author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice,

text:
    Laura BERRY v. STATE of Arkansas
    CR 86-47
    718 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986
    [Rehearing denied December 8, 1986.]

      Hubbard, Patton, Peek, Haltom & Roberts, by: Raymond W. Jordan-, and Atchley, Russell, Waldrop & Hlavinka, by: J. Dennis Chambers and Clyde Lee, for appellant.

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

      Hickman, Hays, and Newbern, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Laura Berry appeals from a conviction of capital felony murder in which she was sentenced to life imprisonment without parole. Among her points for reversal, the appellant contends that the trial court erred in admitting numerous graphic photographs of the victim taken at the scene and afterward, and entered to show the injuries inflicted by her accomplice in this crime. We agree and reverse for a new trial. The only other issue we deem necessary to address, in light of our holding, is the appellant’s argument that the trial court erred in denying her motion for a change of venue because of pretrial publicity. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b) because of the length of the sentence.

It was undisputed at trial that the death of Mrs. Nancy Sangalli, the appellant’s great-aunt, was the result of a beating administered by the appellant’s boyfriend Kelly Mills, with a crowbar, a cooking pot and his fists. Pursuant to an agreement with the prosecuting attorney, Mills pleaded guilty to capital murder in anticipation of a life sentence without parole in return for his testimony in the appellant’s trial. Mills testified that he and the appellant planned for him to go to Mrs. Sangalli’s home and, when the appellant later rang the doorbell, knock Mrs. Sangalli out with a crowbar he had hidden in his back pocket. They would then steal money, checks and an express banking card to finance their escape from the country. Mills stated that the appellant and he got the crowbar from the appellant’s home.

According to Mills’ account, he “chickened out” when the appellant first rang the doorbell, but later struck Mrs. Sangalli with the crowbar when she was turned away from him. Mills said that when Mrs. Sangalli attempted to escape, he pulled her to the floor and began hitting her. He was unable to relate the details of the attack, saying he blacked out, but remembered the appellant coming in as he was dragging Mrs. Sangalli away. The two then ransacked the home but found only a small amount of money and some checkbooks, which they took. They stole the victim’s car and drove to Dallas, but ran out of money and returned to Texarkana the next day. They were arrested upon their return. The appellant gave a statement to one of the arresting officers to the effect that she was not aware of Mills’ intentions until she entered her aunt’s house and that she then went along with Mills because he threatened to kill her if she did not. The appellant helped the police recover the crowbar they had thrown away on the return trip from Dallas, and it was admitted into evidence against her.

At trial, the prosecuting attorney introduced nine photographs of the victim (including six of the victim’s face), most of which were in color, over the objections of the appellant. The photographs, graphically showing the extensive injuries to the victim’s face and some taken to emphasize those injuries, were accepted by the trial court without exception. They included photographs of the trail of blood where the victim was dragged, of the victim’s body in a pool of blood at the scene, closeup autopsy photographs of the victim’s face, an autopsy photograph of the side of the victim’s head with the hair shaved to further expose the injuries, and a closeup of the victim’s shattered teeth which had been removed from her mouth by the medical examiner.

The appellant objected that the photographs were not relevant in that the brutality of the murder, the cause of death, and the perpetrator of the injuries were all admitted by the appellant and it was uncontradicted that the appellant never touched the victim. The appellant argued that any probative value of the photographs was outweighed by the prejudice likely to result, and that at some point the photographs were merely cumulative and entered only to further incite passion against her.

The first question upon the proper introduction of photographs, as with all evidence, is whether they are relevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” A.R.E. Rule 401. If the evidence is relevant, it still “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” A.R.E. Rule 403. The determination of admissibility is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Hallman v. State, 288 Ark. 448, 706 S.W.2d 381 (1986).

Decisions of this court have permitted broad admission of photographs of murder victims. The fact that photographs are inflammatory is not alone sufficient reason to exclude them. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983). Inflammatory pictures are “admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony.” Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

We have often held that a photograph is not inadmissible merely because it is cumulative and that the defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977); Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982). “Of course, if a photograph serves no valid purpose and can only result in inflaming the passions of the jury, it is inadmissible.” Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

Even the most gruesome photographs have been held admissible to show the nature and location of wounds in order to rebut a defendant’s claim of self-defense, Perry, supra; to show premeditation and deliberation, Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980); to show the speed and force of impact of the defendant’s car in a manslaughter case, Prunty v. State, 271 Ark. 77, 607 S.W.2d 374 (1980); to show the death was caused under circumstances manifesting an extreme indifference to the value of human life, Gruzen, supra; and to show that the victim had been raped, Williams v. State, 239 Ark. 1109, 396 S.W.2d 834 (1965).

Because of the trial court’s carte blanche acceptance of these graphic and repetitive pictures into evidence, it is necessary that we reexamine our position on the admissibility of inflammatory photographs. The analysis should firmly emphasize the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature, rather than promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene the prosecution can offer.

Other states have been equally liberal in the admission of similar photographs where they were relevant to proof of the state’s case. Like we do now, many have found it necessary, however, to stem the resulting influx of inflammatory pictures where the claims of relevance were increasingly tenuous in light of the prejudicial nature of the photographs. E.g., Cavazos v. State, 365 S.W.2d 178 (Tex. Cr. App. 1963); Borroum v. State, 168 Tex. Cr. 552, 331 S.W.2d 314 (1960); Davis v. State, 165 Tex. Cr. 456, 308 S.W.2d 880 (1958); People v. Landry, 54 Ill. 3d 159, 368 N.E.2d 1334 (1977); People v. Garlick, 46 Ill. 3d 216, 360 N.E.2d 1121 (1977) and People v. Leflar, 38 Ill. 2d 216, 230 N.E.2d 827 (1967).

In State v. Bucanis, 26 N.J. 45, 138 A.2d 739 (1958) cert. denied, 357 U.S. 910 (1958), where graphic autopsy photographs showing the gunshot wounds of the victim were admitted in the trial of the deceased’s husband, the New Jersey court described a similar tendency to abuse the discretion given the trial courts. After a review of New Jersey cases the court stated:

These cases contained broad pronouncements which, perhaps, gave too much encouragement to the thought that the prosecution could use at will any and all pictures at a murder trial as long as they possessed some relevancy. Each decision, however, presumed, of course, that the trial judge would continue to exercise a modicum of sound judicial discretion and exclude any picture that was unusually gruesome or repulsive and had little evidential value, admitting only those which would be of significant assistance to the jury in its deliberations as to the guilt or innocence of the defendant and which were not unduly prejudicial.
The fact that a photograph may have some probative force is not always completely determinative of its admissibility. There are cases where the logical relevance of such an exhibit will unquestionably be overwhelmed by its inherently prejudicial qualities which will impair the defendant’s right to a fair and impartial trial. When undoubtedly the minute peg of relevance will be entirely obscured by the quantity of dirty linen hung upon it, fair play directs the exclusion of the exhibits.

After holding that the trial court had abused its discretion in admitting the pictures, the New Jersey court nevertheless affirmed the conviction because the objection at trial was insufficient to preserve the point for appeal.

Similar problems presented by allowing the use of such photographs were discussed in State v. Adams, 76 Wash.2d 650, 458 P.2d 558 (1969), (Rosellini, J. dissenting) rev’d in part, 403 U.S. 947 (1971):

The majority seems to feel that, because we have never found that the introduction of photographs constituted prejudicial error, we are committed to the philosophy that the trial court’s exercise of discretion on such matters is not subject to review. The trouble is, I fear, that every time we refuse to reverse in a doubtful case, the impression is created that the prosecutor is free to go a little further next time. I also fear that, if this trend is allowed to continue, pictorial appeals to the emotions of the jury may become an accepted substitute for proof that the defendant committed the crime.

The Washington court’s increased concern over the widening acceptance of inflammatory pictures was expressed again in State v. Crenshaw, 98 Wash. 2d 789, 659 P.2d 488 (1983):

Prosecutors as well as trial courts must exercise their discretion in the use of gruesome photographs. The statement that “the State had the right to prove its case up to the hilt in whatever manner it chose,” must be read to mean only that the State may present ample evidence to prove every element of the crime. . . . Prosecutors are not given a carte blanche to introduce every piece of admissible evidence if the cumulative effect of such evidence is inflammatory and unnecessary. In other words, in such situations where proof of the criminal act may be amply proven through testimony and noninflammatory evidence, we caution prosecutors to use restraint in their reliance on gruesome and repetitive photographs.

Finally, after issuing these warnings, the Washington court found reversible error where the state introduced four autopsy, photographs of the victim’s head to show the force of the blows administered by the defendant along with other autopsy photographs and a photograph of the victim’s body on the waterbed where it was found. State v. Sargent, 40 Wash. App. 340, 698 P.2d 598 (1985). In that situation, the Washington court found the prejudicial effect outweighed any probative value the photographs could have.

