author: George Rose Smith, Justice.

text:
    Kenny J. HALFACRE and Walter A DUTY v. STATE of Arkansas
    CR 79-216
    598 S.W. 2d 89
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980
    Rehearing denied June 16, 1980

      James E. Davis, for appellants.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a postconviction proceeding based upon charges of ineffectiveness of counsel. After an evidentiary hearing the trial judge entered an order finding no merit in the various allegations relied upon by the two appellants. We affirm his decision.

The appellants were convicted of aggravated robbery, in that they used a pistol in robbing James Green at his grocery store and filling station in Fulton on January 27, 1978. As indicated by our opinion on the first appeal, the State’s proof, which was accepted by the jury, was very nearly conclusive of the appellants’ guilt. Halfacre and Duty v. State, 265 Ark. 378, 578 S.W. 2d 237 (1979)- Green testified that two white males, driving a yellow Datsun 280Z, robbed him of an estimated $300, using what appeared to be a blue-steel .22-caliber pistol. Green at once notified the police. The appellants, driving a yellow Datsun 280Z, were apprehended in about 20 minutes after a short chase. The officers searched the suspects and the car, finding a blue-steel .22-caliber pistol and about $262 in currency. An additional sum in change was found, in the car the next day. At the trial Green identified the defendants as the robbers.

Larry Patterson, an attorney experienced in handling criminal cases, was appointed to represent the two defendants. His partner, Joe Short, assisted him in preparing the case. Patterson died within three months after the trial, but there were notes in his file describing some of the work that he had done in the case.

About three days after the trial Halfacre wrote a letter to the trial judge complaining, among other things, about Patterson’s representation of the defendants. That letter, with a later amendment, was treated as a motion for a new trial for ineffectiveness of counsel. We discuss its assertions first, because the State had notice of those allegations and an opportunity to rebut them.

At jhe trial the defendants relied upon an alibi, testifying that they were in Hope or in that vicinity at the time of the robbery. Halfacre, in his letter to the judge, complained that the defendants had told Patterson there were some witnesses in Hope who might remember the defendants and help prove their innocence, but Patterson had not sought out those witnesses. Neither the names of the witnesses nor the places where they might be found were disclosed. Patterson’s notes recite that the defendants said they had no witnesses to offer. Short testified that the defendants said they had stopped at a service station in Hope, but they could not remember the station, who waited on them, or even where the station was. Short, nevertheless, visited service stations in an effort to find possible witnesses, but he had no success. Thus the appellants’ position narrows down to this: Despite the State’s overwhelming proof of guilt, the defendants were somewhere else at the time. The attorneys were at fault because they could not find witnesses to corroborate the defendants’ alibi, even though the defendants were unable to identify the witnesses or to say where they might be found. Such unfounded charges obviously do not call for a new trial.

In the letter Halfacre complained that Patterson had been ineffective because he was seeking a political office at the time. That implication of ineffectiveness was rebutted by the State’s proof that Patterson did not campaign until after office hours.

Later on, after Halfacre had consulted the prison law library, he complained that Patterson had not objected, during Halfacre’s cross examination, to a reference to a previous criminal conviction that was more than ten years old. Halfacre cited Uniform Evidence Rule 609 to support his argument. An objection certainly could have been made; but whether it should have been made, emphasizing the reference still further, was a question of judgment. The reference was to some extent invited, in that Halfacre volunteered the information that he had served time in Arkansas (in addition to other more recent convictions in Arkansas for forgery and uttering and in Florida for manslaughter). It is settled that the mere showing of errors, omissions, improvident strategy, or bad tactics on the part of counsel is not sufficient to prove prejudicial incompetence. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975). In this instance, had an objection been made the court might have ruled that any possible error was invited. In any event, a single instance of questionable tactics, by counsel with respect to a collateral matter falls far short of satisfying the appellants’ burden of proving ineffectiveness of counsel.

Various complaints are made about a pretrial line-up at which two witnesses, presumably Green and his wife, identified the two suspects. As far as the line-up itself goes, the appellants consented to it, Patterson was present and apparently was satisfied, and Patterson recorded in his notes that both defendants were identified by the victims “without a doubt.” Moreover, a photograph of the line-up was considered at the evidentiary hearing, but that photograph has not been brought up with the record for our inspection. Finally, there is no showing that any supposed defects in the lineup were such as to lead to a misidentification at the trial.

Counsel argues that, in view of our holding in Sims v. State, 258 Ark. 940, 530 S.W. 2d 182 (1975), Patterson should have requested a pretrial hearing with regard to the line-up. We did not so hold in Sims, where we were considering a lineup at which counsel had not been present. Here Patterson was present at the line-up and seems to have been satisfied by his own observation that it did not taint the in-court identification. If that was the situation, it was not his duty to request a pretrial hearing. To the contrary, a lawyer would be subject to censure if he chose to waste the court’s time with a hearing he thought to be unnecessary and useless.

At the hearing below Halfacre testified about various details that were not in his motions and of which the State had no notice. He said, for example, that after the trial he asked Patterson why he had not objected to the reference to the old conviction, and Patterson replied that he was allowed only six objections and he had used them all. Halfacre elaborated on the subject of missing witnesses, saying for the first time that he had been shopping for a nightgown for his wife and had gone into a certain shop. We need not enumerate all the statements made by Halfacre, because the ultimate question of credibility was for the trial judge to decide.

What seems to have happened is that Halfacre, by resorting to the prison library and perhaps to his imagination, raised a number of objections in connection with his case. He does not seem to realize that such an objection is without merit unless the error or omission is of such a nature as to have had a possible effect upon the outcome of the trial. That kind of proof is wholly lacking. We are convinced that the appellants received a fair trial and that their burden of showing incompetency on the part of their counsel has not been sustained.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Curtis RUSSELL v. STATE of Arkansas
    CR 80-30
    598 S.W. 2d 96
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980

      Jack Holt, Jr., for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Curtis Russell was convicted of first degree murder in the Jefferson County Circuit Court and sentenced to fifteen years imprisonment.

On appeal he alleges three errors, one of which has merit requiring us to reverse his conviction.

Russell was charged with killing Charles E. Chandler on the 28th day of July, 1978, in the town of Jefferson. Chandler was the husband of Pam Chandler, a female employee of Russell’s at his bait shop located in Jefferson.

The proof showed that Chandler was shot with a shotgun at his salvage yard, which is located next to his residence. Sometime after 9:00 p.m., or- thereabouts, he discovered a vehicle on fire in his salvage yard. He went to investigate the fire and was killed. There were no eyewitnesses.

Strong circumstantial evidence linked Russell to the crime. It revolved around a 12-gauge shotgun that Russell had borrowed about two weeks before the killing. There was also testimony that Russell had made several statements that could be interpreted that he intended to do away with Chandler. The same night that Chandler was shot, and about the same time, Russell returned to shotgun to its owner. Early the next evening he bought the gun from the owner for $100.00 and later that same evening, the day after Chandler was shot, he gave the gun to a friend of his named Roger Van Dyke, Jr., who lived in Blytheville. Van Dyke was in Jefferson and was going to return to Blytheville. There was testimony that Russell asked Van Dyke to take the gun to Blytheville and get him another shotgun. It was Van Dyke’s testimony that presents the main issue before us.

Before the trial Van Dyke had suffered three heart attacks and his doctor verified by affidavit that he could not attend the trial. The prosecuting attorney filed a motion to obtain a court order to take Van Dyke’s deposition. The prosecuting attorney conceded in his motion that there was no statutory authority for such a procedure but alleged that the court had inherent power to authorize the taking of the deposition. The trial judge agreed and approved the order and the deposition was taken by means of a video tape recording. It was presented to the jury as evidence and after the jury retired to deliberate, it returned and asked to review the tape.

Russell argues that the court had no power to authorize the taking of the deposition and it was prejudicial error. It is also argued that it was error to permit the jury to review the video tape. A third error argued is that pictures submitted to the jury were inflammatory. There was no objection made by counsel to the jury’s reviewing the video tape and, therefore, we do not consider that allegation of error on appeal. Dyas v. State, 260 Ark. 303, 539 S.W. 2d 251 (1976). The photographs are not in the record, not before us, and we cannot consider the merits of that argument.

While we have approved the use of a video tape recording in taking depositions, that is only in an instance where a deposition is lawfully authorized. King v. Westlake, 264 Ark. 555, 572 S.W. 2d 841 (1978). The King case was a civil case and a deposition was permitted by statute in that, case. This is a criminal case and Arkansas law did not authorize a prosecuting attorney to take a deposition of a witness which could be used as evidence in a trial. The State concedes this. That is what Ark. Stat. Ann. § 43-2011 (Repl. 1977) says. That statute reads in part:

The Court . . . may authorize a defendant to take the deposition of a material witness. . . . [Emphasis added].

