Petition for Writ of Certiorari — Manatt v. Arkansas

No.

IN THE

Supreme Court of the United States

October Term, 1992

SCOTT MANATT JR.

Petitioner,

V.

STATE OF ARKANSAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

Scott MANATT

Bar No. 70044

Post Office Box 473

Corning, Arkansas 72422

(501) 857-3163

Attomey for Petitioner

TREVATHAN PRESS =» LITTLE ROCK

QUESTIONS FOR REVIEW

1. The Arkansas Supreme Court erred in failing to

enjoin the use of the Juvenile Code as failing in equal

protection of the laws of the 14th Amendment to the

U.S. Constitution and also failed to accord to persons

under the age of 18 years privileges or immunities which

upon the same terms shall belong to all citizens under

Article 2, Section 18 of the Arkansas Constitution, which

created a further liberty interest, jurisdictionally treating

citizens 18 to 21 differently than those 16 to 18 for the

same offense.

2. The Arkansas Supreme Court erred in failing to

treat the overbroad definition of “juvenile delinquent” as

void for vagueness by failing to find A.C.A. §9-27-303(11)

as void for vagueness and being overbroad, which defini-

tion creates as a delinquent every child in Arkansas at

some time before his 18th birthday as a juvenile.

3. The Arkansas Supreme Court erred in allowing

the immediate imposition of sentence or disposition of

the trial court without regard to the petitioner’s right to

appeal and by letter ruling disallows any stay against im-

position of sentence pending appeal as to juveniles in vio-

lation of the Due Process Clause of the 14th Amendment.

4. The Arkansas court erred in allowing the juve-

nile intake officer as its appointee and adviser to make an

ex parte recommendation to the court by written recom-

mendation prior to an adjudication of guilt during the

time that the court was sitting as a trier of fact and inject-

ing the court into the role of an advocate in violation of

the Due Process Clause of the 14th Amendment.

5. The Arkansas court erred in finding a link be-

tween the possession of alcohol and the driver of a vehi-

cle and in allowing alleged statements by the petitioner

without benefit of Miranda warnings by an officer stop-

ping a juvenile when the questions and answers of the

targeted juvenile result in arrest and completing a “link.”

PARTIES TO THE PROCEEDINGS

The petitioner, Scott Manatt Jr., is a citizen and

registered voter in Clay County, Arkansas and is repre-

sented by Scott Manatt Sr.

The State of Arkansas as such is represented by

the Attorney Gencral of Arkansas.

ii PETITION FOR CERTIORARI

TABLE OF CONTENTS

Page

RE I iscicsevinsciiinnsesitsiininenenoreshesiverinssnsbicencecs i

PRINS BO CS FID CCOGIIGE ccccecesnsisssascosssrssssnsesesessescnevesccsees ii

Pe POS CRO vs ccscsseresssccncresasesdinscssnrcesssennnesscese iv

SE INIT snhcncsvsntssinescinianssindaceascntnunnnenensbacsdetesccsnsesseosees I

I is dcindesinntstansnsneconsvecseessisansanasarnesvescanescesanonercascentss 2

Statutory and Constitutional Provisions..............:ccee 2

IE I TIED ccsicesencconnsceavancnvnconssistennsmrnsvebensecceszansene 5

Reasons for Granting the Wit..........cccsssesseeseeerseeeees 9

Appendix

Order of the Arkansas Supreme Coutt............ A-]

Disposition Order of Trial Court 4-9-92.......... A-12

Disposition Order of Trial Court 1-7-92.......... A-13

Letter Ruling of Trial Court 12-23-91 .............. A-14

Letter Ruling of Trial Court 12-18-91 .............. A-17

Arkansas Code Annotated §9-27-308 ..........:0+ A-21

PETITION FOR CERTIORARI Ili

TABLE OF AUTHORITIES CITED

Constitutional Provisions

Constitution of the State of Arkansas

FE 2, SN Beictaitstetenenvinsiiermseniennscicanseitetin passim

Constitution of the United States

ASNCAGMOE 146, SOCIO 1 ceveriscersercnsceveesccresenscseses passim

FRE od Es Sy | a eee ETT 23

Statutory Provisions

Arkansas Code Annotated §3-3-201(a)1 ......ccceeeceseeeeses 11

Arkansas Code Annotated §3-3-203(a)(1) .......cceceeeeees 23

Arkansas Code Annotated §5-4-401(D)4 ......ceeeeeeseeees 9

Arkansas Code Annotated §5-4-201 .........cccccccceeeeeceeeeeeees )

Arkansas Code Annotated §5-4-401 o.........ccccceccesceeseeeeeees 9

Arkansas Code Annotated §5-65-116................:00+ passim

Arkansas Code Annotated §9-27-301..............:::c0008 passim

Arkansas Code Annotated §9-27-303.............. 3, 13, 21, 30

Arkansas Code Annotated §9-27-308 ...........ccccccccceseseeeeees 25

Arkansas Code Annotated §9-27-321 ...............200 4, 26, 30

Arkansas Code Annotated §9-27-330.........:ccsessenes passim

Arkansas Code Annotated §27-16-914.................. 4, 22, 30

Arkansas Code Annotated §27-16-915 ...............06. 4, 22, 23

Cases

United States, Petitioner v. R.L.C., 112 S.Ct.

I I iieiccdnediesseceaaicinsadulamniseemcaieidsanicbeninttecesitedcesion 10

Raley v. Ohio, 360 U.S. 423, 3 L.Ed.2d 1344,

fog AE 8 RRO ee 14

Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d

a IE icisabasitielesstsehshdetenstnciesesactaasilbabaiinieatinaanateassianiseias 28

Smith v. Goguen, 415 S.Ct. 566, 39 L.Ed.2d 605,

ee ee ON cchicceinehcieensvecansarindincsunibchidinnicasiociasscian 14

IV PETITION FOR CERTIORARI

Colautti v. Franklin, 439 U.S. 379, 58 L.Ed.2d 596,

ee ie a ei ibinttininstininetidinscisnesatseeemcstedenes 15

State v. Cannon, 383 So.2d 389, cert. denied,

454 U.S. 1052, 70 L.Ed.2d 587, 102 S.Ct. 596

Es tisiladikihtiecicicdniederhaiiininincdinds Aeainiiamnueesinnbeinionosevesas 15, 19

Scull v. Virginia, 359 U.S. 344, 3 L.Ed.2d 865,

Fe Ce aiiiciniiciciintiibiatastiiiiinimisniininenes 16, 19

State v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264

Oy a dntagsisdaiethdnelasdaichschiabdaalidiaieasiassaibccenttsewndicbnaesivestniens 16

United States v. Ecker, 543 F.2d 178......:ccccccccccesesssesesseeeeess 16

Walters v. City of St. Louis, 347 U.S. 231 wccsecssssseseseseeens 16

Skinner v. Oklahoma, 316 U.S. 535 ..cccccsccssesssessesseesseeseeseees 16

Harper v. Virginia State Bd. of Elections, 383 U.S.

663, 16 L.Ed.2d 169, 86 S.Ct. 1079 (1966)... 17

San Antonio Independent School Dist. v. Rodriguez,

411 US. 1, 36 L.Ed.2d 16, 93 S.Ct. 1278,

rehearing denied, 411 U.S. 959, 36 L.Ed.2d

ee |) ) SOR 14, 17

Squire v. Pace, 516 F.2d 240, cert. denied,

423 US. 840, 46 L.Ed.2d 58, 96 S.Ct. 68

RE lig PTI iecintrensecehinbanctinnctcaninnatinteninnenieveeaiseseseorss 18

McGalliard v. State, 813 S.W.2d 768 .....ccccccccccssesceceesssesevees 18

Musser v. Utah, 333 U.S. 95, 92 L.Ed.2d 562,

ee titoninccncsncniciidentteiaeidlansitencneiubinicdes 18

In Re Griffiths, 413 U.S. 717, 37 L.Ed.2d 910,

ee NS Ce ericiechvvsatnianricicinselcnihigintvinniquisonanneess 19

Gorman v. University of Rhode Island, 646 F.Supp.

Fie ee NE TI, TIBI eseenternsiaitthsnisiteninntaipascaresion 23

SAGES ©, NR, FO Bi We ce OO es kscntecntatitannveictsindetcitinmsinta 27, 28

PETITION FOR CERTIORARI V

IN THE

Supreme Court of the United States

October Term, 1992

SCOTT MANATT JR.

Petitioner,

V.

STATE OF ARKANSAS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

PETITION FOR WRIT OF CERTIORARI

TO THE HONORABLE THE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:

OPINIONS BELOW

The November 9, 1992 opinion of the Supreme

Court of Arkansas is reported at___ §.W.2d ___ and at

Appendix A-1 of this petition. The opinion of the Circuit-

Chancery-Juvenile Court of the Western District of Clay

County is not reported but is set forth as Appendix A-12.

The letter opinion of the Honorable Ralph Wilson, Cir-

cuit-Chancery-Juvenile Court judge, is not reported but is

at Appendix A-14. The letter opinion of Judge Wilson is

not reported but is at Appendix A-17.

JURISDICTION

The Court has jurisdiction and jurisdiction exists

under Rule 10.1(c) in that the Supreme Court of Arkan-

sas, in a final decision, has decided a federal question in a

way that conflicts with applicable decisions of the Su-

preme Court of the United States.

STATUTORY AND

CONSTITUTIONAL PROVISIONS

Amendment 14 to the United States Constitution,

Section 1: “All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person of

life, liberty or property, without due process of law; nor

deny any person within its jurisdiction the equal protec-

tion of the laws.”

Article 2, Section 18 of the Constitution of the

State of Arkansas: “The General Assembly shall not grant

to any citizen or class of citizens privileges or immunities

which upon the same terms shall not equally belong to all

citizens.”

