author: Steele Hays, Justice.

text:
    Don GRENDELL v. Ferdinand KIEHL and Loretta KIEHL
    86-129
    723 S.W.2d 830
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987
    [Rehearing denied March 23, 1987.]

      James R. Marschewski, for appellant.

      Hubert W. Alexander, for appellees.
   Steele Hays, Justice.

Don Grendell brings this appeal from a judgment of $11,329.60 rendered against him by the circuit court. Appellees Ferdinand and Loretta Kiehl brought an action for deceit against Grendell alleging misrepresentation and seeking judgment for compensatory and punitive damages. Grendell argues three points of error on appeal: the circuit judge erred in not directing a verdict at the close of the plaintiffs case; the judgment was not supported by the law and the evidence, and the amount of the judgment is not supported by the evidence. We affirm the judgment of the trial court, as modified.

These points, being interrelated, will be considered together, as the result we reach necessarily answers all the arguments. When the plaintiffs rested, the defendant Grendell moved for a directed verdict because the plaintiffs had failed to prove that any of the representations were shown to have been false, or that Mr. Grendell knew they were false.

In reviewing the denial of a motion for a directed verdict, we give the proof its strongest probative force. Such proof, with all reasonable inferences, is examined in the light most favorable to the party against whom the motion is sought and if there is any substantial evidence to support the verdict we affirm the trial court. Northside Construction Co. v. Huffman, 287 Ark. 145, 697 S.W.2d 89 (1985); McCuiston v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980); ARCP Rule 50.

At the outset we point out that appellant’s argument is based in part on a misconception of the law. Citing Robinson v. Williams, 231 Ark. 166, 328 S.W.2d 494 (1949), he argues that fraud must be proved by clear and convincing evidence. That is incorrect. That rule applies to chancery cases, where fraud is urged as a basis for altering a solemn writing. It has no application to actions at law, where the burden of proof of misrepresentation is simply by a preponderance of the evidence. Sellers v. West-Ark. Construction Co., 283 Ark. 341, 676 S.W.2d 726 (1984); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972).

The essential elements of an action for deceit are well established: a) a false, material representation (ordinarily of fact) made by the defendant; b) scienter — knowledge by the defendant that the representation is false, or an assertion of fact which he does not know to be true; c) an intention that the plaintiff should act on such representation; d) justifiable reliance by the plaintiff on the representation; e) damage to the plaintiff resulting from such reliance. Storthz v. Commercial National Bank, 276 Ark. 10, 631 S.W.2d 613 (1982). Nor is it necessary to prove active fraud by the defendant — “representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true.” Kennedy v. Strout Realty Agency, 253 Ark. 1076, 490 S.W.2d 786 (1973); Lane v. Rachel, 239 Ark. 400, 389 S.W.2d 621 (1965).

The critical element in this case concerns scienter, whether Don Grendell made representations which he knew were false, or which he made without knowledge of their truth. We have reviewed the testimony in its entirety and we must agree with appellant, that the proof failed to sustain the amount awarded.

The Kiehls testified that Mr. Grendell began serving as their insurance agent in 1971, that they relied on him for financial advice. At an early point they converted shares of National Investors Life Insurance Company, Associated Investors Securities and Investor Equity Securities for shares in Capital Services, a company organized by Grendell. This company seems to have become insolvent or inactive, resulting in a loss to the Kiehls of $1,329.00, but we find no evidence of any false representations connected with this transaction. The Kiehls rely largely on the loss of an investment of $4,500 in an oil and gas lease, promoted by Mr. Grendell. They testified he told him it was “a good thing” and would “make money” for them. Mrs. Kiehl testified Mr. Grendell “guaranteed we would make lots of money,” adding, “We were going to get 50 barrels a day.” They were also told part of the money would go to a boys’ ranch in Perryville. While we find proof that some of the money was to be used to help a boys’ ranch, we find no evidence proving that that representation, whatever may be said of it, was shown to be false.

The testimony that the oil investment was a good thing and would make money, even the inference of “50 barrels a day,” fails to rise to the level of a misrepresentation of fact. Even at its strongest, the proof constitutes expressions of opinion in the nature of “puffing.” Prosser and Keeton on Torts, (5th Ed.), § 109. Admittedly, Mr. and Mrs. Kiehl were relatively inexperienced in business affairs but we cannot conclude they were incapable of recognizing the difference between an opinion that a proposed investment in an oil lease looked promising and was a “good thing,” as opposed to a factual assertion that an oil well would become a producer. Nothing in the testimony suggests the Kiehls were not mindful that while some oil ventures succeed, a good many others, just as inviting at the outset, do not. Indeed, Mrs. Kiehl candidly acknowledged recognizing the risk factor in oil leases and was aware that a “dry hole” was a possibility.

Finding the dividing line between misrepresentation of fact and expression of opinion is often troubling. Prosser and Keeton on Torts (5th Ed.), Chap. 18, § 109, examines the type of proof necessary to sustain an action for deceit:

It is stated very often as a fundamental rule in connection with all the various remedies for misrepresentation, that they will not lie for mistatements of opinion, as distinguished from those of fact. The usual explanation is that an opinion is merely an assertion of one man’s belief as to a fact, of which another should not be heard to complain, since opinions are matters of which “many many men will be of many minds, and which is often governed by whim and caprice.” Judgment and opinion in such case, implies no knowledge. (Prosser, p. 755).
An opinion may take the form of a statement of quality, of more or less indefinite content. One common application of the opinion rule is in the case of loose general statements made by sellers in commending their wares. No action lies against a dealer who describes the automobile he is selling as a “dandy,” a “bear cat,” a “good little car,” and “a sweet job,” or as “the pride of our line” and the “best in the American market,” or merely makes use of broad, and vague, commendatory language comparing his goods favorably with others, or praising them as “good,” “proper,” “sufficient” and the like (Id. p. 757).
A statement that... a real estate investment will insure a handsome profit, that an article is the greatest bargain ever offered, and similar claims are intended and understood to be merely emphatic methods of urging a sale. These things, then, a buyer must disregard in forming a sober judgment as to his conduct in the transaction. If he succumbs to such persistent solicitation, he must take the risk of any loss attributable to a disparity between the exaggerated opinion of the purchaser and a reasonable or accurate judgment of the value of the article. (Id.)

The Kiehls point out that their reliance on Don Grendell produced a special relationship of trust and confidence requiring the utmost in good faith and disclosure of all material facts. Prosser, p. 738. Even so, there was an absence of proof by the Kiehls that Grendell either knew the assurances made to them were false or made factual representations while lacking knowledge of their truthfulness.

We do find support in the record to sustain the liability of Don Grendell for $3,500. Mr. and Mrs. Kiehl testified they gave Mr. Grendell $1,000 to hold for them on the purchase of an additional interest in the oil well. They later added $2,500 to this amount but were short of the needed $4,500 for another l/32nd interest. The proof was that Mr. Grendell was to hold this money, to be returned upon demand. The Kiehls testified they asked for it more than once but were put off by one pretext or another, the import of the proof being that this money remained in Mr. Grendell’s hands. Mr. Grendell essentially concedes that the Kiehls are entitled to a judgment of $3,500 and we concur.

Appellant has called our attention to the fact that this case was tried to the court and remained undecided for some twenty months. While we do not conclude the result was affected by the inordinant lapse of time, we agree that a delay of that magnitude, absent some explanation, cannot go unmentioned on appeal.

The judgment is reduced to $3,500 and, as modified, is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lynn WILMOTH v. STATE of Arkansas
    CR 86-153
    724 S.W.2d 148
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      L. Gene Worsham and Beth Gladden Coulson, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Lynn Wilmoth has appealed from an order denying a Rule 37 petition alleging that his plea of guilty to four counts of sexual abuse was involuntary, the product of mental duress and coercion. Lynn Wilmoth and Dr. Robert Thompson were jointly charged with twenty-one counts of deviate sexual activity with Lynn Wilmoth’s son, Terry. The acts were alleged to have occurred over a two year period when Terry was less than fourteen years of age. The trials were severed and Dr. Thompson was tried first. He was convicted on twenty counts and a sentence of 200 years and a fine of $200,000 was imposed. On appeal the judgment was affirmed. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983).

On the morning of Lynn Wilmoth’s trial Terry Wilmoth announced he did not want to testify. The trial judge appointed Miss Kelly Carithers, public defender, to represent Terry and told her he would order Terry to testify. After meeting with Terry privately she informed the court that Terry would not testify.

Terry Wilmoth was called to the witness stand by the state. He answered preliminary questions but when asked if his father had taken him to Dr. Thompson’s house on February 24, 1980 (count 1), he refused to answer. The trial judge ordered him to answer and warned him if he refused he would be held in contempt and jailed until he purged himself of contempt by answering the questions. Terry again conferred with Miss Carithers and she reported “I think he wants to go ahead and testify. He understands the consequences and he chooses to testify.”

