text:
    Ronnie REED v. STATE of Arkansas
    CR 92-41
    847 S.W.2d 34
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      James P. Massie, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Ronnie Reed, was convicted of delivery of a controlled substance (cocaine) and sentenced, as a habitual offender, to one hundred (100) years imprisonment. This appeal followed. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 29(l)(b).

On appeal, appellant asserts two points of error. The first point of error appellant asserts is that the trial court erred in denying appellant’s motion for sanctions for the state’s failure to provide discovery with respect to the confidential informant. Appellant contends the only proper remedy for the alleged discovery violation was dismissal of the charge or exclusion of testimony about events occurring while the confidential informant was present. For his second point of error, appellant contends the trial court erred by allowing Officer Rita Porter to testify regarding two inculpatory statements allegedly made by appellant which were not revealed in discovery. Once again, appellant argues the only appropriate remedy for the alleged discovery violation was dismissal of the charge or exclusion of the testimony regarding the statements.

I. CONFIDENTIAL INFORMANT

Appellant was arrested on May 31, 1990, and a Felony Information charging appellant with Delivery of a Controlled Substance (cocaine) was filed on June 20, 1990. An amended information was filed January 28, 1991. On January 9, 1991, appellant filed a motion for discovery of the confidential informant. On March 28, 1991, the court ordered disclosure of the confidential informant. The state filed a response to discovery motion on April 11,1991, stating it had an “open file policy.” On May 17, 1991, there is a notation by Special Judge Robert Adcock in the judge’s docket notes that the “state failed to produce [confidential informant’s] address until this a.m.” On May 21,1991, appellant filed a motion for sanctions based on the state’s failure to comply with the court’s discovery order. To remedy the state’s discovery violation, appellant asked that the charge against him be dismissed or that “all testimony and evidence concerning the alleged sale and delivery by Defendant of a controlled substance to or in the presence of the alleged confidential informant.” In his motion, appellant alleged that despite the court’s March 28,1991, order for the state to disclose complete information concerning the confidential informant, the state did not provide any information to appellant regarding the confidential informant until May 17, 1991, when the state provided appellant with the name “Tanya Webster,” the address T615 Maryland, Little Rock,” which is the parking lot of a funeral home, and a memorandum itemizing payments of money to the confidential informant. Further, on May 17, 1991, the court ordered the state to disclose and produce not later than 4:30 p.m. on Monday, May 20, 1991, full and complete information concerning the confidential informant “including place of employment, correct current residence address, criminal history, and any facts or information bearing on credibility of the alleged confidential informant.” Despite the court’s order, the state provided no further information to appellant until 10:50 a.m. Tuesday, May 21,1991, when the state left a telephone message that the confidential informant was unemployed. The state’s response to the motion for sanctions, filed May 28, 1991, stated the state provided appellant with the name “Tanya Webster, 1615 Marlyn, Little Rock, Arkansas” on May 17,1991, and that the information concerning the informant’s employment was provided as soon as the state could obtain the information.

August 14,1991, appellant filed a motion to dismiss, alleging the acts of the state resulted in the confidential informant being unavailable to appellant as the confidential informant was killed June 9, 1991. Appellant stated at the hearing August 15, 1991, that he had the correct address approximately (one) 1 week before the confidential informant was killed and tried unsuccessfully to contact her. The motion was denied. Appellant concedes in his brief that “[w]hether [the informant’s] testimony could have changed the outcome will never be known because of her untimely death” and does not indicate which way the informant’s testimony would have been helpful to his case other than to say “[h]ad the appellant been given the requested information (i.e. statements, name, address, and employment of the confidential informant) in a timely manner, he would have been able to refute said testimony used to convict him and shown no participation in the crime.” We fail to see how appellant can assert that the testimony of the confidential informant would have been favorable to him since he admits he never had the opportunity to interview her. While the state did not provide the identity of the confidential informant to appellant as promptly as it should have, it does not necessarily follow that the state’s delay requires that the charge against appellant must be dismissed or that any testimony concerning events occurring in the presence of the confidential informant must be suppressed. It is within the trial court’s discretion which sanction, if any, to employ when there is a failure to comply with discovery. Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981). Here, the only sanctions requested by appellant were either dismissal of the charge or exclusion of all testimony relating to events occurring while the informant was present. Since the informant was present during the entirety of the alleged transaction, suppression of the testimony would have left the state without a case. The incorrect address appears to have been a miscommunication given the similarity of “1615 Maryland” and “1615 Marlyn.” While the state provided the information later than required, the state asserted that the information was supplied as soon as it was available and appellant concedes that he had the informant’s correct address for approximately one (1) week before her death. The state is required to disclose material and information in sufficient time for appellant’s counsel to make beneficial use of the information. Id. Here, the identity of the informant was provided well in advance of trial. It was only the unforeseen death of the informant which prevented appellant from contacting the informant. Given the circumstances of this case, we find it was not an abuse of the trial court’s discretion to deny appellant’s motion for sanctions for the state’s delay in providing discovery with respect to the confidential informant.

II. INCULPATORY STATEMENTS

Trial was held on August 20, 1991. During opening argument, the state referred to statements allegedly made by appellant to Officer Porter during the transaction. Appellant objected to the statements that appellant called “Charles” over, appellant told “Charles” that Officer Porter wanted to buy cocaine, and appellant told Officer Porter that if the cocaine was not good to come back and he would make it good on the basis that the statements were not provided in response to his requests for discovery. Appellant asked that the charges be dismissed, a mistrial be granted, or the evidence be excluded. The trial court denied appellant’s motions, but offered to give appellant a continuance to deal with the surprise caused by the failure of the state to disclose the statements. Appellant, after consultation with his attorney, declined the continuance.

At trial, undercover Officer Rita Porter testified that on May 28, 1990, she approached appellant to buy some crack cocaine. The confidential informant was with Officer Porter during the transaction. Officer Porter testified that she approached appellant and asked him for $100 worth of crack cocaine, that appellant said he did not have small quantities and they would have to buy from one of his boys, appellant motioned for a man he called “Charles” to come over and told him Officer Porter wanted to buy cocaine. “Charles” handed Officer Porter four (4) off-white rocks, Officer Porter handed the money to “Charles” and “Charles” handed the money to appellant. Officer Porter then commented that the cocaine did not look real and appellant told her that if it was not to come back and he would fix her up.

Appellant argues the statements Rita Porter attributed to appellant should have been excluded since they were not provided in discovery. Appellant asked for the substance of all oral statements made by defendant in a motion for discovery. The state’s response stated that they had an open file policy and appellant was free to examine the entire case file upon twenty-four (24) hours notice. The court found that the statements had not been provided.

The statements clearly should have been provided. Arkansas Rule of Criminal Procedure 17.1 (1987) provides in pertinent part:

(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(ii) any written or recorded statements and the substance of any oral statements made by the defendant or a codefendant[.]

The court found the statements attributed to appellant were not included in the state’s file, nor were they disclosed to appellant by other means. The failure of the state to apprise appellant of these statements after a proper request is a serious violation of the pretrial discovery rules, which should not be dealt with lightly.

While we look with disfavor on the state’s failure to disclose these statements, the question of the appropriateness of the court’s response to the discovery violation is a separate issue. “When the State violates the pretrial discovery rule the court has four options under Rule 19.7. They are: (1) The evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance can be granted; and, (4) an appropriate order may be entered depending on the circumstances.” Nelson v. State, 274 Ark. 113, 115-16, 622 S.W.2d 188, 189 (1981). It is within the trial court’s discretion which sanction to employ. Renton, 274 Ark. 87, 622 S.W.2d 171. Here, the trial court offered to give appellant a continuance to deal with the surprise caused by the state’s failure to reveal the statements. We have held a continuance may be sufficient to cure the state’s failure to comply with the rule. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); see also Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978). In this case, we think any possible prejudice caused by the state’s failure to comply with the pretrial discovery rule would have been cured by a continuance. Appellant was made aware of and objected to the statements before any witnesses were presented. Since the trial court offered appellant a continuance before any testimony was presented, which he declined, we find no error.

Affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Willie KING, Jr. v. STATE of Arkansas
    CR 92-1016
    847 S.W.2d 37
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      Vickery, Landers & Lightfoot, P.A., for appellant.

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

Appellant Willie King, Jr., was convicted of capital murder and sentenced to life without parole. On appeal, he makes three arguments, each of which concerns the denial of a fair trial. None of his arguments has merit, however, and we affirm.

King was convicted of the manual strangulation of a female victim who was last seen with the appellant on the evening of March 22, 1991. Three days later, her body was discovered in McKinney Park in El Dorado.

King, whose face, neck and chest exhibited numerous scratches, was arrested and charged with first-degree murder. That count was changed to capital murder on August 29, 1991, and the death penalty was requested. Several pretrial motions were filed, including a motion in limine to prevent the state from referring to any of the appellant’s prior criminal arrests and charges. The state agreed not to do that. Also, a motion was filed to direct a non-capital'sentence because no applicable aggravating circumstance existed at the time of the murder that warranted imposition of the death penalty. That motion was denied.

The trial in this cause occurred over five days. The jury was informed at the outset that this was a capital murder case and that death and life without parole were the appropriate punishments. A principal witness for the state was Sylvance Wright, who testified that he was in jail with King and that King told him that he had been with the victim on the night she was killed, that he had threatened to tell her boyfriend that she was seeing someone else if she did not have sex with him, and that he had killed her when she refused to have sex with him. Wright further testified that King said he did not intend to kill the victim but showed no remorse for having done so.