Arkansas Code Annotated §9-27-330: If a juvenile

is found to be delinquent the court may enter an order

making any of the following dispositions:

(1) Transfer legal custody of the juvenile to the

Department of Human Services, or to other licensed

agency responsible for the case of juveniles, or to a rela-

tive or other individual;

(2) Order the juvenile or members of the juvenile’s

2 PETITION FOR CERTIORARI

family to submit to physical, psychiatric or physiological

evaluations;

(3) Commit the juvenile to a youth services center

operated by the Youth Services Board, using the Risk

Assessment System for Arkansas Juvenile Offenders de-

veloped by the 1990 Youth Services Center Commitment

Criteria Review Committee to be distributed and admin-

istered by the Administrative Office of the Courts;

(a) In an order to commit, the court may recom-

mend that a juvenile be placed in a community-based

program instead of a youth services center, and shall

make specific findings in support of such a placement in

the order;

(b) Upon receiving an order of commitment with

recommendations for placement in a community-based

program, the Youth Services Board shall consider the

recommendations of the committing court in making its

placement to a youth services center to a community-

based alternative;

(4) Place the juvenile on probation under those

conditions and limitations that the court may prescribe

pursuant to §9-27-339(a);

(5) Assess a court cost of no more than thirty-five

dollars ($35.00) to be paid by the juvenile or his parent,

guardian or custodian;

(6) Order restitution to be paid by the juvenile or

his parent, guardian or custodian;

(7) Order a fine of not more than five hundred

dollars ($500) to be paid by the juvenile or his parent,

guardian or custodian;

(8) Order that the juvenile participate in court-

approved public service not to exceed one hundred sixty

(160) hours.

Arkansas Code Annotated §9-27-303: ‘A delin-

quent juvenile” means any juvenile ten (10) years or older

PETITION FOR CERTIORARI 3

who has committed an act other than a traffic offense or

game and fish violation which, if such act had been com-

mitted by an adult, would subject said adult to prosecu-

tion for a felony, misdemeanor or violation under the

applicable criminal laws of this state.

Arkansas Code Annotated §5-65-116: (a) Whenev-

er a person who is less than eighteen (18) years of age

pleads guilty or nolo conterdere to, or is found guilty of,

driving while intoxicated under 5-65-101 et seq., or of any

criminal offense involving the illegal possession or use of

alcohol or controlled substances, or is found by a juvenile

court to have committed such an offense, the court shall

prepare and transmit to the Department of Finance and

Administration within twenty-four (24) hours after the

plea or finding an order of denial of driving privileges for

the minor....

A.C.A. §27-16-915(a)(1); Whenever a person

pleads guilty, nolo contendere, or is found guilty of any

criminal offense involving the illegal possession or use of

controlled substances under §§5-64-101 ef seq., the court

shall prepare and transmit to the Department of Finance

and Administration, within twenty-four (24) hours after

the plea or finding, an order to suspend the driving privi-

leges of the person for six (6) months.

Arkansas Code Annotated §27-16-914: Upon re-

ceipt of an order of denial of driving privileges under §5-

65-116 or 5-64-710, the Department of Finance and Ad-

ministration shall suspend the motor vehicle operator’s

license of the minor for twelve (12) months or until the

minor reaches eighteen (18) years of age, whichever is

longer.

Arkansas Code Annotated §9-27-321: Statements

4 PETITION FOR CERTIORARI

made by a juvenile to the intake officer or probation offi-

cer during the intake process prior to a hearing on the

merits of the petition filed against the juvenile shall not

be used or be admissible against the juvenile at any stage

of any proceedings in juvenile court or in any other court.

STATEMENT OF THE CASE

The questions for review in this case are the rul-

ings of the Arkansas Supreme Court in applying the over-

broad definition of juvenile delinquent, the more harsh

treatment received by juveniles than adults, the failure to

Stay juvenile matters pending appeal, a juvenile‘s rights to

Miranda warnings and the juvenile court’s appointees as-

sisting the prosecution, in violation of the Equal Protec-

tion of the Law Clause and Due Process Clause of the

14th Amendment. The issues were raised by motion on

December 2, 1991 in the trial court, a letter ruling ob-

tained thereon and an appeal to the Arkansas Supreme

Court taken challenging the Juvenile Code as unconstitu-

tional under the 14th Amendment by being vague and

overbroad and subjecting the juvenile to the enforcement

of the Juvenile Code based on the personal predilections

of the individual officers.

Further, the petitioner raised the question of an

increased liberty interest as a fundamental right under

Article 2, Section 18 of the Arkansas Constitution which

should bar the disparate and unequal treatment of juve-

niles. The petitioner alleges that the greater penalties that

could or would be placed on a juvenile than an adult for

the exact violation of law are a violation of the Equal

Protection of the Laws clause of the 14th Amendment.

Specifically, the petitioner raised the question that while

an adult may be subject to a fine of only $100 for a Class

C misdemeanor in Arkansas, a juvenile would be subject

PETITION FOR CERTIORARI 5

to a fine of five times that amount of up to $500, a re-

moval from the home for up to two years or 18th birth-

day, a court cost, up to 160 hours of public service and

such other provisions as were set up under the Arkansas

Juvenile Code for which an adult could not be sentenced.

Petitioner raised the question that under the Juve-

nile Code overbroad definition of “juvenile delinquent”

that based only upon the personal predilections of the

intake officers and officers of the law, every child in Ar-

kansas, under the definition as written, could or would be

a juvenile delinquent before his 18th birthday. These

same points were assigned as errors to the Arkansas Su-

preme Court in Points One through Five inclusive and

are addressed and set forth at Appendix A-1 by the Ar-

kansas court, same being the decision of the Arkansas

Supreme Court. All points are properly raised, preserved

and before the court.

In addition, the issue raised at both the trial court

as per the letter rulirg Appendix A-14 and A-17 and at

the Supreme Court and as addressed by the Arkansas

Supreme Court claim that due process is denied a juve-

nile under the Arkansas Code if he cannot stay the en-

forcement of the juvenile court order pending an appeal

to a higher court. This denies the juvenile the equal pro-

tection of the law and the due process guarantee of the

14th Amendment.

All issues were raised by motion on December 2,

1991 with memorandum brief attached and were pre-

served and appealed directly to the Supreme Court of

Arkansas, from which ruling this petition is taken. On

September 1, 1991, Scott Manatt Jr., a 16-year-old, along

with three other unidentified and uncharged teenagers,

was stopped on a state highway in Arkansas with no driv-

6 PETITION FOR CERTIORARI

ing violation given by an officer of the state police.' The

trooper looked into the back end of a pickup truck, out of

reach of all occupants, and saw an unopened container of

beer and charged the driver only with minor in possession

of alcohol and elicited a statement from the minor with-

out the benefit of Miranda rulings. The case was proc-

essed through the juvenile court, and the ,uvenile court

determined, under the definition of “juvenile delinquent,”

that the juvenile was a juvenile delinquent for being in

possession of alcohol, and the trooper admitted and the

court found that the juvenile was not and had not been

drinking and was not intoxicated. Petitioner, by motion,

sought to have the Juvenile Code definition declared

unconstitutional as vague and overbroad under the 14th

Amendment and the disparate treatment of juveniles de-

clared unconstitutional under the liberty interest and

Equal Protection of the Laws Clause of the 14th

Amendment as further granted under Article 2, Section

18 of the Arkansas Constitution. The petitioner sought to

have the court-appointed personnel disqualified to partic-

ipate in the prosecution and assisting the prosecution or

in making recommendations to the same court which

appointed them and at whose pleasure they served and

which approved their salaries. The issue of the appear-

ance of an absence of fundamental fairness was an issue

when the employees of the juvenile office were appointed

and serving at the pleasure of the trial court and making

recommendations to the same judge who employed them

while sitting as the “trier of fact” prior to an adjudication

of guilt. The petitioner raised the questions of over-

breadth of the Juvenile Code as being void for vagueness.

The petitioner also raised the issue of whether or not the

l-The court corrected its own error by noting that no speeding or other violation

citation had been given. (TR. 87).

PETITION FOR CERTIORARI 7

enforcement of a juvenile court order could or should be

stayed pending appeal which was denied by letter ruling,

Appendix A-14, and affirmed by the Supreme Court of

Arkansas, Appendix A-1. The question of unequal treat-

ment of juveniles treated more harshly under the Juvenile

Code than an adult for the self same violation of an act

was raised as an unconstitutional dichotomy and dispa-

rate treatment under the Equal Protection of the Laws

Clause.

Petitioner maintains that the definition of “juve-

nile delinquent” under Arkansas law is so overbroad as to

subject every juvenile in the state of Arkansas to being

declared a “juvenile delinquent” based on the personal,

subjective dictates and predilections of the individual

officer involved and does not give any clear definitive

standard of when a juvenile will be declared a “juvenile

delinquent” and is therefore void for both vagueness and

being overbroad in violation of the 14th Amendment.

8 PETITION FOR CERTIORARI

eaneeendeiatnetitenieeatiaeaaeameaa ane

REASONS FOR GRANTING THE WRIT

1. The Arkansas Supreme Court erred in failing to en-

join the use of the Juvenile Code as failing in equal

protection of the laws of the 14th Amendment to the

U. S. Constitution and also failed to accord to persons

under the age of 18 years privileges or immunities

which upon the same terms shall belong to all citizens

under Articie 2, Section 18 of the Arkansas Constitu-

tion, which created a further liberty interest, jurisdic-

tionally treating citizens 18 to 21 differently than those

16 to 18 for the same offense.

Petitioner would respectfully state to the Court

that under the below-cited authorities, Arkansas treats its

juveniles as to misdemeanors and unclassified violations

particularly more harshly than an adult would be treated

for the exact same conduct and creates an illegal and

unconstitutional class prohibited under both the 14th

Amendment of the federal Constitution and denies the

juvenile the “liberty interest” created under Article 2,

Section 18 of the Arkansas Constitution.

Under A.C.A. §5-4-201, the maximum fine which

may be imposed for a Class C misdemeanor is $100 if the

conviction is of a Class C misdemeanor by an adult.

Under A.C.A. §5-4-401, the maximum sentence for

an adult committing an unclassified misdemeanor shall be

in accordance with the specific limitation of the statute

defining the unclassified misdemeanor. (See, A.C.A. §5-4-

401[b}4.) The maximum sentences for a person over age

18 are: For a Class C misdemeanor, incarceration not

exceeding 30 days, for a Class B misdemeanor, incarcera-

tion not exceeding 90 days and for a Class A misdemean-

or incarceration not exceeding one year. It is worthy to

PETITION FOR CERTIORARI 9

note that generally a period of probation or imposition of

sentence may not exceed the maximum period of incar-

ceration provided under the statute but which could up to

two years in the case of a juvenile, which juvenile could

be placed in a detention facility for two years or until the

age of 18 years for any violation of any statute, regardless

of it severity. (See, A.C.A. §9-27-330[3].) The juvenile

should not be required to shed his constitutional protec-

tions at the courthouse doors by reason of age and condi-

tion, but under the Arkansas Juvenile Code, it certainly

appears that, under the guise of rehabilitation of the ju-

venile, a lot of punishment is being inflicted.

