author: Robert H. Dudley, Justice.

text:
    David RODE v. STATE of Arkansas
    CR 81-49
    625 S.W. 2d 469
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Dave Wisdom Harrod, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant David Rode was sentenced to life in prison for the murder of his wife Denise Rode. We affirm.

Shortly after midnight on August 19, 1980, appellant drove to a service station in Conway and, in an emotional state, told a witness that ten minutes previously his wife and four-week-old child had been the victims of a hit and run accident. He stated that the accident occurred on the interstate highway while he was changing a tire on his car. His clothing had blood on it, the baby had blood over most of its body and his wife, who was slumped over in the front right seat of his car, was bloody. The police and ambulance personnel promptly answered calls and began their separate duties. The victim and the baby were taken by ambulance to the hospital where she was pronounced dead but the baby was found to be uninjured. Appellant went with the police but could not find the accident scene. Additional police, in an extensive search, could not find any evidence of a hit-and-run accident on the highway.

Later appellant stated to another witness that the accident took place while he was getting a bottle for the baby and to a third witness he stated that it took place while he was getting diapers for the baby. The police then observed that the tire had not been changed and that the blood splatters in and on the car did not correspond with appellant’s version of the facts.

The attending physician at the hospital found that the injuries to the victim were consistent with a beating and were not consistent with a hit-and-run accident. At trial the State Medical Examiner testified that the victim sustained trauma to the head, chest, extremities, neck and voice box. She had bruises around the eyes and to the eyelids, a broken nose and bridge of the nose, a subdural hematoma, multiple abrasions on her neck and her adam’s apple was crushed from side to side. He testified that the latter injury was a “classic picture of manual strangulation.” The medical examiner observed damage to the dorsum of her hand which is consistent with a defense type of injury which occurs when a victim raises his or her hand for protection. The chief criminologist for the State Crime Laboratory testified that the clothing worn by the victim gave no evidence of having been in a hit-and-run accident. A Conway physician testified that appellant had abrasions on his fingers and knuckles and there was a large bruise in the palm of his left hand. X-rays of the appellant’s left hand reflected a compression fracture at the base of the fifth metacarpal. The witness testified that the injuries to appellant were caused by a force angularly pushing the bone backward, as would be caused by striking someone with a closed fist. These injuries would be consistent with beating someone with fists and slapping them with an open hand.

Prior to the trial appellant made one motion in limine and received a favorable ruling on it. Appellant made no other motions and made no evidentiary objections during trial. The State made two evidentiary objections and the appellant withdrew the question on both occasions. Thus, there were no rulings by the court which were adverse to appellant.

Appellant now contends that the trial court committed error in allowing the jury to take an item of evidence to the jury room. There were no objections at the trial. We have consistently refused to consider an issue of error in the absence of an appropriate objection. Our rule and the exceptions are fully set out in Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980). Appellant’s argument does not fall within any recognized exception to our rule and therefore we do not consider this point.

Appellant’s other point is the trial court erred in failing to reverse the jury verdict as there was another reasonable conclusion for the cause of death of the victim. Whether there was another reasonable conclusion for the cause of death was a question of fact for the jury. As stated in Cassell v. State, 273 Ark. 59 at 68, 616 S.W. 2d 485 (1981), “To sum up, our substantial evidence rule in a case depending on circumstantial evidence means simply that the proof must go beyond presenting the jury a choice so evenly balanced that a finding of guilt must rest not on testimony but on conjecture.” That is not the situation in this case. We have no hesitancy in holding the proof sufficient to support the verdict of guilty. There was no evidence that Denise Rode was the victim of a hit-and-run accident as contended by appellant. There was ample evidence that the victim was beaten and strangled to death. There was strong circumstantial evidence that appellant was the one who beat and strangled the victim.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    James ALLRED v. LITTLE ROCK SCHOOL DISTRICT
    81-144
    625 S.W. 2d 487
    Supreme Court of Arkansas
    Opinion delivered December 14, 1981

      Cearley, Gitchel, Mitchell «Sr Bryant, by: Richard W. Roachell, for appellant.
    G. Ross Smith, P.A., for appellee.
   Steele Hays, Justice.

This appeal raises issues under “The Teacher Fair Dismissal Act of 1979,” Ark. Stat. Ann. § 80-1264 et seq. (Repl. 1980). Appellant was a probationary teacher in the Little Rock School District, having been employed less than the three consecutive years required by Section 2 (§ 80-1264.1). He challenges the release by non-renewal of his teacher’s contract at the end of his first year of employment, contending provisions of the act were violated in that the notice of nonrenewal was not in compliance with Section 4 (§ 80-1264.3). The trial court decided these issues adversely and appellant asks us to reverse. We decline, as we think the arguments cannot be sustained.

Appellant first argues he did not receive adequate notice of nonrenewal pursuant to Section 4, which states in part:

Every contract of employment hereafter made between a teacher and the board of directors of a school district shall be renewed in writing... unless on or by the time provided in Subsection (b) of Section 4 of Act 319 of 1941 [§ 80-1304 (b)], as amended, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed ... A notice of nonrenewal shall be mailed by registered or certified mail to the teacher at the teacher’s address as reflected in the teacher’s personnel file.

The timeliness of the notice is not disputed, instead appellant contends that a certified letter from the superintendent dated May 20, 1980, did not constitute a sufficient notice of nonrenewal, but only told him that his name would not be presented to the Board for action.

The body of the letter reads:

At the conclusion of your probationary period, it was determined by Mrs. Gremillion that your overall teaching performance remained less than satisfactory.
Therefore, in support of Mrs. Gremillion’s recommendation, you will not be presented to the Board of Directors at the May 29 board meeting for re-election for the 1980-81 school year. (Emphasis added)

We agree that the letter is not skillfully drawn, but to sustain the argument we must consider only that portion which reads “you will not be presented to the Board of Directors at the May 29 board meeting for re-election for the 1980-81 school year,” and ignore the balance of the letter, for when it is read in its entirety it is impossible to say that it gives the impression that no action would be taken. The first paragraph tells appellant his teaching performance is unsatisfactory and, joined by the key word “therefore,” the second paragraph tells him he would not be presented to the Board for re-election. The only plausible inference is that his contract was not being renewed. Appellant points to testimony by Mr. Richard Nagel, a former executive director of the Classroom Teachers’ Association, that a distinction exists between nonrenewal and non-reelection as used under an existing negotiations agreement between the district and CTA — nonrenewal requiring affirmative action by the Board, whereas non-reelection does not. However, the trial court was not bound by Mr. Nagel’s interpretation. There is evidence that the words “re-election” and “renewal” are used interchangeably and whether appellant even discussed the May 20 letter with Mr. Nagel is unclear. In ordinary usage the two words have enough similarity to have put the appellant on notice, particularly under the circumstances of this case. In Stricker v. Britt, 203 Ark. 197, 157 S.W. 2d 18 (1941), it was said: “Anything that puts one on inquiry amounts to notice” and we believe the wording of the letter is sufficient to have put appellant on inquiry with respect to his rehiring.

The argument loses strength when the overall circumstances are examined. Appellant was hired in August 1979 to work through May 30,1980. On October 1 Mrs. Gremillion, his principal, wrote him of deficiencies in his job performance and suggested ways he might improve. On November 1 Mrs. Gremillion sent an evaluation to appellant’s project supervisor criticizing his performance and asking that he be replaced. Apparently a copy of this letter was sent to appellant. On November 2 the project supervisor wrote appellant that his performance was generally unacceptable and listed eight “problem areas” which he said “must" be remedied. On December 7 appellant was placed on probation and advised a failure to remedy the deficiencies could result in non-reelection or dismissal. By letter dated March 10 Mrs. Gremillion advised appellant of his lack of progress in six of the eight “problem areas” and on March 19 she wrote that she was not recommending him for employment in the 1980-81 school year.

The May 20 certified letter noted that the proposed action was “in support of Mrs. Gremillion’s recommendation.” When these letters are read together along with the other evidence, we cannot say the trial court’s finding that, appellant received sufficient notice of nonrenewal of his contract was clearly erroneous. A. R. Civ. P., Rule 52. We find there was substantial compliance with the statutory requirements. McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981); Fullerton v. Southside School District, 272 Ark. 288, 613 S.W. 2d 827 (1981).

Appellant also argues the trial court erred in finding he was not entitled to a hearing before the Board of Directors of the School District. Appellant urges that Section 10 (§ 80-1264.9) impliedly grants probationary teachers the right to a hearing upon termination or nonrenewal:

Upon conclusion of its hearing with respect to the termination or nonrenewal of a teacher contract of a teacher who has been employed as a full-time teacher by the School District for less than three (3) continuous years, the Board shall take action on the recommendations by the Superintendent with respect to the termination or non-renewal of such contract.

