ADAWAY v. STATE (1998)

The appellant, Oscar Adaway, Jr., was convicted by a jury of two counts of battery in the second degree and one count of fleeing.   He was sentenced to three years in the Arkansas Department of Correction for fleeing and a two-year sentence and $2,000 fine for each of the two counts of battery.

 Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Arkansas Supreme Court Rule 4-3(j), his counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal.   Appellant was notified of his right to file a pro se brief within thirty days.   He filed a brief alleging three reasons why his conviction should be overturned:  that he was not tried by a jury of his peers;  that he had poor representation by his attorney;  and that the judgment against him was not justified.   The Stateresponded to appellant's pro se brief pointing out that a pro se litigant is held to the same standards as one who is represented by legal counsel, and that the appellant has failed to abstract any of the pleadings or the record in the instant case.   However, Rule 4-3(j)(2) only requires an appellant “to raise any points that he or she chooses.”   Therefore, a pro se brief filed by an indigent appellant upon receiving notice that a no-merit brief has been filed on his or her behalf is supplemental to the brief filed by the representing attorney.   The Attorney General must then brief the points raised by the appellant.

 A request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief including an abstract.   The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal.  Skiver v. State, 330 Ark. 432, 954 S.W.2d 913 (1997).   Counsel has not adequately explained any of the adverse rulings nor why each of the adverse rulings is not a meritorious ground for reversal.   Also omitted are citations to any authority that would support counsel's belief that an argument on appeal would not have merit.   In a case where such a clearly inadequate no-merit brief has been filed, our only option is to direct counsel to rebrief the case according to the standards set forth in Anders, supra, and Rule 4-3(j).  As we do so, we are reminded of the Supreme Court's rationale for requiring the filing of a no-merit brief rather than a simple statement that the appeal has no merit:

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain.   It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished by counsel.

Anders, 386 U.S. at 745, 87 S.Ct. 1396.   The brief filed in this case, because it lacks a full discussion of each adverse ruling, amounts to nothing more than a statement that the appeal has no merit.   Accordingly, we also direct appellant's counsel to discuss the points raised by appellant in his pro se brief, and discuss whether such points have merit.

Rebriefing Ordered

In reliance on McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980), I respectfully dissent from the majority's decision affirming the trial court's denial of appellant's motion to suppress evidence that he ingested crack cocaine prior to his arrest.   Appellant was not charged with possession of cocaine.   There was no proof that appellant ingested cocaine.   It was highly prejudicial, therefore, that Officer Lackey was allowed to speculate at trial that he thought appellant ingested cocaine.   Officer Lackey admitted that he had no idea what the object was that appellant placed in his mouth, and that he had no personal knowledge that appellant actually ingested an illegal substance.   The prejudicial impact of the officer's testimony substantially outweighed its probative value.   As a result,appellant has been sentenced to three years' imprisonment for resisting arrest and driving while intoxicated under a cloud of speculative, prejudicial testimony.   I dissent.

CRABTREE, Judge.

AREY and NEAL, JJ., agree.