Petitioner respectfully submits that under A.C.A.

§9-27-330, a “delinquent juvenile” for an unclassified

misdemeanor could be fined not more than $500, no mat-

ter what the statutorily prescribed maximum penalty for

an adult or a person over age 18 and, in addition, the ju-

venile may be sentenced to public service not to exceed

160 hours, for which there is no equivalent penalty for

any adult violating the exact same law. The juvenile, in

addition, could be placed on probation and/or removed

from the home and/or sent to the training school for any

amount of time until his 18th birthday under the provi-

sions of §9-27-330, all of which exceed the maximum pun-

ishments for the same conduct if convicted as an adult of

the same Class C misdemeanor or unclassified misde-

meanor. An adult would simply forfeit the bond, pay the

fine, take the lesser punishment and go his way. Unfortu-

nately, the juvenile has simply started day one in the maze

of an unconstitutional system. Justice Souter, writing for

the majority of the United States Supreme Court, ad-

dressed this issue in United States, Petitioner v. R. L. C.,

112 S.Ct. 1329 (1992), in affirming the Eighth Circuit.

The plaintiff respectfully submits to this Court that

10 PETITION FOR CERTIORARI

as to the minor in possession of (unopened) beer, same

has nothing whatsoever to do with any driving violation.

It has nothing whatsoever to do with a driver’s license. It

acts as nothing more than a whipping boy or a punish-

ment where any offense, no matter how poorly defined,

creates a delinquency within the meaning of the Arkansas

Code. There is no rational basis, no distinction and clear-

ly no reason to separate persons 18 to 21 and give them a

greater or different classification than those persons un-

der the age of 18 for a violation of the exact same act.

A.C.A. §3-3-201(a)1 reads:

It shall be unlawful for any person under

the age of twenty-one (21) years to pur-

chase or have in possession any intoxicating

liquor, wine, or beer.

Yet, the penalties are different.

In the case of United States, Petitioner v. R. L. C.,

supra, Justice Souter on March 24, 1992 writing for the

Court stated, “The provisions of the Juvenile Delinquen-

cy Act require the length of official detention in certain

circumstances to be limited to the maximum term of im-

prisonment that would be authorized if the juvenile had

been tried and convicted as an adult.” By dicta, clearly,

the Court intends that a juvenile not be treated more

harshly than an adult for the same offense. To reach this

issue for clarification, certiorari needs to be granted.

The Court very clearly held, “No ambiguity about

the statute’s intended scope survives the foregoing analy-

Sis, but if any did, the construction yielding the shorter

sentence would be chosen under ‘the rule of lenity.’ ” The

Court also ruled that the Eighth U. S. Circuit Court of

Appeals read this language to bar a juvenile term longer

PETITION FOR CERTIORARI 11

than the sentence a court could have imposed on 4 simi-

larly situated adult after applying the United States sen-

tencing guidelines. In short, this decision stands for the

proposition that if you can’t do it to an adult, it can’t be

done to a child, and no greater sentence can be given to a

child or a juvenile than would be allowed under the same

criminal code if applied to an adult. 60 Law Week 4235.

Again, by dicta, this would apply to all phases of sentenc-

ing, incarceration, fines, probation and/or public service

or displacement from the home. The Supreme Court has

capped the penalty to be paid by juveniles as such and

voids A.C.A. §9-27-330 to the extent that any sentence

which could or would exceed an adult sentence for the

same offense is not constitutionally permissible.

The Arkansas court attempted to avoid this result

by holding that the juvenile was not sentenced under the

juvenile code. This would appear to defy logic and the

ruling of letters opinion Appendix A-14 and A-17. The

court attempted to circumvent this effect by raising the

question of the juvenile standing. Standing is not an issue

in that the juvenile was (1) brought before the juvenile

court, (2) found delinquent under the Arkansas code’s

overbroad definition, (3) obtained the juvenile officer

recommendations, (4) sentenced by the juvenile court

under A.C.A. §9-27-330 and (5) “paid” assessed cost un-

der the Juvenile Code at $35. In addition, the juvenile, for

a nonpossession, minor in possession of beer in the back

end of a truck with four occupants, was the only juvenile

charged, the only juvenile convicted or labeled under the

Arkansas juvenile code as a “juvenile delinquent.” The

other juveniles were not identified, charged or questioned

and did not appear. This appears to be selective prosecu-

tion.

The Arkansas court erred in its determination

12 PETITION FOR CERTIORARI

(inconsistently within its own order set forth at page 2)

which reads, “the case was processed in the juvenile divi-

sion, the chancellor found that appellant was a ‘delin-

quent juvenile and then the court ruled that the petitioner

was not sentenced under the Juvenile Code. The court

simply determined that the circuit court found him guilty

of a charge when the only charge was “‘juvenile delin-

quency” for violating a statute of Arkansas. This petition-

er was determined and labeled for disposition as a juve-

nile delinquent and under a vague statute we can put a

library sign on a mess hall, but it’s still the kitchen. We

can call it a disposition, but it’s still a conviction and sen-

tence.

2. The Arkansas Supreme Court erred in failing to treat

the overbroad definition of ‘‘juvenile delinquent”’ as

void for vagueness by failing to find A.C.A. §9-27-

303(11) void for vagueness and being overbroad,

which definition creates as a delinquent every child in

Arkansas at some time before his 18th birthday as a

juvenile.

Under the definition of juvenile delinquent in

A.C.A. §9-27-303, the court may commit a juvenile for

conduct which may vary from court to court, and a juve-

nile may be committed to a period of detention in a juve-

nile facility for very minor offenses and without warning

and which propensity to violate together with the oppor-

tunity to violate requires “strict scrutiny” in that a “liberty

interest is being taken.” That to declare every law, ordi-

nance and statute on the books of the state of Arkansas,

every city or county ordinance of every city and county

within the state of Arkansas and every regulation within

the state of Arkansas as an offense inclusive in the defini-

tion of a delinquent juvenile is overbseadand is vague to

such extent that same is void for vagueness under the 14th

PETITION FOR CERTIORARI 13

Amendment to the Constitution of the United States. It

creates the appearance that the only standard in the ap-

plication of such an overbroad definition is that there are

no standards. The treatment is purely and totally subject

to the suggestive dictates only of the officer, intake offi-

cer, probation officer, officer of the law, sheriff or state

police on the scene. The statute fails to give a definitive

and clear warning as to what constitutes delinquency with-

in the fundamental fairness doctrine and within the doc-

trine of due process and fair play. The statute fails to

identify a standard of conduct for which activities are pre-

scribed and further fails to provide a standard for police

enforcement and for ascertainment of guilt. Under the

Equal Protection Clause, if a classification “impinges

upon a fundamental right explicitly or implicitly protected

by the Constitution, .. . strict judicial scrutiny”’ is re-

quired, regardless of whether the infringement was inten-

tional. San Antonio Independent School Dist. v. Rodriguez,

411 US. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Likewise,

the Court has ruled that a state may not issue commands

to its citizens under criminal sanctions in language so

vague and undefined as to afford no fair warning of what

conduct might transgress them. Raley v. Ohio, 360 U.S.

423, 3 L.Ed.2d 1344, 79 S.Ct. 1257 (1959).

The Arkansas court erred in applying the standard

for delinquency from the Arkansas Code definition of

“juvenile delinquent” to a specific conduct statute which

was alleged inclusive in the definition. Arkansas includes

in one breath and one sentence the entire Criminal Code

of Arkansas and every violation on the law books of the

state of Arkansas as against a juvenile.

In Smith v. Goguen, 415 U.S. 566, 39 L.Ed.2d 605,

94 S.Ct. 1242 (1974), the Supreme Court clearly estab-

lished that selective law enforcement may not be tolerat-

14 PETITION FOR CERTIORARI

ed and ruled that the 14th Amendment’s due process doc-

trine concerning vagueness of statutes incorporates no-

tions of fair notice or warning and requires legislatures to

set reasonably clear guidelines for law enforcement offi-

cials and triers of fact in order to prevent arbitrary and

discriminatory enforcement. There is denial of due proc-

ess where inherently vague statutory language permits

selective law enforcement. In 1979, the Court went fur-

ther in holding that “as a matter of due process, criminal

statute which fails to give person of ordinary intelligence

fair notice that his contemplated conduct is forbidden by

statute, or which is so indefinite that it encourages arbi-

trary and erratic arrests and convictions is void for vague-

ness, such being especially true where uncertainty induced

by statute threatens to inhibit exercise of constitutionally

protected rights.” Colautti v. Franklin, 439 U.S. 379, 58

L.Ed.2d 596, 99 S.Ct. 675 (1979).

The Arkansas court erred in attempting to place

the duty on petitioner to submit empirical data to sustain

the argument of the juvenile that under the overbroad

definition of juvenile delinquent every child in Arkansas

would stand to be a juvenile delinquent before his 18th

birthday. In short, on a full application of the Juvenile

Code, 100 percent of the children of a state would be ju-

venile delinquents before majority. Only selective en-

forcement can avoid that result under the definition of

delinquent. In short, the petitioner becomes charged with

the duty to prove the impossible, a negative.

To meet due process requirements, language of

statute must give adequate warning of conduct proscribed

and must also provide standards to enable judges and

juries to fairly administer law. State v. Cannon, 383 So.2d

389, cert. denied 454 U.S. 1052, 70 L.Ed.2d 587, 102 S.Ct.

596 (1980).

PETITION FOR CERTIORARI 15

Fundamental fairness requires that a person can-

not be sent to jail for a crime he could not with reasona-

ble certainty know he was committing; reasonable cer-

tainty in that respect is all the more essential when

vagueness might induce individuals to forgo their right of

speech, press and association for fear of violating an un-

clear law. Scull v. Virginia, 359 U.S. 344, 3 L.Ed.2d 865, 79

S.Ct. 838 (1959).