Terry Wilmoth returned to the witness stand. He testified that he was then fifteen years old; he identified Lynn Wilmoth as his father, said he had been living with foster parents in Morrilton for about a year, that his father had taken him to Dr. Thompson’s house a number of times — more than five but just how many he could not say. We quote from the record:

Q: When you were over at Dr. Thompson’s house, did Dr. Thompson ever do anything to you sexually? All right let me ask the question a different way. Terry, are you familiar with the terms anus and penis?
A: Yes.
Q: Okay. When you were over at Dr. Thompson’s house, did Dr. Thompson ever put anything in your anus? Terry, let me ask the question another way. Did Dr. Thompson ever put his penis in your anus? Terry, do you recall testifying at the prior trial that Dr. Thompson put his penis in your anus?
MR. DOUGLASS:
Your Honor, I’m going to ask the Court to instruct the witness —
MISS KELLY CARITHERS, PUBLIC DEFENDER:
May I talk to him for a minute, please?
THE COURT:
Yes.
(THEREUPON, Miss Carithers, who was appointed by the Court to represent the witness, conferred privately with the witness, then the following proceedings occurred:)
THE COURT:
Mr. Wilmoth, answer the question.
MR. DOUGLASS, Continuing:
Q: Terry, when you were over at Dr. Thompson’s house, did Dr. Thompson put his penis in your anus?
A: Yes.
Q: Okay. Now, you testified just a few minutes ago that you went to Dr. Thompson’s house more than five times. Is that correct?
MR. DOUGLASS:
Your Honor —
THE COURT:
Mr. Wilmoth, the Court is going to instruct you to answer the questions and that means to continue to answer the questions. And I wouldn’t think it would be necessary to stop and re-order you each time.
Now, do you need some time? Do you want a drink of water or you want some time to compose yourself?
MR. WORSHAM:
Your Honor, may I approach the Bench.

At this point defense counsel indicated to the court that Lynn Wilmoth wanted to accept a proposal that had been rejected earlier, that he plead guilty to four specific counts in return for consecutive ten year sentences, a total of forty years. Lynn Wilmoth was called to the bench and confirmed that that was his decision. The court then proceeded to conduct a hearing on the guilty pleas in accordance with A.R.Cr.P. Rule 24 during which the pleas were accepted and the plea bargain approved.

Some two years later Lynn Wilmoth petitioned under A.R.Cr.P. Rule 37 to withdraw his pleas of guilty. At a hearing he testified that he had rejected an offer to plead guilty to four counts but changed his mind after the trial began when Terry started crying. The petition was denied and Wilmoth has appealed.

Appellant refers us to several cases, but they touch only remotely on the issue. In each of those cases the defendant was directly pressured to plead guilty to certain charges under circumstances that were found on appeal to be improper. In Collum v. State, 244 Ark. 290, 424 S.W.2d 523 (1968) we permitted the withdrawal of a guilty plea because Collum was threatened with the revocation of a seven year suspended sentence if he did not plead guilty to crimes he alleged he did not commit. In United States v. Anderson, 468 F.2d 440 (5th Cir. 1972), the District judge announced that if the defendant testified at his jury trial as he had at a suppression hearing he was facing two counts of perjury. He told the defendant “You are looking at possible maximum penalties of thirty years plus the fines.” The defendant withdrew his not guilty plea in the face of those remarks. On appeal he was permitted to withdraw the plea because the trial judge exerted “an improper influence, prejudicial to the defendant’s unqualified right to stand trial.” Similarily, in United States v. Schmidt, 376 F.2d 751 (4th Cir. 1967), after Schmidt was convicted of one count of bank robbery, with two additional charges pending trial, the trial judge, relying on news articles, proceeded to tell him he might well be charged with kidnapping, that he would “never be free of confinement” if he continued on the “thorny row” he was following. The appeals court ordered withdrawal of guilty pleas taken in that environment, “we deplore the remarks [by the District judge] and the injudicious way in which the proceeding was conducted.”

This case more nearly resembles Drake v. State, 172 N.W.2d 664 (S.C. Wisc. 1969). Drake sought to withdraw a plea of guilty of assisting in a jail escape, arguing “strong elements of coercion” in that his wife was suspected of having participated in bringing a hacksaw blade into the jail. The Wisconsin Supreme Court rejected the argument that his concern for his wife coerced his plea, saying the coercion was “self-imposed,” which did not “weaken the voluntary and knowledgeable aspect of an act based upon it.”

In this case no pressure was exerted by the court or the prosecutor on Lynn Wilmoth to plead guilty. Wilmoth argues that the anguish demonstrated by his son created a coercive pressure on him. We have no doubt the circumstances caused a wrenching experience for the appellant, but for several reasons we think they do not constitute the sort of coercion necessary to withdraw a guilty plea entered knowingly and in strict adherence to A.R.Cr.P. Rule 28.

For one thing, the record compels the conclusion that a large part of Terry Wilmoth’s discomfort was the result of pressure put on him by his father not to testify against him. The state introduced a letter written to Terry by his father exhorting him in the strongest terms not to testify, or to lie if necessary, rather than telling the truth, and reminding him that “the key” to his coming back home from a foster home was his not testifying. Appellant contends this letter was not delivered to Terry, but we can reach no definite conclusion about that, nor need we try, as it is clear that ample opportunity existed for communication between Terry and his father. Thus, the appellant’s professed concern for his son’s anguish would be more convincing if he had not added to that condition by his own illegal acts.

Moreover, we note that Lynn Wilmoth’s decision to spare Terry from the ordeal was delayed until well after it became apparent that Terry was going to testify, albeit reluctantly, and indeed had begun to provide specific answers about the visits to Dr. Thompson’s house with his father. It is of some significance that when Terry first announced that he would not testify the state moved that he be considered “unavailable” under A.R.E. Rule 804 and his testimony from the Thompson trial be read to the jury. This would have relieved Terry of the ordeal Lynn Wilmoth now decries, but the- state’s proposal brought an immediate and forceful objection from the defense and that alternative was pursued no further.

Nor can we agree with appellant’s repeated argument that Terry was being compelled to testify in conformity with his testimony in the Thompson trial. We have searched the record and we are satisfied that no such inference may be drawn from the remarks of the trial judge. Defense counsel posed that same concern at one point in the trial:

MR. WORSHAM:
I would want to make this objection. I think in essence the witness has been told that the court says that the testimony that he gave at the Thompson’s trial is truthful. This is prejudged. And that if he doesn’t testify as he did in the Thompson trial that he’s going to be prosecuted for perjury.
THE COURT:
On the contrary. On the contrary, Mr. Worsham — MR. WORSHAM:
Uh —
THE COURT:
Just a minute. The only testimony I’ve heard is that. I don’t know whether that is true or not. There may be some discrepancies in that that he may have remembered now. And I would not expect him to remember word for word. All I expect him to do is tell the truth. There may be some differences this time than there were last time. Just because there are some differences doesn’t necessarily mean it’s perjury as you well know.

There were other comments by the court in a similar vein which satisfy us that while Terry Wilmoth was firmly ordered to testify under penalty of contempt, he was not ordered, even implicitly, to fashion his testimony according to the Thompson trial, but to testify truthfully. The contempt powers of a court to order witnesses to render testimony necessary to either the defense or the prosecution is not subject to doubt. Morrow v. Roberts, 250 Ark. 822, 467 S.W.2d 393 (1971). We find no abuse of that power in this case.

Whether Lynn Wilmoth’s greater motivation was to spare his son from a painful experience, or to spare himself from a far heavier sentence than the one he bargained for, we will not attempt to decide. It is clear that when Terry began to give the facts, Lynn Wilmoth was confronted with the reality that the state was set to prove each of the twenty-one counts, twenty of which had been upheld in the Thompson trial, resulting in maximum sentences on each count, a staggering total of 200 years and $200,000. It is a fair assumption, we believe, that Lynn Wilmoth’s decision was prompted as much by a desire to avoid that ominous prospect as to protect his son.

The overriding factor in this case, we believe, is the irrefutable evidence that appellant knowingly and voluntarily entered a plea of guilty to acts he admittedly committed. He not only acknowledged unequivocally that he had done the things with which he was charged, but that his son’s testimony, however reluctant, was true. He makes no serious attempt to deny those acts even now. See Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984) and Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984).

Affirmed.


author: David Newbern, Justice.

text:
    Gary W. TACKETT v. Bob HESS, et al.
    86-156
    723 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      James F. Lane, for appellant.

      Mark Stodola, City Att’y, by: Stephen R. Giles, for appellee.
   David Newbern, Justice.

