author: Darrell Hickman, Justice. David Newbern, Justice,

text:
    David Lee STARR v. STATE of Arkansas
    CR 87-20
    759 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988
    [Rehearing denied December 12, 1988.]

      Etoch & Etoch and Sam Whitfield, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

David Lee Starr was sentenced to death for the murder of Mrs. Gladys Ford of Marvell, Arkansas. Mrs. Ford, age 76, was killed at her home on June 11, 1984. Starr made three detailed statements, finally admitting that he killed Mrs. Ford. There was also other evidence connecting him to the crime.

The main question raised is whether Starr’s arrest was legal and whether the exclusionary rule should be applied in this case. The trial court held that the police officers acted in good faith in arresting Starr. We agree and affirm the judgment, finding no other reversible error.

THE FACTS

On June 9,1984, the police in Marvell, Arkansas, which is in Phillips County, were contacted by Clarendon city officers in nearby Monroe County regarding Starr. He was wanted for questioning about a burglary and theft. The Marvell officers located Starr, brought him in for questioning, and asked him to empty his pockets, which he did. Starr saw an opportunity to flee and did. He was not under arrest. Warrants for his arrest for burglary and theft were issued that day in Monroe County.

On June 11 about 11 a.m., Mrs. Ford was brutally murdered outside her home. She was struck twice with a metal pipe, dragged inside her home and sexually assaulted. The house was ransacked. Her body was found by relatives shortly thereafter, and the police arrived on the scene about 1 p.m.

According to two officers, Starr became a suspect during the investigation conducted at Mrs. Ford’s home. Kenneth Winfrey, chief deputy sheriff of Phillips County, responding to a call, went immediately to the scene. He said Starr became a suspect for three reasons: Starr was seen in a nearby field near a wooded area (the field was a quarter to a half mile away); many footprints were found in that area similar to those found outside Mrs. Ford’s home; and he was informed that Starr had either done yardwork for Mrs. Ford or had gone to her home and asked about doing yardwork.

John Broome, a deputy sheriff from Phillips County, was also at the scene and said he learned the same information about Starr.

A full palm print was found in Mrs. Ford’s home, footprints were found in the yard and blood and semen samples were taken.

The police began looking for Starr in Marvell and the surrounding area and on June 13, Starr narrowly avoided capture at his girlfriend’s house. On June 14 the warrants from Monroe County for Starr’s arrest for burglary and theft were received by the Marvell Police Department. The next day, June 15, about 1 a.m., Starr was arrested at his sister’s home in Marvell. When the officers called for him to come out, he did. An officer entered the house and found a pistol behind a couch. It was later identified as being taken from the Ford residence.

Starr was taken to the Marvell jail, informed of his rights, and made a statement 23 minutes later. He was questioned largely about the pistol which he said he got from a man whose name he did not know. He denied knowing about the murder of Mrs. Ford. He was then taken to the city jail in Helena and again warned of his rights. That evening he said he wanted to add to his statement. He was taken to the scene of the crime and said that his girlfriend, Shirley Smith, actually hit Mrs. Ford. He showed the police where he pulled up an iron pipe which was used to kill Mrs. Ford. He later told them where the pipe was hidden under a dresser in the house. He said his girlfriend found the gun and he took it. He admitted he and his girlfriend intended to rob Mrs. Ford.

His third statement followed shortly thereafter. Again, he wanted to tell the police more. This time he confessed in detail to the murder. The last two statements were recorded, transcribed and entered at the trial. In his last statement, he admitted striking Mrs. Ford, raping her afterwards, ransacking the house looking for money, and finding the pistol which he stole.

The officers all agreed that Starr was initially arrested on the basis of the two warrants from Monroe County. Starr was not arrested for the murder until after he confessed. The palm print found in Mrs. Ford’s home was later identified as Starr’s and other evidence tied Starr to the murder.

THE GOOD FAITH QUESTION

It was argued below that the arrest, based on the warrants from Monroe County, was illegal and, therefore, all evidence produced as a result of the arrest must be excluded. That is the exclusionary rule. Wong Sun v. United States, 371 U.S. 471 (1963). However, the United States Supreme Court has modified the exclusionary rule if officers act in the reasonable good faith belief that a search or seizure was in accord with the Fourth Amendment. United States v. Leon, 468 U.S. 897 (1984). The court stated:

In the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient. ‘[0]nce the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law’ .... Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations . . . . [T]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable. . . . [I] t is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

That ruling has been extended to include evidence obtained by police who act in objective reasonable reliance on a statute later found unconstitutional. Ill. v. Krull, _ U.S __, 107 S. Ct. 1160 (1987). More recently an extension was made to cover the actual execution of a search warrant. Maryland v. Garrison, 480 U.S. 79 (1987).

In this case the question is: should the officers have known the Monroe County warrants were invalid because they were signed by a clerk instead of the judge? There is no evidence at all that the warrants were issued except in good faith. A pretrial motion was filed alleging no probable cause to arrest Starr “on murder.” No hearing was held on this question, counsel merely argued and the judge overruled the pretrial motion to suppress. The state said it would produce evidence that he was arrested on warrants for burglary. Later, the warrants were presented, and after the testimony of the officers, the defense argued the arrests were invalid on the basis of Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986). In Stewart blank warrants were signed by the judge and left with the clerk to issue. A policeman obtained such a warrant on the basis of an unsworn affidavit. We held the arrest invalid and found no evidence of any good faith. In this case the defense argued these Monroe County warrants were not signed by a judge, accompanied by an affidavit or information and, therefore, the arrest was invalid. The trial judge distinguished the Stewart case and ruled the officers in this case acted in good faith.

We have only the unrefuted testimony of the officers. It was not uncommon for the clerk to sign warrants. The warrants appeared regular to them on their face, and they acted in good faith in executing them. There was no evidence offered controverting the fact that Starr was wanted for the burglary and theft in Monroe County. That is, the argument was not that there was actually no probable cause, merely the warrants were invalid on their face and for that reason there was no probable cause. Our own rules of criminal procedure provide that “the clerk of the court or his deputy may, when authorized by the judge of that court, issue an arrest warrant upon filing of an information or upon affidavit sworn to by the complaint and approved by the prosecuting attorney.” A.R.Cr.P. Rule 7.1(c). These officers did what any ordinary Arkansas policeman would have done at the time — they arrested Starr.

The trial occurred in October, 1986. In September, 1987, the United States District Court for Eastern Arkansas decided it is illegal for a clerk to issue an arrest warrant unless a probable cause determination has been made by a neutral and detached magistrate. Fairchild v. Lockhart, 675 F.Supp. 469 (E.D. Ark. 1987). We have accepted that decision as correct. David v. State, 293 Ark. 472, 739 S.W.2d 150 (1987). These officers could not anticipate, nor should they have to, that an accepted practice would be ruled illegal — that our own rules would be declared wrong. There was no dishonest or reckless behavior on the part of any of the officers in this case; there is no evidence refuting they acted in good faith in accepting these warrants which appeared routinely issued.

It is pointed out that A.R.Cr.P. Rule 7.2(a) (v) provides that an arrest warrant will have attached to it a. copy of an information or an affidavit. It is also pointed out that Leon does not apply to facially invalid warrants. That omission is not, in our judgment, fatal. We will not assume it is customary in Arkansas that every arrest warrant have attached the information or affidavit. It is not even necessary for an officer to have an arrest warrant in his hand to make an arrest. In Woodall v. State, 260 Ark. 786, 543 S.W.2d 957 (1976), two state policemen, acting on the basis of information from the law enforcement computer indicating an out-of-state warrant, arrested a defendant. The officers had no warrant. Probable cause is evaluated on the basis of the collective information of the police. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969). See also Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979).

It is argued that State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985), and Webb v. State, 269 Ark. 415, 601 S.W.2d 848 (1980), require reversal of the trial court’s decision. In State v. Anderson the issue involved a search warrant issued without an accompanying sworn affidavit or sworn recorded testimony. We said “the procedure of providing an affidavit when obtaining a search warrant is so standard a practice that we cannot consider such a deficiency as falling within the purview of the good faith error.” That requirement is in the United States Constitution. The ordinary officer knows better than to seek a search warrant without any affidavit, or he should. The same is, of course, not true of an arrest warrant unless the officer executing it obtained it in bad faith. As we have demonstrated, an officer does not even have to have the warrant in hand.

In Webb we found a warrant issued by a clerk defective but upheld the arrest on the basis of probable cause. The officer had probable cause because he relied upon information that an arrest warrant was outstanding. Webb did not declare the practice illegal of a clerk issuing a warrant. See Fairchild v. Lockhart, supra, in which the court discussed the meaning of Webb.

