author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Herbert Fred BRENK v. STATE of Arkansas
    CR 91-182
    847 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993

      Larry Dean Kissee and Tom Garner, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

On August 23,1990, a cooler was found floating in Lake Norfork, Baxter County, Arkansas. It contained cement and the torso of a white female severed at the upper thighs and lower back. The Arkansas State Police and the Baxter County Police conducted an investigation which led them to believe the torso as that of Lou Alice Brenk. Appellant, Herbert Fred Brenk, who was Lou Alice Brenk’s husband was a suspect. On September 10, 1990, Albert Roork, Chief of Police for the City of Salem, who was aware of the investigation and that appellant was a suspect had a warrant issued for appellant’s arrest for an unpaid DWI fine from 1988. Before arresting appellant on the warrant, Chief Roork contacted, David Lafferty of the Baxter County Police who was involved with the investigation of the discovery of the cooler, to make sure that his arrest of appellant would not interfere with their investigation. Officer Lafferty relayed this message to Bill Beach, who was also investigating the discovery of the torso. Investigator Beach told Officer Lafferty to tell Chief Roork to arrest appellant if he had a valid arrest, but not to do so on behalf of the Baxter County Police. Officer Lafferty relayed this message to Chief Roork. Chief Roork arrested appellant at the home of Lonnie Hodges. At the time of his arrest, appellant had a blood alcohol content of .08. Appellant was on probation in Fulton County for theft/shoplifting at the time of his arrest. A condition of appellant’s probation was that he not use or have in his possession any intoxicating beverages. Since appellant’s blood alcohol content violated a condition of his probation, Chief Roork notified appellant’s probation officer, Billy Benton, and Mr. Benton filed a petition to revoke appellant’s probation. Mr. Benton advised appellant that he would need an attorney for the revocation hearing. Appellant requested that his attorney, Tom Garner, be present for the hearing. Mr. Benton informed the sheriffs department that Mr. Brenk wanted an attorney. On September 12,1990, the Sheriff of Fulton County, Paul Martin, informed Tom Garner that appellant wanted to talk to him.

On September 11, 1990, the torso was identified as that of Lou Alice Brenk and suspicion settled on appellant, her husband, as the prime suspect. On September 12,1990, the Baxter County Police, Bill Beach, Lieutenant Frame, and Sergeant Alman, interviewed appellant at the Fulton County Jail, where he was still being held for failure to pay his DWI fine and pending a hearing on the petition to revoke probation. At that time, appellant consented to talk to the Baxter County officers about the disappearance of his wife, Lou Alice. Appellant answered several questions, but indicated he would like an attorney when the officers questioned him about his ownership of the cooler in which Lou Alice’s remains were found, at which point the interview ceased.

Appellant was charged with capital murder in connection with the death of Lou Alice Brenk on September 13,1990, anda warrant was issued for his arrest that same day. Appellant’s counsel also entered their appearance on September 13, 1990, and formally requested that he not be interviewed without their permission. A jury trial was held June 17 through July 1,1991, at which appellant was found guilty of capital murder and sentenced to death by lethal injection by a jury in connection with the death of his wife Lou Alice Brenk. Appellant appeals his conviction on eleven (11) grounds. Our jurisdiction is proper under Ark. Sup. Ct. R. 29(l)(b).

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT

We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence and address it first since the double jeopardy clause precludes a second trial when a conviction in a prior trial is reversed solely for lack of evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). We must decide this issue on appeal even though the case is being reversed and remanded on other grounds. Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). “In considering the issue, we disregard other possible trial errors.” Id. at 301, 761 S.W.2d at 897.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Lukach, 310 Ark. 119, 835 S.W.2d 852. In determining the sufficiency of the evidence, we. need only ascertain that evidence most favorable to appellee and it is permissible to consider only that testimony which supports the verdict of guilty. Id.; Moore, 297 Ark. 296, 761 S.W.2d 894.

At trial, evidence was introduced that appellant owned the cooler in which the remains of his wife were found. Appellant had access to the saw which was determined to have been used to cut up Mrs. Brenk’s body. Two people who had been in jail with appellant testified at trial. One of these people, Ted Ullman, testified that appellant admitted to killing his wife and the other, William Lemmons, testified that appellant said that if he had it to do over again he’d make sure he put the portion of his wife’s body that was found with the other portions so he wouldn’t get caught. Several witnesses testified that they asked appellant about Lou Alice’s whereabouts at the time the coroner testified she was already dead and he told them differing stories about where she was. Appellant told some people that Lou Alice had gone to visit her daughter and others that she had left him for another man, but her daughter never saw Lou Alice and reported Lou Alice missing after it became clear that no one in the family knew where Lou Alice was. In his interview with the police of September 12,1990, appellant said his wife left him on August 24 and he saw her again on August 31 when she returned, gave him some money and took all her clothes. Appellant also told the police that on September 9, he received a note from Lou Alice at their trailer telling him they were through and she wanted a divorce. Appellant also told the police that Lou Alice had taken the rest of her things at that time. Lying about Lou Alice’s whereabouts at a time when she was clearly dead indicates a consciousness of guilt on the part of appellant and attempts to cover up a crime are admissible. See Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990). This constitutes substantial evidence from which the jury could have concluded appellant murdered his wife, Lou Alice Brenk.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS HIS SEPTEMBER 12, 1990, STATEMENT

Appellant claims the statement he made to the Baxter County Police on September 12, 1990, is inadmissible for two reasons. First, appellant claims his arrest by Chief Roork on failure to pay a DWI fine was pretextual and the statement obtained from him by the Baxter County Police, on September 12, 1990, while he was in the Fulton County Jail on that charge was the “fruit of the poisonous tree” and was inadmissible. Second, appellant had been advised by his probation officer, Billy Benton, that he would need counsel for his revocation hearing and had requested counsel for that purpose. Appellant argues that this request invoked both his Fifth and Sixth Amendment rights to counsel, prohibiting the use of any in custodial statement made by him after that request without the presence of counsel. We disagree with both of appellant’s contentions.

Pretext is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest. Richardson v. State, 288 Ark. 407, 706 S.W.2d 363 (1986). Here, Chief Roork testified at a pretrial hearing that he arrested appellant because he knew appellant was being investigated, knew appellant owed almost $500.00 on a DWI, and was aware appellant had been selling things and had turned off his electric service. Therefore, Chief Roork testified that he was afraid appellant would flee the area and the city would be unable to collect its fine. Chief Roork testified that appellant could have gotten out of jail by paying the fine and posting a bond for his revocation hearing. Credibility of the witness is a matter for the trier of fact and such determinations will not be disturbed on appeal when there is substantial evidence to support the factfinder’s conclusion. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). Additionally, there is no indication in the record that Chief Roork or the Salem City Police attempted to question appellant about the disappearance of his wife, the cooler, or any other related matter. The Baxter County Police, who were investigating the cooler, specifically told Chief Roork not to arrest appellant on their behalf, but to arrest him if he had a valid warrant. Also, it was not until one day after appellant’s arrest for failure to pay his DWI fine that the torso was identified as that of Lou Alice Brenk and not until two days after his arrest for the DWI charge that appellant was questioned by the Baxter County Police. On these facts, we do not find the arrest was clearly pretextual.

Appellant also contends his request to his probation officer for counsel to represent him at his revocation hearing invoked his Fifth Amendment right to counsel such that any statement he made without the presence of counsel should not be used at trial. In the recent case McNeil v. Wisconsin, _ U.S. _, 111 S. Ct. 2204 (1991), the Supreme Court held an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U.S. 436 (1966), from the Fifth Amendment’s guarantee against compelled self-incrimination. As in the McNeil case, appellant invoked his Sixth Amendment right to counsel for a judicial proceeding unrelated to the present charge, but did not make any indication that he only wished to deal with the police through counsel and, therefore, did not invoke his Fifth Amendment right to counsel. The Sixth Amendment right to counsel is case specific. Appellant’s request for counsel to represent him at the revocation hearing applied only to the revocation matter and not to any other potential charges. Since appellant did not invoke his Fifth Amendment right to counsel by indicating that he wished to deal with the police only through counsel, the Edwards rule which appellant cites does not apply. Edwards v. Arizona, 451 U.S. 477 (1981). We find appellant’s September 12, 1990, statement was properly admitted under McNeil. McNeil, _ U.S __, 111 S. Ct. 2204. The interview properly ceased at the point appellant indicated he did not wish to communicate with the police without the assistance of counsel.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO SUPPRESS EVIDENCE WHICH WAS SEIZED PURSUANT TO VARIOUS SEARCH WARRANTS

Appellant objects to the introduction of evidence seized pursuant to three search warrants, which he claims are invalid. Appellant claims there were insufficient facts presented to any of the magistrates to establish reasonable cause for the issuance of any of the warrants, the warrant issued by Judge Judith Bearden was defective because she did not have authority to issue warrants in Baxter County, and the search by the police of appellant’s trailer, van, the 1974 Buick and adjacent block building on October 9, 1990, was an unauthorized nighttime search. Lastly, appellant contends all the evidence seized from any of the searches was a result of his pretextual and illegal arrest and should be suppressed as “fruit of the poisonous tree.”

We have already determined that appellant’s arrest on the DWI fine was not pretextual. Therefore, we need only address appellant’s other arguments.