It is true that this section creates an inference that hearings will be held on nonrenewal of a probationary teacher. But it is at best ambiguous and it cannot be squared with distinct and unequivocal wording in the preceding section:

A teacher who receives a notice of recommended termination or a teacher who has completed three (3) successive years of employment in the district who receives a notice of recommended nonrenewal may file a written request with the School Board of the district for a hearing. . . .

This identical issue was recently considered in McElroy v. Jasper School District, supra, and we held the legislative intent was to create a right to a hearing by probationary teachers for termination but not for nonrenewal:

... A teacher who has not completed three successive years’ employment in the district does not have a right to a hearing upon failure to renew the contract. Section 9 of Act 766 of 1979 is codified as Ark. Stat. Ann. § 80-1264.8 (Repl. 1980). This statute authorizes a first year teacher or any teacher to request a hearing upon receipt of a notice of recommended termination. However, only a teacher with more than three successive years with the district is entitled to a hearing for non-renewal recommendations. (At p. 145.)

Appellant concedes that McElroy is controlling but urges its reversal. But we believe that in McElroy the statute was correctly construed and we decline to overrule.

The judgment is affirmed.

Hickman, J., concurs.

See concurring opinion Chapman v. Hamburg Public Schools.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Laudis FREEMAN v. THE MORRILTON WATER COMPANY and Bill ROPER
    81-167
    625 S.W. 2d 492
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Felver A. Rowell, Jr., for appellant.

      Nathan Gordon, for appellees.
   Richard B. Adkisson, Chief Justice.

A jury awarded appellant, Laudis Freeman, $70,000 in damages against appellees for an assault which had occurred on December 10, 1976. The trial court granted appellee’s motion for a new trial, setting aside the verdict and judgment on the grounds that the award of damages was excessive. The granting of this motion is now appealed. We affirm.

The evidence on which the jury based its award can be summarized as follows:

Appellant is a 52-year-old barber who has had back trouble since age 18. He has been hospitalized for back problems five times between 1969 and 1975, and has had surgery on his back. After the assault he had more trouble with his back and legs, so he went to the doctor who had treated his back previously. This doctor found a general worsening of his low back condition, but stated this was not based upon specific findings from his examination but was based on what appellant told him. However, X-rays revealed that appellant had a compression fracture at the lumbar one level which was not there in 1975. The doctor stated that this could be attributed to the fight. The doctor found a ten percent worsening of appellant’s condition from 1975 to 1977 and stated that there would have been degenerative changes even if there had not been a fight. He was pessimistic about appellant’s ability to continue working as a barber.

Appellant testified that he had not been able to work as a barber since the fight, and that in 1976 he earned $2,932.15 as a barber, and in 1977 only $317.78. He had $476.50 in medical bills because of the fight. He takes muscle relaxers and other medication to ease the pain in his back and spends most of his time in his recliner. He can no longer hunt or fish and must hire someone to repair his rental property. He was emotionally upset about the fight, and “broke down and cried” about it, according to one of his friends.

The jury was instructed to reasonably and fairly compensate appellant for any of the following elements of damage found to be proximately caused by the appellee:

First, the nature, extent, and duration of any injury and whether it is temporary or permanent.

Second, the reasonable expense of any necessary medical care, treatment, and services received.

Third, any pain and suffering and mental anguish experienced in the past.

Fourth, the value of any earnings lost.

Our cases have held that the granting of a new trial addresses itself to the sound discretion of the trial court, and this Court will not reverse a trial judge’s granting of a new trial unless it appears that he has abused his discretion. Heil v. Roe, 253 Ark. 139, 484 S.W. 2d 889 (1972). This is because the trial judge’s opportunities for passing upon the weight of the evidence are far superior to those of this Court. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922 (1911). Under the circumstances of this case we are unable to say that the trial judge exercised his discretion improvidently by the granting of a new trial.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The trial court found the damages assessed by the jury were excessive. Instead of reducing the award, the court set aside the entire award. The evidence supported damages in some amount. I would return the case to the trial court for the purpose of determining a proper award.

The law of the case will prevail on retrial. Therefore, I suppose the only matter to be determined will be the amount of damages. The appellant has prevailed on the issue of liability and should not be denied his damages. We found no reversible error, and the trial court found only excessive damages.

I would remand for determination of damages only.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    Robert KILLMAN v. STATE of Arkansas
    CR 81-122
    625 S.W. 2d 489
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Robert F. Andrews, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Robert Killman, was convicted of second-degree battery. The jury fixed his punishment at three years imprisonment but recommended that two years be suspended. The court accepted the jury’s recommendation and entered judgment accordingly. We affirm.

The evidence at trial showed that the incident occurred in Walnut Ridge at the home of William McCrory, a mutual friend of the victim and appellant. The victim arrived at the home and became angry because his girlfriend had driven appellant’s car to go get some beer. After an exchange of words, appellant pulled a gun and shot the victim twice. At trial, appellant relied on self-defense as justification for the shooting.

Appellant argues for reversal that he should have been allowed to elicit opinion testimony from a psychiatrist, Dr. Daniel R. Frances, to the effect that appellant was not a violent person since this was relevant to both the crime with which he was charged and his defense, citing Finnie v. State, 267 Ark. 638, 593 S.W. 2d 32 (1980). Appellant relies upon Uniform Rules of Evidence, Ark. Stat. Arm. § 28-1001 (Repl. 1979):

Rule 404. Character evidence not admissible to prove conduct, exceptions — Other crimes. — (a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; . . .
Rule 405. Methods of proving character. — (a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Under the above rules it is clear that a defendant can introduce into evidence pertinent traits of character. However, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 103 states:

(a) Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial right of the party is affected, and
(2) [T]he substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Here, the record reflects that at trial appellant attempted to introduce Dr. Frances’s testimony only for the purpose of mitigation of punishment and not to show a character trait of nonviolence. Therefore, the substance of the evidence which appellant attempted to introduce was not sufficiently made known to the trial court and was not apparent from the context of the questions appellant asked Dr. Frances. Before an issue is preserved for review on appeal, it must first be raised in the trial court.

Appellant next argues that Dr. Frances should have been allowed to testify, as a mitigating circumstance for the j ury to consider, that appellant was nota violent person and not a danger to the community and, therefore, was not in need of rehabilitation. This Court addressed this issue in Fields v. State, 255 Ark. 540, 502 S.W. 2d 480 (1973) and held that “The effect upon an individual of being sent to the penitentiary has nothing to do with one’s guilt or innocence on the charge being tried... [and] such testimony is entirely and completely irrelevant.”

The Arkansas Criminal Code, Article 3, Ark. Stat. Ann. §§41-801 — 1351 (Repl. 1977) provides for the disposition of offenders. Section 41-802 provides that “[T]he jury shall fix punishment as authorized by this Article.” (Emphasis added) Section 41-803 provides “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article.” (Emphasis added)

Section 41-1201 sets out the criteria for the court in making a determination as to suspension or probation. This section sets out 17 separate matters for consideration to guide the court in determining whether or not a person should be sent to the penitentiary. Therefore, questions of mitigation are properly presented to the court which has the responsibility of sentencing after the maximum punishment is fixed by the jury. The Commentary to this section outlines various legislative acts the trial court should consider in sentencing and provides:

By suggesting mitigating circumstances to which the defendant can call the court’s attention, the Commission hopes to encourage the use of suspension or probation as alternatives to imprisonment.

It is clearly the intent of the Arkansas Criminal Code that mitigating circumstances be left for the consideration of the sentencing court.

Finally, appellant argues that the jury’s verdict was not supported by the weight of the evidence because the State’s evidence was not sufficient to overcome appellant’s assertion of self-defense. This argument is without merit. The State must prove each element of the charge beyond a reasonable doubt, which includes negating the defense of justification once it is put in issue. See Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Ark. Stat. Ann. § 41-115 (5) (c) (Repl. 1977). However, once the jury decides that the defendant was not justified in his actions, the State’s burden is automatically met. In this case the jury, by finding appellant guilty, also found that the State had proved its case beyond a reasonable doubt, including the negation of. appellant’s defense.

If the jury’s verdict is appealed, this Court looks to whether there is substantial evidence to support the verdict. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). After considering the testimony of the victim, two eyewitnesses to the shooting, and a police officer who took a statement from appellant, we conclude there is substantial evidence in this case to support the jury’s verdict.

Affirmed.

Hickman and Purtle, JJ., concur.

Darrell Hickman, Justice,

concurring. I concur with the result. I disagree with the language in the opinion that could be interpreted to unduly limit a defendant from presenting evidence in mitigation.

Purtle, J., joins.


author: George Rose Smith, Justice.

text:
    George LANGFORD et al v. Malvin U. BRAND, County Judge et al
    81-169
    626 S.W. 2d 198
    Supreme Court of Arkansas
    Substituted Opinion on Motion for Clarification delivered January 11, 1982

      Irwin ir Kennedy, by: Robert E. Irwin, for appellants.

