAVIS v. STATE of Arkansas
    CR 97-401
    953 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      Arkansas Public Defender Commission, by: Teri Chambers, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

The appellant, Willie Gaster Davis, appeals his judgments of conviction for first-degree murder, robbery, theft of property, and false imprisonment. On appeal, he argues that the trial court erred in failing to suppress his statement and that uncounseled misdemeanor convictions were impermissibly introduced against him during sentencing. We find no error and affirm.

Because Davis does not challenge the sufficiency of the evidence on appeal, we provide only a brief recitation of the facts adduced at trial. Traci Noble testified that she was best friends with the victim, Nikki Muse. On April 21, 1995, Muse (who was driving) and Noble went out riding in a white Grand Am belonging to Noble’s sister. They eventually went to Dumas to find Odis Madden, “Mane,” a friend of Noble’s. While driving in Dumas, they saw some boys on the corner who flagged them down. Noble explained that they were looking for Madden, and the boys answered that they could show them where he lived. Noble and Muse allowed these three boys to enter the back seat of the vehicle, although Noble said that neither she nor Muse knew who they were.

Noble testified that these boys led them to a dead-end street, and told them that Madden lived at a house that did not have lights on at the time. The boy on Noble’s side of the car began to get out of the vehicle, pulled her out of the car, and grabbed the gold chains she was wearing, telling her to “give him my money.” Noble testified that the boy on Muse’s side of the vehicle “[did] the same thing with her, Nikki.” Noble later identified the man behind her who took her chains as Willie Spencer. She thought the boy in the middle, who ran away, was named Bryan. The third boy pushed Muse into the passenger seat, sat in the driver’s seat, and drove away. Noble saw this boy demand money from Muse, who in turn gave money to him. Noble testified that there was no doubt in her mind that Muse did not want to go with this boy. She never saw Muse alive again. She made an in-court identification of Davis as the man who demanded money from Muse and drove off with her. Noble managed to ultimately escape from Spencer after which she contacted the police. At the police station Noble was shown a photo lineup and eventually identified Davis as the man who drove off with Muse.

Spencer testified that on April 21, 1995, he was standing around with Willie Davis and Bryan Woods on Cherry Street in Dumas. He said that two girls approached them driving a white Grand Am; he knew the names of both girls. He testified that Noble asked them if they wanted to go riding, and if they knew where Odis Madden lived. The boys got in the car and led the girls to a dead-end street. Spencer testified that Davis got in the car first, behind Muse, then he got in, and then Bryan Woods. They directed the girls to a dead-end street, Peach Street, when Spencer grabbed Noble and took her chains; Bryan Woods then ran away. Spencer testified that he demanded money from her, but that he gave Noble her chains back.

Spencer saw Davis get out of the car telling Muse “to scoot over,” adding that Davis “[m]ight of did choke [Muse].” Spencer was then presented with his testimony from his own trial, where he testified that Davis “wasn’t acting right. As soon as the car stopped. . . he said this is a robbery and he just grabbed her.” Spencer also testified that he knew that Muse did not want to leave with Davis, and that it was Davis who directed the girls to Peach Street, which was not where Odis Madden lived.

A police officer found a vehicle matching the description of the missing Grand Am in front of 405 West Banks Street. Inside the police discovered Davis, who appeared to be asleep on a couch, as well as Muse in a sprawled position on the same couch. Muse was dead with what appeared to be blood coming from her vaginal and anal areas. At this time Davis came up off the couch and said “did you get the other two.” When asked who he was talking about, he said, “Willie Spencer and Bryant. They left with the other girl.”

While in custody, Davis gave a statement to Everett Cox, the Dumas Chief of Police, which was admitted at trial. In this statement, Davis admitted that he told Muse to give him the money that she had and that he told her to get in the passenger side of the car. Davis said that they rode around looking for Noble and Spencer, and that Muse later consented to having sex.

The medical examiner’s testimony established that Muse had neck injuries consistent with manual strangulation. Her injuries also suggested that she had been sexually assaulted.

The jury convicted Davis of first-degree murder, robbery, theft of property, and first-degree false imprisonment. The jury was unable to reach a verdict on the rape charge, and the trial court granted a mistrial on that count. For sentencing purposes, the underlying robbery and false-imprisonment convictions were merged with the first-degree murder conviction. The trial court, on the State’s motion, dismissed the theft of property misdemeanor conviction. The jury sentenced Davis to a term of life imprisonment.

1. Voluntariness of Davis’s April 28 Statement.

At the suppression hearing, Chief of Police Everett Cox testified that at 5:47 a.m. on April 22, after Davis was read his Miranda rights, Davis said that he would not make a statement. Later that morning, Davis was taken to Dumas Municipal Court for his arraignment. Cox was aware that at the time, attorney Bing Colvin was appointed as Davis’s public defender. Cox conceded that any subsequent contact with Davis would have been after the appointment of counsel for Davis. Cox testified that at 1:54 p.m. on April 22 he initiated contact with Davis in an attempt to take a statement from him. On April 23, Cox recalled that someone from the police again initiated contact with Davis in an attempt to take a statement. Cox was not sure who initiated this contact, but believed it was Investigator Donigan.

Cox testified that on April 28, Davis contacted him “through the jail,” saying that he wanted to talk with him. When asked whether anyone made contact with Davis prior to that request, Cox answered in the negative. After Cox received this request, he conducted a videotaped interview with Davis. Cox testified that on the videotape, he “asked [Davis] to state why he wanted to talk and he said that he did make initial contact with me before anything was done.” Cox added that he read Davis his Miranda rights, and that no threats or other coercive acts were directed toward Davis off of the camera. Additionally, Davis was not restrained, and he made no requests that were denied him. Davis also executed a rights-waiver form that was filled out by Cox as Davis answered the questions; Davis initialed the individual responses. Cox also wrote out the substance of Davis’s statement; Davis signed this statement at the end.

Officer Michael Donigan testified that on the afternoon of April 22, at 1:54 p.m., he came into contact with Davis to question him about the homicide. Donigan read Davis his Miranda rights from a rights form, which Davis executed. Donigan wrote down the substance of Davis’s statement. Donigan also testified that he was present at 1:19 p.m. on April 23, when he and Officer Monty Kilibrew again executed a rights waiver with Davis, however Davis declined to make a statement at this time.

Chester Lee James, Jr., an inmate at the Dumas City Jail while Davis was also incarcerated there, testified that the police contacted Davis. James recalled that either Officer Donnahoe [sic?] or Kilibrew “consulted with [Davis] at one time. . . asked [Davis]. . . why he killed the girl.” James testified that Davis became upset at this questioning. After this, the officer told Davis that he “want[ed] to make sure you get the chair.” When asked to recall how long Davis had been in jail when this contact occurred, James answered three or four days. James also testified that on April 28, he contacted the chief of police at Davis’s request.

Prior to trial, the State conceded that the statements taken at 1:54 p.m. on April 22 and the one taken at 1:19 p.m. on April 23 were inadmissible because the interrogating officers could not recall who initiated the questioning with Davis. However, the trial court overruled the motion to suppress with respect to the April 28 statement, which was ultimately admitted at trial.

On appeal, Davis contends that the trial court erred in denying his motion to suppress his April 28 statement. He first argues that this court’s holding in Bradford v. State 325 Ark. 278, 927 S.W.2d 329 (1996), cert. denied 117 S. Ct. 583 (1996), mandates suppression of his April 28 statement, and alternatively argues that his waiver of rights and subsequent statement on April 28 was not voluntarily made due to the intervening police-initiated contacts.

