author:
Robert L. Brown, Justice.
      Robert H. Dudley, Justice,

text:
    Stacey JOHNSON v. STATE of Arkansas
    CR 95-427
    934 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Richard Hutto and Mary Ellen Vandegrift, Arkansas Public Defender Comm’n, by: Deborah R. Sailings, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Stacey Johnson appeals his conviction for capital murder and his sentence of death by lethal injection. He raises multiple bases for reversal, including an assertion that his identification in a photo lineup by the victim’s six-year-old daughter was inadmissible hearsay. We agree and reverse the judgment of conviction and remand for a new trial.

Carol Heath was brutally murdered in her duplex apartment in DeQueen on either the night of April 1, 1993, or the early morning hours of April 2, 1993. She was beaten, strangled, and had her throat slit while her two young children, Ashley, age six, and Jonathan, age two, were home. The facts regarding the murder and its aftermath are gleaned from pretrial and trial testimony. At approximately 6:45 a.m. on April 2, 1993, Rose Cassidy, the victim’s sister-in-law, knocked on the victim’s door but did not receive an answer. Because the door was unlocked, she entered and found Carol Heath’s partially nude body lying on the living room floor in a pool of blood. She ran across the street to call the police and then returned to check on her niece (Ashley) and nephew (Jonathan), whom she saw looking out the bedroom window. Cassidy testified that she asked Ashley what had happened. Ashley responded, according to Cassidy: “[S]omebody had broke in, and I said who, and she (Ashley) said a [bjlack man.” The victim was white.

Sergeant Keith Tucker of the DeQueen Police Department testified that he found Carol Heath’s body nude except for a t-shirt that had been pushed up around her neck. He stated that her body was located between a couch which was tilted up on its back legs and a coffee table which had apparently been moved toward the middle of the room. DeQueen Chief of Police James Smith arrived at the apartment later. He testified that when he pulled the t-shirt away from the victim’s neck, he saw that her throat had been slashed.

Dr. Frank Peretti, an associate medical examiner for the State Crime Laboratory, testified that Carol Heath’s death was caused by cutting her neck, strangulation, and blunt-force head injuries. He stated that her attacker left a four-inch by two-inch cut wound on her neck that went one-quarter inch into her spine. He observed that she had several bruises and abrasions on her head and face, that she had injuries on her hands and arms consistent with defensive wounds, that she had a bite mark on the nipple of her right breast and an abrasion on her left breast, and that there was a one-quarter-inch contusion on her right labia minora. Dr. Peretti could not conclude, based on the physical evidence, that she had been either sexually assaulted or raped.

Officer James Behling, a criminal investigator with the De-Queen Police Department, testified that he observed a pair of panties next to Carol Heath’s right thigh. He noted an area of lighter-colored liquid between and around the legs and below the genital area of the victim. An empty douche botde and an empty “Lifestyles” condom box were found in the bathroom sink.

On April 5, 1993, Kenneth Bryan found a purse in the woods between DeQueen and Horatio which he later realized belonged to the victim. He took Officer Behling to the location. Officer Behling examined the area and found a bloody pullover green shirt, a bloody white t-shirt, and a bloody towel. Lisa Sakevicius, an expert with the State Crime Laboratory’s trace evidence section, testified that hairs microscopically similar to the victim’s hair were found on all three of these items. She further testified that hairs retrieved from under the victim’s left breast, from the floor by the victim, and from the white t-shirt were of Negroid origin. Jane Parsons, a forensic serologist, testified for the State that no semen was found in connection with the victim. She admitted that the finding of semen would be unlikely, if the perpetrator used a condom and douched the victim.

DNA evidence was introduced at trial. Melisa Weber, a staff molecular biologist at Cellmark Diagnostics, conducted a Restriction Fragment Length Polymorphism [RFLP] test on the green shirt for the State and testified that to a reasonable degree of scientific certainty the blood matched that of Carol Heath. She also conducted a Polymerase Chain Reaction [PCR] test on several items, including the white t-shirt found in the park, a cigarette butt found in the green shirt, and hairs taken from the body of Carol Heath and near to where the body was located. With respect to the white t-shirt, Weber testified that the victim could not be excluded as the source of the blood and that the probability of this DNA having come from another Caucasian was 1 in 12,000. With respect to the cigarette butt and hairs, Weber opined that Johnson could not be excluded and that the probability that another African-American was the donor of the DNA in question was 1 in 250.