The jury returned a verdict of guilty and following the penalty phase assessed punishment of life without parole. The jury did find an aggravating circumstance—that the murder was perpetrated in a cruel and depraved manner — but refused to conclude that this warranted capital punishment. King filed a motion for a new trial on grounds that the jury was tainted due to consideration of the death penalty and, further, that he was not afforded a fair trial. That motion was denied, and he appeals from that order.

We begin by noting that the appellant’s abstract is flagrantly deficient and ordinarily would be grounds for Rule 9 sanctions. No rulings or orders of the circuit court are abstracted; nor is the instruction on aggravating circumstances that forms the basis for one of the issues on appeal or the colloquy between the prosecutor and Sylvance Wright that gives rise to King’s claim of prejudice and grounds for a mistrial. The appellant also fails to abstract other objections decided adversely to him as required by our Supreme Court Rule 11 (f) when a life sentence is involved. What salvages this appeal is the state’s supplemental abstract and the fact that this is a capital case with a sentence of life without parole which all but necessitates review. We observe, however, that the process is not well served when a case of this magnitude is presented in violation of the minimal requirements for abstracting required by our Rules.

Turning to the merits, King first contends that a death-qualified jury was inappropriate because the aggravating circumstance found by the jury was not in effect on the date of the murder and, thus, there was no basis for capital punishment. Hence, King argues, the circuit court erred in refusing to direct a sentence of life without parole.

King is correct that the aggravating circumstance referring to commission of the murder “in an especially heinous, atrocious, or cruel manner”, codified at Ark. Code Ann. § 5-4-604(8) (1987), was struck down by this court in 1988 for vagueness. Wilson v. State, 295 Ark. 682, 751 S.W.2d 734, modified 295 Ark. 692A, 752 S.W.2d 762 (1988). He is further correct that Act 683 of 1991, also codified at Ark. Code Ann. § 5-4-604(8) (Supp. 1991), was enacted after the date of the murder and provided as an aggravating circumstance murder perpetrated in an especially cruel and depraved manner. After Act 683 was in effect, the state amended the charge in this case from first-degree murder to capital murder. Accordingly, he urges that an ex post facto issue exists concerning the application of an aggravating circumstance which became effective after the murder date.

Nevertheless, King did not receive the death penalty, and we have held that an appellant has no standing to contest the constitutionality of the death penalty when that person receives a lesser sentence. See Ashley v. State, 310 Ark. 575, 840 S.W.2d 793 (1992); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991). Those cases are analogous to the case at hand. The fact that the jury was death-qualified, that death was considered throughout the trial as a possible sentence, and that the jury was instructed on an aggravating circumstance that was not in effect at the time of the killing is of no moment when death is not the penalty assessed.

What the appellant is contending, in essence, is that the trial was tainted generally by the fact that death was considered when it should not have been because of an inapplicable aggravating circumstance. It is incumbent on the appellant, however, to demonstrate a prejudicial impact. Greer v. State, 310 Ark. 522, 837 S.W.2d 884 (1992). Here, the prejudice that may have resulted is difficult to gauge under such circumstances and places us squarely in the realm of speculation. We will not speculate on what prejudice, if any, occurred from the fact that the death penalty was mentioned and considered at the trial though not assessed. Without a more precise objection by King or a showing on his part as to how he was harmed, the circuit court had no basis to grant a new trial; nor do we have a foundation for reversal. See Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

Moreover, the United States Supreme Court and this court have held that the mere fact that a jury is death-qualified but a lesser sentence is imposed is not sufficient prejudice to warrant a reversal. Lockhart v. McCree, 476 U.S. 162 (1986); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). In sum, the circuit court did not err in denying a new trial on this point.

For his second issue, King maintains that the jury panel was expanded from some fifty-five members to almost double that size, and that this was not accomplished by giving five-days’ notice as contemplated under Ark. Code Ann. § 16-32-106(c)(l) (Supp. 1991). This lapse in procedure, under the theory propounded, denied the appellant an opportunity to evaluate the qualifications of the new members and may have eliminated a cross-section of the community under our holding in Kitchen v. State, 264 Ark. 579, 572 S.W.2d 839 (1978). This argument, too, is meritless.

The circuit court found that the jury that heard Kings’ case was selected from the original venire, which King had ample time to research. There is nothing before us to suggest that this finding was in error. Thus, no prejudice due to lack of research time or abbreviated notice could have resulted. We note additionally in this respect that § 16-32-106(c)(1) does not require five-days’ notice to jurors. It provides that when jurors are mailed a notice to serve, they are to confirm with the sheriff that it was received. If no confirmation is given, the sheriff follows up with a telephone call to the non-responsive panel member not later than five days before trial. In this instance, the additional jurors apparently were not contacted by mail, but by telephone which was a permissible alternative under the statute. There was no breach of statutory procedure under these circumstances.

Lastly, the appellant argues that the circuit court erred in refusing to grant a mistrial following this colloquy:

DEPUTY PROSECUTING ATTORNEY: Okay. And did the Defendant discuss with you, what he was in jail for?
WITNESS: Yes, ma’am.
DEPUTY PROSECUTING ATTORNEY: What did he tell you?
WITNESS: Well, we woke up one morning and right after breakfast and we started talking. And the conversation led to about women and he said about a lot of this and that and then he said, “Well, just like the case I just beat.” He said. . .
DEFENSE COUNSEL: Objection, Your Honor. May we approach?

Defense then objected, moved to strike, and moved for a mistrial on grounds that the response violated the order in limine forbidding comment on King’s prior arrests and charges. The circuit court denied the mistrial motion and then asked if defense counsel wanted an instruction to the jury. Defense counsel answered: “Yes. At the very least. Note my objection.” The prosecutor then asked if she should take the witness aside and remind the witness not to refer to King’s past conduct. Defense counsel responded: “No. I simply ask that the objection at least be sustained. I do move for a mistrial.”

The court then sustained the objection, denied the mistrial, and admonished the jury with the following:

Ladies and gentlemen of the jury, it’s the instruction of the Court that you disregard the last response of this witness, if you heard it. If you didn’t hear it, then I suppose there’s nothing for you to disregard. But, you are instructed that I have sustained an objection to that response. It should be disregarded and not considered at all. Put it out of your minds completely as you listen to the evidence and eventually as you deliberate with respect to this case. You may proceed.

We have held that a mistrial is a drastic remedy and one that lies within the discretion of the trial court. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992);Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Moreover, we have held that admonitions to the jury may be sufficient to cure statements by a witness, not elicited in bad faith, relating to other criminal activity of the accused. See, e.g., Strawhacker, v. State, 304 Ark. 726, 804 S.W.2d 720 (1991); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).

In the case before us, defense counsel was somewhat ambivalent about the relief he wanted. On the one hand, he requested a mistrial. But on the other, he wanted his objection sustained and was agreeable to an admonition to the jury “at the very least.” We have stated that a mistrial motion asserts that the error is beyond repair and cannot be corrected by any curative relief, while an objection to evidence does not carry with it the same gravity. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 747 (1992). A curative instruction is an acknowledged means of curing error. Id. Defense counsel got part of the relief he requested.

There is no question but that the statement about “beating” a prior case had the potential to harm the appellant. And yet, the particulars of what was meant by that statement were left to the jurors’ imaginations. The circuit court told them in no uncertain terms to disregard the comment. We cannot say with any certainty that the admonition did not have the desired effect or that the circuit court abused its discretion in denying a mistrial.

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.

Affirmed.


author: Per Curiam. Jack Holt, Jr., Chief Justice,

text:
    FIRST PYRAMID LIFE INSURANCE COMPANY of America v. J. Michael STOLTZ, as Special Administrator of the Estate of J.P. Stoltz, Deceased
    92-4
    843 S.W.2d 842, 846
    Supreme Court of Arkansas
    Opinion delivered February 15, 1993

      Peter G. Kumpe, for appellant.

      Davidson Law Firm, Ltd., by: Charles Phillip Boyd, Jr., for appellee.
   Per Curiam.

Appellee’s motion for vacatur, to disqualify, and in the alternative, to appoint a special master is denied.

Holt, C.J., concurs.

Dudley, L, not participating.

Jack Holt, Jr., Chief Justice,

concurring. The appellee, Estate of J.P. Stoltz (hereafter “the Estate”), has filed a petition for rehearing requesting that this court vacate its decision of December 21,1992, reversing a jury verdict in the Estate’s favor. In addition, the appellee has filed a separate motion for “vacatur” praying that all members of this court who participated in this case disqualify themselves from rendering any further decision on the merits of this case and that seven special justices be appointed. The court treated this motion as a Letter of Suggestion of Disqualification, Ark. Sup. Ct. R. 27, since our rules do not provide for a motion for vacatur.

The Estate’s Motion for Vacatur is premised upon allegations that I have a social relationship with Mr. Herschel Friday of the Law Firm of Friday, Eldredge & Clark that renders my decision making in this case impaired and because of this relationship, that all members of this court should disqualify.