The only objection at the trial was because the clerk signed the warrants and there were no accompanying affidavits. The only authority argued to the trial judge was the Stewart decision which he distinguished. It is now argued that even if there was probable cause, the warrants were invalid on their face and the good faith exception should not apply. The trial judge thought he was ruling on the question raised in Stewart v. State, supra. It was not until Fairchild v. Lockhart, supra, that the Arkansas legal community changed its practice. What we have is a decision by the trial court based on objections specifically made, testimony and evidence offered, and our review is limited to whether he was wrong. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

There is .no evidence that the officers acted except in good faith and according to custom. No pretrial motion was filed making the argument now made on appeal. A narrow legal argument was made after the officers’ testimony. There is no suggestion raised that this was a pretextual arrest.

In Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1980), we said:

On appeal, all presumptions are favorable to the trial court’s ruling on the legality of the arrest and the burden is on the appellant to demonstrate error. . . . [A] nontechnical approach has been said to afford the best compromise for accommodating the competing interests of the individual and of society ....

Other than the technical objection to the warrants, no evidence was offered to refute the officers’ repeated testimony that Starr was warned of his rights and voluntarily confessed. So we conclude the confessions were properly admitted and the trial judge was not clearly wrong in upholding the arrest.

REMAINING ARGUMENTS

The remaining arguments are also procedural. Two prospective jurors, Mrs. Janice Aikman and Mrs. Gynith Papa, admitted they had read a brief article in a local newspaper which mentioned the fact that Starr had a prior record and had spent time in the state prison. Mrs. Aikman and Mrs. Papa both said they could set aside any information they had gained and render a fair verdict. The judge refused to excuse them for cause. Our study of the record reflects that the trial judge was careful in his judgment and both prospective jurors were questioned extensively. They were excused peremptorily by the defense.

Jurors are presumed unbiased, and the trial judge has considerable discretion in seating them. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); Linnell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). We have recognized that it is not practical to expect jurors to live in a vacuum. Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). We find no error in the court’s ruling.

The third argument is that the trial judge erred in failing to answer the jury’s questions about the meaning of life without parole, the verdict forms and what a hung jury is. We have repeatedly held that the trial court should not attempt to explain matters concerning parole. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984). The court was right in not further instructing the jury on what life without parole means. It is always best to stick to the standard instructions. If they are complete, the jury can decide what to do. We find no abuse of discretion in refusing to further instruct the jury.

The fourth argument is about pecuniary gain being an aggravating circumstance in the penalty phase of the trial. This argument has been answered in Lowenfield v. Phelps, _ U.S. —, 108 S. Ct. 546 (1988) and O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

The fifth argument is that the court should have appointed an independent psychiatrist or psychologist to assist with the preparation of the case. The defense argues it wanted to show that Starr could not intelligently waive his rights. There is no doubt that Starr is mildly retarded. He was examined at the local mental health clinic and given an extensive examination at the state hospital. The hospital findings were: (1) mild mental retardation; (2) mixed substance abuse — continuous; and (3) antisocial personality disorder. The report concluded that Starr could understand right from wrong. The defense did call Dr. Michael Simon, a clinical psychologist at the state hospital. He testified that Starr could not read. One of the officers had testified that Starr, one time, read his rights himself. The psychologist testified that Starr was retarded and had an I.Q. of 62. The defense does not contend that the mental examination of Starr did not fulfill the requirements of Ake v. Oklahoma, 470 U.S. 68 (1985). It contends more was required in this particular case. State officials who examined Starr would have been available to answer any questions Starr had in that regard. The answers sought by Starr were simply not there. He could understand his rights even though he is mildly retarded. See White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). His confessions reinforce this conclusion. Starr’s answers were clear, distinct and coherent. He signed his name and the officers testified it was clear that he knew what he was doing. There is no suggestion any coercion was used, direct or indirect.

The sixth argument is that the trial judge should have instructed the jury it was not required to impose the death penalty. AMCI 1509 was the instruction given, and a jury can, by finding that circumstances do not warrant the imposition of the death penalty, return a verdict of life without parole. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983).

The seventh argument is that the gun should have been suppressed. No pretrial motion was filed, simply an objection made when the gun was admitted into evidence. It was found in Starr’s sister’s home — not Starr’s home. Based on the evidence before the trial judge, he was justified in finding that Starr had no standing to object to the warrantless search of his sister’s home. Rakas v. Illinois, 439 U.S. 128 (1979); State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986).

We are required in a death case to compare the crime with those of others receiving the death sentence. The brutal, senseless bludgeoning of Mrs. Ford and the subsequent violation of her body was especially offensive, inhuman and cruel, and unquestionably warranted the death penalty. The evidence of Starr’s guilt is overwhelming.

We have examined the record for other errors which would require a new trial and find none.

Affirmed.

Purtle, Dudley, and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

These, with certain of them emphasized, are the words of the Fourth Amendment to the United States Constitution.

The words of Ark. R. Crim. P. 7.2. follow:

Rule 7.2. Form of Warrant.
(a) Every arrest warrant shall:
(iii) be signed by the issuing official with the title of his office and
(v) have attached a copy of the information, if filed, or, if not filed, a copy of any affidavit supporting issuance

In State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985), we refused to consider the “good faith rule” of United States v. Leon, 468 U.S. 897 (1984), as legitimating a search based on a warrant with no supporting affidavit, and we wrote: “The procedure of providing an affidavit when obtaining search warrants is so standard a practice that we cannot consider such a deficiency as falling within the purview of good faith error.” The Monroe County warrants which the state says formed the basis for Starr’s arrest in Phillips County were equally deficient. Officer Nolan of Monroe County testified he did not see any affidavit with the warrants for David Starr’s arrest. Rule 7.2(a)(v) requires that either an information or an affidavit be attached to an arrest warrant. The burglary and theft warrants were signed by Tammy Ellis who, Officer Nolan testified, was a court clerk. Under her signature, were the following words printed on the warrant form, “Municipal Judge, Clarendon, Monroe County, Arkansas.” The word “Judge” under her name was crossed out, and nothing was put in its place. Rule 7.2(a)(ii) requires a signature by the issuing official with the title of his office.

To justify its application of the Leon case doctrine here, and thus avoid the exclusionary rule, the majority opinion makes two points. First, it says that the affidavit in support of a search warrant, which was the element'lacking in the Anderson case, is required by the Constitution. Clearly, there is, in the Fourth Amendment, the same requirement for an arrest warrant, and that requirement is reflected in our rules. I suggest the requirement for supporting documentation is just as “standard” in arrest warrant cases as in search warrant cases. Second, the majority opinion says that a police officer need not have an arrest warrant in hand when the arrest occurs. That is true, Ark. R. Crim. P. 4.3., but it does not justify an arrest where there is no supporting document attached to the warrant pursuant to which the arrest was made, and the state cannot even produce testimony after the fact that such a document existed. Nor does it justify the admission of evidence which results from such an arrest where the state cannot show compliance with the rules of criminal procedure.

The requirement of Rule 7.2. that the warrant have the supporting documentation attached to it makes sense. Otherwise, by “community custom” a practice could develop which would permit an arrest on the basis of a piece of paper with no support whatever. The arresting officer could say, as here, that he made the arrest assuming the warrant was good, and thus he or she acted in good faith.

Just as we did not get to it in the Anderson case, I do not find it necessary even to consider application of the Leon case doctrine here. However, if that were the issue, it would not seem to me to be too much to require an officer to examine or at least to inquire about an arrest warrant to learn whether it is signed by someone purporting to be an authorized official and is accompanied by a supporting document or documents before we hold that the officer has acted in good faith in executing the warrant. In its zeal to expand upon the Leon case, the majority applies it in a way not demonstrably intended by its authors, and in the process the Fourth Amendment requirement that there be more than a piece of paper styled “arrest warrant” is subverted.

I respectfully dissent.

Purtle and Dudley, JJ., join this opinion.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Michael DOOLEY v. Eddie Dale GRAMLING, Charles Gramling and Southeastern Fidelity Insurance Company
    88-171
    759 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Keith Blackman, for appellant.

      Goodwin, Hamilton & Moore, for appellee.
   John I. Purtle, Justice.

This is another Rule 54(b) case. Michael Dooley filed suit against Eddie Gramling, Charles Gramling and American Deposit Insurance Company (later amended to substitute Southeastern Fidelity Insurance Company). The trial court granted a summary judgment in favor of Charles Gramling. Notice of appeal from that order was given, and the case was filed and fully briefed in this court.

