author: Hugh R. Kincaid, Special Justice. Darrell Hickman, Justice,

text:
    Jim MORRIS, et al. v. TORCH CLUB, INC. et al. Intervenors, Steve Clark, et al.
    87-135
    749 S.W.2d 319
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988
    [Rehearing denied June 20, 1988.]

      Frank Lady, for appellants.

      Friday Eldredge & Clark, by: William M. Griffin III, for appellee Red Apple Country Club.

      Donald R. Bennett, for appellee Alcoholic Beverage Control Division.

      Ike Allen Laws, P.A.; James B. Blair; Hal Kemp; Bob Keeter; William M. Griffin III; Ponder & Jarboe; Huey & Vittitow; MarkStodola; Marshall Carlisle; and Rose Law Firm, A Professional Association, by: Herbert C. Rule III, for appellees and intervenors.

      Steve Clark, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen., for intervenor Steve Clark, Att’y Gen.

      Purtle, Dudley, and Hays, JJ., not participating.

   Hugh R. Kincaid, Special Justice.

This case is before the court again, following reversal and remand in Morris v. Torch Club, Inc., 278 Ark. 285, 645 S.W.2d 938 (1983). The appellants, as citizens and taxpayers of a dry county, seek a determination by declaratory judgment that Section 10 of Act 132 of 1969 (Ark. Stat. Ann. § 48-1410 (Repl. 1977)), which regulates the serving of alcoholic beverages in private clubs in “dry” counties, is invalid on the theory that it in effect unconstitutionally amended an Initiated Act (Ark. Stat. Ann. § 48-803 (Repl. 1977)) prohibiting the sale of liquor in a dry county, without receiving the requisite two-thirds legislative vote required by Ark. Const, amend. 7. The majority of the court in our previous remand felt that evidence should be taken as to the true meaning and practical effect of the private club statute in order to determine “whether the statute, as interpreted pursuant to the legislature’s directive, is in practice an amendment of the Initiated Act.”

The trial court has now taken evidence in accordance with our remand, and has concluded that neither Act 132 of 1969 (Ark. Stat. Ann. § 48-1410), nor the regulations adopted thereunder by the Alcoholic Beverage Control Board, operate in violation of or amendment to Initiated Act No. 1 of 1942 (Ark. Stat. Ann. § 48-803), except for Arkansas Beverage Control Regulation 5.45 (formerly ABC Reg. 5.50[a]), which the trial court found to be in violation of the legislative intent of Act 132 of 1969.

Appellants now seek to reverse the decision of the trial court.

Appellants contend that the trial court erred in finding that Act 132 of 1969 did not amend Initiated Act No. 1 of 1942, as it relates to dry counties and dry subdivisions. As we understand the thrust of appellants’ argument, it is basically that a comparison of the two Acts on their face requires the conclusion that activities regulated and permitted under Act 132 are prohibited under the Initiated Act No. 1, and that therefore Act 132 is an unconstitutional attempt to amend Act 1, since the passage of Act 132 did not involve the necessary two-thirds vote required by Ark. Const, amend. 7 to amend an initiated act. We believe that our prior decision is dispositive of that issue, for we there recognized at page 939:

It is possible that private clubs may operate within the law, for the Initiated Act does not prohibit the possession or consumption of intoxicating liquor in a dry county.
* * *
We are merely seeking to determine whether the Alcohol Beverage Control Board, by the issuance of private club permits, is giving the appearance of legality to establishments that are not within the permissible scope of the 1969 statute. [Emphasis added.]

Thus, our previous holding in this case, recognized that Act 132 of 1969 did not by its own terms violate Initiated Act 1 of 1942. Were it otherwise, there would have been no point in remanding to the trial court to take evidence on the operable effect of the Act — we should merely have reversed in favor of appellants. We reaffirm that holding here. The Initiated Act does not prohibit possession or consumption of alcoholic beverages, nor does it prohibit sharing in the possession or consumption of alcoholic beverages, as one would do with a guest or family member. A reasonable concomitant of the privilege of possession and consumption is, it seems to us, the privilege to share with others in that possession or consumption, whether such occurs in one’s home with one’s spouse or some other family member, or in one’s private club.

The Initiated Act provides in part, “It shall be unlawful for any person, firm or corporation, to manufacture, sell, barter, loan or give away intoxicating liquor” in a dry county. The Act does not define the terms so used. The Act by Section 6 is made cumulative to the existing liquor laws, but neither does the predecessor statute, Act 108 of 1935, the Thorn Act, define such terms. However, appellants argue that when one provides a mixed drink at a private club for a guest, this amounts to a “gift” and is therefore prohibited by the Initiated Act. If this be true, then it is equally true that if one provides a mixed drink in the privacy of one’s home to a family member or a guest, this too is a “gift” in violation of the Act.

We cannot accept this strained interpretation of the Initiated Act. First, contrary to our customs and traditions, it would relegate the relationship of the host and his or her guest or family member to that of donor and donee. We have not been cited to any precedents compelling the conclusion that a host who shares food or drink with a guest or family member is thereby making a “gift” in the legal sense of the word.

Secondly, we believe that such a construction is inconsistent with the intent of the Initiated Act. The obvious intent of the Act was to prohibit sale of liquor in a commercial sense in a dry county, in whatever guise it might be attempted, be it sale, barter, loan or gift. As such, the Act should be strictly enforced consistent with the expressed will of the voters in passing the Initiated Act. However, it makes no effort to regulate possession or consumption which is what we believe is involved when one shares intoxicating liquor with a member of his or her family or with a guest, whether in the privacy of one’s home or in one’s private club.

Equally unavailing is appellants’ argument, that when a club member orders a drink for himself or his guest at the member’s private club, there is a sale, because the member is assessed for the expense of replenishing the club’s stock of liquor for the drink so obtained by the member or his guest. We do not view such as a “sale” within the meaning and intent of the Initiated Act. The member is merely partaking of or sharing with his guest that which he as a member of the club and owner in common of the alcoholic beverage is entitled to possess. We have previously recognized the differentiation between a “sale” of intoxicating liquor and the dispensing of alcoholic beverages by private clubs to their members and guests. See Faull v. Heath, 259 Ark. 145, 532 S.W.2d 164 (1976). Moreover, it has long been recognized that one or more persons may purchase alcoholic beverages through an agent acting in their behalf, and that such is not a “sale” by the agent. Whitmore v. State, 72 Ark. 14, 77 S.W. 598 (1903); see Hunter v. State, 60 Ark. 312, 30 S.W. 42, 44 (1895). (The court specifically noted the example of an employee of a club purchasing for the members, resulting in common ownership). Hence, when the member is assessed to replenish that which he and his guest have lawfully consumed, and the club acting as his agent utilizes the funds so assessed to replenish the stock of liquor, there is not a sale.

Appellants argue that it is impossible for private clubs to operate under the “pool” or “revolving fund” system prescribed by Act 132 of 1969 without violating Initiated Act No. 1. The circuit judge below, sitting without a jury, found otherwise on the basis of the evidence, and from examination of the record we cannot say that his finding is unsupported by substantial evidence or contrary to law. As will be seen from our preceding discussion, Initiated Act No. 1 did not by its own terms attempt to regulate the possession and consumption of alcoholic beverages by a person or his guest either in the privacy of a person’s home or in his or her private club. There was therefore a long history, both pre-dating and post-dating Initiated Act No. 1, of relatively unregulated possession and consumption in private clubs. To be sure, there had been abuses. See Fraternal Order of Eagles v. State, 246 Ark. 568, 439 S.W.2d 36 (1969). It was into this regulatory void that the Legislature moved to establish a comprehensive regulatory scheme for private clubs by enacting Act 132. In doing so, the Legislature expressly reaffirmed the policy of the state for strict enforcement of Initiated Act No. 1 (Ark. Stat. Ann. § 48-1401 (Repl. 1977)) and expressly provided that no private club shall sell alcoholic beverages by the package or drink (§ 48-1410(a)(2)).

Section 10 of Act 132 provides that the preparation and serving of alcoholic beverages in a private club, “furnished or drawn from private stocks thereof belonging to such members, individually or in common under a so-called ‘locker’, ‘pool’, or ‘revolving fund’ system and . . . replenished only at the expense of such members”, shall not be deemed a sale or in violation of the law. Ark. Stat. Ann. § 48-1410(a). Section 2(j) of Act 132 establishes strict requirements for a private club to operate under section 10: a club must be non-profit, in existence one year before applying for permit, have at least 100 members regularly paying annual dues of $5.00, and conduct some common “recreational, social, patriotic, political, national, benevolent, athletic or other non-profit object or purpose other than the consumption of alcoholic beverages.” (Ark. Stat. Ann. § 48-1402(j) (Repl. 1977)) The only charges to a member, authorized by the Act, are for preparation, mixing and serving the drink, and for replenishment of the stock. § 48-1410(a). Section 10 provides for the issuance of private club permits and for promulgation of Rules and Regulations by the Arkansas Beverage Control Board. Except for ABC Reg. 5.45, which the trial court has invalidated, these regulations mirror the statute, and further require at least 100 voting members, a membership committee comprised of at least three voting members, approval of a new member by at least three membership committee members, maintenance of membership books, and require a guest to be introduced to the club by a host who is a bona fide member. (ABC Reg. §§ 5.19-5.22, 5.30). The record supports the conclusion that the statute and regulations are interpreted and enforced by the Beverage Control Board as written. The fact that some clubs may violate the statute and regulations is a matter for law enforcement agencies, but does not render the statute or regulations invalid.