The determinative issue in this case is whether the appellee, Estate of J.P. Stoltz, had proven fraudulent concealment on the part of First Pyramid Life Insurance Company in order to toll the statute of limitations on the Estate’s claim. In an unanimous decision, the other justices were in agreement that the Estate had not proven fraudulent concealment and that the Estate was not entitled to a judgment in its favor. Neither Mr. Friday nor members of the Friday, Eldredge and Clark firm were parties or counsel to the litigation in question, nor served as attorneys at trial or during this appeal.

No one outside of this court has discussed this case with me during its pendency on appeal. My relationship with Mr. Friday is of no moment. It does not impair my decision making processes in this case. For these reasons, I decline the appellee’s suggestion that I disqualify.


author: Jack Holt, Jr., Justice. Steele Hays, Justice,

text:
    Mason BROWN v. CITY OF STUTTGART, Arkansas and First Continental Financial Corporation
    92-849
    847 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993
    [Rehearing denied April 5, 1993.]

      The Eilbott Law Firm, by: Don A. Eilbott, for appellant.

      Williams & Anderson, by: W. Jackson Williams, David F. Menz, and G. Alan Perkins, for appellee.
   Jack Holt, Jr., Justice.

This is an action challenging the validity of a tax exempt lease agreement between the City of Stuttgart and First Continental Financial Corporation on the grounds that the lease contains interest bearing evidence of indebtedness in violation of Ark. Const., art. 16, § 1. We find that it does and reverse the trial court.

The appellees, City of Stuttgart and First Continental Financial Corporation, entered into a lease agreement for a garbage truck. Stuttgart chose this method of acquisition because it did not have enough cash to purchase the garbage truck in one year. A sixty month lease with option to purchase seemed a much more viable alternative.

Under the terms of the lease, Stuttgart is obligated to lease the garbage truck for sixty months. However, a nonappropriation clause in the lease provides that the lease shall terminate unless sufficient funds are appropriated and budgeted or authorized by the city. In short, the lease is enforceable only if the city appropriates money for the current fiscal year. In the event of termination of the lease by nonappropriation, the city agrees to surrender possession of the equipment to the lessor and would have no liability beyond the current fiscal year for which funds were appropriated.

This type of municipal lease is authorized under Arkansas Act 508 of 1991, codified at Ark. Code Ann. § 14-76-101 — 108 (Supp. 1991), and specifically under Stuttgart Ordinance No. 1369 entitled: “An Ordinance Authorizing a Lease Agreement Between the City of Stuttgart, Arkansas, as Lessee, and First Continental Financial Corporation, as Lessor, for a Garbage Truck for the City of Stuttgart, Arkansas and Related Accessories; Authorizing and Prescribing Other Matters Pertaining Thereto; and Declaring an Emergency.”

Petitioner, Mason Brown, contends that this lease agreement is void because it violates Ark. Const., art. 16, § 1:

§ 1. Lending credit - Bond issues - Interest bearing warrants.
Neither the State nor any city, county town or other municipality in this State shall ever lend its credit for any purpose whatever; nor shall any county, city, or town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law to provide for and secure the payment of the indebtedness existing at the time of the adoption of the Constitution of 1874, and the State shall never issue any interest-bearing treasury warrants or scrip.

(Emphasis added.)

Act 508 of 1991 authorizes governmental units (defined as counties, municipalities, etc.) to enter into:

multiyear lease agreement and purchase contracts of all kinds for the acquisition, refinancing and sale and leaseback of capital improvements, facilities, equipment, goods, supplies, materials and all other types of personal property, real property and services that the governmental unit is authorized by law to acquire; provided that any such multiyear agreement or purchase contract shall contain provisions as follows:
(a) The contract shall terminate without further obligation on the part of the governmental unit at the close of the fiscal year in which it was executed and at the close of each succeeding fiscal year for which it may be renewed; except that the contract may provide for automatic renewal unless positive action is taken by the governmental unit to terminate such contract, and the nature of such action shall be determined by the governmental unit and specified in the contract; and
(b) The contract shall state the total obligation for the rental payments of the governmental unit for the fiscal year of execution and shall further state the total obligation for the rental payments which will be incurred in each fiscal year of each renewal term, if renewed. . . .
. . . [A] ny multiyear lease agreement or purchase contract authorized herein may, but is not required to include:
(a) A provision which requires that the contract will terminate at such time as appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of the governmental unit under the contract.

Mason Brown brought this suit as a “citizen and taxpayer of the City of Stuttgart.” He challenged the constitutionality of Act 508 and Stuttgart’s ordinance and the validity of the lease itself.

The lease at issue was entered into on September 1, 1991. The lease provides for sixty monthly payments. At the end of the sixty payments, interest paid will total $11,138.36; principal paid will be $64,026.04. Pursuant to the lease agreement, the city has an option to buy the garbage truck for $10.00 at the end of the sixty months.

At trial Stuttgart mayor, H.E. “Pete” Raines, testified that the lease purchase agreements provide cities with a means to acquire new equipment. For example, Stuttgart had been saving $20,000 a year since 1988 for a new fire truck. When the city began saving, the fire truck cost about $ 105,000. After saving for three years, the cost has risen to between $ 125,000 and $ 130,000. Budgeting problems such as this could be eased by leasing. The mayor also stated that the city had not used lease financing in the past because he thought it was illegal.

Mr. Greg Eden, a bond lawyer, also testified for the defense. As an expert on municipal lease agreements, he drafted the lease agreements used by First Continental Financial Corporation. He contended that a tax exempt lease purchase contract is the cheapest means of acquisition of needed items. Mr. Eden also stated that while a lease expense is considered a current expense, it is not considered to be a debt.

After the hearing, the trial court took the case under advisement. Later it found that although it was suspicious of the statute and the lease as attempts to circumvent the state constitution, they were valid and not violative of the state constitution. It is from these findings that Mr. Brown brings this appeal.

We review chancery cases de novo. We recognize the chancellor’s superior position in weighing issues of credibility and will not reverse findings of fact unless the chancellor’s findings are clearly erroneous. Medalist Forming Sys., Inc. v. Malvern Nat’l Bank, 309 Ark. 561, 832 S.W.2d 228 (1992); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

The appellant, Mr. Brown, argues that the lease violates Article 16, § 1, of the Arkansas Constitution. We agree. The words of the Constitution “should ordinarily be given their obvious and natural meaning.” Gipson v. Maner, 225 Ark. 976, 980, 287 S.W.2d 467 (1956). See also City of Hot Springs v. Creviston, 288 Ark. 286, 290, 705 S.W.2d 415 (1986). Article 16, § 1, clearly states, “nor shall any county, city or town or municipality ever issue any interest bearing evidences of indebtedness, except such bonds as may be authorized by law.”

A lease payment schedule is appended to the lease agreement at issue. Mr. Brown alludes to this schedule in his brief, and it has been examined in full. This schedule sets forth the monthly payments for which Stuttgart is responsible under the lease.

This “lease payment schedule” is clearly an amortization schedule complete with a statement of principal and interest to be paid. City of Stuttgart and First Continental assert that because the lease agreement provides for the lease payments to be paid from appropriated funds on hand for the current year, the lease does not constitute interest bearing debt. Yet, the lease payment schedule reflects a plan of payments covering five years in which interest and equity accrue. This being the case, the lease constitutes interest bearing evidence of indebtedness. While it is true that the City of Stuttgart is not bound by the lease if the city cannot appropriate funds, the cancellation of the lease results in lost equity and interest.

City of Stuttgart also contends that because the lease agreement includes the nonappropriation clause, the lease may be deemed to be cancelable without penalty and, therefore, considered to be rent and not interest bearing indebtedness. In support of this argument, it cites Crumley v. Berry, 298 Ark. 112, 766 S.W.2d 7 (1989). In Crumley the appellant entered into a rental with option to purchase contract for a used refrigerator and microwave oven. There was no requirement that she continue the contract beyond one week. However, there was an option to buy the specified property after an agreed number of weeks with the consideration being only that she pay the rental fee for a predesignated number of weeks.

Ms. Crumley made her weekly payments for a time. When she determined that she had made payments equal to the cash price of the items, she stopped making payments and refused to surrender the items arguing that she had paid for them.

In determining that the transaction between Ms. Crumley and the appliance store was a lease and not a sale this court held:

[W]e hold that the sounder view requires as a prerequisite to finding a sale, that there be an obligation to pay the purchase price of the leased goods. There may be exceptions to this general proposition, for example where in spite of the language of the contract, the lessor is clearly led to believe the arrangement is a sale.

Crumley v. Berry, 298 Ark. 112, 117 (1989).

