Williams v. State

• Decision Date: 03 April 1995
• Docket Number: No. CR,CR
• Citation: 320 Ark. 211,895 S.W.2d 913
• Parties: Jeffrey WILLIAMS, Appellant, v. STATE of Arkansas, Appellee. 94-352.
• Court: Arkansas Supreme Court

Page 913

895 S.W.2d 913

320 Ark. 211

Jeffrey WILLIAMS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 94-352.

Supreme Court of Arkansas.

April 3, 1995.

[320 Ark. 212] Jeff R. Conner, Bentonville, for appellant.

Clint Miller, Acting Deputy Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Jeffrey Williams, appeals the judgment of the Washington County Circuit Court, filed October 14, 1993, convicting him of one count of refusal to submit to arrest, a Class B misdemeanor, Ark.Code Ann. § 5-54-103(b) (Repl.1993), and sentencing him to a $500.00 fine, court costs, and ninety days in the Washington County jail, conditionally suspending the fine and jail term. We have jurisdiction of this appeal pursuant to Ark.Sup.Ct.R. 1-2(a)(3) and (d), respectively, because appellant questions the constitutionality of section 5-54-103, and because the appeal was certified to this court by the court of appeals. Appellant asserts four points of error. We find no merit and affirm the judgment.

FACTS

On October 23, 1992, Governor Bill Clinton, the Democratic Presidential candidate, appeared at a rally in support of his campaign in Fayetteville on the campus of the University of Arkansas. The rally was attended by a crowd of approximately 10,000 persons, among them a group of approximately 40 supporters, of the Republican incumbent, President George Bush. Appellant was one of these Republican supporters.

During the rally, University of Arkansas Police Department ("UAPD") Officer Michael Daub was approached by a Clinton staff worker who said "There's a fight" and directed Daub to an area near the press table and speakers' platform. In that area, Daub saw several persons, holding "Bush/Quayle" signs, jumping up and down. Daub observed appellant forcibly and violently knocking the people who stood in front of him with his body as he jumped up and down. Daub stated that appellant "was almost foaming at the mouth," that the people in front of him "were about ready to take him on," and that Daub was afraid there would be a large fight and perhaps a riot at the rally.

Daub advised appellant not to push anyone, but appellant continued to do so and replied "I have freedom of speech." Daub ordered appellant to leave, but appellant did not obey. Daub radioed for backup, and, shortly thereafter, was joined by two UAPD officers, Sgt. John Reid and Lt. Gary Crain, and Deputy Harris of the Washington County Sheriff's Patrol. Upon arrival at the scene, Reid observed the disturbance. Reid saw appellant standing near Daub, screaming about his rights, and shouting Republican slogans. Reid observed pushing going on in the crowd around appellant. Upon arrival at the scene, Crain also observed the disturbance. Crain saw appellant jumping up and down and bumping into people.

Reid and Crain each advised appellant that he was under arrest and ordered him to move out of the area. Appellant began to leave, then changed his mind and slumped to a sitting position on the ground. Daub and Harris unsuccessfully attempted to pick up appellant. Crain interceded and applied a "pain compliance" technique, intended to motivate appellant to leave on his own power, which was accomplished by Crain first steadying appellant's head in the crook of Crain's arm (described by appellant as a "headlock"), then applying pressure with his thumb to a nerve below appellant's ear. Appellant stood up and walked a few steps. Crain advised appellant to leave the area, or he would apply the pressure again. Appellant walked with the officers to a patrol car where he was examined for weapons and handcuffed for transport. Appellant stated he understood the officers who told him to leave were law enforcement officials, but did not realize he was or might be under arrest until Crain put him into the "headlock."

Appellant was found guilty of refusal to submit to arrest by the Fayetteville Municipal Court, and appealed his case to the Washington County Circuit Court where a non-jury trial was conducted on September 16, 1993. At trial, Officers Daub, Crain and Reid testified for the prosecution; appellant, five other Republican supporters who attended the rally, and a journalist who had photographed portions of the incident testified for the defense. Conflicting evidence was introduced regarding whether and when appellant was placed under arrest for disorderly conduct At the conclusion of the trial, the circuit court judge delivered his findings of fact from the bench. The trial court stated that appellant "ha[d] every right in the world" to be at the rally and was exercising constitutionally guaranteed rights. The trial court held that the real issue, however, was whether appellant violated section 5-54-103, a "very simple statute." The court found that the evidence was overwhelming that appellant knew the UAPD officers were police officers. The trial court found that the proof as to the only remaining issue, that is, whether appellant submitted to arrest, was disputed, and the trial court concluded the issue was one of credibility. The trial court found that, in the totality of the circumstances, appellant "simply for whatever reason chose to ignore the police officers." The trial court pronounced appellant guilty of refusal to submit to arrest, and, on October 14, 1993, filed the order of guilt and sentence from which this appeal is taken.

and whether and when he refused to submit to that arrest.