In State v. Banks, 564 S.W.2d 947 (Tenn. 1978), the Tennessee Supreme Court discussed the factors to be considered by the trial judge when inherently prejudicial photographs are offered:

The matters to be taken into consideration include the value of photographs as evidence, that is, their accuracy and clarity, and whether they were taken before the corpse was moved, if the position and location of the body when found is material; the inadequacy of testimonial evidence in relating the facts to the jury; and the need for the evidence to establish a prima facie case of guilt or to rebut the defendant’s contentions. . . .
The more gruesome the photographs, the more difficult it is to establish that their probative value and relevance outweigh their prejudicial effect. Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974). In the presence of an offer to stipulate the facts shown in the photograph, the State’s burden of justification is often difficult to sustain. People v. Chavez, 50 Cal.2d 778, 329 P.2d 907 (1958); Poe v. Commonwealth, Ky. App., 301 S.W.2d 900 (1957). Failure of the defense to dispute the testimony that the photographs illustrate may have the same effect. People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973);State v. Bucanis, 26 N.J. 45, 138 A.2d 739 (1958).
In some cases, photographic evidence has been excluded because it does not add anything to the testimonial descriptions of the injuries. Archina v. People, 135 Colo. 8, 307 P.2d 1083 (en banc, 1957); Dyken v. State, Fla., 89 So.2d 866 (en banc, 1956); State v. Morgan, 211 La. 572, 30 So.2d 434 (1947). Those made during or after an autopsy are most often condemned, Kiefer v. State, 239 Ind. 103, 153 N.E.2d 899 (1958); State v. Bucanis, supra, because they present an even more horrifying sight and show the body in an altered condition and because lay jurors normally do not have the experience necessary to draw correct inferences from the appearance of internal organs. State v. Morris, 245 La. 175, 157 So.2d 728 (1963).

In Banks, photographs of the deceased’s battered head and body were admitted in the murder trial of the defendant, who had beaten him to death with a club. The Tennessee Court of Appeals had reversed, but the Tennessee Supreme Court held that, while there was error, it was not reversible because the record did not affirmatively show that it afFected the results of the trial.

Where the state was permitted to introduce fourteen autopsy pictures of the deceased, the Kansas Supreme Court in State v. Boyd, 216 Kan. 373, 532 P.2d 1064 (1975), reversed the trial court and said:

This court has gone a long way, perhaps too far, in countenancing the introduction of grisly, gruesome photographs. . . . Some of the photographs which were admitted could have been helpful to the jury by showing the angle of penetration of the murder instrument into the deceased’s body. We fail to see the necessity, however, of the state’s offering repetitious exhibits to prove the same point.

A sampling of other cases finding error in the admission of photographs of the deceased includes State v. Morris, 245 La. 475, 157 So.2d 728 (1963) (photographs of the deceased during autopsy had no real evidentiary value and were so shocking and emotionally disturbing as to be inherently prejudicial); People v. Falkner, 389 Mich. 682, 209 N.W.2d 193 (1973) (where appellant relied on alibi defense and there was unrebutted proof of the injuries, photographs of shotgun wound were entered for no other reason than to excite passion and prejudice); State v. Middleton, 339 S.E.2d 692 (S.C. 1986) (any probative value of autopsy photographs was negated by other adequate proof and outweighed by the prejudice they created); State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963) (ten gory color photographs of dead body were excessive); Sipsas v. State, 716 P.2d 231 (Nev. 1986) (prejudicial effect of color autopsy photograph of eviscerated child victim exceeded its probative value); Young v. State, 234 So. 2d 341 (Fla. 1970) (admission of photographs of partially decomposed torso was prejudicial error); State v. Floyd, 360 S.W.2d 630 (Mo. 1962) (photograph of decomposed body was needlessly inflammatory); Jordan v. Commonwealth, 371 S.W.2d 632 (Ky. 1963) (photographs of mangled body of victim of car collision in involuntary manslaughter case were improperly admitted where force of collision was established by other evidence, but error not preserved for appeal); and State v. Connor, 434 A.2d 509 (Me. 1981) (admission of photograph showing bullet wound and distorted face of victim was error, but was harmless in light of overwhelming evidence against defendant).

Some states, in recognition of the potential for prejudice caused by inflammatory photographs, have adopted a rule that the photographs are not admissible unless they are “of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Liddick, 370 A.2d 729 (Pa. 1977). See also McCullough v. State, 255 Ga. 672, 341 S.E.2d 706 (1986) (postautopsy photographs must be “necessary” to establish a material fact that could only become apparent because of the autopsy.)

In the present case, an element of the state’s proof was that the death was caused “under circumstances manifesting extreme indifference to the value of human life.” It is not true, as appellant argues, that the fact that she did not administer the blows makes the photographs totally irrelevant, because she is liable for the conduct of her accomplice. Ark. Stat. Ann. § 41-302 (Repl. 1977). Neither does the fact that she admitted to everything shown in the photographs necessarily remove all probative value, since we have held that this alone does not preclude admission. Nevertheless, when the state and the defendant agree not only on the cause of death and the brutal manner in which it was carried out, but also on who inflicted the injuries and his “extreme indifference” in doing so, that has a bearing on the probative value of the photographs.

The photographs did not illuminate any issue which the state had not already conclusively proved and the appellant admitted. They did nothing to rebut a defense by the appellant or to clarify the cause of death. They were not necessary to corroborate any questionable testimony. The basic issue at trial was whether the appellant helped plan the crime. In short, the probative value of the photographs in this case was limited to the cause and nature of death and would easily have been satisfied by introduction of a reasonable number of photographs depicting the injury to the victim and showing the crime scene.

Here, the introduction into evidence of six, mostly repetitious, gory, color photographs of the victim’s face, and portions thereof, taken both at the crime scene and at the medical examiner’s office, was excessive and their prejudicial nature was obvious. Multiple photographs of the victim, in this instance, were of little probative value and could do nothing but inflame the jury and distract from the issues raised by the appellant.

A good definition of “unfair prejudice” is found in the advisory committee’s commentary to Fed. R. Evid. 403, which describes it as an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” This is precisely the type of prejudice the rule is meant to prevent, and in this case the prejudice substantially outweighed the probative value of the photographs. Accordingly, the trial judge erred in admitting the photographs.

The other argument we consider necessary to address concerns the denial of a motion for change of venue. The appellant made a motion before trial for a change of venue under Ark. Stat. Ann. § 43-1501 (Repl. 1977), alleging that “the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.” In support of her motion, the appellant submitted nine newspaper stories which appeared over a period of seven months and which covered the story from the arrests of Mills and the appellant to the pretrial hearings before the appellant’s trial. In addition, two witnesses signed affidavits and later testified that the appellant could not receive a fair trial in Miller County because of the pretrial publicity the murder had received. The appellant therefore met the formal requirements of Ark. Stat. Ann. § 43-1502 (Repl. 1977), which provides:

Application for order of removal. The application of the defendant for such order of removal shall be by petition setting forth the facts on account of which the removal is requested; and the truth of the allegations in such petition shall be supported by the affidavits of two [2] credible persons who are qualified electors, actual residents of the county and not related to the defendant in any way. Reasonable notice of application shall be given to the attorney for the State [prosecuting attorney]. The court shall hear the application and, after considering the facts set forth in the petition and the affidavits accompanying it and any other affidavits or counter affidavits that may be filed and after hearing any witnesses produced by either party, shall either grant or refuse the petition according to the truth of the facts alleged in it and established by the evidence.

The state produced no counter affidavits or testimony from witnesses stating that the appellant could receive a fair trial in Miller County.

“A change of venue should be granted only when it is clearly shown that a fair trial is likely not to be had in the county.” Kirkendall v. State, 265 Ark. 853, 581 S.W.2d 341 (1979). The burden of proof is on the defendant in a motion to change the venue and the decision of the trial court will be upheld unless it is shown there was an abuse of discretion in denying the motion. Id.

This court examined § 43-1502 in Robertson v. State, 212 Ark. 301, 206 S.W.2d 748 (1947) and stated that the trial court “heard the testimony of other witnesses besides that of the supporting affidavits and announced the conclusion that the appellant could obtain a fair trial in that jurisdiction. We may therefore review only the exercise of the judicial discretion vested in the court and in view of the conflict in the testimony, we are unable to say that any abuse of this discretion was shown.”

In Rush v. State, 238 Ark. 149, 379 S.W.2d 29 (1964), we held that the trial court had abused its discretion in not granting the change of venue based upon twelve affidavits when the state offered no counter affidavits or conflicting testimony to contest the truth of the facts alleged in the affidavits or established by the testimony. In this case, we are not concerned with the state’s failure to provide counter affidavits or conflicting testimony since the trial court’s findings focus on the fact that the affiants are not “credible persons” as prescribed by Ark. Stat. Ann. § 43-1502 in that their affidavits and testimony did not meet the burden of proof required to mandate a change of venue.

Although the state produced no witnesses of its own by affidavit or personal appearance, it was able to show by cross examination to the satisfaction of the trial court that the affiants for the appellant were not credible because they did not possess knowledge of the state of mind of the inhabitants of the entire county. The trial court, in denying the motion, stated “that the two ladies, acting in good faith, attempted to give their opinion. But I think it was demonstrated that they do not have broad knowledge of the geographical section, or the thinking of the geographical section of this county. ... I don’t believe that they demonstrated from a broad section of the county that you could not get a fair and impartial trial.”

We have held on numerous occasions that a motion for change of venue is not supported by “credible persons” when the movants, affiants or witnesses are unable to show in their testimony that they have a general knowledge as to the state of mind of the inhabitants of the whole county or that they are cognizant of prejudice existing throughout the whole county. Brown v. State, 134 Ark. 597, 203 S.W. 1031 (1918); Davis v. State, 155 Ark. 247, 244 S.W. 750 (1922); Bailey v. State, 204 Ark. 376, 163 S.W.2d 141 (1942); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982). Likewise we stated in Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982) that a movant in a change of venue proceeding must demonstrate that there is a countywide prejudice against him before his motion for change of venue will be granted. These rules of law are still in force and effect.