      Wilbur C. Bentley, Pros. Atty., by: Larry D. Vaught, Deputy Pros. Atty., for appellees.
   George Rose Smith, Justice.

This suit was brought by the appellants, six residents of the Harris Brake Fire Protection District, seeking a judgment declaring the district to be void for the single reason that the quorum court ordinance creating the district was adopted before the required public notice and hearing rather than afterward. The county judge and the other defendants answer that the statute, properly construed, contemplates that the passage of the ordinance should precede the notice and hearing, which was the procedure used. The chancellor upheld the validity of the district. The Court of Appeals certified the case to us as presenting an issue of statutory construction. Rule 29 (1) (c).

The trial court was unquestionably right. The statute providing for the creation of fire protection districts, Act 35 of 1979, is a detailed, comprehensive act comprising 23 sections. Ark. Stat. Ann. §§ 20-923etseq. (Supp. 1981). With respect to the question at issue there is a slight conflict between Sections 1 and 2 of the act, but when the act is read as a whole the conflict is seen to be inadvertent and immaterial.

Section 1 is general and merely introductory, but Section 2 is the pertinent specific effective part of the act and must be regarded as controlling. We need quote only Section 1 and the first paragraph of Section 2:

Section 1. Fire protection districts may be established to serve all or any defined portion of any county in either of the following ways:
(a) By the Quorum Court by ordinance enacted after notice and public hearing, or
(b) By the County Court pursuant to an election of the qualified electors of the proposed district, initiated, called and conducted as provided herein.
Section 2. (a) When an ordinance is adopted by the Quorum Court establishing a fire protection district, the Quorum Court shall publish notice of the adoption of the ordinance in a newspaper of general circulation in the county. Such notice shall include a copy of the ordinance and shall prescribe a time and place for a public hearing on the ordinance. The public hearing shall be held at least thirty (30) days and not more than sixty (60) days after the date of publication of the notice. If at such hearing a majority of the qualified electors in the proposed district appear in person to oppose the establishment of the district or if petitions opposing the establishment of the district and containing signatures of a majority of the qualified electors in the proposed district are filed at or before such public hearing, the ordinance creating the district shall be void.

The second paragraph of Section 2 (a) then provides that even if the majority of the electors do not object to the establishment of the district, there must still be a special election before bonds are issued. Section 2 (b) gives an alternative procedure by which 10% of the qualified electors may petition the county court to call a special election to authorize the establishment of the district.

Under familiar rules of statutory construction we must, in order to give effect to the manifest legislative intention, correct errors by rejecting certain words and substituting others in order to reconcile apparent inconsistencies. Graves v. McConnell, 162 Ark. 167, 257 S.W. 1041 (1924). When general terms in a statute are inconsistent with more specific provisions, the latter will be regarded as the clearer and more definite expression of the legislative will. Scott v. Greer, 229 Ark. 1043, 320 S.W. 2d 262 (1959).

Those principles have the support of common sense when they are followed in this case. The draftsman of the act evidently intended subsections (a) and (b) of Section 1 to be amplified and implemented by the detailed provisions of the corresponding subsections (a) and (b) of Section 2. Inadvertently, however, the draftsman referred in Section 1 to an ordinance enacted after notice and public hearing instead of using more accurate introductory language, such as an ordinance “effective after” notice and public hearing. We cannot read the obvious inconsistency in the language of the act to mean that the electors must be given two opportunities to approve of the establishment of the district. This conclusion is confirmed by the fact that Section 1 (a) of the act contains no language specifying the kind of notice to be given before the entry of the quorum court order. That omission makes it clear that only the notice specified in Section 2 (a) was meant to be necessary.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    STATE of Arkansas v. Philip Thurman FILIATREAU
    CR 81-83
    625 S.W. 2d 494
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellant.

      Lessenberry ir Carpenter, for appellee.
   George Rose Smith, Justice.

The appellee Philip Filiatreau, a tenth-grade student, and four others were charged with a conspiracy to commit a theft of property by threat. Philip was arrested at about 5:30 a.m. at his mother’s house, was taken to police headquarters, and signed a statement within a few minutes. This interlocutory appeal by the State is from an order suppressing the statement as having been the result of a warrantless arrest that violated the principles announced in Payton v. New York, 445 U.S. 573 (1980). Our jurisdiction of such appeals is stated in Rule 29 (1) (k).

The appellant argues that the officers did not have probable cause to make a warrantless arrest. That issue was not properly raised below and was not decided by the trial court. The motion to suppress merely stated that the statement, having been made while Philip was in custody, was “presumptively involuntary and should be so ruled.” The presumption of involuntariness arises from the fact that the accused is in custody, not from the manner of his arrest. At the hearing the prosecutor stated with regard to the arrest that the issue had not been raised in the written motion (which was correct) and that the State was not prepared with its witnesses on that issue. The court had said at the outset that it was going to overrule anything that had not been asserted in a motion filed before the omnibus hearing, as the court’s rule required. The court did not pass upon the issue of probable cause. It is not before us.

The real issue is whether Philip’s arrest violated the Payton doctrine. Philip lived in his mother’s house and had his own bedroom. Mrs. Filiatreau testified that when she answered the door that morning two officers identified themselves and said they needed to come in and talk to Philip and would have to take him downtown and question him. When they asked if they could come in, “I told them yes. ... I told them that he was asleep. They told me that I would have to get him up. His room is directly off the entry hall. I went in and shook him. Detective Stone stood over him.” Detective Baer took Mrs. Filiatreau into the den and explained that they were going to arrest Philip on charges of kidnapping, extortion, and other things. She said the officers used no force or threats. After Philip had dressed he was arrested and taken down to headquarters. The trial judge ruled that the arrest was illegal, reasoning that Philip was in his room, “his bedroom, asleep, that he was using that as his home and that he had, obviously, an expectation of privacy in that room, and that was not waived by his mother.” The court suppressed Philip’s statement as a product of the arrest.

We disagree with the trial judge’s understanding of the court’s holding in Payton. There the officers, in seeking to make a warrantless arrest without exigent circumstances, broke open Payton’s door when no one was there and seized evidence, which the Supreme Court suppressed. The court held that a nonconsensual warrantless entry into a person’s home is unlawful except in exigent circumstances. It was specifically pointed out that the court was "dealing with entries into homes without the consent of any occupant.”

Here it is the element of consent that distinguishes the two cases. There is no showing that Mrs. Filiatreau’s consent to the officers’ entry into the home was not voluntary. The trial judge did not so find. The case is therefore controlled by our decision in Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979), where the foster father of the defendant (who was apparently an adult earning his own living) was the owner of the house, with the defendant having his own bedroom. In holding that the foster father could consent to a search of the defendant’s bedroom we cited a number of cases to support our conclusions: "A child, either dependent or emancipated (having reached his majority) does not have the same constitutional right or expectation of privacy in the family home that he might have in a rented hotel room, and the rights of the father [are] superior to those of the child, so that the father’s consent to a search of the child’s room [is] sufficient to render a warrantless search reasonable.”

Both Payton and Grant deal with a seizure of property, while the present case deals with an arrest, which may be regarded as a seizure of the person. Certainly the Fourth Amendment protects persons as well as property from unreasonable seizures, but a basic question is whether the officer has a right to be where he is when he makes an arrest or seizes property. In either case a valid consent to the officer’s presence dispenses with the need for an arrest warrant or a search warrant. Here the officers, by reason of Mrs. Filiatreau’s consent, had a right to be in the house and in Philip’s bedroom. In the circumstances they unquestionably had the right to place him under arrest. The suggestion that Philip had to consent to his own arrest cannot be defended. An arrest, by definition, is a restraint of a person against his will. Thus a consensual arrest is a contradiction in terms, amounting merely to a surrender to authority. Philip’s consent to his own arrest in his home was not required, given the officers’ lawful presence there, any more than it would have been required upon a public street.

Reversed, the motion to suppress to be denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority because I believe the rights of the appellant as guaranteed by the Fourth and Fifth Amendments to the United States Constitution have been violated. Early in the majority opinion it is stated:

This interlocutory appeal by the state is from an order suppressing the statement as having been the result of a warrantless arrest that violated the principles announced in Payton v. New York, 445 U.S. 573 (1980).

Two sentences later the majority state:

The appellant argues that the officers did not have probable cause to make a warrantless arrest. That issue was not properly raised below and was not decided by the trial court.

If the order was not decided by the trial court, how can there be an appeal from such order?

I will first discuss the matter of whether the question was raised in the court below. There is no question but that it was raised. An omnibus hearing was commenced on May 28, 1981. Several defendants, including the appellant, were involved in the omnibus hearing. The hearing did not. conclude and was continued on June 16, 1981. This is evidenced by the statement of the court on the latter date:

What are we here for? I notice it’s a continuation of the omnibus hearing. And I heard part of it and somebody wasn’t here. Right?