Officer Hayes McWhirter, an investigator with the Arkansas State Police, talked with the victim’s daughter, Ashley Heath, on the afternoon of April 2, 1993. Also present at the time was Cynthia Emerson, a supervisor with the Department of Human Services. Officer McWhirter made the following notes from that conversation and used these notes to refer to when he testified at the pretrial hearings and at trial:

Ashley stated her mother and I were on the couch when someone knocked on the door. She got up and opened the door. The picture No. 3, Stacey Johnson, is the one that came in the door. Ashley looked at six different pictures of black males. Mother likes Branson. He works at In Your Ear. The Black male asked where Branson was. The black male used a girl sounding name. He had on a black hat with something hanging down in the back. He had on a green shirt and sweater. When they were talking, the black male said he had just got out of jail. The black male was mad at mother for dating Branson. He had been over two other times, but it was a while or a long time ago. The black male had about as much hair as [McWhirter.] I saw them fighting. Then I saw mother laying on the floor. I saw the black male leave and he got up and he got in a brown truck, I think. I saw a knife and a gun. The brown truck was parked beside the house. Mother looked out the window. When he knocked, then she let him in. While mother was laying on the floor, the black male walked into the bath room. We were hiding in the closet. I came out the door to the bath room and the black male had a knife in his hand beside mommy. She was on the floor bleeding. After he left, I went in and saw momma bleeding. Jonathan looked at mommy twice. She was covered in blood. We went to bed and then this morning when someone knocked on the door, I was scared to open the door. When Rose screamed, I knew she saw mommy with blood all over her. Every time I saw the black male, he had clothes on.

Officer McWhirter testified that he handed Ashley a stack of seven photographs, and she picked Johnson out of the photo lineup twice. Johnson was subsequently arrested in Albuquerque, New Mexico.

Prior to trial, the trial court found Ashley incompetent to testify due to psychological trauma and, thus, unavailable. That finding is not an issue in this appeal. Johnson then moved in limine to exclude all statements made by Ashley to Officer McWhirter and Emerson. Johnson argued in his brief in support of the motion that the selection from the photo lineup was one of the statements to be suppressed because it was the product of Ashley’s reflection and deliberation and was made in response to questions during a time when Ashley showed no signs of excitement. After a hearing on whether her testimony as related by Officer McWhirter was hearsay, the trial court determined that Ashley’s statements to the police officer and Emerson met the criteria of excited utterances and were admissible as an exception to the hearsay rule. This ruling necessarily embraced Ashley’s selection of Johnson from the photo lineup on the two occasions. The trial court also ruled that Ashley’s statement to Rose Cassidy qualified as an excited utterance. At the same time, the court excluded statements made by Ashley to EMT personnel and to family even though these statements were made on the same day and prior to her statements to Officer McWhirter. The trial court determined that the statements were not reliable and did not qualify as excited utterances.

At trial, a jury found Stacey Johnson guilty of capital murder. Following the penalty phase, the jury found the crime to be aggravated by three circumstances: (1) Johnson previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; and (3) the capital murder was committed in an especially cruel manner. The jury unanimously agreed that there were no mitigating circumstances and sentenced Johnson to death by lethal injection.

We first address whether Ashley’s selection of Johnson’s photograph from a photo lineup qualified as an excited utterance.

I. Photo Lineup

At approximately 3:30 p.m. on the afternoon of April 2, 1993, Officer McWhirter, accompanied by Cynthia Emerson, a supervisor with the Department of Human Services, went to Ashley’s grandparents’ home to visit with Ashley. They took Ashley outside, and she told them what happened to her mother, which was related by Officer McWhirter at trial. After the statement, the police officer showed her seven photographs, one of whom was Johnson. She was told to look closely at the photographs. She went through the photographs carefully and selected Johnson’s picture. Officer McWhirter then retrieved the photographs, shuffled them, and showed them to Ashley a second time. He asked her to look carefully again. She went back through the pictures and again she selected Johnson as the culprit. The trial court permitted testimony of the selection by the police officer as an excited utterance. We conclude that allowing this hearsay testimony as an excited utter-anee was an abuse of discretion.

Rule 803(2) of the Arkansas Rules of Evidence defines the “excited utterance” exception to the hearsay rule: “A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” This court has, on numerous occasions, applied this exception to cases involving the testimony of young children who may, or may not, eventually testify at trial. The basic requirements of the “excited utterance” exception are as follows:

First there must be an occasion which excites the declarant. Second, the [s]tatement must be uttered during the period of excitement and must express the declarant’s reaction to the occasion. In practice, these tend to merge together. If there was a sudden event which startled the declarant, his ensuing utterance will be assumed to be his reaction to the stimulus; if the statement appears to be excited, it will be assumed the occasion was exciting.

Smith v. State, 303 Ark. 524, 529-30, 798 S.W.2d 94, 97 (1990) (quoting 4 D. Louisell, Federal Evidence § 439 (1980)).

By allowing Officer McWhirter to testify about Ashley’s photo selection, Johnson contends he was denied his right to confront Ashley as guaranteed under the Sixth Amendment. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Suggs v. State, 317 Ark. 541, 879 S.W.2d 428, reh’g denied, 317 Ark. 547-A, 879 S.W.2d 432 (1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). Johnson’s counsel contends that he was foreclosed from asking Ashley questions such as: how was she able to see Johnson, how long did she see him, was her view blocked by furniture, were the lights on, and so forth.

The United States Supreme Court discussed the Confrontation Clause and exceptions to the Hearsay Rule in Idaho v. Wright, 497 U.S. 805 (1990):

In Ohio v. Roberts, we set forth a “general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. 448 U.S., at 65. We noted that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid. “First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case . . . , the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ibid, (citations omitted). Second, once a witness is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls ivithin a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id., at 66 (footnote omitted); see also Mancusi v. Stubbs, 408 U.S. 204, 213 (1972).

