Smith v. State

George Rose Smith, Justice.

The appellant, charged with possession of seven pounds of marihuana with intent to deliver, was convicted by a jury and sentenced to a six-year prison term and a $1,000 fine. The Court of Appeals transferred the case to us under Rule 29 (4) (b).

While the case was pending in that court, the appellant’s attorney filed a brief without a proper abstract of the testimony. When the Attorney General called attention to the deficiencies, the Court of Appeals correctly gave effect to Rule 9 (e) (2) by denying appellant’s motion to be allowed to file a supplemental abstract and brief, but permitting counsel to file a substituted abstract and brief. Counsel, however, disregarded the plain language of both the rule and the order by filing a mere supplemental abstract and brief. The rule does not contemplate that anything less than a complete, substituted abstract and brief may be filed in the circumstances, so we must treat the supplemental abstract and brief as the appellant’s only one in the case. When, as here, an appellant’s abstract is deficient, our practice is to rely on the record if it shows that the trial court’s decision should be affirmed on a particular point, but not to explore the record for prejudicial error if none is shown by the abstract.

On September 14, 1981, Kirk Hicks was a Van Burén county deputy sheriff and also a police officer employed by the city of Damascus. That night he stopped the appellant’s car because it had no taillights. The officer, having some reason to suspect that the appellant or his companion had unlawfully killed a deer, searched the trunk of the car and found not a deer but seven pounds of marihuana. After the trial counsel filed a motion for new trial on the ground that Hicks was not a certified law enforcement officer, so that the arrest and search were illegal. The denial of that motion is the first ground for reversal.

No reversible error is shown. Act 452 of 1975, as amended, provides for the certification of law enforcement officers and recites that official action taken by an uncertified officer is invalid. Ark. Stat. Ann. § 42-1007 (Supp. 1981) and § 42-1009 (Repl. 1977). Section 42-1007 also provides, however, that full-time officers serving on the effective date of the act may continue in their employment. Officer Hicks had been a police officer for some years before the passage of the 1975 act and was therefore exempted by its “grandfather clause.” It is not clear that he lost his status by moving from Stone county to Damascus and continuing in police work there. See § 42-1007. In any event, all the facts were available to counsel before the trial; so the motion for new trial was not supported by the necessary showing of diligence. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).

A second argument is that the trial judge should not have answered the j ury’s inquiry, during their deliberations, about parole eligibility for a person sentenced to one year in jail. Defense counsel, however, agreed in response to a question by the trial judge that information about “the parole situation” could be given to the jury. That distinguishes this case from our holding in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), for counsel cannot consent that the trial judge take some action and then seek a reversal on the basis of that action. Clack v. State, 213 Ark. 652, 212 S.W.2d 20 (1948).

A third argument is that the appellant did not voluntarily consent to the search of the trunk of his car. The substituted abstract of the testimony at the suppression hearing does not show that the consent was not voluntary. It is also argued that the trial judge was wrong in ruling that if the defendant took the witness stand at the suppression hearing he could not limit his testimony to the issue of whether or not his consent was given. Even so, there was no proffer of what the defendant’s testimony would have been; so we have no way of knowing whether he would have testified to facts rebutting his asserted consent to search. Barnes v. Young, 238 Ark. 484, 382 S.W.2d 580 (1964).

Affirmed.

Purtle, J., dissents.