At this time the court addressed appellant’s counsel to the effect that it was the court’s understanding that the voluntariness of the confession was the subject of the hearing. Appellant’s attorney replied as follows:

Well, we’re challenging the voluntariness in the full light of the 5th and 4th Amendments. And, therefore, there may be questions dealing with the arrest itself that would go to the voluntariness of the statement.

Witnesses were then called and questioned by both parties. Appellant did not object any further at this time and did not object to the decision by the trial court to continue the hearing. We have held that if the trial court proceeds with a hearing, this court will not reverse on that basis. Williams v. State, 272 Ark. 248, 613 S.W. 2d 391 (1981). Arkansas Rules of Criminal Procedure, Rule 16.2 (b), provides that a motion to suppress shall be filed no later than ten days before the date set for trial except that the court “for good cause shown may entertain a motion to suppress at a later date.” The second omnibus hearing was set thirteen days before the trial of the case was to commence. Further, there is no requirement that a motion at an omnibus hearing be in writing. Arkansas Rules of Criminal Procedure, Rule 20.3 (b). The trial court was correct in ruling as it did on the motion to suppress. There was absolutely no question that the matter of a warrantless search was timely and properly raised. It could not be made more clear that the trial court considered the issue in its concluding statement which was as follows:

In this case, I’m going to go ahead and decide the issue because we’ve had one omnibus hearing in piecemeal and this one piecemeal and I don’t want to continue it. So I’m going to go ahead and decide the issue.

The Fourth Amendment to the Constitution of the United States guarantees against unreasonable search and seizure of persons as well as houses, papers and other effects. I think the court was absolutely right in relying upon Payton & Reddick v. New York, 445 U.S. 573 (1980). However, the case which, in my opinion, clearly settles the issue is Dunaway v. New York, 442 U.S. 200 (1979). I will not discuss the Fifth Amendment rights as such will not be involved if there was an illegal seizure under the Fourth Amendment. Any statement following an illegal seizure would naturally be fruits of a poisonous tree. There is no evidence in the record to indicate that the officers had probable cause for the arrest of the appellant other than their own statements to that effect. The officers simply stated that they felt they had probable cause but they did not bother going before a magistrate for the purpose of determining whether they had probable cause sufficient for the issuance of an arrest warrant. It was never the intent of the framers of the Constitution of the United States or the State of Arkansas nor of the Congress of the United States or the General Assembly of the State of Arkansas to allow officers to make their own determination of probable cause under such circumstances as exist in the present case. The majority opinion is based solely upon the consent of the appellant’s mother to allow the officers to enter the home to look for the appellant. However, until they found the appellant they had no information which would have caused them to identify the appellant if they came face to face with him. In fact, there is some indication they thought they were looking for appellant’s father. Furthermore, the officers never recited any facts to support their contention that they had probable cause.

Our view concerning the actions of the trial court in a motion to suppress evidence was well stated in the case of Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979), wherein we stated:

Even though, in reviewing a trial judge’s ruling on a motion to suppress evidence, we make an independent determination based upon the totality of the circumstances, we will not set aside the trial judge’s finding unless we find it to be clearly against the preponderance of the evidence.

In the present case the trial court heard all of the evidence which was offered and made his ruling in accordance with the evidence presented. I cannot say that its decision was clearly against the preponderance of the evidence. In Dunaway v. New York, supra, the court held that the defendant was “seized” for Fourth Amendment purposes when he was arrested without a warrant and taken to the police station for questioning. They further held that the seizure was without probable cause in violation of the Fourth Amendment and that the confession given following the seizure and interrogation was inadmissible. Even though they may have meticulously complied with the Fifth Amendment, the confession was nevertheless inadmissible at the trial. The Dunaway facts are very similar to those in the present case. An officer questioned a jail inmate who furnished information that implicated Dunaway in a crime. The officer then ordered a subordinate to “pick up” Dunaway and “bring him in.” After arriving at the detention facility he was placed in an interrogation room where he was questioned by the officers after he had been given the warnings required under Miranda v. Arizona, 384 U.S. 436 (1966). Dunaway waived counsel, made a statement and drew sketches which incriminated him. His pretrial motion to suppress the statement and sketches was overruled and he was convicted. The appellate court of New York affirmed the conviction but the United States Supreme Court reversed and remanded. In Dunaway it was held that if a person is detained under circumstances similar to an arrest, such detention must be supported by probable cause. Detention for custodial interrogation (regardless of its label) intrudes so severely on interests protected by the Fourth Amendment as to necessarily trigger the traditional safeguards against illegal arrest. Davis v. Mississippi, 394 U.S. 721 (1969).

The United States Supreme Court has held that searches and seizures conducted without prior approval by a judge or magistrate are per se unreasonable under the Fourth Amendment, subject only to a few exceptions which are jealously and carefully drawn. It is the duty of those who seek to show an exception to the rule to prove the need for such an arrest. Even if there is probable cause for seizure or search of an automobile, a search of an automobile without a valid warrant is unconstitutional unless there are exigent circumstances making it impractical to obtain a warrant. Coolidge v. New Hampshire, 403 U.S. 443 (1971). Certainly, in the present case where a person is seized, the result should conform to the rights afforded the owner of personal property. The state clearly has not met its burden of proving the necessary circumstances existed which would permit setting aside the Fourth Amendment.

I would affirm the judgment of the trial court.


author: Frank Holt, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. RITCHIE GROCER COMPANY
    81-152
    625 S.W. 2d 531
    Court of Appeals of Arkansas
    Opinion delivered December 21, 1981

      Herschel H. Friday, Michael G. Thompson, and Elizabeth J. Robben, for appellant.

      Robert C. Compton, of Brown, Compton if Prewett, Ltd., for appellee.
   Frank Holt, Justice.

This litigation results from appellant’s action in removing its spur track and not replacing it. During the summer of 1977, appellant removed its industrial spur track without filing a petition with the Commission for discontinuance of service. The city was conducting an urban renewal project and had requested at least a temporary removal. Appellant removed the spur and decided not to replace it. The appellee owned a warehouse which had been served by the appellant in the past. The appellee had abandoned its warehouse several months prior to the removal of the spur. Appellant’s only other customer, Four States Groceries, had closed its warehouse before removal of the spur. In 1979, or about two years later, the appellee filed a complaint with the Arkansas Transportation Commission alleging that the appellant’s removal of the track was unauthorized and requested a hearing. The Commission determined that, pursuant to Ark. Stat. Ann. § 73-809 (a), the appellant was required to file a petition for abandonment prior to the removal of the track, which is for public use, and its failure to do so w;as illegal. However, since the appellee could not show any economic loss, the Commission failed to take any action against the appellant and denied appellee’s request that appellant be ordered to restore the track. On appeal to the circuit court by appellee and cross-appeal by appellant, the court agreed with the Commission that an application is required before the removal of the spur track and remanded the matter to the Commission with directions to consider the petition, or, failing that, the railroad should be directed to restore the service.

Section 73-809 (a) provides in part:

The Arkansas Commerce Commission [Arkansas Transportation Commission] is authorized, empowered, and required to hear and consider all petitions filed with it for .... discontinuance .... of spurs. . . .

In Freeo Valley Railroad v. Hodges, 105 Ark. 314, 151 S.W. 281 (1912), the court held railroads cannot abandon their charter without the consent of the state. The Commission interprets this to mean a railroad cannot abandon its tracks without the state’s consent. A spur, as here, is part of a railway system. Conway Oil & Ice Co. v. Gibson Oil Co., 175 Ark. 905, 1 S.W. 2d 60 (1927). Here, we agree that before consent can be given, § 73-809 (a) clearly requires a petition be submitted to the Commission and a hearing conducted on that issue. Due to the public nature of the services provided by a railroad and privileges granted to it as a common carrier, a hearing should be held before service is discontinued. See Conway Oil & Ice Co. v. Gibson Oil Co., supra.

Appellant next asserts the appellee and not the appellant is required to file a petition for reestablishment of service after the tracks are abandoned, as here, and that the circuit court erred in remanding the matter on that issue to the Commission. We do not agree. The appellant was acting without the required consent of the Commission when the tracks were removed. Appellant cannot now benefit from its wrongful conduct by placing the burden upon the appellee to show services should be again made available to the public. Even so, appellant argues that a review of the evidence in this case sufficiently supports the Commission’s decision not to order services reestablished. This might be true upon a hearing and specific findings on that exact issue. However, to accept appellant’s argument that there is no need for a remand on the issue of restoration of the spur tracks would encourage others to bypass the requirements of the statute. The required petition and a full disposition of the issue are the proper procedures to insure tht the interests of the public, as well as the railroad, are before the Commission. The petition must be fully acted upon by the Commission before the railroad can discontinue service.