Wright, 497 U.S. at 814-15 (emphasis added).

The description by Officer McWhirter of how Ashley studied the photographs and made her two selections of Johnson’s photograph smack of a deliberate and reflective act by the young girl and not of conduct we associate with spontaneity, excitement, or impulsiveness. Officer McWhirter testified at the omnibus hearing that he handed the photographs to Ashley “like a deck of cards.” He stated that she went through them once or twice and that he told her to make sure “she looked at them good.” She chose Johnson’s photograph, and Officer McWhirter repeated the exercise. The evidence was a critical cog in the State’s case, and the defense was completely thwarted in its ability to explore the matter through cross-examination of the declarant. This is not a case where a declarant is shown a picture by a family member and shrieks an identification. See United States v. Napier, 518 F.2d 316 (9th Cir.1975), cert. denied, 423 U.S. 895 (1975). We know of no case in any jurisdiction which stands for the proposition that a request to identify followed by a deliberate choosing of an offender from a lineup such as we have here qualifies as an excited utterance.

The testimony by Officer McWhirter of Ashley’s selection from the photo lineup should have been excluded as unreliable hearsay and as running contrary to Johnson’s right to confront the witnesses against him. We reverse the trial court on this point and remand for a new trial. Because many of the points raised in this appeal may occur again at retrial, we will address them. However, since we hold that the testimony of the photo lineup is inadmissible hearsay, we need not address the issue raised concerning the reliability of that lineup. There is the possibility that Ashley will be deemed competent to testify at a retrial of this matter, which would bring the lineup’s legitimacy back into play. Nevertheless, we view that contingency as too speculative for us to consider the point.

II. Points on Retrial

a. Ashley’s Statement to Officer McWhirter.

Though we consider the deliberate act of choosing from a photo lineup incompatible with the impulsive excitement and spontaneity associated with an excited utterance, we hold differ-endy with respect to Ashley’s verbal statements. We do so based on the descriptions of Ashley before and during her statement as provided by Cynthia Emerson and Officer McWhirter.

First, there are Cynthia Emerson’s revealing comments at the competency hearing which related to Ashley’s appearance and attitude on the afternoon of April 2, 1993. The conversation with the young girl occurred some nine hours after Ashley had been removed from the apartment where her mother lay covered in blood. After Emerson, Ashley, and Officer McWhirter went outside her grandparents’ house, Ashley jumped into Emerson’s lap. The police officer informed the young girl that he wanted to know what had happened to her mother, and Ashley “just started talking,” according to Emerson. She added: “She just rambled about — you know it was out of sequence a lot.”

Emerson’s colloquy with the prosecutor follows:

PROSECUTOR: Would it be fair to say that Ashley had control over that statement you got?
EMERSON: Definitely, definitely.
PROSECUTOR: You said earlier that she had somewhat of an obsession to tell this?
EMERSON: Right. It’s like — I don’t know. Like some kids have a — something they want to get out. It’s almost like an explosion. She just completely — we didn’t have any chance to really ask questions....

At the later omnibus hearing, Emerson testified that Ashley “rattled” to the police officer when telling her story and that it was “very fast pace[d].” On cross-examination, Emerson stated that Ashley became more excited as she was relating her story. At trial Emerson testified:

EMERSON: You know, adults, you know, we put things in order. Kids, when they’re upset or nervous about something, they just talk and, you know, it’s not in sequence.
PROSECUTOR: Okay. And you’re saying that’s the way Ashley’s story was?
EMERSON: Oh, yes. She was very eager to tell the story, in my opinion.
PROSECUTOR: Was she upset?
EMERSON: She was very upset and hyper, but it was like when she was telling us the story, she was just focused in on what was happening. She wasn’t really aware that we were there. I mean she was telling us this story, but it wasn’t a story to her. It was just something she needed to say.

Officer McWhirter’s description of Ashley followed a similar theme. At one of the pretrial hearings, he responded affirmatively to the question: “She just unloaded on you?” At trial, he described Ashley at the time as “scared.” He asked Ashley what had happened the previous night and then described her response:

[T]he next thing I knew, she just started talking, spontaneous — I mean she started talking. She would go into one thing, she just kept talking and never stopped, and during the time she was talking she would ask me questions, which I wasn’t going to answer, so we just let her keep talking until she finished.

Thus, you had a six-year-old child who from two reports was hyperactive, scared, and excited when she told about the murder of her mother on the afternoon after the homicide. In discussing the criteria we weigh in considering the excited-utterance exception, we have looked in the past to a summary set out by the Eighth Circuit Court of Appeals in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):

The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of 803(2). Nor is it controlling that [the declar-ant’s] statement was made in response to an inquiry. Rather, these are factors which the trial court must weigh in determining whether the offered testimony is within the 803(2) exception. Other factors to consider include the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event and the subject matter of the statements. In order to find that 803(2) applies, it must appear that the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation.