We have also held that there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). The newspaper coverage of the events surrounding this trial was not unusual for a murder case, and, while the majority of the prospective jurors stated during voir dire that they had read or heard some reports concerning the case, only four prospective jurors were excused because they said they had formed a definite opinion as to the appellant’s guilt. All the jurors selected either had heard nothing regarding the case or said they could set aside anything they had heard and decide the case on the evidence. It is not necessary that the jurors be totally ignorant of the facts surrounding the case, as long as they can set aside any impression they have formed and render a verdict solely on the evidence at trial. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979).

For these reasons, venue was properly maintained in Miller County.

Reversed and remanded.

Hickman and Newbern, JJ., dissent.

Darrell Hickman, Justice,

dissenting. In reviewing records of brutal and senseless murders, we have numerous times seen photographs as gruesome as these. The state had a right to prove its case and to recreate for the jury the last few desperate and horror-filled moments of a defenseless old lady being brutally bludgeoned to death by Berry’s boyfriend. Furthermore, the evidence is viewed in the' light most favorable to the state, not most favorable to the defendant as the majority has done. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986). The record reflects that Berry chose the victim, conspired in the killing and was present at the murder scene at the time of the murder. We do not know if she used the crow bar. She may have helped. We do know that she could have stepped into stop the blows which were repeatedly struck to kill her great aunt. The boyfriend said the first blow did not knock her out so he kept hitting her until he (Mills) blacked out. No doubt his blackout was a psychological block to save his mind from reliving his dark deed. But relive it he should, and relive it Berry should.

Berry did not want to see nor the jury to see what she had wrought. The photographs demonstrate the brutal repeated use of the weapon — a crow bar. The assailant, or assailants, would not stop beating the woman; repeatedly she was struck about the face and head until she was dead. These photographs demonstrate the brutality, the severity, and the facts of the murder. She was not killed by one blow, but many. The jury was entitled to witness the murder as evidenced by the photographs.

Defendants do not want juries to see the crime scene. Defendants — and it is their right to try — want to keep as much grisly evidence from the jury as possible so that they can disassociate themselves from those black moments when their inhumanity surfaced and deliberately caused the death of another person. A sterile courtroom scene, removed as far as possible from the facts of the killing is what they seek. However, the state has a right to try its case and to recreate the crime as it was committed when there were not witnesses. Victims have a right for a jury to see what was done to them just as society has that right.

We have viewed photographs of the bruised and battered bodies of small infants. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985); Williams v. State, 267 Ark. 527, 593 S.W.2d 8 (1979). We have viewed photographs of victims with their heads bashed in or beaten to a pulp. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Those in this case were no worse than some in other cases. It is not a pleasant task to review such evidence, but murder is not a pretty business. The majority simply concludes there was an “excessive” number of photographs. All six photographs were different and needed for the state to present its case to the jury. The majority has simply substituted its judgment for that of the trial court. More importantly no guideline is set down for future cases. We will be asked in every case to find too many photographs were introduced. Because of the vagueness of the majority opinion we will do two things: tie the state’s hands and create for ourselves more problems than we solve. Berry was convicted because of the overwhelming evidence of her guilt, not because of some photographs.

Newbern, J., joins in this dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Billy Joe ELLISON v. Honorable John LANGSTON
    CR 86-102
    718 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      William R. Simpson, Jr., Public Defender, by: Arthur L. Allen, Deputy Public Defender, for petitioner.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for respondent.
   Darrell Hickman, Justice.

Billy Joe Ellison seeks a writ to prohibit Circuit Judge John Langston from proceeding with the trial of criminal charges against him. The basis of the petition is alleged to be a violation of his constitutional right to a speedy trial, Ark. Const. Art. 2, § 10, and A.R.Cr.P. Rule 28.1 (c), which requires the trial be held within 18 months from the date of arrest. This petition must be denied because the facts were not undisputed.

Ellison was charged in the North Little Rock Municipal Court with second degree forgery on September 13, 1983. He made bond for $2,000 and was released. The charges were bound over to circuit court and plea and arraignment was scheduled for April 9, 1984. Ellison failed to appear. The bond was forfeited and an arrest warrant for failure to appear was issued. Ellison was not served with this warrant until January 21,1986. Trial on both charges was set for May 20,1986. Ellison filed motions to dismiss the charges alleging the scheduled trial date fell outside the 18 month time period required by A.R.Cr.P. Rule 28.1 (c). Both motions were denied by the trial court. This petition was subsequently filed to prohibit the trial.

Undoubtedly, the trial was to be held outside 18 months from his initial arrest. But there was a question of whether Ellison was “unavailable” during the period of time from his release in the municipal court until he was served. A.R.Cr.P. Rule 28.3 (e) provides that in counting time to determine if a speedy trial is held, any delay caused by the absence or unavailability of the defendant will be excluded. A deputy sheriff testified that several attempts were made to serve the second warrant immediately after it was issued. The address Ellison gave the court was 3724 West 10th Street, Little Rock, Arkansas. The officer testified that another warrant officer spoke with Pamela Ellison, Ellison’s sister-in-law, who lived at that address. She said she did not know Ellison’s whereabouts. Mrs. Ellison denied making any statement to the officer and testified that to her knowledge she never talked to anyone from the sheriff’s department concerning Ellison’s whereabouts.

We do not grant a writ of prohibition unless it is clearly warranted. The writ can be issued only in a case where there are no disputed facts. Porter Foods, Inc. v. Brown, Judge, 281 Ark. 148, 661 S.W.2d 388 (1983); Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). Essentially, whether Ellison was “unavailable” because of his actions or conduct from the time of his arrest until he was served with the warrant in 1986 is a disputed question of fact. We, therefore, deny the writ.

Ellison is not precluded from questioning at his trial whether he had notice to appear on April 9, 1984, for plea and arraignment. The state offered no proof that Ellison had been served with any notice of that hearing. Obviously, the state will have to prove some notice to convict him of the second charge.

Petition denied.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Mary Joyce CAIN v. NATIONAL UNION LIFE INSURANCE COMPANY
    86-70
    718 S.W.2d 444
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      Bullock & McCormick, by: David H. McCormick, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Robert H. Dudley, Justice.

This third-party tort of bad faith action was filed by a workers’ compensation claimant against the compensation insurer. The claimant pleaded that the insurer stipulated it was liable for all medical expenses, but failed to pay those expenses and, as a direct result, the claimant suffered emotional distress, humiliation, and embarrassment. The trial court dismissed the complaint. We affirm. The trial court lacked subject matter jurisdiction. The appeal is heard in this Court since it presents questions involving the construction of an initiated measure and the law of torts. Rule 29(1 )(c) and (o) of the Rules of the Supreme Court and the Court of Appeals.

We have previously ruled on this issue. In Johnson v. Houston General Insurance Co., 259 Ark. 724, 536 S.W.2d 121 (1976), we held that the benefits payable pursuant to the workers’ compensation act, and the procedure set out in that act for obtaining those benefits, constitute an exclusive remedy, and that remedy precludes an action at law, even for an intentional tort arising out of the non-payment of benefits.

Appellant, the plaintiff claimant below, asks us to overrule Johnson, supra. We decline to do so because the holding conforms with the workers’ compensation act which provides the remedies for late payment. The statutory remedies include: (1) A twenty percent penalty plus interest for the late payment of an award, Ark. Stat. Ann. § 81-1319(f)(g) (Repl. 1976), (2) A provision by which the Commission may require a bond from an employer to insure payment, Ark. Stat. Ann. §81-1319(j) (Repl. 1976), and (3) A provision that a final award may be filed with the circuit clerk which causes it to become a lien on the property of the employer, Ark. Stat. Ann. § 81-1325(c) (Repl. 1976).

Any change concerning the exclusivity of the statutory remedies or the form of those remedies must come legislatively.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because I do not believe that Johnson v. Houston General Insurance Co., 259 Ark. 724, 536 S.W.2d 121 (1976), holds that a person who has an injury compensable under the workers’ compensation act may never have a tort claim against an insurance carrier even for an intentional tort arising out of the non-payment of benefits. If Johnson did so hold, I would overrule it.

In Johnson the relationship of employer-employee-insuror was the same as here. The complaint in both cases alleged the intentional failure of the insuror to pay benefits due under the policy. In Johnson this Court held that the trial court acted properly in dismissing the complaint because “it only stated general conclusions of law rather than specific facts constituting elements of actionable damage.” In the case before us the trial court did not give a reason for dismissal of the complaint other than to cite Johnson.

The Johnson Court did not discuss the allegations of intentional and malicious mental injuries other than stating, “[t]his contention is without merit for the reasons already stated.” The only reason already stated was that the complaint alleged only general conclusions of law rather than specific facts. The opinion did not address the arguments that “retaliatory action on the part of the employer-respondent for filing a workmen’s compensation claim is actionable in a court of law,” and that “Arkansas tort law recognizes intentional infliction of severe mental distress without physical injury as a cause of action.” The Court stated, as it did above, that, “[w]e consider it unnecessary to discuss [these] point [s] for the reasons already stated.” I am unable to find any discussion by the Court of the above arguments.

The only proposition Johnson really stands for is that the rights and remedies provided in the workers’ compensation act are exclusive of all other rights and remedies as to injury or death suffered by employees who are covered by the act. It is clear to me that the opinion was simply stating that the rights and remedies provided by the act are exclusive as to claims covered thereunder. With this I agree. Presumably, had the complaint in Johnson stated “specific facts,” it would have been considered on its merits.