On cross-appeal the cross-appellant asserts that Missouri Pacific should be required to replace the spur before the Commission hears and acts on the petition. We cannot agree. The cross-appellant has not demonstrated any economic loss by waiting for the Commission’s decision. Suffice it to say that, if the spur were restored and the Commission later granted the petition to discontinue the spur, it would result in economic waste. Such a procedure would be an exercise in futility as well as costs to the public being reflected in the rate base or tariff of the statutorily regulated common carrier.

Affirmed on direct and cross-appeal.


text:
    T. J. HAYES v. STATE of Arkansas
    CR 81-31
    625 S.W. 2d 498
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Ben Johnson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of capital felony murder of two individuals in the same criminal episode (Ark. Stat. Ann. § 41-1501 [Repl. 1977]) and assessed his punishment at death by electrocution. We find merit in appellant’s first contention for reversal that the trial court erred in denying him access to the staff reports and records made by the Southeast Arkansas Mental Health Center and the State Hospital in conjunction with court ordered psychiatric and psychological examinations.

On August 15, 1979, through court appointed counsel, the court granted appellant’s request that he be examined at the local S.A.M.H.C. That agency’s report, addressed to the court, indicated, inter alia, that appellant suffered from borderline retardation, and the examiners recommended to the court that he be sent to the State Hospital for further testing and evaluation. A one page letter dated January 3, 1980, from the State Hospital, signed by an examining psychiatrist, was filed with the court diagnosing the appellant as being without psychosis, although suffering from alcohol addiction and severe antisocial personality. The letter stated that the staff findings were derived from historical data, physical and neurological examinations by the examining physicians, laboratory and other physical studies, psychological assessment by staff psychologists, and psychiatric history and direct psychiatric examination by the examining psychiatirst. The letter report concluded by stating that “[cjopies of supporting documents may be obtained as provided by law upon authorization of the court of jurisdiction and payment of copying costs.” Appellant’s counsel agrees that he received a copy of this letter report. However, he disputes he ever received a copy of the S.A.M.H.C. reports.

The appellant petitioned the court on March 5, 1980, for release of the psychiatric records, stating “that it is necessary for defendant’s defense that he be provided with all lay and professional staff reports compiled in relation to examinations of defendant at the State Mental Hospital, Rogers Hall and the Southeast Arkansas Mental Health Center.” The trial judge found this information was outside the scope of discovery and denied the petition.

Where there is a court ordered mental examination of a defendant, as here, Ark. Stat. Ann. § 41-605 (8) (Repl. 1977) provides:

There shall be made available to the examiner and counsel, for inspection and copying, all existing medical records in the custody of public agencies notwithstanding the provisions of any statute enacted prior to the effective date [Jan. 1, 1976] of the code. (Italics supplied.)

The S.A.M.H.C. and the State Hospital are public agencies and their records pertaining to the examination of the appellant fall within the scope of this statute. In Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979), the appellant filed a motion to obtain the full records of the State Hospital relating to two prior commitments of the appellant. The motion was granted but the appellant never received the records. In holding the trial court abused its discretion in denying appellant’s motion for a continuance until the records were received, we said:

Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense.... It may be that something in these records would have enabled appellant to furnish stronger proof on his behalf.

We further stated he was entitled to these records as a matter of law, citing § 41-605 (8), supra.

Here, it could be that an inspection and copying of these records and reports would have better enabled the appellant to prepare his defense, or interpose the defense of insanity, or present at trial crucial evidence bearing on mitigation, such as possible mental retardation, during the sentencing phase of the trial. We hold it was prejudicial error to deny him access to these agencies’ reports.

Appellant next contends the court erred in denying his petition for an independent psychological testing and evaluation by a named private psychologist at state expense. The court was correct. Westbrook v. State, supra; Andrews v. State, 265 Ark. 390, 578 S.W. 2d 585 (1979); and Maxwell v. State, 259 Ark. 86, 531 S.W. 2d 468 (1976).

Appellant asserts the court erred in limiting cross-examination of two police officers on relevant issues during the Denno hearing. The court refused to allow appellant to inquire into the length of time appellant spent in the police car from the time he left the county jail with the officers until they arrived at the crime scene. Since the deputy prosecutor acknowledged the span of time involved and this information was amply elicited through the testimony of various witnesses who established the times and locations at which the appellant made various statements during the afternoon, appellant has not demonstrated he was prejudiced.

Appellant also tried to cross-examine an officer as to the procedures used by the county sheriff’s office when an indigent defendant requests counsel. The court correctly sustained the state’s objection since the procedure was beyond the knowledge of the witness and, further, as the court noted, the sheriff’s office has nothing to do with securing and appointing counsel for indigent defendants. Also, appellant’s counsel indicated he was abandoning this “line of questioning.”

The appellant further attempted to elicit information from an officer as to the general policy of the sheriff’s department in taking statements. The state’s objection to the question was correctly sustained. The court ruled that the general policy of the sheriff’s office, as to whether a statement be written or oral, is irrelevant to the determination of whether the appellant’s statemens were freely and voluntarily made. The appellant has failed to show how the trial court’s ruling was a manifest abuse of discretion.

The appellant next asserts the trial court erred in refusing to suppress certain staements made by him to police officers. The state has the burden of proving by a preponderance of the evidence the voluntariness of a custodial statement, and on appeal we make an independent determination based on the totality of circumstances surrounding the statement. In doing so, we do not reverse a trial court’s finding unless clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

The first incriminating statement made by appellant was when he walked into the local county jail and stated he wanted “to turn himself in. I think I just killed my girl friend.” This statement was spontaneous. Therefore, it was properly admitted. Lacy v. State, 271 Ark. 334, 609 S.W. 2d 13 (1980); and Little v. State, 261 Ark. 859, 554 S.W. 2d 312 (1977). Here, after appellant made that statement, he was escorted to a waiting room in the jail. A detective was called in who asked the appellant several questions. The statements made to this detective were suppressed, as the detective could not say for certain that he had advised appellant of his Miranda rights at this time. The detective determined that the homicide probably occurred within the city limits and called the police department. Two officers came to the jail. At the Denno hearing both testified the appellant was read his Miranda rights and he indicated he understood them. There was further testimony that the appellant did not appear intoxicated when he arrived at the county jail. He told these officers he had killed his girl friend and would take them to the scene of the crime. One officer read the appellant his rights again when they entered the police car. Two officers understood that the murder occurred at appellant’s girl friend’s house, but when they arrived there he became upset and hysterical and told them it happened on the outskirts of the city. Appellant then directed the officers to a location 4% miles from town where the bodies of the two victims, appellant’s girl friend and a cab driver, were found, as well as the cab in which the cab driver, as directed, had transported them. Briefly, the appellant said he had killed the cab driver when he refused to leave the threatened woman, whom he also killed because of his jealousy about her attention to another lover.

At approximately 7:30 p.m. or about four hours after his “walk-in” or spontaneous statement at the jail, the appellant signed a written waiver of his Miranda rights. The officers testified that the appellant indicated, as before, he understood his rights and the meaning of the waiver and freely and voluntarily reiterated his complicity in the alleged murders. Neither did he request an attorney. However, appellant’s version ws that he was incapable of making a voluntary statement because he had been drinking most of the day and was in a state of hysteria following the alleged offenses. Further, he asked for and was denied an attorney. It was for the trial court to resolve the credibility of the witnesses and any conflict in their testimony. We cannot say that the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. Degler v. State, supra; Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977); Wright v. State, 267 Ark. 264, 590 S.W. 2d 15 (1979); and Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981).

The appellant also argues that certain statements made by him on July 26, 1979, or ten days later were involuntarily made and the court erred in finding otherwise. These statements, which were somewhat repetitious or duplicative of his previous statements, were not introduced at trial. We fail to perceive nor has appellant demonstrated how he was prejudiced by the non-use of these statements.

The appellant next contends he was denied his right to a speedy trial. Appellant was arrested on July 16, 1979, and was tried on February 5,1981. Therefore, he argues that four terms of court had elapsed between his arrest and trial or a total of 18 months with only five months of this delay fairly attributable to appellant. The term in which a defendant is charged does not count in determining the full terms of court. Matthews v. State, 268 Ark. 484, 598 S.W. 2d 58 (1980). In Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980), we held there are two terms of court for any one year period in the Jefferson County Circuit Court, one that begins in March and one that begins in October. The counting of terms for the purposes of Rule 28 here begins with the October, 1979, term. The second term begins in March, 1980, and ends in October, 1980. The third term begins in October, 1980, and ends in March, 1981. The appellant was tried on February 5, 1981, which is well within the three full terms required under Rule 28. The trial court was correct in denying appellant’s motion to dismiss for lack of a speedy trial.

Neither do we agree with appellant that the trial court erred in failing to grant him a plea and arraignment prior to trial. In an amended motion to suppress, dated July 9, 1980, he acknowledged he was arraigned on August 6,1979, which is also the date that he was appointed counsel. Further, at appellant’s request, he was formally arraigned at trial. We have said that the mere failure to arraign is not reversible error. Hayden v. State, 55 Ark. 342, 18 S.W. 239 (1892); and Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904 (1973).