Appellant claims there were insufficient facts presented to any of the magistrates to establish reasonable cause for the issuance of any of the warrants. We find there was probable cause established to search appellant’s home, trailer, and vehicles. The affidavit attached to each search warrant was identical. They each established the remains were about three weeks old, had been identified as Lou Alice Brenk, appellant had told several people he wished to kill his wife during the past two years, and appellant had been telling different stories about Lou Alice’s whereabouts for approximately the time period from which the body part was found to the present. Appellant had also said that he “wanted to throw his wife over the bridge” and that she was so heavy and big he needed help to “get her down to a size so he could handle.”

The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the [judge] had a “substantial basis for . . . concluding]” that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 238-39 (1983). Clearly, a crime was committed and it is logical that if appellant killed his wife, cut her up, put her torso in a cooler filled with cement and tossed it into the lake, evidence of this crime would probably be found where he was living, on property he owned, and in the vehicles he drove. This certainly is a substantial basis for concluding there was probable cause to issue a search warrant for appellant’s home, property, and vehicles.

Appellant also contends the warrants are invalid because they fail to indicate a specific time the criminal activity took place. The affidavit does indicate that the torso was found August 23,1990, and had been exposed to postmortem decomposition for a period of time not exceeding three (3) weeks. We think this is a sufficient indication of the time when the crime was committed.

Appellant’s only challenge to the search warrant issued by Judge Jim Short on September 11, 1990, was that the affidavit failed to establish probable cause, failed to establish the time during which the criminal activity occurred, and failed to establish that evidence of the crime would be found in appellant’s white frame house in Salem, Arkansas. As we have discussed above, the affidavit attached to the warrant was sufficient to establish probable cause, establish the time during which the criminal activity occurred, and establish that evidence of the crime would likely be found in appellant’s house.

Appellant contends the warrant issued by Judge Bearden on September 11, 1990, was invalid because Judge Bearden was a Municipal Judge of Marion County without a written exchange agreement pursuant to Ark. Code Ann. § 16-17-206 (Supp. 1991) valid in Baxter County and, therefore, had no jurisdiction to issue a search warrant in Baxter County. Appellant’s construction would have us limit the ability of a judge to issue a warrant to affect only property in the county in which the judge has jurisdiction. Section 16-17-206 is not applicable. The statute which controls a judicial officer’s ability to issue a search warrant is Ark. Code Ann. § 16-82-201 (1987). It provides in pertinent part: “A search warrant may be issued by any judicial officer of this state only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance.” Ark. Code Ann. § 16-82-201(a). The applicable statute does not give any indication that the jurisdiction of a judicial officer in issuing search warrants is limited to the county in which the judicial officer was elected or appointed. In fact, it expressly provides that a search warrant may be issued by any judicial officer. We refuse to find that judicial officers are limited to issuing search warrants only in the counties in which they were elected or appointed and, therefore, find that the search warrant issued by Judge Bearden was valid.

Appellant next contends that the evidence seized as a result of the search warrant issued by Judge Crain on October 8, 1990, should be excluded because the warrant did not authorize a nighttime search and a nighttime search was conducted. Appellant is correct that the search warrant executed by Judge Crain did not authorize a nighttime search. However, we have said that as long as a search is begun before 8:00 p.m. and is concluded as soon thereafter as feasible, the search does not violate the ban against nighttime searches. Brothers v. State, 261 Ark. 64, 546 S.W.2d 715 (1977). This search was initially begun on October 8, 1990, at 5:15 p.m. and terminated at 8:00 p.m. The warrant was extended by Judge Crain to October 9, 1990, and a search was begun at 3:15 p.m. until 5:15 p.m., a break was taken and the search recommenced at 8:00 p.m. and lasted until 9:50 p.m. This does not violate our prohibition against nighttime searches. The original search on October 9, 1990, was begun at 3:15 p.m. and the additional search was commenced at 8:00 p.m. This was a continuation of the earlier search, it was not a new search. Since the initial search on October 9,1990, was begun before 8:00 p.m. and ended as soon thereafter as feasible, 9:50 p.m., the ban against nighttime searches was not violated.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION IN LIMINE TO EXCLUDE TESTIMONY CONCERNING VARIOUS LUMINOL TEST RESULTS

Appellant claims it was error for the trial court to admit the results of luminol testing under the relevancy approach of the Uniform Rules of Evidence we adopted in Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991). This relevancy approach was expressly adopted by this court after the conclusion of appellant’s trial. The trial court denied appellant’s pretrial motion to exclude the results of the luminol testing done by the state’s expert witness, Donald Smith, finding it admissible under the Frye standard as a scientifically recognized test for a number of years. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). While the evidence may well be admissible under the Frye standard, “ [t] his court has never adopted the Frye standard even though we signaled it as ‘see’ in a per curiam opinion. See Dumond, v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).” Prater, 307 Ark. 180, 185, 820 S.W.2d 429, 431. Instead, we recently adopted the more liberal standard based upon the relevancy approach of the Uniform Rules of Evidence. Id.

Under Prater, the trial court is required to

conduct a preliminary inquiry which must focus on (1) the reliability of the novel process used to generate the evidence, (2) the possibility that admitting the evidence would overwhelm, confuse or mislead the jury, and (3) the connection between the novel process evidence to be offered and the disputed factual issues in the particular case. [Citation omitted.]
Under this relevancy approach, reliability is the critical element. . . . The relevancy approach, unlike the Frye standard, permits, but does not require, a referendum by the relevant scientific community to determine the reliability of the technique. Many times that factor alone will determine the issue. On the other hand, courts may look to a number of other factors which bear upon reliability. These include the novelty of the new technique, its relationship to more established modes of scientific analysis, the existence of specialized literature dealing with the technique, the qualifications and professional stature of expert witnesses, and the non-judicial uses to which the scientific techniques are put. [Citation omitted.]
The frequency of erroneous results produced by a novel scientific technique is an important component of reliability. . . .
... [as is] proof of the use of the correct protocol during the specific test.
After assessing the reliability of the evidence, the trial court must also weigh any danger that the evidence might confuse or mislead the jury. . . .
This Rule 702 determination of whether the evidence might confuse or mislead the jury is separate from a Rule 403 weighing. Under the relevancy approach, the proponent of the evidence must first prove that it is reliable and will not confuse or mislead the jury. If the court rules that it is admissible under Rule 702, the opponent of the evidence might then object to it on the basis that its probative value is outweighed by unfair prejudice, or it is a waste of time, or it is needless presentation of cumulative evidence. A.R.E. Rule 403.
The third general consideration under the Rule 702 relevancy analysis is whether the proposed expert testimony is sufficiently tied to the facts of the case to aid the trier of fact in resolving the dispute. The proponent of the evidence must show the trial court precisely how the expert’s testimony is relevant and helpful to the case. Failure to make this proof is a sufficient ground to exclude the evidence.

Prater, 307 Ark. at 186-190, 820 S.W.2d at 431-34.

We have not previously decided whether the results of luminol testing can be admitted at trial. The issue was raised in Larimore v. State, 309 Ark. 414, 833 S.W.2d 362 (1992), but we did not address it because we could not determine from the briefs which part of the luminol testing had been admitted at trial or why this was alleged to be error. The issue has been sufficiently presented to us in the instant case for our consideration.

Luminol testing was done of appellant’s trailer, his car, his van, and the block building behind his trailer. The luminol testing was conducted by Donald Smith, criminalist for the Arkansas State Crime Lab. Appellant filed a motion in limine to prohibit introduction of the results of the luminol testing. This motion was denied and appellant renewed his objection to this evidence at the time it was admitted. Several photographs showing the results of the tests on these areas were admitted at trial and Mr. Smith testified in detail about the results of the luminol tests he conducted, indicating on drawings of the building, trailer and car where he obtained positive reactions.

We find the admission of this evidence was error. As the state’s witness, Donald Smith, and appellant’s witness at the hearing on the motion in limine, Robert Briner, both testified, and as appellee concedes in its brief, luminol is only a preliminary test which indicates the possible presence of blood. Evidence presented at the hearing on the motion in limine established that luminol testing is unable to indicate the definite presence of blood, much less determine whether any possible blood present is human or animal. Luminol testing is done by spraying a luminol reagent on the item or in the area to be tested. Luminol reacts with certain metals and vegetable matter as well as blood, animal and human to give off a light blue luminesce similar to a luminescent watch dial. It is impossible to tell without follow up testing which of the possible reactants is causing the reaction. Further testing is necessary to determine whether what caused the reaction is actually blood and whether, if blood, it is animal or human blood. Luminol testing, without any additional testing, is unreliable to indicate the presence of human blood. Additionally, luminol is not time specific. That is, a reaction will occur even many years after a reacting substance has been in place, so it is impossible to tell how long the substance that is causing the reaction has been in place.