Since Johnson was decided this Court has considered the tort of bad faith in Findley v. Time Insurance Company, 264 Ark. 647, 573 S.W.2d 908 (1978) and Aetna v. Broadway Arms, 281 Ark. 128, 644 S.W.2d 463 (1984). Both these cases held that a claim based on the tort of bad faith must include allegations of affirmative misconduct by the insurance company, without a good faith defense, and that the misconduct must be dishonest, malicious, or oppressive in an attempt to avoid its liability under an insurance policy.

The complaint in the present appeal tracked our decisions recognizing the tort of bad faith. Therefore, in order to affirm the action of the trial court, the Court must hold either that circuit courts do not have subject matter jurisdiction to try such a case involving the tort of bad faith or that the complaint did not allege facts sufficient to state a cause of action. Under the facts of this case, I cannot agree with either conclusion.

When a workers’ compensation insurer commits an intentional tort it loses the protection of its status as the employer’s insurer. The insurance carrier is instead acting in a capacity entirely different from that of an insurer and, therefore, is liable for infliction of an intentional tort. Unruh v. Truck Insurance Exchange, 498 P.2d 1063 (Calif. 1972); Gibson v. National Ben Franklin Insurance Company, 387 A.2d 220 (Me. 1978). Here the appellee was completely immune from suit so long as it was performing its role as the employer’s insurance carrier. However, in the role of an intentional tortfeasor the insurer no longer enjoys the immunity bestowed by the act.

I can find no evidence that the legislature in passing the workers’ compensation act intended to grant insurance companies, or employers who are self-insured, immunity to do as they please, even when the action is outside the scope of performing its obligations under the act. Carried to the extreme such immunity would allow representatives of the carrier to deny treatment to an injured employee. There is no logical reason or public purpose to shield an insurer from liability for its intentional tortious acts.


author: David Newbern, Justice.

text:
    BENTON WINDOW AND DOOR LITTLE ROCK DIVISION, INC., George HUBBLE and Rene D. CHIOCCHI v. Robert GARRETT, Judge, and William FAUST
    86-64
    718 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      Hilburn, Bethune, Calhoon, Harper & Pruniski, Ltd., by: David M. Fuqua, and Dorcy Kyle Corbin, for appellant.

      Lovell <6 Arnold, by: Gary M. Arnold, for appellee.
   David Newbern, Justice.

Respondent William Faust brought this action as a shareholder’s derivative suit. He named the corporate petitioner and the two individual petitioners, who are corporate directors, as defendants. At the time the suit was brought, Faust was not only a shareholder but was the president of the corporation. Faust brought the action in Saline County which is the county of his residence. The basis for laying venue there is Ark. Stat. Ann. § 27-605 (Repl. 1979) which provides:

Actions against corporations — An action, other than those in sections 84, 85 and 90 [§§ 27-601 — 27-603], against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides; ....

The petitioners seek to prohibit trial of the case in Saline County, contending venue may only be laid in Pulaski County where they reside. We agree with the chancellor that the action was properly brought in Saline County, and thus we deny the writ of prohibition. The petitioners make three arguments.

1. No specific statute

The petitioners argue that as there is no specific venue statute with respect to a shareholder derivative suit, Ark. Stat. Ann. § 27-613 (Repl. 1979) should apply. The latter statute provides that actions for which no venue is otherwise specified may be brought where “the defendant, or one of several defendants, resides, or is summoned.”

While there is no specific statute on shareholder derivative suits, there is, as noted above, a statute specifying venue in an action against a corporation. Essentially, this argument asks us to ignore § 27-605. The only case cited is Ozark Supply Company v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977), in which we pointed out the general statutory policy of accommodating defendants as opposed to plaintiffs but noted that the general policy applies only when there is no statute to the contrary.

2. Nominal defendant

The heart of the petitioners’ argument is their contention that, although the corporation must be named a defendant in a shareholder derivative suit, it is a defendant in name only because the action ultimately is one on behalf of the corporation. For the proposition that we should look to the true nature of the action to decide appropriate venue the petitioners cite Atkins Pickle Company, Inc. v. Burrough-Uerling-Braswell Consulting Engineers, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982). In that case we held that when a complaint contains allegations giving it the character of a local action and others having the character of a transitory action the court may look behind the allegations to determine the “real character” of the action. The wisdom of that decision does not apply in a case such as this. Here we have no sham allegations added to a complaint so as to create applicability of a particular venue statute. Rather, as the petitioners concede, the corporation must be named as a defendant in a shareholder derivative action.

It is true that in some instances the requirement of naming the corporation as a defendant may seem technical only, but it is not always so. The initial phase of a stockholder derivative action should have to do with determining the status of the stockholder and whether and when the corporation should be aligned as a plaintiff. That the corporation and the stockholder bringing the action may have, at least for a time, an adversarial relationship is amply demonstrated by the provisions of Ark. Stat. Ann. § 64-223 (Repl. 1980):

Provisions relating to actions by shareholders—
A. No action shall be brought in this State by a shareholder in the right of a domestic corporation unless the plaintiff was a holder of shares or of voting trust certificates therefor at the time of the transaction of which he complains, or his shares or voting trust certificates thereafter devolved upon him by operation of law from a person who was a holder at such time.
B. In any action hereafter instituted in the right of any domestic corporation by the holder or holders of shares of such corporation or of voting trust certificates therefor, the court having jurisdiction, upon final judgment and a finding that the action was brought without reasonable cause, may require the plaintiff or plaintiffs to pay to the parties named as defendant the reasonable expenses including fees of attorneys, incurred by them in the defense of such action.
C. In any such action instituted in the right of a domestic corporation by the holder(s) of less than five percent [5%] of the outstanding shares of any class of said corporation or of voting trust certificates therefor, unless the shares or voting trust certificates so held have a market value in excess of twenty-five thousand dollars [$25,000], the corporation in whose right the action is brought, or any defendant, may move the court for an order, upon notice and hearing, requiring plaintiff to furnish security as hereinafter provided. Such motion may be based upon one [1] or more of the following grounds:
1. That there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint against the moving party will benefit the corporation or its security holders.
2. That the moving party, if other than the corporation, did not participate in the transaction complained of in any capacity.
D. At the hearing upon such motion, the court shall consider such evidence, written or oral, by witnesses or affidavit, as may be material: (a) to the ground or grounds upon which the motion is based, or (b) to a determination of the probable reasonable expenses, including attorney’s fees, of the corporation and the moving party which will be incurred in defense of the action. If the court determines, after hearing the evidence adduced by the parties at the hearing, that the moving party has established a probability in support of any of the grounds upon which the motion is based, the court shall fix the nature and amount of security to be furnished by the plaintiff for reasonable expenses, including attorney’s fees, which may be incurred by the moving party and the corporation in connection with such action, including (without limiting the foregoing) expenses for which said corporation may become liable pursuant to Section 50 [64-309] of this act. A determination by the court that security either shall or shall not be furnished or shall be furnished as to one [1] or more defendants and not as to others, shall not be deemed a determination of any one [1] or more issues in the action or of the merits thereof. The corporation and the moving party may have recourse to such security in such amount as the court shall determine upon the termination of such action. The amount of such security may from time to time be increased or decreased in the discretion of the court upon showing that the security provided has or may become inadequate or is excessive. If the court makes a determination that security shall be furnished by the plaintiff for the benefit of any one [1] or more defendants, the action shall be dismissed as to such defendant or defendants, unless the security required by the court shall have been furnished within such reasonable time as may be fixed by the court.
E. If any such motion is filed, no pleadings need be filed by the corporation or any other defendant, and the prosecution of such action shall be stayed, until 10 days after such motion shall have been disposed of.
F. A suit filed by a shareholder in the right of a domestic corporation may not be dismissed or compromised without the approval of the court. . . .

It is thus apparent that if a security motion is made by or on behalf of the corporation the suit may not even proceed until after disposition of the motion, and the corporation and the plaintiff may be adversaries up to that point at least.

The petitioners have cited the following language from Red Bud Realty Co. v. South, 153 Ark. 380 at 397, 241 S.W. 21 at 27 (1922):

. . . [T]he minor stockholder who brings the action in his own name is treated, for the time being, and for the purposes of litigation, as the trustee and real representative of the corporation,. . . . Through him, and against them, the Corporation itself is granted genuine reparation by way of damages, restitution, or, if need be, dissolution of the Corporation; in fact, all the relief to which the Corporation would be entitled under the circumstances, were the action brought in its name. The Corporation is a necessary party to such an action, and is named and brought in, that appropriate orders may be made not only to protect all the corporate rights,. . . [Emphasis added by the petitioners.]

The remainder of the final sentence in the quotation is: “.' . . but also that through it the rights and equities of individual shareholders may be worked out and preserved.” Part, if not all, of this process of working out and preserving the rights and equities of all the stockholders and, we might add, of the corporation, is contemplated as the subject of the preliminary hearing provided in the statute.

Because there is good reason other than pure technicality to name the corporation initially as a defendant, we cannot say that we should regard naming the corporation a defendant as a subterfuge.

3. Bad faith or collusion

The petitioners suggest that the respondent’s filing of the action in Saline County is analogous to “collusion” for the purpose of laying venue in his home county, citing Hot Springs Street Railway Company v. Henry, 186 Ark. 1094, 57 S.W.2d 1050 (1933). That case is hardly applicable here. There it was found that one of the named defendants colluded with the plaintiffs to be “found” in Cleveland County so thát the Hot Springs Railway Company could be sued as a codefendant there rather than in its home county. Here we do not even have an allegation that the respondent moved to Saline County so as to be able to lay venue there, much less that he colluded with anyone for any purpose.