In this zoning case we are required to construe Little Rock city ordinances. The appellant, who was the plaintiff, complained that property in his neighborhood was improperly allowed planned unit development (PUD) status. He contends that the lot in question is too small for consideration as a PUD, and that if we agree we must find the action by the appellees in granting the PUD status is void because it constitutes an illegal exaction prohibited by Ark. Const, art. 16, § 13. As we find no illegality or violation of the controlling ordinances, we affirm and need not discuss the illegal exaction point.

The evidence before the chancellor showed that the lot in question is zoned R-3 and is owned by a Mr. Flynn. Apparently there was a triplex apartment complex on the lot which would not have been allowed in an R-3 zone, but which had been there as a pre-existing use. Although the record does not show why it was necessary, we know Mr. Flynn sought PUD status for his property. His purpose was to maintain his triplex, and we suppose he was improving the property in some manner requiring a building permit. Again, the record does not show what it was, but reference is made to Mr. Flynn’s “project.” The appellant opposed a PUD for the property, and he brought this suit after the PUD was approved by the appellees.

Article IX of the Little Rock Comprehensive Zoning Ordinance states, in § 9-101 A., the general purpose of a planned unit development. It says the idea is to combine in one process review of proposed subdivision and zoning of land with more or less flexible guidelines to permit optimum combinations of dwelling density, other facilities, and open space in the unit proposed.

In its original form § 9-101 C. 3. provided:

3. Minimum Size
Eligible properties must normally be 2.0 acres or larger in size (gross acreage). Slightly smaller parcels may be eligible, provided the applicant can show that the proposed planned unit development can meet the intent and regulations of this article without injury to the public health, safety, and welfare.

In 1983, the city board passed Ordinance No. 14,395 which provided for a “short form planned unit development process.” Section 9-101 A. was amended by the addition of the following language:

Applicants for small-scale development are offered further inducements to use the planned unit development process by reducing the time and cost factors. This process is described further in this article as “short form P.U.D.” The process is deemed necessary to assure control of certain small developments while providing the small-scale developer a means of gaining commitment without undue financial risk. This process will at the same time afford the neighborhood an involvement prior to final commitment.

From this language we can discern it was the intent of the board to create a new “small-scale” PUD and to facilitate its use by the developers of such PUDs through an expedited application process. The amendment further added to § 9-101 C. this language:

The maximum size authorized for filing of short form planned unit development applications shall be 5.0 acres.

In 1984, Ordinance No. 14,604 was passed. It added the following to § 9-101 C.:

There is no minimum size for the Short Form Planned Unit Development applications.

With these two amendments, § 9-101 C. now reads as follows:

Minimum size: Eligible properties must normally be 2.0 acres or larger in size (gross acreage). Slightly smaller parcels may be eligible, provided the applicant can show that the proposed planned unit development can meet the intent and regulations of this article without injury to the public health, safety, and welfare. The maximum size authorized for filing of short form planned unit development applications shall be 5.0 acres. There is no minimum size for the Short Form Planned Unit Development applications.

The appellant contends a lot containing only .16 acres may not be the subject of a PUD for we must read the ordinance as saying any PUD must be on a lot larger than two acres and that, if the short form application is used, the lot may be no larger than five acres. He contends the last sentence added means there is no minimum lot size for use of the short form application but that that language does not repeal the initial requirement that a PUD be on a lot at least two acres in size.

We agree with the appellant’s citations to cases showing that we apply the same statutory construction rules to ordinances as we apply to statutes, Helena v. Russwurm, 188 Ark. 968, 68 S.W.2d 1009 (1934), and that when there is the possibility of more than one construction we will construe it in such a way as to give effect to all its parts, if possible, Commercial Printing Co. v. Rush, 261 Ark. 468, 549 S.W.2d 790 (1977), and if possible, to every word used. Locke v. Cook, 245 Ark. 787, 434 S.W.2d 598 (1968). However, we do not find that the appellant’s construction is the only one which would give effect to those canons of construction in this case, and we believe the meaning we ascribe to the quoted section comes much closer to what we perceive to have been the board’s intent.

The last amendment, adding the statement that “[tjhere is no minimum size for the short form planned unit development applications” is highly ambiguous. It could be read as saying the applications need not be on paper as large as 8 Vi by 11 inches or that they need not be more than one page or more than ten words. However, when combined with the sentence before it, it becomes apparent that “minimum size” was meant to refer to the size of the lot with respect to which a short form PUD application may be filed. That does not yet resolve the issue before us, however, as we have yet to say whether those two sentences should be read as dealing only with the application process rather than the fundamental PUD requirements.

The question is answered by looking at the entire ordinance and realizing that the board’s intent by permitting short form applications was to create a new kind of PUD for small properties. A clear indication of that is in the amendment to § 9-101 A. where there was an attempt to delineate the small scale or “short form PUD” from the one where there is a need to combine subdivision and zoning review, obviously dealing with large scale developments. It becomes even clearer upon reading the caption or description of Ordinance No. 14,604 which adopts the language stating there would be no minimum size for short form PUD applications. The caption says the amending ordinance deals with “. . . minimum size requirements for short form planned unit developments.”

While the ordinance is not a masterpiece of draftsmanship, it is clear enough for us, using the interpretation principles suggested by the appellant, to interpret it as the chancellor apparently did.

Affirmed.


author: Tom Glaze, Justice.

text:
    Richard ALFORD v. STATE of Arkansas
    CR 86-114
    724 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987
    [Rehearing denied March 16, 1987.]

      Terry Crabtree, Public Defender, by: Michael Yarbrough, Ass’t to the Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant, Richard Alford, was convicted at a jury trial of first degree murder and sentenced to life in prison. For reversal, appellant argues that the trial court erred in failing to suppress evidence, including his confession, which he claims resulted from an illegal search and arrest. He further contends the court erred in denying him statements and notes of certain state witnesses and in refusing his motion for reciprocal discovery. We find the trial judge was correct in each instance, and, therefore, affirm.

Appellant’s paramount argument on appeal is his assertion that the court erred in refusing to suppress the fruits of the search of the apartment in which he lived with his father, Dennis Alford, and the victim, Mildred Weiser. He argues the officers, when investigating the shooting of Weiser, instituted an illegal, warrantless search which did not fit within the exceptions of a victim-suspect search, a consensual search, a search incident to arrest, or a plain-view search.

While there are some details that remain unclear concerning Weiser’s death, its aftermath and ensuing investigation are, in essential part, clear. Weiser was Dennis Alford’s girlfriend, and they had lived together, along with Richard, in the Alfords’ apartment for about one year. Because of some apparent difficulties which had arisen between Weiser and the Alfords, Weiser made plans to move elsewhere. On the night of April 1,1985, she was alone with both Alfords in their apartment and whatever hostilities existed between the parties culminated in the shooting and resulting death of Weiser. Afterwards, Dennis asked a neighbor to call for an ambulance and the police. When the police arrived, Dennis was outside yelling for help and ushered Officers Dunlavy and Towner into the apartment. Officer Towner found Weiser’s body on the floor, lying partly in the hallway and partly in Richard’s bedroom. She had a gunshot wound to the head, and a .25 caliber automatic pistol was located in her hand. The officers testified that Dennis was emotionally upset, but his son was calm. Both Alfords related to the officers that Weiser had committed suicide.

While Dunlavy and Towner were securing the premises, Dunlavy and another officer, who had arrived on the scene, kept the Alfords in the living room area. Minutes later, two criminal investigators, Williams and Spradlin, arrived and conducted a search of the apartment. At some point in their investigation, the officers became suspicious that Weiser’s death was not a suicide. Spradlin took photographs of the entire apartment and collected evidence, including the murder weapon — a .357 magnum — which was located on a shelf under some books in a closed closet in Richard’s bedroom. Other weapons were located in the apartment by the officers, some with the help of Dennis.

In considering appellant’s attack on the officers’ warrantless search, we agree that it does not fit within the exceptions of a victim-suspect or plain-view search. Clearly, officers can make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises, Thompson v. Louisiana, 469 U.S. 17, 21 (1984) and Mincey v. Arizona, 437 U.S. 385, 392 (1977), but, here, the officers who first arrived on the scene had secured the area, and there was nothing to indicate there was another victim or that an unknown killer might be lurking on or about the premises. In addition, the search does not fall within the plainview exception because the record reflects that, other than the .25 caliber automatic found with the victim, none of the weapons seized was in plain view, including the murder weapon — which was located on the shelf of a closed closet. Nor can the search be validated as one incident to a lawful arrest since neither the appellant nor his father had been arrested until Richard was arrested after confessing to the crime hours after the search had been conducted.