The State argues that it is unfair to permit only a defendant to take a deposition and, therefore, the trial judge was not wrong in holding that the Court had inherent authority to permit the deposition to be taken by the State and used. We held in Missouri & North Arkansas Railroad Company v. Daniels, 98 Ark. 352, 136 S.W. 651 (1911) that the right to take depositions in a law case rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists. That is still the law in Arkansas. Consequently, the court was wrong in permitting the deposition to be taken and used.

The State points out that on the 18th of April, 1979, the day after this trial, Act 1022 of 1979 became effective chang-. ing Ark. Stat. Ann. § 43-2011 to permit both sides in a criminal case to take depositions and use them. That is correct, but that was not the law when this case was tried. We cannot retroactively apply such a law and, consequently, hold that it has no bearing on the decision of the trial court nor our decision in this case.

Reversed and remanded.

Holt, J., not participating.


author: John I. Purtle, Justice.

text:
    Roosevelt HAYES v. STATE of Arkansas
    CR 77-160
    598 S.W. 2d 91
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980

      Robert A. Newcomb, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

On January 31, 1977, the jury convicted appellant and a co-defendant of murder in the first degree. Appellant was sentenced to life imprisonment. Both defendants were represented by the same public defender.

On appeal it is insisted that the trial court erred (1) in giving an erroneous instruction; (2) in admitting appellant’s confession into evidence; (3) in admitting the co-defendant’s cross-implicating confession into evidence; and, (4) in requiring the same attorney to defend both defendants.

We hold that none of the alleged errors were prejudicial and affirm the trial court.

Loretta “Rabbit” McGowan lived in the same dwelling with Beverly Lewis and Roosevelt Hayes for a period of time until she was murdered on October 12, 1976. The police learned of the murder shortly after it was committed, and the early stages of their investigation took them to appellant’s house in order for the police to find some beginning point. They knew the deceased had been living with appellant and Beverly Lewis at 1605 Arch Street in Little Rock, Arkansas. They approached appellant at this address in an attempt to learn when and where he had last seen the murdered girl.

Hayes voluntarily accompanied the officers to the Little Rock Police Department where they talked to him about the activities of the deceased acquaintance during the day of her murder. After appellant gave conflicting stories about when and where he had last seen the victim, the police decided he was a possible suspect; and, he was given the standard Miranda warnings at that time. Subsequently, he gave a written confession which stated that details of the murder and the events leading up to it.

The statement included a description of how he beat “Rabbit” with a chain before he, Beverly, and a third party drove her to an isolated road near the Little Rock airport where she was killed. The appellant stated in the confession that he handed the gun to Beverly Lewis who fired the first shot, and then he took the gun and fired three more shots at the victim’s head.

Officers Reed and Keel first talked to appellant at his residence and then drove him to the police station for the purpose of obtaining a witness statement. Detective Chapman apparently took charge when they arrived at the station. Lieutenant Moore also took some part in the investigation or interrogation. Moore’s part in the questioning apparently was limited to two statements: “You might as well tell us the truth because we are going to find out,” and “What the son-of-a-bitch got, she deserved.” Moore was not present at the Denno hearing.

Officers Chapman and Reed conducted the primary questioning and wrote the confession which was subsequently signed by the appellant. Apparently, Chapman became suspicious when appellant told several stories about when he had last seen the deceased. At this time the Miranda warning was given to appellant, and he was asked to take a trace metal test. The test was positive, and the confession followed shortly thereafter at 11:00 p.m.

Appellant had been at police headquarters about 20 minutes before he was given his Miranda warnings. The officers insisted that up until that time he was not a suspect in the case.

At the trial the appellant admitted signing the confession that was introduced into evidence. The officers testified they informed the appellant he had the right to have a lawyer at that time, and it was undisputed that he did not request a lawyer that night. Appellant states he did not request an attorney that night because he was told by one of the officers that it would be morning before he could see one.

Both appellant and the co-defendant took the stand in their own behalf at the joint trial, and both of their cross-implicating statements were read into evidence over the objection of their attorney.

At no time did the court suggest separate counsel for the two defendants nor did the appointed counsel request a severance or separate representation.

The first argument presented by appellant for reversal was the court erred in giving an erroneous instruction. At the close of the evidence, the court gave an instruction which included the following words:

One is presumed to intend the natural and probable consequences of his action.

Defense counsel made a general objection to this instruction. The specific objection appears for the first time on appeal and is therefore not timely made. It is true the words were technically incorrect as they related to the intent of the appellant. However, the appellant’s “intent” was not seriously disputed or contested during the trial. All of the evidence clearly reveals appellant fully intended to do what he did. Appellant’s own confession shows his intent to murder the victim or to have his girlfriend do so. It makes no difference that Beverly Lewis fired the fatal shot as appellant planned it or that appellant handed the pistol to her and told her to shoot. In Wilson & Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977), we held that failure to make a specific objection would be forgiven only if the resulting prejudice was so great that no objection or admonition to the jury could have undone the damage or erased the effect of the error. We do not feel the error here was so prejudicial as to require us to overlook the failure to make a specific objection.

For his second point of reversal, appellant argues his confession was erroneously admitted because Lieutenant Moore was not present at the Denno hearing. The only part played by Moore in the confession, according to appellant, were the statements: “You might as well tell us the truth because we are going to find out,” and “What the son-of-a-bitch got, she deserved.” We agree that the state is required to produce all material witnesses at the Denno hearing. In this instance we do not believe that Lieutenant Moore was a material witness because of his limited participation and the lack of any allegations that he could have contributed to anything toward resolution of the question.

Appellant alleged he was afraid he would be shot it he tried to leave the police station. However, he admits no one told him this and further states he was not mistreated. In fact, he was given a cup of coffee in an effort to try to calm him before giving the confession.

In viewing the Denno hearing in the totality of the circumstances, we think the confession was properly admitted. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). In fact, the appellant admitted he had given the statement and had it read to him before he signed it. His only change at the Denno hearing was that part of what he had told them was a lie. Considering the overall facts surrounding the confession, it was not improper for the court to admit this confession.

Appellant further argues the confession should not have been admitted because he was not given his Miranda warnings prior to his statement being taken. The officers testified that the Miranda warning was given at the time they became suspicious of the appellant and that it was proper in all respects. The warning included a statement that the appellant had a right to an attorney prior to continuing with the statement. Although appellant stated at the trial that he was told it would be morning before he could see a lawyer, the written statement contradicts this. The appellant was entitled to be informed that he could have a lawyer prior to interrogation and that he could stop the interrogation at any time he wanted to. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971). The rights form was read and explained to appellant, and it was introduced into evidence. It reads as follows:

I have been advised that I am suspect in a MURDER. That I have the .right to use the telephone, that I have the right to remain silent, that I have the right to talk with an attorney, either retained by me or appointed by the court, before giving a statement, and to have my attorney present when answering any questions. I have also been advised if I waive these rights I have the right to stop the interrogation at any time. Also, that any statement I give will be used in a court of law against me. I have read the above statement of my rights and I understand them. No promises or threats have been made to induce me into making a statement.

The above statement meets the requirements of Miranda as well as our own requirements in Moore.

For his third point of reversal, appellant argues it was error to admit the interlocking, cross-implicating confession of the co-defendant. He relies upon Bruton v. United States, 391 U.S. 123 (1968), as authority for preventing introduction of the co-defendant’s statement. However, in Bruton the co-defendant did not take the stand as the co-defendant did in the present case. The primary holding in Bruton was that the co-defendant did not take the stand and thereby deprived the defendant of his right of cross-examination of the adverse witness. This is not true in the present case.

We agree with appellee that Parker v. Randolph, 442 U.S. 62 (1979), is controlling. Parker holds that when a defendant’s own confession is admitted into evidence it renders the co-defendant’s confesssion much less damaging. It also removes the primary objection of the ability to confront the witness, which was the thrust of the Bruton case.

In the present case the co-defendant was subjected to cross-examination thereby rendering Bruton, supra, inappropriate and Parker supra, appropriate as authority for admitting the co-defendant’s implicating statement. We are not unmindful that in Parker, supra, some of the defendants were permitted to utilize the Bruton rule. Even though the case was reversed as to Parker, it was affirmed as to Pickens, another co-defendant. In Parker, supra, the court stated:

The issure before us in this case is whether Bruton requires reversal of a defendant’s conviction when the defendant himself has confessed and his confession “interlocks” with and supports the confession of a co-defendant. We hold that it does not.

Therefore, it was not error to admit the statement of the co-defendant.