We do not agree that to operate under the “pool” or “revolving fund” system is to violate Initiated Act No. 1. It is no more than a method for joint private acquisition through an agent, in common ownership and consumption, long recognized as a permissible legal relationship under Arkansas law (e.g., Whitmore, 2 Ark. 14, 77 S.W. 598, and see Hunter, 60 Ark. 312, 30 S.W. 43,44), and a relationship not reached by the provisions of Initiated Act No. 1. Appellants cite cases from other jurisdictions in support of their contention. See e.g., State v. Livingston, 159 Fla. 63, 30 So.2d 740 (1947). However, it appears to us that the better reasoned cases, probably representing the majority rule, are to the contrary. Typical of these cases is Tri-State Hotel v. Linderholm, 195 Kan. 748, 408 P.2d 877 (1965), where consumption by members in a private club under a liquor pool arrangement similar to that authorized by Act 132 was attacked as a “sale” in violation of a constitutional provision; the club or its agent purchased the liquor for use by the club members. The Kansas Court upheld the power of the Legislature “to define what is not a sale,” ruling that the club acted as agent and bailee for the benefit of the member in procuring the liquor, and that therefore no “sale” of alcoholic liquor occurred when served from the club’s liquor pool at the member’s order or directive. Id. at 885-886. Similarly, see Moriarty v. State, 122 Tenn. 440, 124 S.W. 1016 (1909) (social club dispensing intoxicants to its members, where liquors were held in common, was not a sale); State v. Mountain City Club, 136 Tenn. 102, 188 S.W. 579 (1916) (dispensing liquor to members and guests, a method of distribution of common property among members of a social club, held not a sale); Cuzner v. California Club, 155 Cal. 303, 100 P. 868 (1909) (a non-profit social club where liquor was owned in common by members — not a sale when liquor served to members and guests and member was charged therefor). See also, City and County of Denver v. Protocrats, 136 Colo. 384, 318 P.2d 600 (1957).

Appellants argue that in any event when a new member pays his membership fee and joins the club, he is either sold or given alcoholic beverages owned in common by the other club members. However, we do not view such as either a sale or gift to him of intoxicating liquor, just as it cannot be reasonably said that there is a sale or gift to him of the furniture of the club or the paper towels in the restroom. He merely acquires a membership in the club which affords him the privilege of using and enjoying its facilities and the privilege to possess and consume intoxicating liquors which through the “locker,” “pool” or “revolving fund” system the club members own in common, subject to the obligation on the member’s part to be assessed for the cost to replenish that consumed. When he is assessed and pays the assessments, and the funds are used by the club or its manager acting as agent of the members to purchase and replenish the stock of liquors, he acquires in common ownership in the liquor so purchased.

For the reason stated we conclude that Act 132 does not either expressly, by implication or by operable effect, amend or violate Initiated Act No. 1 of 1942.

Appellants contend that the lower court erred in denying appellants’ motion to pursue the case as a class action. Our decision on the other points raised by this appeal makes it unnecessary to reach this question.

Finally, appellants contend that the lower court committed error in allowing the appellee clubs to introduce into evidence the balance of their Answers to Interrogatories and Requests for Admissions. The court received this evidence upon motions by the respective appellees, after appellants had first offered portions of these answers into evidence. Our rules of evidence provide, “Whenever a writing or recorded statement or part thereof is introduced in evidence by a party, an adverse party may request him at the time to introduce any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.” A.R.E. Rule 106. Answers to Interrogatories “may be used to the extent permitted by the Rules of Evidence.” ARCP Rule 33(b) and see ARCP Rule 32(a)(4). It is not suggested that the balance of the answers contained information that was irrelevant or which in fairness ought not to have been considered along with the portions of the answers offered by appellants. The admission of the balance of the answers was therefore proper under these rules. Moreover, it is clear from the record that the information contained in the answers was already before the lower court; the trial judge, hearing the case without a jury, had reviewed the answers extensively in order to rule on numerous motions during the course of pre-trial discovery. Finally, appellants point to no prejudice to them from the admission of this evidence.

Tom B. Smith, Special Justice, joins.

AFFIRMED.

Dudley, Hays and Purtle, JJ., not participating.

Holt, C.J. and Hickman, J., and James V. Spencer III, Special Justice, dissent.

Darrell Hickman, Justice,

dissenting. The question which is finally before us is whether private clubs, which dispense intoxicating liquor in dry counties, violate Initiated Act I of 1942 which prohibits the “manufacture, sale, barter, loan or giving away” of any intoxicating liquor in dry counties. In 1969 the Arkansas legislature passed Act 132 which provided that private clubs which dispense intoxicating liquors to its members from a “locker pool” or revolving fund “shall not be deemed to be . . . [selling] or be in violation of any law of this state prohibiting the manufacture, sale, barter, loan or giving away of intoxicating liquor. . . .’’Act 132 was not passed by a two/thirds vote which is required to change an initiated act.

In Morris v. Torch Club, 278 Ark. 285, 645 S.W.2d 938 (1983), we remanded this case to the trial court to hear evidence and determine what the facts were regarding private clubs in dry counties; what, indeed, was the practice in the various types of private clubs regarding the common ownership of intoxicating liquors, how the members paid for their drinks and what was the practice regarding guests. The majority has read our decision to be an abandonment of any intention to enforce Initiated Act I of 1942.

The majority tries to finesse the tough question and that is what about the liquor dispensed by these clubs to guests, who are either given a drink or pay for it. Such a practice clearly violates the law, and it is a general practice in all the clubs. Every time a guest is served, the law is violated. The majority has no answer to this question except to say it cannot read the law that way, while it does read that way.

There is no doubt private clubs can exist, and possession and consumption of intoxicating liquors are not prohibited, but sales are. While it might be impractical to have a private club whose members can drink their own liquor, it can be done. It is just not done. The facts are that all the clubs violate the law in letter and in spirit. The so-called revolving fund is a charade. The clubs sell their “members” drinks. So what we have are a multitude of clubs that exist that sell intoxicating liquor in violation of Initiated Act I.

I notice the majority does not discuss the trial court’s ruling regarding those private clubs that may be “joined” simply by registration at a motel or hotel. The judgment reads:

The court further finds that it is contrary to the legislative intent expressed in Act 312 of 1969 for persons to be automatically admitted to a private club as guests or special members pursuant to ABC Reg. 5.50(a) (now numbered ABC Reg. 5.45), merely by virtue of their registration at a hotel or (2R 910) motel or being a patron in a restaurant located on the same premises as a private club. Such violations as may exist should be prosecuted by local authorities.

The trial court correctly ruled this arrangement is a phony way to circumvent the law. We are affirming this decision. Actually, there is no difference between this practice and allowing a person to join a service club or veteran’s club for $15.00 which simply operates a beer joint.

The country clubs and other more exclusive clubs have other reasons to exist than to serve intoxicating liquor, but they will not cease the practice of serving liquor in violation of the law so long as convoluted regulations and laws condone that practice. New clubs will no doubt join the existing clubs. It seems the ABC board promotes the creation of private clubs in dry counties. It was their regulation which spawned many of the phony clubs run by hotels and motels. It would be best to simply follow Initiated Act I of 1942. If counties want to permit liquor sales, they can; if not, they would remain dry - not partly dry. The hypocrisy of the present system can only erode respect for the law and the agencies that are charged with enforcement.

I would reverse the trial judge and hold that, on the facts developed, Initiated Act I is being violated by private clubs.

Holt, C. J., and Special Justice J. V. Spencer III, join the dissent.

       The offending regulation (ABC Reg. 5.45) permitted persons to be automatically admitted to a private club as guests or special members merely by virtue of their registration at a hotel or motel or being a patron in a restaurant located on the same premises as a private club.

       This constitutional argument may now be moot, since the pertinent section of Act 132 was reenacted into law as a part of the Arkansas Code Annotated of 1987 (§ 3-9-221), by Act 267 of 1987. However, since the mootness issue has not been previously raised, we proceed to address the casé on the merits.

       Where words are not defined by the statute, Section 7 of the Thorn Act refers us to the “custom and usage of the people of Arkansas” for definition.

       Section 3 of Initiated Act No. 1 specifically provides:
      It shall be unlawful for any person, firm or corporation to manufacture, sell, barter, loan or give away intoxicating liquor in any county, township, municipality, ward or precinct in which the manufacture or sale of intoxicating liquor is or

        shall be prohibited under the provisions of this Act.... (Ark. Stat. Ann. § 48-803). [Emphasis added.]
      The commercial thrust of the statute is clearly suggested by the italicized language.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    George S. BENNETT and Everett Shelton v. STATE of Arkansas
    86-38
    748 S.W.2d 668
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Thomas M.Carpenter, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

The Attorney General filed suit seeking reimbursement for the State for maintaining appellants who were inmates in the Department of Corrections. The trial court held that the State was entitled to reimbursement from the inmates’ social security and veterans’ benefits. We affirmed, Purtle J., dissenting, and issued our mandate. 290 Ark. 47, 716 S.W.2d 755 (1986). The Supreme Court of the United States reversed and remanded back to this Court (Slip opinion, March 29,1988). We accordingly reverse our prior holding and remand to the trial court for proceedings not inconsistent with the opinion of the Supreme Court of the United States.


author: Darrell Hickman, Justice.

text:
    Roderick PATRICK v. STATE of Arkansas
    CR 87-223
    750 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988
    [Rehearing denied June 20, 1988.]

      David H. Williams, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The legal question in this case is whether the results of a portable breath test, or what is sometimes called a roadside sobriety test, which are not admissible to prove a person is guilty of driving while intoxicated, are admissible when they would indicate a person is not guilty. In this case the answer is yes because the evidence is exculpatory, was crucial to the defense, and sufficiently reliable to warrant admission.