Although most vagueness challenges are directed

at statutes which prohibit particular conduct without de-

fining that conduct, a defendant’s constitutionally pro-

tected “liberty interest” created by juvenile disposition

standards is also subject to void for vagueness test. State

v. Rhodes, 92 Wash.2d 755, 600 P.2d 1264 (1979).

There is no drug offense in this case, but the pen-

alty for an adult committing an unrelated drug offense is

loss of driving privileges for six months, but for a person

under 18, the penalty is loss of driver’s license for the

longer of one year or until the 18th birthday. An unli-

censed minor can in theory lose a right to a driver’s li-

cense while walking in no way associated with a motor

vehicle. This dichotomy is unconstitutional. The equal

protection clause does not require that all persons be

dealt with identically, it only requires that classifications

rest on real and not on feigned differences, that the dis-

tinctions have some relevance to the purpose for which

the classification is made and that the different treatment

is not so disparate as to be arbitrary. United States v. Eck-

er, 543 F.2d 178; Walters v. City of St. Louis, 347 U.S. 231;

Skinner v. Oklahoma, 316 U.S. 535.

Where fundamental rights and liberties are assert-

ed under equal protection clause, classifications which

16 PETITION FOR CERTIORARI

might invade or restrain them must be closely scrutinized

and carefully confined. Harper v. Virginia State Bd. of Elec-

tions, 383 U.S. 663, 16 L.Ed.2d 169, 86 S.Ct. 1079 (1966).

In determining whether a particular state law im-

pinges on fundamental right or interest so as to subject to

strict judicial scrutiny under the equal protection clause,

the Supreme Court does not pick out particular human

activities, characterize them as “fundamental” and give

them added protection but, to the contrary, the Court

simply recognizes, as it must, established constitutional

right and gives to that right ao less protection than the

Constitution itself demands. San Antonio Independent

School Dist. v. Rodriguez, supra.

In addition, petitioner respectfully submits that the

tie goes to the runner and, in this case, one has an act of

the Arkansas legislature in 1991 which excludes the ques-

tion of age and excludes the question of minor in posses-

sion as to the privilege of license and driving. It seems

that the purpose of the Juvenile Code was to provide for

rehabilitation of the juvenile, but it quite obviously ap-

pears that the actual treatment is punitive. To this end,

the Supreme Court in addressing a Virginia disorderly

conduct statute for vagueness denied certiorari in a ruling

that held:

State disorderly conduct statute is unconsti-

tutionally vague and overbroad in violation

of First and 14th Amendments where stat-

ute (1) does not inform defendant as to

what conduct is proscribed; (2) allows po-

licemen, prosecutors and courts to impose

their personal predilections as to proper

behavior; and (3) could inhibit exercise of

First Amendment rights because it has been

PETITION FOR CERTIORARI 17

construed to embrace speech, unaccompa-

nied by acts, which need not do more than

outrage public decency.

Squire v. Pace, 516 F.2d 240, cert. denied 423 U.S. 840, 46

L.Ed.2d 58, 96 S.Ct. 68 (4th Cir., 1975).

In McGalliard v. State, 813 S.W.2d 768, the Arkan-

sas court stated:

A law is void for vagueness if it lacks ascer-

tainable standards of guilt such that persons

of common intelligence must necessarily

guess at its meaning and differ as to its ap-

plication.

It seems clear that under the Arkansas preferred

ruling that no two people in Arkansas can determine what

application will be made as to a particular juvenile in a

particular county before a particular judge as to a disposi-

tion. Obviously, no two will be treated alike, and there-

fore all must guess at the meaning and certainly differ as

to the application of the Arkansas Juvenile Code.

The Supreme Court has further ruled:

Statutes defining crimes run afoul of due

process clause if they fail to give adequate

guidance to those who would be law abid-

ing, to advise defendants of nature of of-

fense with which they are charged, or to

guide courts in trying those who are ac-

cused.

Musser v. Utah, 333 U.S. 95, 92 L.Ed.2d 562, 68 S.Ct. 397

(1948)

To meet due process requirements, lan-

guage of statute must give adequate warn-

18 PETITION FOR CERTIORARI

ing of conduct proscribed and must also

provide standards to enable judges and

juries to fairly administer law.

State v. Cannon, 383 So.2d 389, cert. denied 454 U.S. 1052,

70 L.Ed.2d 587, 102 S.Ct. 596 (1980)

Fundamental fairness requires that person

cannot be sent to jail for crime he could not

with reasonable certainty know he was

committing; reasonable certainty in that

respect is all more essential when vague-

ness might induce individuals to forgo their

right of speech, press and association for

fear of violating unclear law.

Scull v. Virginia, 359 U.S. 344, 3 L.Ed.2d 865, 79 S.Ct. 838

(1959)

Under equal protection clause, state which

adopts suspect classification bears heavy

burden of justifying classification by show-

ing that its purpose or interest is both con-

stitutionally permissible and substantial and

that its use of classification is necessary to

accomplishment of its purpose or safe-

guarding of its interest.

In Re Griffiths, 413 U.S. 717, 37 L.Ed.2d 910, 93 S.Ct. 2851

(1973)

The petitioner has previously filed for a writ of

prohibition to the Arkansas Supreme Court, which writ

was denied, from the ruling of the lower trial court, peti-

tioner having filed a direct challenge to the constitutional-

ity of A.C.A. §9-27-301, known as the Juvenile Code, al-

leging that the Arkansas Juvenile Code is violative of the

equal protection of the laws clause of the 14th Amend-

ment to the United States Constitution and also that the

same was violative of a “liberty interest” granted and pro-

PETITION FOR CERTIORARI 19

tected as a fundamental right of Article 2, Section 18 of

the Constitution of the State of Arkansas and also asked

that A.C.A. §9-27-301 be declared unconstitutional as

being void for vagueness. The petitioner prayed that the

court enjoin the use of the juvenile code both temporarily

and permanently, raising the dichotomy of treatment of

children 17 years of age and those 18, 19 and 20 years of

age, same being treated differently under the selfsame

statute of Arkansas. This was brought about by reason of

a charge brought in the juvenile court charging the appel-

lant with minor in possession of alcohol (not drinking, not

DWI, not drug related) when said alcohol was in uno-

. : pened containers in the open bed of a pickup truck with

the above minor driving and with three other persons

whose ages and identities were not revealed, who were

not charged or interviewed by the prosecution and who

did not testify.

Appellant respectfully submits that it is very, very

clear that the code provides that a person under the age

of 21 who is in possession of alcohol without regard of

whether it’s in a vehicle or otherwise is a minor in posses-

sion and subject to penalty. However, the code provides

that a child 17 years of age will be treated by a loss of a

driver’s license, whereas a person 18 years of age will not

be so treated. A child 17 years 364 days old would lose his

driver’s license for one year under the statute, which pro-

vides for the loss of license for the greater of a year or

until his 18th birthday, while a person one day older

would not lose his license for as much as a day in spite of

the exact same charge. This dichotomy of law is unconsti-

tutional and void on its face. It is a denial of the equal

protection of the laws. It is a failure to treat persons

equally under the laws. In addition, the overbroad, over-

reaching definition of a juvenile delinquent within the

state of Arkansas includes every fact, thing and circum-

20 PETITION FOR CERTIORARI

stance under the codes of the state, including throwing

paper on the sidewalk, vocalizing an expletive or curse

word, getting into a harmless shoving encounter at school,

with or without fault, or taking a piece of bubble gum

—that child is subject to being declared a juvenile delin-

quent if it occurs at any time before his 18th birthday.

There is no standard other than every child who does any-

thing, no matter how harmless, and without regard to its

severity, with no allowance for a defense in that the only

issue for adjudication is not the offense which occurred

but whether the child is a juvenile, and the adjudication is

one of “delinquency,” not minor in possession or littering

or disorderly conduct or misbehaving. The standard of

guilt is one of strict liability (if it were a civil matter) and

negates the presumption of innocence until proven guilty

beyond a reasonable doubt.

The Arkansas court erred in failing to treat the

overbroad definition of juvenile delinquent as void for

vagueness by failing to find A.C.A. §9-27-303(11) void for

vagueness being overbroad, which statute creates as a de-

linquent every child in Arkansas at some time before his

18th birthday and applied an autonomous criminal statute

in substitution for the complained-of statute.

3. The Arkansas Supreme Court erred in allowing the

immediate imposition of sentence or disposition of the

trial court without regard to the petititioner’s right to

appeal and by letter ruling disallows any stay against

immposition of sentence ending appeal as to juveniles

in violation of the Due Process Clause of the 14th

Amendment.

Arkansas Code Annotated §5-65-116 provides:

(a) Whenever a person who is less than

PETITION FOR CERTIORARI 21

eighteen (18) years of age pleads guilty or

nolo contendere to, or is found guilty of,

driving while intoxicated under §§5-65-101

et seq., or of any criminal offense involving

the illegal possession or use of alcohol or

controlled substances, or is found by a ju-

venile court to have committed such an of-

fense, the court shall prepare and transmit

to the Department of Finance and Admin-

istration within twenty-four (24) hours after

the plea or finding an order of denial of

driving privileges for the minor. .. .

The above being further identified as Act No. 93

of 1989 and A.C.A. §27-16-915 below and is also known

as Act 1109 of Acts of the General Assembly of 1991,

which reads as follows:

(a)(1) Whenever a person pleads guilty,

nolo contendere, or is found guilty of any

criminal offense involving the illegal pos-

session or use of controlled substances

under §§5-64-101 et seq., the court shall

prepare and transmit to the Department of

Finance and Administration, within twenty-

four (24) hours after the plea or finding, an

order to suspend the driving privileges of

the person for six (6) months.

A.C.A. §27-16-914 reads:

Upon receipt of an order of denial of driv-

ing privileges under §5-65-116 or §5-64-710,

the Department of Finance and Adminis-

tration shall suspend the motor vehicle

operator’s license of the minor for twelve

(12) months or until the minor reaches

eighteen (18) years of age, whichever is

22 PETITION FOR CERTIORARI

longer.

It is noted that A.C.A. §27-16-915, the 1991 act,

has no reference to possession or use of alcohol as a rea-

son for loss of license to drive and a total absence of age

differential. Petitioner respectfully submits that by impli-

cation §27-16-915 or Act 1109 of 1991 has created an ille-

gal, wrongful and unconstitutional dichotomy in providing

classes of citizens and created a greater penalty for per-

sons under the age of 18 than for persons 18 or older and

also included for persons under 18 an additional element

of culpable criminal conduct without regard to the fact

that persons 18 to 21 years of age in possession of alcohol

are committing the same violation within this state, the

legal age for drinking in Arkansas being 21. The due

process clause applies to any deprivation of “liberty” or

‘‘property” interests that are more than de minimis.