The final argument made by appellant is that he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel. We recited in the factual portion of this opinion that neither the trial court nor the defense counsel suggested a severance of the trial or the appointment of separate counsel for the two co-defendants. Therefore, this matter is brought for the first time on appeal.

Appellant relies primarily on Holloway v. Arkansas, 435 U.S. 475 (1978). It is interesting to note that the same defense attorney was involved in the present case and the Holloway case. In Holloway the defense counsel made numerous and stringent objections to being required to represent multiple defendants. He argued it was a conflict of interest between the defendants, but the court refused to appoint separate counsel.

We agree that ordinarily a court should inquire as to whether or not there is possible conflict of interest when an attorney is appointed to represent more than one defendant. The best policy is to appoint separate defense counsel; unless it can be clearly determined before the trial starts that there will be no conflict of interest.

In Holloway, supra, the Supreme Court of the United States relied on Glasser v. United States, 315 U.S. 60 (1942), when it required separate appointment of counsel in order that the defense be untrammeled and unimpaired through the efforts of one counsel to defend multiple defendants. Joint representation frequently results in a conflict of interest; however, the court in Glasser stated that single representation of multiple defendants is not per se violative of constitutional guarantees of effective assistance of counsel. The Court expressly recognizes that in some cases multiple defendants can be appropriately represented by single counsel.

In the present case there is no instance of a conflict between the co-defendants. Each implicated the other, but there was no “shifting of the blame” from one to the other. Keeping in mind that an accomplice is as guilty as the principal, we are unable to find any evidence of any conflict of interest in the facts of this case. In addition to the alleged error being without foundation, we are free to reject it on the theory of it being raised for the first time on appeal.

Affirmed.


author: John F. Stroud, Justice. John I. Purtle, Justice,

text:
    Virgil SHANNON et al v. Bill G. ANDERSON et al
    80-63
    598 S.W. 2d 97
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980
    Rehearing denied June 30, 1980

      Gordon & Gordon, P.A., for appellants.

      Dan Stripling, for appellees.
   John F. Stroud, Justice.

This is a suit between stockholders where both appellants and appellees seek an order restraining the other from interfering in the operation of a closely held manufacturing business. After the chancellor enjoined appellants, both parties amended their pleadings seeking money damages from the other. The court awarded judgment against appellants for $4,874.46, but determined that appellants were entitled to certain assets of the corporation. Appellants appeal from both orders and appellees cross-appeal from the second order. We find no error in the proceedings and affirm the chancellor on all points.

Appellees were operating a tractor manufacturing business in Clinton, Arkansas, incorporated as Anderson’s Custom Trailer Manufacturing, Inc. (hereinafter Anderson’s). They owned one-half of the stock in the company and the other half was owned by Joe and Nann Dudzik. The Dudziks wanted to completely withdraw from the company and did withdraw the tools and equipment they had put in Anderson’s in exchange for their stock. However, they were allowed to keep their stock as “security” until the company paid off a $ 140,000 SBA loan that the Dudziks had personally endorsed, but at that time they were to transfer their stock to appellees.

Anderson’s was in financial difficulty so appellants began talking with appellees during the latter part of 1977 about buying an interest in the business. Without a written agreement, appellants began advancing money to Anderson’s in February of 1978 on the assumption that the written agreements would follow. Appellees transferred their stock in Anderson’s to appellants, which appellants contend was part of a verbal agreement that would cause the company to be owned 30% by each appellant, 30% by appellee Bill Anderson, and the remaining 10% as treasury stock when the SBA loan was paid off and the Dudzik stock was surrendered. Appellees contend that the advances were loans to Anderson’s and that they transferred their stock to appellants as “security.”

There is no dispute that appellees were to devote their time to manufacturing trailers and appellants were to sell the finished products. Due to the SBA loan which limited the borrowing power of Anderson’s, appellees suggested that a separate company be formed to handle the sales. In March of 1978, appellants presented a pre-incorporation agreement, but appellees refused to sign, saying they disagreed with several of the provisions. Nevertheless, Bill Anderson (one of the appellees) signed the articles of incorporation for the new company and Homesteader Manufacturing Co., Inc. (hereinafter Homesteader) was formed. Bill Anderson did not put money in Homesteader, but appellants put $3,000 in for him and he was issued one-third of the stock. Appellants continued to put money into both companies until July of 1978 when appellants and the Dudziks held a stockholders and directors meeting of Anderson’s without notice to appellees. The stock book of the company was posted to show that appellees were no longer stockholders, a new board of directors was elected omitting appellees, and Bill Anderson was dismissed as President of the company and as an employee. They also crossed out Bill Anderson’s name from a prior meeting of Homesteader where he had been elected as a board member and officer. Additionally, appellants transferred the funds of. Anderson’s to another bank unaccessible to appellees and stored 72 tractors in Conway. They mortgaged 60 of them for $60,000, and allegedly kept the money as repayment of loaned funds. Appellants claim they took this action because an IRS tax lien was discovered, appellees deposited to their personal account some very old payroll checks, appellees were selling tractors and putting the proceeds in Anderson’s rather than Homesteader, and appellees were making house payments from the company account.

When appellees refused to turn control of the business over to appellants, appellants brought an action seeking to enjoin appellees from interfering with appellants’ operation of Anderson’s. Appellees filed an answer and counterclaim seeking the same relief. On September 21, 1978, after hearing evidence on the issue of who should control Anderson’s, the trial court found that there was no meeting of the minds on the proposed pre-incorporation agreement and that appellees should retain control of the business. After several amendments of the pleadings, appellants claimed appellees owed them $46,808.53, and appellees claimed appellants were indebted to them for $25,621.39- Trial was held on December 21, 1978, and after hearing the testimony of the parties and their accountants, and considering the numerous documents presented, the chancellor found that the appellants were indebted to appellees in the amount of $4,-874.46. From the injunction and judgment of the trial court, appellants bring this appeal, and appellees cross-appeal alleging their judgment should be increased by $570.41.

Appellants first contend on appeal that the trial court erred in enjoining appellants from interfering with appellees’ operation of Anderson’s, and that the injunction should have issued against appellees. Appellants say that they should have control of Anderson’s due to the part performance of the unsigned pre-incorporation agreement and the transfer of appellees’ stock in Anderson’s to them. However, appellees claim that it was never their intention to transfer control of the corporation to anyone, and the stocks were merely to be held by appellants as security for the money advances. Bill Anderson testified, “Really, we never reached an agreement. We never did get down to making what you’d call a firm agreement.” The trial court found that “basically while these parties started out to enter into an arrangement which apparently would have been mutually beneficial to them, . . . that agreement was never consummated and never put into practice. . . ” Unless the Chancellor’s findings are clearly against the preponderance of the evidence, they will not be disturbed. Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Minton & Simpson v. McGowan, 726, 510 S.W. 2d 272 (1974); Arkansas Rules of Civil Procedure, Rule 52(a). We cannot say that the Chancellor’s ruling as to who should control Anderson’s was clearly against the preponderance of the evidence, for there was sufficient evidence indicating that the parties never actually reached an agreement, that the delivery of appellees’ stock to appellants was not an outright transfer, and that the meeting ousting appellees as officers and directors of Anderson’s was not a valid meeting.

Appellants’ next five points for error all relate to the financial dealings between the parties and the companies. The adjustments, credits and set-offs are complicated but are in the nature of an accounting between the parties and the companies.

Appellants contend the court erred in failing to recognize a credit due Homesteader for certain parts and attachments obtained from Brinley-Hardy and either used by appellees or returned to Brinley for credit. They claim they should be credited $12,325.30 for these parts and attachments. Appellees controvert the claim and assert that appellants failed to account for two truckloads of these materials which, according to the testimony of appellee Bonnie Anderson, they took from the Anderson plant when Bill Anderson was out of town.

Appellants next contend that the trial court erred in failing to credit Homesteader for an account sold by them to Twin City Ford Tractor Company in the amount of $1,-530.75, which was allegedly paid to Anderson’s. As none of the parties gave any testimony concerning this payment, the only evidence adduced addressing the issue was an exhibit of appellants’ which was marked with the notation “Pd. Anderson.” Who made the notation, whether this account was ever actually paid, and if so, to whom, remains very much in dispute.

Appellants also assert that the trial court erred in failing to credit Homesteader in the amount of $38,247.19 for the profits from the sale of their tractors by Bill Anderson. In keeping with the understanding that Anderson’s would manufacture the tractors and Homesteader would market them, Anderson’s had invoiced several hundred tractors to Homesteader at the wholesale price. Only 141 of the tractors were resold by Homesteader, but around 60 of them were used as collateral by appellants for a $60,000.00 loan from the First State Bank of Conway. Appellees contend that when appellants mortgaged the 60 tractors and withdrew almost all of the funds form the business account, they were justified in “reselling” some of the tractors themselves, believing that appellants had decided to withdraw from the business. Appellees contend that Homesteader was credited with the wholesale purchase price originally charged for the tractors, but appellants claim the retail profits should be credited to Homesteader on the tractors sold by appellants.