Roderick Patrick, a resident of Louisiana and a student at Louisiana State University, was in Arkansas working on a family farm near Arkadelphia. It was the middle of July. According to Patrick and his witnesses, he had spent the day working on some acreage planted in Christmas trees. About 5 p.m. he left his grandmother’s house in Arkadelphia to return to Shreveport. He was wearing shorts, a T-shirt, and a sweat band around his head. He carried a small hatchet in a scabbard at his waist; he had a .22 rifle in his car, which was a brown Chrysler New Yorker. About 6:00 or 6:30 p.m. a report came over the Arkansas State Police radio that the driver of a brown Chrysler New Yorker was harassing truck drivers on the highway and the driver might have a machine gun. The location and the license number of the vehicle were provided.

Two police vehicles responded. One was an Arkansas State Police vehicle driven by Trooper Jimmy Dale Danley, who had Deputy Sheriff Red Jones with him. The other car was driven by Sam Pearson, Chief of Police of Lewisville, Arkansas. The Chrysler was located on Highway 29 and stopped. Chief Pearson had followed the vehicle for a short distance and said the driver touched the center line several times. He said as soon as he stopped the vehicle, Patrick “jumped out” of the car and staggered somewhat. Danley testified that Patrick was sweating “real bad, his eyes were bloodshot, and his clothes were soiled and disarranged.” He wore a headband, had the hatchet at his waist and there was a “dagger” and a .22 caliber Ruger, model 1022, semi-automatic rifle in the vehicle. Danley said he told Patrick he was under arrest for carrying certain weapons and for DWI. No bottles or cans containing intoxicating liquor were found in the vehicle. Danley and the other officers said Patrick smelled of an alcoholic beverage.

Patrick was taken to the police station in Lewisville. He was not given a breathalizer test because there is not a certified machine in the county. Trooper Danley gave him three “field” tests for sobriety. They were the balance test, the finger to nose test, and the ABC test. He said Patrick did not perform the tests as instructed. According to Danley, Patrick could not perform the balance test, said at one point he could not remember which finger was the index finger, and counted in French. In fact, Danley said Patrick “gave the finger to” the officers.

Officer Danley gave Patrick the portable breathalizer test (PBT), which had been provided by his supervisor. It is called an Alco-Analizer II. According to Officer Danley, Patrick did not properly blow into the machine. He said Patrick blew “real quick” and not steadily; he said Patrick blew to the side of the mouthpiece, and that he did not get a reading on the machine. Based on his observation and the tests he performed, Danley concluded that Patrick was intoxicated. The other officers essentially corroborated Officer Danley’s statement about smelling alcohol and Patrick’s behavior.

Patrick testified that he had not been drinking alcohol at all. He explained his dress by saying he had been doing hot, dirty work at the farm; he needed a gun for killing snakes, and the hatchet for trimming the Christmas trees. He used the knife to trim cord from a weed eater. He admitted he had a run-in with some truckers on the highway and that he did make an obscene gesture to them several times. He also admitted that he counted in French to the officers. He denied that he was told he was under arrest for DWI or anything until the next morning. He said he asked for permission to make a phone call and was denied that right until the next morning. He said that after he took the portable breath test he asked the officers for the results and the officers were simply silent. He said he still assumed that they were looking for someone else and simply had the wrong person. Patrick admitted that he did not ask to see a lawyer or ask for an independent blood test.

The radio dispatcher testified that Patrick began banging on the cell after midnight, asking for the right to make a phone call; he had not asked for permission before. She said she could not let him out since she was alone at the jail and policy prevented her from making calls for prisoners.

This was the testimony at the pretrial hearing and at the jury trial.

On the state’s motion, the case was transferred from municipal court to circuit court because of the seriousness of the charges. The charge of carrying weapons was dropped, and Patrick was tried on the DWI charge. The state made a pretrial motion to prevent any reference to the PBT or its results. At the hearing on the motion, the appellant called Dr. Roger Hawk, an assistant professor at U.A.L.R., as an expert on breathalizers. His testimony was proffered on the reliability of the PBT, the results of a test he conducted, and his opinion on the results of the test Patrick took. The judge granted the motion and prohibited any reference to the test, its results, or any testimony by Dr. Hawk. The jury subsequently convicted Patrick.

The jury conviction must be reversed because Patrick was denied the right to use evidence that he was not guilty. The exclusion was, in this case, a denial of due process of law in violation of the United States Constitution.

The state’s argument is that because the results of such a test are not admissible against a defendant in Arkansas, they likewise cannot be used by a defendant to prove his innocence. This argument overlooks the decision of the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284 (1973). Chambers was charged with murder, and he was denied the right to cross-examine a man named McDonald who had admitted several times that he had committed the murder Chambers was accused of. A Mississippi rule of evidence prohibited the cross-examination of McDonald to elicit this evidence. The court held the “exclusion of this critical evidence, coupled with the state’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process.” “ [Q]uite simply. . . the rulings of the trial court deprived Chambers of a fair trial.” The court emphasized that it was establishing no new principle of constitutional law. The court found that considerable assurance existed that the statements excluded were reliable.

Before Chambers, in the case of Washington v. Texas, 388 U.S. 14 (1967), the court held that a Texas law prohibiting coparticipants in a crime from testifying for each other deprived the defendant Washington of his right to compulsory process under the Sixth Amendment to the Constitution. Washington was denied the right to put on the witness stand and examine a person who saw what happened and could have told that to the jury.

The response by state and federal courts to the Washington and Chambers decisions have been mixed. Some courts have limited Chambers to its facts. Grochulski v. Henderson, 637 F.2d 50 (2d Cir. 1980). One court said: “If the Supreme Court cases of Washington v. Texas, supra and Chambers v. Mississippi, supra mean anything, it is that a judge cannot keep important yet possibly unreliable evidence from the jury.” Pettijohn v. Hall, 599 F.2d 476 (1st Cir. 1979). See also Churchwell, TheConstitutional Right to Present Evidence: Progeny of Chambers v. Mississippi, 19 Crim. L. Bull. 131 (1983); Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind. L. Rev. 711 (1976); Note, Compulsory Process and Polygraph Evidence: Does Exclusion Violate a Criminal Defendant’s Due Process Rights?, 12 Conn. L. Rev. 324 (1980).

Relying on Chambers, the New Mexico Court of Appeals, in State v. Dorsey, 87 N.M. 323, 532 P.2d 912, aff'd, 88 N.M. 184, 539 P.2d 204 (1975), found that the results of a polygraph test, taken at the insistence' of the defendant, should have been admitted as relevant evidence. The court ruled, in effect, that the test was conducted properly and the results were admissible, except that the state’s attorney would not stipulate to the admission, a requirement of New Mexico law. The appeals court found the evidence was critical to the defense and that it should have been admitted. The court relied in part on Chambers. See Clinton, supra.

In Rock v. Arkansas,_U.S__, 107 S. Ct. 2704 (1987), the Supreme Court held that Arkansas’s per se rule excluding all hypnotically refreshed testimony violated a defendant’s right to testify on her own behalf. The court had this to say about its decision in Chambers v. Mississippi, supra:

This Court reversed the judgment of conviction [in Chambers)|, holding that when a state rule of evidence conflicts with the right to present witnesses, the rule may ‘not be applied mechanistically to defeat the ends of justice,’ but must meet the fundamental standards of due process. . . . In the Court’s view, the State in Chambers did not demonstrate that the hearsay testimony in that case, which bore ‘assurances of trustworthiness’ including corroboration by other evidence, would be unreliable, and thus the defendant should have been able to introduce the exculpatory testimony. [Italics supplied.]

When we examine the evidence excluded in this case, in the light of Chambers, we see immediately that the results of the PBT were critical to the defense. The officers testified they smelled alcohol, but Patrick denied he was drinking. No liquor was found in his vehicle. He was not given a breathalizer test nor offered a chance for a blood test. While he may not have requested a phone call until later that night, the fact remains he was in jail incommunicado until the next morning. So the results of the test, which were negative, and would have shown he was not drinking, were critical to his defense and a fair trial.

But the results of such tests are not admissible in Arkansas. See Ark. Code Ann. §§ 5-65-201 to -207 (1987). In order for test results to be admissible under this statute, the test instrument must be certified by the Arkansas State Board of Health. Ark. Code Ann. § 5-65-206(c) and (d) (1987). See Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985). The portable breath test is not one certified by the Department of Health and is therefore not admissible under this statute. See Arkansas Regulations for Blood Alcohol Testing (2nd Ref. 1984) (pp. 4-5). The trial court was right in this regard. But, according to Chambers, such evidence should be admitted if it is reliable. How reliable is the PBT? In Boyd v. City of Montgomery, 472 So. 2d 694 (Ala. Crim. App. 1985), the Alabama court held that the results of a PBT were admissible for the limited purpose of showing probable cause to make an arrest. The court emphasized that the test results are not admissible by the state to prove the charge of DWI. (We agree with the statement that under the existing law the test results cannot be used by the state against a defendant to prove a charge of DWI.)

Dr. Roger Hawk, an assistant professor at the University of Arkansas at Little Rock and an expert in breathalizers in criminal cases, testified at the pre-trial hearing that the portable breathalizer is commonly used by law enforcement officers; it is an electrochemical instrument that measures alcohol in the breath. He testified that the instrument is generally accepted as reliable in detecting the presence or absence of alcohol, although not the exact quantity. Based on his experience with the machine, he found it was sensitive to the presence of alcohol in the atmosphere around the machine; one did not have to blow directly into it for the machine to register. He said he merely took a drink of scotch and breathed toward the machine and it registered .14; ten minutes later, he took another sip, the PBT was held two feet from him and he blew as hard as he could, and it registered .06; three or four minutes later the mouthpiece was held two or three inches from his mouth and with Hawk merely talking, it registered .06. Hawk related a professional independent study that had been performed regarding the reliability of the Alco-Analizer II. It showed that the chances of a negative reading being wrong were 1 in 10,000.