In applying the Crumley analysis to the facts at hand, the lease between the City of Stuttgart and First Continental is clearly seen as a sale. Although the lease agreement allows the “lease” to be canceled without penalty if funds are not appropriated, nonappropriation is the only way out of the contract without penalty. As the Lease Agreement sets out in Article IV, the lease term may terminate upon the following events:

Section 4.02. Termination of Lease Term. The Lease Term will terminate upon the earliest of the following events:
(a) the payment by Lessee of all Lease Payments authorized or required to be paid by Lessee hereunder;
(b) the termination of the Lease in the event of non-appropriation of funds pursuant to Section 8.02 hereof;
(c) a default by Lessee and Lessor’s election to terminate
this Lease under Article XIV.
In the event of default, the Lease Agreement provides that:
Section 14.02 Remedies on Default. Upon the occurrence of an Event of Default, and as long as such Event of Default is continuing, Lessor may, at its option, exercise any one or more of the following remedies:
(a) With or without terminating the Lease, retake possession of the Equipment wherever situated, without any court order or other process of law and without liability for entering the premises, and sell, lease, sublease or make other disposition of the Equipment in a commercially reasonable manner, retaining all proceeds of such disposition, including, if any, funds in excess of the amounts payable by Lessee hereunder holding Lessee liable for the deficiency, if any, between (i) the amounts payable by Lessee hereunder to the end of the then current fiscal year of Lessee and (ii) the purchase price, rent or other amounts paid by a purchaser, lessee or sublessee of the Equipment pursuant to such sale, lease or sublease, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with the recovery, repair or storage of the Equipment and other disposition costs; or
(b) Proceed by appropriate court action to enforce performance by Lessee the applicable covenants of this Lease or to recover for the breach thereof including the payment of the Lease Payments due or to become due hereunder, or any deficiency, following disposition of the Equipment between (i) the amounts payable by Lessee hereunder to the end of the then current fiscal year of the Lessee and (ii) the purchase price, rent or other amounts paid by a purchase, lessee, or sublessee of the Equipment pursuant to such sale, lease or sublease, after deducting all costs and expenses, including reasonable attorneys’ fees and expenses, incurred with the recovery, repair or storage of the Equipment and other disposition costs; or
(c) Terminate this Lease and use, operate, lease or hold the Equipment as Lessor, in its sole discretion, may decide.

The penalty for defaulting on this lease agreement is great; thus, absent inability to appropriate funds for the year, the City of Stuttgart is obligated to fulfill this contract to the end of the lease period of five years.

Further indicia of the fact that this is a contract for sale rather than a lease are its tax exempt status, its relation to a bond issue and counsel’s admission in oral argument that the lessee anticipated selling certificates of participation in the leases. Pursuant to section 103 of the Internal Revenue Code, this type lease includes a tax exempt interest component. In order to qualify for this tax exempt status, the lease contract “must constitute an obligation of the governmental unit’s borrowing power under federal tax law____[Although the agreement may take the form of a lease, the contract must contemplate a sale.” Reuven Mark Bisk, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harvard J.L. Pub. Pol’y 521, 534 n. 74 (1984).

Lastly, we note this tax exempt lease contract has a direct relationship to a bond issue as the interest component of the “lease” is tax exempt under federal law. See Jon Magnusson, Lease-Financing by Municipal Corporations as a Way Around Debt Limitations, George Washington L. Rev. 377, 391 (1957).

We sympathize with the budgeting problems of municipalities and understand the need to find unique methods of purchasing capital items. However, this lease agreement contains an interest bearing indebtedness counter to Article 16, § 1, of our state Constitution. As such we reverse the findings of the chancery court and hold that the lease agreement is invalid.

Since we conclude that the lease agreement is counter to Ark. Const, art 16, § 1, it is not necessary to consider further the constitutionality of Act 508 of 1991 or Ordinance No. 1369 as argued by the parties.

Reversed and remanded.

Brown, J., concurs.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. Whatever else may be said of this agreement, the City of Stuttgart is not bound by it if, during any fiscal year, the city lacks the funds needed to meet its obligations under the lease. That, in my view, renders the agreement permissible under Act 508 of 1991 and conformable with Ark. Const, art. 12, § 4. Whether the arrangement more nearly resembles a sale than a lease need not concern us in the slightest, so long as its terms and conditions are within the bounds of the law.

It seems odd the majority would include a reference to Reuven Mark Bisk, State and Municipal Lease-Purchase Agreements: A Reassessment, 7 Harvard J.L. Pub. Pol’y 521, 534 n. 74 (1984). Under section E (p. 536) Mr. Bisk discusses those cases upholding lease-purchase agreements with a nonappropriation clause, observing that:

No general obligation constitutional debt arises under lease-purchase agreements with a nonappropriation mechanism, Wisconsin’s approach teaches, because the very existence of that obligation is contingent upon the city’s exercise of an option fully within its own control.

Mr. Bisk discusses the lease-purchase issue, which so absorbs the majority in this case:

The Wisconsin approach “dismisses the ‘bona fide’ lease versus purchase installment issue as largely irrelevant to the context of state and municipal debt limitations once a nonappropriation mechanism has been introduced. The Wisconsin court does not consider these principles invalid but rather inapplicable. Instead, it speaks directly to the nature of constitutionally restricted debt. Debt, we are told, arises under any instrument, including a lease-purchase agreement, only when there is a promise to pay sums such as rents accruing in the future whether funds are available that year or not." [My emphasis.]

The majority dismisses the provision in the lease for termination with the comment that it would result in lost equity and interest. But we have often said (and often disregarded) that the prudence of the acts and measures of other branches of government are not within the purview of this branch. Arkansas State Highway Commission v. White, 273 Ark. 264, 620 S.W.2d 280 (1981); Commissioner of Revenues v. Dillards, Inc., 224 Ark. 826, 276 S.W.2d 424 (1955). I would affirm the chancellor’s order.


author: Jack Holt, Jr., Justice.

text:
    George SCROGGINS v. STATE of Arkansas
    CR 92-887
    848 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Mark S. Cambiano, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Justice.

Herbert Hawkins and the appellant, George Scroggins, were charged with delivery of a controlled substance, methamphetamine, in exchange for money.

After a jury trial, Mr. Scroggins was found guilty and sentenced to forty years in the Department of Correction and fined $50,000. Mr. Hawkins was found not guilty.

In particular, Mr. Scroggins questions the admissibility of an informant’s prior recorded testimony and the sufficiency of the evidence. He also presents numerous other assignments of error. Inasmuch as his arguments are meritless, we affirm the trial court.

SUFFICIENCY OF THE EVIDENCE

Although some of the arguments raised by appellant involve admissibility of evidence, we will not consider trial errors until after we have determined sufficiency of the evidence, including that which perhaps should not have been before the jury. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Mr. Scroggins argues that the trial court erred in denying his motion for a directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Harris v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). In reviewing the denial of a motion for directed verdict, the evidence is viewed in the light most favorable to the appellee, considering only the evidence that tends to support the verdict. Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992). On appellate review, we need only “ascertain that evidence most favorable to the appellee, and if there is substantial evidence to support the verdict, we affirm.” Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992). We find the evidence more than sufficient.

David Cains’ testimony incriminated Mr. Scroggins. In his testimony, Mr. Cains discussed the drug deal he made with Mr. Scroggins as well as referring to past transactions of drug sales with him. Evidence presented at trial indicated that prior to Mr. Scroggins’ visit to Cains’ home, the Drug Task Force searched the home for drugs to ensure that the house was clear of drugs and remained outside watching the house as Mr. Scroggins arrived. Shortly after Mr. Scroggins delivered the drugs, Drug Task Force members entered Mr. Cains’ home and secured the drugs allegedly delivered by Mr. Scroggins. The methamphetamines, according to a task force member’s testimony, were discovered underneath Mr. Cains’ pillow. A chemist testified that he tested the drugs and found them to be 91.9 grams of methamphetamine.

Determining credibility of witnesses is within a jury’s domain. See Felty v. State, 306 Ark. 634, 816 S.W.2d 872 (1991). Obviously, here, the jury believed the prosecution’s witnesses, and their testimony is more than sufficient to support the jury’s verdict.

ADMISSIBILITY OF INFORMANT’S PRIOR TESTIMONY

Mr. Cains, a confidential informant on behalf of the State, gave testimony during a suppression hearing in this case and was subject to cross-examination by Scroggins’ attorney. Cains was murdered prior to trial. After a hearing to determine the admissibility of his testimony, the trial court determined that because Cains was subject to a “well-developed” cross-examination, his testimony was admissible at trial. Over the defendant’s objections, a tape and its transcription of Mr. Cains’ testimony were submitted to the jury.

On the tape, Mr. Cains testified that he had been arrested on September 29, 1990 for delivery of a controlled substance and felon in possession of a firearm. When his house was searched the day of his arrest, police discovered 2.5 ounces of amphetamine and 5 ounces of marijuana. Cains claimed that he obtained the amphetamine from Mr. Scroggins approximately three days earlier.

As a result of his arrest, Cains agreed to be a confidential informant and set up a meeting with Mr. Scroggins to purchase methamphetamines. That same day Mr. Cains telephoned Scrog-gins to buy “motorcycle parts” — their code for methamphetamine. About eleven o’clock that evening, Mr. Scroggins and Mr. Hawkins showed up at Mr. Cains’ house. Scroggins gave Cains the drugs and told him that he could pay later.

The test for determining whether hearsay evidence should be admitted when the declarant is unavailable is provided in A.R.E. Rule 804(b)(1) which states:

Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(Emphasis added.)

The question of admissibility of an unavailable witness’ testimony was fully addressed in Scott and Johnson v. State, 272 Ark. 88, 612 S.W.2d 110 (1981). In deciding that the testimony from a preliminary hearing was inadmissible, this court stated:

There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. State evidentiary rules can fall within this exception if two tests are met. First, the witness must be unavailable.... Next, the evidence must be reliable. . .[AJdmission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends upon what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one.

(Emphasis added; citations omitted.) Scott and Johnson, 272 Ark. 88, 92-93.