While we agree with part of appellant’s argument, we by no means agree that the officers’ search was not legal as a consensual search. In fact, the trial judge, in his memorandum opinion, concluded that the facts and surrounding circumstances of the investigation revealed that Dennis Alford impliedly consented to a warrantless search. Of course, we have held that one who has joint possession or equal authority with respect to premises, as did Dennis Alford here, has authority to permit a warrantless search. Glason v. State, 272 Ark. 28, 611 S.W.2d 752 (1981); see also, U.S. v. Matlock, 415 U.S. 164 (1974).

It is undisputed that the officers did not obtain a warrant, and for the search to be valid, it must fall within one of the narrow and specifically-delineated exceptions to the warrant requirement. Thompson v. Louisiana, supra, at 21. The Supreme Court also has rejected the contention that one of the exceptions to the warrant clause is a “murder-scene exception”. Mincey v. Arizona, supra. Nonetheless, the Court in Thompson indicated that its holding in Mincey would not invalidate a consensual search under circumstances similar to those posed here, but that any such claim of valid consent would have to be measured against the standards of United States v. Matlock, supra, and Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Thompson, supra at 23.

In Schneckloth, the Supreme Court held that the prosecution must prove that consent to a search was voluntary and not the product of duress or coercion, express or implied, and it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether it was voluntary or coerced. 412 U.S. at 228 and 233. That Court also held while knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent. 412 U.S. at 227. Before analyzing the circumstances in the instant case, we note, too, that the Supreme Court has held that mere acquiescence to the authority of the police is not consent, and conduct that is questionable or that clearly indicates mere acquiescence to perceived police authority will not support a police search based upon the parties’ alleged consent, regardless of the lack of coercion. Bumper v. North Carolina, 391 U.S. 543 (1968).

In the instant case, the trial judge determined that the holdings in Mincey and Thompson were not controlling because here there were consensual factors not present in those cases. The judge concluded more than acquiescence took place on Dennis Alford’s part. He requested the police officers’ presence and manifested his clear willingness and permission for them to enter his apartment. Both Affords indicated that Weiser committed suicide, thereby initially removing the possibility of a call or plea for a homicide investigation or the implication of either of the Affords in a deliberate shooting. Dennis was cooperative throughout the investigation that evening, and, in fact, assisted the officers in locating weapons throughout the apartment after the murder weapon was located.

Appellant argues that Dennis was emotionally upset and, for that reason, was not able to prevent the search that took place or object to the photographs the officers obtained in their initial “intrusion” into the apartment. We cannot conclude the trial judge was clearly erroneous in resolving that factual argument against the appellant. See United States v. Miller, 589 F.2d 1117 (1978). We believe the trial judge was justified in inferring voluntary consent on Dennis’s part since his cooperation throughout the officers’ investigation and search was consistent with his denial of any involvement in a homicide. While two of the officers testified that they had a “possible impression” or “suspicion” that the .25 caliber automatic had not caused Weiser’s wound, they had nothing to indicate that either of the Affords shot Weiser. And it was not until the police took appellant to the police station that appellant suggested Weiser’s death was the result of an accidental shooting on his part:

In Schneckloth v. Bustamonte, supra, the Court noted there are two competing concerns which must be accommodated in determining the meaning of a voluntary consent — the legitimate need for such searches and the equally important requirement of assuring the absence of coercion. 412 U.S. at 227. The Court expounded that, in situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.

Here, the officers were permissibly in the Alfords’ apartment investigating a reported suicide, and no probable cause existed initially to obtain a warrant or to make an arrest. Yet, as a result of Dennis Alford’s invitation into the apartment and his total cooperation in the search, the officers’ search did ultimately yield substantial evidence that served as a basis for appellant’s prosecution. On the facts presented in this situation, we hold the trial judge correctly upheld the search as constitutionally permissible.

For his second point, appellant contends the court erred in refusing to suppress statements he made because they were tainted by the illegal search and his illegal arrest. Of course, when considering our disposition of appellant’s challenge to the search, we necessarily conclude his statements did not result from an illegal search. On the question of an illegal arrest, we cannot find in the record where the trial court ruled on that question. Nor can we find where illegal arrest — except as it resulted from an illegal search and seizure — was raised below. Thus, appellant is precluded from raising that issue for the first time on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

In his third point for reversal, appellant argues the court wrongfully denied his request for a statement given by Dennis Alford in response to a prosecutor’s subpoena. In support of his argument, he cites Rule 17.1 (b)(i) of the Arkansas Rules of Criminal Procedure which requires the prosecuting attorney to disclose to the defendant the “substance of any relevant grand jury testimony.” In sum, appellant argues statements taken of witnesses pursuant to a prosecutor’s subpoena should be treated and disclosed in the same manner as grand jury testimony. Of course, the short answer to appellant’s argument is that Rule 17.1 fails to require a prosecutor to disclose statements or information merely because it is gained as a result of a subpoena, and appellant cites no authority nor offers any convincing argument why the rule should be otherwise. Clearly, under Rule 17.1(d), the prosecuting attorney is obliged to disclose to defense counsel any material information within the prosecutor’s knowledge, possession or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce any resulting punishment. Here, appellant, not the State, called Dennis Alford as a witness, and there is no indication that appellant had been in any way prejudiced by appellant’s failure to have received Dennis’s prior statement. This court does not reverse for nonprejudicial error. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

Appellant next argues he was denied due process when he was not allowed equal discovery rights to those given the State pursuant to Ark. Stat. Ann. § 43-801 (Repl. 1977) (which authorizes prosecutors to issue subpoenas and administer oaths in all criminal matters they are investigating). Again, appellant specifically complains that the State obtained Dennis Alford’s statement by subpoena, and the State, in its case-in-chief, could have offered that statement as substantive evidence. Because appellant could only obtain Dennis Alford’s statement after he testified on direct, appellant asserts he was denied the “fundamental fairness” required by the due process clause. Appellant cites Wardius v. Oregon, 412 U.S. 470 (1973) in support of his argument.

We note, once again, that the State did not call Dennis Alford as its witness, so appellant’s concern, that Dennis’s statement could be offered as substantive evidence, was unwarranted. Even so, appellant argues, the State was permitted on cross-examination to bolster Dennis Alford’s testimony by using his prior statement. In this respect, appellant’s expressed concern fails to present a situation that entitles him to exercise the same subpoena power as is provided by law to the prosecutor. The Wardius decision does not suggest that the due process clause requires states to adopt discovery procedures in criminal cases, but rather it held that, where a state imposes discovery against a defendant, equivalent rights must be given to a defendant. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). The record before us fails to reflect that the State, by use of its statutory authority to subpoena witnesses, in any way abused that power in an effort to obtain witnesses against the appellant or to secrete their testimony from him before trial. Thus, we see no merit in appellant’s argument.

Finally, appellant contends the trial court erred by denying his request for Officer Williams’s notes made after the State examined Williams at the suppression hearing. The trial court, citing Ark. Stat. Ann. § 43-2011.3 (Repl. 1977), ruled that the appellant was not entitled to the officer’s notes until after Williams testified on direct examination at trial. The State never called Williams as a witness at the trial; thus, even if we could agree to appellant’s interpretation of § 43-2011.3, we fail to see how appellant was prejudiced by his failure to receive Williams’s notes. While appellant contends other State witnesses testified differently than Williams regarding a point he believed showed the appellant was actually in custody during the search of the Alfords’ apartment, appellant was afforded every opportunity to cross examine those witnesses at trial. As stated earlier, we will not reverse for nonprejudicial error. Berna v. State, supra.

We hold the trial court was correct in its rulings on the points raised by appellant. Therefore, we affirm.

       At this point, we reiterate that the Supreme Court in Thompson never actually decided whether the search there could be justified as consensual, but left that question open since it involved a factual determination which the state court was required to decide. Here, the trial court considered and decided the consensual search issue favorably to the State.


author: Per Curiam.

text:
    Gilbert SHOCKLEY v. STATE of Arkansas
    CR 83-149
    724 S.W.2d 156
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Gilbert Shockley was convicted in 1983 of rape, aggravated robbery, burglary and theft of property and sentenced as an habitual offender with three prior felony convictions to two terms of life imprisonment, thirty years and twenty years. The sentences were ordered served consecutively.

Petitioner argued on appeal that the State failed to meet its burden of proving that he had been convicted of three prior felonies. He conceded that the State proved that he had been convicted of robbery in 1975 and burglary and battery in 1977, but noted that pursuant to Ark. Stat. Ann. § 41-1001(3) (Supp. 1983),. a burglary and the object thereof are counted as one conviction. He contended that since the state did not prove that in his case the battery was not the object of the burglary, the State had proved only two prior felony convictions. Because the habitual offender law in effect at the time petitioner committed the crimes in 1982 provided that a defendant had to be convicted of more than two, i.e. at least three, felonies to be an habitual offender, petitioner contended that his sentence was not subject to enhancement. We erroneously said in the opinion rendered on appeal that the trial court should have instructed the jury that the burglary and battery were to be counted as one felony under Ark. Stat. Ann. § 41-1001 (3), but permitted the judgment to stand since the issue had not been raised in the trial court. Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984). Perhaps prompted by our error on appeal, petitioner now seeks relief under Criminal Procedure Rule 37, claiming that his attorneys at trial were ineffective in failing to specifically argue in the trial court that the battery was the object of the burglary.