Davis initially relies on Bradford v. State, supra, where this court held that an inculpatory statement taken without the presence of counsel, but after counsel had been appointed at a probable cause hearing, was a violation of the appellant’s Sixth Amendment right to counsel. Bradford involved an analysis of Michigan v. Jackson, 475 U.S. 625 (1986), where the United State Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation in invalid.” In Bradford, the appellant had not requested counsel, but counsel had nonetheless been appointed. This court concluded that the appellant’s unawareness that she had been appointed counsel was irrelevant, “Just as a police officer who wishes to initiate an interrogation during the custody'stage must determine if a request for counsel has been made [citation omitted], simple diligence requires that police officers take pains to learn whether counsel was appointed at a probable cause hearing.” Bradford, supra.

In the present case, Davis appears to concede that the holding in Michigan v. Jackson is limited to police-initiated interrogation, yet maintains that this court in Bradford v. State, supra, did not “specify that its ruling was based on the fact that police officers rather than Bradford initiated the contact.” This argument is misplaced. A plain reading of Bradford v. State suggests that this court had no intention of broadening the Supreme Court’s holding found in Michigan v. Jackson. Rather, the question presented in Bradford was whether the appellant’s failure to actually request counsel affected her right to counsel under Michigan v. Jackson, and if knowledge of the municipal court’s appointment of counsel could be imputed to police. Davis concedes that “on April 28, 1995, it was undisputed that [Davis] initiated the contact with Chief Everett Cox.” Because Davis himself initiated contact with the police on April 28, nothing in Bradford v. State or Michigan v. Jackson mandates a result opposite of that reached by the trial court. As one treatise has noted, “Even after counsel is appointed at arraignment, a defendant may choose to waive counsel without notice or consultation with an attorney. Under Jackson, police cannot initiate the contact, but the defendant is free to initiate the contact.” David M. Nissman & Ed Hagen, Law of Confessions § 7:10 (2d ed. 1994) (citing Missouri v. Owens, 827 S.W.2d 226 (Mo. Ct. App. 1991)).

Davis alternatively argues that even if he effectively waived his right to counsel, this action was coerced by the police efforts in contacting him after the appointment of counsel on April 22 and 23. A custodial confession is presumptively involuntary and the burden is on the State to show that the waiver and confession was voluntarily made. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). In examining the voluntariness of confessions, this court makes an independent determination based on the totality of the circumstances, and reverses the trial court only if its decision was clearly erroneous. Kennedy v. State, 325 Ark. 3, 923 S.W.2d 274 (1996). As explained in Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992), the inquiry into the validity of the defendant’s waiver has two separate components: whether the waiver was voluntary, and whether the waiver was knowingly and intelligently made. In determining voluntariness, we consider the following factors: age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, the repeated and prolonged nature of questioning, or the use of physical punishment. Hood v. State, 329 Ark. 21, 947 S.W.2d 328 (1997). Other relevant factors in considering the totality of the circumstances include the statements made by the interrogating officer and the vulnerability of the defendant. Id. In addition, the accused must have a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it in order for his waiver to be knowingly and intelligently made. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996).

In the present case the thrust of Davis’s argument is that the intervening police contacts on April 22 and 23 rendered his waiver and statement on April 28 involuntary. Davis emphasizes that after his initial expression of his intent not to make a statement and his appointment of counsel on the morning of April 22, the police made two separate attempts to take a statement from him. Chief Cox himself testified that this occurred at 1:54 p.m. on April 22 and later on April 23. The encounter at 1:54 p.m. on April 22 yielded a statement, not admitted at trial, while Davis did not give a statement at the interview at 1:19 p.m. on April 23. In the present case, the immediate fruits of the two police-initiated contacts were not admitted at trial. Additionally, there was a five-day gap between the police-initiated contact on April 23, and the defendant-initiated contact on April 28. To the extent that it can be argued the police-initiated contacts were an attempt at repeated questioning designed to wear down Davis’s resistance or change his mind, this five-day gap would serve to avoid the effects of repeated questioning. See Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986).

Some courts have refused to recognize a defendant’s initiation of contact with police when it is the result of an earlier, illegal interrogation. Nissman & Hagen, supra, § 6:35 at n.91. For example, in Wainwright v. Delaware, 504 A.2d 1096 (Del. 1986), cert. denied, 479 U.S. 869 (1986), the defendant initiated a conversation and gave an inculpatory statement some forty-five minutes after an illegal police-initiated interrogation under Edwards v. Arizona, supra. That the defendant’s response came forty-five minutes afterward did not “sanitize it”. Wainwright v. Delaware, supra. The Delaware Supreme Court further explained:

Nor does the fact that the defendant’s statement was made after he was placed alone in a cell render it a purely spontaneous one. Indeed, the opportunity to mull over the effect of [the codefendant’s] accusatory statements could reasonably have had the opposite effect — to impress upon the defendant the seriousness of his predicament and the need to rebut his codefendant’s accusations. Any attempt to “spark” the accused’s initiative to make a statement in the absence of counsel through presentation of evidence will contaminate the waiver, [citations omitted],

Wainwright v. Delaware, supra.

In the present case, the record does not show that the police were attempting to “spark” Davis’s initiative in making the April 28 contact. Significantly, the defendant-initiated contact came some five days after the last police-initiated contact. The evidence also suggests that Davis voluntarily waived his rights and elected to make a statement on April 28. Davis was nineteen years of age at the time of the statement. He had completed at least the ninth grade, and could read and write. A forensic mental evaluation showed that Davis’s intellectual functioning was within the low-average range. The record also demonstrates that Davis was fully advised of his constitutional rights, as is evidenced by the execution of the rights-waiver form as well as Chief Cox’s testimony. There was little or no evidence of threats of physical violence against Davis, promises of leniency, or other misrepresentations of fact. Based on the foregoing, we cannot say that the trial court was clearly erroneous in denying Davis’s motions to suppress.

2. Admissibility of Uncounseled Misdemeanor Convictions.

During the sentencing phase of trial, the State introduced into evidence two misdemeanor convictions of third-degree battery that Davis obtained in 1994. Davis was only fined for these convictions, and was not sentenced to any time in prison. The record shows that Davis was not represented by counsel during these misdemeanor proceedings. On appeal, Davis argues that the admission of these uncounseled misdemeanor convictions constitutes reversible error.

Davis initially cites to Baldasar v. Illinois, 446 U.S. 222 (1980) (per curiam) (plurality opinion), overruled by Nichols v. United States, 511 U.S. 738 (1994), where the United States Supreme Court held that a constitutionally valid misdemeanor conviction obtained under Scott v. Illinois, 440 U.S. 367 (1979), could not be used under an “enhanced penalty statute” to convert a subsequent misdemeanor into a felony with a prison term. This court followed suit in State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), where the trial court granted the defendant’s motion to suppress three prior DWI convictions under a charge of DWI, fourth offense. The trial court suppressed these convictions because the defendant had not been represented by counsel in the earlier proceedings. This court affirmed, framing the issue as “whether [ Baldasar] bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense.” State v. Brown, supra. This court observed that the case presented a similar situation to the enhancement statute in Baldasar, as the first DWI offense was punishable by imprisonment from twenty-four hours to one year, while the second, third, and fourth offenses were punishable in increasing ranges cumulating in imprisonment for one to six years on the fourth offense. The Brown court concluded that Baldasar controlled the facts of the case, and affirmed the trial court’s suppression of the convictions.