In this case, very little additional testing was done to determine whether the substances causing the luminol reaction were human blood since a minute amount of blood was actually found. The only samples which could be found and which tested positive for human blood consisted of a small speck of blood found on the back of a kitchen drawer, and an area of blood about one millimeter square found on the inside of one of appellant’s pairs of jeans. The blood samples were so small that the testing could only establish that the sample tested was human blood and could not establish the blood type of the samples or connect the samples in any way with the victim, Lou Alice Brenk, or appellant. A bedsheet found in the bedroom of appellant’s trailer tested positive for the presence of blood, but the results of the test used to establish whether blood is human were negative. Given the lack of follow-up testing, the results of the luminol test, which are presumptive only, had no probative value and did nothing to establish the likelihood of the presence of Lou Alice Brenk’s blood, or even human blood, in the trailer, the block building, appellant’s car, or on any of the other items tested where followup testing was not able to confirm the presence of human blood, much less blood of the same blood type as Lou Alice Brenk. State v. Moody, 573 A.2d 716 (Conn. 1990). Since we have determined that luminol tests done without follow-up procedures are unreliable to prove the presence of human blood or that the substance causing the reaction was related to the alleged crime, we find it was error for the trial court to admit the evidence of luminol testing done by Mr. Smith where there was no follow-up testing done to establish that the substance causing the luminol reaction was, in fact, human blood related to the alleged crime. See Moody, 573 A.2d 716 (Conn. 1990); see also Lee v. State, 545 N.E.2d 1085 (Ind. 1989); cf. Commonwealth v. Yesilciman, 550 N.E.2d 378 (Mass. 1990).

Additionally Don Smith was allowed to testify that in his opinion the results of the luminol testing were caused by blood, the luminol pictures and testimony by Mr. Smith gave the impression of a bloodbath and cleanup occurring in the trailer and block building behind the trailer that was highly prejudicial. Mr. Smith testified that although he was not aware of any literature dealing with establishing the substance causing the luminol to react based on the type of reaction, he felt he was able to do so. There is no indication in the record that personal observation of the results of the luminol testing is a reliable or accepted way to establish that the reaction was caused by blood and not one of the other substances which react with luminol. We think it was error to allow the photos into evidence and to allow Mr. Smith to testify about the other areas where reactions occurred, but photos were not introduced, and to allow Mr. Smith to testify that he thought that the reactions indicated the presence of blood without adequate follow-up testing having been done to establish that what caused the reactions was, in fact, blood. This was likely to be misleading and confusing to the jury such that even the cross-examination establishing that what caused the reaction in the photos and the areas where no photos were introduced was only possibly blood cannot cure the prejudice that certainly resulted.

THE TRIAL COURT ERRED BY ALLOWING THE PROSECUTOR TO MAKE IMPROPER REMARKS IN HIS CLOSING STATEMENT REGARDING THE DEFENDANT’S BURDEN OF PROOF

The trial court has a wide latitude of discretion in controlling the argument of counsel. Powell v. State, 270 Ark. 236, 605 S.W.2d 2 (1980). Appellant argued in closing that the identification method used by the state to determine the torso found in the cooler was that of Lou Alice Brenk was unreliable. It was not an abuse of discretion for the trial court to allow the prosecutor to argue, in reply, that appellant had the opportunity, not the obligation, to get an expert to dispute the findings of the state’s expert.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO EXCLUDE TESTIMONY OF JACKIE BRENK

Appellant made a pre-trial motion to exclude the testimony of his ex-wife, Jackie Brenk, who had divorced him in 1985. The trial court allowed her to testify. At trial, Jackie Brenk testified that appellant had threatened her when they were married, had tried to kill her, and had told her he would kill her, cut her body to pieces, and scatter the pieces from Mammoth Springs, Arkansas, to Louisiana so that no one would ever find her. Jackie Brenk testified appellant threatened her several times in the late 1970’s and early 1980’s. Appellant argues this testimony should have been excluded because it was evidence of prior bad acts of the defendant and did not fall under Ark. R. Evid. 404(b). While appellant’s threats against his ex-wife are undoubtedly “prior bad acts,” they are admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Given the similarity of the circumstances of Lou Alice Brenk’s death and the specific threats made by appellant to Jackie Brenk, although several years earlier, these threats were admissible to show appellant’s “intent, plan, and identity.” See Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert denied, 484 U.S. 872 (1987); Lee v. State, 545 N.E.2d 1085 (Ind. 1989).

THE TRIAL COURT ERRED IN DENYING APPELLANT’S OBJECTION TO THE TESTIMONY OF KATHLEEN EATON

Appellant next contends that testimony by Kathleen Eaton that she saw Lou Alice Brenk come into the post office “beat up” should also have been excluded as a prior act of misconduct. Kathleen Eaton did not testify that appellant had beaten Lou Alice. Ms. Eaton simply testified that she knew there was trouble between Lou Alice and Herbert Brenk and that one day Lou Alice came into the post office and she was “beat up.” Ms. Eaton’s testimony does not imply that appellant caused Lou Alice to be beaten, therefore it is not excludable as a prior bad act under Ark. R. Evid. 404(b) as appellant contends. Also, several other witnesses testified, without objection, that they had observed Lou Alice Brenk with bruises and black eyes. Since essentially the same evidence was admitted without objection, any potential error in allowing Ms. Eaton to testify to essentially the same facts was harmless. Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).

THE TRIAL COURT ERRED IN DENYING APPELLANT’S OBJECTION TO HEARSAY EVIDENCE

Appellant contends it was error for the trial court to allow Dr. Rose to testify as to what his colleagues said regarding the number of points needed for an identification because it is hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Ark. R. Evid. 801(c) (1987). The alleged hearsay appellant objects to occurred when Dr. Rose was asked “[w]hy did you pick 14 as a point of identification?” Dr. Rose’s response was:

Well, colleagues that do the same kind of work in forensic osteology, one in discussing techniques said that he liked —
One colleague says that he likes to have eight points similarity, another colleagues [sic] says 10 points similarity. I myself have never developed a magic, sort of magic, number, if you will. But I always make sure that you see these two previous numbers that I’ve been told my colleagues use, and these are major anatomical features, all 14 of these are. These are very large portions of the bone. And it was at that point that I was satisfied.

As is clear from the question and Dr. Rose’s answer, Dr. Rose was simply explaining why he used 14 identification points and not that his other colleagues actually use eight (8) or ten (10) identification points. See Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Since this testimony was not hearsay, it was not inadmissible hearsay as appellant claims.

THE TRIAL COURT ERRED IN FAILING TO EXCLUDE TESTIMONY OF TWO SURPRISE WITNESSES

Appellant objects to the introduction of the testimony of two witnesses, William Lemmons and Ted Ullman, both of whom were incarcerated with appellant and who testified about incriminating statements made by appellant while he was in jail awaiting trial. These witnesses came forward during the trial and the trial court granted a five-day continuance for the defense to interview the newly discovered witnesses. Appellant claims the testimony of these witnesses should not have been allowed because appellant had based his entire case around the fact that no confession existed and was not able to prepare for this testimony or restructure his case. Since a new trial has been granted on other grounds, this argument is moot. Appellant will have had plenty of time to restructure his case for a new trial and to change his defense, if necessary, before his new trial begins.

THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE COMPARISONS OF A LOST X-RAY

Appellant contends that Dr. Rose should not have been allowed to testify regarding the use of an original X-ray of Lou Alice Brenk which he used to make comparisons to the torso in order to make an identification. The original X-ray was lost, but Dr. Rose had made slides of the original which were used at trial. The following exchange occurred at trial:

[PROSECUTION]: For the record, Your Honor, the defense having rested, I would, at this point raise the issue with respect to earlier objections about the issues related to the X-rays and the evidence that was introduced through Dr. Rose. There were certain objections made that were based on the apparent misplacing of the one original X-ray after the identification process by Dr. Rose. Part of Wednesday’s delay in the proceedings was to make sure that the defense, which were furnished with Dr. Rose’s slides at the conclusion of the testimony on Tuesday, had an opportunity to submit those slides to Dr. Kearns, their identified expert, and have him review those slides and make a determination, based on that, as to whether to have him testify as an expert, and any issues that he would see in that. I would note that defense has now rested, and they’ve chosen not to call Dr. Kearns. Furthermore, I would note for the record that I have called Dr. Kearns and received, through him, his stated opinion that the examination by Dr. Rose and Ms. Murray appeared to him valid and well based from the evidence, that the slides were clear and gave an adequate basis for a determination of the identification that they made. That he saw no points of disagreement with their findings, and that he said, of course, he would like to have seen the original X-ray, but it was not necessary, in any sense, to reach the conclusion that Dr. Rose and Ms. Murray reached. Furthermore, he said that he thought that the original X-ray would have only provided him a better basis to confirm the identification, and would not have been, in any way, helpful to challenge the identification made by Dr. Rose and Dr. [sic] Murray. I think that’s a fair and accurate summary of Dr. Kearns’s statement to me, and in the absence of him being called as a defense witness, I would submit that the issues raised initially by the defense with regard to questions about the X-rays, the one missing X-ray and the use of the slides, I think have been effectively withdrawn. If there is still a significant question on the defense’s part, I would submit that we jointly subpoena Dr. Kearns and let him address the evidence in testimony.
THE COURT: Says the defense?
[DEFENSE]: Your Honor, part of what [the prosecution] said is true. To my knowledge, Dr. Kearns would not, he didn’t say could not, dispute the findings of Dr. Rose and Ms. Murray. We were told that he would like to see the original X-rays and he would make an opinion. He didn’t know if it would make any difference if he did see the original X-rays.
THE COURT: If the defense intends, for purposes of an appeal, to pursue the issue about the X-ray not being presented and about you not being able to prepare an adequate defense, then I want Dr. Kearns to come testify in this case. Apparently [the prosecution] understood Dr. Kearns one way, and you’re suggesting that you understood Dr. Kearns another way.
[DEFENSE]: I believe what [the prosecution] said is basically what I got, just more elaborate. I don’t know. It could have been a longer conversation.
THE COURT: If there’s any substantial dispute or objection being made, then I think it would be appropriate to try to get Dr. Kearns here first thing Monday morning. I’m going to leave it up to defense. What’s your response? Do you want Dr. Kearns here on Monday?
[DEFENSE]: No, we don’t.