Appellant’s final argument is that the trial court erred in limiting the testimony of Kathie Anderson, during the guilt phase of the trial, about appellant’s general drinking habits. The court sustained the state’s objection unless the testimony was related to the date of the murders. A brief proffer of proof revealed that Mrs. Anderson had observed appellant drinking heavily on two specific occasions, the latest being two or three days before the alleged offenses. The appellant has not demonstrated a manifest abuse of discretion by the court.

Pursuant to Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1977), we have reviewed the transcript for rulings adverse to appellant and find no other error prejudicial to his rights.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    William C. ALLTON v. Sue Ann SUMTER & Donald Ray SUMTER, Husband and Wife
    81-155
    625 S.W. 2d 502
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Niblock ir Odom, by: Priscilla Karen Pope, for appellant.

      Elrod ir Lee, by: John R. Elrod, for appellees.
   Darrell Hickman, Justice.

This is a suit to set aside an adoption decree. The appellant, William C. Allton, the natural father of Christopher Charles Allton, and Sue Ann Sumter, the boy’s mother, were divorced in Utah in 1974. She married Donald Ray Sumter in 1976. After the Sumters moved to Arkansas in 1977, Sumter petitioned to adopt Christopher Charles Allton. The adoption became final in 1978 pursuant to Ark. Stat. Ann. § 56-101 (Repealed 1977). No notice of these proceedings was given to the appellant. He learned of the adoption in March of 1980 and filed this suit in August, 1980, to set aside the adoption. The probate judge held that the one year statute of limitations in the new adoption law, Ark. Stat. Ann. § 56-216 (b) (Supp. 1981), which became effective on July 5, 1977, controlled. The new law bars any challenge to an adoption for any reason unless it is brought within one year after the decree.

On appeal two issues are raised: First, it is argued that the trial judge erred in applying the new law, that the old law which had a two year statute of limitations should have been applied; and second, even if the new law does apply it is unconstitutional because it violates the right to due process of law. We find the trial court wrong in applying the new statute of limitations, reverse the judgment and remand the case for further proceedings. That being our decision we do not reach the constitutional base.

The facts critical to our decision are not disputed. The adoption petition was filed in Washington County June 15, 1977. A temporary order of adoption was entered October, 1977. A final order was entered May 23, 1978. The appellant’s petition to set aside the adoption was filed August, 1980.

When the petition to adopt was filed, the Arkansas law governing adoptions was essentially the law adopted in 1947. See 1947 Ark. Acts, No. 369. In 1977 the General Assembly passed the Revised Uniform Adoption Act, Ark. Stat. Ann. § 56-201 et seq. (Supp. 1980), which substantially changed the old law. The new law became effective July 5, 1977, after the petition for adoption was filed in this case. The trial court held that although the adoption was governed by the old law, a challenge to the adoption would be a new and separate proceeding and would, therefore, be controlled by the law in effect at the time of the challenge.

Both parties cite the case of Dean v. Brown, 216 Ark. 761, 227 S.W. 2d 623 (1950) as authority for their positions as to which statute of limitation should apply. The Dean case is informative but not controlling. In this case there is a “savings clause” which in our judgment makes it clear that the new law should not be applied to any proceedings pending on the date that the new act became effective. That provision reads:

Any adoption or termination proceedings pending on the effective date of this Act are not affected thereby. Section 22, 1977 Ark. Acts, No. 735.

This case was pending on that date.

The case will be remanded for further proceedings because when the trial judge applied the new statute of limitations it was with the knowledge that under the one year statute of limitations it made no difference whether the appellant had notice of the proceedings, or whether his former wife committed fraud on the court by preventing notice to the appellant. Ark. Stat. Ann. § 56-216 (b) (Supp. 1981).

The appellant made a proffer of proof that in our judgment was a prima facie showing that the appellant’s former wife did conceal the adoption proceedings from the appellant and did commit fraud in obtaining the decree. It will be up to the trial judge to conduct a hearing to see if fraud actually existed and if it was of the kind and nature that would entitle the appellant to set aside the decree. In Olney v. Gordon, 240 Ark. 807, 402 S.W. 2d 651 (1966) and Hughes v. Cain, 210 Ark. 476, 196 S.W. 2d 758 (1946), we found that a natural parent wrongfully deprived of a notice and opportunity to participate in an adoption proceeding had standing to petition to set aside the adoption decree. Furthermore, in Olney, we held that the statute of limitations was tolled when fraudulent concealment of the parent’s cause of action existed. The issue of fraud is critical because this suit was filed beyond the two year statute and without such proof the appellant’s claim could possibly fail. But see Armstrong v. Manzo, 380 U.S. 545 (1965); Hughes v. Cain, supra.

If the appellant succeeds in his claim of fraud, then the proceedings will be conducted as though no temporary order had been entered, and in accordance with the law in effect when the petition to adopt was filed. The question of whether the appellant abandoned his child will be an issue to be relitigated.

Reversed and remanded.


author: Darrell Hickman, Justice. Richard B. Adkisson, Chief Justice,

text:
    Louis Henry VINSTON v. STATE of Arkansas
    CR 81-72
    625 S.W. 2d 533
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

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

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Louis Henry Vinston was one of three men suspected of participating in an armed robbery of Henshaw Jewelry, a small shop located in the Park Plaza Shopping Center in Little Rock, Arkansas. Late in the afternoon of October 30,1980, two men, one black and one white, armed with pistols, forced the owners of the store, Mr. and Mrs. Henshaw, into a back room and proceeded to empty the display cases of jewelry and steal other valuable property in the store. During the course of the robbery, a white accomplice entered the store. It was estimated that the jewelry stolen was worth about $30,000 and the scrap gold taken was worth $36,000. Vinston was convicted of aggravated robbery and theft and sentenced to fifty years imprisonment for the robbery and twenty years for the theft. His sentences were enhanced because of four or more prior convictions.

Vinston’s arguments of error on appeal relate to search and seizure, his identification, the validity of a search warrant, and the chain of custody regarding items taken from his vehicle. We find no merit to these arguments and affirm his convictions.

On Thursday afternoon, the 30th of October, 1980, Ralph Jones, the supervisor of the power plant at the shopping center, noticed suspicious conduct by two white males and one black male. He had been alerted earlier by a restaurant owner in the shopping center to be on the lookout for thieves who were stealing meat from the restaurant. The three men first drove up in a Buick automobile, parked, went into the shopping center, came out ten minutes later and left. Twenty minutes later all three returned in a Ford LTD automobile being driven by the black man. The three men got out of the car carrying green plastic bags. One of the white men returned to the Ford and left. Jones wrote down the license numbers and a description of both the Buick and the Ford on a scrap of paper. About the Ford he wrote: ELP 871, LTD Four Door, 1977. Jones could not say which store the men entered.

During this period of time Henshaw’s jewelry store was robbed. According to the Henshaws the robbers stayed for about fifteen minutes, none of them had masks on, and the store was well lit. After the robbery the Henshaws called the police. The next morning Jones, the plant supervisor, called the police and gave them a description of the vehicles that he had seen and related what he had observed. That same morning at 8:30 a detective took six photographs of black men to the Henshaws and both of them identified Vinston as one of the robbers.

The police learned that the Ford LTD automobile described by Jones belonged to Vinston. Based on all this information a warrant was obtained for Vinston’s arrest and two detectives proceeded to the L & S Garage on Mabelvale Pike that Vinston owned an interest in. The two detectives arrested Vinston at the garage at 11:00 a.m., October 31, 1980, and seeing his vehicle decided that it should be seized to prevent removal or destruction of any evidence or contraband. It was seized and towed to a lot used by the police for such vehicles. Three days later, on Monday, a search warrant was obtained for the Ford automobile. The trunk contained a shoulder holster, and numerous watches, rings and bracelets.

The day that Vinston was arrested the Henshaws and two other witnesses viewed a lineup and the Henshaws identified Vinston positively as one of the robbers.

Vinston argues on appeal that the seizure of his vehicle was unreasonable and was, therefore, in violation of the fourth amendment to the United States Constitution. We disagree.