Id. at 86 (internal citations omitted) (quoted in Smith v. State, 303 Ark. 524, 531, 798 S.W.2d 94, 98 (1990)).

This court further took note in the Smith case of the fact that the trend was toward expansion of the time interval after an exciting event and that some courts are more liberal in doing so when the declarant is a child. Smith v. State, 303 Ark. at 530, 798 S.W.2d at 97 (citing D. Binder, Hearsay Handbook § 2.03 (1983)). This court has followed that trend. See, e.g., Greenlee v. State, 318 Ark. 191, 884 S.W.2d 947 (1994) (excited utterance made the next morning by a six-year-old informing parent of sexual abuse the previous night); Suggs v. State, supra (excited utterance made by boys 24 to 30 hours after having witnessed their mother being stabbed 144 times); Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991) (excited utterance made the day after the rape by twenty-three-year-old mentally retarded victim with the mental capacity of a six-year-old); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), reh’g denied, 306 Ark. 374-A, 818 S.W.2d 951 (1991) (excited utterance made when two-and-a-half-year-old child awoke from a nightmare and related story of sexual abuse); Smith v. State, supra (excited utterance made the next morning by a three-year-old after witnessing a murder the previous afternoon). In light of the authority, we do not view the statement by Ashley made more than nine hours after her mother’s body was discovered and she was removed from the apartment as inconsistent with the spontaneity and impulsiveness associated with an excited utterance.

The trial court also dubbed Ashley’s statement to Rose Cassidy concerning a black man as the culprit as an excited utterance. But the court then refused to allow various comments by Ashley made prior to the conversation with Officer McWhirter and Cynthia Emerson:

— To EMT Archie Johnson about 7:00 a.m. that Ashley and her mother heard something in the house and that her mother got up to see what it was and had fallen.
— To the victim’s sister, Melissa Cassidy during a 45-minute conversation that a black man broke in and killed her mother.
— To her grandmother, Arlene Heath, over the course of the day that she heard someone come in the apartment and saw him sit on the couch playing with a gun, that she hid by the television set in the hall and saw her mother lying in blood, that the man was bald but also had a black hat, that he was wearing blue jeans and boots, that he had on black pants and a green jacket and a black shirt with red and orange designs, that he had a gold ring with glass in it and wore a tie, and that he was chunky.

The trial court gave no explanation for why it found these statements unreliable and not excited utterances. A reasonable explanation would be that a statement made during a 45-minute conversation or random comments made during the course of the day do not pass muster. Certainly, the foundation laid by Cynthia Emerson and Officer McWhirter regarding Ashley’s excited demeanor when telling her story was not similarly laid for the statements made to Archie Johnson, Melissa Cassidy, and Arlene Heath.

We conclude that the trial court did not abuse its discretion in allowing Officer McWhirter to testify to what Ashley told him. Accordingly, we hold that at the retrial of this matter Ashley’s description of the crime as related to Cynthia Emerson and Officer McWhirter, other than her identification of Johnson from the photo lineup, is admissible as an excited utterance and does not violate the Confrontation Clause.

b. Testimony of Drug Trafficking and Rule 404(b).

Johnson moved in limine to prevent the State’s witnesses from mentioning any connection between him and drug trafficking. The motion was denied. Johnson raised the issue again prior to trial, and it was again denied. At trial, Shawnda Helms testified as part of the State’s case that Johnson approached the victim and her on two occasions. The first occasion was on February 1, 1993, during a social gathering at the victim’s house: “[H]e called us into the kitchen and asked us if we knew anybody or anyway that we could help transport some kilos because he needed to have them transported, and then he asked me and Carol if we would go out with him and we told him no, because we didn’t date [b]lack guys.” Helms testified that she understood “kilos” to mean “cocaine.” The second occasion was on February 15, 1993, at an establishment named “In Your Ear”: “Stacey called us over there and asked us if we had thought of anybody who could help him transport them (kilos) and we told him no, [a]nd then he asked Carol again if she would go back out with him — if she would go out with him, and she said no.” Helms testified that when they refused to help with the cocaine, Johnson “looked like he was mad. He was pretty upset with our answer.”

Johnson’s argument on appeal is twofold. First, he contends that the statements are inappropriate “propensity” evidence under Ark. R. Evid. 404(b). Secondly, he maintains that even if the statements were relevant, their probative value is substantially outweighed by the danger of unfair prejudice under Ark. R. Evid. 403. He argues that the drug references did nothing but “impugn his character and improperly sway the jury’s mind against him.” The State counters that Johnson’s requests about transporting cocaine are excepted from Rule 404(b) because they established knowledge of the victim. It can also be garnered from the testimony of Shawnda Helms that refusal to transport drugs as well as the refusal to date were motives for the slaying.

We agree with the State that the evidence was permissible. Both knowledge and motive are exceptions to Rule 404(b). Nor do we view the evidence as unfairly prejudicial under Rule 403. The relevance of circumstances which tie the perpetrator to the victim and raise a possible motive for the killing is patently obvious. The fact that that knowledge came about in the context of an attempted drug deal should not be grounds for excluding testimony about the proposed transaction.