Davis fails to point out that in Nichols v. United States, 511 U.S. 738 (1994), the Supreme Court expressly overruled Baldasar in a case involving a criminal sentencing point assessed for a prior, uncounseled misdemeanor conviction under the United States Sentencing Commission’s Guidelines. The Court noted that “ [enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.” Id. Moreover, reliance on such a conviction was consistent with the “traditional understanding of the sentencing process,” recognized as less exacting than the determination of guilt. Id. Accordingly, the Supreme Court overruled Baldasar and held that a valid misdemeanor conviction under Scott v. Illinois, supra, is also admissible to enhance punishment at a subsequent conviction.

The present case does not squarely present this court with an opportunity to reconsider the continuing validity of Brown. Notably, the uncounseled misdemeanor convictions were not admitted against Davis pursuant to a recidivist or enhancement statute as contemplated in Baldasar and Brown. Rather, the misdemeanor convictions were introduced under Ark. Code Ann. §16-97-103(2) (Supp. 1995), which merely includes prior felony and misdemeanor convictions within the definition of “[e]vidence relevant to sentencing.” This statutory scheme simply allows the jury or court to exercise its discretion in considering all evidence relevant to sentencing, and does not mandate automatic enhancement due to prior misdemeanor convictions. We have no doubt that this procedure for admitting uncounseled misdemeanor convictions otherwise valid under Scott v. Illinois, supra, would withstand scrutiny under Nichols v. United States, supra. Accordingly, we reject Davis’s argument that the admission of these convictions constituted reversible error.

3. Rule 4-3(h) Compliance.

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.

Affirmed.

       Actually, Davis did not give a statement on April 23.

       Both the Fifth and Sixth Amendments provide a right to counsel. Under the Fifth Amendment, the right to counsel is derived from the amendment’s prohibition against self incrimination while in custody. See Miranda v. Arizona, 384 U.S. 436 (1966). In other circumstances, there may be a Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682 (1972) (Sixth Amendment right to counsel at critical stages of the prosecution). Under Edwards v. Arizona, 451 U.S. 477 (1981), once a defendant invokes his Fifth Amendment right to counsel at a custodial interrogation, the police may not interrogate any further until counsel is provided, or the “[defendant] himself initiates further communication)].]” Michigan v. Jackson, supra, may be seen as an application of the Edwards rule to the Sixth Amendment right to counsel. See David M. Nissman & Ed Hagen, Law of Confessions § 7:10 (2d ed. 1994).

       In Scott the Supreme Court held that an uncounseled misdemeanor conviction is constitutionally valid if the defendant is not incarcerated.

       For subsequent Arkansas cases citing to Brown and Baldasar for this proposition, see, e.g., Neville v. State, 41 Ark. App. 65, 848 S.W.2d 947 (1993); Rodgers v. State, 31 Ark. App. 159, 790 S.W.2d 911 (1990); Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).


author: Ray Thornton, Justice.

text:
    Collin A. PYRON v. STATE of Arkansas
    CR 97-499
    953 S.W.2d 874
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997
    [Petition for rehearing denied November 6, 1997.]

      Mashhurn & Taylor, by: Scott E. Smith, for appellant.

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

Collin Andrew Pyron, appellant, was arrested by the Fayetteville Police Department on July 19, 1996, and charged with driving while intoxicated and refusal to submit to a chemical analysis. On August 20, his driver’s license was suspended by the Office of Driver Services for 120 days on the basis of his arrest for the DWI and for 180 days for his refusal to submit to chemical analysis. He was convicted in Fayetteville Municipal Court for both offenses on October 2, 1996, and appealed to Washington County Circuit Court.

In circuit court, he filed a motion to dismiss, alleging'that the prosecution violates the Double Jeopardy Clause of the United States Constitution. He argued that the length of the administrative suspension of his license for 180 days, “rises to the level of punishment due to its retributive and deterrent effect.” The trial court found that because the suspension was that of a privilege, not a right, to operate a motor vehicle, the Double Jeopardy Clause was not violated by his trial and subsequent conviction on criminal charges. We agree.

Both the United States and Arkansas Constitutions provide that no person shall be subjected to two punishments based on the same offense. However, remedial civil sanctions may be properly imposed without placing the person in jeopardy. As the Supreme Court stated long ago in Helvering v. Mitchell, 303 U.S. 391 (1938): “Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege temporarily granted.”

In Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we articulated a standard for determining whether a civil forfeiture is “punishment” for double jeopardy purposes, and we hold that this standard pertains to the suspension provision. The test first asks whether the legislature intended for the statute to be a remedial civil sanction or a criminal penalty. Second, it asks whether the administrative proceedings are so punitive in nature as to establish that they may not legitimately be viewed as civil in nature, “despite any legislative intent to establish a civil remedial mechanism.” Id. at 298, 930 S.W.2d at 382 (citing United States v. Ursery, 116 S. Ct. 2135 (1996)).

With regard to the first prong of this test, we note that Ark. Code Ann. § 5-65-104 (Supp. 1995) states:

The administrative suspension or revocation of a driver’s license as provided for by this section shall be supplementary to and in addition to the suspensions or revocations of driver licenses which are ordered by a court of competent jurisdiction [.]

Id. § 5-65-104(f).

We also note that the standard for administrative license suspension established by section 5-65-104(a) (8) is based on the civil standard of proof by a preponderance of the evidence. This is, of course, a lower standard than that required by a criminal conviction, which is beyond a reasonable doubt.

The purpose for the sanctions is to prevent drunk driving, as stated in the Emergency Clause, as follows: “the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State . . . .” Act 549 of 1983, § 19 (emergency clause).

Additionally, the proceedings for imposition of the sanctions are conducted by the executive branch of government, and not the judiciary. It is clear that the legislative intent was to provide remedial civil sanctions.

We next consider the language and application of the statute. Arkansas Code Annotated § 5-65-104(a) (4) (A) (iii) provides:

(a)(4) The Office of Driver Services of the Revenue Division of the Department of Finance and Administration or its designated official shall suspend or revoke the driving privilege of an arrested person or shall suspend any nonresident driving privilege of an arrested person when it receives a sworn report from the law enforcement officer that he had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while intoxicated or while there was one-tenth of one percent (0.1%) or more by weight of alcohol in the person’s blood, § 5-65-103, which is accompanied by a written chemical test report reflecting that the arrested person was intoxicated or had an alcohol concentration of one-tenth of one percent (0.1%) or more, or is accompanied by a sworn report that the arrested person refused to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person’s blood, as provided in § 5-65-202. The suspension or revocation shall be based on the number of previous offenses as follows:
(A)(iii) Suspension for one hundred eighty (180) days for the first offense of refusing to submit to a chemical test of blood, breath, or urine for the purpose of determining the alcohol or controlled substance contents of the person’s blood, § 5-65-202 [.]

The interpretation of this statute is a question of first impression for this court. Appellant argues that the statute imposes “multiple punishments” and that it fails the second prong of the test articulated in Sims. We do not find that the penalty “is so divorced from any remedial goal that it constitutes ‘punishment’ [under] double jeopardy analysis.” United States v. Halper, 490 U.S. 435, 443 (1989). We hold that the temporary revocation of the privilege of driving for refusal to submit to a chemical analysis is rationally related to the purpose of the statute, which is to protect the public from intoxicated drivers and to reduce alcohol-related accidents.