ARCP Rule 54(b) has caused the dismissal of many cases. See Bryan Farms, Inc. v. State, 295 Ark. 180, 747 S.W.2d 115 (1988); Pitts v. Sipes, 293 Ark. 340, 737 S.W.2d 647 (1987); Rone v. Little, 293 Ark. 242, 737 S.W.2d 152 (1987); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987); Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987); Hall v. Lunsford, 292 Ark. 655, 732 S.W.2d 141 (1987); Murry v. State Farm Mutual Auto Insurance, 291 Ark. 445, 725 S.W.2d 571 (1987); and Wilson v. Wilson, 270 Ark. 485, 606 S.W.2d 56 (1980).

In the case before us multiple claims were made against three separate defendants. Two defendants remain, and all the claims are yet to be decided by the trial court.

Appeal dismissed.


text:
    Herman HAYNES v. Oma METCALF
    88-139
    759 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Neva B. King, for appellant.

      Turner & Mainard, by: James C. Mainard, for appellee.
   John I. Purtle, Justice.

The appellant and his wife filed a petition in the Franklin County Chancery Court to quiet title to the mineral interest in certain lands in Franklin County, Arkansas. The appellant only appeals from the order of the chancellor dismissing the petition and awarding the appellee (widow) the right to receive all proceeds from the mineral leases, rentals and royalties from oil and gas development and production upon the real estate here in question. The appellant argues that the trial court erred in dismissing his complaint and in finding that the appellee is entitled to the proceeds of the mineral production during her lifetime. The chancellor’s order is affirmed.

On January 1, 1960, the appellant and his wife, Verna, entered into an agreement with V.F. Metcalf and Cora Metcalf, the parents of Verna Metcalf, for the purchase of 160 acres of land, consisting of two tracts: a 120 acre tract and a 40 acre tract. The contract was not filed of record until October 14,1968. The contract provided that at the end of ten years the deed would be delivered to the appellant. Pursuant to the terms of the contract, the grantors, V.F. Metcalf and Cora Metcalf, executed a deed on January 5, 1960, and placed it with the contract. The contract contained a clause stating that the royalties and other payments would be payable to the grantors. However, there was no reservation of any kind in the deed which was attached to the contract but never delivered. On January 24,1968, Cora Metcalf died. On October 7, 1968, V.F. Metcalf married Oma Metcalf, the appellee.

On December 2, 1969, Oma Metcalf and V.F. Metcalf executed a deed to the property to Verna Haynes. This deed contained a reservation of the royalties and mineral rights so long as either of the grantors lived. Verna Haynes accepted this deed and, shortly thereafter, deeded the property to herself and her husband, Herman Haynes. This deed recited the reservation of a life estate in the mineral rights in Orna and V.F. Metcalf. On October 12, 1984, V.F. Metcalf died. After his death, the appellant commenced receiving the royalties from the 120 acre tract. Subsequent to the execution of the contract of sale, the 40 acres became productive and the lessee, who is not the same lessee as the one of the first tract, refused to make payments because of the reservation in the deed from Orna and V.F. Metcalf to Verna Haynes. On November 3, 1986, Herman Haynes and Verna Haynes filed suit to quiet title to the mineral rights to the 40 acre tract in themselves.

There is no dispute that the contract of sale was entered into on January 1, 1960, that the appellee and her husband subsequently executed a second deed dated December 2,1969, and that this deed contained a reservation of the mineral royalties and interests so long as either of the grantors lived. Since all parties agree that Cora Metcalf and V.F. Metcalf had attempted to reserve the right to the royalties during their lifetime, no argument arose so long as either of the sellers in the contract of sale lived.

The appellant correctly states the general rule that property cannot be conveyed by reservation and that an exception or reservation in favor of a stranger to the deed is void except to confirm a right which the stranger already had. Rye v. Baumann, 231 Ark. 278, 329 S.W.2d 161 (1959). We also agree with the appellant that the purchasers in an executory contract become the equitable owners of the property purchased. Corcorren v. Sharum, 141 Ark. 572, 217 S.W. 803 (1920). The question here is not whether Oma Metcalf was the equitable owner or owned an interest in the property on her own right but instead whether the deed executed by the appellee and her husband and received by the appellant entitled her to receive the proceeds from the mineral production during her lifetime.

For affirmance the appellee relies on Mills v. Deniston, 227 Ark. 463, 299 S.W.2d 195 (1957), which holds that in the construction of a deed, all prior negotiations must be taken as merged in that instrument. Had there been a difference in the purchase agreement and the original deed we would consider the merger doctrine. However, we are here concerned with a deed which was no part of the original transaction. Therefore, the doctrine of merger does not apply to the facts in this case.

The appellee also cites several cases from other jurisdictions holding that, although an estate may not be reserved in favor of a stranger, there is an exception to the general rule when the reservation is in favor of the spouse of a grantor. In Saunders v. Saunders, 26 N.E.2d 126 (Ill. 1940), the Illinois Supreme Court noted a distinction between a reservation in a deed in favor of a grantor and his spouse and one in which the grantor reserves an interest to a third person who has no present interest in the property conveyed. The court recognized that a spouse has such a present interest in the property by way of homestead or dower and that the combined interest of husband and wife in the property is sufficient to support the reservation of a life estate to either or both of them through their joint execution of a deed which relinquishes all other rights. To the same effect see Derham v. Hovey, 116 N.W. 883 (Mich. 1917).

Another case which very strongly favors the exception to the general rule is Krug v. Reissig, 488 P.2d 150 (Wyo. 1971). Krug held that the weight of authority favors a life estate in a non-owner surviving spouse when both the husband and wife join in the execution of a deed and reserve a life estate in themselves. The Supreme Court of South Carolina has also recognized that the rule against a reservation in favor of a stranger is indeed the general rule, but that the grantor and spouse may reserve a life estate when the conveyance is from a husband and wife and either or both of them owned an interest in the property at the time of the conveyance. Glasgow v. Glasgow, 70 S.E. 2d 432 (S.C. 1952).

It is not necessary to reach the exception to the general rule concerning reservations in favor of strangers in this case. The 1969 deed was in the possession of the appellant from its delivery until 1986, when the present lawsuit was commenced. For sixteen years the appellant apparently made no objection to the reservation executed by V.F. Metcalf and his wife, Oma Metcalf. After V.F. Metcalfs death, the appellant received the royalties from the 120 acre tract. Herman Haynes tried several times to get Oma Metcalf to sign a distribution agreement or a quit claim deed to the mineral interest in the 40 acre tract. She refused to do so and only when she was taken to court did she claim any interest in the minerals.

After this period of time the appellant is estopped from changing the terms of the deed from Orna and V.F. Metcalf.

Estoppel by deed is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed, or from denying the truth of any material facts asserted.

28 Am Jur 2d, Estoppel and Waiver, Estoppel 11, sec. 4.

Estoppel by deed has long been recognized by this court. In the case of Vaughn v. Dossett, 219 Ark. 505, 243 S.W.2d 565 (1951), this court applied the doctrine and estopped the grantee, who was a subsequent grantor, from changing the terms of a previous deed and mortgage when he knew he was attempting to act in derogation of the previous deed. Equitable estoppel arises upon facts which render its application and protection equitable and just. Moorehead v. Universal C.I.T., 230 Ark. 896, 327 S.W.2d 385 (1959). After reviewing the decree de novo in this court we find that the decree of the chancellor should be upheld.

Affirmed.

Glaze, J., concurs.


author: Steele Hays, Justice.

text:
    Larry HELMS v. STATE of Arkansas
    CR 88-106
    759 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Guy Jones, Jr., P.A., for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Larry Helms was convicted in the Municipal Court of Searcy, Arkansas, of speeding and driving while intoxicated. On appeal, the convictions were affirmed by the White Circuit Court. The arresting officer testified that the radar unit in his patrol car showed Helms to have been driving 50 miles per hour in a 40 mile zone. When appellant was stopped and questioned, the officer noticed the odor of alcohol and administered field sobriety tests, which appellant could not perform satisfactorily. At police headquarters a breathalyzer test registered .10.

On appeal to this court appellant asks that we reverse and dismiss, contending the arresting officer was not a certified radar operator and that there was no probable cause to stop or arrest the appellant. We affirm the judgment.

Citing several sections of Chapter 9, Law Enforcement Training and Standards, Ark. Code Ann. § 12-9-101, et seq. (1987) , appellant argues that the arresting officer did not have certificates from the Arkansas Law Enforcement Standards Commission or from the Federal Communications Commission reflecting his authority to operate a radar unit, nor was there any certificate from the FCC approving the radar unit used to stop the appellant. Appellant relies on § 12-9-108(a), which provides that the actions taken by an officer who is not qualified “shall be held invalid.”