U.S.C.A. Const. Amends. 5, 14. Gorman v. University of

Rhode Island, 646 F.Supp. 799, 35 Ed. Law Rep. 1073.

The petitioner respectfully submits that this is a

flagrant denial of the equal protection of the laws clause

of the 14th Amendment and under Article 2, Section 18

of the Arkansas Constitution which expanded the “liberty

interest” as a fundamental right creates a class of citizens

especially as to those of ages 18 to 21 which get a greater

privilege by age than the minors under age 18 for a viola-

tion of the same statute, A.C.A. §3-3-203(a)(1).

Petitioner respectfully states that the Arkansas

court is acting beyond its jurisdiction in denying the peti-

tioner a stay pending an opportunity to appeal. Further,

the court exceeded its jurisdiction in proceeding under

the code definition of a juvenile delinquent, same being

totally defective as being unconstitutionally vague by be-

ing overbroad, which act in and of itself with a simple

PETITION FOR CERTIORARI 23

reading absolutely creates a standard whereby every child

within the state of Arkansas will be deemed or can be

deemed a juvenile delinquent before the age of 18 years

unless that child should happen to live an absolutely per-

fect life.

Petitioner respectfully submits that the Arkansas

court rulings revoke the driver’s license of a 171/2-year-old

minor and to have that revocation in place and running

during any period of appellate review on the merits or

otherwise. Even if the petitioner wins an appeal, the pen-

alty gets paid; this is wrong. Petitioner respectfully sub-

mits to this honorable Court that petitioner has no other

adequate remedy available. In this case, there is no sug-

gestion of a drinking violation of any kind, and the record

will reflect that the officer so testified, which fact is un-

disputed by reason of the unopened containers in the

back end of a truck occupied by four persons with the

only charged or identified person therein being this peti-

tioner.

The Arkansas court ruled inconsistently in holding,

“We do not reach the first subpart of this argument be-

cause an adult cannot be convicted of the offense of pos-

session of intoxicating liquor by a minor.” Yet an adult

under Arkansas and federal law is a person 18 years of

age. Yet the criminal statute for minor in possession pro-

vides a penalty for persons under the age of 21. The court

just ignores the force of the law as to those people be-

tween 18 and 21 and who would be violating the same act

but with no similar penalty.

Petitioner submits to this honorable Court that

while the Court has occasionally ruled that juvenile mat-

ters are rehabilitative in nature and not punitive, nonethe-

less, the question of delinquency creates a standard of

24 PETITION FOR CERTIORARI

conduct whereby all the safeguards of due process and

equal protection of the laws clause must be in place. The

Court has determined that disparate and arbitrary treat-

ment is outside the scope of due process. Petitioner re-

spectfully submits to this honorable Court that a casual

reading of the statute of the disposition alternatives as to

a juvenile under A.C.A. §9-27-330 provides for a fine of

up to $500, however a Class C misdemeanor in the crimi-

nal courts under the criminal code limits a fine for said

conduct as not exceeding $100. Therefore, a juvenile may

be fined more as a juvenile than an adult for exactly the

same thing. This is one of the most clear and obvious dis-

tinctions to be raised under the dichotomy of laws or sub-

layer of law prohibited by Article 2, Section 18 of the

Arkansas Constitution which granted a further liberty in-

terest to a minor in addition to the federal liberty interest

and has enlarged a fundamental right in Arkansas.

Petitioner respectfully submits to this honorable

Court that a petition was filed challenging the right of the

juvenile officer and/or the intake officer to sit at the

counsel table with the prosecution when they and each of

them had been appointed to their jobs by the juvenile

court judge presiding under the provisions of A.C.A. §9-

27-308 and worked at the direction and discretion of the

court. These same juvenile officers then made an “ex

parte recommendation” to the court by way of a docket

sheet recommending with the recommended disposition

of a loss of a driver’s license for one year and a $35 fine

and placed before the court prior to the trial and/or a de-

termination of delinquency while the court was sitting in

its capacity as non-jury trier of fact and not as the court.

This conduct gives the clear impression that the recom-

mendation was prior to a determination of guilt and if a

jury matter would be grounds for a mistrial if submitted

to the trier of fact. The docket sheet certainly gives an

PETITION FOR CERTIORARI 25

appearance of less than impartiality of the court. Peti-

tioner suggests that the court should have no communica-

tion with either the juvenile officers or the prosecution by

docket sheet, recommendations or direct contact at any

time prior to the actual trial in any case in which the court

will sit as the trier of fact, or in the capacity of the jury.

That the juvenile code further provides that the

juvenile officer and the intake officer may not testify in

the proceedings (A.C.A. §9-27-321), yet the same officers

(appointees of the trial court) sat at the table with the

prosecution during the course of the trial and gave the

appearance of assisting the prosecution while they were

serving at the pleasure of the court and subject to remov-

al by the court. The same parties who cannot testify fill

out the charge sheets, cause summons to issue and act in

every way as an assistant to the law enforcement agency

or the prosecution, in spite of the prohibition of testimo-

ny being given. It certainly appears that this type activity

is beyond the jurisdiction of the court and the court in-

vades the province of the legislature by letting the officers

so conduct themselves and also undermines the court by

having the court’s appointees sit with and assist the

prosecution.

This certainly gives the appearance and feeling by

the petitioner of intimidation when the court enters into

the adversarial system of justice and as a matter of law

has tainted all the proceedings herein.

That the court injected itself into the proceedings

at the start of the proceedings by obtaining “evidence”

from the defendant in violation of the Fifth Amendment

to the U. S. Constitution by completing the element of

age as to a status misdemeanor by the following questions

to the attorney and defendant pro se.

26 PETITION FOR CERTIORARI

THE Court: How old is your son?

Mr. Manatr: Your Honor, he just turned 17.

THE Court: 17? What is the date of his birth?

Mr. Manatrt: September 3, 1974.

THE Court: Okay, my math wasn’t that quick.

These things, taken together with the ex parte

communications by the intake officer, all while the court

sits as a trier of fact, creates an atmosphere where the

court does not give the appearance of impartial trier of

fact but rather has taken the role of an advocate for the

prosecution to the detriment of the juvenile. And in the

capacity of an advocate, the court sustained after eliciting

the testimony of possession of beer the “link” set forth as

the standard of Kastl v. State, 796 S.W.2d 848. This is a

denial of due process and overreaching by the trial court

sitting as the trier of fact and tends to give the appearance

of undermining and discrediting impartiality of the court.

The prosecution never in the record established the age

of the petitioner. The prosecution never elicited a direct

Statement as to anything the petitioner was supposed to

have said. These two items only come about by the court

overreaching.

5. The Arkansas court erred in finding a link between

the possession of alcohol and the driver of a vehicle

and in allowing statements by the petitioner without

benefit of Miranda warnings by an officer stopping a

juvenile when the questions and answers of the target-

ed juvenile result in arrest and completing a “link.”

The petitioner respectfully states that the Arkan-

sas trial court wrongfully denied all of the questions of

the constitutionality and the request for an injunction was

denied and proceeded to trial after having made a further

PETITION FOR CERTIORARI 27

judicial determination that Miranda warnings were not

given the petitioner and were unnecessary and ordered an

immediate taking of the petitioner’s driving license for a

period of one year at the disposition hearing of the

above-named juvenile. The trial court had stated in its let-

ter opinion of December 23, 1991 “that there will be no

stay on this disposition to allow an appeal,” and the court

further stated that “only a writ of prohibition would stop

the trial court from proceeding in this fashion.” The Su-

preme Court erred in summarily dismissing this point. A

clear reading of Act 1109 of 1991 would be that it has

created an unconstitutional dichotomy of law in treating

kids 17 years of age different than those 18 years of age as

to minor in possession of alcohol on non-driving viola-

tions under the statute which operative words are “under

the age of 21 years” as opposed to age 18 or 17 or 19

years.

“No, sir, it was not in the reach of any of the peo-

ple from where they were sitting—it was in the back of an

open-end pickup.”

In addition, the standards as set forth in Kastl v.

State, 796 S.W.2d 848, have been ignored and stretched by

a “link” of self incrimination by a minor without an attor-

ney and without the benefit of Miranda. That the court

took the role of an advocate over objection made at first

occurrence, in passing, was any one of the four persons 21

years of age? Three were not in court, and the record is

silent on identity, age or location of the other occupants.

Must the petitioner prove anything? The court must be

impartial. With no speeding citation given, the question

of a random stop is raised when the officer never testified

except he was a little fast. Is this 57 in 55—no speed was

given. A citizen has a right ot be left alone and not to be

arrested without probable cause. Robinson v. Beaumont,

28 PETITION FOR CERTIORARI

a

291 Ark. 477, 725 S.W.2d 839 (1987), under Article 2, Sec-

tion 8 of the Arkansas Constitution and the 14th

Amendment of the federal Constitution. The juvenile cer-

tianly should have equal or greater rights than an adult.

There is no standard requiring understanding by a juve-

nile. In short, the system survives by reason of the juve-

nile not being aware of his right and having no require-

ment that a juvenile have a clear understanding. As chil-

dren, they feel compelled to answer an officer of the law

as they are raised, not realizing that the officer will then

arrest or charge them. The procedural safeguards of the

14th Amendment (due process) require more.

CONCLUSION

Wherefore, the petitioner respectfully prays that

this Court review the statutes and the constitutional pro-

visions herein set forth, this brief, the Arkansas court rul-

ing and treatment of juveniles and rulings of the trial

court and determine for itself as to the constitutionality of

the Arkansas Juvenile Code. That the Court should void

the code for being overbroad and vague and an unconsti-

tutional dichotomy of law created, and as to whether or

not on its face the definition of “juvenile delinquent” is

overbroad and therefore unconstitutional. Further, the

Court should determine that a failure to afford to the

juvenile the equal protection of the Equal Protection of

the Laws Clause of the 14th Amendment by a failure to

Mirandize a juvenile is defective as to any statement

made by the child. Petitioner respectfully submits that

there is no adequate remedy at law, that the lower-court

took the driver’s license (whether a privilege or not) in a

mobile society in 1991 same is a necessity and the privi-

lege or necessity is being taken outside the scope of the

equal protection of the laws and/or due process clause

and without a right to stay pending appeal.