Appellants next allege that the court erred in ruling that Homesteader was entitled to the worthless accounts receivable and in charging Homesteader with them. It appears that neither side to this dispute really wants these accounts receivable, presumably due to the anticipated difficulty in collecting them. Appellants argue that if appellees get to keep the profits realized by the sale of the tractors by Bill Anderson, then appellees also should be charged with a portion of the accounts receivable.

Appellants’ final contention concerning the accounting items is that they should be credited with a sum of money resulting from Homesteader’s sale of some tractors for which they never received payment, but for which Anderson’s allegedly did receive the payment. The testimony did not reflect just how many tractors or what amount of money was involved. Appellants say they requested the trial court to require appellees to provide the amount of payment allegedly received by them in this particular transaction, and they urge that the court erred in failing to require appellees to do so. On the other hand, appellees claim that appellants twice had an opportunity to question appellees about this matter while they were testifying, and they contend that appellants never asked the trial court to require appellees of furnish such information.

The contention of appellees on cross-appeal also concerns the accounting items and they claim they should have been awarded an additional $570.41 in resolution of the dispute over the Brinley parts, mentioned earlier as one of appellants’ points of error. In response, appellants assert that the evidence did not necessarily show that they took any of the Brinley parts in question, and the chancellor’s decision is not contrary to the evidence.

The five points for reversal urged by appellants relating to the accounting items and the point raised by appellees on their cross-appeal are purely disputed questions of fact. Not one statute nor case is cited by the parties to support their contentions on these points. The transcript of the proceedings contains 388 pages plus numerous exhibits. Following the testimony of the last witness at the second hearing, the chancellor took the matter under advisement for further review of his notes and the exhibits before rendering his memorandum opinions and decree. The testimony of the parties was contradictory on most points, and the adjustments urged by the accountants for the parties were rarely in harmony. The trial court occupied a better position than this court to observe the demeanor of the witnesses and unless his findings are clearly against the preponderance of the evidence, they will not be disturbed. Digby v. Digby, supra. It is obvious in deciding the accounting points that the chancellor was attempting to equitably return the parties to their original positions inasmuch as he found they had not reached a meeting of the minds on the proposed agreement. The accounting points are so interrelated and involved with the many transactions between the parties and the companies, we are unwilling to substitute our judgment on any one point for that of the chancellor. There was certainly no error of law, and we cannot say the findings of fact by the chancellor were clearly erroneous.

Appellants’ last point alleges that the judgment should have been against Homesteader rather than appellants Virgil Shannon and Dewey Shannon. This action was brought originally as individuals against individuals, but after the injunction against appellants was issued, both Anderson’s and Homesteader were allowed to intervene. The chancellor apparently considered the real dispute to be between the individuals and the companies’ involvement as merely collateral. Appellants cite no authority for this contention in their brief, and we will not consider assignments of error unless they are supported by convincing argument or authority. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977).

The order and decree of the trial court are affirmed.

Fogleman, C.J., and Purtie, J., dissent.

John I. Purtle, Justice,

dissenting. This is a most difficult case to understand due to the complicated manner in which the records were kept by both parties. However, I do not agree with the majority in the matter of the McCallister credit memorandum No. 3310 which is the same materials as those mentioned in Connor’s memoranda Nos. 9, 10, 12, and 21. These will be referred to as the Brinley-Hardy merchandise.

It is not disputed that the Brinley-Hardy materials were returned to Anderson. Conners places the value of these parts and attachments at $12,325 because that was the figure McCallister used. Conners had originally thought the amountshould have been slightly higher. The dispute about these items is whether these items should have been credited to Anderson or Shannon.

The Brinley-Hardy materials did not meet the required specifications but were retained by the Andersons. Some of these parts were used by Anderson and other parts were in their warehouse. Mrs. Anderson claims the Shannons took some of these parts, but the Shannons denied doing so. Shannon did admit hauling off a couple of loads of tractors but stated they were part of the 60 units which were floor planned at Conway by Homesteader. Under this contention, none of the Brinley materials should have been charged to Shannon.

Apparently, the court believed Shannon did not take any Brinley parts. If so, then they should have been charged with invoice No. 3310, which is the same as Conners’ credit memos Nos. 9, 10, 11, 12, and 21. Appellants abandon claim to memo No. 11 there by reducing the disputed amount to $12,095.36.

It appears the chancellor erred in not allowing the Shannons credit for invoice No. 3310. If the court did not believe the Shannons as I think he did, then this part of the decree is against the preponderance of the evidence.

I am authorized to state that Fogleman, C.J., joins me in this dissent.


author: Richard L. Mays, Justice.

text:
    B. J. RALSTON et al v. Harold POWERS et ux
    80-48
    598 S.W. 2d 410
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980
    Rehearing denied June 23, 1980

      Martin & Vater, for appellants.

      Rose, Kinsey & Cromwell, by: William M. Cromwell, for appellees.
   Richard L. Mays, Justice.

This is a suit in equity for ejectment in which a quiet title claim of adverse possession was added to appellees’ complaint after appellants answered. In their answer appellants not only requested that the chancellor dismiss appellees’ complaint for lack of merit but prayed alternatively that legal title to certain land be confirmed in appellants or that appellees’ action be transferred to circuit court. The chancellor retained jurisdiction and quieted title in appellees on their claim of adverse possession. The major questions on appeal are: (1) whether the chancellor had jurisdiction to quiet title and (2) whether the chancellor’s finding of adverse possession is against the preponderance of the evidence. We sustain the chancellor on both issues.

Appellants, the Ralstons, and appellees, Harold and Pauline Powers, are adjoining property owners in Greenwood, Arkansas. Appellees acquired title to their property in June of 1972 from Mrs. Powers’ father, W. L. Bryan, who had owned and resided on the property since 1936. The appellants acquired their property in March of 1979 from Mr. Ralph Smoot who had owned and resided on his property for more than forty years. Sometime before 1950 Mr. Bryan and Mr. Smoot constructed a rock wall along the edge of Mr. Smoot’s driveway from the front of his property line to his garage. Thereafter, Mr. Bryan, and subsequently the appellees, maintained the property on their side of the rock wall and Mr. Smoot maintained the property on his side of the rock wall. No dispute arose over the location of the rock wall until appellants had the property surveyed shortly after they purchased it from Mr. Smoot. The survey revealed that the rock wall extended approximately three feet past the common boundary line onto appellants’ property. Taking possession of this strip of land, appellants constructed a chain link fence along the boundary line as determined by the survey, removing a part of the rock wall in the process. Appellees filed suit in chancery to eject the appellants and establish their title.

Appellants contend that the chancellor was without jurisdiction to determine appellees’ claim because appellees were not in possession of the disputed strip of land at the time they initiated suit. Appellants primarily rely on our holding in Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064 (1920) in which we stated:

The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the power is purely a legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and a an action of ejectment can not be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury.

The jurisdictional requirement that a party be in possession to quiet title to land in equity has been approved by this court many times. Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175 (1921); Rice v. Rice, 206 Ark. 937, 175 S.W. 2d 201 (1943); Lowe v. Cox, 210 Ark. 169, 194 S.W. 2d 892 (1946). However, this jurisdictional requirement may be satisfied by a defendant in possession, even though the plaintiff is not, if the defendant affirmatively raises issues clearly cognizable in equity. Weaver v. Gilbert, 214 Ark. 800, 218 S.W. 353 (1949); Thomason v. Abbott, 217 Ark. 281, 229 S.W. 2d 660 (1950). This is precisely what occurred in the case at bar. Although the chancellor could not exercise jurisdiction over appellees’ complaint since they were out of possession, the appellants included a prayer for equitable relief in their answer. But for this affirmative prayer in appellants’ answer, the chancellor was without jurisdiction and the appellants could have preserved their right to a jury trial in circuit court. Instead, appellants supplied the jurisdictional defect by invoking equity’s jurisdiction in an attempt to confirm legal title in themselves and are no longer in a position to complain simply because they did not prevail.

