Tims v. State ( 1988 )

760 S.W.2d 78 (1988) 26 Ark.App. 102

Randy TIMS, Appellant,
v.
STATE of Arkansas, Appellee.

No. CA CR 88-42.

Court of Appeals of Arkansas, Division I.

November 23, 1988.

Thomas J. Pendowski, N. Little Rock, for appellant.

R.B. Friedlander, Sol. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant was convicted in a non-jury trial of driving while intoxicated, fourth offense. He was sentenced to six years in the Arkansas Department of Correction. From that conviction, comes this appeal.

On June 13, 1987, the appellant was driving south on Highway 365. The Mayflower Police Department and the Arkansas State Police were conducting a roadblock to check driver's licenses, vehicle licenses, and vehicle registration. The officers had set up stop signs, one facing north and one facing south, on the center line of the highway. The appellant drove through the roadblock, and stopped after Alton Straschinske, a constable in Danley Township in Faulkner County, yelled at him to stop. Straschinske asked the appellant if he saw the stop sign and the appellant said that he had not. The appellant also stated that he did not have his driver's license. Straschinske stated that he smelled a strong odor of alcohol on the appellant and that when he asked him to get out of his truck and come to the rear of the vehicle, the appellant had to hold on to the truck to walk. The appellant admitted that he had a few drinks after he left work.

The appellant first argues that the roadblock was unconstitutional and that the evidence gathered as a result of the appellant's being stopped at the roadblock should have been suppressed. We disagree.

We recently decided the case of Coffman v. State, 26 Ark.App. 45, 759 S.W.2d 573 (1988). In that case the appellant challenged the validity of a roadblock and argued that evidence should have been suppressed because the officers lacked probable cause to stop him. In that case the appellant was stopped because, as he approached the roadblock, he pulled into a driveway, backed out on to the highway, and headed in the opposite direction. We stated that we did not agree with the appellant's assertion that an unlawful roadblock would infect the validity of the appellant's stop and arrest. Because the appellant had attempted to avoid the roadblock, the officers had reasonable suspicion that he was engaged in unlawful activity. Coffman, supra; see also A.R.Cr.P.Rule 3.1. In the present case we find that once the appellant ran the roadblock, the officers had reasonable suspicion that the appellant was engaged in unlawful activity and their stop of the appellant's car was within constitutional guidelines.

Furthermore, we are not convinced, on this record, that the roadblock was unlawful. The parties stipulated that the roadblock was conducted by the State Police and that the Mayflower Officers were merely assisting. Constable Straschinske testified that the police cars had their blue lights on. Howard Whittle, the Chief of Police at Mayflower, stated that he was at the roadblock, except for the time spent transporting the appellant to jail, and that while he was there every car which came through was stopped and checked. Chief Whittle also stated that Sergeant Elliot with the Arkansas State Police was the officer who requested the assistance of the Mayflower police and that he did not know the identity of Elliot's superior officer or whether the superior officer actually ordered the roadblock. We think that under these facts, the roadblock was constitutionally permissible. See Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Coffman, supra; 4 LaFave Search and Seizure: At Treatise on the Fourth Amendment § 10.8 (2d ed. 1987 and Supp. 1988).

The appellant relies on the case of Garrett v. Goodwin, 569 F. Supp. 106 (E.D.Ark. 1982), as establishing the procedure which the State Police are to follow when conducting a roadblock. However, that case was a civil action and the order entered was a consent decree. Furthermore, the focus of the decree in Garrett was to prevent police officers from using roadblocks as a pretext to search for criminal evidence without probable cause. Although the planning and implementation of the roadblock appeared to meet constitutional standards, the presence of non-traffic control police officers led to the allegations of illegality of the roadblock. 569 F. Supp. at 106. In the present case, the evidence does not support a finding that the officers were using the roadblock as a pretense. There is no evidence that the officers present were involved in non-traffic assignments, there is no evidence that any searches took place, and there is no evidence that cars were stopped randomly.

The appellant's second argument concerns the copies of court dockets which were used by the State to prove the appellant's prior convictions of driving while intoxicated. Although three docket sheets were used to prove the appellant's prior convictions, only two are challenged on appeal. The first document challenged is from the Beebe Municipal Court. At the bottom of the document is a stamp which appears to be a waiver of counsel. There is a dotted line which the defendant was supposed to sign, acknowledging the waiver of counsel. On this particular document the stamp was placed at an angle, and the appellant's signature is straight and below the dotted line. It is the appellant's contention that this stamp was placed there after the appellant signed, and that there was no valid waiver of counsel. We disagree.

The appellant is correct in his assertion that a prior conviction cannot be used to enhance punishment unless the defendant was represented by counsel or he validly waived counsel. Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980). The appellant cites the case of Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984) to support his argument. However, in Steele the court clerk testified that the stamp showing that the appellant had waived counsel was placed there two years after the appellant's trial. In the present case, there is no such evidence, and, absent any evidence that the stamp was actually placed there after the appellant signed the docket sheet, we cannot simply accept such an allegation.

We do think that the appellant's argument concerning the copy which is from the Jacksonville Municipal Court has merit. On that sheet there is a column for the name of the arresting officer. In that column, appears the words, "Atty. O'Bryan." The appellant argues that this could be either the name of the defense attorney or the name of the prosecuting attorney. Although we agree with the State that this is not a silent record, see Thomas v. State, 2 Ark.App. 238, 620 S.W.2d 300 (1981), we do find that, in the absence of any other evidence, the issue of whether the appellant was represented or validly waived counsel is too ambiguous to be relied on. Careful adherence should be given the decisions regarding proof of prior convictions in these cases. Steele, supra. Therefore, we find that the trial court erred in using the docket sheet from the Jacksonville Municipal Court as evidence of a prior conviction to enhance the appellant's sentence. Therefore, the State only proved, by competent evidence, that the appellant was guilty of DWI III. We reverse and remand to the trial court to resentence the appellant in a manner consistent with this opinion, as a DWI third offender. See Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988); Rogers v. State, 293 Ark. 414, 738 S.W.2d 412 (1987).

AFFIRMED IN PART.

REVERSED AND REMANDED IN PART.

CORBIN, C.J., and MAYFIELD, J., agree.