In sum, the petitioners have given us no good reason to ignore the language of § 27-605 which plainly states that a corporation created by the laws of this state may be sued in the county in which its chief officer resides.

Petition for writ of prohibition denied.


author: David Newbern, Justice. George Rose Smith, Justice,

text:
    Karen JAGGERS and Thelma Harper CASEY v. Gary ZOLLIECOFFER and Linda ZOLLIECOFFER
    86-61
    718 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986
    [Rehearing denied December 8, 1986.]

      Steve Clark, Att’y Gen., by: Jeffrey E. Story, Asst. Att’y Gen., for appellant.

      Witt Law Firm, by: Ernie Witt, for appellee.
   David Newbern, Justice.

The appellants are two social workers, employed by the state, who are being sued for violation of the civil rights of the appellees. The action was brought pursuant to 42 U.S.C. § 1983 (1976) and 42 U.S.C. § 1985 (1976). The appellants moved for summary judgment contending they are “entitled to the defense of absolute immunity or in the alternative qualified immunity, thus barring any recovery by plaintifF[s].” The denial of the summary judgment motion is the subject of this appeal. We must dismiss the appeal because there has been no final or other appealable order as prescribed by Ark. R. App. P. 2(a).

The appellees do not argue the lack of appealability of the order, but we may and should consider the issue because, absent an appealable order, we lack jurisdiction. 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985); Arkansas Savings & Loan Association v. Corning Savings & Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).

The appellants have argued that the denial of summary judgment is appealable in this instance because the United States Supreme Court has held that such a denial is appealable when the basis of the motion is absolute or qualified immunity. The appellants cite principally Mitchell v. Forsyth, _ U.S. __, 105 S. Ct. 2806 (1985), and other federal court decisions which have followed it. That case was one in which former United States Attorney General John Mitchell was sued by a person alleging his rights were violated by a wiretap authorized by Mitchell, for which no warrant had been issued. After years of discovery and other wrangling, the United States district court denied Mitchell’s motion for summary judgment which he had sought on the basis of absolute immunity as a cabinet officer empowered to protect the national security. The court ultimately granted the plaintiffs summary judgment motion thus denying Mitchell’s alternative claim of qualified immunity, holding Mitchell liable and leaving only the question of damages to be tried.

Mitchell appealed. The United States Court of Appeals for the Third Circuit held the denial of Mitchell’s summary judgment motion based on absolute immunity was an appealable order, citing Nixon v. Fitzgerald, 457 U.S. 731 (1982), even though the issue of damages remained to be tried. Forsyth v. Kleindienst, 700 F.2d 104 (3d. Cir. 1983). The appealability of that order was not at issue in the Supreme Court. However, the court of appeals held that the granting of the summary judgment as to liability in the face of Mitchell’s claim of qualified immunity had not terminated the case and was not a final, appealable order. The Supreme Court affirmed the court of appeals decision that Mitchell was not entitled to claim absolute immunity, but it held the court of appeals erred in refusing to review the district court’s decision that Mitchell was not entitled to a qualified immunity. The court of appeals decision thus was reversed to the extent its refusal to review Mitchell’s claim of qualified immunity left standing the district court’s erroneous decision that Mitchell was not entitled to qualified immunity.

The appellants do not explain how any of this is relevant to whether the circuit court’s decision in the case before us is a final, appealable order pursuant to Ark. R. App. P. 2(a). Perhaps they believe that because federal law is the basis of the merits of the claim against them we are bound by the procedural determinations in Mitchell v. Forsyth, supra. We are aware of some instances in which it has been held that, where federal law is to be the basis of rights and remedies in state courts, state procedural rules may not be used to take away relief which Congress intended to grant, see, e.g., Dice v. Akron, Canton & Youngstown Railroad Co., 342 U.S. 359 (1952); Brown v. Western Railway of Alabama, 338 U.S. 294 (1949); Note, 73 Harv. L. Rev. 1551 (1961), but no such argument has been made in this case.

We have been cited to no authority holding that a state employee being sued pursuant to § 1983 is entitled to the same immunity from suit which applies to federal officers as discussed in Mitchell v. Forsyth, supra, and Harlow v. Fitzgerald, infra. In Doe v. County of Suffolk, 494 F. Supp. 179 (1980), a case much like this one, the court found no absolute immunity applied to a New York social worker and implied that the state legislation on immunity governed in a § 1983 action. Thus we have been given no reason to hold that the claim of immunity in this case is based upon a federally created right, and therefore we do not feel constrained in any way to ignore the requirements of Ark. R. App. P. 2(a).

Mitchell v. Forsyth, supra, construes 28 U.S.C. § 1291 (1976) which is the federal statute requiring finality of the order to be appealed. The exception to the finality requirement which is expanded in that case appeared in Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 (1949). There it was held that a United States district court’s order denying a defendant’s motion to require the plaintiff to post a bond for costs in a shareholder’s derivative suit was appealable. The Supreme Court held that such an order could be appealed if it were separable from the merits of the case and if it denied an alleged right which would probably be irretrievably lost if not reviewed until the entry of the final judgment.

If we are being asked, and again we have to speculate, to develop an exception to the application of our own finality requirement, this is surely not the case in which to do it. In Mitchell v. Forsyth, supra, it is clearly stated that the qualified immunity of federal officials is an immunity from suit, citing Harlow v. Fitzgerald, 457 U.S. 800 (1982). In the case before us, the only solid basis we have been given for the appellants’ immunity claim is their status as social workers employed by the Arkansas Department of Human Services. The state law basis for their immunity is spelled out in Ark. Stat. Ann. § 42-814 (Repl. 1977) as follows:

Good faith report — Immunity from liability — Any person, official or institution participating in good faith in the making of a report, the taking of photographs or the removal of a child pursuant to this Act [§§ 42-807 — 42-818], shall have immunity from any liability, civil or criminal, that otherwise might result by reason of such actions. For the purpose of any proceedings, civil or criminal, the good faith of any person required to report cases of child abuse, sexual abuse or neglect shall be presumed. . . .

If this statute is the sole basis for their immunity claim, it is obviously a qualified rather than an absolute immunity, as it is dependent, in the case of removal of a child, upon a showing of good faith on the part of the official involved. More importantly, however, unlike the immunity of federal officials in some instances discussed in Mitchell v. Forsyth, supra, and Harlow v. Fitzgerald, supra, the statute provides only an immunity from liability if good faith is shown as opposed to an immunity from suit. While immunity from suit may be a right irretrievably lost if an official claiming immunity has to participate in a trial on the merits, immunity from liability is no such right.

In their motion for summary judgment these appellants referred to their claim of immunity as a “defense . . . barring recovery” by the appellees. In that, again assuming § 42-814 is the only basis of their immunity claim, they were correct. Under our law whatever immunity the appellants may have pursuant to that statute must be determined at the trial on the merits unless their motion for summary judgment leaves no factual question as to their good faith.

The trial court has rejected the appellants’ summary judgment motion, and despite the departure of federal courts from the finality requirement of 28 U.S.C. § 1291 (1976), we find no reason to depart from our interpretation of Ark. R. App. P. 2(a) that denial of a summary judgment motion is not a final, appealable order. Danco Construction Co. v. City of Fort Smith, 268 Ark. 1053, 598 S.W.2d 437 (1980). See also Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974); Proctor Seed & Feed Co., Inc. v. Hartford Accident & Indemnity Co., 253 Ark. 1105, 491 S.W.2d 62 (1973).

Appeal dismissed.

Smith, J., concurs.

George Rose Smith, Justice,

concurring. I concur in the result only. We have held a dozen or more times that there is no appeal from the denial of a motion for summary judgment. I see no reason to explore the matters discussed in the majority opinion.


text:
    Bryan Patrick JOHNSON v. Carey CARPENTER, J.C. PENNEY LIFE INSURANCE CO. and ALLSTATE INSURANCE CO.
    86-77
    718 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      Thomas A. Martin, for appellant.

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price, for appellee.
   David Newbern, Justice.

The will of Monica Catherine Johnson was admitted to probate. The will named appellee Carey Carpenter or the High Foundation, of which Carpenter was a principal officer, as the main beneficiaries. The appellant, Bryan Patrick Johnson, the son of the decedent, challenged the will as having been the result of fraud or undue influence practiced upon his mother by Carpenter. The probate judge held the will was void. The effect of that holding was that Mrs. Johnson died intestate and appellant Johnson was her sole heir.

Mrs. Johnson had also taken out a number of life and accident insurance policies naming Carpenter or the High Foundation as beneficiaries. Appellant Johnson asked the chancery court, in cases contemporaneous with the will contest, to set aside those beneficiary designations. That was done by the chancellor who, by consent of the parties, consolidated the chancery and probate matters. Thus the validity of the will and of the insurance policy beneficiary designations were considered together.

The insurance companies interpleaded and filed the basic coverage amounts due under their respective policies in the registry of the court. The only issues addressed in the chancellor’s final order with respect to the appellees J. C. Penney Life Insurance Co. and Allstate Insurance Co. arise from the chancellor’s determination that Mrs. Johnson’s estate is not entitled to extra indemnity and statutory penalties against those companies.

The chancellor and probate judge entered his order in favor of Johnson and against Carpenter on the will and beneficiary designations and for the insurance companies on the extra indemnity and penalty clauses on September 30,1985. Carpenter filed a timely new trial motion on October 7, 1985, which was denied at a hearing held November 7, 1985. Carpenter filed his notice of appeal from “the Order of the Chancery and Probate Judge” on November 15, 1985. That notice listed, by style and number, all the chancery cases as well as the probate case. On November 22, 1985, Johnson filed a “Notice of Cross Appeal” which also listed all the cases but limited the issues to the chancellor’s decisions that J. C. Penney and Allstate did not owe the alleged extra indemnity and penalties.