We are convinced that the evidence is not so inherently unreliable that a jury cannot rationally evaluate it. See P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-7 (1986). See also Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 73 (1974-75). This, together with the fact that the test results were necessary for Patrick to receive a fair trial, leads us to conclude that the trial court should have admitted the test results into evidence; it should have allowed the officers to be cross-examined about the test results; and the relevant admissible testimony of Dr. Hawk should have been admitted.

The question of whether Patrick followed the officers’ instructions as to the correct procedure would go to the weight of the evidence, not the admissibility of it. See P. Giannelli & E. Imwinkelried, Scientific Evidence § 1-8(B) (1986).

We hold that Patrick was not denied due process of law because he was not informed of his right to an independent test for intoxication. There is no such requirement unless he is given a test at the direction of a law enforcement officer. See Ark. Code Ann. § 5-65-204(e) (1987); Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985); Fletcher v. City of Newport, 260 Ark. 476, 541 S.W.2d 681 (1976).

We also decline to hold that Patrick was denied due process of law or that the charge must be dismissed because he was not allowed to make a phone call. The facts are sharply disputed in this regard, and we cannot say the trial court was clearly wrong in denying a motion to dismiss the charge.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    William G. WYLIE and Carolyn S. Wylie v. Gene B. TULL and Helen C. Tull
    88-11
    749 S.W.2d 325
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Robert M. Abney, for appellants.

      Randall L. Gammill, and Green & Henry, by: David G. Henry, for appellees.
   John I. Purtle, Justice.

This is an appeal from an order of the chancellor quieting title in some of the several tracts of land which are involved in this lawsuit. There are many parties and several important legal questions involved in this case. Out of eight groups or classifications of property owners, the court made a final determination on five of the groups, quieting title in those appellees. However, the court did not render a final judgment on the remaining claims. With respect to these claims, the decree stated:

That the property claimed by [one] plaintiff ... is the subject of conflicting chains of title . . . ; that the Court must hear evidence to determine the effective chain of title . . .; and that the question as to whether this Plaintiff has a claim to this property by adverse possession is not before this Court at this time and the Court does not rule on that issue ....
That the property claimed by [another plaintiff] was granted to defendant’s predecessors in title. . .; and that the question of the Plaintiffs interest in said property created by adverse possession is not before this Court and is not the subject of this ruling.
That a part of the property claimed by [another plaintiff] was granted to the Defendant’s predecessors in title.... The issue of any interest that the plaintiff may have in this property created by adverse possession is not at issue before this Court and this Court’s ruling does not address this issue.

The concluding sentence of the decree states: “That this Court retains jurisdiction over the parties and the subject matter of this cause for such further orders [as are] necessary . . . .”

This is yet another case where ARCP Rule 54(b) requires the dismissal of this appeal. The rule reads as follows:

Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Several of the claims in this litigation are still pending before the court. The last part of Rule 54(b) states that an order adjudicating fewer than all the claims shall not terminate the action as to any of the claims or parties because the decision is subject to revision “at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

In Arkhola Sand and Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986), we stated:

A number of recent cases have pointed out that when multiple claims or multiple parties are involved in a case the trial court may direct the entry of a final judgment as to one or more (but less than all) of the parties or claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment. [Emphasis in original.]

The chancellor in this case did not designate the judgment as a final and appealable order. Since the order did not dispose of all of the claims of all of the parties, the order appealed from is not appealable.

Appeal dismissed.


author: Robert H. Dudley, Justice.

text:
    DUNHALL PHARMACEUTICALS, INC. v. STATE of Arkansas, Department of Finance and Administration, et al.
    88-16
    749 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988
    [Rehearing denied June 13, 1988.]

      Bassett Law Firm, by: Wm. Robert Still, Jr., and Angela M. Doss, for appellant/cross-appellee.

      Kelly S. Jennings, Revenue Legal Counsel, for appellee/ cross-appellant.
   Robert H. Dudley, Justice.

This is a sales tax case. The appellant, Dunhall Pharmaceuticals, Inc., is an Arkansas corporation engaged in the manufacture and distribution of controlled substances and legend drugs pursuant to a license issued by the Arkansas State Board of Pharmacy. A Revenue Department auditor completed an audit of the appellant for the period of November 1,1982, through January 31,1986, which resulted in a gross receipts tax assessment of $15,170.94 plus penalty and interest. The assessment was based in part on the recorded but unreported sales of Omni Gel and Omni Mouth Rinse, as well as on samples of prescription drugs withdrawn from stock for free distribution to physicians and dentists. The appellant protested the described assessment. The assessment was sustained in its entirety in administrative court. On review in chancery court, the Chancellor affirmed the tax assessment on the sales of the Omni products but reversed the assessment on the samples withdrawn from stock for free distribution to physicians and dentists. We affirm the Chancellor on direct appeal and on cross-appeal.

The appellant appeals on the ground that the sales of the Omni products should be tax exempt under Ark. Stat. Ann. § 84-1904.3. Two versions of this statute were in effect during the period covered by the audit:

Effective July 1,1979, the gross receipts or gross proceeds derived from the sale of prescription drugs by licensed pharmacists for human use and from the sale of oxygen sold for human use on prescription of a licensed physician shall be exempt from the Arkansas gross receipts tax levied by Act 386 of 1941 [§§ 84-1901 — 84-1919], as amended.

Ark. Stat. Ann. § 84-1904.3 (Repl. 1980).

Effective July 1,1985, the gross receipts or gross proceeds derived from the sale, purchase or use of prescription drugs by licensed pharmacists, hospitals or dispensing physicians registered under the provisions of Act 515 of 1983 (Ark. Stat. 72-638 et seq.) for human use and from the sale of oxygen sold for human use on prescription of a licensed physician shall be exempt from the Arkansas Gross Receipts Tax levied by Act 386 of 1941 [§§ 84-1901 — 84-1909, 84-1913 — 84-1919], as amended and the Arkansas Compensating Use Tax levied by Act 487 of 1949 [§§ 84-3101-84-3111, 84-3128], as amended.

Ark. Stat. Ann. § 84-1904.3 (Supp. 1985).

The appellant, Dunhall Pharmaceuticals, contends that it fits within the exemption contained in both versions of the statute. The argument is without merit. The appellant’s license is one issued for drug manufacturers and wholesalers under Ark. Stat. Ann. §§ 82-2114 & -2115 (Supp. 1985). A licensed pharmacist, on the other hand, is licensed under Ark. Stat. Ann. § 72-1007 (Repl. 1979), and that statute limits pharmacists to “persons” who prove their competency either by taking an examination or by completing a school of pharmacy. See Ark. Stat. Ann. §§ 72-1007 to -1007.2 (Repl. 1979 «fe Supp. 1985). A pharmacist, in the ordinary sense of the word, is “a person licensed to prepare and dispense drugs and medicines; druggist; apothecary; pharmaceutical chemist.” Random House Dictionary of the English Language 1451 (2d ed. 1983) (emphasis added). The appellant could not qualify as a “licensed pharmacist” under the statute which was effective July 1, 1979, and therefore, did not come within the exemption provision of Ark. Stat. Ann. § 84-1904.3 for that period. However, as noted above, a new version of the statute became effective on July 1, 1985. Under it, the exemption was broadened and applied if the transaction involved a “salt, purchase or use of prescription drugs by licensed pharmacists, hospitals or other dispensing physicians registered under the provision of Act 515 of 1983 (Ark. Stat. Ann. § 72-638 et seq.) for human use.” Ark. Stat. Ann. § 84-1904.3 (Supp. 1985). The appellant does not question the Chancellor’s finding of fact that all of its sales were to dentists. Dentists are not physicians. Ark. Stat. Ann. § 72-604(2)(b) (Supp. 1985). Purchases by dentists are not excluded from taxation by the language of the above quoted 1985 exemption. The exemption provision must be strictly construed against the exemption. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975). Therefore, the Chancellor correctly ruled that the appellant was not entitled to claim an exemption from gross receipts for the period from November 1, 1982, through January 31, 1986.

As noted above, the audit of the appellant also resulted in a gross receipts tax assessment which in part included unreported taxable sales of sample prescription drugs withdrawn from inventory by the appellant and distributed to its salesmen and subsequently to physicians and dentists at no charge. The assessment was upheld by the administrative court but reversed in chancery court. The Chancellor found that the State did not prove the value of the samples to appellant and held this to be insufficient under State v. Dunhall Pharmaceuticals, Inc., 288 Ark. 16, 702 S.W.2d 402 (1986). The appellee brings a cross-appeal from this finding.

Ark. Stat. Ann. § 84-1903(a) (Repl. 1980) provides, “There is hereby levied an excise tax of three per centum (3 %) upon the gross proceeds or gross receipts derived from all sales to any person subsequent to the effective date [July 1,1941] of this Act, of the following: (a) Tangible personal property.” Ark. Stat. Ann. § 84-1902(d) (Repl. 1980) (emphasis added) in part provides:

The term “gross receipts” or “gross proceeds” means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the properties sold, labor service performed, interest paid, losses or any expenses whatsoever ....
The term “gross proceeds” or “gross receipts” shall include the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock in trade of the established reserves for consumption or use in such business or by any other person.