There is also the fact that Johnson did not request a limiting instruction that the drug testimony not be considered for the purpose of finding Johnson to be a bad man. To be sure, refusal to request such an instruction could well have been a matter of trial strategy on defense counsel’s part. Yet, an instruction of that kind would have directed the jury’s attention away from Johnson’s character and toward the motive and knowledge exceptions.

There was no error in allowing the drug testimony.

c. DNA Testimony.

The two sides waged a fierce battle over the admission of statistical probabilities with respect to PCR testing. Johnson presented testimony by Dr. Mark Crew, a molecular biologist, that the underlying databases used by Cellmark Diagnostics for PCR testing were unreliable because they were insufficient in size. In his opinion, the databases were unreliable because they did not include samples taken from the Sevier County gene pool.

Dr. Charlotte Word, a molecular biologist with Cellmark, admitted that the databases employed for the PCR testing took samples from major metropolitan areas rather than from Arkansas. But she also stated that the databases were tested and determined to be in Hardy-Weinberg Equilibrium, meaning that the frequency of certain types of genes in the general population is adequately reflected in the databases. When this equilibrium is attained, it is then possible to predict the frequency, in terms of the entire population, of how common it would be to find a combination of the different genes in one person.

This court recently decided this issue against Johnson. See Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). In Moore, we stated:

The trial court also correctly determined that any challenge to the conclusions reached by the state’s expert, including the statistical probability of whether the test results constituted a match, would appropriately be made at trial, by cross-examination of the state’s experts and presentation by the defendant of his own experts to express differing opinions about the results of the FBI tests and statistical probability of a match.

Moore, 323 Ark. at 547, 915 S.W.2d at 294 (emphasis added). Furthermore, experts for both Johnson and the State agreed that Cellmark provided “falsely conservative” statistical probabilities, a factor that this court has afforded some weight in assessing whether databases were in Hardy-Weinberg Equilibrium. See Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).

Johnson all but concedes that the battle of the experts over statistical probabilities is a matter for litigation and cross-examination. Nevertheless, he asks this court to revisit the issue and consider excluding the DNA tests. We decline to do so. There was no error in allowing this evidence to be presented to the jury.

d. Intent to Date a Black Man.

The State extracted statements from four witnesses that Carol Heath did not date black men or entertain black men in her home. In response to this evidence, Johnson attempted to introduce the testimony of Cynthia Johnson, who worked with the victim at DHS, that Carol told her on Wednesday, March 31, 1993, that Doyle Green, an African-American, had asked her for a date. Green was an auditor who lived in Litde Rock but was in DeQueen apparently doing some work for the local DHS office. Cynthia Johnson also testified that Green was the only one of three Little Rock auditors who decided to spend the following night, April 1, 1993, in DeQueen, thus creating the inference that he could have been the murderer. She admitted, however, on cross-examination that she did not know Carol Heath on a personal basis and had no idea whether she actually dated Doyle Green.

The trial court properly found this testimony to be unduly speculative and properly excluded it. Evidence that does no more than create an inference or conjecture of another’s guilt is inadmissible. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993) (citing State v. Wilson, 367 S.E.2d 589 (N.C. 1988)). There was no abuse of discretion.

e. Narrounng of Offenses.

This court has laid to rest the argument that an unconstitutional overlapping occurs between our capital murder statute and our first-degree murder statute. The argument put forth by Johnson was answered recendy in Nooner v. State, 322 Ark. 87, 107, 907 S.W.2d 677, 687-88 (1995):

Nooner argues that the definition of capital murder does not sufficiendy narrow the crime for which the death penalty can be imposed. He specifically alludes to overlap between definitions of capital murder and first degree murder, which we have already discussed. The United States Supreme Court has held that the required narrowing of crimes susceptible to the death penalty may occur at the penalty phase of the trial. This court has previously held that our statutes pass the narrowing requirement by limiting the death penalty to crimes involving sufficient aggravating circumstances. There is no merit to Nooner’s contention. (Citations omitted.)

See also Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). The same holds true in this case. Johnson’s argument is meritless.

f. Especially Cruel as an Aggravating Circumstance.

Johnson contends that the “especially cruel” aggravating circumstance, codified at Ark. Code Ann. § 5-4-604(8) (Repl. 1993), is vague and overbroad and violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 2, section 9 of the Arkansas Constitution. We have previously decided this “vague and overbroad” argument against an appellant, and in doing so we stated:

The previous “especially heinous, atrocious, or cruel” aggravating circumstance was declared unconstitutional by this court because it was so vague that it violated the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment. See Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). The legislature rewrote the aggravating circumstance in 1991 and based the statutory definitions of “especially cruel manner” and “especially depraved manner” on the Arizona Supreme Court’s limiting interpretation of its “especially heinous, cruel or depraved” aggravating circumstance that had been found by the United States Supreme Court to pass constitutional muster.

Greene v. State, 317 Ark. 350, 360-61, 878 S.W.2d 384, 390 (1994) (citing Walton v. Arizona, 497 U.S. 639 (1990)). See also Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). Johnson has advanced no argument that persuades us to interpret the Arkansas Constitution in a contrary manner.