We find the allegation to be meritless. When the trial court instructed the jury in 1983 that petitioner had been convicted of three prior felonies, it had before it evidence of three prior felony convictions: burglary, battery and robbery. The battery was based upon the shooting of a policeman who responded to a report that the burglary was in progress. Shockley v. State, CR 78-47 (October 30, 1978). The burglary and battery convictions were entirely separate and not subject to being counted as one offense under the habitual offender statute.

Petitioner also alleges that counsel was ineffective for failing to pursue and introduce exonerating evidence. Because he does not state what exonerating evidence existed, the allegation does-not state a ground for postconviction relief. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).

In addition to alleging ineffective assistance of counsel, petitioner also asserts that several errors were made by the trial court. Counsel for petitioner objected to the State’s exercising peremptory challenges to exclude potential black jurors. The objections were overruled and the question was not raised on appeal. Petitioner raises the point for the first time as a ground for relief, but it is well settled that allegations of mere error are not cognizable under Rule 37. Orsini v. State, 287 Ark. 456, 701 S.W.2d 114 (1985). When an issue was raised at trial but not argued as a point for reversal on appeal, it has been waived unless it presents a question so fundamental as to render the judgment of conviction absolutely void. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). A ground sufficient to void a conviction is one so basic that the judgment is a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). The burden is on the petitioner to demonstrate that the judgment in his case is void. Petitioner has not demonstrated that the State systematically excluded black jurors; moreover, the issue is not one sufficient to void his conviction.

Petitioner next alleges that the trial court erred by not excusing a venireman for cause because of the venireman’s association with the prosecutor. The record, however, does not indicate that there was a request that the venireman be excused.

Petitioner argues that there was insufficient evidence to convict him. A challenge to the sufficiency of the evidence constitutes a direct, rather than a collateral, attack on the judgment and must be made at trial and on direct appeal. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Rule 37 was not designed to challenge the weight or sufficiency of evidence.

Finally, petitioner asserts that the procedures whereby the victim identified him as her assailant were unduly suggestive. The question of identification procedures is one which could have been addressed to the trial court. As an evidentiary question is not an issue sufficient to void a conviction, the admissibility of the identification evidence will not be considered under our postconviction rule. Collins v. State, supra.

Petition denied.


text:
    Jerry Ray WILLIAMS v. STATE of Arkansas
    CR 86-207
    724 S.W.2d 158
    Supreme Court of Arkansas
    Opinion delivered February 16, 1987

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jerry Ray Williams pleaded guilty in July 1983 to burglary and theft of property. He was sentenced to a term of twenty years imprisonment with ten years suspended. In 1984, he filed a petition to withdraw the plea pursuant to Criminal Procedure Rule 37 on the grounds that he was not sane when the plea was entered and that counsel was ineffective for not investigating whether insanity was a defense to the charges against him. Appellant was subsequently permitted by the court to withdraw the petition. In August 1986, petitioner filed a petition to correct illegal sentence pursuant to Ark. Stat. Ann. § 43-2314 (Supp. 1985). He again alleged that he had been incompetent. The court treated the petition as a second petition for postconviction relief and denied it.

After the elapse of 120 days from the date of judgment, Ark. Stat. Ann. § 43-2314 (Supp. 1985) provides a remedy only when a sentence is illegal on its face. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). There was nothing presented by appellant to demonstrate that his sentence was illegal. Since appellant stated no ground for relief within the purview of the statute, the trial court could have denied the petition on that ground. The trial court, however, did not choose to treat the petition under Ark. Stat. Ann. § 43-2314. Instead, the trial court denied the petition on the ground that petitioner had already filed a petition for postconviction relief and further that the second petition was not filed within three years of the date of commitment.

It may be assumed that the court had reference to Rule 37.2(c) which provides that all grounds for relief must be raised within three years of commitment, unless some ground would render the judgment absolutely void. It appears from the record that appellant pleaded guilty in July 1983, but the judgment was not entered of record until August 25, 1983. Therefore, the petition filed on August 14, 1986 was filed within three years.

The trial court may treat a petition which raises Rule 3 7 grounds as a petition under the rule regardless of the label placed on it by the petitioner, see Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); but once the trial court treats the petition as a Rule 37 petition, it will be considered as such by this court on appeal. As the petition here was not untimely, we find that appellant is entitled to appointment of counsel. Jerry Cavaneau is appointed counsel on this appeal.

This case provides an illustration of the similarities and differences between the provisions of Ark. Stat. Ann. § 43-2314 (Supp. 1985) and Criminal Procedure Rule 37. Both remedies permit correction of an illegal sentence, but under § 43-2314 the petition for relief is always filed directly in the trial court even if the judgment has been affirmed on appeal. Under Rule 37, a petitioner whose judgment has been affirmed must be granted permission from this court before he can file a petition in circuit court. Where there has been no appeal, the petitioner may of course proceed directly in circuit court without seeking this court’s permission.

The time period in which relief may be sought represents another difference between the two remedies. A petition pursuant to Criminal Procedure Rule 37 must be filed within three years of the date of commitment, unless some ground for relief would render the judgment of conviction absolutely void. Rule 37.2(c). Ark. Stat. Ann. § 43-2314 will permit a petition to correct an illegal sentence at any time. We have construed an “illegal sentence” to be a sentence illegal on its face. Abdullah v. State, supra. The statute is not available to correct a sentence if the sentence was imposed before the statute became law in 1983. Abdullah v. State, supra. A sentence which was imposed in an illegal manner may be corrected within 120 days after it was imposed or within 120 days of receipt by the circuit court of a mandate issued upon affirmance of the judgment or dismissal of the appeal or within 120 days after the entry of any order or judgment of this court or the Court of Appeals denying review of, or having the effect of upholding, the judgment. Rule 37 offers a remedy within three years of the date of commitment regardless of when the sentence was imposed, or at any time if there is a ground to void the judgment absolutely.

Despite the overlapping provisions of Rule 37 and the statute, the rule and statute are separate. Circuit judges are not required to consider a petition filed under the statute as a petition under Rule 37. If the trial court concludes that the petitioner has simply mislabeled the petition, it may treat the petition as a Rule 37 petition regardless of the title given it by the petitioner. If the trial court chooses to treat a motion labeled a motion to correct illegal sentence under Ark. Stat. Ann. § 43-2314 as a Rule 37 petition, the court should so state in its order to prevent confusion. See Walker v. State, supra.

Motion granted.


text:
    Kenneth Roland WALKER v. STATE of Arkansas
    CR 87-4
    724 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered February 20, 1987

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner, Kenneth Roland Walker, filed with this court on January 9,1987, a petition for permission to proceed pursuant to Ark. R. Crim. P. 37. He claimed in part in his petition, that his trial counsel failed to communicate a plea bargain offer from the prosecuting attorney.

On January 26, 1987, this court directed the attorney general to furnish us with an affidavit from the prosecuting attorney on the matters pertaining to plea negotiations with Walker’s trial attorney. This has not been done.

Accordingly, we remand this petition to the trial court for a hearing on this issue only.


author: Jack Holt, Jr., Chief Justice.

text:
    Raphael JOHNSON, Ida JOHNSON, and Robert JOHNSON v. STATE of Arkansas
    CR 86-159
    724 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987
    [Rehearing denied March 23, 1987.]

      Stephen E. James, P.A., for appellants.

      Steve Clark, Att’y Gen., by; J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Raphael, Ida and Robert Johnson seek reversal of their convictions for manufacturing marijuana because of the admission into evidence at trial of marijuana they contend was illegally seized from their property. The Johnsons also contend that they were prejudiced by the police’s pretrial handling and disposal of the marijuana. We find no merit in the Johnsons’ arguments and affirm.

Police testified at a suppression hearing and later at trial that the discovery and subsequent seizure of marijuana on the Johnsons’ property occurred in the following manner. Following an informant’s tip that marijuana was being grown on the ten acres surrounding the Johnsons’ residence, the police planned a helicopter inspection of the property. Prior to the arrival of the helicopter, two law enforcement officers were driving by the property on a public road and spotted Raphael Johnson carrying seven stalks of marijuana cradled in his arms. The officers said they were driving 15 to 20 miles per hour and that Raphael was only 25 to 30 feet away. Raphael began walking faster toward a barn after he realized he had been seen. The officers then drove onto the property, followed Raphael on foot through the barn, and arrested him, now empty-handed, about 50 yards behind the barn.