The State had the burden of justifying the warrantless seizure of the vehicle. Cardwell v. Lewis, 471 U.S. 583 (1974). However, the United States Supreme Court has consistently recognized that an automobile does not enjoy the same constitutional protection that a home does because of its mobility and because one does not have the same expectation of privacy in a vehicle as one would in a house. Carroll v. United States, 267 U.S. 132 (1925); Chambers v. Maroney, 399 U.S. 42 (1970). This has come to be known as the automobile exception and its application has many facets. This case does not fall within the rule that allows the search of part of the vehicle that is within the immediate reach or control of the one arrested. New York v. Belton, 450 U.S. 1028, 69 L. Ed. 2d 768, 101 S. Ct. 2680 (1981); Chimel v. California, 395 U.S. 752 (1969). This is a case similar to Coolidge v. New Hampshire, 403 U.S. 443 (1971). In the Coolidge case the police seized a vehicle in the driveway of a private residence without a warrant and seizure was held to be unreasonable because there were no exigent circumstances. In doing so, however, the court pointed out six circumstances that affected their decision, six reasons why exigent circumstances did not exist: 1. The police had known for some time of the probable role of the vehicle in the crime; 2. The defendant was aware that he was a suspect, had been cooperative and there was no indication he would flee; 3. He had already had ample opportunity to destroy any evidence; 4. There was no suggestion that the vehicle was being used for an illegal purpose, and it was regularly parked in the driveway of his house; 5. The opportunity for search was not “fleeting;” and 6. The objects the police assumed to be in the car were neither stolen, contraband, nor dangerous. The counterparts of these six reasons all exist in this case: 1. The robbery had occurred just the evening before; 2. Vinston was not contacted until he was arrested the next day at 11:00 a.m.; he had no reason to know that he was a suspect or that his car had been identified as being used in the robbery, so he would have no reason to destroy any evidence or remove any contraband; 3. The vehicle was not in a private driveway but at a business establishment; 4. There were two other suspects in the case, both white, who had not been identified or arrested at the time Vinston was arrested; 5. The police had good cause to believe that they would only have this “fleeting” opportunity to seize the vehicle before someone could remove the evidence or contraband; and, 6. The police had positive information that the vehicle was used in the crime and possibly contained evidence or stolen property.

The seizure of a vehicle is j ustified when confederates or others might remove a vehicle. U.S. v. 1972 Chevrolet Nova, 560 F. 2d 464 (1st Cir. 1977); See W. RINGEL, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS, § 11.3 (1980).

In Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975), we held the seizure of the accused’s automobile to be unreasonable. But Freeman is distinguishable for several reasons: The vehicle was located on private property at a residence; Freeman was arrested two blocks away from his vehicle; and, there had been no positive identification of the vehicle seized as being the one used in the crime. Clearly, exigent circumstances existed warranting the seizure of Vinston’s vehicle.

Vinston’s argument that his identification at the lineup was too suggestive is also meritless. Both Henshaws pointed out Vinston from six photographs in the early morning after the robbery. It is argued that the Henshaws, Jones, the plant supervisor, and Cathy Meechan, a clerk at a store next door to the jewelry store, were repeatedly taken through the lineup and suggestions were made by the police. This argument is based primarily on the testimony of a lawyer who represented one of the white suspects, Mr. Storey, who co-owned the garage with Vinston. Evidently the police were not all that suggestive because neither of the two white suspects was identified. Only Vinston was identified and only the Henshaws identified him. Mr. Henshaw said he only viewed the lineup of the black men once. Mrs. Henshaw said she viewed it twice. Both denied that any suggestions were made to them and the two detectives verified their testimony. On appeal we review the totality of the circumstances to see if the trial court’s decision was clearly erroneous. Beed v. State, 271 Ark. 526, 609 S.W. 2d 898(1980). Whether an identification is tainted depends upon several factors: The opportunity to observe the criminal, the accuracy of the victim’s description, the amount of certainty of the victim at the time of the confrontation and the length of time between the crime and identification. Washington v. State, 273 Ark. 482, 621 S.W. 2d 216 (1981). Both Henshaws testified that they got a good look at the robbers. In this case the identification was made less than twenty-four hours after the crime was committed. The trial court’s decision admitting the identification evidence was not clearly erroneous.

The police obtained a search warrant for Vinston’s vehicle on the Monday following the robbery. The warrant was signed by one of the detectives and it was based on the positive identification of Vinston by the Henshaws and the information supplied by Mr. Jones. It is argued that the warrant was deficient because it was based on hearsay and the warrant did not come within the test of Aguilar v. Texas, 378 U.S. 108 (1964). Aguilar dealt with an unidentified police informant and does not control. In this case the face of the warrant stated Mr. Jones’ name and address, that he had observed Vinston’s vehicle at the place of the robbery, and that Vinston had been arrested for the robbery. A valid warrant may issue based upon hearsay information as long as there is substantial basis for crediting the hearsay. Rowland v. State, 262 Ark. 783, 561 S.W. 2d 304 (1978); Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87 (1973), cert. denied 415 U.S. 995 (1974). The search wrrant was based on solid information.

A rather weak argument is made that the State did not prove the chain of custody of the items recovered from the trunk of the vehicle. The unrefuted testimony of the officer was that the vehicle was towed to a fenced lot used by the police for storing such vehicles. The enclosure was locked, and at night there were watch dogs running loose in the enclosure. The officer testified that he had to force open the trunk because the key that they had taken from Vinston would not open the trunk. Actually, Vinston claimed that he gave the officers permission to search the vehicle at the time he was arrested and they refused to do so. He said he told them that the trunk could be opened by pulling a latch in the glove compartment of the vehicle. The officers testified that Vinston refused permission to search the vehicle when he was arrested. The officer said the trunk was forced because he did not know that this type of vehicle had a trunk latch in the glove compartment. The trial court was satisfied the State had shown a proper chain of custody and error has not been demonstrated by the appellant.

Affirmed.

Adkisson, C.J., and Purtle, J., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The police arrested appellant and seized his automobile. There was no testimony bearing on the appellant’s location relative to the car at the time of the arrest and seizure. We must, therefore, assume that the search incident to arrest doctrine has no applicability to this case.

This case is governed by Coolidge v. New Hampshire, 403 S.W. 2d 443 (1971), which held that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest. Warrantless searches are presumed to be unreasonable.

The State attempted to justify the seizure by proof of exigent circumstances recognized in Coolidge as sufficient to dispense with the warrant requirement. Although the majority finds this proof sufficient, it was, in fact, not sufficient because the determining factors making a warrant necessary in Coolidge are also present in this case. They are: “advance police knowledge of the existence and location of the evidence, police intention to seize it, and the ample opportunity for obtaining a warrant.”

Here the police knew in advance that they wanted to seize the car. They knew it was used in the robbery and that it was registered in the name of the appellant. The police had ample opportunity to obtain a search warrant for the car at the same time they requested the arrest warrant for the appellant.

I am hereby authorized to state that Purtle, J., joins me in this dissent.

      The exact location of the vehicle is not in the record. It was at the garage, but whether it was on the public street or in a parking lot or space we cannot say.


author: John I. Purtle, Justice. Richard B. Adkisson, Chief Justice, Darrell Hickman, Justice,

text:
    Reed THOMPSON v. William F. “Casey” LAMAN
    81-151
    625 S.W. 2d 507
    Supreme Court of Arkansas
    Opinion delivered December 21, 1981

      Jim Hamilton, North Little Rock City Atty., by: G. Spence Fricke, Chief Asst. City Atty., for appellant.

      Harmon ir Hunnicutt, by: John T. Harmon, for appellee.
   John I. Purtle, Justice.

In response to a Petition for a Writ of Mandamus filed by appellee, William F. “Casey” Laman, against the mayor of North Little Rock, Reed Thompson, the Fourth Division Circuit Court of Pulaski County issued the writ directing the appellant to pay appellee $3,100 per month as an annual retirement benefit. On appeal appellant argued that the trial court erred in holding that Act 311 of 1971 was the controlling authority.

The appellee served as mayor of North Little Rock from 1958 through 1972 inclusive. He retired in December of 1972 and received annual retirement pay of $5,000. He was reelected mayor, serving another 18 months from July 1979 through December 1980. He reached the age of 60 in October of 1973. The North Little Rock City Council provided a 1981 appropriation of $18,600 for appellee’s retirement benefits for the 1981 calendar year.

The present mayor, appellant, refused to pay the amount provided in the budget for 1981 and continued the payments at the rate of $5,000 per annum which the appellee had been drawing up until this time.

Of the three acts having a direct bearing on the retirement benefits to be received by the appellee the trial court held that Act 311 of 1971 controlled. The question to be determined by this court is whether such ruling was correct and, if not, which act controls the present factual situation.

We first consider Act 311 of 1971 which was an amendment to Act 403 of 1967, as amended. Section 1 of Act 311 provides as follows:

In all First Class cities of this State, any person who shall serve as Mayor of such city for a period of not less than ten (10) years, upon reaching the age of sixty (60) or any person who shall serve as Mayor of said city for a period of not less than twenty (20) years without regard to age, shall be entitled to retire at an annual retirement benefit during the remainder of his natural life, payable at the rate of one-half (1/2) of the salary payable to such Mayor at the time of his retirement. Provided, further, that any Mayor of a City of the First Class of this State now or hereafter having a population of 50,000 or more according to the most recent federal census who has served not less than fifteen (15) continuous elected years as Mayor of said City shall, upon reaching age sixty (60), be entitled to an annual retirement benefit during the remainder of his natural life, payable at the rate of his salary received as Mayor at the time of his retirement or at the time said person last served as Mayor. Such retirement payments shall be paid monthly and shall be paid from the city general fund.