Appellant waived his right to object to the loss of the original X-ray by not calling Dr. Kearns, or anyone else, to testify that the original was necessary for identification or that Dr. Rose and Ms. Murray’s identification could not be disputed without the original.

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S OBJECTION TO HEARSAY TESTIMONY BY LOY CHESHIRE

Appellant contends it was error for the trial court to allow Loy Cheshire to testify that Lou Alice Brenk was crying and when he asked her “Lou, what’s the matter, Honey?” she had said to him “ [h] e’s going to kill me, Dink.” The trial court allowed this as a present sense impression showing Lou Alice’s fear. Trial courts have a wide latitude of discretion in the admission of evidence. We do not reverse absent an abuse of that discretion. We do not find that the trial court abused its discretion in this instance. This statement falls under Ark. R. Evid. 803(3), which states:

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

CONCLUSION

We find the trial court erred in admitting the results of the luminol testing done by Donald Smith in the absence of follow-up testing to confirm the substances causing the reaction were human blood related to the victim or the crime. On all other grounds, we affirm. Therefore, we reverse and remand for proceedings consistent with this opinion.

Hays and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. I would affirm the conviction and judgment.

I am not willing at this juncture to exclude luminol testing as irrelevant in every instance where the presence of human blood is not confirmed. That is what the majority opinion does. I believe that the test is probative as a preliminary screen for the presence of blood, which is exactly what it was used for in this case.

No one contends that luminol testing is conclusive for human blood or that it does not show positive for other substances and even some metals. But these points were explored on cross-examination by defense counsel and argued to the jury. Thus, it becomes a matter of what weight to accord the test rather than its admissibility. Commonwealth v. Yesilciman, 406 Mass. 736, 550 N.E.2d 378 (1990).

The Massachusetts Supreme Judicial Court addressed this point in Yesilciman. In that case, it could not be determined whether occult blood found in the defendant’s car and on his clothing was human or animal; nor could the age of the blood be ascertained. The court observed that evidence is not rendered prejudicial merely because it is inconclusive. The court further pointed out that the defendant’s counsel had extensively argued the speculativeness of the testing. It then concluded that the weight to be given the test was a matter for the jury.

So should it be in this case. I would affirm the admission of this evidence and let the jury assess its value.

Hays, J., joins.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Ricky FRANKLIN v. STATE of Arkansas
    CR 92-685
    845 S.W.2d 525
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993

      Beverly C. Claunch, for appellant.

      Winston Bryant, Att’y Gen., by; Catherine Templeton, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Ricky Franklin, was charged with thirty-two (32) counts of burglary (Class B felonies), two (2) counts of theft of property (Class C felonies), and twenty-two (22) counts of theft of property (Class A misdemeanors), in Cleburne County in connection with three series of burglaries occurring in that county in December 1990, February 1991, and July 1-2, 1991. A jury trial was held on February 27, February 28, and March 2, 1992. At the trial, a directed verdict was granted on twenty-seven (27) of the counts, including all the charges concerning burglary and theft of property alleged to have occurred in December and February and one of the burglary charges alleged to have occurred in July. The remaining twenty-eight (28) charges, sixteen (16) counts of burglary (Class B felonies), two (2) counts of theft of property (Class C felonies), and ten (10) counts of theft of property (Class A misdemeanors), were submitted to the jury, which found appellant guilty on all charges. Appellant was sentenced to twenty years and a $10,000.00 fine on each Class B felony, ten years and a $5,000.00 fine on each Class C felony, and one year and a $1,000.00 fine on each Class A misdemeanor. The court ruled that the sentences on the sixteen (16) burglaries (Class B felonies) would run consecutively and the sentences on the theft of property charges would run concurrently with the sentences on the burglary charges, resulting in a sentence of three hundred and twenty (320) years in the Arkansas Department of Correction. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(b) (1987).

On appeal, appellant argues the evidence was insufficient to support the verdict for five (5) of the charges, there was insufficient corroboration of accomplice testimony to support the verdict as to all the charges, and a sentence of three hundred and twenty (320) years constitutes cruel and unusual punishment and is disproportionate to the crimes of which appellant was convicted.

THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE RELATING TO THE BURGLARY AND THEFT OF PROPERTY OF GLENDA TURLEY PRINTS, THE BURGLARY OF SYNERGY GAS, THE BURGLARY OF SHEAR PERFECTION, AND THE BURGLARY OF J & B TIRE DO NOT SUPPORT THE JURY VERDICT BECAUSE THERE WAS NO EVIDENCE TO SHOW COMMISSION OF A CRIME OR TO CONNECT APPELLANT TO COMMISSION OF A CRIME AT THESE LOCATIONS.

Appellant claims there was insufficient evidence to prove commission of a crime at Glenda Turley Prints, Synergy Gas, Shear Perfection, or J & B Tire or to connect him to commission of a crime at Glenda Turley Prints, Synergy Gas, Shear Perfection, or J & B Tire. In reviewing the sufficiency of the evidence on appeal, this court looks at the evidence in the light most favorable to the appellee and affirms the judgment if there is any substantial evidence to support the jury’s verdict. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In determining whether there is substantial evidence to support the jury’s verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). Testimony regarding other charges, which were charged in the same information, may be considered especially if the offenses were all part of a common scheme or plan and were ultimately part of the same transaction. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980).

“A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.” Ark. Code Ann. § 5-39-201 (1987). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a) (Supp. 1991).

The following evidence was introduced a trial and is relevant to all five counts. A statement of one of the alleged accomplices, Jimmy Mayfield, was admitted at trial. In the statement, Mr. Mayfield said he, Rick Franklin, and Carl Rader broke into “the bowling alley, a row of businesses by the bowling alley, a catfish place where we got something to eat, and the electric company where we peeled the safe.” Mr. Mayfield testified that he stole a Remington microscreen razor from one of the businesses and a sword letter opener from another. Mr. Mayfield and Mr. Rader both testified at trial that they committed a series of burglaries and thefts with appellant on July 1-2, 1991. They both testified appellant put the items they stole and the things they used in the burglaries on July 2, 1991, in the ceiling of their motel room, Room 20, at the Arkansas Inn, when they realized the police were outside. Officer Baugh testified that appellant, Brenda Franklin, Mr. Mayfield, and Mr. Rader were picked up at Room 20 of the Arkansas Inn and questioned on July 2,1991. Mr. Mayfield and Mr. Rader testified they went back to the Arkansas Inn with appellant on July 11, 1991, to retrieve the items they had left in the ceiling. They testified they tried to get in through the window, but someone was staying in the room and scared them off. Butch Wilson testified he was staying in Room 20 at the Arkansas Inn on July 11 when he was awakened by someone tampering with the window. Mr. Wilson got up and pulled back the curtain, he said he saw three men in masks at the window and they ran off when they saw him. Mr. Wilson called the motel manager and the police. The police searched the room and found many items in the ceiling, including tools, masks, gloves, a pair of tennis shoes, and several items taken from the businesses burglarized on July 2, 1991, including a Remington microscreen razor and a sword letter opener. On July 16, 1991, Mr. Mayfield and Mr. Rader were arrested trying to rent a room at the Arkansas Inn. Mr. Mayfield testified that they had come back to the Arkansas Inn, at appellant’s direction, to recover the items left in Room 20. Both Mr. Mayfield and Mr. Rader identified items recovered from the ceiling as items used in the burglaries and thefts they committed with appellant. Additionally, Randy Sherrill, who was in a jail cell with appellant, testified that appellant told him he had committed a string of burglaries on Highway 25 North.

Appellant contends there is insufficient evidence to prove commission of a crime at Glenda Turley Prints, burglary and theft, or to connect appellant to commission of a crime, burglary and theft, at Glenda Turley Prints. In addition to the evidence that is relevant to all charges, Shannon King of Glenda Turley Prints testified that on the morning of July 2, 1991, the change drawer was missing from its usual location and was found in the employee break room with about twenty dollars missing. She also testified that Glenda Turley Prints was located in the immediate area of other businesses that had been burglarized the same night. This constitutes substantial evidence from which the jury could have determined Glenda Turley Prints was the victim of burglary and theft on July 2, 1991, and appellant was one of the perpetrators.

Appellant next contends there was insufficient evidence to prove commission of a crime, burglary, at Synergy Gas or to connect him to commission of a crime, burglary, at Synergy Gas. In addition to the evidence that is relevant to all charges, Jackie Huff, branch manager for Synergy Gas, testified that on July 2, 1991, his branch at 1130 Highway 25 North was broken into, a safe at that location was “damaged to the point of no repair,” and the business was ransacked, but no money was taken. There was also evidence that a string of businesses on Highway 25 were all the victims of burglary or theft, or both, discovered on July 2, 1991. This constitutes substantial evidence from which the jury could have concluded a burglary occurred at Synergy Gas and appellant was one of the perpetrators.

Appellant claims there is no evidence a crime, burglary, was committed at Shear Perfection or that he was involved in a crime, burglary, committed at Shear Perfection. In addition to the evidence relevant to all charges, Mr. Hipps, the owner of the building where Shear Perfection is located, testified that the door to Shear Perfection was open and it had pry marks on it on the morning of July 2, 1991, but he didn’t know if anything was taken. Mr. Hipps also owns the Carpet Barn which is located in the same building as Sheer Perfection. The door to the Carpet Barn was also pried open and there were some rolls of coins taken from the Carpet Barn. This constitutes substantial evidence from which the jury could have concluded a burglary occurred at Shear Perfection and appellant was one of the perpetrators.