On December 11, 1985, Johnson filed in the chancery and probate courts a motion to dismiss Carpenter’s appeal on the grounds that Carpenter’s notice of appeal failed to designate a record, was not properly served upon Johnson, and failed to state that a transcript of the record had been ordered, and that no transcript had in fact been ordered, thus making Carpenter’s notice of appeal deficient in the light of the requirements of Ark. R. App. P. 3(e) and (f).

The judge denied the motion and extended the time for filing the record here to seven months from the entry of judgment. Ark. R. App. P. 5(b). It is from the denial of the motion and the granting of the extension of docketing time that Johnson has appealed. Appellee Allstate Insurance Co. has filed a brief asking that we dismiss Johnson’s “cross appeal” against it because it is not a cross appeal but an original appeal which was not timely filed.

We find that the motion by Johnson to dismiss Carpenter’s appeal was not properly before the trial court. Therefore, we will treat Johnson’s appeal as a motion before this court to dismiss Carpenter’s appeal. We deny the motion for the reasons stated below. We dismiss Johnson’s purported cross appeal against Allstate and J. C. Penney because we find it was not a cross appeal but an original appeal not filed in time.

1. Motion to dismiss appeal

The argument made by Johnson to the trial judge and pursued here is that there had been no designation of the record by Carpenter in his notice of appeal and Carpenter had not, in fact, ordered the transcript as required by Ark. R. App. P. 3. Carpenter’s notice of appeal stated that he had ordered the transcript of the proceedings. At the hearing on Johnson’s motion to dismiss Carpenter’s appeal, evidence showed that there was a misunderstanding between Carpenter and the court reporter about whether he had ordered the transcript. Carpenter’s attorney was apparently advising Carpenter to order the transcript personally from the reporter so that he, the attorney, would not become financially responsible to the reporter. Eventually, the attorney and the reporter communicated, and the transcript was ordered on the reporter’s terms with respect to payment.

Johnson relies on Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1983), in which we held it was fatal to an appeal where Ark. R. App. P. 3(e) was “totally ignored” by the appellant. In that case we recognized, however, that substantial compliance with the rule is sufficient, citing Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970).

This is not a case in which the rule has been totally ignored, otherwise there would have been no statement in Carpenter’s notice of appeal that he had ordered the transcript. As the testimony showed, there was a misunderstanding. It may have been caused by Carpenter or his lawyer, but that is not the issue. Rather, as we said in Brady v. Alken, Inc., supra, the question is one of substantial compliance, and we find that here.

Nor do we find any prejudice to Johnson resulting from the delay in getting the transcript ordered. Johnson contends that it should have been ordered on November 17, 1985, but was not ordered in fact until December 13, or 23,1985, and that any time one party gets the advantage of a delay it of necessity disadvantages his adversary. We can see no such necessity, and absent some kind of convincing argument showing prejudice, we will not hold that it exists.

As to the failure to specify in the notice of appeal the portions of the transcript being ordered, again we find no prejudice to Johnson. From Carpenter’s notice of appeal and from the testimony at the hearing it is apparent that the entire transcript has been ordered from the reporter. Johnson has not shown or even argued that the failure to designate has prejudiced him. Rather, Johnson argues that the failure to comply with Ark. R. App. P. 3(e) in this respect should bar Carpenter’s appeal. In making this point, Johnson cites only two cases. The first is Brady v. Alken, Inc., supra, where we quoted the following from Davis v. Ralston Purina Co., supra: “The filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps. . . are merely grounds for such action as this court deems appropriate.” 273 Ark. at 151, 617 S.W.2d at 360, emphasis supplied. Just as in Brady v. Alken, Inc., supra, Johnson has not shown any manner in which the failure of Carpenter to designate the record has prejudiced him.

Arguing that a “defective” notice of appeal is a bar to the pursuit of an appeal by Carpenter, Johnson cites Burris v. Burris, 278 Ark. 106, 643 S.W.2d 570 (1982). That is a per curiam order in which we held that even in the event of unavoidable casualty the failure to file a timely notice of appeal deprives this court of jurisdiction. Here we have no such failure.

Our holding that a showing of prejudice on irregularities other than failure to file a timely notice of appeal is necessary and is to be made in this court is buttressed by Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986). There the appellant had designated portions of the record but had failed in his notice of appeal to state points of appeal as required by Ark. R. App. P. 3(g). The appellee filed a motion to dismiss the appeal which was granted by the chancellor. The appellant filed a second notice of appeal, designating points to be relied upon, both from the original judgment and from the dismissal of the first appeal. The chancellor ordered dismissal and purported to limit the issue on appeal to whether she had erred in dismissing the initial notice of appeal. We allowed a full appeal pointing out that the purpose of Rule 3(g) is to prevent prejudice and none was shown.

We are troubled by the apparent misunderstanding to the effect that trial judges may dismiss appeals. While we give the trial court the authority to extend the time for docketing the record with us or with the court of appeals, our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules, as we said of the comparable statutes in Davis v. Ralston Purina Co., supra, and again about the rules in Brady v. Alken, Inc., supra, are for this court to apply. Nine times out of ten we will be able to decide the question of timeliness of a notice of appeal, or prejudicial failure to comply with other requirements, from the record before us. If that is not the case, we may remand the case so that a record on the matter at issue may be made in the trial court, but we do not ask the trial courts to determine who may and who may not appeal the trial courts’ decisions. Although the issue of appealability was thus not properly before the chancellor and probate judge, we reach the same conclusion he did. Treating Johnson’s appeal from that order as a motion to dismiss Carpenter’s appeal, we deny the motion.

2. The “cross appeal”

Johnson’s attempt to appeal the ruling that Allstate Insurance Co. and J. C. Penney Life Insurance Co. did not owe the extra indemnity or the penalty was not timely. He contends it is a cross appeal and thus he had ten days from the date Carpenter filed his notice of appeal against Johnson. Ark. R. App. P. 4(a).

Assuming Johnson had standing to appeal the finding in favor of Allstate and J. C. Penney on the extra indemnity and statutory penalty matters, those issues are entirely separate from the controversy between Johnson and Carpenter. If the matter sought to be appealed is separate from that which has been appealed in a timely manner, it should be the subject of an original appeal, and it may not be made timely by its denomination as a cross appeal. Myers v. Linebarger, 144 Ark. 389, 222 S.W. 220 (1920); Porter v. Morris, 131 Ark. 382, 199 S.W. 106 (1917). See also Gill v. Hedgecock, 207 Ark. 1079, 184 S.W.2d 262 (1944).

A notice of appeal must be filed within thirty days from the entry of the judgment or decree appealed from. Ark. R. App. P. 4(a). If a motion for a new trial is made and denied, “. . . any party desiring to appeal from the judgment, decree or order originally entered shall have ten (10) days from the entry of the order denying the motion . . . within which to give notice of appeal. . . .” Ark. R. App. P. 4(d). If Johnson had standing to appeal the claims for extra indemnity and penalties against the insurance companies, the deadline for his notice of appeal would have been ten days after the entry of the denial of Carpenter’s new trial motion. The denial of the new trial motion was entered on November 7,1985. Johnson’s “Notice of Cross Appeal” was filed November 22, 1985.

Johnson’s appeal of the order denying recovery against Allstate and J. C. Penney is dismissed.


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

text:
    Willie BLEVINS v. Larry NORRIS, Warden, Maximum Security Unit
    86-16
    719 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant’s pro se motion to file a handwritten brief is denied.

Purtle and Dudley, JJ., would grant.

John I. Purtle, Justice,

dissenting. On September 15, 1986, we granted appellant permission to file a belated brief and proceed in forma pauperis. His brief was due to be filed on October 25, 1986. He filed a motion on October 8, 1986, requesting to be allowed to file a handwritten brief. The motion makes it clear that he is an inmate confined in the maximum security unit of the Arkansas Department of Correction. He further states that the Department of Correction rules prohibit him from having a typewriter or using any alternate means of having legal pleadings typed.

The appellant’s motion to file a handwritten brief is this date being denied by this Court without an opinion. The practical effect of the Court’s action today is to make our decision granting him a belated appeal utterly meaningless.

The denial of the motion is compounded by our recent Per Curiam in Glick v. Lockhart, 288 Ark. 417, 706 S.W.2d 178 (1986). There we stated:

The same general criteria apply to civil suits in which the appellant contends that he cannot submit a conforming brief without access to a typewriter. That is, in those cases where a pro se appellant submits a motion for permission to file a handwritten brief in which he makes a substantial showing that his suit has merit and that he is unable to submit a typed brief, we will accept a legible handwritten brief.

Glick had the same problem as Blevins has. We gave Glick thirty days to file a typed brief or submit a motion for permission to file a handwritten brief. The facts are the same in both cases, only the cell number has changed. When people are confined to a correctional institution they do not lose the constitutional rights to due process and equal protection of the law.

We should grant Blevins’ motion to file a handwritten brief or, in the alternative, require someone to type his brief. We could, of course, adopt the drastic means of appointing an attorney, thereby fulfilling the requirements of the Sixth Amendment to the Constitution of the United States.


author: Per Curiam.

text:
    Paul CORNETT and Michael SMITH v. Mike PRATHER
    718 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      Mashburn & Taylor, by: W.H. Taylor, for appellant.

