ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISIONS III & IV

SAM BIRD, JUDGE

REGINALD J. DUNN AND

BRIAN HALL,

APPELLANTS

V.

STATE OF ARKANSAS,

APPELLEE

CACR99-863

FEBRUARY 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR97-1716, CR98-3459,

HON. JOHN B. PLEGGE,

JUDGE

DISSENTING ON DENIAL OF REHEARING; CONCURRING ON DENIAL OF REHEARING

SAM BIRD, Judge, concurring in part; dissenting in part. My view of this matter is exactly opposite that expressed by Judge Roaf in her opinion of this date, although I agree that Hall's act of getting in his truck was not sufficiently corroborative of accomplice testimony. I would deny the petition for rehearing of the State and grant the petition for rehearing of appellant Brian Hall because I believe that the position of the majority in its unpublished opinion of November 1, 2000, Dunn v. State, 2000, WL 1635605 (Ark. Ct. App. 2000) is inconsistent in its treatment of the two appellants.

I can hear the legal profession, bench and bar, laughing at this court's conclusion that Dunn's crouching down behind a car when the police arrived was not sufficiently corroborative of accomplice testimony, but that Hall's getting in a truck and closing the door was sufficiently corroborative. Under the circumstances of this case I cannot agree that the conduct of either Dunn or Hall is corroborative of the testimony of Callaway that Dunnand Hall participated with him in a plan to possess and distribute marijuana. Certainly, if Dunn's conduct was insufficient corroborative evidence, as the majority concludes, Hall's conduct was likewise insufficient.

As observed by Judge Roaf in her concurring opinion to the denial of Hall's petition for rehearing, there was no evidence that Hall attempted to go anywhere after he got in his truck. At the suppression hearing, two police officers testified concerning Hall's conduct. Lawrence Welborn testified that Dunn and Hall arrived on the scene in a white "Chevy" pickup truck that pulled up next to, and about two feet from, Callaway's vehicle. Welborn stated that when the police rushed onto the scene, "Brian Hall was standing at the driver's door of the white pickup truck. ...We yelled `police' and [Dunn] dropped the bag, ducking behind the car. Mr. Hall at that time re-entered the truck and shut the door. We again identified ourselves as police officers, got him to show us his hands and got him outside the vehicle." Ken Blankenship also testified that Dunn and Hall arrived in a pickup truck. He said that when the police charged onto the scene, "Mr. Hall jumped into the truck, ... he was ordered out, and both subjects were taken into custody."

Although the prosecuting attorney argued at the suppression hearing that "the police officers saw Brian Hall get into the truck where the marijuana was and try to drive away," defense counsel pointed out to the court that there was no evidence that Hall tried to drive away. This same misstatement of fact is repeated by the State in its brief where it argues that "Hall's attempt to flee in his truck as the police were attempting to arrest him is also

indicative of guilt and tended to connect him with the crime." Notwithstanding the complete lack of testimony that Hall tried to go anywhere after re-entering his truck, the majority concludes that when the police rushed onto the scene, both afoot and in a motor vehicle being driven sufficiently reckless to run over and break Callaway's leg, Hall attempted to flee by getting into his truck. Even the State does not make the argument that Hall, by merely getting into his truck, attempted to flee.

While conceding that Hall's re-entry into his truck is insufficient corroborative evidence to sustain his conviction on accomplice testimony, Judge Roaf, nonetheless, concludes that there does exist evidence, "even though slim," to sustain Hall's conviction. I do not agree. The only evidence about Hall's alleged complicity is that Detective Welborn overheard Callaway call Dunn, not Hall, and inform Dunn that he had a flat tire. He then observed Hall drive up in a white Chevrolet pickup truck, take a jack out of the truck bed, and place the jack beneath Callaway's vehicle in an attempt to change the flat tire. Then, when the police rushed onto the scene yelling, Hall got back into his truck beside which he was standing. Judge Roaf concludes that this evidence is sufficient because it shows that Hall was assisting Callaway. I do not see how this evidence, even when viewed liberally, can be construed to constitute assistance by Hall to Callaway and/or Dunn in the possession of marijuana with intent to deliver. All I can interpret the evidence to mean is that Hall came to the scene with Dunn to help change a flat tire on Callaway's vehicle, and he was in the process of doing so when the police charged recklessly onto the scene. At that point he did the same thing any prudent person would do; he got back in his truck.

For the reasons stated herein, I respectfully dissent to the majority's denial of Hall's petition for rehearing, and concur in the denial of the State's petition for rehearing as to Dunn.