We need not decide whether there is merit to these arguments. For one thing, there was no motion to suppress and the testimony of the arresting officer concerning the radar unit and his method of using it was admitted without objection. For another, the officer testified that in addition to his radar unit, the speedometer on his patrol car reflected appellant’s speed as being 50 miles per hour. Finally, there was no showing that appellant’s arrest was dependent solely on the citation issued by the arresting officer. Recently in Davis v. State, 296 Ark. 524, 758 S.W.2d 706 (1988), we reviewed the law affecting the legality of an arrest where the qualifications of the arresting officer were challenged on the basis of Ark. Code Ann. § 12-9-108(a) (1987). We said if the officer was not qualified it was as if no charge were ever filed, Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985) and “a party cannot be guilty of a crime with which he was never charged.” However, in this case, as in Davis v. State, the appellant failed to show that the arresting officer’s citation was the only formal charge, or that the appellant was not later charged by information. Since we do not presume error, it is appellant’s duty to demonstrate it. The Baldwin Co. v. The Ceco Corporation, 280 Ark. 519, 659 S.W.2d 941 (1983).

Appellant’s argument that there was no probable cause to stop him or to arrest him cannot be sustained. The officer’s testimony that he clocked the appellant at 50 miles per hour in a 40 mile an hour zone gave him every reason to stop the appellant for a traffic violation and his testimony that appellant smelled of alcohol, was swaying, and could not perform field sobriety tests, provided ample probable cause to charge him with driving while intoxicated. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984).

AFFIRMED.


text:
    James LOWERY v. STATE of Arkansas
    CR 88-53
    759 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Frank J. Gamble III, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from the denial of a motion to correct an illegal sentence under Ark. Code Ann. § 16-90-111 (1987). When appellant was sentenced on a plea of guilty to theft of services, he was fined $500 and costs and given a five year suspended sentence conditioned on good behavior and making restitution in the amount of $1,020.44. Appellant was given sixty days to pay the fine, costs and restitution.

About five weeks later, on August 23, 1983, appellant was incarcerated in the Department of Correction as the result of other charges. Some ten months later, having failed to make restitution or pay the fine and costs, appellant was brought before the trial court on June 25, 1984, for a hearing to revoke the five year suspended sentence mentioned above. The trial court informed the appellant that he would allow an additional thirty days to make restitution and sixty days to pay the fine and costs, but if appellant failed to perform, then the suspended sentence would be revoked “without further proceedings.” Pursuant to that announcement the trial court on September 4,1984, entered an order revoking the suspended sentence and sentenced appellant to three years, teq months and fifteen days to be served consecutively to any sentence then being served. Neither the appellant nor his attorney was present on September 4, when this sentence was imposed.

Appellant filed various motions after the September 4 sentence. The last motion prior to that now being appealed was affirmed on appeal by this court in a per curiam order on September 28, 1987. Thereafter, appellant filed a petition to correct an illegal sentence, pursuant to § 16-90-111 (1987). Relief was denied and appellant brings this appeal.

Appellant first contends that sentencing is a critical stage of a criminal case, Mempha v. Ray, 389 U.S. 128 (1967); see also, 21 Am. Jur. 2d Criminal Law § 529 (1981), and that he has a constitutional right to be present at any stage of the criminal proceeding that is critical to its outcome, Kentucky v. Stincer, _ U.S _, 107 S. Ct. 2658 (1987). We agree with those statements of the law. Arkansas has always required the defendant’s presence at sentencing for a felony. See Cole v. State, 10 Ark. 318 (1849); Sneed v. State, 5 Ark. 431 (1843). See also Ark. Code Ann. § 16-90-106 (1987). The presence of the defendant is required at resentencing as well. Paul v. United States, 734 F.2d 1064 (5th Cir. 1984).

The state does not dispute the fact that appellant was not present on September 4 when he was sentenced, but maintains that because he did not object when the court advised that sentence would be imposed “without further proceedings,” then he waived any objection. We disagree. The state does not contend the trial court made it clear by those words that he intended to sentence the appellant in absentia, and we are unwilling to hold that the fundamental right to be present at sentencing was knowingly waived in the absence of language specifically advising an accused that he is subject to being sentenced prospectively without his being present. Even if we could agree that appellant should have objected, the nature of the remedy provided by § 16-90-111 (1987) is not dependent upon a prior objection. The statute contains a post-conviction remedy, narrowly defined, for the correction of an illegal sentence. The legislature obviously chose to provide a safeguard for persons aggrieved in this manner that goes beyond the review provided by appeal or even by an A.R.Cr.P.Rule 37 petition. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987). If an objection were required, it would in many cases preclude the availability of the remedy and greatly reduce the effect the statute was intended to have.

Reversed and remanded.


author: David Newbern, Justice.

text:
    Richard GREEN v. STATE of Arkansas
    CR 88-89
    759 S.W.2d 211
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Janice Williams Wheeler, for appellant.

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

The appellant, Richard Green, petitioned the Circuit Court of Hot Spring county for relief pursuant to Ark. R. Crim. P. 37.1 on the ground that his plea of guilty to first degree murder, of which he was convicted in 1979, was not voluntary. His contention was that he was told by his counsel and the prosecutor that he would only serve seven years. A hearing was held at which his former defense lawyers and the prosecutor testified to the contrary. We affirm the trial court’s denial of relief.

Richard Green testified that he was told he would only serve seven years and that he would not have pleaded guilty had he thought his prison term would be longer. The trial took place in 1979, and he sought executive clemency in 1986 in the form of a reduction in his sentence to a term of years. Such a reduction would have made him eligible for parole at some point. His request was not acted upon by the governor’s office.

His former counsel testified they told Green that those serving life sentences were serving seven to fifteen years, depending upon how they behaved in prison. The prosecutor testified no promise of any term of years was made to Green. There was testimony to the effect that in 1979 there was a rule of thumb, followed by the governor, according to which one sentenced to life had to serve seven years before clemency would be considered. That was changed in 1980 to twelve years.

The trial record shows clearly that Green told the court at the time he entered his plea that he knew he could be sentenced to life imprisonment and that, other than the agreement to reduce the charge against him from capital to first degree murder, no promises had been made to him in exchange for his plea.

Mr. Green apparently was told the facts about parole eligibility as they were in 1979. The change in the situation did not render his plea involuntary. Even if it were concluded that erroneous advice about parole eligibility was given, that would not make the plea involuntary. Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986). See also Vagi v. State, 296 Ark. 377, 757 S.W.2d 533 (1988).

The trial court found: “The State and the defense entered into no agreement that the defendant would do any specific term of years in the penitentiary. Mr. Green’s attorney merely advised him of the possibility of eligibility.” To reverse the trial court’s refusal to grant relief, we would have to hold these findings to be clearly against the preponderance of the evidence. Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987); Hall v. State, 285 Ark. 38, 684 S.W.2d 261 (1985). The evidence in the record supports the court’s determination.

Affirmed.


author:
David Newbern, Justice.
      John I. Purtle, Justice,

text:
    Robert L. ROBERTSON and Opal Robertson v. CITY OF LOWELL, Arkansas
    88-147
    759 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988
    [Rehearing denied December 12, 1988.]

      Jeff Duty and W.H. Taylor, for appellant.

      Matthews, Campbell & Rhoads, P.A., by: George R. Rhoads, for appellee.

      Purtle, J., would grant rehearing.

   David Newbern, Justice.

In this municipal land use zoning case we must determine whether a land use which violated a zoning ordinance became a permitted, preexisting, non-conforming, use when the zoning ordinance was repealed and replaced by another zoning ordinance. We hold that a nonconforming use of land which violated a previous zoning ordinance is not a permitted non-conforming use under a subsequently enacted zoning ordinance. The decree of the chancellor to that effect is affirmed.

The case was submitted to the chancellor upon a stipulation of facts. In 1985, Robert L. and Opal Robertson, the appellants, owned a 40-acre tract, zoned “agricultural,” on which they had one mobile home. At that time Ordinance 177 of the City of Lowell, the appellee, allowed one mobile home per 20 acres of land in an agricultural district or zone, subject to approval of the Lowell Planning Commission. A neighbor who wished to place a mobile home on his one acre of land adjoining that of the Robertsons deeded his land to the Robertsons. The planning commission approved the placement of a second mobile home on the tract which then consisted of 41 acres. Ordinance 222, passed onApril9,1985, amended Ordinance 177, but it made no change in the provision pursuant to which the second mobile home on the tract was approved.