      Ray Bunch, for appellee.
   Per Curiam.

A judgment was entered against the appellants April 8, 1986. They moved for judgment notwithstanding the verdict April 15,1986. On May 7,1986, the court entered an order setting a hearing on the motion for June 10, 1986. The motion was denied June 19, 1986.

On July 9, 1986, the appellants filed their notice of appeal from both the judgment against them and the denial of their motion for judgment notwithstanding the verdict. The clerk of this court declined to docket the appeal on the ground that the notice of appeal was not timely.

As to the appeal from the judgment, the clerk was correct. The appellants had ten days from the denial of their motion for judgment notwithstanding the verdict to appeal from the judgment, Ark. R. App. P. 4(d), and they did not file it within that time.

As to the appeal from the denial of their judgment notwithstanding the verdict, however, their notice was timely. Ark. R. App. P. 4(a) gives an appellant thirty days from the entry of the order appealed from to file the notice of appeal. The appellee argues that the appellants will raise the same issues in their appeal from the denial of their motion for judgment notwithstanding the verdict as they would raise if allowed to appeal from the judgment. We recognize a distinction between the two types of appeals, however, Brittenum & Associates, Inc. v. Mayall, 286 Ark. 427,692 S.W.2d 248 (1985), and on appeal from denial of a motion for judgment notwithstanding the verdict we will review only the question whether there was sufficient evidence to go to the jury.

In perusing the record for the purpose of deciding the motion before us, we did not find that the appellants made a motion for directed verdict at the close of all the evidence which is required by Ark. R. Civ. P. 50(b) as prerequisite to the motion for judgment notwithstanding the verdict. The appellee apparently did not object to the appellants’ motion for judgment notwithstanding the verdict on the ground that no directed verdict motion had been made at the close of all the evidence.

Before we grant the rule on the clerk to permit the appellants to appeal from denial of their motion for judgment notwithstanding the verdict, both the appellants and the appellee are directed to brief the following issue: whether a motion for a directed verdict at the close of all the evidence is waived, as a prerequisite for the motion for judgment notwithstanding the verdict, by failure to assert the requirement when the latter motion is made.


text:
    Early JOHNSON v. STATE of Arkansas
    718 S.W.2d 110
    Supreme Court of Arkansas
    Opinion delivered November 3, 1986

      Henry & Mooney, by: John R. Henry, for appellant.
    No response.
   Per Curiam.

Appellant, Early Johnson, by his attorney, has filed for a rule on the clerk.

His attorney, John R. Henry, admits that the notice of appeal was not timely given due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    POTOMAC LEASING CO. v. VITALITY CENTERS, INC. and Claudene CATO
    86-73
    718 S.W.2d 928
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Wright, Lindsey & Jennings, for appellant.
    No brief filed.
   Jack Holt, Jr., Chief Justice.

The issue here is whether a lessee of goods may raise illegality of the lease as a defense to an action to enforce the lease, when the illegality arises from the lessee’s intended use of the goods. We hold the lessee may not under these circumstances and reverse the trial court. Jurisdiction is pursuant to Sup. Ct. R. 29(l)(c).

Vitality Centers, Inc., appellee, entered into a lease agreement, which was guaranteed by Claudene Cato, co-appellee, to lease an automated telephone system from Potomac Leasing, Co., appellant. Leads Unlimited, Inc., not a party, manufactured the telephone system and it was apparently a Leads Unlimited salesman whom Cato dealt with in deciding to acquire the equipment while at a convention in Cincinnati. Potomac’s manager testified that the salesman never worked for Potomac and that Potomac only becomes involved after the vendor and customer have reached an agreement. Potomac simply buys equipment from the vendor and enters a lease agreement with the customer after the vendor and customer have agreed on the product and its financing.

The lease stated that the “[l]essee acknowledges that Potomac Leasing Company is neither the manufacturer, distributor or seller of the equipment and has no control, knowledge or familiarity with the condition, capacity, functioning or other characteristics of the equipment.” Potomac’s manager testified that he did not know if Leads Unlimited was one of the more than 3,000 vendors that Potomac had dealt with before and that Potomac merely distributes literature on its leasing arrangements to salesmen for many such vendors.

After appellees made a few payments on the noncancellable, 48-month lease, the equipment was sent back to Potomac. When Potomac sued to enforce the lease, appellees answered, claiming that the subject matter of the lease was illegal. Appellees had intended to use the equipment to randomly dial phone numbers, give a message advertising certain products, and record the responses of the person answering the call. Arkansas Stat. Ann. § 41-4162 (Supp. 1985) prohibits this use:

It shall be unlawful for any person to use a telephone for the purpose of offering any goods or services for sale, or for conveying information regarding any goods or services for the purpose of soliciting the sale or purchase thereof, or for soliciting information, gathering data, or for any other purpose in connection with a political campaign when such use involves an automated system for the selection and dialing of telephone numbers and the playing of recorded messages when a message is completed to the called number. Provided, however, that nothing in this Act [§§ 41-4162 — 41-4164] shall prohibit the use of a telephone involving an automated system for the selection and dialing of telephone numbers, and the play of recorded messages to inform the purchaser of such goods or services concerning receipt and availability of such goods or services for delivery to the purchaser, or to convey information concerning any delay or pertinent information about the current status of any purchase order previously made.
Nothing herein shall prohibit the use of automated telephone systems with recorded messages when the calls are made or messages given solely in response to calls initiated by the person to which the automatic call or recorded message is directed. [Acts 1981, No. 947, § 1, p. 2271.]

Because the appellees did not submit a brief to this court, “[w]e therefore decide the case upon the record as abstracted by the appellant, it being the appellee’s responsibility to bring to our attention any matters justifying the judgment of the trial court.” Turner v. Bailey, 271 Ark. 215, 607 S.W.2d 674 (1980).

The trial court, in its letter opinion, stated: “The equipment involved here, the subject matter of the lease, is specifically the type of equipment prohibited by statute. With the subject matter of the lease being illegal, the contract is void.” We disagree. That the subject matter of a contract is to be used for an illegal purpose, does not in itself make a contract for the sale of that product void. In Dillard v. Kelley, 205 Ark. 848, 171 S.W.2d 53 (1943), wesaid, “While a transaction contrary to public policy is void, however, one who is not in pari delicto, or who is not a participant in the wrong at all, is not, on account of the character of the transaction, barred from asserting rights under it.”

This is so even when the seller has knowledge of the illegal purpose as long as he has not participated in that use:

The rule supported by the weight of authority and approved by this court is that, though the contract is entered into by one of the parties for the furtherance of an illegal purpose, the contract will not be rendered illegal as to the other party, though he had knowledge of such illegal purpose, provided he does nothing in furtherance thereof.

Ashford v. Mace, 103 Ark. 114, 143 S.W. 1081 (1912), quoting Hollenberg Music Co. v. Berry, 85 Ark. 9, 106 S.W. 1172 (1907).

An exception is when the seller knows the product will be used in “flagrant violation of the fundamental rights of man or society.” Ashford, supra.

6A Corbin on Contracts, § 1519(1962) states essentially the same rule as the Arkansas cases:

If the terms of a contract and its actual performance are all in themselves lawful, it is not made unlawful by the fact that the subject matter is capable of being put to illegal uses. Fire arms, a house, a motor car, liquors, a fountain pen can all be used for tortious or criminal purposes; but a contract for their sale is not for that reason invalid. Such a bargain is not enforceable by the buyer, however, if he buys with the purpose of making an illegal use of the subject matter. A seller who, with knowledge of the buyer’s illegal purpose, makes the sale and delivers the subject matter, thereby increases the probability that the illegal purpose will be carried out, even though he does not participate in the purpose, urges its abandonment, and hopes for the best. This fact makes the bargain unenforceable by the seller álso, if the illegal purpose of which he has knowledge involves the commission of a serious crime or an act of great moral turpitude. In cases other than these, the seller’s knowledge of the purpose does not prevent his enforcement of the bargain, if he in no way participates in the purpose and does not act in furtherance of it aside from making the sale.

Accord, Restatement of Contracts 2d, § 182 (1981).

The evidence did not establish that Potomac knew of or did anything in furtherance of the appellees’ illegal purpose. Likewise, the illegality involved is clearly not a “flagrant violation of the fundamental rights of man or society.” Section 41-4162 allows certain legal uses of automated telephones and Cato testified that the equipment she bought could perform legal functions. The only testimony offered to show Potomac even knew of the appellee’s intended use was Cato’s testimony that she thought Leads Unlimited’s salesman was a Potomac employee. This is not sufficient to establish that Potomac, aside from simply leasing the equipment to the appellees, acted in furtherance of the appellees’ intended illegal use so as to void the contract.

Accordingly, we reverse and remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Robert Lee TROTTER, Jr. v. STATE of Arkansas
    CR 86-112
    719 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered November 10, 1986

      Graves & Graves, by; William Randal Wright, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal, the appellant challenges the admissibility of a confession purportedly made by him, and the sufficiency of the evidence of aggravated robbery. We find the evidence was not sufficient to warrant the conviction and, accordingly, reduce the sentence to that prescribed for the lesser included offense of first degree battery. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

The facts supporting the charge as gleaned from the testimony of the victims and an accomplice, were as follows. The appellant and a friend, Lawrence Benson, walked into Bob’s Grocery Store in Ozan, Arkansas. The owner of the store, Robert Goodlet, was inside along with his brother, Sloman Goodlet, and Virgil Tollett. As soon as they walked inside, the appellant, who was carrying a gun, shot Robert in the neck. He then fired at Sloman from about four feet away, but the gun apparently misfired. Sloman testified he thought he was hit and dropped to the floor. The appellant then reached over the counter with the gun and held it to Sloman’s head, but it again didn’t fire. Appellant “fooled” with the gun for a second and the two men then walked out. They stood outside for a moment, working on the gun, and then turned back towards the store. When someone pulled up, appellant and Benson ran off. No words at all were spoken by the two men, according to Benson, Tollett, and the Goodlet brothers. No attempt was made to take any money, merchandise, or personal effects.