Appellants also contend that the chancellor’s finding of adverse possession is against the preponderance of the evidence. Although appellants established record title to the disputed strip of land by their deed, the chancellor held that appellees had acquired legal title through adverse possession. For adverse possession to ripen into ownership, it must be actual, open, notorious, continuous, hostile and exclusive for a period of seven years. See e.g., Moore v. Anthony-Jones Lumber Co., 252 Ark. 883, 481 S.W. 2d 707 (1972); Terral v. Brooks, 194 Ark. 311, 108 S.W. 2d 489 (1937); see also Ark. Stat. Ann. § 37-101 (Repl. 1962). An adverse claimant’s predecessor’s possession may be considered if it also satisfies the essential elements of adverse possession. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S.W. 645 (1924). A claimant must establish an adverse possession claim by a preponderance of the evidence. Newman v. Peay, 117 Ark. 579, 176 S.W. 143 (1915). A review of the record in this case indicates that the evidence preponderates in favor of appellees’ claim of adverse possession.

The evidence discloses that the rock wall had been in place for a minimum of thirty years. Appellees and their predecessor in title, Mr. Bryan, maintained the property up to the rock wall, planting flowers and even building a fish pond next to the rock wall. The rock wall was constructed jointly by Mr. Bryan and Mr. Smoot, the previous adjoining owners, with each treating it as the property line. No one challenged appellees’ right to the disputed strip until appellants constructed their fence. In view of these facts, appellees established an ownership claim which the chancellor was obliged to recognize.

Affirmed.


author: Robert T. Dawson, Special Judge.

text:
    Billie J. BAXTER, DDS and Robert H. BAXTER, DDS v. ARKANSAS STATE BOARD OF DENTAL EXAMINERS
    79-249
    598 S.W. 2d 412
    Supreme Court of Arkansas
    Opinion delivered May 12, 1980

      McArthur & Lassiter, P.A., for appellants.

      Steve Clark, Atty. Gen. by: E. Alvin Schay, Asst. Atty. Gen., for appellee.
   Robert T. Dawson, Special Judge.

This is an appeal from a decision of the Circuit Court' of Pulaski County, affirming the Arkansas State Board of Dental Examiner’s decision, which revoked the licenses of the Appellants. The Appellants, who are brothers and partners in a dental practice, were charged under the provisions of Ark. Stat. Ann. § 72-560(3) of committing “immoral, dishonorable or scandalous conduct”, in submitting statements to the State of Arkansas for dental services claimed to have been performed upon some medicaid patients but which had not been performed, and for “professional incompetence” for performing unnecessary dental services upon some medicaid patients.

Separate, but identical, charges were brought by the Arkansas State Dental Board against each Appellant, although different patients were involved. Because of the similarity of charges and the closely connected issues in both cases, the cases were consolidated by agreement for hearing before the Dental Board. Following three days of hearings, the Dental Board adopted findings of fact and conclusions of law and entered an order on November 17, 1978, which found that the Appellants had knowingly submitted statements for payment to the State of Arkansas for dental services which were not performed upon medicaid patients and that they accepted and retained payment for these statements and that they knowingly performed unnecessary dental services to medicaid patients in disregard of their health and welfare. The Dental Board concluded the Appellants were guilty of “immoral, dishonorable or scandalous conduct” and “professional incompetence” and the licenses of both Appellants were then ordered revoked.

The Appellants filed separate Petitions for Judicial Review in the Pulaski County Circuit Court. The circuit court remanded the cases to the Dental Board with directions for the Dental Board to issue concise and explicit statements of the underlying facts supporting the Board’s findings. Amended Findings of Fact and Conclusions of Law and Orders were issued December 27, 1978, and both licenses were again ordered revoked. The Circuit Court of Pulaski County affirmed the license revocation of both Appellants and this appeal ensued. The cases were consolidated for purposes of this appeal.

The Appellants on appeal contend: (1) There is insufficient evidence of “immoral, dishonorable and scandalous conduct” that would justify permanent revocation of their licenses; that the Dental Board’s action was not supported by substantial evidence, and that the actions of the Dental Board were arbitrary, capricious and characterized by an abuse of discretion; (2) There is insufficient evidence that unnecessary dental work was performed upon various patients of the Appellants that would justify permanent revocation of their licenses; that the Dental Board’s action was not supported by substantial evidence, and that the actions of the Dental Board were arbitrary, capricious and characterized by an abuse of discretion; (3) That the Dental Board erred in failing to receive into evidence the results of a polygraph examination given to the Appellants.

The hearing before the Dental Board was lengthy and the record voluminous. Charges against both Appellants centered around work that was allegedly not performed upon patients but for which the state was billed through its medicaid program and those statements were then paid by the State of Arkansas. A further charge, was that unnecessary work was done on some medicaid patients for which the state then made payment.

The state’s medicaid program is funded jointly by the State of Arkansas and the Federal Government but administered solely by the State of Arkansas. The program is designed to provide health care for indigent patients, to include dental services. Dentists in the state could participate in this program and perform dental services upon eligible medicaid patients and payment would then be made by the State of Arkansas. Under the program, certain emergency services may be performed without prior approval by the state, but for most dental services, the state requires the submission of a treatment plan. A one-page form, designed to be all-inclusive and eliminate unnecessary paper work,' provides for a listing of any emergency work performed, details of the proposed treatment plan, a section for approval of the plan by the state, and a statement of charges for the purpose of itemizing each portion of dental work performed. After approval by the state, payment is then made for the services rendered.

Numerous witnesses, including several in a supervisory capacity, testified about the mechanics of the program. The record is clear that the program was fraught with administrative problems from its outset. The program is administered by one group while payment is made by an out of state data processing firm, and there is often a substantial delay from the submission of the statement of charges until payment. Because of delays in receiving payment after the statements for services were rendered, some dentists in the state began completing and submitting the request for payment at the same time that the proposed treatment program was submitted. This appears to be a common practice despite the dentist’s certification on the form that the work as proposed and approved had actually been performed. Representatives of the state admitted that they knew that this procedure was being followed by some dentists, and while they considered it to be inappropriate, the practice nonetheless continued.

The record further reveals that the state medicaid dental program was understaffed and for a period of time there was only one part-time dentist to approve and supervise treatment proposals all over the state. This employee was uncertain as to what his role was to be in approving treatment programs and plans and he was not certain whether he had the authority to overrule any proposed treatment plan. The record reveals a lack of information at the start of the program but substantial information was provided by the computer firm after it began operations. The computer service eventually compiled a standard of average charges and average work performed by the average dentist in Arkansas. It was because the Appellants exceeded this standard that first attracted the attention of the medicaid program representatives and the Dental Board.

The Dental Board’s case against the Appellants consisted of testimony by consultants and experts who compared patient dental x-rays taken after the work was allegedly done against the itemized charges for work that was stated to have been performed by the Appellants. There were many discrepancies in what was actually done versus what the state was billed for and the state did pay for a large amount of dental work that was not performed. Appellants testified, as did certain office personnel, about the difficulties encountered in dealing with the medicaid system. They contended, and the state agreed, that a treatment program which had been submitted could be altered or amended by the treating dentist at any time and that this change could be made either by mailing it in to the program or by telephoning in the changes. There is a conflict in the testimony from witnesses from the medicaid system as to whether the preferred method in making changes in a treatment program was by mail or telephone.

Appellants contend that they either performed the work as proposed and charged or that they telephoned the medicaid program and made changes in the treatment plan. They admit that they often submitted their request for payment along with the initial treatment plan, but state that it was done for economic reasons because of the long delay from the time the payment was requested until it was actually made.

The Appellants were charged under Ark. Stat. Ann. § 72-560 (Repl. 1979), which provides in part as follows:

The Arkansas State Board of Dental Examiners is vested with the power to revoke, or suspend for any period of time, the privilege of practicing under any license issued in the State of Arkansas to any dentist or dental hygienist for any of the following causes, in addition to other causes mentioned elsewhere in this Act (§ § 72-534 — 72-570), shown at a hearing before it, to-wit:
* # * # #
(3) * * * immoral, dishonorable or scandalous conduct; professional incompetency; * * *
No license revoked by the Board shall ever be renewed. No license which has been suspended by the Board shall be reinstated until the offender has given satisfactory assurance of future correct conduct. * * #

I.

The hearings were conducted before the Board under the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701, et esq. (Repl. 1976). The judicial review of adjudication by administrative agencies is set out in Ark. Stat. Ann. § 5-713 (Suppl. 1979), and provides in part as follows:

* # * # #
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petition have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error or law;
(5) not supported by substantial evidence of record;
(6)arbitrary, capricious, or characterized by abuse of discretion.

The Appellants contend that the Board erred in failing to receive into evidence the results of a polygraph examination given to the Appellants. When The Appellants attempted to introduce the favorable results of the polygraph examination that had been administered to them, the attorney representing the Board objected, and the objection was sustained. The Appellants made an offer of proof with the polygraph examiner and in connection with the offer of proof, the examiner stated that he had conducted his usual and standard test and that it reflected no intent to defraud the state by the Appellants.