ARGUMENT

Appellant presents four points for reversing his conviction for failure to submit to arrest:

(1) the trial court erred in refusing to consider his constitutional challenges to section 5-54-103,

(2) the trial court erred in refusing to admit evidence regarding the illegality of appellant's arrest for disorderly conduct,

(3) the trial court erred in refusing to permit appellant to use a videotape of the incident in cross-examination, and in refusing to allow narration of the videotape, and

(4) section 5-54-103 is unconstitutional as written and as applied to appellant because it denied him his constitutional rights.

The heart of appellant's appeal is grounded in the constitutional challenges to section 5-54-103 which he raises in his fourth and final point. It is implicit in each of appellant's first two points that he is assuming section 5-54-103 is unconstitutional to establish any prejudice to him as a result of the trial errors posited in those points. Therefore, we first proceed to a consideration of appellant's constitutional arguments.

CONSTITUTIONAL ARGUMENTS

The statutory subsection at issue, section 5-54-103(b), reads as follows:

(b)(1) A person commits the offense of refusal to submit to arrest if he knowingly refuses to submit to arrest by a person known by him to be a law enforcement officer effecting an arrest;

(2) "Refusal", as used in this subsection, means active or passive refusal;

(3) It is no defense to a prosecution under this subsection that the law enforcement officer lacked legal authority to make the arrest, provided he was acting under color of his official authority;

(4) Refusal to submit to arrest is a Class B misdemeanor. [Emphasis added.]

Appellant argues that section 5-54-103(b) is unconstitutional, as written and as applied in this case, under the First and Fourth Amendments of the federal Constitution, and under Article II, Section 6 of the Arkansas Constitution. The gist of appellant's argument is that the statute mandated his submission to an illegal arrest during his participation at a political rally, and, therefore, violated his Fourth Amendment right against unreasonable seizures of his person, and his state and federal constitutional rights to freedom of speech.

We do not address appellant's Fourth Amendment argument which he raises for the first time on appeal. Claiborne v. State, 319 Ark. 537, 893 S.W.2d 324 (1995). Even constitutional arguments which are not raised before the trial court are not properly preserved for our review and are waived on appeal. Id.; Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

Appellant cites Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963), for the proposition that the state cannot constitutionally punish a person for refusing to obey a police officer's order which itself violates the constitution, and urges that Wright is controlling of this case. In Wright, "six young Negroes, were convicted of breach of On the record before us, we do not agree that Wright is controlling of this case. The Wright decision is clearly distinguishable in two respects. First, the petitioners in Wright did not resist or refuse to submit to their arrests; consequently, the Court did not address the issues raised in this case. Second, the record does not show that appellant's arrest was based solely upon the arresting officers' intention to impermissibly interfere with appellant's First Amendment rights ¹. Cf. Livingston v. State, 610 So.2d 696 (Fla.Dist.Ct.App.1992) (reversing conviction for disorderly conduct where the underlying arrest was illegally based solely on defendant's use of protected First Amendment speech).

                the peace for peacefully playing basketball in a public park[.]"  Id. at 285, 83 S.Ct. at 1242.   The testimony of the arresting officers themselves, in that case, was that the arrests were based solely upon their intention to enforce racial discrimination in the park.  The Supreme Court reversed the convictions as violative of the Equal Protection Clause of the Fourteenth Amendment and as unconstitutionally vague
                

Although, as the trial court found, appellant had a right to be at the rally exercising his constitutional rights, the record shows that the UAPD officers also had a colorable basis for their warrantless arrest of appellant where his disorderly conduct was committed in their presence. Ark.R.Crim.P. 4.1(a)(iii). The testimony of the arresting officers does not indicate that the arrest was based solely upon their intention to...