The same parties that are in this case were before this Court two years ago, and we held that the cross-appellant, the Revenue Division of the Department of Finance and Administration, had to prove the value of free samples of prescription products which cross-appellee gave away before the value of the samples was subject to taxation. State v. Dunhall Pharmaceuticals, Inc., 288 Ark. 16, 702 S.W.2d 402 (1986). The cross-appellant contends that our decision does not comport with legislative intent and asks us to reverse the decision. We decline to do so. Here, we are not deciding a question involving an exemption of the tax which is always strictly construed against the taxpayer. Instead, we are deciding an issue involving the levy of a tax and in deciding that issue, we resolve any doubt or ambiguity in favor of the taxpayer. Faull v. Heath, 259 Ark. 145, 532 S.W.2d 164 (1976). If the legislature had intended to fix some predetermined value, such as cost of manufacture, to apply to goods, wares, or merchandise withdrawn from stock, it could have easily said so. The legislature knows how to set a predetermined value. For example, complimentary tickets to places of amusement are determined to have a value equal to the sales price of similar tickets. Ark. Stat. Ann. § 84-1903(e) (Repl. 1980).

We decline to overrule our earlier decision, and, accordingly, affirm the Chancellor on cross-appeal. Affirmed on direct and on cross-appeal.


author: David Newbern, Justice.

text:
    Shirley LASTER v. Sharon TILLEY
    88-62
    749 S.W.2d 326
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      G. Randolph Satterfield, for appellant.

      Lovell, Arnold & Nolley, by: Gary M. Arnold, for appellee.
   David Newbern, Justice.

The appellant, Shirley Laster, sued her next door neighbor, the appellee Sharon Tilley, for battery. Tilley counterclaimed for trespass and battery. The jury awarded damages to Tilley, and Laster appealed the judgment. Laster claimed Tilley ran her down with her riding lawnmower, and Tilley claimed Laster attacked her while she was on the lawnmower. Laster contends the evidence was insufficient to support the verdict against her and that the court erred in admitting into evidence a tape recording of a telephone conversation in which she made profane and unflattering threats to Tilley.

1. Sufficiency of the evidence

Although motions for directed verdict were made at the conclusion of Laster’s case, none was made by Laster at the close of Tilley’s case. Laster’s failure to move for directed verdict at the close of Tilley’s case constituted a waiver of the issue of sufficiency of the evidence. Ark. R. Civ. P. 50(e); Copelin v. Corter, 291 Ark. 218, 724 S.W.2d 146 (1987).

2. Admissibility of the tape recording

Laster contends the recording was inadmissible because she did not know her conversation with Tilley was being recorded. She cites no authority whatever for her position. In the absence of citation of authority or convincing argument we decline to address the point. Reed v. Alcoholic Beverage Control Division, 295 Ark. 9, 746 S.W.2d 368 (1988); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    John W. SELLERS v. STATE of Arkansas
    CR 87-198
    749 S.W.2d 669
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988
    [Rehearing denied June 13, 1988.]

      Thomas E. Brown and Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, John W. Sellers, was convicted of capital felony murder and sentenced to life imprisonment without parole. He confessed his participation in the crime after his arrest. He contends his statement should have been suppressed because it was taken while he was in custody and after he had requested but not been furnished counsel. The original information charged that Sellers participated in robbery and burglary in furtherance of which William Byrd was murdered. The information was amended to remove the robbery charge. Apparently the state planned to seek the death penalty and wished to use pecuniary gain as an aggravating circumstance in accordance with Ark. Code Ann. § 5-4-604(6) (1987), but avoid application of Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), cert. denied, 106 S. Ct. 546 (1985), in which it was held that one convicted of an offense of which pecuniary gain was an element could not have that same element used against him as an aggravating circumstance in determining applicability of the death penalty. Cf. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 53 (1988), in which we discussed Lowenfield v. Phelps,_U.S._, 108 S. Ct. 546 (1988), and its effect on Collins v. Lockhart, supra. The jury was not allowed to consider robbery as the offense underlying the burglary but was instructed it could find Sellers guilty of capital murder if it was committed to facilitate a burglary, the underlying purpose of which was to commit assault and battery.

While we find Sellers’ statement was admissible because he waived his right to counsel and was not coerced, we must agree with Sellers’ argument that the murder was not done in furtheranee of assault and battery on the victim. Therefore the conviction must be reversed.

William Byrd was an elderly man who lived alone and was known to carry large sums of money on his person. According to Sellers’ statement, he and Sam Angle and Donald McDougald had been drinking and decided to rob Mr. Byrd. McDougald procured an axe handle, and they went to Byrd’s house late at night. Sellers’ “job” was to knock Mr. Byrd out with his fist, and they would then take the money. Although Sellers professed their plan was only that he would hit Mr. Byrd with his fist, he knew McDougald had procured the axe handle. Other evidence showed that Mr. Byrd was killed in a brutal beating with a blunt instrument. Evidence of a statement of McDougald was admitted in which he accused Sellers of hitting Byrd “some more” while McDougald was holding Byrd’s mouth to keep him quiet.

Sellers was arrested in Las Vegas, Nevada. Sheriff Gambill of Bradley County had travelled there to apprehend Sellers. After Nevada officers had arrested Sellers and brought him to the Las Vegas police station, Sheriff Gambill interviewed him. He informed Sellers of his rights, including the right to have counsel present, and Sellers said he would prefer not to talk until he had consulted counsel. The sheriff terminated the interview at that point and left the room after telling Sellers he did not want to violate any of Sellers’ rights. Detective Remlinger of the Las Vegas Police Department remained in the room with Sellers and was completing routine booking documents when Sellers asked him, “What is going on?” According to Remlinger’s testimony he then told Sellers that the sheriff “must know something” because he had come all the way out there to get him. He told Sellers that his friends were in jail and that is how it became known that he was in Las Vegas. Remlinger disputed Sellers’ testimony that he told Sellers it would go easier on him if he made a statement. After this conversation between Sellers and Remlinger, Sellers asked Remlinger to have the sheriff return to the room because he wanted to talk to him. The sheriff returned, and Sellers made a statement, the transcription of which contains these words: “I have been advised of my rights and signed them. I have expressed to you that I want to make a statement to you.”

1. The information

Capital murder is defined in Ark. Code Ann. § 5-10-101(a)(1) (Supp. 1987) to include causing the death of any person while committing, among other felonies, robbery or burglary “under circumstances manifesting extreme indifference to the value of human life.” Burglary is described in Ark. Code Ann. § 5-39-201 (a) (1987) as follows: “A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.”

Sellers contends that by declining to permit the jury to consider robbery as the underlying “offense punishable by imprisonment” and limiting them to consideration of the assault and battery, the court’s instruction has run afoul of our decision in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), in which we held that one could not be convicted of capital murder where the underlying felony was burglary if the intent of the perpetrator, upon entering the dwelling, was to commit the murder. We wrote:

For the phrase “in the course of and in furtherance of the felony” to have any meaning, the burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective. That objective, the intent to kill, is what makes the underlying act of entry into the home a burglary. The burglary was actually no more than one step toward the commission of the murder and was not to facilitate the murder.

The state argues that this case is distinguishable from the Parker case because Sellers’ intent upon entering Mr. Byrd’s home was to assault and batter him rather than to murder him, thus there was an objective of the burglary, independent of the murder, as our decision in the Parker case requires. Sellers argues that the assault and battery were merged with the killing and thus cannot be considered to be independent of it, citing People v. Wilson, 82 Cal. Rptr. 494, 462 P.2d 22 (1970), in which it was held that, “a burglary based on intent to assault with a deadly weapon is included in fact within a charge of murder, and cannot support a felony-murder instruction.” 462 P.2d at 29. The only response made by the state to the citation of the Wilson case is that the California Supreme Court refused to apply the same rationale in People v. Burton, 99 Cal. Rptr. 1, 491 P.2d 793 (1971). In the Burton case the court held that aggravated robbery did not merge with the murder. Obviously aggravated robbery involves robbery which is an offense independent of the use of deadly force and independent of the ensuing homicide, and that is what the court held.

While we can appreciate the state’s argument that intent to commit assault and battery differs from intent to commit murder, we cannot find a way to say that the murder facilitated the burglary if the assault and battery were the underlying offenses. We cannot say that the murder facilitated the assault and battery as it was the very culmination of them. It was, therefore, error to have permitted the jury to find Sellers guilty of capital murder on the basis that it was committed in the course of burglary because the jury was not allowed to consider the robbery or any purpose for the entry of Mr. Byrd’s home independent of the acts which resulted in his death.

2. The statement

We address this point for guidance in the event of a retrial. Sellers contends that the comments of Detective Remlinger, in response to his question, “What is going on?” after Sheriff Gambill left the interrogation room violated the requirement of Edwards v. Arizona, 451 U.S.477 (1981), that questioning cease after the right to counsel is invoked, and amounted to coercion.

While Sellers’ statement did not state specifically that he waived his right to counsel, it seems quite clear that he was completely aware of it and yet chose to make a statement in which he specifically said he wished to talk to Sheriff Gambill. The sheriff had previously complied with Edwards v. Arizona, supra, by leaving the interrogation room after stating he did not wish to violate any of Sellers’ rights. Remlinger’s remarks were in response to Sellers’ question. It is not contended that Remlinger resumed the interrogation; rather, the contention is that by telling Sellers that the sheriff must know something and that Sellers’ friends were in jail Remlinger coerced Sellers into foregoing his right to counsel and making a statement.

In determining the voluntariness of a statement, we consider the totality of the circumstances in which it is made. Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987). Given the strong evidence that Sellers knew of his right to remain silent and to have counsel present and yet chose to discuss the case, we find the statement was voluntarily given. Remlinger’s remarks might have been construed to mean that Sellers had better talk because his accomplices had implicated him, but that is only conjecture, and in the circumstances presented here we cannot hold that Remlinger’s conduct was coercive.

Reversed and remanded.