The Appellants admit that the results of such an examination could not be admitted into evidence upon objection in a court proceeding but they argue that the results are not prohibited in administrative proceedings. The Appellants cite as authority Ark. State. Ann. § 5-709(d) (Repl. 1976), which provides:

Except as otherwise provided by law, the proponent of a rule or order shall have the burden of proof. Irrelevant, immaterial, and unduly repetitious evidence shall be excluded. Any other oral or documentary evidence, not privileged, may be received if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. . . .

The results of the polygraph examination, Appellants submit, would be the type of evidence commonly relied upon by reasonably prudent men in the conduct of their affairs. We cannot agree, however, and find no error in excluding the results from the record.

II.

We consider the Appellants’ claim of insufficiency of evidence to support the decision to be a part of their claim that there is a lack of substantial evidence to support the decision. Our function on appeal is to determine whether there was such substantial evidence to support the Board’s finding. It is not the function of this Court, on appeal from Circuit Court, to determine where a preponderance of the evidence might lie. Piggott State Bank v. State Bnkg. Bd., 242 Ark. 828, 416 S.W. 2d 291 (1967).

In applying the substantial evidence test, the entire record is considered rather than a review of only the evidence which would support the administrative findings if reviewed alone. See White Co. Guar. S&L v. Fmrs. & Mchts. Bk., 262 Ark. 893, 562 S.W. 2d 582 (1978), which quoted a decision under the United States Administrative Procedure Act, Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474 (1950), as follows:

“To be sure, the requirement for canvassing ‘the whole record’ in order to ascertain substantiality does not furnish a calculus of value by which a reviewing court can assess the evidence. Nor -was it intended to negative the . function of the Labor Board as one of those agencies presumably requipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect. Nor does it mean that even as to matters not. requiring expertise a court may displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that • the evidence supporting that decisiones substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view. . . .” [Emphasis in original]

The Dental Board is composed of dentists who are engaged in the practice of dentistry in Arkansas and we cannot ignore their expertise in this field. As we stated in Terrell Gordons. Gordon L. Cummings et al, 262 Ark. 737, 561 S.W. 2d 285 (1978):

It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues; and this may be wrought up in a contest between opposing forces in ahighly charged atmosphere. This recognition has been asserted, as perhaps the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

It would unduly prolong this decision to summarize the evidence presented to the Dental Board, but it included a patient-by-patient review of the dental services allegedly performed and for which statements were submitted by the Appellants. This testimony was compared against x-rays and testimony reflecting the dental services actually performed. Both Appellants testified and attempted to explain the discrepancies between work stated to have been performed and work actually performed. They also offered testimony as to why certain dental work was necessary that the Dental Board found to have been unnecessary.

We find from a review of the entire record in this matter that the evidence was sufficient to support the decision of the Dental Board, and further the findings are supported by substantial evidence.

The Board’s decision likewise survives the contention by Appellants that the language of § 72-560(3) allowing disciplinary action for the commission of “immoral, dishonorable or scandalous conduct” is unconstitutionally vague. These words possess sufficient- clarity to apprise the public in general, and dentists in particular, of minimum standards of conduct properly expected by the Board, an arm of the people of Arkansas. The claim of vagueness must, therefore, fail.

III.

The remaining point of the Appellants, that the decision was arbitrary, capricious, and characterized by an abuse of discretion, has caused us great difficulty. The “arbitrary and capricious” standards have previously been reviewed and it is recognized that this standard presents a limited basis for relief. In White Co. Guar. S&L Fmrs. & Mchts. Bk., supra, this court quoted with approval First National Bank of Fayetteville v. Smith, 508 F. 2d 1371 (8th Cir. 1974), a review of an administrative decision, as follows:

“The ‘arbitrary and capricious’ standard of review is a narrow one ... its scope is more restrictive than the ‘substantial evidence’ test which is applied when reviewing formal findings made on a hearing record . . . ‘Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis’ . . . Something more than mere error is necessary to meet the test ... To have administrative action set aside as arbitrary and capricious, the party challenging the action must prove that it was ‘willful and unreasoning action’, without consideration and with a disregard of the facts or circumstances of the case . . . (Emphasis added)”

Ark. Stat. Ann. § 5-713 (Suppl. 1979) provides that the court may modify the decision if it finds to have been arbitrary and capricious. See Ark. Bd. of Pharm. v. Patrick, 243 Ark. 967, 423 S.W. 2d 265 (1968). We have concluded that the Board in affixing punishment for the Appellants acted arbitrarily in the sense that the penalty was extremely harsh and unreasonable when all the facts are considered. The Appellants acted impropery and should have been punished but the severity of the punishment must be considered in relation to the internal problems that were then existent in the state’s medicaid program. While the record reveals that substantial improvements have now been made in the program, it also reveals a program that appeared to make its administrative rules and regulations on an arbitrary basis. While confusion surrounding the program is no justification for the actions of the Appellants, the overall laxity in the administration of the program causes us concern. The Appellants could have refused to participate in the program, as apparently many dentists did during this time period, but they chose to remain.

As was said in Ark. Bd. of Pharm. v. Patrick, supra, we believe to permanently bar an individual from a profession that he studied and prepared himself for and has practiced for many years, apparently in a law abiding manner, requires proof that makes it clearly evident that the individual had embarked on a calculating course of willfully violating the law. We do not think this has been established in this case, and it is our view that under the facts as developed within this case that each of the Appellants should be suspended from practicing dentistry for a period of eighteen (18) months, and should thereafter be reinstated upon the giving of satisfactory assurance of future conduct as provided by law.

The Court has considered the other points raised by Appellants and finds them to be without merit.

The judgment by the Pulaski County Circuit Court is affirmed as modified with instructions to remand to the Arkansas State Board of Dental Examiners for entry of an order consistent with this opinion.

Hickman and Purtle, JJ., not participating.

Richard B. Shaw, Special Justice, joins in this opinion.


text:
    Brenda K. Merritt HIGGINS v. Robert D. MERRITT, Jr.
    79-283
    598 S.W. 2d 418
    Supreme Court of Arkansas
    Opinion delivered May 19, 1980

      Edgar R. Thompson and Rubey E. Hurley, for appellant.

      Ralph M. Cloar, for appellee.
   George Rose Smith, Justice.

This is a child custody case. When the divorce was granted in December, 1974, the court awarded custody of the couple’s 18-month-old daughter Tonya to the mother, “subject to reasonable visitation rights” of the father. That somewhat vague language was made specific in April, 1976, when the father’s periods of visitation were fixed as beginning at 3:30 on Friday and ending at 3:30 on Sunday on alternate weekends, “unless Tonya Lynn is ill.” Nevertheless, controversies over visitation continued, with the mother being cited three times for contempt of court.

Eventually, in response to the father’s petition for a change of custody, the chancellor conducted an extensive hearing in August, 1979. The ensuing order first found the mother to be in contempt and sentenced her to two days in jail, with the sentence being suspended. The order then vested custody in the father for the coming nine-month school year, with custody in the mother for the three-month summer vacation. It was further decreed that the Arkansas Social Services monitor the situation during the next year and report to the chancellor, who will review the case in August of 1980. This appeal is from that order. There are essentially two contentions for reversal.

It is first argued that on the proof the chancellor erred in finding the appellant to be in contempt. We do not reach the merits of this argument, because an attempt to suspend the execution of a sentence for contempt of court, other than a mere postponement, is invalid and amounts to a complete remission of the punishment. Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967); James v. James, 237 Ark. 764, 375 S.W. 2d 793 (1964). The point being moot, the decree is accordingly modified to set aside the sentence for contempt.

Second, it is argued that conditions have not sufficiently changed since the divorce to warrant a transfer of custody. Such a transfer, however, may be ordered on the basis of material facts affecting the welfare of the child that were not known to the court when the first order was made. Roberts v. Roberts, 216 Ark. 453, 226 S.W. 2d 579 (1950).

Here most of the facts developed at the hearing below could not have been known when the original decree was entered. The mother repeatedly refused to permit visitation, for inadequate reasons such as the father’s failure to pay medical bills or a questionable illness of the child. A doctor testified that the mother had brought the child in for medical treatment unnecessarily and had engaged in “doctor shopping.” He thought that the mother’s excessive concern about the child’s health might have a bad psychological effect on the child, causing her to have somatic complaints about every frustration that comes along. The father testified that the child’s medical bills were about $50 a year previously, but the bills averaged $500 a year while the mother had custody. There are indications that the mother has sought to turn the child against the father. The father had been an alcoholic and of a violent disposition, but he had not had a drink for more than a year before the hearing below. The mother seems to have exaggerated the importance of an incident that occurred between Tonya and her step-brother, using it as an excuse for denying the father’s visitation rights. A social worker, on the basis of her investigation, recommended that custody be given to the father.