Nor can there be any doubt that evidence abounded that the murder was perpetrated in an especially cruel manner. The considerable damage to the body of the victim is testimony to that fact. There were, too, the defensive wounds, the circumstantial evidence of rape, and the bloody fingerprint of the victim found on the linen closet which suggested Carol Heath did not die immediately.

g. Aggravating Circumstances Narrowing the Class.

Johnson contests the avoiding-arrest aggravator in this case and urges that all murders could arguably have been committed to avoid arrest. As a consequence, he contends that this aggravating circumstance did not effectively narrow the class of persons eligible for the death penalty for the jury’s purposes.

This precise overbreadth argument has previously been rejected by this court, and Johnson cites no authority that persuades us to change our position. See Coulter v. State, supra. Johnson further argues that the statute is unconstitutional in that it allows for a finding of aggravating circumstances at a lesser standard than “beyond a reasonable doubt.” This argument is belied by the plain language of Ark. Code Ann. § 5-4-603 (Repl. 1993), which requires findings of aggravators beyond a reasonable doubt and by the penalty-phase verdict form returned by the jury in his case.

The State argues that the murder was committed for the purpose of eliminating Carol Heath as a victim-witness in a battery trial or as a prosecutrix-witness in a rape trial. This is evidenced, according to the State’s theory, by his attempts to “clean up” the victim and eliminate circumstantial evidence of rape, and his immediate departure to Albuquerque, New Mexico after the crime.

We need not address this argument. First, there is no assurance that this particular aggravator will be submitted on retrial. But, in addition, there were two other aggravating circumstances found by the jury which clearly outweighed the jury’s finding of no mitigating circumstances. Hence, the error, if any, was harmless. See Ark. Code Ann. § 5-4-603(d) (Repl. 1993). Accord Kemp v. State, supra.

h. Victim-Impact Testimony.

During the prosecution’s closing argument at the penalty phase, he made several statements that Johnson classifies as “victim impact” evidence: “I sure hope you won’t forget the right that Carol Heath had to life, the right that she had to learn and grow and love her two children and that right they had to know and love their mother” ... “The manner in which Carol Heath was left with those two children justifies the death penalty” ... “Punish the man who took away Carol Heath’s rights to know and love and watch Ashley grow up and marry.... And watch Jonathan grow up and to struggle with Jonathan, to do things with him and see him grow up” ... “[Carol’s parents] have rights. They’ve lost a precious daughter.”

Johnson argues that the victim-impact statute, Ark. Code Ann. § 5-4-602(4) (Repl. 1993), does not give sufficient guidance to the judge and jury as to what comprises victim-impact evidence, and as such it violates the Eighth and Fourteenth Amendments to United States Constitution and Article 2, section 9 of the Arkansas Constitution. He also attacks the relevancy of the prosecutor’s statements to the penalty phase and claims that § 5-4-602(4) has impermissibly been applied retroactively and, thus, is an ex post facto law.

The simple answer to Johnson’s argument is that arguments of counsel are not evidence, and the trial court instructed the jury accordingly. See AMCI 2d 101(e). Furthermore, there was no objection or request for an admonition at the time the prosecutor made these statements. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). But, in addition, these issues were decided in Nooner v. State, supra, against the appellant. In Nooner, this court held: “{B]y expanding the scope of permissible evidence during the penalty phase, the General Assembly has not expanded the scope of punishment or added a new aggravating circumstance. We hold that permitting this testimony . . . did not constitute an ex post facto law.” Nooner, 322 Ark. at 109, 907 S.W.2d at 689.

In Nooner, we also upheld the underlying constitutionality of victim-impact testimony. See Nooner, 322 Ark. at 322-23, 907 S.W.2d at 688-89 (citing Payne v. Tennessee, 501 U.S. 808 (1991)). As was the case in Kemp v. State, supra, Johnson does not put forth an argument that would convince this court to interpret the provisions of the Arkansas Constitution in a different manner.

Reversed and remanded.

Dudley, Newbern, and Roaf, JJ., concur in part; dissent in part.

Robert H. Dudley, Justice,

concurring in part and dissenting in part. I concur in reversing and remanding for a new trial. The murder victim’s six-year-old daughter, Ashley, was available to testify, but was incompetent to testify because the memory of her mother’s murder was impaired. Even so, the trial court allowed a police officer, Hayes McWhirter, to testify that Ashley, after carefully studying a photo lineup, identified appellant as the murderer. I wholeheartedly agree with the majority opinion that the ruling constituted prejudicial error. The officer’s testimony about the six year old’s identification of appellant was hearsay. Ark. R. Evid. 801. The trial court allowed the testimony in evidence under the excited utterance exception to the hearsay rule, Ark. R. Evid. 803(2). The delayed and careful selection of a photograph simply is not an excited utterance under Rule 803(2). Thus, I concur in reversing and remanding the case for a new trial.