Further, we note that in order to relieve any extraordi- ' nary hardship that might occur by an administrative license suspension, the legislature enacted provisions to allow those with no alternate means of commuting to and from work to apply for a restricted driving permit. Arkansas Code Annotated § 5-65-120 (Supp. 1995) provides in pertinent part:

(a) On July 1, 1996, and thereafter, the Office of Driver Services or its designated agent, following the administrative hearing for suspension or revocation of a driver’s license as provided for in § 5-65-104, or upon the request of the person whose privilege to drive has been denied or suspended, may modify the denial or suspension in cases of extreme and unusual hardship by the issuance of a restricted driving permit when it is determined by the Office of Driver Services or its agent that no other adequate means of transportation exists for that person to allow driving in any or all of the following situations:
(1) To and from his or her place of employment; or
(2) In the course of his or her employment; or
(3) To and from an educational institution for the purpose of attending classes if the person is enrolled and regularly attending classes at the institution; or
(4) To and from the alcohol safety education and treatment course for drunk drivers.

This provision rebuts any argument concerning the punitive effect of the sanction upon a person whose license has been suspended, as a result of which his ability to maintain his means of livelihood is impaired. It is a further reflection of the legislative intent to establish a remedial civil sanction for the purpose of protecting the public from intoxicated drivers and to reduce alcohol-related accidents while softening the sanctions in order to allow the person to continue to operate a vehicle for appropriate purposes.

In summary, we do not find that the statute violates the constitutional prohibition on double jeopardy by imposing multiple punishments for the same offense. The judgment of the trial court is affirmed.

Affirmed.


author: Per Curiam.

text:
    Johnny Ray HAWTHORNE v. STATE of Arkansas
    CR 97-1021
    950 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997

      John F. Stroud, III, for appellant.
    No response.
   Per Curiam.

Appellant, Johnny Ray Hawthorne, by and through his attorney, has filed a motion for a rule on the clerk. We treat this motion as a motion for belated appeal. His attorney, John F. Stroud, III, admits in his motion that the filing of the notice of appeal was premature due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion for belated appeal is therefore granted.

Appellant has also filed a pro se motion for appointment of counsel and rule on the clerk. Because we are granting his attorney’s motion for belated appeal, we find that appellant has not been prejudiced by this delay. We accordingly deny this motion for appointment of counsel and rule on the clerk.

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


text:
    Don SELLERS v. FAULKNER COUNTY CIRCUIT COURT, Third Division
    CR 97-1044
    950 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997
    Tim D. Williams, for petitioner.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Per Curiam.

Don Sellers petitions this court for a writ of prohibition against the Faulkner County Circuit Court, directing the circuit court be prohibited from trying him on a theft by receiving charge. The basis for Sellers’s petition is his claim of double jeopardy.

The State filed its criminal theft charge against Sellers on July 28, 1994, but when his case came to trial two years later, the State was unable to produce a material witness. Because the trial court refused the State a continuance, the State requested a dismissal, which the court granted and filed on July 18, 1996. On August 13, 1996, the State filed a motion to reconsider, asking the trial court to reconsider its earlier dismissal order and to reinstate Sellers’s case. The trial court granted the State’s request on November 13, 1996 — almost four months after its July 18 dismissal order. Sellers then moved for the court to set aside the November 13 order, but the court declined to do so by order filed on February 18, 1997. On May 14, 1997, the trial court again denied Sellers’s second motion to set aside the November 13 order. The trial court has set Sellers’s case for trial, which prompts his request to this court for a writ of prohibition.

Citing the case of U.S. v. Martin Linen Supply Co., 430 U.S. 564 (1977), and Reaves v. City of Little Rock, 25 Ark. App. 14, 751 S.W.2d 18 (1988), Sellers argues double jeopardy attached when the trial court dismissed his case on July 18, 1996. The State counters, stating among other things, that jeopardy does not attach prior to the swearing of a jury or the taking of evidence in a bench trial. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992); see also McKinney v. State, 215 Ark. 712, 223 S.W.2d 185 (1949).

Besides the foregoing double-jeopardy argument, Sellers suggests the circuit court had lost jurisdiction under Ark. R. App. P. — Civ. 4(c) (1997) (see also Ark. R. App. P. — Crim. 2) because the court entered an order beyond the “deemed denied” date provided in that rule. The State argues Rule 4(c) merely delineates the jurisdictional requirements for filing a notice of appeal and does not apply here. The State also contends Rule 4(c) is inapplicable because the motion for reconsideration the trial court granted on November 13, 1996 was not a post-judgment motion covered by that rule. The trial court adopted the State’s contention.

Another question bearing on the trial court’s jurisdiction which is not raised by the State or Sellers is what power, if any, the trial court had to “reinstate” the theft charge against Sellers when more than thirty days (almost four months) had passed from when the charge was dismissed (July 18, 1996) and when the case was reinstated on November 13, 1996. Moreover, was the State relegated to refiling its theft charge against Sellers, assuming jeopardy had not yet attached?

We request the parties brief the foregoing issues that bear on the lower court’s jurisdiction to proceed against Sellers in the case. Because Sellers is the moving party, he should proceed first in the preparing and filing of his brief. This court’s clerk shall establish the briefing calendar for both parties. A temporary stay shall be entered in the pending trial below until this court renders its opinion in this proceeding.


text:
    Jesse Dewayne WICKLIFFE v. STATE of Arkansas
    TEN 96-108
    952 S.W.2d 144
    Supreme Court of Arkansas
    Opinion delivered October 2, 1997
    No response.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellee the State of Arkansas, by and through counsel, Winston Bryant, Attorney General, and Kelly K. Hill, Deputy Attorney General, has filed a motion to dismiss Appellant Wickliffe’s appeal.

On April 23, 1996, the Pulaski County Circuit Court entered a judgment convicting appellant of simultaneous possession of drugs and firearms, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. On May 20, 1996, appellant filed a motion for new trial, which, by operation of law, was deemed denied on June 20, 1996. Ark. R. App. P. — Crim. 2(a)(3). However, the circuit court proceeded to enter a written order denying the motion for new trial on July 16, 1996.

Appellant filed a notice of appeal on July 12, 1996. On October 11, 1996, appellant tendered a partial record to this court for filing. The partial record did not contain appellant’s motion for new trial, nor did it contain a notice of appeal filed after the motion for new trial was denied. Based upon the partial record as tendered by appellant, the Clerk of this court notified appellant’s attorney that the record could not be filed because the notice of appeal was not timely.

By letter dated January 7, 1997, the Clerk of this court advised appellant’s attorney that a motion for rule on the clerk would be necessary to get the record filed and to proceed with the appeal. By letter dated July 15, 1997, the court’s Office of the Criminal Justice Coordinator notified appellant regarding the status of his appeal from the conviction on April 23, 1996. Specifically, appellant was advised that his attorney had not filed the appropriate motion requesting permission to proceed with the appeal.

Appellant’s attorney has taken no action in the appeal since tendering the partial record on October 11, 1996.

We find that appellant’s failure to perfect this appeal in a timely manner is good cause to grant appellee’s motion to dismiss appeal.

The motion is, therefore, granted.

A. Wayne Davis is also ordered to appear before this court on the 16th day of October, 1997, at 9:00 a.m. to show cause why he should not be held in contempt of this court for his failure to perfect appellant Wickliffe’s appeal in a timely manner.


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

text:
    Sterling BOSTON v. STATE of Arkansas
    CR 97-589
    952 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      William R. Simpson, Jr., Public Defender, by: Deborah H. Sailings, Deputy Public Defender, for appellant.