PETITION FOR CERTIORARI 29

Petitioner respectfully asks that this Court grant

certiorari and that the Court declare said statutes void by

reason of the unequal treatment of the juvenile offender

and adult offenders as defined by the General Assembly

for the same conduct; enjoining the use of the Juvenile

Code A.C.A. §9-27-303(11) and §§9-27-301 et seq. and the

definition of delinquent juvenile and/or disposition alter-

native and further enjoining the state from the enforce-

ment of the taking of a license to drive based upon an

adjudication of delinquency under the related statutes,

A.C.A. §§5-65-116, 27-16-914 and 3-3-203 et seg. and for

all other relief to which petitioner may be entitled and

that the Court should further direct that A.C.A. §9-27-321

be construed to absolutely limit the participation of juve-

nile officers when acting as employees and assistants to

the court sitting as a jury, reverse as error any conduct of

the trial at any time the court sits as a trier of fact based

upon the ex parte communication and court involvement

in the case.

In conclusion, the Juvenile Code is unconstitu-

tional, overbroad and violation of the 14th Amendment.

Finally, certiorari should be granted for the ex

parte recommendation to the trier of fact, the trier of fact

asking questions and ruling on their own admissibility and

the trier of fact taking the role of an advocate beyond the

role of the impartial, circuit, chancery, juvenile, probate

court. To this, we must add, and “non-jury trier of fact.”

With this much power and control in one place, then the

court must be more detached than ever to avoid both

overreaching and appearing less than impartial and taking

on the role as an advocate and prosecutor. It goes with-

out saying that the autonomy and integrity of the court

should never be questioned, and we who would advocate

30 PETITION FOR CERTIORARI

must preserve against the appearance of favoritism, over-

reaching and unfairness.

Accordingly, and for all the right reasons, the Ju-

venile Code and the system must fail and be recreated

and corrected by the Arkansas legislature, which has both

the authority and responsibility to submit only constitu-

tional acts to the people clear enough to comprehend

easily, fair enough to be uniformly enforced and within

the confines of the constitutions, both state and federal,

to ensure justice fairly, equally and with due regard for

fundamental rights and preservation of all liberty interest.

Respectfully submitted,

Scott MANATT

Bar No. 70044

Post Office Box 473

Corning, Arkansas 72422

(501) 857-3163

Attorney for Petitioner

PETITION FOR CERTIORARI 31

APPENDIX

OPINION OF SUPREME COURT OF ARKANSAS

SUPREME COURT OF ARKANSAS

No. 92-566

Scott Manatt Jr.,

Appellant,

V.

State of Arkansas,

Appellee

Opinion Delivered November 9, 1992

Appeal from the Clay County Chancery Court

No. J-91-28

Hon. Ralph Wilson, Judge

Affirmed

Rosert H. Dub ey, Associate Justice:

Shortly after midnight on September 1, 1991, State

Trooper Steve Shults was driving his police car on High-

way 67 near the Missouri state line when he saw a pickup

truck exceeding the speed limit while traveling south to-

ward Corning. The trooper followed the truck, as it con-

tinued to exceed the highway speed limit, into a 45 m.p.h.

zone in Corning, where he saw it veer across a yellow

line. The trooper thought the driver of the truck might be

intoxicated and stopped the truck at 12:26 a.m. The

trooper got out of his car and, as he was approaching the

pickup, he glanced into the bed of the truck and saw a

case of beer in cans, six bottles of beer, and four wine

coolers. The trooper asked the driver for his license,

looked at it, and saw that the driver, appellant Scott

Manatt Jr., was only sixteen years old. There were three

other teenagers in the truck. The trooper asked to whom

the beer and wine belonged, and appellant responded

APPENDIX A-1

that it was his. The trooper satisfied himself that appel-

lant had not been drinking and shortly afterwards issued a

citation to appellant as being a minor in possession of

intoxicants, and let him go. The case was processed in the

juvenile division of chancery court. The chancellor found

that appellant was a delinquent juvenile because he had

violated the statute prohibiting minors from possessing

intoxicants. He entered an order denying the appellant’s

driving privileges for one year, but allowed him to drive

to and from work and school. Court costs amounted to

$35.00. Appellant makes five assignments of error, and

those assignments, in turn, contain many subpoints. Some of

the subpoints are not easily followed, but we are satified

that there is no merit in any of them and, accordingly, af-

firm.

Appellant’s first point is:

Under Rule 29(1)(A), it is alleged that

the lower court erred in failing to enjoin

the use of the Juvenile Code as failing in

equal protection of the laws of the 14th

Amendment to the U. S. Constitution and

also failed to accord to persons under

the age of 18 years privileges or immuni-

ties which upon the same terms shall

belong to all citizens under Article 2, Sec-

tion 18 of the Arkansas Constitution, ju-

risdictionally treating citizens 18 to 21 dif-

ferently than those 16 to 18 for the same

offense.

A-2 APPENDIX

In this point appellant contends that the juvenile code is

unconstitutional and that we should enjoin its use be-

cause, when a juvenile violates a criminal statute, he is

subjected to more severe penalties than would be an

adult for violating the same statute. We do not reach the

merits of the argument because appellant was not sen-

tenced under the juvenile code. Appellant was given a

citation for being a minor in possession of intoxicating

liquor. See Ark. Code Ann. §3-3-203 (1987). The chancel-

lor found that he violated the statute and consequently

found him to be a delinquent juvenile, see Ark. Code

Ann. §9-27-303(11) (Repl. 1991). Without objection, the

chancellor applied Ark. Code Ann. §5-64-710 (1987), a

part of the criminal code, and suspended his driving privi-

leges. The criminal code provides that the trial court shall

deny driving privileges when a person who is less than

eighteen years old is found guilty of a criminal offense

involving the illegal possession of alcohol. This penalty,

denial of a driver’s license, ‘“‘shall be in addition to all

other penalties.” Ark. Code Ann. §5-64-710 (Supp. 1991).

The salient fact is that there was no “disposition,”

such as commitment to a youth services center, probation,

or fine, as provided for in Ark. Code Ann. §9-27-330

(1987), the statute that appellant contends unconstitu-

tionally provides excessive punishment for juveniles. In-

stead, the only “disposition” was to deny appellant the

privilege of holding a driver’s license as provided for in

the criminal statute and driver’s license statute, and, by

Statute, that is to be “in addition to all other penalties.”

APPENDIX A-3

In order to have standing to challenge the consti-

tutionality of a statute, a party must demonstrate that the

challenged statute had a prejudicial impact on him. Mont-

gomery v. State, 277 Ark. 95, 640 S.W.2d 108 (1982). Here,

the challenged statute had no impact on appellant, and,

therefore, he has no standing to challenge it. In his reply

brief the appellant contends that he has standing because

court costs were assessed against him under the juvenile

code, but he has not shown that court costs are discrimi-

nately applied in juvenile court. Accordingly, we affirm

the trial court’s refusal to enjoin the use of the juvenile

code.

Appellant’s second assertion of error is:

The lower court erred in failing to treat the

overbroad definition of ‘‘juvenile delin-

quent’ as void for vagueness by failing to

find A.C.A. §9-27-303 sub paragraph 11

as void for vagueness and being over-

broad which definition creates as a

delinquent every child in Arkansas at

some time before its 18th birthday as a

juvenile.

The primary contention under this point is that the defini-

tion of “delinquent juvenile” contained in Ark. Code

Ann. §9-27-303(11) (1987) is facially void for vagueness.

Appellant does not contend that the statute he was found

_ to have violated, “minor in possession of intoxicants,” is

void for vagueness. Rather he argues that the definition

of “delinquent juvenile” is void. Since there was no dispo-

sition of appellant under this definition, we do not need

A-4 APPENDIX

to reach the issue, but we discuss it in a summary manner

only as a prelude to another of his subpoints.

The statute defines the term “delinquent juvenile”

as any juvenile ten years old or older who has committed

an offense that would constitute a felony, misdemeanor,

or violation for an adult, excepting traffic offenses and

game and fish violations. The statute sets out the age of a

juvenile offender, and it defines the type of behavior that

will cause one to be classified as a delinquent juvenile.

Under the definition, a juvenile would only have to look

to the criminal code and city ordinances to find the pro-

scribed acts. Thus, the statute is not facially void. See

State v. Torres, 306 Ark. 554, 816 S.W.2d 169 (1991), for a

complete discussion of the standard for determining

whether a statute is void for vagueness.

Appellant alternatively argues that if the definition

is not vague, and if it is literally followed, it is overbroad

because it subjects every juvenile to being declared a de-

linquent. Appellant did not offer any empirical data to

sustain this argument. The only data on the subject of

which we are aware, and of which we can take judicial

notice, are the statistical publications of the Administra-

tive Office of the Courts and the United States Census,

and this data does not sustain appellant’s contention.

Thus, the chancellor did not err in refusing to declare the

juvenile code unconstitutional because the definition of

“delinquent juveniles” is overbroad.

Also under the same point of appeal appellant

APPENDIX A-5

contends that the statute he was convicted of violating,

being a minor and possessing alcohol, is in violation of

the Equal Protection Clause. Citing our legal drinking

age of twenty-one, appellant contends that all persons

who are under the age of twenty-one, and who possess

alcohol must be treated the same, but, under our statute,

only persons less than eighteen years old lose their driv-

er’s license when they possess intoxicants. Such an argu-

ment loses sight of the fact that a person reaches majority

in this state at the age of eighteen years, Ark. Code Ann.

§9-25-101 (1987), and it is only minors who are subject to

losing their driving privileges under this act. It is adults

over the age of eighteen, but under the age of twenty-one,

who cannot purchase intoxicants, who might make a hol-

low equal protection argument. In addition, in Carney v.

State, 305 Ark. 431, 808 S.W.2d 755 (1991), we set out the

basis for this dichotomy, and we hold that it is rational

and, consequently, not unconstitutional. We need not

repeat that reasoning here.