By applying the Scott and Johnson analysis to the facts at hand, we hold that Cains’ testimony was clearly admissible. Obviously, Cains was unavailable, and the circumstances of the suppression hearing insured the reliability of his testimony which was given under oath and before a judicial tribunal. Counsel for Mr. Scroggins was present and cross-examined Mr. Cains extensively.

The suppression hearing was held upon a motion by the defense to suppress statements taped during phone conversations between the confidential informant, David Cains, and Mr. Scroggins.

At the suppression hearing, Mr. Cains testified as to his arrest and subsequent agreement with authorities to serve as a confidential informant. He discussed how he and the appellant used the term “motorcycle parts” to describe methamphetamines and how Scroggins and co-defendant, Hawkins, had arrived at his house and engaged in a drug deal.

Mr. Scroggins’ counsel was able to cross-examine Mr. Cains thoroughly. Although the purpose of the suppression hearing was to determine whether taped phone conversations between Cains and Scroggins should be suppressed, counsel for Mr. Scroggins went far beyond this issue in his cross examination. It is obvious that defense counsel’s primary purpose in cross-examination was to impeach Mr. Cains, and for eight full pages of hearing transcript, he did just that. We agree with the trial court’s finding that the cross-examination was “well-developed.” For example:

Q. Have you ever been arrested on any other charges—not convicted, but arrested other than what you’ve told today?
A. On any felony charges?
Q. Any charges.
A. A couple of speeding tickets.
Q. Anything else?
A. Not that I can remember.
Q. Have you committed any felonies and not gotten caught that you haven’t been arrested for?
A. No sir, not to my knowledge.
Q. Okay. Now, you said that you had called up George and told him that you had a man that had large amounts of money who wanted to buy some parts. Is that correct?
A. Yes, sir.
Q. When did this conversation take place?
A. On the afternoon of September 29th.
Q. After you were—you were arrested?
A. Yes, sir.
Q. But, we don’t have that on tape, do we?
A. You don’t have what on tape?
Q. The fact of the—when you said you had a man that had a large amount of money that wanted to sell-finance some drugs.
A. I believe that’s in the—in the trans—I haven’t heard the tape, but in the transcripts there was—the conversation that I had a man with some money that wanted to purchase some amphetamine.
Q. How much money were you talking about? What did you tell him?
A. I don’t believe we discussed any particular—any particular amount.
Q. All right. And, this two and a half ounces of methamphetamine, how much is that worth?
A. That’s an arbitrary amount actually. Some people sell it for more than other people sell it for.
Q. How much were you planning on paying for it?
A. For what he was going to bring?
Q. Uh, huh.
A. The four ounces that he was going to deliver?
Q. Uh, huh.
A. Six thousand dollars.
Q. That’s how much that you—that you were planning on paying it?
A. That’s what I was planning on paying for it.
Q. How did you know that was the amount of money you were going to pay for it?
A. Because that’s what we—our previous dealings had been.
Q. How many times have you bought drugs from him in the past?
A. (There is no response.)
Q. Do you have a problem with the question?
A. (The witness indicates affirmatively.)
Q. How many times have you bought drugs in the past?
A. Uh, a couple of occasions.
Q. Two occasions?
A. Two occasions.
Q. All right. And the occasion before this one we are talking about, when was it?
A. Two or three days—approximately two or three days . before that.
Q. And, how much did you buy at that time?
A. I didn’t buy any of it.
Q. Well, you said you bought some from him on two or three different occasions.
A. I never paid cash for it—it was—it was always, as the terms goes, fronted to me.
Q. Now, you had bought motorcycle parts from him in the past have you not?
A. Well, I’d sold him motorcycle parts.
Q. Okay. You never had bought any at all from him?
A. (The witness shakes his head negatively.)
Q. Never have traded with him?
A. (The witness indicates negatively.)
Q. You’re shaking you head no?
A. No, I’ve never purchased any parts from him. He bought parts from me, my shop.

The questions asked of Cains afforded the trier of fact with a satisfactory basis for evaluating the truth of Cains’ statements. As such, the testimony was reliable and admissible under A.R.E. Rule 804(b)(1).

As sub-issues of this admissibility question, Mr. Scroggins also contends that the trial court erred in not deleting certain portions of Cains’ taped testimony, providing the jury with a transcript of Mr. Cains’ testimony, and by not admonishing the jury that evidence of other crimes is not admissible to prove character. We do not agree.

Mr. Scroggins wanted the portion of the tape that referred to Cains’ previous purchase of drugs from Mr. Scroggins deleted. However, since Mr. Scroggins was charged with delivery of a controlled substance in exchange for money, the testimony was admissible to show his intent. A.R.E. Rule 404(b); Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). As such, this portion of Cains’ testimony should not have been deleted.

As for the other two sub-issues, they fail because Mr. Scroggins’ objections at trial were either based upon different grounds or insufficient. Scroggins contends that the trial court erred in the procedure it used when the jury, during deliberation, asked to review Cain’s testimony. At the time, Mr. Scroggins objected claiming that by giving the jury the transcript of Cains’ testimony, the trial court was placing too much emphasis on it. Now, he claims that the trial court erred because it did not follow the procedure prescribed in Ark. Code Ann. § 16-89-125(e) (1987), which states that once the jury retires for deliberation, if there is a disagreement among them regarding some piece of evidence or if they need information on some point of law, “they must require the officer to bring them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, counsel of the parties.” We will not consider an issue where the party changes grounds for an argument on appeal. See Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

Scroggins’ second contention that the trial court erred in refusing to admonish the jury as to the admissibility of evidence of other crimes to prove character is based upon an insufficient objection. At trial, Mr. Scroggins failed to state specifically why the testimony should be disregarded. An objection must be specific enough to apprise the trial court of the specific error in question. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

PRETRIAL DISCOVERY

Next, Mr. Scroggins contends that the State withheld evidence in violation of his due process rights as to: 1) bodymiked tape recording of Scroggins’ second trip to Cains’ residence at which time the drugs were alleged to have been delivered; 2) the Pope County Drug Task Force Manual; 3) the testing procedures utilized by the State Crime Lab for comparison by Scroggins’ expert; 4) prior bad acts and promises of immunity and leniency made to Cains in exchange for his testimony.

When testimony is not disclosed pursuant to pretrial discovery procedures, the burden in on the appellant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985). The prosecutor’s responsibility is to provide any information or materials that tend to negate the defendant’s guilty in some way. A.R.Cr.P. Rule 17.1 (d). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Absent a showing of prejudice, we will not reverse. Hall v. State, 306 Ark. 329, 812 S.W.2d 608 (1991). Although Mr. Scroggins describes all of this material as “exculpatory,” there was no showing that this evidence would have negated his guilt or that he was prejudiced by the State’s failure to disclose.

For example, Mr. Scroggins wanted the tape of a bodymiked conversation between Cains and Scroggins allegedly recorded during drug transactions between the two men. Mr. Scroggins’ attorney claimed that he could have used it at the suppression hearing to impeach Cains in order to prove that the two men were really talking about motorcycle parts rather than drugs. On the second day of trial, the prosecution surrendered the tape to Scroggins, and he did not use it at all. Accordingly, no proof was provided to the trial court that this tape was exculpatory in any way.

Mr. Scroggins also claims that he needed the Drug Task Force Manual in order to highlight the allegedly slipshod manner in which this drug buy occurred. As for alleged deals between authorities and Cains, Mr. Scroggins cross-examined Mr. Cains on this very issue. There has been no showing that failure to disclose this manual hampered Mr. Scroggins’ cross-examination of Cains in any way.

Mr. Scroggins complains that discovery was violated by the prosecutor’s failure to provide appellant with descriptions of the procedures used by the State Crime Lab in testing the methamphetamine seized from Cains’ residence after the alleged drug buy between Scroggins and Cains. Mr. Scroggins requested that a sample of the drug be sent to defense’s independent analyst in Georgia, and this request was granted. Apparently, Mr. Scroggins wanted the State to provide him with descriptions of all procedures used by the State Crime Lab so that his independent expert could follow these procedures and explain why they were not appropriate in his testimony at trial. However, the prosecutor refused claiming that he only had to provide the results of the tests performed by the State Crime Lab.

Here again, Mr. Scroggins has failed to show how he was prejudiced by the prosecution’s failure to provide him with a description of these testing procedures. As such, this argument is not persuasive.

For his last discovery allegation, Mr. Scroggins contends that the state committed reversible error in failing to provide him with information concerning Cains’ prior bad acts or promises of leniency made to Cains. As Scroggins has failed to show how he was prejudiced by these omissions, this too is a meritless argument. As the suppression hearing transcript indicates, Mr. Scroggins cross-examined Mr. Cains fully on these very topics. Although trial testimony indicated that Cains was told that his cooperation would be reported to the prosecutor, there was no evidence indicating that he was promised leniency.

DIRECTED VERDICT FOR CODEFENDANT

Mr. Scroggins’ next assignment of error is that the trial court erred in failing to direct a verdict for co-defendant, Mr. Hawkins because without the directed verdict, Mr. Hawkins could not be called as Mr. Scroggins’ witness.

Scroggins does not have standing to argue that a motion for directed verdict for Hawkins should have been granted. And, Hawkins has no grounds to appeal because he was found not guilty.