Appellant contends there is no evidence a crime, burglary, was committed at J & B Tire and there was no evidence to link appellant with any crime, burglary, occurring at J & B Tire. In addition to the evidence that is relevant to all charges, Tim Rockwell, who works at J & B Tire, testified that on July 2,1991, there were signs of forced entry into the building and the cash register drawer had been tampered with, but nothing had apparently been taken. This is sufficient to establish a burglary had taken place and appellant was a perpetrator.

THERE IS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT BECAUSE THERE WAS INSUFFICIENT CORROBORATION OF THE TESTIMONY OF THE ACCOMPLICES.

The testimony of an accomplice, standing alone is insufficient to support a felony conviction. Ark. Code Ann. § 16-89-111 (e) (1987); Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). Accomplice testimony must be corroborated by other evidence tending to connect the defendant with the commission of the offense. Id. The corroborating evidence must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). But, the corroboration need not be substantial enough in and of itself to sustain a conviction. Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983). The corroborating evidence may be circumstantial, as long as it is substantial. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Also, when the testimony of an accomplice is corroborated as to particular material facts, the factfinder can infer the accomplice spoke the truth as to all. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245, cert. denied, 105 S. Ct. 162 (1984); Olles & Anderson v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).

Here, there was corroborating evidence in that the items stolen from the businesses were found in the motel room. Mr. Wilson corroborated Mr. Mayfield’s account of the July 11, 1991, attempt to retrieve the items hidden in the ceiling of Room 20 at the Arkansas Inn. Mr. Mayfield testified he stole a Remington microscreen razor at one of the businesses. Mr. Logan testified an electric razor was taken from his business, Logan’s Builders Supply, and identified the razor recovered from the motel ceiling as the one taken from Logan’s Builders Supply. Mr. Mayfield testified they ate at one of the businesses and, William R. Brown, Jr., owner-manager of Mr. B’s Catfish, testified that on July 2, 1991, he discovered someone had broken into his restaurant during the night and had made food on the grill and taken money from the cash register and a purse left in the restaurant. This corroborating evidence is sufficient to allow the jury to believe all of Mr. Mayfield’s testimony.

Evidence other than accomplice testimony also establishes crimes were committed and connects appellant to the crimes. The business owners and employees of the various businesses testified that on the morning of July 2, 1991, they discovered that their businesses had been broken into and, in most instances, items taken. Randy Sherrill testified appellant admitting having committed the crimes. Appellant was detained and questioned on July 2, 1991, leaving the room where the items used in commission of the crimes and items taken from the businesses were found in the ceiling.

APPELLANT’S SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AND IS DISPROPORTIONATE TO THE CRIMES OF WHICH HE WAS CONVICTED.

Appellant did not preserve this issue for appeal. At the sentencing, appellant said: “defendant would request that the sentences be imposed concurrently. We feel like those sentences are excessive, given the proof in the case.” This was prior to the court deciding whether the sentences should be served concurrently or consecutively. No objection was made to the court’s ruling that some of the sentences should be served consecutively, resulting in a total sentence of 320 years. Nor was the court apprised that appellant considered imposition of a sentence of 320 years for conviction of 28 charges of burglary and theft of property cruel and unusual punishment. We do not consider arguments raised for the first time on appeal. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990).

Affirmed.


text:
    Johnny Lewis THOMAS v. STATE of Arkansas
    CR 92-871
    846 S.W.2d 168
    Supreme Court of Arkansas
    Opinion delivered January 25, 1993

      Daniel D. Becker and Terri L. Harris, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Johnny Lewis Thomas, appeals a judgment of the Garland Circuit Court convicting him of rape and kidnapping. Appellant was sentenced to life in prison on the rape charge and forty years on the kidnapping charge. As his sole point for reversal of the judgment, he contends the trial court erred in denying his motion for directed verdict on the kidnapping charge. We find no error and affirm.

At the close of the state’s case, appellant moved for a directed verdict on the kidnapping charge arguing there was insufficient evidence that appellant deprived the victim of more of her liberty than was necessary for him to commit the rape. Appellant emphasized the fact that the victim voluntarily entered his car. The trial court denied appellant’s motion concluding there was sufficient evidence indicating that the restraint on the victim’s liberty was greater than that which the state was obligated to prove on the rape charge. The trial court likewise denied appellant’s motion for directed verdict made at the close of all evidence.

We treat a challenge to the denial of a motion for directed verdict as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict; substantial evidence must be forceful enough to compel a conclusion one way or the other beyond mere suspicion and conjecture. Id. On appellate review, it is only necessary for us to ascertain that evidence which is most favorable to appellee and, if there is substantial evidence to support the verdict, we affirm. Id.

As viewed most favorably to the state, the evidence reveals that at approximately 7:25 a.m. on October 14,1991, the fifteen-year-old victim was waiting at the bus stop for a ride to Hot Springs High School. As she was waiting, a car approached her. Appellant was driving the car. Appellant’s son, Robert Thomas, and appellant’s nephew, Melvin Newman, were passengers in the car. The victim knew Robert Thomas from school. The three men offered the victim a ride to school and the victim accepted. The victim then voluntarily joined Melvin Newman in the back seat of the car.

All three passengers testified that appellant was going to drive both Robert Thomas and the victim to school. However, appellant drove past the turn he should have made to reach the school. When the victim questioned appellant’s route to the school, he told her he was going the back way. Appellant then steered the car down a dirt road. All three passengers requested that appellant go to the school. Appellant ignored these requests. The victim began to cry because she was scared.

The victim stated there were no houses, only woods, around the dirt road. She was not sure of the length of the drive, but stated it could have been about ten minutes. She stated that when appellant was driving down the dirt road, she was scared and attempted to get out of the car. Appellant also told her he would kill her if she did not stop hitting and kicking him.

Appellant stopped the car and ordered his son and his nephew to get in the back seat. The victim got out of the car and was standing outside the front passenger door when appellant stripped her of her clothing. Appellant began kissing and fondling the victim while the two males were in the back seat of the car. Appellant then ordered them to leave because “he did not need an audience,” but to return to the car on his demand. Appellant then threatened the victim with a knife and raped her.

Appellant’s son and nephew corroborated the victim’s testimony. They both testified that Robert Thomas and the victim requested appellant to turn the car around and take them to school. Robert Thomas stated the victim was nervous and crying while riding down the dirt road. Both boys also testified they were either crying or almost crying during the incident.

In the present case, to prove kidnapping the state must show that appellant restrained the victim so as to interfere substantially with her liberty with the purpose of engaging in sexual contact. Ark. Code Ann. § 5-11-102(a)(4) (1987). We have interpreted this statute as requiring the restraint of the victim’s liberty to exceed that restraint which is normally incidental to the rape. Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988).

Appellant specifically contends the state failed to show that he restrained the victim in excess of the restraint that was incidental to the rape. He relies heavily on Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).

In Shaw, the victim agreed to attend a business dinner with Shaw and voluntarily entered Shaw’s car. Instead of going to dinner, Shaw drove to a liquor store. Under false pretense, Shaw then drove to a rural camp site where he threatened his victim with a gun and raped her on the tailgate of his truck. According to the Shaw majority opinion, it was not until Shaw pulled the gun on her that the victim revoked her consent to Shaw’s actions. Based on those facts, this court held there was no substantial interference with the victim’s liberty to warrant a separate conviction for kidnapping.

Shaw is not controlling of the present case because the facts, although somewhat similar, are distinguishable. It is true that both victims voluntarily entered their rapists’ automobiles. But this is where the similarity ends. In Shaw, the victim continued to consent to her rapist’s actions when he deviated from the agreed-upon destination. For example, when Shaw wanted to go to a liquor store instead of eating dinner, the victim consented. Again, when Shaw deviated from his plan of doing some work by driving to a rural camp site, the victim consented. However, unlike the victim in Shaw, the victim in the present case began to revoke her consent to her rapist’s actions as soon as it became apparent he was not driving her to school — the agreed-upon destination. Thus, from the point at which appellant missed the turn to the school, appellant restrained the victim. He kept her in the car while she was kicking and hitting him and pleading with him to take her to school. He drove her at least ten minutes from the City of Hot Springs to a wooded area and raped her there. We hold such actions resulted in more restraint of the victim than would be normally incidental to the rape.

In reaching our conclusion, we emphasize the fact that appellant continued to remove the victim from the point of their initial contact after she expressed a desire to be returned to the agreed-upon destination. Appellant did not rape the victim at the point of initial contact as was the case in Summerlin, 296 Ark. 347, 756 S.W.2d 908, nor at the point where the victim revoked her consent to appellant’s actions as was the case in Shaw, 304 Ark. 381, 802 S.W.2d 468.

The chancellor did not err in denying appellant’s motion for directed verdict on the kidnapping charge. The foregoing evidence is substantial and shows the restraint on the victim’s liberty to have exceeded that which was incidental to the rape.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

The judgment is affirmed.


author: Robert H. Dudley, Justice.

text:
    Tommy DIXON v. STATE of Arkansas
    CR 92-963
    846 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993
    [Rehearing denied March 8, 1993.]