Appellant’s third point of appeal is:

The court erred in exercising jurisdiction

beyond its jurisdiction by enforcing Act 93

of 1989 A.C.A. §5-65-116 without regard

to Act 1109 of Acts of the legislature of

1991 A.C.A. §27-16-915 and failing to find

that the 1989 act was amended by the

1991 act and by immediate imposition of

the ruling of the court without regard to

the defendant's right to appeal and by let-

ter ruling disallows any stay against dis-

position pending appeal.

A-6 APPENDIX

Appellant contends that Ark. Code Ann. §5-65-116 (Supp.

1991), the part of the criminal code passed in 1989 that

provides for the suspension of driver’s licenses of juve-

niles under eighteen who commit offenses involving intox-

icants, was repealed by implication by Ark. Code Ann.

§27-16-916 (Supp. 1991), a part of the code dealing with

driver’s licenses that was passed in 1991.

The two statutes are not in conflict, and one does

not repeal the other by implication. The criminal code

section 5-65-116 provides that a person under eighteen

who is convicted of driving while intoxicated, or who ille-

gally possesses alcohol or a controlled substance, shall

lose his driver’s license. On the other hand, the driver’s

license statute, section 27-16-915, provides that any

person, regardless of age, who illegally uses or possesses

controlled drugs, as they are defined by the Controlled

Substances Act, shall lose his driver’s license. Thus, there

was no repeal of that part of the criminal code providing

for the loss of a driver’s license by a person under

eighteen years of age when he is found guilty of an of-

fense involving intoxicants. In addition, this court has

Stated that repeal by implication is favored. Johnson v.

Sunray Serv., Inc., 306 Ark. 497, 816 S.W.2d 582 (1991).

Under this same assignment of error appellant

makes an additional equal protection argument. He con-

tends that there is an unconstitutional disparity in the way

section 5-65-116 treats juveniles under eighteen as com-

pared to the way it treats adults, and also in the Way it

APPENDIX A-7

treats juveniles under eighteen compared to the way it

teats [sic] people eighteen, nineteen, or twenty years of

age. We do not reach the first subpart of this argument

because an adult cannot be convicted of the offense of

possession of intoxicating liquor by a minor. See Ark.

Code Ann. §3-3-203 (1987). With regard to the second

subpart of the argument, a person reaches majority in this

State at the age of eighteen, Ark. Code Ann. §9-25-101

(1987), and there is a rational basis for taking the privi-

lege of driving from a minor who possesses intoxicants.

Carney v. State, 305 Ark. 431, 808 S.W.2d 755 (1991).

Under a different statute, a person must be twenty-one

years of age before he can lawfully possess intoxicants.

Ark. Code Ann. §3-3-203 (1987). As we have already set

out in the second assignment of error, there is a rational

basis for treating minors under the age of eighteen differ-

ently from adults who have not yet reached the lawful

drinking age of twenty-one. .

Appellant makes yet another subargument under

this assignment of error, “[T]he lower Arkansas trial

court is acting beyond its jurisdiction in denying the ap-

pellant an opportunity to appeal... .’’ We summarily

dismiss this argument as we are now hearing this case on

appeal.

Appellant’s fourth assignment of error is:

The court erred in allowing the juvenile

intake officer as its appointee and advisor

to make an ex parte recommendation to

the court by written recommendation

A-8 APPENDIX

ieee

prior to an adjudication of guilt during the

time that the court was sitting as a trier of

fact and injecting the court into the rule of

an advocate.

Appellant’s first argument under this assignment of error

is that the trial court violated Ark. Code Ann. §9-27-321

(Repl. 1991), which provides that a statement made by

the juvenile to the intake officer shall not be admissible in

evidence against the juvenile. There simply was no state-

ment to an intake officer that was admitted into evidence.

An incriminating statement made to the trooper was

admitted into evidence, but that is not prohibited by the

cited statute.

Additionally under this assignment, appellant

argues that the trial court abused its discretion in allowing

the intake officer to sit at counsel table with the deputy

prosecutor during this proceeding, and that the trial court

erred in allowing the intake officer to make the recom-

mendation that the appellant’s driver’s license should be

suspended for one year. Again, we treat the matter sum-

marily because, even if appellant’s arguments were valid,

there was no possible prejudice. There is no doubt

appellant was a minor and that he was in possession of

intoxicants, and the applicable statute provides that in

such case the trial court is required to Suspend the minor’s

driver’s license. See Ark. Code Ann. §5-65-116 (Supp.

1991).

Appellant next argues that this case should be

reversed because the chancellor took an adversary pos-

APPENDIX A-9

ture at trial. The argument is based upon the following.

At the beginning of the case the chancellor asked appel-

lant’s attorney: “How old is your son?” and, during the

trooper’s testimony, appellant made an objection, based

on the lack of a Miranda warning. The trial court then

asked five pertinent questions of the trooper before rul-

ing. One of these questions was: “How did he claim own-

ership?” Appellant cites no authority that these questions

by the court were improper in a juvenile hearing, and we

know of none. When a party cites neither cases nor au-

thority for an argument, nor gives a convincing argument,

and the argument has no readily apparcnt validity, we will

not further consider the matter. Brown v. Minor, 305 Ark.

556, 810 S.W.2d 334 (1991).

In his final assignment of error, appellant con-

tends:

The court erred in finding a link between

the possession of alcohol, and the driver

of a vehicle, and in allowing alleged

statements by the defendant without

benefit of statements by the defendant

without benefit of Miranda warnings by

an officer stopping a juvenile when the

questions and answers of the targeted

juvenile resulted in arrest and completing

a “‘link.”

Appellant makes a number of arguments under this as-

signment of error, but all but one of them are based upon

the contention that the trial court erred in allowing the

trooper to testify that appellant admitted that the intoxi-

A-10 APPENDIX

'

cants were his because the officer did not give a Miranda

warning to appellant. The ruling was correct. Here, the

officer issued a citation in licu of an arrest. See A.R.Cr.P.

Rules 5.1 and 5.2. The officer did not take appellant into

custody. In Berkemer v. McCarthy, 468 U.S. 420 (1984),

the United States Supreme Court held that persons tem-

porarily detained pursuant to a routine traffic stop are

not “in custody” for the purposes of Miranda. The Court

reasoned that Miranda warnings were not required in

such cases because the stop was temporary, it was in pub-

lic, and the atmosphere on a public street is not compara-

ble to the “police dominated” custodial interrogation.

The Court held that a motorist who is detained pursuant

to a traffic stop is entitled to a recitation of his rights only

when the stop becomes such that he is “‘subjected to

treatment that renders him ‘in custody’ for practical pur-

poses.” Id. at 440.

Finally, in two separate subarguments, appellant

contends that this case should be reversed because trial

court did not act in an impartial manner and that there

was a “predisposition ” to “make an example out of this

defendant.” The record does not show that the trial court

acted unfairly or impartially in any manner, or sought to

make an example of appellant. We consider the argument

to be disrespectful of the trial court and in violation of

Rule 6 of the Rules of the Supreme Court and Court of

Appeals, but, rather than take punitive action, we state

that the argument is completely without a basis and inap-

propriate.

APPENDIX A-11

Affirmed.

Newbern, J., not participating.

IN THE CHANCERY COURT

OF CLAY COUNTY, ARKANSAS

JUVENILE DIVISION

Disposition Order

Delinquency

STATE OF ARKANSAS Plaintiff

VS. No. WJ-91-28

Scott Manatt Jr., Juvenile

Scott and Sharon Manatt,

Parent, Guardian or Custodian Defendants

DOB 9/3/74

Sex M

Race C

The court has jurisdiction of the subject matter and par-

ties pursuant to Ark. Code Ann. 9-27-306(a)(1).

The juvenile was adjudicated delinquent on January 7,

1992.

Pursuant Ark. Code Ann. 9-27-330 and -331, the court

orders:

Court costs of $35.00 (not to exceed $35) to be paid by

juvenile or parent, guardian or custodian.

Additional orders: To revoke his driving privileges until

January 6, 1993.

A-12 APPENDIX

|

Additional findings: Juvenile was represented in court by

Scott Manatt Sr.

It is so ordered this 9th day of April, 1992.

RALPH WILSON

Judge

IN THE CHANCERY COURT

OF CLAY COUNTY, ARKANSAS

JUVENILE DIVISION

Adjudication Order

Delinquency

STATE OF ARKANSAS Plaintiff

VS. No. WJ-91-28

Scott Manatt Jr., Juvenile

Scott and Sharon Manatt,

Parent, Guardian or Custodian Defendants

DOB 9/3/74

Sex M

Race C

Pursuant to Ark. Code Ann. 9-27-306(a)(1), the court has

jurisdiction of the subject matter and the parties.

After a hearing pursuant to Ark. Code Ann. 9-27-327, the

court finds beyond a reasonable doubt that the juvenile

did commit the following act(s) alleged in the petition:

On 9/01/91, Scott Manatt Jr. was stopped by Arkansas

State Police on Hwy. 67, Corning, AR, while driving his

truck with three other passengers. Found in his truck was

1 case of beer (24), 4 bottles of wine coolers and 6 bottles

APPENDIX A-13

of beer. The court finds that the acts, if committed by an

adult would constitute a felony, misdemeanor or other

violation under the criminal laws of this state, as follows:

Offense — Minor in Possession of Alcohol. Ark. Code

Ann. 3-3-203

The juvenile is ten (10) years old or older.

Upon such findings, the court enters judgment that the

juvenile is delinquent as defined by Ark. Code Ann. 9-27-

303(11).

It is ordered this 7th day of January, 1992.

RALPH WILSON

Judge

Letter Opinion of Judge Ralph Wilson Jr.

To Scott Manatt and Joe Calvin

Dated December 23, 1991

After rendering my decision in a letter opinion

dated December 18, 1991, I received in the mail a cover

letter dated December 19, 1991 from Mr. Manatt along

with his enclosed motion to modify the record and

motion for a new trial, both of which were filed on De-

cember 19, 1991.

In regard to the motion to modify the record, Ark.

Code Ann. §9-27-343 (1987) governs appeals from

juvenile court to the Arkansas Supreme Court or Arkan-

sas Court of Appeals, which shall be in the same time and

manner provided for appeals from chancery court. Fur-

A-14 APPENDIX

—

thermore, Ark. Code Ann. §9-27-309 (1987) states that all

records may be closed and confidential within the discre-

tion of the court. I am inclined to grant defendant’s mo-

tion to change his name to a “John Doe” provided Mr.