LESSER INCLUDED CHARGE

Mr.Scroggins also contends that the trial court erred in refusing to give the jury an instruction on a lesser included offense. Although the methamphetamine sold to Cains weighed 91.900 grams, Mr. Scroggins asserts that because the drugs were only 10.2% pure, this amounted to less than 28 grams of actual methamphetamine, without any adulterants or diluents. Accordingly, says Mr. Scroggins, the jury should have been instructed that they could punish him for delivery of 28 grams rather than 91.900 grams.

Ark. Code Ann. § 50-64-401 (a)(l)(i) (Supp. 1991) clearly provides that the punishment is to be determined by the aggregate weight of the drugs “including adulterants or diluents”. Therefore, with adulterants and diluents, the methamphetamines sold to Cains have an aggregate weight of 91.900 grams, and the court’s instructions to the jury were correct.

Mr. Scroggins also asserts that he should have received a second probable cause hearing because the first one was not recorded. He does not cite any authority to support this position; nor does he explain how he was prejudiced by the failure to record this hearing. Assignments of error unsupported by convincing argument or authority are not considered on appeal. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 404 (1977).

NEWLY DISCOVERED EVIDENCE

Scroggins also contends that after it was too late to file a motion for new trial, he discovered that one of the jurors, Austin Ledbetter, was the former father-in-law of one of the persons to whom Cains sold drugs and that the former daughter-in-law, Kelly Ledbetter, was mentioned by name during the trial.

Scroggins claims he should have been granted a new trial because Kelly Ledbetter was one of the “victims” of Cains. However, Cains was not on trial. And, while Ms. Ledbetter may have been a buyer of Cains, she certainly was not victimized by him, at least not in the sense Mr. Scroggins implies. Once again, this argument is not supported by any authority. As such, we will not consider it on appeal. Dixon, supra.

ALLEGATIONS OF MISTRIAL

Mr. Scroggins lists situations in which the court erred in denying his motion for mistrial. First, he claims a mistrial should have been granted when the State mentioned that Scroggins had previously sold drugs to Cains (alluding to a statement Cains made at the suppression hearing.). The court denied the motion, correctly, because these “prior bad acts” go towards proving that Scroggins was at Cains’ home with the intent to sell drugs.

Secondly, he argues that a mistrial should have been granted when the State asked the chemist from the State Crime Lab whether Scroggins could have asked the chemist to have the purity of the drugs tested. As discussed earlier, the purity of the drugs is irrelevant because the gross weight includes diluents; thus a mistrial was not warranted here either.

And thirdly, Scroggins contends a mistrial should have been granted when the State asked questions of a witness about the conversation on the tape (of the bodymiked conversation between Cains and Scroggins). The judge denied the motion but told the witness to discuss what he saw not what he heard. No prejudice resulted so the trial court did not err in refusing to grant a mistrial. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).

The last mistrial argument involves the fact that the State did not provide the defense with the bodymiked tape of the second meeting between Scroggins and Cains. Again, Scroggins has not demonstrated any prejudice and the tape was not admitted into evidence at trial. Therefore, no mistrial was warranted.

Mr. Scroggins also argues that the trial court erred in admitting taped conversations of Cains and third parties. Although Mr. Scroggins objected to the tape initially, he agreed with the judge when the trial court said that he would admit the tape but admonish the jury that the tape had some transactions not relevant to the case. Obviously, Mr. Scroggins cannot now complain when he agreed with the trial court’s ruling. See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989); Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982).

SPEEDY TRIAL

For his final argument, Mr. Scroggins contends that the State failed to give him a speedy trial. He was arrested on September 29, 1990 but not tried until January 27, 1992.

Delays resulting from continuances given at the request of the defendant are excludable in figuring the time for a speedy trial. A.R.Cr.P. Rule 28.3(c); Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). The first order of continuance was filed May 28, 1991, and upon motion of the defendants, the case was continued from June 3,1991, until September 16, 1991. At the hearing on this motion, counsel for Mr. Scroggins said that he wanted the continuance to investigate Mr. Cains’ criminal record and to allow for independent testing of the drugs. The time was charged to the defense at their request. As counsel for Scroggins stated, “I think it’s the State’s fault for us having to ask for this continuance; but I would ask a continuance at this time charged to us.”

Upon motion of the defendant, a second order of continuance was granted on October 15, 1991, continuing this case from October 30, 1991 until January 27, 1992. In his brief, Mr. Scroggins contends that the delays were not his fault because the prosecutor failed to cooperate with discovery requests.

It is true that once the appellant presents a prima facie case of violation of speedy trial, the burden shifts to the State to show that the delay is the result of the appellant’s conduct or otherwise justified. Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992). Here, however, the continuances were at the specific request of Mr. Scroggins and were properly documented of record. Therefore, the State has shown that the continuances were excludable, and accordingly, there is not a speedy trial violation. While Mr. Scroggins contends that the continuances resulted from the State’s failure to comply with discovery, we have previously discussed and dismissed his discovery arguments.

Affirmed.


text:
    STATE of Arkansas v. Edward MAZUR
    CR 92-836
    847 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Dailey, West, Core, Coffman & Canfield, by: Eldon F. Coffman and Stanley A. Leasure, for appellee.
   Jack Holt, Jr., Justice.

This is an appeal by the State from the Polk County Circuit Court’s dismissal of a charge against Mr. Edward Mazur for theft of property, a class B felony, on the grounds that the three year statute of limitations, pursuant to Ark. Code Ann. § 5-1-109(b)(2) had not run and that even if the statute of limitations had run, the State was nevertheless entitled to commence prosecution under Ark. Code Ann. § 5-l-109(c)(l) (Supp. 1991) within one year after the offense should have been discovered by the victim because the offense allegedly involved “breach of a fiduciary obligation.” The State contends that an error was committed by the trial court which prejudices the State, and therefore, review is required for the “correct and uniform administration of the criminal law.” Ark.R.Crim.P. Rule 36.10(b-c). We disagree and dismiss its appeal.

This case arose due to the alleged theft by appellee, Mr. Edward Mazur, of an approximately $150,000 coin collection owned by his brother and nephew. Father and son, Mssrs. Stephen Mazur, Sr. and Jr., entrusted the collection to appellee in September 1982 for safekeeping.

Over the next nine years, Stephen, Sr. and Jr. made numerous attempts to retrieve the coins from Edward but to no avail. In early 1991 Edward admitted he had used at least thirty percent of the coins to finance an investigation into his son’s death. A bench warrant was issued for appellee in December 1991, and he was charged in January 1992. After an evidentiary hearing on appellee’s motion to dismiss due to the lapse of the statute of limitations, the circuit court dismissed the information stating that: “Pursuant to the provisions of Ark. Code Ann. 5-1-109(2), a prosecution for a Class B Felony must be commenced within three years after its commission. This prosecution is barred by the operation of the statute of limitations.” On appeal, the State submits that the circuit court erred in interpreting the statute of limitations provided in Ark. Code Ann. § 5-1 -109 (b) (2) and (c)(1) (Supp. 1991).

The State claims this court has jurisdiction over this matter as a question of “correct and uniform administration of criminal law.” As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. State v. Tipton, 300 Ark. 211, 779 S.W.2d 138 (1989). Ark.R.Crim.P. Rule 36.10(b-c) authorizes the State to appeal following a felony prosecution if “the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and the correct and uniform administration of the criminal law requires review by the Supreme Court.”

Clearly, the State’s argument that the trial court erred in dismissing the information against Mr. Mazur because the statute of limitations had not run does not involve the correct and uniform administration of criminal law. After an evidentiary hearing, the trial court determined that the statute of limitations had run on this felony. “Where the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark.R.Crim.P. 36.10.” State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992). Here, the State questions the trial court’s application of a statute to the facts at hand and not its interpretation, so the appeal must be dismissed.

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    ROUTH WRECKER SERVICE, INC. and John Ransom d/b/a Red Oak Auto Clinic v. M.C. WINS
    92-984
    847 S.W.2d 707
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      Robert A. Newcomb, for appellant Routh Wrecker Service.

      Barron & Barron, for appellant John Ransom.

      Howell Law Firm, by: Cary Basham, for appellee.
   Robert H. Dudley, Justice.

This case requires us to construe statutes that relate to the ownership of a stolen car. On May 11,1990, Connie and Shirley Aday of Russellville sold their jointly owned 1976 Cadillac automobile to Car Brokers, who, in turn, sold the car to M.C. Wins, a used car dealer. Wins testified that he paid $2,400.00 for the car and took an open title. He explained that this meant Car Brokers signed the certificate of title as the seller but did not list Wins as the buyer. Instead, the space for the name of the buyer recited “first re-assignment by licensed dealer only.” Wins testified that he did not register the transfer of ownership with the Commissioner of Revenues of the Department of Finance and Administration because a registered car dealer is not required to do so. Wins parked the car on his used car lot located on West Roosevelt Road in Little Rock, where he and a partner do business under the name of Nelson Auto Sales. The car was stolen from the lot on May 18, 1990, and Wins’s partner immediately notified the Little Rock Police Department. The police department prepared an information report on the stolen car.

The Little Rock Police Department recovered the car the next day, May 19, but Wins was not notified. The police called Routh Wrecker Service, Inc. and had that company tow the car to a secure area and impound it. The City of Little Rock and Routh Wrecker have a contract under which Routh Wrecker performs such services. The Little Rock Police Department apparently overlooked its information report because it only informed Routh Wrecker that Connie and Shirley Aday were the registered owners of the car. Routh Wrecker asked the Arkansas State Police whether the car was stolen, but that agency responded that it did not have a report of the car being stolen. Routh Wrecker sent a notice to the Adays that the car had been recovered and they could redeem it by paying the towing and storage charges authorized under Ark. Code Ann. § 27-50-1101 (Supp. 1991). The Adays did not redeem the car and notice of a proposed sale of the car to pay the charges was sent to the Adays. A notice of sale was published on August 3 and 17, 1990.