Sometime prior to June 17,1986, the Robertsons moved yet another mobile home onto the tract without planning commission approval. The stipulation states that they deeded back to their neighbor the one acre previously added to their 40-acre tract, but it does not state when that occurred. The Robertsons do not deny that the third mobile home was placed on their land in violation of Ordinances 177 and 222, thus we presume the deed back to the neighbor was executed after the third mobile home was placed on what was then a 41-acre tract.

On July 8,1986, the city adopted its third zoning ordinance. This one was a comprehensive ordinance which repealed “[a] 11 ordinances or parts of ordinances in conflict” with it. It provided that mobile homes could be placed only in mobile home parks and that “[n] on-conforming use of land and structures may be continued and improved but not expanded so long as it remains otherwise lawful.” The city sought an injunction to have the second mobile home on the now 40-acre tract of the Robertsons removed because it was in violation of Ordinance 238. The Robertsons contended that the two mobile homes remaining on the 40-acre tract constituted a non-conforming use permitted under the ordinance. They did not contend in their brief to the chancellor, and they do not contend here, that their deed back to their neighbor caused their land to conform to Ordinance 222 and thus to constitute a lawful non-conforming use permitted under Ordinance 238. The record does not demonstrate when that deed was executed, thus no such argument can be the basis of a decision in favor of the Robertsons on this appeal.

The Robertsons’ argument is that their use is a permitted non-conforming use under Ordinance 238 because, by repealing the preceding zoning ordinances, the city made lawful all uses preceding Ordinance 238. The city argued, and the chancellor found, that Ordinance 238 was a repeal and reenactment of the zoning law. Thus he concluded the repeal was “neutralized,” and the Robertsons’ extra mobile home was at all times in violation of the city’s zoning laws and therefore did not qualify as a remaining non-conforming use under Ordinance 238.

We need not discuss whether the enactment of a comprehensive zoning law necessarily completely repeals a preceding comprehensive zoning law because we agree with the chancellor’s conclusion that, to the extent there has been a repeal, the repeal is “neutralized” with respect to continuation of the rights and liabilities under the preceding law. In Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958), we held that where a statute is repealed and all or some of its provisions are simultaneously reenacted, the reenactment is considered a reaffirmance of the old law, and the provisions of the repealed act thus reenacted are continued in force. The Robertsons argue, however, that the provisions of Ordinances 177 and 222 with respect to mobile home regulation were not continued or reenacted because Ordinance 238 established a complete set of new rules applicable to them. That argument disregards the apparent intent of the city not to repeal the old zoning law so as to legalize every land use in violation of it, but to expand the scope of impermissible uses.

In the Chism case it was contended, in effect, that by repealing the law establishing the comparative negligence standard in torts cases and reenacting it with changes, the general assembly had reinstated the contributory negligence standard with respect to an automobile accident which occurred before the repeal and enactment of the new law. We rejected that argument, pointing out that the general assembly intended no such thing. We noted that by reenacting a comparative negligence rule the general assembly “demonstrated a clear disinclination to restore the common law rule.” 228 Ark. at 942, 311 S.W. at 300. Paraphrasing that decision, and applying it by analogy to these ordinances, we say here that by reenacting a comprehensive zoning ordinance the City of Lowell demonstrated a clear disinclination to return to being a city without land use regulation.

To be valid, a nonconforming use must have been a lawful use when established, and so a use which was established in violation of either public law or private property rights is usually not recognized as a nonconforming use. If the previous use was a zoning violation, the case is clear that such use cannot attain the status of a nonconforming use under the same (or a subsequent [)] zoning ordinance [footnote omitted].

N. Williams and J. Taylor, 4A Williams American Planning Law, § 110.02, p. 89 (1986). See also R. Anderson, 1 American Law of Zoning, § 6.14, p. 481 (1986).

Affirmed.

Purtle and Glaze, JJ., dissent.

John I. Purtle, Justice,

dissenting. This is a typical case of land grabbing and confiscation by cities for the purpose of collecting additional taxes from the property owners and farmers. This unfortunate lawsuit is about a forty acre farm near the city of Lowell, Arkansas. It was outside the city until the city government expanded about a day’s walk in each direction. By enactment of Zoning Ordinances 177, 222, and 238, the city reaches, like the tentacles of an octopus, into the property, home and life of every resident in the city of Lowell. It tells them how and when they may use their property and whether they can remodel or rent. Whatever use a property owner makes of his property, it must be approved by the city first.

Both the United States and Arkansas Constitutions protect property rights. However, state and local governments continually seem to hamper the citizens and inhabitants within their jurisdiction by issuing as many restrictions and decrees as possible. For example, Ordinance 238, enacted by the city of Lowell on July 8, 1986, establishes what it classifies as a comprehensive zoning ordinance. It is indeed comprehensive; it is also confiscatory and arbitrary. Apparently the uses and regulations to which this land is subjected were borrowed from the city of New York because there are about 400 land use classifications in the ordinance adopted by the city of Lowell, Arkansas, which probably has less than 400 buildings.

One of the classifications of lands in the city is agricultural. I suppose they intended to allow farmers to continue using their farmlands to farm. A farm without a house on it is of less value than it is with a house on it. The repealed ordinance allowed people to place a mobile home on each 20 acres of land. It so happens that the appellants own what amounts to two 20 acre parcels of land. They have a mobile home on the south side of the 40 acres, in which appellants’ mother lives, and a mobile home on the north side. It seems to me that this clearly comes within the classification allowing the one mobile home on each 20 acre plot, which was allowed by the repealed ordinance.

The chief argument presented by the appellant is that Ordinance 238 repealed all existing ordinances and “grandfathered” in existing land uses. Section 5 of Ordinance 238 states:

Non-conforming use of land and structures may be con tinued and improved but not expanded so long as it remains otherwise lawful.

Both mobile homes were in place and occupied prior to enactment of the present ordinance. It appears to me that the appellants have complied with the ordinance in the first place and secondly that the city repealed any prior ordinance and grandfathered in existing uses as of the date of the enactment of Ordinance 238. Additionally, I can see no reason whatsoever for excluding mobile homes from areas where other homes may be built. Simply because a person is financially unable to build a house on a site is not cause to deny him the right to move a mobile home onto his property. There are no classes of citizens established in the constitutions; neither are there any restrictions of property rights or degree of uses. These classifications are creatures of the cities which are themselves creatures of the state legislature. All people are supposed to be treated equal and afforded due process of law. The city has not only discriminated against farmers and mobile home owners but has also taken a valuable property right without just compensation and in violation of the Equal Protection and Due Process of Law clauses of the United States Constitution.

The Robertson farm was in existence long before the city of Lowell was established. The appellants are in conformity with the ordinance since they have a mobile home on the north side of the 40 acres and a mobile home on the south side of the 40 acres. Again, these mobile homes were in place before the existing ordinance was adopted. Since it repealed all existing ordinances and allowed existing non-conforming uses to continue, there is no reason why these people should be deprived of their right to maintain this property in the manner they have chosen. It is obviously not offensive to anyone except the city officials and is no doubt the most respectable and best use of the property. There is no more reason to allow a $250,000 home on less than 20 acres than there is to allow a mobile home on the same size plot. Such treatment tends to allow only the wealthy to use their land as they deem fit. Even a city does not have the right to deprive an individual or individuals of their constitutional rights.

I have no complaint against the city of Lowell which I do not have against all other cities and the state. I simply believe that government governs best which governs least. I can see no relevant state purpose in ordinances such as these.


author: Tom Glaze, Justice.

text:
    Jack B. DAVIS v. Mark S. WINGFIELD
    88-133
    759 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      Walter A. Murray Law Firm, for appellant.

      David Hodges, for appellee.
   Tom Glaze, Justice.

This is an appeal from the trial judge’s finding the appellant liable for appellee’s damages which resulted from an automobile accident. The accident occurred when the appellant, who was answering an emergency call in an authorized emergency vehicle displaying the proper lights and siren, proceeded into the intersection on a red light and collided with the appellee’s car already in the intersection. Appellant contends that the trial court’s ruling is in error, because the judge misapplied the emergency vehicle statutes and found that the appellant was negligent as a matter of law for proceeding into the intersection on a red light. The appellee argues before this court that the appellant’s abstract is defective under Ark. Sup. Ct. R. 9, because the appellant failed to abstract the notice of appeal and lower court’s judgment.