After Raphael was arrested, the officers heard a tractor start up and turned to see Raphael’s son, Robert Johnson, 50 to 75 yards away, mowing down what looked like marijuana plants. Robert was also arrested.

The officers testified that the Johnsons orally consented to a search of the premises at that time, although the testimony as to which officer received the consent was unclear and the Johnsons denied consenting. The Johnsons were taken to the police station where Raphael signed a permission to search form. The space on the form for the property location was left blank. According to the officers, 1015 marijuana plants, including the seven stalks found in the barn, were seized after the consent form was signed. Random samples were saved for testing and the remainder was burned without a court order.

The trial court ruled that the state could introduce all evidence of the marijuana found in the barn and growing on the property, including police testimony, photographs, and the samples which tested positive for marijuana, but excluded any evidence found in an accompanying search of the Johnsons’ house and vehicles. Raphael was sentenced to four years imprisonment and fined $10,000; Robert was sentenced to ten years and fined $5,000; and Ida Johnson was fined $2,000. The trial court’s rulings were correct.

All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. Coolidge v. New Hampshire, 403 U.S. 443 (1971). The Johnsons contend that the search was invalid because the police had no warrant and no exception to the warrant requirement applies. We disagree. The officers witnessed Raphael Johnson carrying seven freshly-cut marijuana stalks across his yard, clearly giving them reasonable cause to believe he was committing a felony and thereby authorized them to arrest Johnson without a warrant. A.R.Cr.P. Rule 4.1 (a) (i). At that time, the officers were on a public road and Johnson was in public view, making it permissible to enter the premises and pursue him to make the arrest. United States v. Santana, 427 U.S. 38 (1976).

From the vantage point where Raphael Johnson was arrested, the growing marijuana was clearly visible to the officers. The observation of evidence in plain view is not a search and therefore the resulting seizure is not the result of an unreasonable search. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977); A.R.Cr.P. Rule 14.4. “The basic test is whether the officer had a right to be in the position he was when the objects fell into his plain view.” Kelley, supra. The officers obviously had a right to be on the public road, and, as stated, had a right to enter the property to make the arrest, bringing the marijuana into view.

The Johnsons argue that this situation does not satisfy the plain view exception’s three-prong test. That test permits the admission of seized evidence only when 1) the initial intrusion was lawful, 2) the discovery of the evidence was inadvertent, and 3) the incriminating nature of the evidence was immediately apparent. McQueen v. State, 283 Ark. 282, 675 S.W.2d 358 (1984); Coolidge, supra. The Johnsons question the inadvertence of the police discovery, since the officers were setting up a surveillance for marijuana when Raphael was spotted. Regardless of why the police were driving by the property, however, no intrusion at all had occurred before the marijuana was first seen. To hold that police cannot seize marijuana that is in plain view from the highway and later after they have made unquestionably valid arrests would place too much emphasis on the inadvertence requirement.

The real concern expressed in Coolidge was with “a planned warrantless seizure.” Id., at p. 471, fn. 27. The inadvertence requirement has generally been interpreted to mean that “immediately prior to the discovery, the police lacked sufficient information to establish probable cause to obtain a warrant to search for the object.” State v. Cote, 126 N.H. 514, 493 A.2d 1170 (1985); LaFave, Search and Seizure, § 6.7(c) (2d ed. 1987). Inadvertence does not “encompass total surprise” or mean “unexpected.” State v. McCurry, 587 S.W.2d 337 (Mo. App. 1979); State v. Preston, 583 S.W.2d 577 (Mo. App. 1979). It is absurd to believe that the officers planned in advance to see Johnson walking on this property near the highway carrying an armful of marijuana, use that as a pretext to follow him onto the premises to make the arrest, and at that time seize the marijuana they expected to find there. The fact that the officers had an informant’s tip that marijuana could be growing there does not make the sighting of the marijuana “advertent” in these circumstances.

The Johnsons contend that they did not consent to the search of their property. The state concedes that the consent to the search in this case was questionable. Because we hold the seizure of the marijuana was justified on other grounds, however, we need not reach this issue.

The Johnsons also assert a variety of violations by the police in the pretrial handling of the evidence which they contend prejudiced their ability to defend themselves and made the evidence unreliable. Granted, the police violated A.R.Cr.P. Rule 15 by destroying all the marijuana except that saved for testing without first obtaining a court order and making a full report of the circumstances of the seizure and a list of the items seized. To exclude evidence because of a violation of our rules, however, the violation must be “substantial.” A.R.Cr.P. Rule 16.2(e). The Johnsons argue this violation was substantial because it prejudiced their ability to defend themselves by denying them the opportunity to examine the plants destroyed to determine their character and quality. The character and quality of the plants would make no difference in a conviction for manufacturing marijuana, when, as here, photographs, officers’ testimony and test samples showed overwhelmingly that the plants seized were marijuana. The Johnsons also argue that the police improperly commingled the marijuana found in the barn and the plants growing on the property. Since all the marijuana was properly admissible, there was likewise no prejudice here.

Finally, the Johnsons contest the chain of custody demonstrated for one of the marijuana samples. The officer who sent the bag of marijuana to the lab testified that he marked and taped the bag before it went to the lab and that it returned as marked after testing. The Johnsons’ complaint is that the officer did not record the number assigned to the bag until the submission sheet was made after the return of the evidence from the lab. No evidence of tampering, suspicious circumstances or break in the chain of custody was shown by the Johnsons. It is not necessary that every possibility of tampering be eliminated, but only that the trial judge, in his discretion, is satisfied that the evidence presented is genuine and, in all reasonable probability, has not been tampered with. Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979). The judge did not abuse his discretion in this regard.

Affirmed.


author: John I. Purtle, Justice.

text:
    Horace PROCTOR v. EAST CENTRAL ARKANSAS EOC
    86-153
    724 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Fletcher Long, Jr., P.A., by: Fletcher Long, Jr., for appellant.

      B. Michael Easley, for appellee.
   John I. Purtle, Justice.

This case was certified from the Court of Appeals pursuant to Arkansas Supreme Court Rule 29(4) (b). This action commenced when the appellant filed suit in the St. Francis County Circuit Court to force the appellee to rehire him. The appellee had previously terminated the appellant’s employment when the federal funds for his position were eliminated. The trial court held that the appellant did not have a right to be reemployed and dismissed the complaint. On appeal the appellant argues that the “Personnel Policies and Procedures Manual” of his employer created a contractual right to reemployment. We hold that the policies manual did not guarantee the appellant the right to be reemployed by the appellee.

The disposition of the case is controlled by the relationship between the parties as established by the “Personnel Policies and Procedures Manual.” We consider only the relevant portions of the manual. It is not disputed that the lay-off of the appellant was due to reduction of funds and was in accordance with the provisions of the appellee’s manual. The reemployment and recall provisions of the manual are the underlying basis of this action. The manual provides that lay-offs and recalls will be determined by: (1) performance, (2) capability and (3) seniority.

We still follow the common-law rule that when an employment agreement does not bind the employee to serve for a specified period of time, the employment may be terminated at will by either party. Jackson v. Kinark Corporation, 282 Ark. 548, 669 S.W.2d 898 (1984). In the absence of a public policy exception, there is no cause of action when the employment relationship is terminated by either party unless the parties have contracted otherwise. Jackson v. Kinark Corporation, supra. In the above case the employee brought a contract action alleging wrongful discharge and a tort action. He relied upon a printed “Employee Handbook” which described certain details and conditions of employment. The trial court granted summary judgment in favor of the employer on the contract claim and we reversed on appeal. We held that the trial court should have considered the “Employee Handbook” in reaching its decision. We stated: “We will be in a position to fully consider that trend only after the facts in this case, have been definitely determined.” In the present case the trial court considered the handbook and determined that the appellant did not prove that the employer had breached the terms of the handbook. The trial court also found that the manual did not create a binding contract between the parties.

In the case of Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982), the terminated employee relied upon the terms of a “Statement of Management Policy Handbook” to prove that he was wrongfully discharged. The employer defended the action on the ground that the manual did not apply to Erickson. In our opinion we stated: “Without belaboring the point, we are satisfied the SMP [manual] applied to John Erickson but we believe there was substantial compliance with its requirements and the hearings conducted by Lloyd and McMullen were sufficient.”

We reviewed another wrongful discharge case based upon the provision of an employer handbook or manual in Bryant v. Southern Screw Machine Products Company, Inc., 288 Ark. 602, 707 S.W.2d 321 (1986). There the trial court entered a judgment notwithstanding the verdict against the employee and we affirmed. In so doing we stated: “There was nothing in the handbook assuring any employee that he or she would be employed for a particular length of time or would be discharged only for cause. Hence, this is not the type of case we had in mind in Jackson v. Kinark Corp."