The majority opinion goes further, however, and holds that upon retrial, Officer Hayes McWhirter and an employee of the Department of Human Services, Cynthia Emerson, can testify about statements the six year old made to them. The majority opinion will allow the testimony at the retrial under the excited utterance exception to the hearsay rule. I would not allow the statements because they do not fit within the firmly rooted holdings embracing the excited utterance exception, and, by allowing the statements in evidence, the majority will deny appellant the right of confrontation.

The facts are these. Rose Cassidy discovered Carol Heath’s corpse in the living room of the victim’s home at about 6:45 in the morning on April 2, 1993. Ms. Cassidy, the victim’s sister-in-law, hurriedly went to a neighbor’s house and called the police. Upon returning to the victim’s home, she saw the victim’s six-year-old daughter, Ashley, and her brother looking out the bedroom window. Ms. Cassidy said Ashley was scared, but not crying, and was able to respond to questions. Ms. Cassidy asked Ashley what had happened, and Ashley answered that a black man had broken in.

By 7:00 a.m. the police and an ambulance had arrived, and the children were taken out of the house through a window so that they would not see their mother’s corpse. In pretrial hearings, a medical technician, Archie Johnson, testified that Ashley was “not emotional” and that she answered questions about her condition, but she seemed to be in shock because she was quiet. He said that she helped him find her clothes. He said that Ashley told him they were all asleep when they heard something, and her mother got up to see what it was. The the next thing she knew was that her mother had fallen. She did not mention seeing an assailant. The trial court ruled that the statements given to Archie Johnson were not admissible. It is highly significant that the trial court found that the statements to Rose Cassidy and Archie Johnson were not admissible. The import of the ruhng was that Ashley’s first two statements, which did not implicate appellant, were not allowed as excited utterances, and the State does not cross-appeal from that riding.

Ashley and her brother waited in the ambulance untd their grandfather, John Heath, took them to his home. Arlene Heath, their grandmother, testified at a pretrial hearing that when she got to their home, Ashley was “totally out of control.” The grandmother indicated that Ashley “rambled on and on” about what had happened to her mother, and it took about thirty minutes to calm her. During most of the remainder of the day Ashley told her grandmother about the murder, and the detads of the story varied. For example, Ashley told her grandmother that she saw the man when he came in the front door (not mentioning a break-in in this version), that she got up when he came in, and that she saw the man sitting on a couch whde playing with a pistol. At one time she told her grandmother that she hid by the television set in a hall and that she saw her mother lying in blood. Throughout the day, Ashley’s descriptions of the intruder gained in detail, but also became more discrepant. She said the man was bald, but also wore a black hat. She said he was wearing blue jeans and boots, but later she described black pants, a green jacket, a black shirt with red and orange designs, a gold ring, and a tie. Just before 3:30 that afternoon she said she heard someone in the house and saw a “bald black man” wearing a black shirt and pants, green jacket, and red bandanna. She said the man was “chunky.” It is again highly significant that the trial court did not allow this hearsay into evidence, and the State does not cross-appeal from the ruling.

The next person to talk to Ashley was the victim’s sister, Melissa Cassidy. She arrived at the grandparents’ home at about 8:55 a.m., but waited twenty to thirty minutes before going inside. At about 10:30, or almost four hours after the murder was discovered, and presumably considerably longer since the murder took place, Ashley sat in Melissa’s lap and cried for perhaps forty-five minutes. During this time Ashley “blurted out” that a black man had broken in and killed her mother. Melissa remained at the house most of the day. She testified at a pretrial hearing that many visitors arrived and left, and some visited with Ashley. She said that during the day Ashley had periods of calm, she even played with her cousin for a while, but at other times she was upset. Again, it is significant that the trial court refused to allow the statements made to Melissa into evidence, and the State does not cross-appeal.

Officer Hayes McWhirter went to the grandparents’ home at 3:30 in the afternoon to question Ashley. He asked Cynthia Emerson, an employee of the Department of Human Services, to accompany him “to see if Ashley could tell us anything to help with the case.” When they arrived, Ashley was playing outside the home. McWhirter talked to the grandparents while Emerson made small talk with Ashley, who was neither emotional nor crying. McWhir-ter took Ashley to the side of the house to question her. She was timid at first and refused to talk because he had a tape recorder. After he put the tape recorder away, Ashley began to ask him questions about the murder. McWhirter asked her to tell him what she could remember. Because it is critical, his testimony, as abstracted, was: “I said we need you to tell us what you saw last night. We just told her that anything she could remember from last night or who might have been in her house to do this to her mother we needed to know. Then I didn’t say anything. She just unloaded on me.” In doing so, Ashley gave yet another account, the most detailed account of the day. She said her mother and she were sitting on a couch (not asleep or in bed), that someone knocked, and her mother answered and let the man in (no break-in). She said the man asked where Branson was; that the man had a “girl sounding” name (new fact); that he was wearing a black hat with something hanging down the back (new fact), a green (not black) shirt and a sweater (new fact). She said the man had just gotten out of jail and was mad at her mother for dating Branson (new fact). She said the man had hair like McWhirter’s; that she saw the man and her mother fighting (new fact) and saw the man leave in a brown truck (new fact); that he had a gun and a knife (new facts); and that he went to the bathroom while her mother lay on the floor (new facts). Ashley said she was hiding in the closet (new fact), and that she saw the man standing by her mother with a knife in his hand when she came out of the closet to go to the bathroom (new facts). After he left, she went to bed. McWhirter then showed Ashley a photo lineup, and she picked the murderer out of the lineup. McWhirter did not testify that Ashley was emotional, crying, or distressed while he questioned her. He testified that she was “excited,” but admitted she was “in control.” In sum, a police officer went to the grandparents’ home to question the six-year-old witness, but the six year old would not talk to him at first. He put away his tape recorder and asked the six year old to tell him what happened. Ashley did not make a spontaneous outburst. The officer did not testify that Ashley was crying, emotional, or distressed when he began to question her. Yet, the majority opinion holds that her answers can come in under the exited utterance exception to the hearsay rule.