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

Appellant Sterling Boston was convicted in violation of Ark. Code Ann. § 5-73-120 (Supp. 1995), the unauthorized carrying of a weapon. An officer approached Boston while he was sitting in his taxicab and asked for his license and registration. The officer requested that Boston get out of the vehicle; upon getting out, Boston informed the officer that he had a weapon in his back pocket. The officer arrested Boston for carrying a weapon without a license. Boston appeals the conviction claiming that the statutory defense for carrying a weapon in one’s place of business authorized Boston’s carrying the weapon in his taxicab because this was his place of business.

This case involves interpretation of the Arkansas Code and whether the term “business” includes a taxi cab or any motor vehicle used for commercial purposes. Specifically, Ark. Code Ann. §5-73-120 provides:

(a) A person commits the offense of carrying a weapon if he possesses a handgun, knife, or club on or about his person, in a vehicle occupied by him, or otherwise readily available for use with a purpose to employ it as a weapon against a person.
(c) It is a defense to a prosecution under this section that at the time of the act of carrying:
(1) The person is in his own dwelling, place of business, or on property in which he has a possessory or proprietary interest.

There is no definition of the term “place of business” in this statute.

Appellant contends that a vehicle should be considered a “business” in certain instances for purposes of §5-73 — 120(c)(1); although this specific code section does not define the term “place of business,” appellant contends that a definition in the commercial burglary statute should be persuasive. Ark. Code Ann. § 5-39-101 (2) (A) criminalizes commercial burglary; this statute defines “commercial occupiable structure” as any “vehicle where any person carries on a business or calling.” Relying upon the definition contained in the commercial burglary statute, appellant argues that his cab should be considered a business for Ark. Code Ann. §5-73-120(c)(l).

In subsection (a) of §5-73-120, the legislature clearly criminalized the carrying of a weapon in “a vehicle.” Appellant relies on the term “business” in the exemptions to the rule found in subsection (c)(1). However, the specific language of that section exempts certain areas clearly relating to real property. Specifically, (c)(1) excludes from criminal prosecution the carrying of a gun in a person’s “own dwelling, place of business, or on property in which he has a possessory or proprietary interest.” The plain meaning of this exception does not include automobiles, nor is there general language which suggests that the list is expandable.

The fundamental rule in considering the meaning of a statute is to construe the meaning of the statute just as it reads, giving the words their ordinary and usually accepted meaning. Rush v. State, 324 Ark. 147, 151, 919 S.W.2d 933 (1996). The rule of construction applicable in this case is nonscitur a sociis. This doctrine means “it is known from its associates.” The practical application means that a word can be defined by accompanying words. See, McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502, citing Weldon v. Southwestern Bell Telephone Co., 271 Ark. 145, 607 S.W.2d 395 (1980).

The exemption for a “business” is contained in a subsection of the statute which pertains to real property; therefore, we conclude that the legislature did not intend for this exception to include automobiles. In three of the other exemption sections, the legislature created exceptions in instances where a person was in an automobile. In §5-73-120 (c)(8), a person is free to carry a weapon in an automobile if he or she has a license to carry a concealed weapon. In §5-73-120 (c)(4) persons may carry weapons when on a journey and in §5-73-120 (c)(6) while traveling to and from hunting. It is clear that the legislature considered vehicles when it crafted the exemptions. If the legislature had intended for a vehicular business to be included, it would have specified. This is particularly clear given the fact that the legislature has utilized such a definition before, in the commercial burglary section.

We apply the principle of construction nonscitur a sociis, and we hold that the word “business” does not include vehicular businesses. Therefore, the statute does not provide a defense to Boston, and the trial court is affirmed.

Affirmed.


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

text:
    EQUITY FIRE & CASUALTY COMPANY v. Laurence TRAVER
    96-1220
    953 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Horne, Hollingsworth & Parker, by: Cyril Hollingsworth, for appellant.

      Hobbs, Garnett, Naramore & Strause, P.A., by: Ronald G. Naramore, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This case was certified to this Court from the court of appeals pursuant to Ark. Sup. Ct. R. 1-2(17) (d)(2) as a case of significant public interest involving a legal issue of major importance. This case involves the renewal of an insurance contract; specifically, we must address the issue of what constitutes an acceptance of a renewal notice for an insurance contract. Appellee, Traver, urges this court to adopt the postal-acceptance rule by holding that an insured accepts a renewal offer by placing a renewal premium payment in the mail. Appellant, Equity, contends that the plain language of the policy requires actual receipt of the payment, so the mailbox rule is not applicable.

Traver was involved in an automobile accident on March 19, 1994. The other party involved in the accident filed a claim with his insurance carrier; after payment of that claim, the insurance carrier filed a subrogation action against Traver. Traver then filed a third-party action against his insurance carrier Equity pursuant to a non-standard automobile policy contract.

Equity denied coverage of the accident claiming that Traver’s policy was not in effect on the date of the accident. Specifically, Equity contended that the original policy had lapsed on March 14, 1994.

Traver received a renewal notice from Equity giving the due date of the renewal as March 9, 1994. The expiration date of the policy was March 14, 1994. Traver included a check and a handwritten note stating he had lost the renewal form in an envelope addressed to his local Hot Springs insurance agent, Roberson and Associates. He gave the envelope to his mother who mailed it from a mail drop-off in the Hot Springs mall to the Hot Springs agent on March 11, 1994. The envelope was postmarked March 12, 1994; it was postmarked a second time with March 21, 1994.

The local agent did not receive the envelope until March 22, 1994; the agent forwarded the payment to Equity which received it on March 25, 1994. Equity accepted the check and reinstated the policy effective March 22, 1994. This gave a seven day period between March 14, the expiration date of the policy, and March 22, the new policy effective date, when Traver was not insured.

The Equity document entitled “YOUR PLAIN LANGUAGE CAR POLICY” was entered into evidence. Its “Renewal Provisions” section is as follows:

We won’t refuse to renew this policy solely because of your age, sex, marital status, residence, race, color, creed, national origin, ancestry or occupation. Subject to our consent you may renew this policy. When we consent to renew this policy, you must pay the renewal premium in advance. We will mail you a notice telling you when your premium must be paid. Your policy will expire if we don’t receive the required payment by the renewal date.

The original policy listed the term from September 14, 1993, until March 14, 1994. An Equity employee, Tammy Warrier, testified that it was Equity’s policy to extend renewal offers every six months. The renewal offer issued to Traver listed a due date of March 9, 1994. According to Ms. Warrier, the March 9, 1994, due date was an arbitrary date selected by the company to give the customer enough time to mail the payment before the expiration date. She indicated that company policy provides that “to renew a policy, the proper down payment must be postmarked by the U.S. Postal Service on or before the due date.” Ms. Warrier explained that company policy was such that if the payment was postmarked before the arbitrary March 9, 1994, due date, but received late, even later than the March 14, 1994, expiration date, the company would have used the postmarked date and renewed the policy effective March 14, 1994. Conversely, if the postmark was before the expiration date, but after the due date, no such leniency would be given to a customer.

The trial court ruled that Traver’s timely deposit in the United States mail of his renewal premium before the due date March 14, 1994, was an effective renewal and that the policy was in effect continuously, with no lapse. The trial court noted that there was no legal authority for this ruling, yet determined that the public policy of the State of Arkansas weighs heavily against forfeiture, so a timely deposit of a renewal premium in the U.S. mail, in the absence of fraud or deceit, constitutes an effective acceptance of the policy.