Absent a valid contract the only other theory to allow recovery for an aggrieved employee would be based upon public policy considerations. We have addressed this issue in M.B.M. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), where we stated:

We might well agree with Ms. Counce if there was any indication that she was discharged for exercising a statutory right, or for performing a duty required of her by law, or that the reason for the discharge was in violation of some other well established public policy. This is simply not the case.

Although all the previously cited cases have dealt with “wrongful discharge” we see no reason why the present claim for “reinstatement” should not be governed by the same principles because this case is also based upon the interpretation of an employer handbook. The trial court fully considered the personnel manual before granting judgment in favor of the employer. Whether an employment manual or handbook creates an employment contract is a question which must be determined on a case by case basis.

The facts of this case reveal there was no contract for a definite period of time, nor was there a certain period of time or specific condition which would require reinstatement. The record indicates the funding source for appellant’s job was not renewed. Most importantly, the employer did call the appellant in for several interviews as other positions became available. The terms of the handbook, even if binding between the parties, allowed the employer considerable discretion in employment and reemployment decisions. We cannot say that the trial court was wrong in finding that the appellant had no enforceable right to reemployment under the facts as developed at the trial.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jeffery Hugh FRENSLEY v. STATE of Arkansas
    CR 86-182
    724 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      John W. Settle, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury found appellant guilty of one count of aggravated robbery and five counts of kidnapping. He appeals from the judgments of conviction. We affirm.

Appellant’s first two points of appeal are that the trial court erred in refusing to suppress the identification of appellant because (a) the pre-trial lineups were suggestive, and (b) the photo spread was unduly suggestive. The trial judge examined the out-of-court identification procedures to see if there were suggestive elements to either the lineup or the photo spread which made it all but inevitable that the victims would identify appellant as the perpetrator of the crimes. This preliminary ruling was a ruling on a mixed question of law and fact, and we do not reverse the ruling unless it is clearly erroneous. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). Factors to be considered in lineup identification cases are set out in both federal and state law. See Manson v. Brathwaite, 432 U.S. 98 (1977); Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984). These factors include the opportunity of the victim to observe the crime and its perpetrators; the lapse of time between the crime and the lineup; discrepancies between descriptions given the police and the defendant’s true physical characteristics; the occurrence of pretrial misidentification; the certainty of the witnesses in identifying the accused; and the totality of the facts and circumstances regarding the identification.

In this case the opportunity to observe the criminal was great. Some of the victims observed him at close range for more than an hour in a well lit room. Four of them viewed the lineup within five weeks and made positive identification. The fifth victim viewed the photographic spread five months after the commission of the crimes and made a positive identification. The descriptions by all five of the victims may be fairly said to be reasonably accurate, although they do vary. These descriptions were given immediately after the robbery. There was no misidentification and the victims were certain that appellant was the culprit. Finally, the totality of the circumstances shows that the lineup was not unduly suggestive.

Appellant contends that the lineup was tainted because the five victims discussed among themselves the description of the perpetrator, that they knew a suspect was in custody when they made their identifications, that there were discrepancies in the descriptions, and that one of the five victims knew that another victim had already identified someone. These credibility factors, when considered in the totality of the circumstances, are not sufficient to make the trial court’s ruling clearly erroneous. As we have frequently said, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985).

The photographic spread contained five pictures. Each was of a white male with a mustache and beard, each one fitting the general physical description and age of appellant. None of the photographs suggested appellant as the criminal, and none of the testimony at the pre-trial hearing suggested that the police attempted to influence the victim’s identification.

Appellant’s next assignment of error concerns the trial court’s requiring his presence at the in-court identification hearing. Obviously, he did not want to be identified. His attorney waived any constitutional objections which might arise because of his proposed absence. The trial court declined the motion and ordered the appellant to be present so that he could be observed. The ruling was correct. While we are unable to find an Arkansas case precisely in point, the issue is not new or novel in other jurisdictions. In fact, it is the subject of an A.L.R. Annotation. See Annot., 171 A.L.R. 1144 (1974), and see in particular, §§ II.a.3. and II.b.2. The annotation cites numerous federal and state authorities holding that a defendant in a felony case has the duty of attending his own trial by being personally present in the courtroom within view of the judge and jury. Among the cases cited is People v. Gardner, 144 N.Y. 119, 38 N.E. 1003 (1894), in which the court wrote: “it is the right of the prisoner to be in the presence and view of the jury, and it is the right of the prosecution to have him in the view of the presiding judge and jury and the counsel engaged in the trial.” No contra holdings are listed.

The annotation provides:

It would seem that requiring a defendant in a criminal case to attend his own trial and be present in the courtroom, within view of the court and jury, and of witnesses testifying in the case, could not in any sense be considered violative of the defendant’s constitutional privileges. Note this relevant comment by Professor Wigmore: “If an accused person were to refuse to be removed from the jail to the courtroom for trial, claiming that he was privileged not to expose his features to the witnesses for identification, it is not difficult to conceive the judicial reception which would be given to such a claim. And yet no less a claim is the logical consequence of the argument that has been frequently offered and occasionally sanctioned in applying the privilege to proof of the bodily features of the accused.” 8 Wigmore, Evidence 3d ed. p. 374, § 2265.

Accordingly, the trial court did not commit error in requiring the appellant to be present for in-court identification.

The appellant next contends that the trial court erred in admitting into evidence the testimony about his arrest and the items which were seized at the time of the his arrest. Again, the trial court was correct in its ruling because the evidence showed a plan of criminal operation, or modus operandi. It had independent relevance. See Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954).

The evidence showed that appellant was a former employee of one of the Long John Silver’s restaurants in Tennessee. In the case at bar, he committed the. robbery and kidnappings by entering the Long John Silver’s restaurant in Fort Smith at about 10:00 p.m. He sat in a particular seat, labeled the “hot seat” by the employees, because it was where would-be robbers always sat. He ordered a meal but did not eat it. He went into the restroom for about thirty minutes, came back to the “hot seat,” pulled a dark .38 caliber revolver, and announced he was there to commit a robbery. By this time he had on brown jersey work gloves. He pulled some tape from his pocket, with the tape bound the hands of four of the employees behind their backs, and made them lie on the floor. He then forced the fifth employee to give him the money, bound him with tape, made him lie on top of the other four employees and left them all bound and on the floor. After finally getting loose, all of the victims immediately made written notes describing the robber’s physical appearance. In the following week three of the victims worked with a police artist to compile a composite sketch of the robber. Jerrico, Incorporated, the parent company of Long John Silver’s, included the sketch on a flyer which was sent to all Long John Silver’s restaurants. The flyer included the following information:

The police sketch below is of a suspect wanted in connection with the armed robbery of Long John Silvers #5141 in Little Rock, Arkansas. The suspect is described as being a white male, 28 to 30 years old, 5’8” to 5’10” tall and weighing 190 to 200 pounds. He has dark curly hair covering his ears with a full beard and mustache. He could be wearing or carrying a jacket and could have brown cotton work gloves. The suspect has been known to enter the unit the last hour of business, order a meal and wait until closing to rob the employees. The suspect brings his own grey duct tape to tie up the victims and displays a small dark revolver. The suspect is wanted in connection with other robberies in the east Texas, Arkansas and Oklahoma area. If this person is observed please call the local police and advise them that a possible robbery suspect is in the building and notify the Jerrico Corporate Security Dept, at 1-800-354-9058 24 hours a day.

About a month later a man matching the above description walked into the Long John Silver’s restaurant in Muskogee, Oklahoma just before closing time, sat in the “hot seat,” ordered a meal, and then went into the restroom. The employees recognized appellant from the sketch on the flyer and realized they were about to be robbed. One of the employees called the police. While the police were responding and while appellant was still in the bathroom, one of the employees looked in appellant’s jacket, which was in the “hot seat,” and found a dark revolver, brown jersey work gloves, and a roll of tape. The police arrived shortly and arrested appellant. They seized the jacket, tape, gun, gloves, and a knife with tape residue on the blade. These items were admitted into evidence.

The evidence is independently relevant to show the appellant’s method of operation. There are two requirements for introducing such evidence: (1) both acts must be committed with the same or strikingly similar methodology; and (2) the methodology must be so unique that both acts can be attributed to one individual. Imwinkelreid, Uncharged Misconduct Evidence, § 3.10 to 3.12 (1984). The methodologies in the instant case resemble each other so much that it is reasonable to deduce that the same person who was arrested in Muskogee committed the robbery in Fort Smith. Further, the methodology uniquely sets apart and identifies appellant as the robber. The similarities include the robbery of Long John Silver’s restaurants, the time of entry, the place of seating, the long stay in the restroom, the knowledge of the layout of the restaurants, the use of a dark colored revolver, the use of tape, the wearing of brown jersey work gloves, and the physical appearance of the robber. Both actions were committed in the same unique fashion. Further, the two acts were so unique and uncommon that they became distinctive and identifying. The two acts establish a method of operation. The inference is clear, there were not two different robbers. The evidence was properly admitted.