John Ranson, doing business as the Red Oak Auto Clinic, purchased the car at a public auction for $1,650.00. On January 2,1991, the Commissioner of Revenues issued a certificate of title reflecting the Red Oak Auto Clinic as owner of the car.

Some months later, Wins was sitting in his office on West Roosevelt Road and saw a car that looked like the stolen car being driven into the McDonalds restaurant next door. Wins still had the keys to the car. He took the keys and walked over to the car. The keys fit the door lock, and he unlocked the door. He then tried the ignition key, but it would not work. He went inside the restaurant and asked who owned the car outside. A lady said it was hers. Wins called the police. The lady was allowed to drive the car away.

Wins filed this suit for replevin. The trial court ruled that Wins was entitled to possession of the car. Routh Wrecker Service, Inc. and John Ranson, doing business as Red Oak Auto Clinic, appeal. The ruling of the trial court was correct and, accordingly, we affirm.

At common law our general rule was that title to stolen property remains in its rightful owner. In Superior Iron Works v. McMillan, 235 Ark. 207, 357 S.W.2d 524 (1962), we said this common law rule is now embodied in Ark. Code Ann. §16-80-103 (a) (1987), which provides: “All property obtained by larceny, robbery, or burglary shall be restored to the owner and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to the property.”

Appellants, Routh Wrecker and John Ranson, contend that Ark. Code Ann. § § 27-50-1101 to -1103 and 27-50-1201 to -1210 (Supp. 1991) have implicitly amended the common law rule now embodied in Ark. Code Ann. § 16-80-103.

The first of the two above cited statutes, which appellants contend have implicitly amended our statutory law, is Ark. Code Ann. § 27-50-1101. It provides that when a car is found abandoned on public property, a towing-storage firm may be requested to take possession of and store the abandoned car. After so doing, the towing-storage firm shall notify the last known registered owner that he or she may claim the car by paying all towing and storage charges. If the owner does not reclaim the car, the towing-storage firm may sell the car at public auction, deduct its charges, and, if the owner is not located, pay the remainder over to the State Highway and Transportation Department. The second of these statutes, Ark. Code Ann. § 27-50-1201, is similar in the material part, but adds that the towing-storage firm that removes an abandoned vehicle pursuant to a contract with a law enforcement agency, obtains a possessory lien on the car, and may foreclose that lien and the successful bidder at the foreclosure sale may obtain title to the car. This act provides that an “abandoned” car is one that is left unattended and “io which the owner has overtly manifested some intention not to retake possession.” Ark. Code Ann. § 27-50-1202(b)(l) (emphasis added).

A maxim of statutory construction is that implied repeals of statutes are not favored. Arnold v. City of Jonesboro, 227 Ark. 832, 302 S.W.2d 91 (1957). The General Assembly will not be held to have changed a law that it did not have under consideration unless the terms of the subsequent act are so inconsistent with the prior law that the two cannot stand together. Id. Here, the acts are not so inconsistent they cannot stand together. The prior act, Ark. Code Ann. § 16-89-103(a), provides that title to stolen property remains in its lawful owner. The subsequent acts, Ark. Code Ann. §§ 27-50-1101 to -1103 and 27-50-1201 to -1210, provide that an owner shall be liable for the towing and storage for an abandoned car, and the second of these acts provides that an abandoned car is one that is left unattended and to which the owner has overtly manifested an intention not to retake. Thus, there is no repugnancy so great that both the prior and subsequent acts cannot stand together. The prior act can be given effect where an automobile is stolen from the owner, and the subsequent acts can be given effect when the vehicle is abandoned by the owner.

In addition, while the title of an act is not part of the law, it may be referred to in order to help ascertain the intent of the General Assembly. Lyon v. White River-Grand Prairie Irrigation Dist., 281 Ark. 286, 664 S.W.2d 441 (1984). Here, the title to one of the subsequent acts, Ark. Code Ann. § 27-50-1101, states that it is to “Provide an Alternative Method for Property Owners to Dispose of Abandoned Vehicles. . . .” The title to the other subsequent act, Ark. Code Ann. §27-50-1201, states that it is to “Provide for the Removal of Unattended and Abandoned Vehicles. . . .” Both titles provide that the subsequent acts are to allow property owners to remove abandoned vehicles from their property.

Under our common law and under the express language of one of the subsequent statutes, abandonment requires a manifest act which expresses the intent of the owner to forsake his or her property. Property is abandoned when it has been thrown away, or its possession voluntarily forsaken by the owner. Eads v. Brazelton, 22 Ark. 499 (1861). In sum, the prior statute provides that title to stolen property remains in the lawful owner, and the subsequent statutes provide that an owner may lose title to his automobile by abandoning it. The statutes are not necessarily repugnant. Thus, on the argument presented, the trial court correctly ruled that appellee Wins had not lost title and was entitled to an order of replevin.

Affirmed.


author: Steele Hays, Justice.

text:
    MINERVA ENTERPRISES, INC. v. BITUMINOUS CASUALTY CORP.
    92-899
    851 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered February 22, 1993

      John I. Purtle, P.A., for appellant.

      Anderson & Kilpatrick, by; Frances E. Scroggins, for appellee.
   Steele Hays, Justice.

Minerva Enterprises, appellant, owns a mobile home park. Minerva’s lease agreement with its tenants provides for a septic system on the property to be maintained by Minerva. One of the tenants was away for several days and returned to find her mobile home flooded with solid and liquid sewage. The tenant filed suit against Minerva claiming it had failed to exercise ordinary care in maintaining the septic system. The tenant was awarded a judgment against Minerva and on appeal to this court the judgment was affirmed and the judgment was satisfied by Minerva. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).

Minerva carried a commercial liability insurance policy with Bituminous Casualty Corporation, appellee, and requested that Bituminous defend under its policy of insurance. Bituminous refused to defend or to indemnify based on a pollution exclusion endorsement contained in the policy.

Minerva filed a declaratory judgment action against Bituminous for its failure to defend. The trial court granted summary judgment in favor of Bituminous and Minerva brings this appeal.

Minerva’s general liability policy with Bituminous contained an exclusion for damage from pollutants. On that basis the trial court granted summary judgment for Bituminous, as stated in a letter opinion:

Furthermore, the policy excludes ‘waste.’ Raw sewage, liquid or solid is ‘waste.’ Reasonable people cannot debate these points. Therefore, there are no genuine issues of material fact.

On appeal, the disagreement between the parties concerning the insurance policy centers on the interpretation of the word “pollutants” as it is used in the policy exclusion. The exclusion is embodied in a special endorsement to replace the original pollution exclusion in the policy. The endorsement reads:

POLLUTION EXCLUSION

It is agreed that the exclusion relating to the actual, alleged or threatened discharge, dispersal, release or escape of pollutants is replaced by the following:
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.
(2) Any loss, cost or expense arising out of any governmental direction or request that the named insured test for, monitor, clean up, remove, contain, treat, detoxify or neutralize pollutants.
Subparagraph (1) above does not apply to bodily injury or property damage caused by heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one which becomes uncontrollable, or breaks out from where it was intended to be.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

Minerva makes two arguments. We find no merit in the first, which points to a definition of “waste” appearing in a separate endorsement which excludes coverage for nuclear material. This definition has no connection with the separate endorsement for pollutants, and the definition section of the nuclear material endorsement states specifically that the definitions apply to language “as used in this endorsement.”

The second argument is that the definition of “pollutants” in the policy was intended to exclude industrial wastes, not common household wastes, and at best, the definition is ambiguous. We agree.

The pollution exclusion is a recent innovation of the insurance industry that has spawned considerable litigation. Among the cases we find a group that deals with the definition of pollution. This line of cases supports the premise that the exclusion is intended to prevent persistent polluters from getting insurance coverage for general polluting activities, whether the insured or a third party, and was never intended to cover those who are not active polluters but had merely caused isolated damage by something that could otherwise be classified as a “contaminant” or “waste.”

The leading case in this group is Molten, Allen and Williams, Inc. v. St. Paul Fire and Marine Insurance Co., 347 So.2d 95 (Ala. 1977), where a land developer of a subdivision was sued by adjacent landowners for negligently causing sand and dirt to pass from the subdivision onto their property. The developer filed a third party complaint against its public liability insurer and the insurer defended on the basis of a pollution exclusion clause similar to the one before us:

[This policy does not] apply to bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. . .[but this endorsement doesn’t apply if the occurrence is sudden or accidental.]

