# Petition for Writ of Certiorari — Manatt v. Arkansas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 1005

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2086%3A1. Public record. Not legal advice.