¶1dissenting. I cannot agree to affirm this case at this point. The appellant, who has been paralyzed and confined to a wheelchair for ten years as the result of an injury suffered when he broke his neck diving into water to save a friend, is thirty years old; lives with his mother; and smokes a litde marijuana to help him live during the day and relax enough to sleep during the night. One day, while he was visiting in the apartment of his girl friend, four police officers burst into the apartment, with weapons drawn, arrested the appellant, and seized the ounce and one-half of marijuana and some drug paraphernalia he had in a bag lying beside his wheelchair.
¶2After a trial by jury, which finally returned a guilty verdict after being read the “dynamite” instruction, the appellant was sentenced as stated in the majority opinion.
¶3The trouble I have with this case is that appellant’s attorney filed a motion to suppress which was set for hearing prior to trial but appellant did not appear, and the trial court entered an order denying the motion. Then, when counsel made a motion at the start of the trial to suppress the marijuana seized, the court denied that motion because the appellant did not appear at the suppression hearing on the day the hearing had been set.
¶4The majority opinion affirms the judgment based on the position that the appellant did not argue that the trial court should still hear the motion but only argued the merits of the motion. The appellant contends that his right to be free from unreasonable searches and seizures guaranteed under the Fifth Amendment to the United States Constitution, as well as his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, should afford him a hearing on his motion at some point.
¶5In Bell v. State, 324 Ark. 258, 920 S.W.2d 821 (1996), the Arkansas Supreme Court considered a case where a police officer was not present to testify at a hearing to suppress any statements the appellant had made as the result of an interrogation at which the absent officer asked questions of the appellant. Our supreme court held that the State had the burden to produce the officer at the hearing or explain his absence. Because it did neither, the court remanded for a new hearing on the suppression motion. It did not grant a new trial and stated a new trial would only be granted if the trial court found the confession of the appellant to be involuntary.
¶6I understand that there are different circumstances in this case and the Bell case, but when the question of effectiveness of counsel, basic constitutional rights, and notions of fair play are considered, I think we should follow the procedure here that was used in Bell.
¶7Therefore, I dissent.