We have frequently noted that there is no case in which the chancellor’s opportunity to observe the parties carries greater weight than in child custody matters. Jones v. Strauser, 266 Ark. 441, 585 S.W. 2d 931 (1979). Here the father has had the custody of Tonya since last August. His nine months of custody will end about the time this appeal is decided, with the custody then passing to the mother for three months. Thus a reversal at this moment would have little immediate practical effect. The whole question is being investigated and will be reviewed by the chancellor in August. In the circumstances we are unwilling to set aside the chancellor’s efforts and in effect permit the whole chain of events to start anew.

Modified and affirmed.

Hickman, J., not participating.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Charles FRIERSON III et ux
    80-66
    598 S.W. 2d 420
    Supreme Court of Arkansas
    Opinion delivered May 19, 1980

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellees.
   John I. Purtle, Justice.

The Craighead Circuit Court awarded appellees $9,000 damages in a condemnation suit brought by the Arkansas State Highway Commission. Appellant appeals on the ground that part of the testimony of a value witness was inadmissible and should have been stricken. We think the court properly allowed the testimony of the expert witness.

Appellees, Charles Frierson III and Carolyn Frierson, his wife, owned a 75-acre tract of land in Craighead County. They acquired the property in 1964. The Arkansas State Highway Commission filed a declaration of taking on May 20, 1974; and, an order of possession was entered on May 21, 1974. Tl^e appellees answered and amended their answer to seek dartiages in the amount of $9,390. The taking of the 4.4 acres of land left the appellees with one trae#of land containing 37.4 acres to the west and 30.12 acres te§the east of the new highway. We realize there is a discrepan^ of three acr¡8? in the over-all tract, but it has no bearing on our opinion in this case.

Appellees’ expert witness, Lynn S. VanNatta, testified that after the taking the two separate tracts had a value of $36,610, which was $9,390 less than his appraisal of the entire tract before the taking. The thrust of appellees’ argument was that the land would now require two irrigation wells and systems; whereas, had it remained in one tract, one system would have served it all. On cross-examination appellant undertook to prove by this witnéss that if the appellees installed irrigation equipment under the proposed highway bed prior to construction of the highway, this installation would have reduced the cost of the proposed irrigation of the land by a considerable amount of money.

The pertinent question presented here is whether the landowner was under a duty or responsibility to show that his damages could have been mitigated.

Appellant bases its argument substantially on the case of Arkansas State Highway Commission v. Dean, 244 Ark. 405, 425 S.W. 2d 306 (1968). In the Dean case the property owner had purchased the property after the highway department had completed its initial survey and filed strip maps showing the location of the property.

In the present case the landowner had no knowledge that the highway department would acquire any of his property for the purpose of constructing a highway until several years after he had purchased it. In the Dean case, supra, the proposed condemnation was a disputed matter of fact. The alleged mitigation was the construction of a sewer line which could have been placed down before the highway was built or would have to be tunneled under the roadbed after the highway was built. The tunneling under procedure would cost considerably more than placing the sewer line down prior to construction of the highway.

We fully agree with appellant that the appellee had the duty to mitigate his damages if he could reasonably do so. We do not agree with the contention of the appellant that the burden of proof rested with the landowner in this case. We think it proper to note that Ark. Stat. Ann. § 76-544 (Repl. 1966) prevents private individuals from encroaching upon the highway property. There is an exception in favor of political subdivisions, rural cooperatives, rural telephone companies, private telephone cables, and public utilities of the state. Certainly, the appellees in this case do not qualify under one of the exceptions and would have no right to interfere in any manner with the right of way of the Arkansas Highway Commission.

We held in Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974), that the burden of proving mitigation of damages rested with the defendant. This doctrine was quoted with approval in Harris Construction Co., et al v. Powers, 262 Ark. 96, 554 S.W. 2d 332 (1977). In the present case the appellees are actually the plaintiffs for the purpose of proving damages.

In viewing the record, we do not find any evidence that the appellees could have mitigated the damages as claimed by the appellant. Charles Frierson professed to know of no way in which appellees could mitigate their damages, and the appellant merely cross-examined the appellees’ witness whether there was a duty for appellees to mitigate their possible damages by building irrigation systems in advance of construction of the highway. The witness’s response was that he knew of no such duty. Therefore, we are of the opinion that there was no evidence of any way the appellees could have mitigated their damages; and, therefore, the court properly allowed the testimony of Lynn S. VanNatta to be presented to the jury.

Affirmed.


text:
    J. C. BELL v. STATE of Arkansas
    CR 79-185
    598 S.W. 2d 738
    Supreme Court of Arkansas
    Opinion delivered May 19, 1980

      Leon N. Jamison, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

This is an appeal from a post-conviction proceeding in the Circuit Court of Jefferson County pursuant to Rule 37 of the Rules of Criminal Procedure. We agree with the trial court that the allegations of appellant are without merit.

On March 25, 1974, appellant was found guilty by a jury of capital felony murder and sentenced to life imprisonment without parole for his part in the robbery and killing of a Pine Bluff shoe store owner. After conferring with his parents and court-appointed counsel, appellant chose not to appeal the conviction. However, on September 23, 1975, appellant filed a Rule I Petition (now termed Rule 37 Post-Conviction Proceedings and Relief) in the Jefferson County Circuit Court alleging he was denied due process and equal protecttion of the law guaranteed by the 14th Amendment to the United States Constitution. He made many allegations of error but after two amendments of his petition, his main contention is that he was not given a fair trial due to ineffective assistance of counsel. The petition was denied by the trial court on the same date without a hearing, but we reversed on appeal and remanded the cause to the • circuit court for an evidentiary hearing. The hearing was initiated on October 6, 1977, and finally concluded after several delays, on June 13, 1979, with the denial of appellant’s petition. The inordinately long delay was mainly due to a change of counsel required by the appointment of appellant’s attorney to the judiciary, and the destruction of the court reporter’s notes during a fire at the Jefferson County Court House. Appellant brings this appeal from the post-conviction hearing, alleging that the court erred in not reversing his conviction due to ineffective assistance of counsel at the original trial, and due to failure of the court at the original trial to require strict compliance with the statute governing pre-trial psychiatric examinations. He also alleges that another Rule 37 hearing should be held due to the failure of that court to disqualify the Chief Deputy Prosecutor from participation in appellant’s post-conviction hearing.

Appellant contends that he was denied effective assistance of counsel due to the short period of time between his arrest and trial. Appellant was brought to trial 44 days after the commission of the crime with which he was charged. He contends that due to his counsel’s inexperience in the criminal law field, 44 days was not sufficient time for adequate trial preparation. Although appellant’s attorney filed a motion five days before trial seeking a six month continuance, a full review of the record just does not support appellant’s contention. Appellant’s trial counsel conferred with his client 10 to 15 times, made numerous pre-trial motions, questioned the state’s key witnesses prior to trial and, according to the attorney’s testimony at the Rule 37 hearing, did everything he could think to fairly represent appellant at trial. While counsel testified that because of time considerations he was unable to interview all of the witnesses called by the State, he added that he did not feel it necessary to interview many of them due to the nature of their testimony. He went on to say that nothing that happened at the trial surprised him, and that he did not know of anything else he could have done in preparation for trial.

Appellant also contends that his trial counsel was ineffective due to counsel’s failure to object to the report of the psychiatrist who examined appellant prior to trial. The report indicated that appellant was without psychosis at the time of the examination, but did not mention the probable mental condition of appellant at the time of the commission of the offense. Trial counsel testified at the post-conviction hearing that he requested the mental examination merely for delay and that he never doubted appellant’s mental condition. The psychiatrist also testified at the hearing and explained that his written report meant that it was improbable that the appellant was psychotic at the time of the alleged crime.

We will presume, in the absence of a contrary showing, that a duly licensed attorney is competent. A charge of inadequate representation can prevail only if the acts or omissions of an accused’s attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it. Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973); Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978), cert. denied in 439 U.S. 839. Mere errors, omissions or mistakes, improvident strategy or bad tactics are not sufficient to establish ineffective assistance of counsel; the accused must show that he was actually prejudiced by them to prevail on such a claim. Leasure v. State, supra; Deason v. State, supra. The representation provided appellant by his appointed counsel cannot be characterized as ineffective under these standards, but to the contrary, a review of the trial transcript evidences quite capable representation including very astute and vigorous cross-examination of the state’s principal witnesses.