Hickman and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. I concur. I agree with the majority but write to be sure that the majority’s reference to our recent holding in O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 53 (1988), does not go unnoticed. The case of Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), has been troublesome in murder trials where the death penalty has been sought — as was the situation in the instant case. As noted in the majority opinion, Collins held that a person convicted of an offense of which pecuniary gain was an element could not have that same element used against him as an aggravating circumstance in determining the applicability of the death penalty. In other words, under Collins, an element of the underlying offense of murder could not also be used at the penalty stage to show an aggravating circumstance. The Supreme Court, in Lowenfield v. Phelps,_ U.S. _, 108 S. Ct. 546 (1988), held contrary to the Collins decision. We compared and analyzed those two holdings in O’Rourke, so it is unnecessary for me to repeat that analysis here except to emphasize that part of Lowenfield that holds, “the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm.” The Lowenfield and O’Rourke decisions remove the “double-counting” issue raised in the Collins holding and thus prevent the type of difficulties faced by the prosecutor in this case.

Hickman, J., joins in this concurrence.


author: Tom Glaze, Justice.

text:
    BIG ROCK, INC., d/b/a Criss & Shaver Ready Mix Concrete v. MISSOURI PACIFIC RAILROAD Company and Robert Eubanks, Arkansas Insurance Commissioner
    88-1
    749 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Catlett, Stubblefield, Bonds & Fleming, by: Victor A. Fleming, for appellant.

      Herschel H. Friday, Michael G. Thompson, and James C. Baker, Jr., for appellees.
   Tom Glaze, Justice.

The appellee, Arkansas Insurance Commissioner (Commissioner), initiated this delinquency proceeding in the Pulaski County Circuit Court pursuant to Ark. Code Ann. § 23-68-103 (1987), requesting that the Commissioner be appointed ancillary receiver for the purpose of liquidating Northeastern Fire Insurance Company’s (Northeastern’s) business in Arkansas. Northeastern was a Pennsylvania company, and its sole asset in this state was a qualifying bond in the amount of $100,000.00. The appellant, Big Rock, Inc., and appellee, Missouri Pacific Railroad Company (MoPac), filed the only claims against Northeastern in the respective amounts of $47,500.00 and $147,738.62. Big Rock’s claim was later reduced to $37,500.00, based on the fact that its policy coverage with Northeastern contained “retained limit” provision in the sum of $10,000.00.

Big Rock’s and MoPac’s claims were apportioned, upon a percentage basis, against the amount of Northeastern’s total bond amount, Big Rock receiving $20,427.44 and MoPac getting $80,698.51. By court order dated August 27, 1986, the parties were awarded their respective proportionate shares, exhausting all of Northeastern’s funds in Arkansas. The court’s order also terminated the ancillary receivership. On April 3,1987, Big Rock filed its motion to modify the court’s order, claiming Big Rock had obtained newly discovered evidence that showed it was entitled to $4,136.00 more than the trial court awarded. The trial court denied Big Rock’s motion. On appeal, Big Rock argues two points, but we find neither requires reversal. Therefore, we affirm.

Big Rock cites ARCP Rule 60(c)(1) and (4), and argues that because it had discovered new evidence and had learned the Commissioner had committed constructive fraud, the trial court’s order should be modified to direct an increase in Big Rock’s award by the sum of $4,136.00 or, in the alternative, to grant Big Rock a new trial.

In support of its arguments, Big Rock submits that, after it filed its claim against Northeastern in proceedings in both Pennsylvania and Arkansas, Arkansas’s Commissioner advised Big Rock that the “retained-limit” provision in its Northeastern policy was the equivalent of a “deductible,” and relying on that representation, Big Rock believed its claim was worth only $37,500.00, rather than the $47,500.00 it originally claimed. The Pennsylvania Insurance Department also corrected its original evaluation of Big Rock’s claim by reducing the amount to $37,500.00, and this reduced amount was subsequently accepted by Big Rock as its proportionate share of Northeastern’s bond funds. Big Rock further argues that it did not possess a copy of the Northeastern policy at the time of the Commissioner’s advice, and instead, had only a certificate of insurance, which only contained information reflecting the policy period, the liability limits and a reference that the limits were subject to a $ 10,000.00 “retained-limit” provision. Big Rock contends it never saw the actual insurance policy, which defined the meaning of “retained limit,” until after the court issued its order in this cause. Big Rock asserts that it obtained a copy of the policy in discovery proceedings during a lawsuit Big Rock had filed against its insurance agent and broker. In that litigation, Big Rock alleged its broker had procured the Northeastern policy without notifying Big Rock that Northeastern was insolvent.

Big Rock’s arguments fail for several reasons. First, Big Rock failed to show that it could not have discovered with reasonable diligence a copy of its Northeastern policy before or at the time of the trial. See ARCP Rule 60(c) (1). See also Liggett v. Church of Nazarene, 291 Ark. 298, 724 S.W.2d 170 (1987); Ark. State Highway Comm. v. Owen, 241 Ark. 1012, 411 S.W.2d 304 (1967) (wherein this court construed the meaning of newly discovered evidence under ARCP Rule 59(a) (7) and its predecessor law). Here, Big Rock acquired its policy in 1979, and the claim it asserts arose on or about January 10, 1985. Arkansas’s Commissioner commenced these delinquency proceedings in November 1985, and Big Rock filed its claim in February 1986, more than six months before the trial court entered its order disbursing Northeastern’s bond funds. The record is silent concerning when Big Rock initiated suit against its insurance broker and why Big Rock could not have obtained its policy from the broker before the trial court’s August 27, 1986 order, which allowed the parties’ claims. Based upon the facts before us, we are unable to say the trial court abused its discretion in denying Big Rock’s motion based on its claim of newly discovered evidence under Rule 60(c)(1).

Nor can we agree that the trial court’s August 27th order should be modified or set aside because of some claim of misrepresentation and constructive fraud on the part of Arkansas’s Commissioner. In its motion to modify, Big Rock never alleged that the Commissioner committed constructive fraud, nor did it specifically aver that the Commissioner made a misrepresentation upon which Big Rock reasonably relied and was misled. See Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); Arkansas Valley Compress & Warehouse Co. v. Morgan, 217 Ark. 161, 229 S.W.2d 133 (1950); ARCP Rule 9(b). Big Rock’s failure to plead and to obtain the court’s ruling on constructive fraud is, alone, sufficient reason that Big Rock cannot prevail on that theory on appeal. See Ferguson v. City of Mountain Pine, 278 Ark. 575, 647 S.W.2d 460 (1983); Routen v. Van Duyse, 240 Ark. 825, 402 S.W.2d 411 (1966).

Another reason Big Rock cannot prevail on this point is that it has failed to demonstrate that the Commissioner’s advice, concerning the meaning of the term “retained limit,” was either erroneous or actionable as fraud. In this respect, Big Rock stated in its motion below that the Commissioner told Big Rock that a “retained limit” was “in the nature of a deductible.” While the “retained-limit” provision in Northeastern’s policy was not effectuated under the circumstances in this case, we find nothing wrong with the Commissioner’s statement. Big Rock’s claim against Northeastern arose because of a property-damage judgment obtained against Big Rock in the sum of $155,000.00. Hartford Insurance Company was Big Rock’s primary carrier on this property-damage claim, but its policy limit was $ 100,000.00. Northeastern insured Big Rock for coverage in excess of the amount insured by Hartford. Northeastern’s liability, under its policy terms, was limited to the net loss in excess of the coverage provided by Hartford, but if Hartford did not pay the limit of its policy, Northeastern was required to pay only that loss in excess of its “retained-limit” amount of $10,000.00. In other words, Northeastern would not be liable for the $10,000.00 amount, which would be in form and in fact a deductible amount.

In the situation here, Hartford did pay its policy limit, and as a consequence, the “retained-limit” provision in Northeastern’s policy was never effectuated. Even so, we find nothing in the record that contradicts the Commissioner’s view that a “retained limit” was in the nature of a deductible — which, we add, was also the view shared by the Pennsylvania Insurance Department.

Because we believe the trial court was correct in denying Big Rock’s motion to modify, we affirm.

       The bond amount included accrued interest and the total amount was reduced by the Commissioner’s expenses of $2,513.24 before determining MoPac’s and Big Rock’s shares. The percentage basis was calculated by determining the ratio of the claim of each party to the total of their claims.

       No one argues whether the alleged constructive fraud on the Commissioner’s part was the type practiced by a party to obtain the judgment. See ARCP Rule 60(c)(4); Davis v. Davis, 291 Ark. 473, 725 S.W.2d 845 (1987). Because we uphold the trial court’s ruling on other grounds, we deem it unnecessary to reach or discuss this issue.


text:
    Kenneth L. LEWIS and Karl D. Lewis v. STATE of Arkansas
    CR 87-204
    749 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellants.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellants Kenneth L. Lewis and Karl D. Lewis were convicted of rape and aggravated robbery. In addition, Karl Lewis was convicted of kidnapping and Kenneth Lewis had his probated sentence revoked. On appeal, appellants argue that (1) there was insufficient evidence to support the convictions; (2) the probated sentence of Kenneth L. Lewis was improperly revoked; and (3) the aggravated robbery and kidnapping charges should be dismissed because the prosecutor unlawfully added those charges in response to their request for a jury trial. We find no merit to any of appellants’ arguments, and accordingly affirm.