      Henry & Mooney, by: Wayne Mooney, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The jury found appellant guilty of first degree murder. There was substantial circumstantial evidence to prove that he ran over his wife more than twice with his automobile, and there was no reversible trial error. Accordingly, we affirm the judgment of conviction.

The conviction was based upon circumstantial evidence. The appellant recognizes that circumstantial evidence can constitute substantial evidence, see Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989), but questions whether there was substantial evidence of his guilt, and, even if there was substantial evidence of his guilt, argues that it did not exclude every other reasonable hypothesis as is required in cases of circumstantial evidence. See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992). He contends that it is reasonable to hypothecate that Jackie Shempert was the murderer. As a result of the argument, we must set the evidence out in some detail.

Five days after the victim’s death, appellant gave the police a statement in which he said that on the night of his wife’s death he and his wife got into an argument while they were at the Starlight nightclub near Bondsville in Mississippi County. He said he was intoxicated, but drove their automobile as they left the nightclub. He drove the car only a short distance when his wife began scratching and clawing him. He said he had to hit her in the mouth and grab her hair to restrain her. He stated that he felt the car swerve as she jumped out of the car. He said he drove the car an additional seventy-five yards and then backed the car and found her beside the road.

Separate evidence established that appellant’s automobile was blue in color and that the victim was wearing a black sweater. Even though it was below freezing, the victim was not wearing a coat or shoes.

Herbert Ainsworth testified that at, or shortly after, midnight he was a passenger in John Murphy’s vehicle as they were driving in an easterly direction on their way to the Starlight club when he saw a dark colored car on the side of the road. The dark colored car was headed west, which was the direction appellant and the victim would have driven. After passing the dark colored car Ainsworth saw someone crawling beside the road. That person had on a black sweater and pants. He saw the dark colored car’s brake lights come on and then saw its back-up lights come on. He thought either a fight had occurred, or else the person crawling was drunk. He and Murphy decided to continue east to the club. While travelling to the club, Ainsworth saw a car driven by Jackie Shempert going in the opposite direction, or west.

John Murphy gave much the same testimony. He saw the person crawling beside the road and did not think that person was hurt. He saw the brake lights on the parked car and then saw its back-up lights come on. He testified that the dark colored car had bright back-up lights. He thought that the dark colored car might be backing up to pick up a drunk. They went to the club and returned a short time later.

Lori Hill testified that she and Jackie Shempert had been at the Starlight club and were in Shempert’s car on their way home. They were headed west. Lori Hill saw a body beside the road. Shempert immediately began to turn the car around, and, while doing so, a car driven by Archie Ohler approached. Ohler was in his lane headed east toward the Starlight club and stopped immediately. Lori Hill testified that Shempert and Ohler got out of the two vehicles, looked at the body, and Shempert said, “It’s Shelia Dixon,” and “Let’s go to my brother’s house and call 911 from there.” Hill testified that she and Shempert went to Shempert’s house and called the police.

Archie Ohler testified that he was on his way to the nightclub when he saw the victim’s body on the opposite side of the road. Her legs were in the roadway while the upper part of her body was off the road. He stopped and turned his car so that his headlights shined on the victim’s body.

Ohler testified that while he was maneuvering his car to get his car lights on the body, Shempert and Hill completed their turnaround and returned. He stated that they did not see any other vehicles. As Ohler and Shempert looked at the horribly battered body, appellant drove up, and ran over the victim’s leg. Ohler testified that appellant “seemed to come up out of nowhere.” Appellant, who was drunk, said someone had run over his wife.

Deputy Sheriff Jones testified that he responded to the call. When he arrived, the appellant was there and said that he and his wife had been arguing and that he let her out of the car, drove about one hundred yards, turned around, and came back to get her but found that someone had run over her. The victim’s shoes were found in appellant’s car, as well as a large amount of hair that appeared to be from her head. Stains that appeared to be blood were found in the front seat and on the right rear wheel and tire, the right rear quarter panel, and the right rear wheel well of appellant’s car. Fresh scratches were found on the lower part of the front bumper. The victim’s purse was found in the trunk of the car. It contained a letter to the appellant that stated she was suing him for divorce because, “This is hell on earth for me. I need out and away from you. Tommy, you’re too, too rough for me. . . .” The officers examined the other vehicles at the scene, but none of them showed any evidence that they had struck the victim. Shempert had left earlier to call the police, and his car was not there to be examined at the time. The police examined it two days later, and there was no evidence that it had struck the victim.

Dr. Violet Hnilica, the forensic pathologist from the Medical Examiner’s office, testified that the victim suffered multiple injuries in four different areas of her body and that the pattern of abrasions indicated the victim “had been run over probably more than twice.” Dr. Hnilica further testified that the victim’s injuries were inconsistent with falling out of a car.

The foregoing constitutes substantial evidence that the victim was killed by being run over more than twice by an automobile. Appellant had a motive and the opportunity to kill the victim. If the victim had intended to voluntarily get out of the car, it is unlikely that she would have gotten out barefooted and without a coat in the freezing cold weather. The hair and blood in the car is evidence of a violent struggle. If the victim had only fallen from the passenger side door, and appellant had only accidentally run over her, it would not have damaged the lower part of the front bumper. The testimony of Ainsworth and Martin is substantial circumstantial evidence that, at the time they saw the dark colored car, appellant applied his brakes and put his vehicle in reverse to back over the victim. Appellant’s vehicle is the only vehicle that showed evidence of running over the victim. All of the testimony taken together constitutes substantial circumstantial evidence of appellant’s guilt.

Appellant also contends it is reasonable to hypothecate that Shempert is the one who ran over the victim. The argument is without basis. Lori Hill’s testimony and the physical evidence that Shempert’s vehicle had not struck anyone negates such a hypothesis. Accordingly, we hold there is substantial evidence to support the conviction.

Appellant did not object to some photographs being admitted into evidence. He now argues that we should reverse and remand because the trial court erred in not excluding the photographs on its own motion. We summarily reject the argument because we have repeatedly said that we do not have the “plain error” rule in this State. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Appellant’s final argument is that the trial court erred in admitting into evidence the letter to the appellant that was found in the victim’s purse. The objection at trial was based only on relevancy. A trial court’s decision regarding relevancy is entitled to great weight and will be reversed only if the court abused its discretion. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). The trial court ruled the letter was relevant because it showed motive. Although the State is not required to prove motive, it may introduce evidence showing all of the circumstances that explain the act, illustrate the accused’s state of mind, or show a motive for the crime. Richmond v. State, 302 Ark. 498, 79 S.W.2d 691 (1990).

Affirmed.


text:
    Cathryn Chadwick YATES v. Floyd Andrew STURGIS and Vanessa Sturgis
    92-281
    846 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993
    [Rehearing denied April 19, 1993.]

      Howard C. Yates, for appellant.

      McMillan, Turner & McCorkle, by: F. Thomas Curry, for appellees.

      Hays, Glaze, and Corbin, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Cathryn Chadwick Yates, appellant, and Floyd and Vanessa Sturgis, appellees, own adjoining tracts of land inside the City of Arkadelphia. Appellant Yates alleges that part of her tract is landlocked, or, in other words, blocked from the nearest city street by the appellees’ tract. She filed a petition in the County Court of Clark County, pursuant to Ark. Code Ann. § 27-66-401 (1987), to establish a private road across appellees’ tract. The county court held that it was without jurisdiction to open a private road within the city limits and dismissed the petition. Appellant appealed to the circuit court. The circuit court affirmed the ruling of the county court and held that the City Council and the City Planning Commission were the sole authorities authorized to open streets within a city. We have taken jurisdiction of this case of first impression and reverse and remand.

Article 7, section 28 of the present Constitution of Arkansas, in the material part, provides: “The county courts shall have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries,. . . .” (Emphasis added.) Our earlier state constitutions also placed jurisdiction of county roads under the county court. See, e.g,, Ark. Const, of 1836, art. VI, § 9; Roberts v. Williams, 15 Ark. 43 (1854). In Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912), we said that the above-quoted provision in the current constitution gives the county court jurisdiction over all public roads in the county and that means the county court also has jurisdiction over streets within a city. We wrote: “The streets of a municipality are public roads of the county, of which the municipality is a component part. While streets do not include roads, yet roads do include streets.” Id. at 533, 146 S.W. at 107.

As implementing legislation to a prior constitution, the General Assembly, in 1871, provided that the county court may exercise the power of eminent domain to allow access to a landlocked tract. The statute, Ark. Code Ann. § 27-66-401 (1987), in the material part, provides:

When the lands ... of any owner [are] so situated as to render it necessary to have a private road from such lands . . . over the lands of any other person and the other person refuses to allow that owner the private road, then it shall be the duty of the county court ... [to determine whether such a private road is necessary and, if it is necessary, to exercise the power of eminent domain at the expense of the person seeking the road].

Throughout the years we have construed our present state constitution and the above-quoted statute to give the county court the power of eminent domain to allow access to landlocked tracts. See, e.g., Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W. 64 (1906). Before 1871, the precursor statute, Chapter 140, section 62 of The Digest of the Statutes of Arkansas of 1846, provided, “Any person desirous of having a wagon road laid out, for his convenience, from the dwelling house... of such person, to any public road . . . shall present a petition to the county court. . . .” Correspondingly, we held that this precursor statute, in implementation of the earlier constitutions, also authorized the county court to exercise the power of eminent domain to open roads to landlocked areas. Roberts v. Williams, 15 Ark. 43 (1854).