There is no Arkansas case direcdy addressing this issue. In Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886), we recognized the mailbox rule for the acceptance of a contract. Once an offer has been made, a contract is completed when the acceptance is mailed if the acceptance is made in a reasonable amount of time. If a letter of withdrawal is mailed, before the mailing of the acceptance, it is effective only if the party to whom the offer was made receives the withdrawal before making the acceptance. Id.

Despite the fact that this case was decided in the 1800s, there are few cases following it which expound upon this theory. The Kempner decision has been followed as a routine matter of contract theory, with the proviso that parties are free to dictate the terms of offers and acceptances as they deem necessary.

In Michelsen v. Patterson, 9 Ark. App. 275 (1983), the court of appeals addressed a situation where a tenant mailed his rent on December 31, 1981, and it was received by the owner on January 2, 1982. The rent was due on January 1, 1982, and this day was a legal holiday. The owner refused the payment, and the tenant sought a court order deeming the payment timely under the mailbox acceptance rule. The court of appeals determined that the express language of a contract making time of the essence can eliminate the application of the mailbox acceptance rule. While there was no express language in the contract between the two parties, the tenant had received two letters during the year in which the owner indicated that no late payments for rent would be accepted and notified the tenant that strict adherence to all terms of the agreement was expected. The court of appeals found that these two correspondences were enough to put the tenant on notice that time was of the essence and a delay in receiving the payment was a breach of the contract. The court of appeals affirmed the finding that the payment was not timely; however, this decision was limited to the particular facts of the case.

In the case before us, the policy language requires actual receipt of a premium payment prior to the expiration date of the policy to constitute acceptance of a renewal offer. The actual renewal notice gave the due date as a date five days before the expiration date. It does not contain the language requiring actual receipt of the premium payment; it instructs the insured to pay the amount listed as due in order to renew the policy.

In Farmers Insurance Company of Arkansas v. J. W. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978), a dispute arose when an insured mailed his premium payment approximately seven days after the expiration date. The insured was involved in an accident several hours after mailing his insurance premium payment. Upon attempting to collect from the insurance carrier, the insurer refused coverage claiming that the policy had lapsed and was not in effect. The trial court ruled that Arkansas statutes that required notice before cancellation of an insurance policy precluded the policy from lapsing. We reversed holding that notice is not required when an insurance contract is for a specified term.

The outcome of Hall, supra, is not particularly helpful to the case at bar; however, the decision does provide insight into the manner in which these term policies have been interpreted in the past. In Hall, we classified the renewal notice as an offer to renew the policy which the insured could either accept or reject. The expiration date was the date that the offer expired by the terms on the face of the offer. Failure by the insured to accept the offer before the expiration of the term it was held open caused the policy to expire by its own terms; thus, the offer expires, and there is technically no cancellation. Id. at 737.

In Hall, we classified a renewal notice as an offer and the payment of the renewal premium as acceptance; however, the issue of what constitutes acceptance was not addressed. By utilizing the Hall analysis, Equity made an offer of renewal when it sent the notice of renewal. The offer, by its terms was open until the underlying policy expired on March 14, 1994. Traver was free to accept or reject the offer up until that date by paying the premium. As evidenced by the language of the policy, Equity does not intend to be bound by acceptance of the contract until actual receipt of the premium; however, the language of the renewal notice does not require such receipt.

Equity relies upon 43 Am. Jur. 2d Insurance §447 as controlling the situation at bar. Specifically, this section states: “Where a policy makes the advance payment of the premium a condition for renewal, such payment must be made in advance to effect a renewal of the policy.” This particular passage quotes the Arkansas case, Hall, discussed supra. However, it does little to render a solution to the actual issue here. There is no dispute that the payment of the premium was a condition precedent for acceptance; the question is at what point was the acceptance made, upon placing payment it in the mail or upon its receipt by the insurer?

Traver relies on a passage from Am. Jur. 2d which states:

Under insurance policies providing that payment of premiums shall be made at a certain place by a certain time under penalty of forfeiture, where the insurer requests, authorizes, or acquiesces in the sending of the premiums by mail, a deposit thereof in the mail, properly addressed, and in time, according to the usual course of the mail, to reach the prescribed place by the time it is due, will prevent a forfeiture, even though it does not in fact reach its destination at all, or until after the date when due, and this notwithstanding that time is regarded as the essence in the contract.

43 Am. Jur. 2d Insurance §909 (emphasis supplied). This section then cites cases from various jurisdictions that follow this theory. However, this section is not particularly helpful because we are not dealing with an instance of mere payment on an existing insurance contract. Absent an existing insurance contract, there is no contractual right to be forfeited; therefore, the equitable rule weighing against forfeitures is not controlling.

In Mississippi Insurance Underwriting Association v. Maenza, 413 So.2d 1384 (Miss. 1982), the Mississippi Supreme Court examined a situation closely analogous to the case at bar. A property and casualty policy renewal notice/offer was sent to the insured with an expiration date of September 10, 1979. The insured mailed payment on September 8, 1979, but it was not received by the insurer until September 11, 1979. A hurricane destroyed the insured’s property on September 11, 1979. The insurer accepted the payment, but claimed the policy had lapsed because payment was not received on or before the due date. The insurer then treated the payment as an application for new coverage and issued a policy with the effective date of September 14, 1979.

The insured brought a claim before the Mississippi Insurance Commission, and it rendered a ruling that the renewal was effective when the premium payment was deposited in the United States mail, as long as it was deposited in time to reach the insurer on or before the expiration date. The insurance commission determined that neither party was to blame for a delay within the postal service; however, the insurer was the party that should bear the imputed burden because it adopted the postal service as its agent when allowing premiums to be transported via mail. 413 So.2d at 1386.

The Mississippi Supreme Court affirmed the findings of the insurance commission. Specifically, that court held that the insurer’s renewal notice is an offer that is accepted by the offeree/ insured sending premium payments. The insurer in this instance required that payment be received before acceptance became effective; the Mississippi court rejected this notion because there was no clear language to suggest that acceptance was not effective until receipt. However, the court went on to conclude that in circumstances where an insurer invites premiums to be forwarded through the mail, it adopts the postal service as its agent and deposit of a payment with that agent constitutes acceptance of coverage. According to the Mississippi court, adopting the postal service as an agent imputed any negligence on their behalf to the insurer despite any contract language to the contrary; therefore contract language requiring receipt before acceptance was valid does not render the mailbox acceptance rule inapplicable. Id. at 1388.

In Maenza, the Mississippi court based the finding that the insurer invited the use of the postal service on several factors. First of all, the renewal notice itself indicated that payment could be made via mail, and the insurer utilized the mail to send the renewal notice. The insurer’s office was over 100 miles from most of its insureds, so personal delivery would have been impractical. There are two other important factors to note in the Maenza decision. First, the payment was deposited with the postal service prior to the expiration date, in apt time to reach the insurer in a timely manner. Second, upon receipt of the payment it deemed late, the insurer made no attempt to refund the money, but caused a new policy to become into effect with a gap in the coverage.

In the case before us, Equity did have written language requiring receipt of the payment in order for acceptance to be effective; however, that language was in the policy and not on the actual renewal notice. Equity utilized the postal service as a carrier for its offer and expected to receive the acceptance via the mail. Traver mailed the premium payment in a timely manner where, absent negligence or mistake by the postal service, it had ample time to reach Equity prior to the termination date. Upon receipt of Traver’s check, Equity did not refuse the payment, yet accepted it as an application for a new policy.