This court has frequently noted that the basic pleadings and the judgment or decree appealed from are ordinarily essential constituents of the abstract. See, e.g., Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); see also Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 360, 362 (1977). In addition, we have stated that all relevant orders entered by the trial judge are to be abstracted. City of Mariana v. Municipal League, 291 Ark. 74, 722 S.W.2d 578 (1987). Since there is only one transcript, it would be impractical to require all the members of the court to examine it to determine the contents of the lower court’s judgment. See Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).

Because the appellant failed to abstract the judgment and made no motion to supplement the abstract to include it, we are, in accordance with the above authority and precedent, required to affirm.

       See In re Matter of Revision of the Rules of the Supreme Court and Court of Appeals, 296 Ark. 581, 757 S.W.2d LVIII (1988), which proposes adoption of new appellate procedure that may serve, if adopted, to eliminate most problems, like the one here, that results from abstracting the record.


author: Tom Glaze, Justice. Robert H. Dudley, Justice, John I. Purtle, Justice,

text:
    Charles NELSON v. STATE of Arkansas
    CR 88-146
    759 S.W.2d 215
    Supreme Court of Arkansas
    Opinion delivered November 7, 1988

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Donald K. Campbell III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This criminal appeal involves a battery charge brought against the appellant after he beat his wife. The incident occurred on August 10,1983, when appellant threatened his wife by brandishing a pistol in her face, and later that night beat her unmercifully. After the beating, appellant first was arrested for public intoxication and then a second degree battery charge was apparently added. That battery charge was apparently reduced since the record shows a third degree battery charge was nolle pressed on January 4,1984, when appellant was charged in circuit court with first degree battery. After numerous delays and trial settings, appellant was tried and convicted on March 5, 1987, and sentenced to twenty years imprisonment. Appellant argues on appeal that the state violated his right to a speedy trial. We do not agree, and therefore affirm.

In their arguments, the appellant and the state disagree on when the time should commence in calculating the eighteen-month period within which the appellant was required to be tried. See A.R.Cr.P. 28.1(c). Appellant cites A.R.Cr.P. 28.2(a) and contends the time commenced on August 10, 1983, the date of arrest. The state claims the time commenced on January 4,1984, the date the first degree battery charge was filed. In support of its claim, the state argues there is no proof the appellant’s arrest on August 10, 1983, was for the battery charge with which he was finally charged and convicted. From our review of the record, we conclude the parties’ disagreement over these dates has no legal significance because the state still tried the appellant within the time prescribed by law even when we employ the earlier date of August 10, 1983.

The appellant was tried on March 5,1987, nearly forty-three months after his arrest on August 10,1983, and well outside the required eighteen-month period in effect at the time. That being so, the state has the burden of showing that any delay was the result of appellant’s conduct or was otherwise justified. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988). The periods that must be excluded when computing appellant’s trial under Arkansas’s speedy trial rules are set out in A.R.Cr.P. 28.3(a) and (e). Those relevant, excludable periods involve delays that resulted from the appellant’s pretrial motion to dismiss, his request for a competency evaluation and his unauthorized absence from both the state and various trial dates. The chronology of significant events is as follows:

As we previously noted, appellant’s trial was held approximately forty-three months — specifically 1,301 days — after his arrest. During this time, appellant received six different trial settings, and he left the state twice without notifying the court. In analyzing the foregoing list of events, the first excludable period of 340 days resulted because appellant’s whereabouts were unknown. Sergeant Ike Wei ton testified that the appellant, after his arrest on August 10, 1983, had the duty to notify his bondsman and the court of any address changes. Nevertheless, after the first degree battery charge was filed on January 4, 1984, Welton said his department mailed an arrest warrant to the address given them by appellant. The officer received no reply. On March 20, 1984, an officer was sent to arrest appellant at his residence, but the officer learned the appellant had left three months earlier and had not returned. In fact, appellant was later located and arrested in Louisville, Kentucky on November 3, 1984, and extradited to Arkansas on December 12, 1984. In sum, the state showed that on March 20, 1984, the officers discovered that appellant had left his residence three months earlier and did not find him until he was arrested in and extradited from Kentucky. Under these circumstances, appellant’s whereabouts were unknown to the state and the delay resulting during this period was caused by his own action and excludable under Rule 28.3(e).

Another period excludable under Rule 28.3(e) occurred when the appellant failed to appear for trial, which had been set for July 26, 1985. Again, appellant was located and arrested in Kentucky on January 30, 1986, a 188-day period of delay. That period, we conclude, is excludable because he absented himself from the court without notifying the court or requesting its permission to do so.

The next excludable period resulted from the appellant’s pretrial motions in which he requested the case be dismissed because the state violated the speedy trial laws. After fourteen days, the court denied the appellant’s motion. This period was excludable under Rule 28.3(a).

Finally, a 223-day period of delay resulted from proceedings concerning the examination and evaluation of the appellant’s competency to stand trial and to determine if he lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law when the crime was committed. Again, this period of time is specifically excludable under Rule 28.3(a).

In adding the excludable periods noted above, they total 765 days, leaving only 536 days — less than eighteen months — of the original 1,301 days (or nearly forty-three-month period) between the appellant’s initial arrest (8-10-83) and when he was tried (3-5-87). Because the record and proof reflect the appellant was tried within the legally required eighteen-month period, we uphold the trial court’s decision denying the appellant’s request to dismiss this cause for violation of the speedy trial laws.

Purtle, J., dissents. Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. I concur in the result that is reached by the majority, but I do not agree that the fourteen-day period, from March 18, 1985, to April 1, 1985, is excludable.

On March 18, 1985, appellant filed a motion to dismiss alleging violations of speedy trial rules. The hearing on that motion was held on April 1,1985, at which time it was denied by the trial court. The majority merely cites A.R.Cr.P. Rule 28.3(a), with no explanation, as support for its conclusion that these fourteen days are excludable. Such a conclusion cannot withstand closer scrutiny. A.R.Cr.P. Rule 28.3(a) provides:

The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on pretrial motions, interlocutory appeals, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period.

(Emphasis added). The majority either overlooks or ignores the introductory clause of Rule 28.3(a). That is, the amount of time excludable under Rule 28.3(a) is the “period of delay resulting from . . . hearings on pretrial motions, . . . .” The trial court did not set forth this fourteen-day period as excludable in a written order or docket entry. So, we do not have any notation from the court stating that the hearing caused a fourteen-day delay. Further, there is nothing else in the record establishing that the hearing on appellant’s motion to dismiss caused any delay whatsoever. Consequently, this fourteen-day period is not excludable.

John I. Purtle, Justice,

dissenting. The appellant was arrested on August 10, 1983, and was tried on March 5, 1987. Obviously, the period is well beyond the eighteen months allowed by our speedy trial rule. Therefore, the burden is on the state to prove that he was tried within the eighteen months, plus any excludable periods. The charge was filed on the same date of the arrest in this case.

It is not disputed that the appellant was arrested on August 10,1983, for the battery of Laverne Nelson. On that same date he was charged with second degree battery. Although the state attempted to eliminate some of the time by nolle prossing and refiling the charge, this action by the state had no effect on the running of the speedy trial time. In any event, the appellant was tried on March 5, 1987, and convicted for battery committed on Laverne Nelson on August 10, 1983.

I agree with the majority opinion that the burden is on the state to show that any delay in excess of eighteen months resulted from the appellant’s conduct or was otherwise justified by the record. The majority then draws a neat looking diagram and simply brackets out enough time to reduce the trial date to less than eighteen months, plus alleged excludable time, from the date of the arrest, which occurred forty-three months before the trial. I could draw a similar diagram and exclude less time and with equal force show that the state did not try the appellant within the required time. However, that would not reduce the burden of the state to show compliance with the speedy trial rule. Although the appellant was arrested and charged on August 10, 1983, the state made no effort to locate him until January 6,1984, and then only for the purpose of serving a second warrant on him.

The state mailed a letter to the appellant’s former wife’s last known address, at 2408 South Harrison Street, Little Rock, Arkansas. The letter was not returned. The identity of the person who received it is not established. The wife owned this property before the parties were married and presumably still owns it. The only other effort shown to have been made by the state to locate the appellant was on March 20, 1984, when an officer allegedly went to the address and learned that the appellant had moved from that place about three months earlier. There is nothing to indicate who lived at 2408 South Harrison at the time the officer went by nor when the letter was mailed to that address. Apparently nobody ever checked the names of those residing at 2408 Harrison nor did they check the court records or the post office or make any other effort to locate the appellant or determine where he was residing.