Article 2, section 23 of the state constitution provides, “The State’s ancient right of eminent domain ... is herein fully and expressly conceded,” and we have held that the procedure for exercising the power is a matter of legislative regulation. Cannon v. Felsenthal, 180 Ark. 1075, 24 S.W.2d 856 (1930). In sum, the General Assembly was within its province in authorizing the county court to exercise the power of eminent domain to give access to landlocked tracts, and it clearly did so in Ark. Code Ann. § 27-66-401 (1987).

At the same time, Article 12, section 3 empowers the General Assembly to provide for the organization of cities and towns, and the General Assembly may confer on cities and towns the power and supervision of streets within their boundaries. Sanderson v. Texarkana, 103 Ark. 529, 146 S.W. 105 (1912). The first legislature that assembled after the adoption of the present constitution enacted the statute codified as Ark. Code Ann. § 14-301-101 (1987), which provides that the city council shall: “(1) Have the care, supervision, and control of all the public highways, bridges, streets, alleys, public squares, and commons within the city; and (2) Cause those public highways, bridges, streets, alleys, public squares, and commons to be kept open and in repair, and free from nuisance.”

In this case both the county court and the circuit court held that Ark. Code Ann. § 14-301-101 (1987), quoted above, divested the county court of jurisdiction to open roadways to landlocked tracts located within city limits.

One of the chief objectives of incorporating a municipality is to give the executive and legislative branches of the municipality control and supervision over the streets within the municipal limits and to charge those branches of municipal government with the duty to plan and keep and maintain the streets in suitable and safe condition. Neither the constitution nor the applicable statutes contemplate both the county court and the municipality having the executive and legislative control and supervision over the streets within the city. Sanderson v. Texarkana. Clearly, the control and supervision of streets within the municipality is given to the executive and legislative branches of the municipality. No street within the city may be dedicated to the city until accepted and confirmed by a municipal ordinance specially passed for that purpose. Ark. Code Ann. § 14-301-102 (1987).

However, the statute giving the executive and legislative branches of the municipality supervision and control of the streets has not taken jurisdiction from the county court for three distinct reasons. First, the constitution gives jurisdiction to the county court. An act of the legislature could not change that jurisdiction. Second, no other court is given jurisdiction by the constitution to exercise the power of eminent domain in cases such as the one at bar. Under the trial court’s ruling a person inside the city would not have any judicial relief, while a person outside the city would. Neither the constitution nor the statutes contemplate such a denial of equal protection. Article 7, section 28 provides, “The county courts shall have exclusive original jurisdiction in all matters relating to county . . . roads. ...” (Emphasis added.) The applicable statute, Ark. Code Ann. § 27-66-401 (1987), gives the county court the power of eminent domain to crea te a road, “[w] hen the lands. . .of any owner is so situated.” (Emphasis added.) Neither the constitution nor the statute limit applicability of the proceeding to the unincorporated geographic area of the county. Third, there is no real conflict between the county court’s jurisdiction to exercise the power of eminent domain to give the owner of a landlocked tract a private roadway out of his land and a statute giving municipalities the control and supervision of city streets. Section 27-66-401 of the Arkansas Code Annotated of 1987 authorizes the county to establish a “private” road out of the landlocked tract, and, while it may be a public road in the sense that anyone who has occasion to use the road may do so, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), it is still a private road, and the individual who petitions county court for the establishment of a private road out of a landlocked tract is responsible for the maintenance of that private road. Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920). Quite differently, a city does not have to accept the control and supervision and concurrent cost of maintenance of a city street unless it chooses to do so. See Ark. Code Ann. § 14-301-102 (1987).

The circuit court also held that it would amount to a violation of the separation of powers doctrine to allow the county court to exercise jurisdiction within the city. We summarily dispose of the contention by reciting that the constitution gives the county “exclusive original jurisdiction” of county roads. In Road Improvement District No. 1 v. Glover, 89 Ark. 513, 117 S.W. 544 (1909), we clearly affirmed the plain language in the constitution relative to the exclusive jurisdiction of the county court over roads. There simply is no violation of the separation of powers doctrine.

The circuit court also held that the petition in this case amounted to an unconstitutional use of the power of eminent domain. While we have held to the contrary, Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983), we do not address the issue. The county court held that it did not have jurisdiction to hear the case, and the circuit court affirmed that holding. Therefore, the trial court never determined the merits of the use of the power of eminent domain, and we will not do so in an advisory capacity.

Reversed and remanded for proceedings consistent with opinion.

Glaze, Corbin, & Brown, JJ., dissent.

Robert L. Brown, Justice. The majority opinion holds that county judges can open roads within the city limits of an incorporated municipality without city permission or even city involvement. I disagree that that is the law.

There is no doubt that the 1874 Arkansas Constitution gave county courts exclusive original jurisdiction over county roads. Ark. Const, art. 7, § 28. In addition, four years prior to the adoption of the 1874 Constitution, the General Assembly enacted Act 26 of 1871, now codified as Ark. Code Ann. § 27-66-401 (1987), which provided that county courts could authorize private roads for landlocked persons to run over the lands of others in order to access public roads. Subsequent case law by this court, however, made it clear that Act 26, though referencing private roads, in actuality empowered county courts to establish public roads because anyone who had occasion to use the roads might do so. Dowling v. Erickson, 278 Ark. 142, 644 S.W.2d 264 (1983); Bowden v. Oates, 248 Ark. 577, 452 S.W.2d 831 (1970); McVay v. Stupenti, 227 Ark. 224, 297 S.W.2d 769 (1957); Pippin v. May, 78 Ark. 18, 93 S.W.2d 64 (1906).

One year after the adoption of the 1874 Constitution, the General Assembly enacted Act 1, which endowed the cities with authority to open streets within their boundaries. Act 1 of 1875, §§ 18 and 30, now codified as Ark. Code Ann. §§ 14-54-601 (1), 14-301-104 (1987). The exclusive power of the cities to open their streets has remained inviolate for over a century. Indeed, this Court long ago recognized the superior power of the cities to operate within their boundaries. See Sanderson v. Texarkana, 103 Ark. 529, 146 S.W.2d 105 (1912). The majority cites Sanderson for the proposition that city streets are public roads of the county. Carried to its logical conclusion, this means that county courts could assert exclusive jurisdiction over city streets at any time under Article 7, § 28. Such a conclusion would render horrendous results.

In Sanderson, we clarified the role of the city and the county with respect to public roads:

It is hardly to be supposed that it was the intention of any enactment, either of the Constitution or of the Legislature, to authorize two agencies with co-ordinate power to have control and supervision over the streets of a city when the effect might be to enable each to thwart the other and to play at cross purposes. And so the first Legislature that assembled after the adoption of the Constitution granted to municipal councils the power to lay out, open, establish, improve and keep in repair the streets within their corporate limits. Kirby’s Digest, § 5456. By virtue of the constitutional provision authorizing the organization of municipal corporations by the Legislature, and the immediate legislation had thereafter, the supervision over public highways or streets within cities and towns was confided to the authorities of the municipalities, and by the constitutional provisions of section 28, article 7, and legislative enactments thereunder, the jurisdiction over highways or the roads in the county outside of municipalities was confided to the county court. Both the streets in municipalities and the highways outside of them are public roads. . . .

103 Ark. at 534, 146 S.W.2d at 107. We thus stated that the Arkansas Constitution (and specifically Article 12, § 3) gave the General Assembly the authority to open public roads inside the city, and the county retained that authority in unincorporated areas. The jurisdictional lines appeared clear until this decision.

Now this Court has taken the position that county judges may open public roads within city limits under the authority of Act 26 of 1871 and Article 7, section 28, of the Arkansas Constitution. The majority concludes in this fashion in the face of the municipal street legislation enacted as part of Act 1 of 1875 under the authority of Article 12, § 3 of the Arkansas Constitution, and despite the fact that there has been no case in this court over the past one-hundred eighteen years where the county courts attempted to exercise such an extraordinary power.

The cases, and they are legion, have all concerned the opening of roads for landlocked persons in rural areas and unincorporated parts of the county. See Bean v. Nelson, 307 Ark. 24, 817 S.W.2d 415 (1991) [adjacent 40-acre tracts of land]; Attaway v. Davis, 288 Ark. 478, 707 S.W.2d 302 (1986) [12-acre tract]; Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983) [Mayflower School District]; Dowling v. Erickson, supra, [appellant’s land completely surrounded by appellee’s land]; Ahrins v. Harris, 250 Ark. 938, 468 S.W.2d 236 (1971) [7-acre and 172-acre tracts near Palarm Creek in Faulkner County]; Bowden v. Oates, supra, [land near county road in Pope County]; Riggs v. Bert, 245 Ark. 515, 432 S.W.2d 852 (1968) [best use of land for grazing cattle]; Armstrong v. Cook, 243 Ark. 230, 419 S.W.2d 308 (1967) [adjoining farm lands]; McVay v. Stupenti, supra, [lands along a drainage canal west of Marion]; White v. Grimmett, 223 Ark. 237, 265 S.W.2d 1 (1954) [outlying lands in Pulaski County]; St. Louis-San Francisco Ry. Co. v. Logue, 216 Ark. 64, 224 S.W. 2d 42 (1949) [property “near Fayetteville”]; Parrott v. Fullerton, 209 Ark. 1018, 193 S.W.2d 654 (1946) [two adjacent 40-acre tracts of land]; Roth v. Dale, 206 Ark. 735, 177 S.W.2d 179 (1944) [40-acre tracts]; Mohr v. Mayberry, 192 Ark. 324, 90 S.W.2d 963 (1936) [private road sought across 9-acre farm to connect 30-acre farm with Highway 27 near Mt. Ida]; Houston v. Hanby, 149 Ark. 486, 218 S.W. 838 (1921) [small farm in Madison County]; Carter v. Bates, 142 Ark. 417, 218 S.W. 838 (1920) [proposed road ran through field that was valuable for cultivation]; Pippin v. May, supra, [80 acres in St. Francis County]; see also Powell v. Miller, 30 Ark. App. 157, 785 S.W.2d 37 (1990) [25-acre tract ofland in Washington County]. Two additional cases give no indication of the character of the locale, but there is no suggestion in either decision that the road was authorized within city limits. Castleman v. Dumas, 279 Ark. 463, 652 S.W.2d 629 (1983); Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972).