The prosecutrix testified that in the early morning hours of December 22, 1985, she was walking down a street in North Little Rock when two men — one she later identified as Karl Lewis — got out of a car that had been following her. She went to the nearest house and rang the doorbell, but no one answered. Karl approached her, grabbed her by the arm and forced her into the car. She attempted to exit the car several times, but Karl kept locking the door. The men then drove to an apartment where others, including Kenneth Lewis, were present. At the apartment, one of the men took her to a bedroom and made sexual advances. She resisted, but he forced himself on her and had intercourse. During this act, other individuals came into the room, two of whom she identified as Kenneth and Karl. After the first individual finished having intercourse with the prosecutrix, others, including Kenneth and Karl, proceeded in turn to do the same while one of them held her arms. After this incident was over, she was taken to another room where she requested that they let her go. Instead, she was taken back to the bedroom where she was again forced to have intercourse with numerous individuals. After this second incident, Kenneth pulled out a large knife and said that “they might have to kill her because they wouldn’t want her to tell the police or anything like that.” They then went through her personal belongings, took $10 from her purse and took her watch — which was kept by Karl. Afterwards, she was taken to a gravel lot where she was released.

We view the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). Substantial evidence is that which is forceful enough to compel a conclusion one way or another. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

1. Sufficiency of the evidence

Kenneth Lewis argues there is insufficient evidence to support his conviction of rape for two reasons: (1) the serologist excluded him from the group that had intercourse with the victim because an element of his blood type was not present; (2) witnesses testified that Kenneth was with them in another part of town when the alleged rape was taking place.

Under Ark. Code Ann. § 5-14-103 (1987), a person commits rape if he engages in sexual intercourse with another person by forcible compulsion. Sexual intercourse is defined by the code as the “penetration, however slight, of a vagina by a penis.” For several reasons, we find substantial evidence to support a charge of rape. First, the medical examination conducted after the night in question revealed evidence of forced intercourse. Kenneth was positively identified as one of the perpetrators by the prosecutrix — first from a photo spread and later in court. At trial, she testified unequivocally that Kenneth was among the group who had vaginal intercourse with her. We have consistently held that the requirement of substantial evidence is satisfied by the rape victim’s testimony. Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987). Second, even though the serologist excluded Kenneth from the group because an element of his blood was not present, it was acknowledged that the test is not conclusive if ejaculation did not take place. In any event, the jury is not required to accept expert testimony as conclusive, nor is it required to give expert testimony any more weight than it would give other witness testimony. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979); Mutual Benefit Health & Accident Ass’n v. Moore, 196 Ark. 667, 119 S.W.2d 499 (1938). Third, even though Kenneth had alibi witnesses, the jury obviously chose not to believe them. It is the jury’s province to judge the credibility of witnesses, and we will not disturb their judgment. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983); Riddick v. State, 271 Ark. 203, 607 S.W.2d 671 (1980).

Regarding Karl’s conviction on charges of kidnapping, Ark. Code Ann. § 5-11-102 (1987), provides that the crime of kidnapping is complete upon a showing that the appellant restrained the victim without her consent so as to substantially interfere with her liberty with the purpose of engaging in other specified criminal activity — here theft or rape. Clearly, there is substantial evidence to support such a charge. The prosecutrix testified that Karl grabbed her by the arm and put her into the car. She tried to get out, but Karl kept locking the door. She was then taken to an apartment where she was raped once by Karl, and twice by the others. Then, the victim’s money and watch were taken. The record clearly reflects that the prosecutrix gave no consent to being placed and locked in these men’s car and the evidence further shows that there was much more interference with her liberty than the minimal restraint which normally accompanies the crime of rape. See Jones v. State, 290 Ark. 113, 717 S.W.2d 200 (1986); Beed v.State, 271 Ark. 526, 609 S.W.2d 898 (1980).

Both Kenneth and Karl contend that there was insufficient evidence to support their convictions on charges of aggravated robbery, arguing there was no evidence that they were armed with a deadly weapon in the course of a robbery. Under Ark. Code Ann. § 5-12-103(a)(1) (1987), a person commits aggravated robbery if he commits robbery and is armed with a deadly weapon, or represents by word or conduct that he is so armed. A person commits robbery if, with the purpose of committing a theft, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102 (1987). The prosecutrix testified that immediately after the second rape, Kenneth pulled a knife and threatened her with death. Contemporaneously with or immediately after the threat, the men pilfered her purse. Karl took her watch.

We have held that substantial evidence existed to sustain a conviction for aggravated robbery when the defendant pulled a gun on the victim, threatened her several times, but before actually taking her property, he told her he would not kill her. Beed, 271 Ark. 526, 609 S.W.2d 898. In Beed, we concluded that there was an immediate threat of death or serious harm to the victim, notwithstanding the defendant’s assurances to the contrary. Here, we hold there was substantial evidence to support a finding that the prosecutrix was faced with an immediate threat of death or harm if she refused to surrender her watch and money.

2. Sentence revocation

Regarding Kenneth’s revocation, the court may revoke a probated sentence if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with the conditions of his or her probation. We affirm unless the court’s order was clearly against the preponderance of the evidence. Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986). We need only point out that there was sufficient evidence to convict Kenneth of several felonies, a clear violation of the “no crimes” condition of his probated sentence. Accordingly, the court’s order revoking Kenneth’s probation must be affirmed.

3. Prosecutorial misconduct

For appellants’ last point of error, the argument is made that the kidnapping and aggravating robbery charges should be dismissed for prosecutorial vindictiveness because the prosecutor only added these charges as punishment for their decision to proceed to trial. In January of 1986, Kenneth was charged with rape, and in September of that same year, the information was amended to include Karl on that same charge. The prosecutor again amended the information in both January and February of 1987, in order to include a kidnapping charge against Karl Lewis and aggravated robbery charges against both appellants. The prosecutor had previously informed the appellants, during a pretrial hearing at which they requested a continuance, that he would join in their continuance request and would add the aggravated robbery charges against them. Appellants seem to argue that because the prosecutor filed the additional charges after they requested a continuance and trial, the prosecutor’s actions show the new charges were the result of his vindictiveness.

In United States v. Goodwin, 451 U.S. 368 (1982), the Supreme Court held that a prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution and that an initial decision should not freeze his future conduct. Although the Court held that a presumption of vindictiveness is not warranted in cases where additional charges are added after a defendant requests a jury trial, the Court did note that the defendant may prove by objective evidence that the additional charges were not in the public interest and were retaliatory in nature. Here, appellants have made bald assertions of prosecutorial vindictiveness, and have not supported their assertions with objective evidence.

Because we find no error, we affirm.


author: Tom Glaze, Justice. Darrell Hickman, Justice,

text:
    Pat REEVES v. J. Randy YOUNG, Executive Director and Secretary of the Arkansas Soil and Water Conservation Commission, et al.
    88-15
    749 S.W.2d 327
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Darling & Graves, by: Peter R. Darling, for appellant.

      Rose Law Firm, A Professional Association, by: George E. Campbell and David L. Williams; Steve Clark, Att’y Gen., by: Blake Hendrix, Asst. Att’y Gen., for appellees.
   Tom Glaze, Justice.

This case involves state general obligation bonds to be issued under Act 496 of 1981, as amended, for the purpose of developing water-resource projects. Act 496 authorized the appellee, Arkansas Soil and Water Commission, to issue up to $100,000,000 in such bonds. The Commission was required, under the Act, to be the project owner and developer. Later, Act 280 of 1985 was enacted, amending Act 496 by removing the requirement that the Commission be the owner and allowing the Commission to make loans and grants to local governments to finance the construction of water-resource projects. Act 280 permits municipalities or water users’ associations to own the project, rather than the Commission. Furthermore, while the parties never mentioned it in their arguments, we note that Act 280 also removed the condition found in Act 496 that no bonds issued could bear interest at a rate in excess of ten percent per annum.

Appellant brought this illegal taxation lawsuit, contending that Act 280 violates amendment 20 of the Arkansas Constitution and that the Commission should be enjoined from issuing any bond proceeds for loans or grants for water-resource projects not owned by the Commission. The Commission, in turn, argues that Act 280 complies with the requirements of amendment 20, since the Act did not enlarge the Commission’s authority beyond that which the voters approved in 1982, and will not result in an additional burden upon the taxpayers. The trial court ruled in the Commission’s favor, but we reverse on appeal.

Citing amendment 20, appellant argues that the state can issue no bonds for any purpose whatsoever except by the consent of the electorate voting on the question at a general election or a special election called for that purpose. Here, appellant continues, Act 496 bonds were approved by the voters in 1982, but that Act 280 subsequently changed the purpose for which such bonds would issue by giving the Commission additional and broader authority than it was granted under Act 496. Appellant suggests the Commission’s extended authority under Act 280 may well result in a greater burden upon the taxpayers.

Appellee counters appellant’s arguments, claiming the purpose of Act 496 was not changed by Act 280, since the purpose of the bonds, their amount and the fact state revenues are pledged to repay the bonds were properly presented to and approved by the voters in the 1982 general election. Appellee further reasons that there is little, if any, difference between (1) the Commission owning a water-treatment plant which is leased to the local government and (2) the local government constructing the plant with a loan from the Commission, which is secured by revenue bonds issued by the local government. Appellee contends that in both instances the construction costs of the water-treatment facility will be repaid primarily with the revenues the facility generates.

The Commission cites Garner v. Lowrey, 221 Ark. 571, 254 S.W.2d 680 (1953), in support of its argument. While the factual issues in Garner deal with general obligation bonds issued under the terms contained in amendment 17 of the Arkansas Constitution, we agree with the Commission that the following proposition enunciated in Garner controls here: When voting on general obligation debt issues, voters are primarily concerned with the future potential tax burden that they may be assuming. We disagree, however, with the Commission’s conclusion that Act 280 neither alters nor adds to the taxpayers’ burden. Neither do we agree that Act 280 did not change the purpose of the bonds issued under Act 496.