The next point of appeal may be dispensed with quickly. Appellant contends that the trial court erred in refusing to grant a mistrial after a policeman violated an in limine ruling by truthfully answering a question by appellant’s counsel during cross-examination. The argument is without merit because (1) when the appellant injects a matter into a case by questions on cross-examination, he cannot complain about what develops, Stovall v. State, 233 Ark. 597, 346 S.W.2d 212 (1961), and (2) the granting of a motion in limine to prevent certain testimony does not require a witness to conceal the truth in order to answer a question propounded by the party who moved for the threshold order. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982).

Finally, appellant contends that the kidnapping offenses were lesser included offenses of the aggravated robbery charge. Ark. Stat. Ann. § 41-105 (Repl. 1977). The argument is without merit. Where the restraint exceeds that which necessarily accompanies the crime of aggravated robbery, the robber is also subject to prosecution for kidnapping. See Ark. Stat. Ann. § 41-1702 and paragraph three of the comment; see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Here, the restraint was greater than normally incidental to aggravated robbery, so the appellant was subject to prosecution for kidnapping.

Affirmed.


text:
    Amanda KILCREASE v. Dr. James BUTLER, M.D.
    86-173
    724 S.W.2d 169
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Ben Core and Jan West Whitt, for appellee.
   Steele Hays, Justice.

Amanda Kilcrease brought suit against Drs. Roy Gene Girkin, Dennis R. Fecher and James Butler for the wrongful death of her husband, allegedly caused by medical malpractice.

Dr. Butler moved for the dismissal of the complaint as to him under ARCP Rule 12(b). The circuit court granted the motion and Mrs. Kilcrease has appealed. We dismiss the appeal for the lack of an appealable order, a jurisdictional requirement we are obliged to raise even when the parties do not. Arkansas Savings and Loan v. Corning Savings and Loan Association, 252 Ark. 264, 478 S.W.2d 431 (1972).

This is yet another attempt to appeal from an order dismissing one defendant when other defendants remain and ARCP Rule 54(b) is not complied with. We have issued numerous reminders that the rules of civil procedure do not permit an appeal in such cases except in accordance with Rule 54(b). Arkhola Sand & Gravel Co. v. Hutchinson, 289 Ark. 313, 711 S.W.2d 474 (1986); Sherman v. G & H Transportation, Inc., 287 Ark. 25, 695 S.W.2d 832 (1985); Tulio v. Arkansas Blue Cross and Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984); 3-W Lumber Co. v. Housing Authority of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985); Vermeer Manufacturing Co. v. Vandiver Equipment Co. and Ford Motor Co., 279 Ark. 248, 650 S.W.2d 244 (1983). That was not done in this case and the order is not appealable. ARAP Rule 2.

Appeal dismissed without prejudice to an appeal from a final judgment.


text:
    Luetta EARL and Charles EARL by Luetta EARL, his Mother and Next Friend v. MOSLER SAFE COMPANY, Paul ROWLAN and Wanda NAVEN
    86-188
    724 S.W.2d 174
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Michael A. Skipper, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   David Newbern, Justice.

The question we must answer in this case is whether a summary judgment was properly granted. We hold that, because there were remaining material issues of fact, it was error to grant the summary judgment motion.

On October 25, 1985, Luetta Earl, on behalf of herself and her son, Charles Earl, aged two, filed a complaint against Paul Rowlan, his employer Mosler Safe Company, and Wanda Naven, the appellees. The complaint alleged that Charles was injured while riding in Naven’s car which was struck from the rear by Mosler’s truck being driven by Rowlan. Damages were sought on behalf of Charles, who was severely injured, and on behalf of Luetta Earl for loss of Charles’s “services, contributions, and mental anguish.” The complaint was amended once on October 30,1985, and the Mosler Safe Company and Paul Rowlan filed an answer on November 7, 1985.

The answer denied the allegations that Rowlan was negligent, challenged the complaint on the basis of all the defenses listed in Ark. R. Civ. P. 12, particularly 12(b)(6), and alleged Luetta Earl was not a proper party because at the time of the accident Charles was not in her custody but was in the custody of Garland County Social Services.

On December 20,1985, the court dismissed those portions of the complaint seeking damages on behalf of Charles Earl finding, due to the appointment of a bank as guardian of Charles’s estate, Luetta Earl was no longer a proper person to sue on his behalf.

On March 7,1986, Mosler Safe Company and Paul Rowlan filed their motion for summary judgment. They contended that Charles’s medical expenses had been paid by Medicaid and that at age two Charles had demonstrated no capacity or intention ever to render services of value to his mother who was not even his custodian. Appended to the motion was an exhibit consisting of a letter to counsel for the appellees from Arkansas Department of Human Services stating that to date (February 26, 1986), over $10,000 in Medicaid benefits had been provided to Charles Earl as a result of the accident.

The appellants filed a second amended complaint on March 17, 1986, and a response to the summary judgment motion on March 20,1986. The response to the motion pointed out that the motion consisted only of conclusory statements that Charles Earl was a ward of the state at the time of the accident, that Luetta Earl had incurred no expense for his injuries, that mental anguish is not an allowable element of damages, and that Charles Earl had demonstrated neither capacity nor intent to render services valuable to his mother.

On April 3,1986, summary judgment was granted to Mosler Safe Company and Paul Rowlan. The court recited that Luetta Earl had sustained no expenses and Charles Earl had demonstrated neither the capacity nor intent to render services of value to her. This summary judgment left extant the claim of Luetta Earl against Wanda Naven, as Naven was not a party to the motion. The final paragraph of the court’s order granting summary judgment was:

It is adjudged that Plaintiff has suffered no damage and the Complaint is dismissed without prejudice.

On April 14, 1986, the court ordered entry of a voluntary nonsuit on the part of Luetta Earl with respect to the second amended complaint. The appellees argue this nonsuit eliminates the issues on appeal. We disagree because we find it could only have related to Luetta Earl’s claim against Wanda Naven, as the other two defendants, appellees Mosler Safe Company and Paul Rowlan, had already obtained summary judgment in their favor, thus the voluntary nonsuit was of no effect with respect to the claims against them.

Left standing is the court’s adjudication that Luetta Earl “has suffered no damage.” The dismissal of the complaint “without prejudice” in the summary judgment order in favor of Mosler Safe Company and Paul Rowlan suggests that if in the future Luetta Earl suffers “damage” she may renew her claim.

The motion for summary judgment was conclusory with respect to Luetta Earl’s claim for loss of her child’s services. No affidavits tending to support the conclusion that Charles would not have contributed his services to her are contained in the record before us.

In Lopez v. Waldrum, 249 Ark. 558, 460 S.W.2d 61 (1970), we distinguished between the action a child has for his own injury and the action which may be brought by his parent. We said:

On the other hand, an unemancipated minor child’s earnings during minority are the property of the parents. St. L.I.M. & S.R. Co. v. Waren, [65 Ark. 619, 48 S.W. 222 (1898)]; Jolly v. Smith, 188 Ark. 446, 65 S.W.2d 908 [1933]. A parent is also entitled to recover for the value of the minor’s services and loss of such a minor’s earning capacity during minority and for expenses incurred and to be incurred by the parent on account of an injury to the child. Arkansas Power & Light Co. v. Connelly, 185 Ark. 693, 49 S.W.2d 387 [1932]; Western Coal & Mining Co. v. Burns, 84 Ark. 74, 104 S.W. 535 [1909]; Byrd v. Galbraith, 172 Ark. 219, 288 S.W. 717 [1926], [249 Ark. at 563; 460 S.W.2d at 64-65]

While it is clear that summary judgment may be an appropriate disposition of a defective complaint, Joey Brown Interest, Inc. v. Merchants National Bank, 284 Ark. 418, 683 S.W.2d 601 (1985), we find no defect in the complaint of this appellant. The fact that the child was only two years old and thus not sufficiently developed at the time of the accident to have demonstrated capacity and inclination to be of service to his mother during his minority is no bar to her claim. See AP&L v. Connelly, 185 Ark. 693, 49 S.W.2d 387 (1932).

To sustain a summary judgment based upon nothing other than a pleading and an exhibit which does not go to the issue at hand, we must find that the “pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ark. R. Civ. P. 56(c); See Clemans v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985). We can make no such findings here.

Reversed and remanded.