Based upon the facts of this case, it is our determination that Traver’s placing the renewal premium in the mail in a timely manner constituted acceptance of Equity’s renewal offer. Due to the peculiar factual scenario provided here, this holding is limited to the particular facts and circumstances of this case. We do not institute an absolute rule of applying the “mailbox rule” to all renewal premium payments, nor do we hold that parties are not free to dictate the terms of acceptance of offers. The facts before us present a unique situation where Traver was not afforded notice through the actual offer that receipt of payment was required before acceptance was effective. Given the fact that there was no fraud or negligence on behalf of Traver and the fact that Traver placed the payment in the mail with ample time for it to reach Equity prior to the expiration of the offer, we hold that in this instance there was a manifest acceptance of the renewal offer. Therefore, Traver’s policy did not lapse, and it was effective beginning on March 14, 1984.

Affirmed.

Brown and Imber, JJ., concur.

Newbern, J., dissents.

Robert L. Brown, Justice,

concurring. I concur in the result but do so for different reasons than those expressed in the majority opinion.

The instant case involves a renewal of insurance which is effected by an initial payment. There is no disagreement between the parties that the payment was made. There is also no disagreement that the premium was mailed by Traver to Equity Fire two days before the renewal date of March 14, 1994. Finally, it is clear that once the premium was received by the insurance agent on March 22, 1994, the policy was renewed, effective as of that date.

Equity Fire relies on this language in its policy to deny coverage between March 14 and March 22, 1994:

“RENEWAL PROVISIONS”
We won’t refuse to renew this policy solely because of your age, sex, marital status, residence, race, color, creed, national origin, ancestry or occupation. Subject to our consent, you may renew this policy. When we consent to renew this policy, you must pay the renewal premium in advance. We will mail you a notice telling you when your premium must be paid. Your policy will expire if we don’t receive the required payment by the renewal date.

This language is buried on page 19 of a 21-page insurance contract. In addition, Equity Fire sent out a “Renewal Offer” specifying a Due Date of March 9, 1994, which differed from the Renewal Date of March 14, 1994. The Renewal Offer did not state that the policy would expire if payment was not received by March 9 or March 14.

Equity Fire, by practice, amended its insurance contract by adopting its own version of the mailbox rule. According to Ms. Tammy Warrier, who held the title of Supervisor for the carrier, the practice of her employer was to permit renewals when the premium was mailed before the due date (here, March 9, 1994) even though the premium was received long after the renewal date of March 14, 1994. Equity Fire’s own mailbox rule regarding the due date clearly modified the insurance contract. The practice may have benefitted the insured to some extent, but it primarily benefitted Equity Fire by encouraging payment of premiums five days before the renewal date.

In short, Equity Fire’s practice modified the insurance contract and resulted in an earlier payment of premiums than required by the insurance contract. Yet, Equity Fire refuses to acknowledge Traver’s payment of his premium made two days before the renewal date and couches its refusal on contract language which the carrier itself did not follow in all instances.

Equity Fire’s inconsistent treatment of the mailbox rule, depending on which party is benefitted, runs counter to sound public policy. Moreover, the fact that the insurance coverage would lapse absent receipt of the first payment by the renewal date was not made as clear as it could have been to Traver. That fact should have been highlighted on renewal notices and boldly printed in the insurance contract itself. It was not.

Like the majority, I am reluctant to adopt a mailbox rule across the board in all insurance cases. However, under the facts of this case, public policy dictates a decision in favor of the insured.

Imber, J., joins.

David Newbern, Justice,

dissenting. The majority holds that Laurence Traver was covered on March 19, 1994, the date of his automobile accident, by a renewed policy of insurance issued by Equity Fire & Casualty Company (“Equity”). That holding is based upon the majority’s conclusion that the “actual renewal notice” sent to Mr. Traver by Equity did not inform Mr. Traver of a requirement that the premium for renewal be received prior to expiration of the original policy.

The “actual renewal notice” was not in evidence. Mr. Traver introduced in evidence a letter he sent to Equity with his renewal premium explaining that he had lost his “renewal slip.” Lea Fain, an employee of the insurance agent with whom Mr. Traver dealt, testified with respect to a “copy” of the notice received by the agent but stated it was not the same as the notice sent to Mr. Traver. While it is not clear from Ms. Fain’s testimony, it may be that the only difference between the “copy” and the “actual” notice is some writing at the bottom of the “copy” concerning the “agent’s binding date” about which she testified. At any rate, we cannot say what the “actual renewal notice” received by Mr. Traver contained.

The policy required that the renewal premium be “received” prior to the renewal date. According to the contract evidenced by the policy, there could have been no renewal prior to March 22, 1994, the date the premium was received by the company’s agent. That is so unless we adopt a full-blown version of the mailbox rule and the fiction that the postal service is the agent of Equity. The majority is unwilling to go that far; thus it is relegated to consideration of the contract between the parties.

It is basic contract law that an offer which specifies a period of time for its duration terminates upon the lapse of the time specified. Burnett v. Holiday Inns of America, 239 Ark. 642, 391 S.W.2d 27 (1965). When the terms of an insurance-policy renewal offer are not met, there is no renewal. Farmers Ins. Co. v. Hall, 263 Ark. 734, 567 S.W.2d 296 (1978). Even if we rely upon the “copy” of the renewal offer and assume it is the same as that received by Mr. Traver, despite the testimony of the insurance agent’s employee, we should reverse. The “copy” provided a “due date” of March 9, 1994. Whether acceptance was thus “due” at a mailbox or at the office of the insurer, it did not occur until March 12, 1994, at the earliest. Mr. Traver’s deposit of the renewal acceptance in the mailbox on March 12, 1994, did not meet the contract terms of the policy or the terms, as best we can determine, of the renewal offer.

I respectfully dissent.

       The terms of the actual Renewal Offer sent to Traver are unknown because that specific Renewal Offer was either not received by Traver or was misplaced.


text:
    David Ray MULKEY v. STATE of Arkansas
    CR 97-509
    952 S.W.2d 149
    Supreme Court of Arkansas
    Opinion delivered October 9, 1997

      Turbeville & Fowler, by: Lea Ellen Fowler, for appellant.

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

The appellant, David Ray Mulkey, was charged with capital murder for killing his former stepmother, Martha “June” Barnes. Following a jury trial, he was found guilty of first-degree murder and sentenced to life imprisonment. On appeal, appellant’s two points for reversal are a challenge to the sufficiency of the evidence and a challenge to the use of a prior conviction to enhance his sentence. We find that neither point has merit and affirm appellant’s conviction and sentence.

On New Year’s Day 1996, the burned body of June Barnes was found-at-a dump site on 36th Street near Interstate 430 in Little Rock. A lamp shade, some bed linens, and various bloodstained personal items were found near the body. Autopsy results indicated that the victim had died earlier from blunt-force injuries and strangulation. The pattern of injuries on her skull indicated that she had been beaten with a lamp, and a laceration over her left eye appeared to have resulted from having been struck by a telephone. The victim’s former stepson, appellant David Ray Mulkey, was eventually arrested and charged with Barne’s murder.