The developer argued the exclusion only contemplated the discharge of industrial refuse into the environment and a reading of the exclusion as a whole, makes clear these exclusions were not intended to cover the unintentional washing of sand from rainfall into the plaintiffs’ lake. The developer also relied on the rule of ejusdem generis, that the specific examples following the general words, “irritants, contaminants or pollutants,” were of the industrial pollutant type. The appellate court agreed:

As noted [by appellant] the pollution exclusion clauses here, strictly construed, were intended to cover only industrial pollution and contamination. We agree with that position. We do not believe that the insured real estate developer, by a reading of the exclusion clause would reasonably expect that the alleged damage caused by its construction activity would be included in the descriptions set out in the “pollution exclusion” clause. In other words, while a liberal construction of the “pollution exclusion” clause would not include the damage allegedly caused by [appellant], the clause is not free of ambiguity. It is believed that the intent of the “pollution exclusion” clause was to eliminate coverage for damages arising out of pollution or contamination by industry-related activities. The use of specific industry-related irritants, con taminants and pollutants seem to indicate this was the reason for the exclusion. We judicially know that during the last decade, much emphasis has been placed upon protecting the environment. The pollution exclusion was no doubt designed to decrease the risk where an insured was putting smoke, vapors, soot, fumes, acids, alkalis, toxic chemical, liquids or gases, waste materials or other irritants, contaminants or pollutants into the environment. In any event, the clause here is ambiguous. [Our emphasis.]

The reasoning and holding of the Alabama court in Molton, supra, have been followed by most courts which have considered the problem. A-1 Sandblasting & Steamcleaning v. Baiden, 53 Or. App. 890, 632 P.2d 1377 (1981). (When spray painting a bridge, passing cars were hit by some of the paint. The court found that paint under these circumstances was not intended to be within the exclusion); Pepper Industries, Inc. v. Home Insurance Co., 67 Cal. App. 3d 1012, 134 Cal. Rptr. 904 (1977) (Plaintiff discharged gasoline into a city water system and a fire and explosion resulted causing damage to the system. Court held that fair reading of the exclusion did not include this type of damage).

In Grinnell Mutual Reinsurance Co. v. Wasmuth, 432 N.W.2d 495 (Minn. App. 1988), the court held the pollution exclusion did not apply to damage to a home caused by formaldehyde emitted from deteriorating insulation. “The ordinary reader of the exclusion would reasonably conclude that it would not limit coverage for respondents’ unexpected damage due to installation of building material in a home, but would exclude pervasive environmental pollution problems such as hazardous waste dumping.” The court also surveyed appellate decisions of other jurisdictions where the exclusion provision was held to apply. Without exception, it found elements in those cases, which included, e.g., wide-spread pollution, deliberate disposition of potentially hazardous waste or produced substances, none of which were present in the case before it.

The list includes recent cases. In Thompson v. Temple, 580 So.2d 1133 (La. Ct. App. 1991) tenants were overcome by carbon monoxide which leaked from a bathroom heater. The court held the pollution exclusion did not apply: “Pollution exclusion clauses are intended to exclude coverage for active industrial polluters, when businesses knowingly emitted pollutants over extended periods of time.” (Cites omitted.) And in Westchester Fire Ins. Co. v. City of Pittsburgh, Kan., 768 F.Supp. 1463 (D. Kan. 1991) the city’s spraying of malathion to control insects which resulted in some personal injury actions, was held not to be within the pollution exclusion. The court found the exclusion was intended to limit liability for environmental damage. The court elaborated, giving examples of suits that would occur if the exclusion were given an expansive reading:

If a child at a city pool complains about the chlorine in his or her eyes, the causative factor is a chemical but the city has not polluted the environment. If a fire hydrant sprays water on a passerby, that water may be an “irritant” to the person, but again the municipality responsible for the fire hydrant has not polluted the environment. If a city resident complains that the exhaust fumes from a city vehicle caused him or her breathing difficulty, the injury may be real but the city has not engaged in pollution.

See also Continental Casualty v. Rapid-American, 581 N.Y.S.2d 669 (App. Div. 1992) (Court found that asbestos dust and fibers were not a pollutant within the exclusion; West American Ins. Co. v. Tufco Flooring, 409 S.E.2d 692 (N.C. App. 1991) (Court held that fumes from company’s flooring work that permeated food, were not a pollutant of the type intended to be excluded in the policy); Broadwell Realty v. Fidelity & Casualty, 528 A.2d 76 (N.J. Super. App. Div. 1987) (“The exclusion was designed to decrease claims for losses caused by pollution by providing an incentive to industry to improve its manufacturing and disposal processes”).

A case almost identical to the one before us is U.S. Fidelity & Guaranty Co. v. Armstrong, 479 So.2d 1164 (Ala. 1985), where a pollution exclusion clause was invoked by the insurer. The City of Samson, Alabama, had hired a construction company to replace some existing sewer lines and during the construction raw sewage flowed onto adjacent land. Ms. Armstrong filed suit against the construction company which prompted a declaratory judgment action against the insurance carrier. The Alabama court, relying on its earlier decision in Molton, supra, found the exclusion (which included “waste”) should be strictly construed and was not free of ambiguity. Moreover, the court held this type of clause was intended to cover only industrial pollution and contamination.

We are persuaded by these cases and their rationale and find the pollution exclusion in the case before us is, at least, ambiguous. It is not clear from the language of the policy that the single back-up of a septic tank in a mobile home park is necessarily the kind of damage the clause was intended to exclude. We find appellant’s interpretation that it was intended for industrial polluters to be a plausible one. Further, while the word “waste” is used as one of the examples of pollutants in the policy definition, as mentioned in Molton, supra, under the rule of ejusdem generis, the term “waste” must be considered within the context of the entire list, all of which are pollutants related to industrial waste.

We hold there was an unresolved disputed issue of fact. See Tillotson v. Farmers Insurance Co., 276 Ark. 450, 637 S.W.2d 541 (1982). The initial determination of the existence of an ambiguity rests with the court, and if ambiguity exists, then parol evidence is admissible and the meaning of the ambiguous terms becomes a question for the fact finder. Pizza Hut of America Inc. v. West General Insurance Co., 36 Ark. App. 16, 816 S.W.2d 638 (1991).

The case is reversed and remanded for findings consistent with this opinion.

Corbin, J., dissents.

Donald L. Corbin, Justice, dissenting.

I dissent.

The top page of the insurance policy contains this sentence in bold letters:

THIS POLICY DOES NOT PROVIDE POLLUTION LIABILITY COVERAGE

The policy contained the following endorsement.

Pollution Exclusion
It is agreed that the exclusion relating to the actual, alleged, or threatened discharge, dispersal, release, or escape of pollutants is replaced by the following:
(1) Bodily injury or property damage arising out of the actual, alleged or threatened discharge, dispersal, release or escape of pollutants.
Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.

To me, the language of the pollution exclusion endorsement is clear and unambiguous. After stating that coverage for damage caused by pollutants is excluded, the pollution exclusion endorsement then enumerates a number of categories of substances which are classified as pollutants. The pollution exclusion endorsement states that pollutants means “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.”

The policy uses the word “any” before enumerating the categories of types of substances which are pollutants. The word “any” denotes that the terms are not all inclusive and that the terms should not be restricted in their meaning. The policy then lists “waste” as any type of substance excluded as a pollutant under the policy. The endorsement states that “waste includes materials which are to be recycled, reconditioned or reclaimed.” The policy, therefore, does not restrict the meaning of the term “waste” in the pollution exclusion endorsement. As the trial court noted, sewage can be and is recycled at waste treatment facilities on a regular basis.

The policy does contain a separate nuclear energy liability exclusion endorsement which is self limiting by its own terms. The endorsement reads:

NUCLEAR ENERGY LIABILITY EXCLUSION ENDORSEMENT
2. As used in this endorsement:
“Waste” means any waste material (a) containing “byproduct material” other than the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its “source material” content, and (b) resulting from the operation by any person or organization of any “nuclear facility” included under the first two paragraphs of the definition of “nuclear facility.” [Emphasis added.]

The language of the nuclear energy liability endorsement limits the application of the term “waste” as that language is used in the endorsement solely to the nuclear energy liability endorsement. The language of that endorsement should not be applicable to other endorsements contained in the policy. This is evident by use of the words “as used in this endorsement.” (Emphasis added.)

This reading of the language of the nuclear energy liability exclusion endorsement is not in conflict with the language used in the pollution exclusion endorsement and does not create any ambiguity. The pollution exclusion endorsement simply reads that “waste includes any materials which are to be recycled, reclaimed or reconditioned.” Certain equipment and materials referred to in the definition of waste in the nuclear energy liability endorsement can be recycled, reconditioned, or reclaimed.

I agree with the trial judge’s findings of fact and conclusions of law wherein he stated:

In the case at bar, the policy expressly excludes pollutants such as liquid and solid contaminants. It is undisputed that the underlying Complaint of Howlett involved liquid and solid sewage which by any stretch of the word is classified as a contaminant. This undisputed fact, in itself, excludes Bituminous from defending Plaintiff. Furthermore, the policy excludes waste. Raw sewage, liquid or solid, is “waste.” Reasonable people cannot debate these points. [Emphasis added.]

Some 30 years ago, we said in American Homestead Ins. Co. v. Denny, 238 Ark. 749, 384 S.W.2d 492 (1964) that the court must construe the language used by the parties in the contract of insurance in a “common sense” manner by considering the meanings of terms used as they are taken and understood in their plain, ordinary and popular sense. Any reasonable and common sense interpretation of the word “sewage” would classify sewage as a “contaminant.” Since sewage is a “contaminant,” any property damage arising from actual or alleged release or discharge of sewage is excluded under the terms of the policy.

The trial court properly granted the judgment in favor of appellee and the judgment of the trial court should have been affirmed.