When Act 311 was enacted, the constitutional limit on the salary of mayors of cities in any class was $5,000. Therefore, any person retiring under the provisions of Act 311 would be limited to $5,000 at least up until such time as the constitutional limitation was removed. Therefore, it is logical to say that the legislature had in mind that a mayor retiring under this act would never receive more than $5,000 per year.

Section 1 of Act 486 of 1975 contained the same general provisions as the above-quoted section of Act 311. However, the act specifically stated that retirement benefits under the act should not exceed the annual salary prescribed for the mayor of the city involved on January 1, 1975. On this date the salary of the mayor of North Little Rock was $5,000. Section 2 provided for the retirement of mayors of the city of the first class. However, § 2 was completely repealed by Act 819 of 1977. Act 819 of 1977 provides:

Any mayor of a city of the first class in this State having a mayor-council form of government and having a population of thirty-five thousand (35,000) or more residents according to the most recent federal decennial census, who served as mayor of such city for a period of not less than ten (10) years upon reaching the age of sixty (60), or any person who shall serve as mayor of said city for a period of not less than twenty (20) years without regard to age, shall be eligible to retire at an annual retirement benefit during the remainder of his or her natural life, payable at the rate of one-half (1/2) the salary payable to such mayor at the time of his retirement, or five thousand dollars ($5,000) per year, whichever is greater, and any person who meets or has met the requirements of this Section and who may have previously retired under any other provision of law for the retirement of mayors shall be entitled to elect to receive benefits under his section. . . .

The Preamble to Act 819 of 1977 stated its purpose was to change retirement eligibility requirements for mayors of first class cities having a population of 35,000 or more. Act 819 attempted to clarify whatever may have been the requirements for retirement prior to its enactment. Act 819 also had a repealing clause. Nothing contained in the act required or even allowed a city to set up a retirement system. It simply set forth the terms under which a retiring mayor would be eligible to receive benefits of up to one-half his salary or $5,000 per year. Act 819 of 1977 was passed after authority had been granted cities to allow mayors’ salaries to exceed $5,000 pursuant to Amendment 56 § 4, which had an effective date of January 1, 1977. Therefore, the provision that a retiring mayor could receive one-half of the salary payable to such mayor at the time of his retirement was the first time the General Assembly addressed the subject after mayors had been authorized to receive salaries in excess of $5,000. It is not our place to judge the wisdom of the legislature in constructing legislative action but it is our duty to exercise our own judgment in determining the legislative intent and in doing so one criterion is whether the result we reach makes sense. Page v. Highway No. 10 Water Pipe Line Improvement District No. 1, 201 Ark. 512, 145 S.W. 2d 344 (1940). We know of no situation in which the legislature has ever provided for the retirement of an official at full salary except for the period of time Act 311 of 1971 authorized retirement at full salary to a maximum of $5,000. The subsequent action by the General Assembly obviously intended to reduce the upper limits of a retiring mayor to an amount which would not exceed one-half of the salary he was receiving at the time of his retirement.

We believe this matter is properly considered in the light of the case of Nance v. Williams, 263 Ark. 237, 564 S.W. 2d 213 (1978), wherein we said:

Repeals by implication are, of course, not favored. This case, however, falls within the rule that when a later act covers the entire subject matter of an earlier one, adding new provisions and plainly showing that it was intended as a substitute for the first one, then the older act is repealed by implication. Forby v. Fulk, 214 Ark. 175, 214 S.W. 2d 920 (1948).

For the foregoing reasons we remand to the circuit court with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded.

Adkisson, C.J., Holt and Hickman, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The majority has held that Act 311 has no application in this case because it has been repealed by implication by Act 486 of 1975 (A.S.A § 19-1035.1 — 19-1035.3 [Repl. 1980]). I disagree. It is well settled in Arkansas and elsewhere that repeals by implication are not favored. Bartlett v. Willis, 147 Ark. 374, 227 S.W. 596 (1921); Anderson-Tully Co. v. Murphree, 153 F. 2d 874 (1946). It is equally well settled that statutes relating to the same general subject must be construed together and, if possible, effect must be given to each. McFarland v. Bank of State, 4 Ark. 410 (1842); Thompson v. Road Improvement Dist., 139 Ark. 136, 213 S.W. 386 (1919). There is a presumption that the legislature intended no changes other than those clearly expressed. See Hendricks v. Hodges, 122 Ark. 82, 182 S.W. 538 (1916); Peterson Produce Co. v. Cheney, Comm’r, 237 Ark. 600, 374 S.W. 2d 809 (1964).

Both Act 311 of 1971 and Act 486 of 1975, as amended, pertain to retirement benefits for mayors in cities of the first class. However, there is a fundamental distinction between these two acts. Act 311 is mandatory legislation and applies generally to mayors in all first class cities. Whereas, Act 486, § 1 provides specifically that “the provisions of this Act shall be permissive;” § 3 further provides that any first class city “may, upon adoption of an ordinance therefor, establish a retirement system for the mayor of such city in accordance with the provisions of this Act.”

Since these acts relate to the same subject matter, it is our duty to reconcile them and permit both to stand if possible; and since there was no express repeal of the 1971 Act by the 1975 Act, we must hold they are different types of legislation (mandatory—permissive) and exist separately with the latter act being cumulative to the first. Ward v. Harwood, 239 Ark. 71, 387 S.W. 2d 318 (1965).

It is not the role of this Court to determine the wisdom of legislative enactments but to determine their constitutionality and effect — here it is to determine the viability of Act 311 of 1971. Our rules of statutory construction applicable to this case are so well settled that they have been recognized as such by other courts, see Anderson-Tully Co. v. Murphree, supra. To exclude appellee from this Court’s consistently applied and settled law deprives him of equal protection of the law.

I am hereby authorized to state that Holt, J., joins me in this dissent.

Darrell Hickman, Justice,

dissenting. I wholly agree with the dissent filed in this case by the Chief Justice but feel compelled to emphasize my disagreement with the majority’s decison. The result in this case was probably not expected by either of the parties to this litigation. At least there is no evidence of that fact. Nor is it likely that the proponents of the legislation foresaw the possible distorted results that could be caused by their deeds. But the result to be reached should be the least concern to this court. It is not the end that should concern this court but the means used to arrive at the end result. To do otherwise is to commit that unpardonable sin of “legislating.”

The only issue is whether Act 311, passed in 1971, is still the law. It has not been repealed by any subsequent Act. Neither Act relied upon by the City of North Little Rock can replace it by implication because those Acts do not grant any retiree a pension, they only permit a city to pass an ordinance allowing a pension. Those are two separate and distinct propositions. Act 311 granted a pension we cannot void. Only the General Assembly can change that Act.

The confusing legislation that exists regarding the retirement benefits to be granted to mayors of first class cities was probably caused by two things: The approach that the General Assembly takes in such matters, and the failure of the cities to monitor and police legislation that affects them.

Neither party raised the question of whether any of this legislation was local or special in violation of ARK. CONST, amend. XIV. Therefore, we cannot consider that question. The Acts may or may not be local or special, but a cursory review of the Acts strongly indicates that they were drafted with someone in mind. References to a city of over 50,000 population, and a city of 35,000 people or more located in a National Park, are not subtle references. That approach to legislation, coupled with the fact that the state will not have to pay any pensions, can only result in inequities and distorted results.

Nor are the cities without fault in such matters. Standing by and permitting such legislation on the assurance that it will cause no mischief, is not merely innocence, it is complicity. Cities should, most of all, monitor and police legislation that affects them. What may appear harmless and “local” today, may rise up and bite tomorrow.

It is my respectful judgment that in this case the majority has decided the end that should be reached and fashioned the law to justify that decision. Those good intentions will, in my judgment, cause more harm than the majority envisions. That is true because what the majority has done is decide that Act 486 of 1975 and Act 819 of 1977 grant to any retired mayor a retirement benefit. That is entirely wrong because Act 486 is permissive, it only permits a city to pass an ordinance allowing a mayor to draw a pension. The majority’s opinion voids those two provisions in Act 486 that make it clear such pensions are permissive. Now any retired mayor of a first class city has an absolute right to draw a pension whether the city has decided it can afford it or not.

I respectfully dissent.

      “Provided however, that the provisions of this Act shall be permissive, and cities of the first class may establish retirement system for mayors of such cities in accord with the provisions of this Act.” Section 1 of Act 486 of 1975.
      “The governing body of any city of the first class in this State may, upon adoption of an ordinance therefor, establish a retirement system for the mayor of such city in accordance with the provisions of this Act.” Section 3 of Act 486 of 1975.