From reading the brief, I have the impression that the appellantgave an addressofRt. 5,Box 114 to his bondsman. This, of course, was a part of the record. The police did not check with the bondsman, apparently. It is quite obvious to me that the state made no more than one feeble attempt to locate the appellant and since the burden was on the state to prove the delay was the fault of the appellant, it has failed to do so.

The state has simply shown that the appellant did not reside at 2408 South Harrison Street on the date one of their representatives went by to check. I think we could take note that had the officers checked the Justice Building or the Courthouse, they would have not found the appellant at either of those addresses. That does not mean that he was outside the jurisdiction of the Pulaski County Circuit Court. The state may have just as well traveled to Fifth & Main to locate the appellant. Needless to say, the report would have shown that he was not located there either.

Bad cases make bad law.

       Appellant cited A.R.Cr.P. 28.2 and argued that the first degree battery charge was based on the same conduct as the earlier charges, so the time would still commence when he was first arrested.

       The appellant does not mention Glover v. Stale, 287 Ark. 19, 695 S.W.2d 829 (1985), wherein the state showed it had mailed the defendant a notice of a trial setting to his last known address, but it received no reply. We held the state failed to prove the defendant was not at the address; also the defendant and his mother testified he lived at that address and never received a trial notice. The present case is clearly distinguishable because the unrebutted testimony reflects the defendant had removed himself from the residence (address) given the court months before the officers tried to locate and arrest him.

       Appellant also argues the trial court failed, as required under A.R.Cr.P. 28.3(i), to set forth the number of excludable days in a written order or docket entry, but since that issue was not presented below, we do not consider it on appeal. See Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Harvey D. PLOTTS v. STATE of Arkansas
    CR 88-81
    759 S.W.2d 793
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      McMillan, Turner & McCorkle, by: F. Thomas Curry, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Harvey Plotts, was convicted of possession of marijuana with intent to deliver and sentenced to ten years imprisonment and a fine of $25,000.00. For reversal he argues that the trial court erred in (1) refusing to grant a directed verdict in that there is insufficient evidence of guilt and (2) refusing to give the jury an instruction on the lesser included offense of simple possession thereby creating an unconstitutional mandatory presumption. We find no error and affirm the judgment of the trial court.

At approximately 11:20 p.m. on September 24,1987, Officer David Hathcoat, while patrolling on 1-30 near Arkadelphia, spotted an eastbound Datsun “280ZX” weaving from lane to lane. After following the car for a short distance, the officer pulled the car over. After determining that Vega, the driver, had no driver’s license, the officer informed him that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.

Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers sticking out of the top. He also noticed that there was a plastic bag containing green vegetable material protruding out of the clothes bag. After determining that Plotts owned the car, the officer asked him if he could search it. According to the officer, Plotts replied, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.”

After the deputy arrived, Officer Hathcoat took the clothes bag out of the back seat, placed it on the hood of the car, and unzipped the bag. Therein he found seven bags containing a total of 5 lbs., 12.7 ounces of marijuana. The officer immediately read Plotts his rights and arrested him.

Testimony and physical evidence supporting this scenario were the State’s case. At the close of the State’s presentation, Plotts moved for a directed verdict on the grounds that the State had not proved beyond a reasonable doubt that he possessed marijuana with intent to deliver. The court denied the motion, and the defense rested. The jury then found Plotts guilty.

I. SUFFICIENCY OF THE EVIDENCE.

Plotts alleges that there is insufficientevidence to support the jury verdict. We hold to the contrary.

In determining whether there is sufficient evidence to support a jury verdict, we view the evidence in a light most favorable to the State and affirm if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another. Id. It must be more than mere speculation or conjecture. Williams v. State, 289 Ark. 443, 711 S.W.2d 825 (1986).

The issue we must decide is whether the State presented sufficient evidence to prove that Plotts possessed marijuana with intent to deliver. In order to convict a defendant on possession of a controlled substance, the State need not prove that the accused had actual possession of the controlled substance. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982). Constructive possession, which is the control or right to control the contraband, is sufficient. Id. Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Id.

Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985). See Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978). In such cases, the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband and (2) that the accused knew the matter possessed was contraband. Williams, supra.

In Williams, supra, the police stopped the appellant, who was driving his ex-wife’s car, and another individual, who was seated in the right front seat, for speeding. In searching the car, which was emitting a cloud of blue marijuana smoke, the police found a brown paper sack on the floorboard in front of the passenger (according to one officer, in the center of the floorboard) containing 3.6 ounces of marijuana, traces of marijuana “strung all over”, the floorboard, and several “roaches” in the ashtray, one still simmering. In addition, the passenger had a significant amount of marijuana scattered over his clothing. No traces of marijuana were found on the appellant.

In holding that there was insufficient evidence to support the appellant’s conviction for possession of marijuana, we found that the State did not meet its burden of proving that the appellant had both (1) knowledge of the presence of marijuana and (2) control over it.

We have had few cases, except Williams, in which to develop workable guidelines for reviewing a possession conviction where the police find contraband in a vehicle occupied by more than one person, and there is no direct evidence that the contraband belongs to a particular occupant. Accordingly, a review of the analytical framework utilized by other jurisdictions would be useful.

Other courts have held that the prosecution can sufficiently link an accused to contraband found in an automobile jointly occupied by more than one person by showing additional facts and circumstances indicating the accused’s knowledge and control of the contraband, such as the contraband’s being (1) in plain view [Albert v. State, 659 S.W.2d 41 (Tex. Ct. App. 1983); State v. Godsey, 202 Mont. 100, 656 P.2d 811 (1982); Zicca v. State, 232 So. 2d 414 (Fla. Dist. Ct. App. 1970)]; (2) on the defendant’s person or with his personal effects [Vaughn v. State, 473 So. 2d 661 (Ala. Crim. App. 1985)];or (3) found on the same side of the car seat as the defendant was sitting or in immediate proximity to him [Taylor v. State, 682 S.W.2d 391 (Tex. Ct. App. 1984); State v. Woodruff, 205 Neb. 638, 288 N.W.2d 754 (1980); Machin v. Wainwright, 758 F.2d 1431 (11th Cir. 1985)]. Other facts include the accused (4) being the owner of the automobile in question [Rudd v. State, 649 P.2d 791 (Okla. Crim. App. 1982); Albert, supra; Taylor, supra. See also Zicca, supra] or exercising dominion and control over it [Woodruff, supra]; and (5) acting suspiciously before or during arrest [Machin, supra; Taylor, supra].

In Taylor, supra, the police discovered cocaine in a clear cellophane package on the floorboard of the driver’s side of a truck in which the driver-appellant and a passenger were seated. The court held that the officer’s testimony that the appellant was the owner of the truck, that cocaine was located on the appellant’s side of the truck, and that the appellant’s movements just before his arrest indicated he was removing something from his pocket was sufficient to show possession.

In Zicca, supra, the police stopped a vehicle in which the appellant-driver and three other persons were present. The evidence introduced at trial established that the appellant was the owner of the car and that after stopping the appellant, the police spotted marijuana in a cellophane bag on a homemade shelf behind the passenger seat of the car in plain view. On appeal, the court held that this evidence was sufficient to show possession.

In Westbrook, supra, utilizing some of the same facts or circumstances enunciated by these other courts, we linked the accused to contraband found in the kitchen area of a home jointly occupied by the accused and another individual. These facts or circumstances were as follows: (1) the accused owned the house and had the superior right to its control; (2) while an officer was searching the bathroom, the accused came in, picked up a jewelry box, and started out; when the officer retrieved the box it was found to contain $3,700.00 wrapped in three brown paper bags; and (3) upon being taken into custody, the accused asked, “I would like to know which whore in town turned me in.”

We turn now to the facts of the case at bar and apply the relevant factors. After stopping Plotts’ car and determining that Vega, the driver, had no driver’s license, the officer informed Vega that he was under arrest for reckless driving and driving without a license. As the officer was putting the handcuffs on Vega, Vega dropped an aluminum foil package with syringes sticking out of it onto the ground. The officer then called for assistance.

Immediately thereafter, the officer walked over to the passenger side of the car to question appellant Plotts. As he approached Plotts, the officer (with the aid of a flashlight) spotted a clothes bag in the backseat which appeared to be full and thick but had no hangers sticking out of the top. He also noticed that there was a plastic bag containing green vegetable material protruding out of the clothes bag. After determining that Plotts owned the car, the officer asked him if he could search it. According to the officer, Plotts replied, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.” Shortly thereafter, the officers searched the clothes bag and found seven bags of marijuana.