Appellant next contends that the trial court erred in not reversing his conviction due to the fact that the report of the psychiatrist who examined him was not prepared in accordance with Ark. Stat. Ann. § 43-1301 (Repl. 1977). As this point was not objected to at trial and as it involves no deprivation of constitutional rights, we will not consider the question for the first time on an appeal from a Rule 37 hearing. Todd v. State, 253 Ark. 283, 485, S.W. 2d 533 (1972).

Appellant’s final point of error is that Fred Davis, the Chief Deputy Prosecutor, should not have participated in the Rule 37 hearing, and that another hearing should be required. The record reflects that prior to becoming Chief Deputy Prosecutor, Mr. Davis had represented one of the codefendants charged with the same crime for which appellant was tried. Apparently Davis met briefly on one occasion with appellant to discuss what his testimony might be if he were called to testify in the trial of Davis’ client. We will not consider assignments of error presented in a brief unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977). As appellant makes no showing of prejudice from the participation of Davis in the hearing, we cannot say that it is apparent that the point is well taken.

Although not raised by appellant as a point on appeal, he argues in his brief that he was denied due process by excessive pre-trial publicity. An examination of the exhibits indicates no unusual media coverage of the murder or the events preceding trial. The appellant did not seek a change of venue, and we cannot say the court was in error in finding no merit to appellant’s contention.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the results of this case, but I would hold that it was error to allow the deputy prosecuting attorney, Fred Davis, to participate in the Rule 37 hearing. There is an appearance of impropriety in allowing any attorney to switch from one side to the other at any stage of any case. However, in this case I feel it was harmless error due to the circumstances involved. It is just not a good idea to allow an attorney to switch sides and will, in most cases, result in prejudicial error.


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    James W. ROBINSON v. STATE of Arkansas
    CR 79-197
    598 S.W. 2d 421
    Supreme Court of Arkansas
    Opinion delivered May 19, 1980

      Thomas E. Brown, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant received a sentence of life without parole after a jury found him guilty of capital murder. Included among the issues raised by appellant on appeal is whether the trial court erred in refusing to instruct the jury on lesser included offenses. From our review of the record, we find sufficient evidence to support an instruction on the lesser included offense of second degree murder, Ark. Stat. Ann. § 41-1503 (Repl. 1977). Therefore, we reverse appellant’s conviction and remand for a new trial.

Appellant, James Robinson, was charged with capital murder on December 4, 1978, in Jefferson County Circuit Court. The information alleged that appellant, with the premeditated and deliberated purpose of causing the death of any person, caused the death of Linda Sue Williams and Dora Jackson in the course of the same criminal episode.

At the time of the alleged offense, appellant was 36 years of age and had been married for approximately ten years. He had met Linda Sue Williams approximately 2 Vi years earlier and entered into an extramarital relationship with her. He had apprently become ambilvalent about the relationship and sought emotional comfort from a Reverend Moore who operated a spiritual counseling service for donational fees. Reverend Moore advised appellant that Linda Sue Williams and her mother, Dora Jackson, had placed a “hex” on him and prescribed various rimáis for appellant and his wife to perform to remove the spell of their influence.

In the late evening of December 2, 1978, while visiting Linda at her home after returning from a hunting trip with a friend, appellant engaged in a relatively tense conversation with Linda and her mother who were upset because they had heard that appellant had accused them of putting a “hex” on him. Although appellant at first lied and denied the accusations, Linda continued to treat him coldly and left with her mother and aunt to go to a local shopping center. Appellant, apparently disturbed by Linda’s lack of attention and less than cordial attitude, followed them to the shopping center and, after approaching them again on the parking lot and being rejected, discharged a shot gun and 22 pistol at them, killing Linda and her mother and wounding Linda’s aunt, Amy McKinney. Confessing to the crimes, appellant surrendered to law enforcement officials three days later.

While awaiting trial, appellant was committed on two occasions by the court for a psychological evaluation but was found to be without psychosis. During the trial appellant raised the affirmative defense of not guilty because of mental disease or defect and presented expert testimony which concluded that at the time of trial appellant was a psychotic schizophrenic. Appellant’s experts also indicated that at the time of the crime, appellant was “confused” and probably in a “dreamlike state.” At the conclusion of the evidentiary presentation, the appellant’s attorney requested the trial court to instruct the jury on first degree murder, second degree murder and manslaughter in addition to the instructions on capital murder. The court refused and appellant now alleges error.

No right has been more zealously protected by this court than the right of an accused to have the jury instructed on lesser offenses included in the more serious offense charged. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). Where there is the slightest evidence to warrant such an instruction, we have consistently held that it is error to refuse to give it. King v. State, 117 Ark. 82, 173 S.W. 852 (1915); Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965); Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). This is so, no matter how strongly the trial judge feels that the evidence weighs in favor of a finding of guilty on the most serious charge. Our strong preference for such an instruction has even induced us to approve giving it over the defendant’s objections. Kurck v. State, 235 Ark. 688, 362 S.W. 2d 713 (1962), cert. denied 373 U.S. 910 (1963). Irrespective of a request, however, the court may refuse to give such an instruction when there is absolutely no evidence to support it. Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362 (1975).

Although charged with capital murder, appellant requested an instruction on first degree murder, second degree murder and manslaughter. The crimes of capital murder and first degree murder require proof that the accused acted with premeditation and deliberation in causing the death of another. Although the premeditation and deliberation need not exist for any particular length of time, there must be a weighing in the mind of the consequences of a course of conduct as distinguished from acting upon sudden impulse without the exercise of reasoning powers. A failure of proof in this regard, however, may still result in a conviction of second degree murder which only requires a purposeful homicide or a homicide which was knowingly caused under circumstances manifesting extreme indifference to the value of human life.

In the instant case, the jury could only acquit appellant or convict him of capital murder. Since appellant’s primary defense was insanity, a rejection of that defense in the absence of a lesser included offense provided the jury no realistic alternative but to find the requisite premeditation and deliberation or permit the appellant to go free. Although the jury concluded that appellant’s evidence of mental disease or defect did not constitute a complete defense, the jury could have concluded from such evidence that appellant did not act with a premeditated or deliberated purpose. In fact, one of the defense witnesses, Mr. Phillip Simon, a psychological examiner, testified that appellant’s psychological test results demonstrated a propensity to act impulsively and without forethought. Another defense expert witness, Mr. Roy Murtishaw, also a psychological examiner, indicated that on the date of the homicides appellant was probably “confused,” in a “dreamlike state” and had “an unusual lack of appreciation” for what had happened. Although the evidence is strong and convincing, it is for the jury and not the court to weigh the evidence and credit that which it believes to be the most cogent.

We, therefore, hold that there was some evidence upon which the jury could have relied to find an absence of premeditation and deliberation. Under such circumstances the jury could have found the appellant guilty of second degree murder since premeditation and deliberation are not elements of that crime. On retrial the court should also include an instruction on first degree murder if the evidence again supports an instruction on second degree murder. We perceive no justification for an instruction on manslaughter, however, since it contemplates a crime committed with at least some evidence of reasonable excuse.

Although appellant asserts numerous other points for reversal, we shall limit any furhter discussion to the two which are likely to again confront the lower court on a retrial. Appellant alleges that the trial court erred in admitting photographic slides of the victims and crime scene and in allowing their display to the jury during the prosecutor’s closing argument. We have held many times that the admission and relevancy of photographs is a matter largely within the sound discretion of the trial court. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916 (1958). A trial court is not obliged to exclude such evidence unless its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. Ark. Stat. Ann. § 28-1001, Rule 403 (Repl. 1979). Likewise, allowing the slide display during the prosecutor’s closing argument is within the sound discretion of the trial judge whose judgment will not be reversed on appeal in the absence of manifest gross abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973); Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). Here, the photographs were not particularly inflammatory and were relevant to the issue of premeditation and deliberation and helpful in illuminating the facts for the jury’s consideration. We discern no abuse of discretion.

Appellant also contends that he was entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. Appellant grounds his contention on Ark. Stat. Ann. § 41-602 (Repl. 1977) which permits the introduction of evidence of mental disease or defect to determine whehter the defendant possessed the kind of culpable mental state required for the commission of the crime charged. However, we do not construe Ark. Stat. Ann. § 41-602 (Repl. 1977) as requiring an instruction of this nature. The statute simply clarifies any issue concerning the admissibility of mental disease evidence when it is less than persuasive in connection with an affirmative defense of insanity. Moreover, the essence of appellant’s proffered instruction is effectively given when the court instructs the jury on the burden of the state to prove beyond a reasonable doubt each element of the offense, especially when such instruction is accompanied by an instruction on lesser included offenses.

Reversed and remanded.