Manatt can cite me the specific authority for doing so.

After reviewing defendant’s motion for a new trial,

I am denying that motion finding it meritless. The actions

taken by the juvenile intake and probation officers before

and during trial are proper under the Arkansas Juvenile

Code of 1989. Therefore, that motion will be denicd.

In regard to Mr. Manatt’s cover letter, the objec-

tion to the hearing in Piggott is well taken. Ark. Code

Ann. §9-27-307 (1987) provides in pertinent part that a

proceeding under the sub-chapter (Ark. Juvenile Code)

shall be commenced in the court of the county in which

the juvenile resides. This is a delinquency case and the

delinquent act also occurred in the county of defendant’s

residence, the Western District of Clay County, Arkansas.

Furthermore, Ark. Code Ann. §16-13-210 (1987) and §16-

13-317 (1987) also state that no contested case can be

tried outside the county of the venue of the case, except

upon the agreement of the parties interested. Although

this case was properly tried in the Western District of

Clay County, the disposition hearing apparently must also

be heard there unless both parties consent to another

venue within the Second Judicial District.

Mr. Manatt is correct in the last paragraph of his

cover letter in that I did not rule on his allegation of a

APPENDIX A-15

discrepancy between Act 93 of the Third Extraordinary

Session of 1989 and Act 1109 of 1991. Act 93 is codified

as §27-16-914 (Supp. 1991) and §5-65-116 (Supp. 1991)

and §5-64-710 (Supp. 1991). This act specifically applies

to persons who are less than 18 years of age who plead

guilty, nolo contendere, or who are found guilty of,

among other things, the illegal possession or use of alco-

hol or controlled substances, etc. Again, this statute spe-

cifically applies to minors—those persons under 18 years

of age. However, Act 1109 of 1991, codified as §27-16-915

(Supp. 1991) is a statute which applies to controlled sub-

stances regardless of the age of the offender. That is, the

statute applies whenever a person pleads guilty, nolo con-

tendere, or is found guilty of any criminal offense involv-

ing the illegal possession or use of controlled substances,

then that offender’s driving privileges must be suspended

for a period of six months. Again, this statute is distin-

guishable from Act 93 in two respects:

1) It applies merely to controlled substances.

2) It applies to “a person” and not limited to those

under 18 years of age. Obviously, the defendant in this

case was convicted of an offense involving the illegal pos-

session of alcohol.

I want to make this final point clear. I will make a

special trip to Corning to enter a disposition in this case

as required by law. This disposition will not be affected by

any appeal to an appellate court unless that court specifi-

cally issues a writ of prohibition against me from enforc-

A-16 APPENDIX

OO 2 IE A

eae

ing that disposition. In other words, it is my position that

an appeal to an appellate court of a juvenile delinquency

case does not stay the disposition of that case. And be-

cause of the defendant’s age in this case, his driving privi-

leges must be suspended for a period of twelve months.

The sooner that suspension begins the sooner it ends,

which would appear to be in the defendant’s best interest.

I intend to issue a disposition of this case on or before

January 17, 1992.

Letter Opinion of Judge Ralph Wilson Jr.

To Scott Manatt and Joe Calvin

Dated December 18, 1991

Upon cross-examination of Trooper Steve Shults

of the Arkansas State Police, Mr. Manatt orally moved to

suppress the defendant’s incriminating statement regard-

ing ownership of the beer and wine coolers in the bed of

the truck because the defendant (driver of the truck) had

not been given his Miranda warnings. Furthermore, Mr.

Manatt, at the close of the state’s case moved for a di-

rected verdict of acquittal. Both motions were taken un-

der advisement. At the time the defense also rested.

1. Admissibility of Defendant’s Statement Issue

The state only called one witness, Trooper Steve

Shults, who testified he stopped the defendant for speed-

ing at about 12:26 a.m. on September 1, 1991, on U.S.

Highway 67 north of Corning. Trooper Shults testified he

noticed some beer and wine coolers in the open bed of

APPENDIX A-17

the defendant’s pickup truck while walking to the driver’s

side of this vehicle. The defendant, 17 years of age, was

driving his truck. There were three other occupants, one

male and two females.

Trooper Shults, during his initial contact with the

defendant, inquired as to the ownership of the beer and

wine coolers. He testified the defendant claimed the beer

and wine cooler as his (defendant’s). Afterwards, the

trooper issued a citation to the defendant charging him

with speeding and minor in possession of alcohol. Troop-

er Shults also testified he did not believe the defendant or

occupants had been drinking alcohol prior to this stop.

The defendant was released at this point and never taken

into custody. The defendant’s incriminating statement was

made to the trooper while the defendant was in his own

vehicle.

At trial, the defendant’s counsel failed to object to

this incriminating statement as related by Trooper Shults.

However, upon cross-examination about this issue, Mr.

Manatt moved to suppress.

The issue is whether the statement by the defend-

ant to Trooper Shults is admissible although the defend-

ant was not “Mirandized” by the officer. I find that this

statement is admissible.

First, the warnings required under Miranda come

into play only when the defendant is subject to custodial

interrogation or the functional equivalent thereof in that

A-18 APPENDIX

he

eet «Sede Sali

he has been deprived of his freedom of action. Beckwith v.

United States, 425 U.S. 341 (1976). Safeguards prescribed

by Miranda become applicable as soon as a suspect’s

freedom of action is curtailed to a degree associated with

formal arrest. No Miranda warnings are required if the

question by officers is simply investigatory. Gardner v.

State, 296 Ark. 41, 754 S.W.2d 518 (1988); Bennett v.

State, 302 Ark. 179, 789 S.W.2d 436 (1990). Police inquiry

is purely investigatory and proper until the suspect is re-

Strained in some significant way. Shelton v. State, 287 Ark.

322, 699 S.W.2d 728 (1985).

Here, the defendant was not in custody at the time

the statement was made. He was stopped for speeding, a

minor moving traffic offense, asked several questions,

briefly detained and given a citation for the alleged of-

fenses. He was never formally arrested or placed in cus-

tody.

Second, only when the process becomes “accusa-

tory” do Miranda rights attach. Murry v. State, 276 Ark.

372, 635 S.W.2d 237 (1982). Also, when officers interview

a person in a non-custodial situation even though the in-

vestigation has “focused” on him, his statement may be

admissible despite failure to give strict Miranda warnings.

Beckwith v. United Siates, 425 U.S. 341 (1976). Basically,

in this case, there was no interrogation of the defendant.

Even though Trooper Shults said he would have given the

defendant a ticket for minor in possession without the

incriminating statement (as owner and driver of the vehi-

cle), I don’t find that the defendant was the “focus” of the

APPENDIX A-19

ee ae ee ne a ee

officer’s investigation, which was a brief question as to

who owned the alcoholic beverages.

Third, the defendant’s counsel did not make a

timely objection to the officer’s recitation of the defend-

ant’s incriminating statement as to the ownership of the

alcohol. A party has a duty to make a timely and com-

plete objection to the admissibility of evidence. Moore v.

State, 303 Ark. 514, 798 S.W.2d 87 (1990). An objection

must be made at the first opportunity to do so and must

apprise the trial court of the specific ground. James v.

State, 11 Ark. App. 1, 665 S.W.2d 883 (1984); Boone v.

State, 232 Ark. 274, 668 S.W.2d 17 (1984).

For these reasons, I am denying the defendant’s

motion to suppress this inculpatory admission by the de-

fendant.

2. Motion for Directed Verdict Issue

Defendant’s counsel has cited the case of Kastl v.

State, 303 Ark. 358, 796 S.W.2d 848 (1990), in his motion

for directed verdict. That case is distinguishable from this

one. Here, the trooper testified that the defendant was

driving the truck which contained the beer and wine cool-

ers in the open bed of the truck. Furthermore, the de-

fendant told the officer he owned the truck. Finally, the

defendant claimed ownership of the alcohol. This is

certainly constructive possession of the alcohol if not ac-

tual possession. Even assuming this was a joint occupancy

or ownership situation, the defendant’s statement that he

A-20 APPENDIX

TT cE A aE TE Je SM

owned the alcohol is the additional link necessary be-

tween the defendant and the contraband. Embry v. State,

302 Ark. 608 (1990); Osborne v. State, 278 Ark. 45, 643

S.W.2d 251 (1982). |

For these reasons, the motion for directed verdict

is denied. Therefore, I find the allegation of minor in pos-

Session as contained in the state’s juvenile delinquency

petition has been substantiated beyond a reasonable

doubt, and I hereby adjudicate the defendant to be a de-

linquent juvenile. Disposition will be held on Friday, Jan-

uary 17, 1992 in Piggott at 9:30 a.m. unless the defendant

desires an earlier disposition date.

I am sending a copy of this letter opinion to the

Clay County Juvenile Office for them to prepare an adju-

dication order for me to sign.

Arkansas Code Annotated §9-27-308

Personnel — Duties.

(a) INTAKE OFFICERS.

(1) The judge of the juvenile court shall designate

no less than one (1) person in his judicial district as “in-

take officer” for the court.

(2)(A) An intake officer shall have the following

duties:

(i) To receive and investigate complaints and

charges that a juvenile is delinquent or dependent-

neglected, or that a family is in need of services;

(ii) To make appropriate referrals to other

APPENDIX A-21

public or private agencies of the community if their as-

sistance appears to be needed or desired;

(iii) To perform all other functions assigned to

him by this subchapter, by rules promulgated pursuant

thereto, or by order of the court.

(B) Any of the foregoing functions may be per-

formed in another state if authorized by a court of this

state and permitted by the laws of the other state.

(b) PROBATION OFFICERS.

(1) The judge of the juvenile court shall designate

no less than one (1) person in his judicial district as “pro-

bation officer.”

(2) A probation officer shall have the following

duties:

(A) To make appropriate investigations and

reports when required to do so by any provision of this

subchapter or the rules promulgated pursuant thereto or

by any order of the court;

(B) To aid and counsel juveniles and their fam-

ilies when required to do so by order of the court;

(C) To perform all other appropriate functions

assigned to him by this subchapter or the rules promul-

gated pursuant thereto or by order of the juvenile court;

(D) To give appropriate aid and assistance to

the court when requested to do so by the judge.

A-22 APPENDIX