We conclude that the following facts, when blended together, constitute sufficient evidence of Plotts’ knowledge of and control over the marijuana so as to establish possession of the controlled substance: (1) the officer spotted the suspicious looking clothes bag and the plastic bag containing marijuana in plain view in the backseat of the car; (2) Plotts owned the vehicle in question; and (3) he made the somewhat suspicious statement, “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out,” after Vega had been removed from the vehicle.

In finding that these facts sufficiently establish possession, we note that our decision in Williams likely would have been decided differently under our current analysis. To the extent Williams is inconsistent with this decision, Williams is overruled.

II. JURY INSTRUCTION.

Plotts contends that the trial court erred in refusing to give the jury an instruction on the lesser included offense of simple possession thereby creating an unconstitutional mandatory presumption. Because he did not abstract the proposed instruction, we do not consider this issue. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Hereafter all automobile owners must be careful to search the containers and luggage of guests who ride in their vehicles. Failure to do so could result in a sentence to the Arkansas Department of Correction for ten years and a fine of $25,000. One must also be careful whom he talks to or rides with because in the event a person with whom one associates is convicted of a crime, he too could be considered an accomplice and sentenced likewise.

In this case the appellant and his friend were stopped by the officer because the car was “weaving back and forth.” After the vehicle was stopped, the officer had the driver, appellant’s guest, step out of the car for some reason. Traffic violations do not ordinarily require the driver to get out of the vehicle. As he was handcuffing the driver a packet of drug paraphernalia fell from his hands or pocket. Obviously the appellant saw what happened and when the officer came to his side of the car and asked to search his vehicle, he stated: “You can search the vehicle, any part of the vehicle you want to. If there are any drugs in there, I want them out.” The majority has turned this statement into an incriminating one rather than one obviously made by a person who was shocked when suddenly confronted by the fact his companion possessed drug paraphernalia while riding in the appellant’s vehicle. It is apparent that the majority would have found it to be incriminating had the appellant said, “No, you can not search my vehicle.” It is my opinion that there is nothing under the sun that the appellant could have said or done that would have convinced either the trial court or this court that he was not guilty. After all, he was riding in an automobile which contained a plastic clothing bag with marijuana in it. What more proof of guilt is needed?

With the aid of a flashlight, the officer discovered in “plain view” a suitbag containing marijuana. His reason for deciding it contained marijuana was that he could not see the end of a clothes hanger sticking out of the top of the bag. After removing the bag from the car and placing it on the hood, he unzipped it and discovered the marijuana right there in “plain view.” Not a shred of evidence was introduced to indicate that the appellant knew this marijuana was in his automobile, or that he knew that the driver possessed drug paraphernalia. Everything connecting the appellant to this crime is purely speculative. Mere association is not enough to sustain a conviction.

We have previously gone far enough in upholding the convictions of people who are associated with known law violators through the joint occupancy of vehicles or premises. The majority states: “Where there is joint occupancy of the premises where contraband is found, some additional factor must be present linking the accused to the contraband.” I agree with this statement of the law. However, the majority then proceeds to dismantle this well-reasoned rule of law and to replace it with a subjective standard whereby a strong suspicion is all that is necessary to uphold a conviction.

There is not one scintilla of evidence in this record to show that the accused exercised care, control, or management over the contraband or that he knew the matter was in his vehicle. The effect of the decision today is to completely reverse the burden of proof and implant a new rule of law which creates a “rebuttable presumption” that joint occupancy alone is sufficient to establish joint possession — in this case, possession with intent to deliver. There is already firmly rooted in our law the rebuttable presumption that possession of a certain amount of contraband gives rise to the presumption of intent to deliver. To this presumption the court has today added, without expressly saying so, another rebuttable presumption that joint occupancy gives rise to the presumption of joint possession. In effect, the trial court and this court have “rebuttable presumptioned” this defendant into a ten year sentence. Under the holding today, all the state need prove is that contraband was found in the car in which a defendant was riding. The burden then shifts to the defendant to prove that he didn’t know it was there and that he didn’t intend to sell it. The court has taken a fundamental principle of criminal law — that the state must establish the guilt of one accused of a crime — and turned it completely on its head.

At the very least, the trial court should have given the proffered instruction on simple possession. Under the facts of this case the failure to do so is a clear violation of the statutory and constitutional rights of the appellant. The decision of the court today is completely contrary to previously existing case law. I would reverse and remand for a new trial.


author: Jack Holt, Jr., Chief Justice.

text:
    Dan WILBURN v. KEENAN COMPANIES, INC.
    88-179
    759 S.W.2d 554
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      Richard L. Peel, for appellant.

      Jonathan P. Shermer, Jr., for appellee.
   Jack Holt, Jr., Chief Justice.

This is an action challenging the trial court’s refusal to set aside a default judgment for want of sufficient service of process upon the appellant-defendant, Dan Wilburn. We find that the order appealed from is not final and dismiss the appeal.

On November 20, 1987, the appellee, Keenan Companies, Inc. (Keenan), filed a breach of contract action against Dan Wilburn and his brother, Harry Wilburn, seeking money damages. On January 19, 1988, the trial court granted Keenan’s motion for default judgment because Dan Wilburn and Harry Wilburn had failed to appear or otherwise defend in the action.

On January 28,1988, the Wilburns filed a motion to set aside the default judgment on the grounds that service of process was insufficient. Thereafter, in an order filed March 3,1988, the court granted the motion to set aside the default judgment as to Harry Wilburn but denied the motion as to Dan Wilburn. From this order, Dan Wilburn appeals.

Whether a final judgment, decree, or order exists is a jurisdictional issue we have to raise, even if the. parties do not, in order to avoid piecemeal litigation. Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). In order to be final and appealable under Ark. R. App. P. 2 and Ark. R. Civ. P. 54(b), a trial court’s order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. Ark. R. Civ. P. 54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon express entry of judgment. In the absence of such determination and direction, any order or other form of decision which adjudicates fewer than all the claims or rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision any time before the entry of a judgment adjudicating all the claims and the rights and liabilities of all the parties.

The trial court’s order does not expressly direct the entry of a final judgment as to Harry Wilburn, but instead simply grants his motion to set aside the defáult judgment. Therefore, under Rule 54(b) the order does not terminate the action as to the other party in the action, Dan Wilburn, Simply put, the order is not final.

We will not reach the merits of an appeal if the order appealed from is not final. Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987).

Appeal dismissed.


text:
    Leopolian FORD v. STATE of Arkansas
    CR 88-96
    759 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered November 14, 1988

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Public Defender, and Didi Harrison, Deputy Public Defender, by: Susan Wilson, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was found guilty of murder in the first degree and received a life sentence. The sole argument on appeal is that there is insufficient evidence to sustain the conviction. We hold that there is sufficient evidence to sustain the conviction and affirm the judgment of the trial court.

In determining the sufficiency of the evidence on appeal, we must determine whether there is substantial evidence to compel a conclusion without resorting to speculation and conjecture. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). On appellate review, we examine the evidence in the light most favorable to the appellee. If there is substantial evidence to support the verdict, the judgment of the trial court will bé affirmed. Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981).

The appellant was charged with and convicted of violation of Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1987), which provides that a person commits murder in the first degree if “[w]ith the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Premeditation and deliberation are not required to exist for any particular length of time and may be formed on the spur of the moment. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Deliberation and premeditation may be inferred from factual circumstances provided the evidence clearly warrants the inferences and conclusions drawn. Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966). It is not necessary to prove the defendant’s motive for the killing when there is substantial evidence to establish that the accused deliberately and with premeditation killed the victim. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).

Clear and substantial evidence, presented through the testimony of eyewitnesses, reveals that the appellant was ejected from a lounge because of his unruly conduct. Shortly afterwards, he was observed outside arguing with other people and was overheard asking another person to allow him to use his pistol to shoot up the place. Rondell Peer, a friend and acquaintance of both the victim and the appellant, was present at the time of the murder. During the disturbance outside the lounge Rondell Peer heard raised voices and the sound of a gunshot behind him. He turned around and saw the appellant pointing a handgun at the victim. At that time, the victim’s arms were out in front of him, and he was backing away from the appellant. The victim called Peer’s name and stated that he had been shot. Then the victim staggered around the corner and fell on the sidewalk where he died. Another witness, Paul Bullock, stated that he observed the appellant pull a gun on another man just before the victim was shot. He also heard gunshots, saw the victim run around the side of the building and heard him say that he had been shot.

There is other substantial evidence, but it is not necessary to recite it because obviously the evidence set out conclusively establishes substantial evidence to support the conviction.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Ark. Code Ann. § 16-91-113 (1987), we have reviewed the record of all objections that were decided adversely to the appellant and have found no prejudicial error.

Affirmed.