Appellant’s confession was admitted into evidence against him. In it, he stated, that he and Benson were fishing in a stock pond when Benson started talking about robbing Bob’s Store and “getting some money.” Appellant said they went through the door of the store, talked to the men a minute, then appellant told them he wanted the money and pulled the gun out of his right pants pocket. The gun went off, according to appellant, and he and Benson turned and ran.

The only evidence of robbery, which is a necessary element of proof in a charge of aggravated robbery, Ark. Stat. Ann. § 41-2102 (Supp. 1985), § 41-2103 (Repl. 1977), is contained in appellant’s statement. Arkansas Stat. Ann. § 43-2115 (Repl. 1977) provides:

[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that such an offense was committed.

To satisfy this statute and corroborate the confession, the state had to prove only that the crime was committed by someone, McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984);Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), however, the state did not meet its burden of proof in this instance.

In other cases, we have found sufficient evidence that a robbery was committed when the appellant was wearing a watch belonging to the victim when he was arrested, Smith v. State, supra; where the appellant took money from the victim’s billfold after he raped and murdered her, Owens v. State, 283 Ark. 327, 675 S.W.2d 834 (1984); and where appellants forced their way at gunpoint into a hotel room and ordered the male occupant to “Get them up.” Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). In Johnson & Carroll, although the appellants did not take anything from the hotel room, they were convicted of aggravated robbery. They argued the evidence was insufficient for the jury to find that their purpose was to commit a theft. We held:

There is no merit to this argument. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances, (citation omitted).
The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Here, there is no evidence that appellants knew any women were in the room; therefore, the jury could have excluded intent to rape. The jury could have also have concluded that if appellants had intended to murder Sealey they would not have paused to demand that he raise his hands.
Common knowledge and experience, when considered in the light of the facts of this case, could enable the jury to find that the only purpose appellants could have had in sticking a gun in Sealey’s chest and saying, “Get them up,” was to rob Sealey.

Here, the testimony indicated that the opposite occurred. The appellant did not say or do anything when he entered the store to shed light on his intent. Instead, he just opened fire. Accordingly, there was no evidence appellant intended to do anything but harm the Goodlets.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). Substantial evidence must be forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Id. On review it is only necessary to ascertain that evidence which is most favorable to the appellee and if there is substantial evidence to support the verdict, the finding must be affirmed. Id. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). Inasmuch as there was no substantial evidence, direct or circumstantial, to enable a jury to find appellant guilty of aggravated robbery, the conviction must be reversed.

Appellant also contends that the trial court erred in admitting his confession into evidence. His argument primarily challenges that portion of the rights form read to him which states that an attorney will be provided if he cannot afford to retain one.

A Denno hearing was held at which evidence was offered that appellant was advised of his rights, indicated that he understood each right, and initialed the rights statement. The trial court found the appellant was advised of his rights, understood them, and freely and voluntarily gave his statement.

Number four on the rights form states: “Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning if you so desire?” Appellant maintains that the form of this statement does not meet the standards of Miranda because it does not provide that the appointed lawyer will represent him without cost.

Sheriff Dick Wakefield testified at the Denno hearing as follows:

Q: All right. And did you explain to him, for example in Number 4 of that statement, that this attorney that would be given to him would be without cost?
A: Yes, sir.
Q: Well, it doesn’t state that in Number 4.
A: Number 4 says that if he can not afford one, one would be appointed for him at no cost.
Q: No, it doesn’t say at no cost, that’s what I’m saying. Did you say that reading Number 4 as is or did you go on to explain to him that it was without cost?
A: Well, we read it to him as is, but I’m sure that I went into it, I always do, that there will be absolutely no cost to the defendant.

Further, Charles A. Hefner of the Arkansas State Police, who was with Sheriff Wakefield during the reading of the rights and taking of the statement, testified that Sheriff Wakefield “would interject into that [the rights] a more down to earth level as far as saying that, you know, if you don’t have the money, we’ll appoint you one and give you one free and stuff like that. This is normal procedure.”

The trial court was justified in finding from this testimony that the availability of an attorney free of charge was explained to appellant. Nevertheless, in discussing this issue before we have criticized the use of similar forms that do not make it clear to an indigent defendant that an attorney will be provided to him without cost if he cannot afford to retain one. In Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981) we explained:

Although it would be a better practice to acquaint a defendant that counsel would be appointed by the court without cost to him, here, when we examine the totality of the circumstances surrounding the waiver and the confession, the lack of the words “free of charge”, or similar words, does not appear to negate the overall effectiveness of the twice given warning or the voluntariness of the confession. Therefore, we cannot say the trial court’s finding that the confession was voluntary is clearly against the preponderance of the evidence.

See also, Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

Had the sheriff not augmented the form with his own comments that counsel would be provided at no cost to the defendant, we would have to find the advice given appellant was inadequate. But because the sheriff did offer that explanation, and because under the totality of the circumstances surrounding this confession we do not think the trial court’s finding of voluntariness was clearly against the preponderance of the evidence, we find no merit , in appellant’s argument that his confession should have been excluded. We caution, however, against the use of this and similar forms when informing a defendant of his rights. It must be made clear to a defendant that he has access to an attorney at absolutely no cost to him before he agrees to waive his right to counsel.

Although we find that the proof does not support the jury’s finding of aggravated robbery, it does support the lesser included offense of first degree battery. A person commits battery in the first degree if, with the purpose of causing serious physical injury to another person, he causes such injury to any person by means of a deadly weapon or if he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. Ark. Stat. Ann. § 41-1601 (Repl. 1977). While aggravated robbery belongs in the generic class of robberies, or offenses against property, and first degree battery is an offense' against persons, the two crimes overlap in this instance to make first degree battery a lesser-included offense of aggravated robbery. We have held that a person cannot be convicted of both aggravated robbery and first degree battery when the two crimes overlap and have set aside the battery charge as the lesser included offense. See Atkins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983); Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983); and Robinson v. State, 279 Ark. 61, 648 S.W.2d 446 (1983). In Foster v. State, 275 Ark. 427, 631 S.W.2d 7 (1982), the appellant argued that the charges of first degree battery and aggravated robbery constituted double jeopardy and should not both have been submitted to the jury. We explained that the issue was “whether first degree battery is established by proof of the same or less than all of the elements required to prove aggravated robbery.” To determine this, we had to ascertain “whether it is possible to commit aggravated robbery without committing first degree battery.” This court held:

We find that it is possible. One can commit aggravated robbery merely by committing robbery and being armed with a deadly weapon or representing that he is so armed. Ark. Stat. Ann. § 41-2101 (Repl. 1977). To commit first degree battery, however one must actually inflict serious injury. Ark. Stat. Ann. § 41-1601 (Repl. 1977).

In this case, appellant was charged by felony information with aggravated robbery in “that he inflicted or attempted to inflict death or serious physical injuries upon another person.” As a matter of fact, he was armed with a gun and actually inflicted serious injury on Robert Goodlet. Therefore, first degree battery, under this scenario is a lesser included offense of aggravated robbery and we can impose a sentence for the lesser offense when presented with a failure of proof of the greater. We have held that,

[i]n this situation we may, depending upon the facts, “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ourselves at some intermediate point, remand the case to the trial court for the assessment of the penalty, or grant a new trial either absolutely or conditionally.”

Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

First degree battery is a class B felony punishable by five to twenty years imprisonment. Since the jury in this case imposed the maximum punishment of life imprisonment on the appellant for the charge of aggravated robbery, we too fix the punishment at the maximum for the lesser offense, and impose a twenty-year sentence on the appellant.

Affirmed as modified.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority holds that the confession cannot be used to supply the proof that robbery was intended. It says there was no evidence of the element of theft outside the confession, and, therefore, the conviction cannot stand. The statute quoted simply means that a person cannot be convicted on a written or oral confession alone. There must be other proof of the crime. The state certainly proved a crime was committed and a jury could reasonably conclude that Trotter went in the store to rob it. I doubt whether Trotter knew exactly what he was going to do, but robbers have been known to try to hold up stores. Evidently, he was not an experienced robber. He shot the man behind the counter and then tried to shoot the victim’s brother; the gun misfired and Trotter panicked and fled. It would not be the first time an inept robber failed in his attempt and fled.

A jury is not supposed to put aside its common sense and neither should we. We do not know exactly what Trotter was thinking, nor do we have to. What we do know is that he and his friend were wandering around that day. They were going to the store to get something to eat, according to his friend. According to Trotter’s confession, they were going to get some money.

The majority’s reading of the statute is entirely misplaced. It does not say anything about proving beyond a reasonable doubt all the elements of the crime; just that other proof is required. In this case, considering the facts, together with all reasonable inferences permitted, the verdict is justified. The majority ignores the perfectly ordinary and reasonable conclusion one would draw: Trotter intended to rob the store.

Trotter does not even argue the statute. Yet the majority uses it as a basis for reversing the case. We should not look for reasons to void the verdict, but whether the evidence supports it.

I would affirm the conviction.

Hays, J., joins in this dissent.