In its argument, the Commission mainly discusses its authority, under Act 280, to make loans to local governments for the building of such water-resource projects, but, in making this argument, the Commission generally ignores the fact that the Act also empowers it to give grants for such construction. While it is true that the state’s bonded indebtedness for these projects cannot exceed the $100,000,000 limit the voters approved in 1982, the voters, in approving Act 496, never intended that the Commission grant, or bestow, bond proceeds to local government without some requirement that those proceeds be repaid. Such a grant, as the term implies, requires no repayment obligation on the part of the local government, and, without such obligation, the bonded indebtedness, evidencing that grant, would be paid directly from general revenues. In addition, because the municipality purchased, owned and constructed the facility, by the use of a grant, the state not only would have no recourse against the municipality, but it also would be unable to offset its losses by a foreclosure sale of the project.

Finally, we refer to Section 4(c) of Act 496 which, prior to Act 280, provided that no bonds could bear interest at a rate in excess of ten percent per annum. That interest rate limitation was removed by the enactment of Act 280. See Section 3 of Act 280 of 1985. Quite obviously, the voters’ future potential tax burden could be increased if the Commission ever issued bonds in excess of the ten percent rate established in Act 496.

For the reasons stated above, we hold Act 280 of 1985 is unconstitutional and the trial court’s decision to the contrary is reversed.

Hickman, J., concurs, Hays, J., dissents.

Darrell Hickman, Justice,

concurring. My remarks are in no way intended to cast any shadow on the reputation of counsel for the appellees or any other lawyer or firm for that matter.

I believe this is a test case. If it is not, then I apologize. It is not an uncommon practice, especially in cases concerning government bonds, for counsel, as a condition of approving a bond issue, to seek a court decision on the legality of the bond issue. Two recent bond issue cases were undoubtedly test cases. See Cortez v. Independence County, 287 Ark. 517, 678 S.W.2d 291 (1985); Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984). In Murphy, counsel for the appellant announced that he was pleased he “lost” the case. Test cases are also filed on other financial legal questions. See Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).

Speaking from what I have heard, or what is common knowledge, in a test case, a party and a lawyer are found who are willing to cooperate as “adversaries.” Sometimes the suit is called a “friendly” lawsuit. I cannot say whether it is a common practice for the legal briefs of both sides to be prepared by one lawyer or not (the one bringing the test case), nor can I say whether the other lawyer is paid for his work. The practice probably varies. In this case both briefs are identical and appear to have been printed or typed at the same place.

We do not give advisory opinions as some states do, so test cases and friendly lawsuits have become a way to get a court decision in Arkansas before action is taken by interested parties. I have no particular quarrel with the practice.

Our legal system is based on the ádvocacy system where each party employs an attorney to present his case in the best possible light, the result hopefully being a fair resolution of the question. A test case is different; it invariably seeks a favorable predetermined answer to a question. Both sides are not independent and one side stands to lose nothing.

All the bond decisions that led to the abusive issuance of revenue bonds were probably test cases. Our decisions, which until Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981), went along with every deviation from the Arkansas Constitution, might not have been the same if both this court and the public were fully aware of the circumstances of the test cases.

What should we do? Try to prevent the practice? Probably not. We could, as an ethical and procedural consideration, require the lawyers to divulge whether or not the case is a test case. It might be we would not consider such cases res judicata. See Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). At the very least test cases need to come out of the closet so we can see them for what they are.

Steele Hays, Justice, dissenting. On the basis of what is presented by this appeal, I would affirm the Chancellor, as the appellant has failed to overcome the strong presumption of constitutionality due legislative enactments. I believe the Chancellor was right to hold that changes effected by Act 280 of 1985, are not so substantial as to require another vote by the general public.

I do not know what to make of the change in the ceiling on the interest rate purportedly provided in Act 280, as neither side has discussed it. I would ask the parties to brief that point or would limit our holding to the issues presented.

       Act 496 of 1981 is referred to as the “Arkansas Water Resources Development Act of 1981 ” and is compiled, as amended by Act 280 of 1985, in Ark. Code Ann. §§ 15-22-601 to -622 (1987). To facilitate discussion, we refer in our opinion only to the acts and not to the statutory codifications.

       The Commission cites a Michigan case styled Advisory Opinion on Constitutionality of 1982 P A 47, 418 Mich. 49, 340 N.W.2d 817 (1983), which we do not find persuasive or controlling here. As the Commission points out, the Michigan Supreme Court determined that it was constitutional for the legislature to amend the interest rate for voter-authorized general obligation bonds without a vote of the people. The court relied, in part, on the fact the ballot reflected only a three-part question concerning the issuance of general obligation bonds and nothing contained in the question pertained to the maximum interest rate that such bonds could bear. We do not read our law so narrowly as to limit the requirements contained in an act, which authorizes the issuance of bonded indebtedness, only to those particulars set out in the ballot title and approved by the voters. See Garner v. Lowery, 221 Ark. at 574, 254 S.W.2d at 681-682. The language used here in Act 496 dictates a contrary result, providing that if issuance of the bonds is approved by a majority of the voters, the Commission shall proceed with the sale and issuance of the bonds as provided in this Act. See § 17 of Act 496 of 1981.


text:
    Walt PATTERSON, et al. v. Hon. John B. ROBBINS
    88-108
    749 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Claudia Driver, Asst. General Counsel, for appellant Dep’t of Human Services; and Robert Depper, for appellants Robert E. Smith and Verdia Smith.
    No response.
   Per Curiam.

The petitioners contend that the Probate Court of Garland County lacks jurisdiction of an adoption petition because the persons seeking to adopt are foster parents who lack standing. Although the petitioners are correct in noting that Ark. Code Ann. § 9-9-210(a)(3) (1987) provides that a petition for adoption shall state “the date the petitioner acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how petitioner acquired custody of the minor,” we do not interpret that language having to do with the contents of the petition as meaning that a person who does not have custody and with whom the child has not been “placed” has no standing. Standing to adopt is conferred by Ark. Code Ann. § 9-9-204 (1987), and that statute does not exclude persons who have served as foster parents of the minor to be adopted.

In addition, Ark. Code Ann. § 9-9-207 (1987) gives the probate court authority to decide the issue raised by the foster parents whether the Department of Human Services, as legal guardian of the minor, has unreasonably withheld its consent to adopt. The foster parents’ rights in that respect are not subject exclusively to the department’s policies, the Arkansas Administrative Procedure Act, Ark. Code Ann. §§25-15-201 through 25-15-214 (1987), and circuit court review.

Petition for writ of prohibition denied.


author: Per Curiam. John I. Purtle, Justice,

text:
    Dan PLUGGE v. STATE of Arkansas
    RC 88-21
    750 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Q. Byrum Hurst, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Dan W. Plugge, through his counsel, has petitioned for a rule on the clerk to file the record on appeal from his conviction of driving while intoxicated, a misdemeanor.

Appellant’s counsel asserts that after entry of the judgment he ordered the transcript promptly and paid the requested deposit of $100. Counsel further informs us that a number of letters were sent by him to appellant at a Florida address informing him of the progress of the appeal and urging the timely payment of the costs of the appeal. The letters went unanswered although counsel reports that appellant now claims the letters were never received. After the time for appeal had expired counsel made a refund to appellant and informed him that the time for appeal had run. Counsel states that appellant now insists the appeal be prosecuted.

While the petition contains an assertion that counsel assumes responsibility for the failure to file the record, which would bring the case within the ambit of our Per Curiam in In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979), we find that the allegations of the petition reflect that the failure was not the fault of counsel, but was entirely attributable to the appellant. That being so, our Per Curiam has no application and the motion for a rule on the clerk is denied.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result reached in this case because it is obvious that the responsibility for failure to perfect the appeal lies entirely with the appellant. However, I concur in order to prevent a misunderstanding of the opinion of the court.

An attorney of record desiring to withdraw from a case, or failing to perfect an appeal, must follow the provisions of A.R.Cr.P. Rule 36.26 and Ark. Sup. Ct. Rule 11 (h) as explained in Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). An attorney of record who fails to perfect an appeal must obtain permission to withdraw from the case or he will face a substantial risk of subsequently being held ineffective.


text:
    Donald YORK v. STATE of Arkansas
    RC 88-25
    749 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered May 16, 1988

      Donald R. Huffman, Benton County Public Defender, by: C.J. Hardcastle, for appellant.
    No objection.
   Per Curiam.

Petitioner, Donald York, by his attorney, C.J. Hardcastle, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Michael SMITH v. STATE of Arkansas
    CR 87-123
    749 S.W.2d 678
    Supreme Court of Arkansas
    Opinion delivered May 17, 1988

      Roger T. Jeremiah, for appellant.
   Per Curiam.

The record in this matter was filed on June 19, 1987, and appellant’s brief was originally due on July 29. On July 27, appellant’s counsel, Roger T. Jeremiah, filed a motion to extend the brief time due to his considerable case load. That motion was granted, and appellant was given until August 31 to file his brief. Between August 1987 and January 1,1988, counsel filed a total of eight motions to extend brief time. Each was granted.

Thereafter, between January and April 1988, counsel filed eight additional motions to extend. (See attachment) Due to counsel’s failure to file the brief, appellant filed a pro se motion to dismiss counsel as ineffective and for discretionary review of the appeal. Before that motion was filed, this court entered an order on April 27,1988, granting a “final” extension until May 9,1988. Counsel was informed of this court’s order by letter from the clerk of the court. (See attachment) On May 9 counsel responded by filing another motion to extend. As of this date a brief has not been filed.

Counsel has ignored this court’s directive that the brief on appeal would be due on May 9 and that our extension of April 27 would be the last. It is therefore ordered that counsel Roger T. Jeremiah appear before this court on Tuesday, May 31,1988, at 9:00 a.m. and show cause why he should not be held in contempt.