The decision today has the potential for wreaking havoc on city planning. It most certainly opens the door to myriad requests to county courts for improved access within city limits. Ms. Yates’s remedy should lie with her city council — not the county judge.

I would affirm the circuit court and hold that the county courts are without jurisdiction to open public roads inside a municipality.

Glaze and Corbin, JJ., join.


author: Steele Hays, Justice.

text:
    Lee E. CATER v. Helen B. CATER
    92-485
    846 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered February 1, 1993

      Lyons & Emerson, by: Scott Emerson, for appellant.

      Reid, Burge, Prevailed & Coleman, for appellee.
   Steele Hays, Justice.

This is an appeal from a jury verdict which awarded Helen Cater compensatory damages in the amount of $20,000.00 and punitive damages of $350,000 as a result of a beating allegedly inflicted by her husband, Lee Cater, while their divorce action was pending. For reversal, Lee Cater contends that the trial court erred in refusing to grant his motions for summary judgment and for a directed verdict on the premise that Mrs. Cater is attempting to recover both in circuit court and in chancery court for the injuries she sustained. Mr. Cater also claims a new trial should be ordered because the jury acted with extreme passion and prejudice in its award. We find no error and affirm.

After nearly thirty years of marriage, Helen Cater filed suit for divorce on grounds of general indignities. She sought an equitable division of assets, alimony and attorney’s fees. While the divorce action was pending, she maintains that Mr. Cater, in violation of earlier restraining orders, accosted her at her home and beat her severely. As a result of the beating, Lee Cater was convicted of battery in the first degree, fined $10,000.00, and sentenced to five years in prison. That conviction was affirmed by the Arkansas Court of Appeals.

In addition to the divorce and criminal actions, Mrs. Cater filed this civil action in circuit court seeking compensatory and punitive damages for the torts of assault, battery, and outrage. She also amended her divorce complaint and asserted “cruel and barbarous treatment” as additional grounds for divorce. The divorce hearing was held and a decree was entered. The court awarded her attorney’s fees and directed that all of the marital and entirety property be sold, with the proceeds divided equally, after first surcharging Mr. Cater’s portion with the value of assets he had concealed or transferred while the divorce action was pending. Mrs. Cater has appealed the divorce decree, but has been unable to prosecute that appeal because Mr. Cater filed a Chapter 13 Bankruptcy petition. Motions to dismiss that petition filed by the trustee and by Mrs. Cater are pending.

Mr. Cater filed a motion for summary judgment in the present circuit court action based upon res judicata, collateral estoppel, the election of remedies doctrine and double recovery. He contended she was attempting to* recover twice for the alleged beating by pursuing claims for alimony and an inequitable distribution of the marital property in chancery court while pursuing damages in circuit court. The motions for summary judgment and for a directed verdict were denied.

The argument now raised is based on the theory that Mrs. Cater attempted to obtain a double recovery by seeking compensation in both the divorce action and the instant case. Procedurally, the denial of the motion for summary judgment is not an appealable order even after there has been a trial on the merits. See Sutter v. King, 310 Ark. 681, 839 S.W.2d 218 (1992); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Rick’s Pro Dive N’ Ski Shop, Inc. v. Jennings-Lemon, 304 Ark. 671, 803 S.W.2d 934 (1991).

Also, we have stated that a spouse having a cause of action in tort is not required to bring that action in the divorce case and can pursue the claim in circuit court. See Bruns v. Bruns, 290 Ark. 347, 719 S.W.2d 691 (1986); Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986).

Lee Cater also asserts that Helen Cater amended her divorce complaint after the beating and requested alimony and more than fifty percent of the parties’ property. However, this “Third Amended Complaint and Motion” was not abstracted or included in the record. Therefore, it is impossible for us to consider this contention.

A closer analysis of the facts reveals that Mrs. Cater did not attempt to recover twice for her injuries. Before either case was tried, she sought permission from the chancellor to prosecute her tort action for personal injuries in circuit court. Without objection from Mr. Cater, the chancellor entered an order stating that the chancery court would not take jurisdiction of the tort claims in order that she could pursue them in circuit court.

Also, Mrs. Cater made it clear before, during and after the trial of the divorce action that she was not attempting to litigate her tort claims in that suit and was not seeking any of the relief in the divorce case being sought in circuit court. For example, at the divorce hearing, she offered as evidence an updated list of medical expenses showing that she had incurred total medical expenses of $8,487.61. When opposing counsel objected, the chancellor inquired about Mrs. Cater continuing to pursue her separate tort claim. Her attorney stated on the record that the medical expenses were being offered only to show fault and that she was not asking for damages in the divorce action.

Even though Mrs. Cater did not try to recover medical expenses in the divorce case, the chancellor included a provision in the divorce decree requiring Mr. Cater to pay her medical bills not covered by medical insurance which were attributable to the beating. To prevent double recovery, the chancellor ruled the medical expenses would be disallowed if Mrs. Cater elected to pursue her claim for medical expenses in circuit court and she would not be barred by res judicata if she did so. Mrs. Cater went a step further by later filing a formal written pleading entitled “Request and Election to Pursue Claim for Medical Expenses in Circuit Court.”

Mr. Cater’s arguments regarding the doctrines of election of remedies, res judicata and collateral estoppel are without merit because they are not applicable to this case. The doctrine of election of remedies applies to remedies, not to causes of action. Henderson Methodist Church v. Sewer Improvement Dist., No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987). Simply, it bars more than one recovery on inconsistent remedies. There is no requirement that a plaintiff choose only one cause of action. Westark Specialties, Inc. v. Stouffer Family Ltd. Partnership, 310 Ark. 225, 836 S.W.2d 354 (1992); White v. Zini, 39 Ark. App. 83, 838 S.W.2d 370 (1992). This doctrine is not relevant here because the remedies sought in the two actions were entirely consistent; they did not arise out of a single cause of action; and there is no precedent which requires Helen Cater to choose between the divorce action or money damages.

The doctrines of res judicata and collateral estoppel likewise have no application. Res judicata or claim preclusion bars another action by plaintiffs or their privies against defendants or their privies on the same claim or cause of action where there has been a valid and final judgment rendered on the merits by a court of competent jurisdiction. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991); Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991). The doctrine bars not only the relitigation of claims which were actually litigated in the first suit, but those which could have been litigated. Toran v. Provident Life & Accident Co., 297 Ark. 415, 764 S.W.2d 40 (1989). Collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by the parties in the first suit. Robinson v. Buie, 307 Ark. 112, 817 S.W.2d 431 (1991). Moreover, res judicata and collateral estoppel are only applicable when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).

These doctrines are not available here because Helen Cater’s causes of action for divorce and for personal injuries are two separate cases. The claim for damages was not litigated in the divorce action. Also, the chancellor did not render a decision on the merits as to damages because he ruled that he would not take jurisdiction over the tort. Further, these doctrines do not bar a subsequent action where a court has made an express reservation of rights as to future litigation in an earlier action or where a party was actually prohibited from asserting a claim in the earlier action. See Miles v. Teague, 251 Ark. 1059, 476 S.W.2d 245 (1972). Therefore, the rulings of the trial court were correct because there was no attempt to litigate the tort claim in the divorce action nor to recover twice monetarily for the injuries sustained.

As his final point of appeal, Lee Cater argues that the award of $350,000.00 in punitive damages should shock the conscience of the court and reflects passion and prejudice by the jury in reaching its verdict. He claims that a verdict which is 17.5 times the amount of the compensatory damages awarded is excessive.

We have said numerous times that there is no fixed standard for the measurement of punitive damages and the amount lies largely within the discretion of the jury on due consideration of the attendant circumstances. Interstate Freeway Services, Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Such damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. Warhurst v. White, 310 Ark. 546, 838 S.W.2d 350 (1992); Viking Insurance Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992).

Because we review each case on its own facts, we cannot say the punitive damages award of $350,000.00 is unwarranted under the circumstances. There was proof that Lee Cater threatened Helen Cater several times and finally went to her home and waited for her to return; that when she got out of her car, she was knocked down and severely beaten. As a result, she sustained serious injuries: shattered bones in her face, broken ribs, a hematoma to the back of her head, multiple contusions, abrasions and lacerations and injuries to her foot and leg. Mrs. Cater underwent reconstructive surgery and will probably have surgery in the future. There is a possibility that she will be permanently impaired. It is understandable that the jury might wish to punish such conduct and deter others from similar acts. In short, the award does not shock our conscience or demonstrate passion or prejudice on the part of the jury.

Affirmed.