APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. CR2013-0082-1(B). HONORABLE ROBIN F. GREEN, JUDGE.
Lewis Law Firm, by: Nathan D. Lewis, for appellant.
Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.
GRUBER and GLOVER, JJ., agree.
PHILLIP T. WHITEAKER,
Appellant David Tennant was convicted by the Benton County Circuit Court of one count of possession of drug paraphernalia, a Class D felony. Pursuant to Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals (2013), Tennant's attorney has filed a motion to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract, brief, and addendum purporting to list all adverse rulings and to explain why each adverse ruling is not a meritorious ground for reversal. Because our review of the record reveals an issue on which an appeal may not be wholly frivolous, we order rebriefing.
In the context of no-merit appeals, it is the duty of both counsel and this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous, in furtherance of the goal of protecting a defendant's constitutional rights. Reed v. State, 2013 Ark.App. 432, at 3; Wakeley v. State, 2012 Ark.App. 448, at 2-3. A no-merit brief must contain an argument section that consists of a discussion of all rulings adverse to the defendant made by the trial court on all objections, motions, and requests with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Ark. S.Ct. R. 4-3(k)(1); Reed, 2013 Ark.App. 432, at 3-4. Our precedent requires full compliance with the rule. Reed, supra ; Boen v. State, 2009 Ark.App. 535, 336 S.W.3d 883.
Tennant's counsel's no-merit brief appropriately discusses the sufficiency of the evidence supporting Tennant's conviction. Counsel fails, however, to adequately address the one other adverse ruling that occurred during the bench trial.
Sergeant Scott Miller of the Siloam Springs Police Department testified that he was dispatched to a fight. When Miller arrived at the scene, he recognized, through numerous past dealings, two of the individuals involved in the fight: Collin Self and appellant Tennant. As Miller approached the car, he saw Self making " a lot of hurried movement action" and reaching down underneath the front seat of the vehicle in which he was sitting. There was also a lot of movement from the passenger-side back seat, where Tennant was sitting. Miller walked up to the car, identified everyone, and, while he was speaking to them, noticed the handle of a spoon and the plunger end of a syringe protruding from under the driver's seat.
Miller asked the occupants of the car about the fight, and they all gave consistent stories about what had happened. Miller then asked Self about the items Miller saw under the front seat. Self was not cooperative and would not answer any questions. Miller conducted a probable-cause search of the car based on the occupants' behavior and his knowledge of Self's and Tennant's histories. The search revealed an uncapped syringe with a liquid substance in it, a spoon with a white-powdery residue, and a cotton ball under the seat. An empty package of syringes and three unused syringes were found inside a cooler bag, and a drink bottle half-full of a liquid and a " crystal-like substance" was also found in the vehicle.
Miller again asked the occupants of the car what they knew about the items he found in the search, and they all denied any knowledge of them. As Miller was speaking to Self, Tennant " began to yell at Mr. Self about owning it and own what is yours." Self began yelling back at Tennant, and Miller decided to arrest them all for constructive possession of the items found in the car. Tennant, who was searched incident to the arrest, had a syringe end cap and a syringe in his pocket. Once everyone was taken to the police station and given their Miranda warnings, Tennant told Miller that he and the others had gotten together to get high on methamphetamine.
The adverse ruling occurred during Tennant's cross-examination of Miller. Miller admitted that Tennant was not free to leave and had not been advised of his Miranda rights at the point when he and Self began to exchange comments about trying to get each other to take responsibility for ownership of the paraphernalia that Miller found. Counsel ...