At trial, appellant admitted that he killed the victim. However, he maintained in his motion for directed verdict at the close of the State’s case that the state failed to prove that he purposely caused the victim’s death. After the trial court denied his motion, appellant testified during his case in chief that, on New Year’s Eve, he went to a party where he became drunk and high on marijuana. After leaving the party, he telephoned the victim and received permission to stay the night at her residence. According to appellant, when he arrived at the victim’s home, she began to verbally abuse him and call him names. After the victim hit him in the head twice with a telephone and began kicking him, he became enraged and hit her “at least five or six times” with a lamp. Appellant then “freaked out” when he saw that the victim was covered with blood and heard her make a “gurgling sound.” When the sound stopped, appellant knew that she was dead. Panicked, appellant washed his hands, then gathered various bloodstained items and carried them along with the victim’s body to her car. He drove to Boyle Park, parked the car, and dumped the body and evidence nearby. He left the body and drove to a store to purchase a jug of gasoline. The appellant returned to the body, poured the gasoline on it, lit it on fire, and left. According to appellant, he located one of his “running buddies” and “stayed drunk and high” until he was eventually questioned by police.

After a jury found appellant guilty of the lesser-included offense of first-degree murder, the State submitted proof to the trial judge that appellant had been previously convicted of two prior felony offenses. Appellant objected to the submission of one of the priors to the jury. After the trial court instructed the jury that appellant had two prior felony convictions, they recommended that appellant serve a life sentence for the murder. The trial court entered judgment accordingly, and appellant appeals.

Sufficiency of the Evidence

We explained our standard of review for directed-verdict motions in Williams v. State, 325 Ark. 432, 436, 930 S.W.2nd 297 (1996):

This court treats the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. On appellate review, it is only necessary for this court to ascertain that evidence which is most favorable to appellee, and it is permissible to consider only that evidence which supports the guilty verdict
See also Choate v. State, 325 Ark. 251, 254-55, 925 S.W.2d 409, 411 (1996) (quoting King v. State, 323 Ark. 671, 916 S.W.2d 732 (1996) (other citations omitted).

To sustain a conviction for first-degree murder, the State was required to prove that the appellant purposely caused the death of June Barnes. See Ark. Code § 5-10-102(a)(2). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1993).

A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Williams, 325 Ark. At 437. “The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, from the manner of its use, and the nature, extent, and location of the wounds.” Id.; citing Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, 325 Ark. at 437; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). In order for circumstantial evidence alone to constitute substantial evidence, however, it must exclude every other reasonable hypothesis consistent with innocence. Williams, 325 Ark. at 437; Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Id.

In the present case, the jury could have easily inferred from the numerous blunt-force injuries to the victim’s skull, as well as from the autopsy evidence that she was strangled, that appellant acted with the purpose to cause the victim’s death. The jury also heard evidence that appellant took the victim’s body to a dump site, set it on fire, and then left. As attempts to cover up a crime are properly admissible, see Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the jury could have properly considered this evidence as proof of a purposeful mental state. Moreover, it was within the jury’s province to believe or disbelieve appellant’s testimony. When considering these circumstances, the jury could have reasonably inferred that appellant acted with the purpose of causing the victim’s death. See Williams, supra. Thus, we cannot say that the trial court erred in denying appellant’s motion for directed verdict.

Prior Conviction —■ CR 87-1985

For his second assignment of error, the appellant asserts that the trial court erred in using a 1987 burglary and theft of property conviction in the Pulaski County Circuit Court, Docket No. CR-87-1985, in determining his sentence as an habitual offender under Ark. Code Ann. § 5-4-501 (Repl. 1993).

The State has the burden of proving a defendant’s prior conviction for purposes of sentence enhancement. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). On appeal, the test is whether there is substantial evidence that the defendant was previously convicted of the felony in question. Id.

In Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994), we reviewed the statutory method of proof of previous convictions as follows:

(a) A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty.
(b) The following are sufficient to support a finding of a prior conviction or finding of guilt:
(1) A certified copy of the record of a previous conviction or finding of guilt by a court of record;
(2) A certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant as they appear in the records of his office; or
(3) A certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office.

Ark. Code Ann. § 5-4-504 (Repl. 1993).

In the present case, the trial court conducted a hearing outside the presence of the jury, during which the State introduced a certified copy of the trial court’s docket sheet in Pulaski County Circuit Court, which indicated that appellant had pleaded guilty to burglary and theft of property in CR87-1985. While the docket sheet did not reflect an entry of judgment, it indicated that appellant had received a suspended sentence in the case and had been represented by attorney James Phillips. The State offered the testimony of attorney Phillips, who testified during the in-camera hearing that he had appeared in court and had represented appellant on the charges in question. Mr. Phillips recalled that the disposition of the case had taken place in Judge Floyd Lofton’s chambers, where appellant pleaded guilty “to something involving bicycles.” According to Mr. Phillips, Judge Lofton was going to put appellant in the penitentiary, but appellant convinced him otherwise. After hearing this evidence, the trial court announced that it was convinced that appellant had been convicted of the prior offense in question, and allowed the State to present the evidence to the jury for consideration in the penalty phase.

Appellant first contends that the certified copy of the trial court’s docket notation is hearsay. Under A.R.E. 803(8), a record of a public office setting forth its regularly conducted and regularly recorded activities is not hearsay. Thus, appellant’s argument is without merit.

Appellant also complains that, because the State’s evidence did not reflect that a judgment of conviction was entered in CR87-1985, the conviction for burglary and theft of property could not properly be used to enhance his sentence. We have previously rejected this argument in Reeves v. State, 263 Ark. 227, 564 S.W.2d 503, cert. denied 439 U.S. 964 (1978). In that case, Reeves questioned the admissibility of the State’s proof of previous convictions under the habitual criminal statute. Three of Reeves’s four convictions that were proved showed that the sentences had been suspended. On appeal, Reeves argued that the sentences were not “convictions” within the meaning of the habitual criminal law. In rejecting Reeves’s argument, we reviewed our previous holdings as follows:

In Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976), we held that under the habitual criminal statute in effect in 1975, a judgment imposing a suspended sentence was admissible as a conviction. Act 228 of 1953, as amended. That statute was superseded by the Criminal Code, which became effective on January 1, 1976, under which the case at bar was tried. Act 280 of 1975, 1001 (a section now in turn superseded by Act 474 of 1977, 4; Ark. Stat. Ann. 41-1001 [Repl. 1977]). We do not see, however, any such difference between the language of the statute construed in the Rogers case and that of the 1975 Code as to indicate a change in the legislative intention.

263 Ark. at 230-1. While it is true that a docket notation is not the entry of a final judgment, Ark. Code Ann. § 5-4-404(a) provides that a previous conviction may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. Id. In Heard, supra, we noted that the original commentary to the statute provides: “The Commission wished to make clear the fact that the state may prove a previous felony conviction by means other than introduction of the certificates described in the statute.” See Original Commentary to Ark. Code Ann. § 5-4-504 (Repl. 1993).

In the present case, appellant makes no suggestion whatsoever that the certified docket sheet offered by the State did not correctly reflect that he had been convicted of burglary and theft of property in CR87-1985. See Heard, supra. Appellant’s counsel in CR87-1985, Mr. Phillips, did not dispute the conviction; rather, he recalled that appellant had pleaded guilty in the trial judge’s chambers and had in fact talked the trial judge out of sentencing him to a term of imprisonment. Under these circumstances, there was substantial evidence to satisfy the trial court beyond a reasonable doubt that appellant had been previously convicted of the felonies in CR87-1985. Thus, we cannot say that the trial court erred in allowing the State to submit evidence of this prior conviction to the’jury for consideration in recommending appellant’s sentence.

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

Reviewing the record in accordance with Ark. Sup. Ct. R. 4-3(h), we find that there are no errors with respect to rulings on objections or motions prejudicial to appellant that would call for reversal.

Affirmed.