The trial court did not find that statements made to Archie Johnson shortly after 7:00 a.m., or immediately after an adult discovered the murder, were excited utterances, and the State does not cross-appeal; the trial court did not find that statements made to Melissa Cassidy at about 10:30 that same morning were excited utterances, and the State does not cross-appeal; the trial court did not find that statements made to the six year old’s grandmother, Arlene Heath, during the course of the day were excited utterances, and the State does not cross-appeal. Yet, the trial court held, and the majority opinion affirms, that responses given to a policeman later in the day are admissible as an excited utterance. None of the cases cited in the majority opinion support such a holding.

An excited utterance is “[a] statement relating to a starding event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ark. R. Evid. 803(2). Here, under the law of the case, the declarant was not “under the stress of excitement caused by the event” from 7:00 a.m. until 3:00 p.m., but in some way went into the stress of excitement in response to police questioning. A recitation of past events does not constitute an excited utterance. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). The statements were not spontaneous utterances; rather, they were a product of questions by the officer. Although the declarant was only six years old, she obviously had discussed her mother’s murder with others and then added many new facts upon questioning by the officer. This was not a mere utterance; it was complete statement. The issue is not whether the excited utterance is accurate; rather, it is whether it is trustworthy, and trustworthiness comes from spontaneity under stress and a lack of reflection and deliberation. Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991). It was the same officer who showed Ashley the photo lineup at the same interview. In some way, the majority opinion holds her response to the lineup is hearsay, but the accompanying statements are not hearsay. The statements do not come within the deep-rooted guarantees of trustworthiness. As a result, appellant will be denied his right of confrontation. I would not allow the responses to Officer McWhirter’s questions into evidence upon retrial.

Newbern and Roaf, JJ., join.

       In testimony, Officer McWhirter revealed that Ashley looked at seven photographs. The photo lineup took place after Ashley had told Emerson and Officer McWhirter what had happened.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Karl W. SCHWARZ v. COLONIAL MORTGAGE COMPANY, Randy H. Thomason, Kelly A. Thomason, Steven Murphy, and Delores Murphy
    96-458
    931 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      T.B. Patterson, Jr., P.A., for appellant.

      Marian M. McMullan, P.A., for appellees Colonial Mortgage Co., Randy H. Thomason, and Kelly A. Thomason.
   Robert L. Brown, Justice.

This is an appeal from an order of summary judgment. Appellant Karl Schwarz contends that the chancellor erred in applying the statute of limitations for cancellation of instruments, which is five years, to an ejectment matter as opposed to the statute for removal of a person from land, which is seven years. We agree that the wrong statute of limitations was applied, and we reverse the order of summary judgment and remand for trial.

In March 1976, Karl Schwarz and his wife, Lois Love Schwarz, purchased Lot 11 of the Hilltop Manor Addition in Little Rock (Lot 11) as tenants by the entirety. In January 1985, the Schwarzes separated, Karl Schwarz moved out of the home, and a divorce action was filed. In the resulting divorce decree dated September 12, 1985, Karl Schwarz was ordered to quitclaim his interest in the marital home to Lois Schwarz, who later resumed using her maiden name of Lois Love. He did not do so.

At a March 19, 1986 hearing to show cause why Schwarz should not be held in contempt for failure to comply with the order, Schwarz was faced with the choice of either signing a quitclaim deed conveying his interest in Lot 11 to Lois Schwarz or facing incarceration for 90 days. After discussing the matter with counsel, he signed a quitclaim deed which contained an incorrect legal description: Lot 10, rather than Lot 11, Hillside Addition to the City of Little Rock. Schwarz admits that he did this knowingly and for the purpose of conveying no legal interest. The quitclaim deed was then recorded.

On October 23, 1986, Lois Schwarz, now Lois Love, conveyed Lot 11 to appellee Randy H. Thomason, and in the process, outstanding notes secured by mortgages were satisfied. The deed was recorded on October 28, 1986. As part of the purchase price, Randy Thomason executed a promissory note in favor of Pinnacle Mortgage Company, which was secured by a deed of trust on the property executed by both Randy Thomason and his wife, Kelly A. Thomason. The note was subsequendy assigned to Appellee Colonial Mortgage Company.

In March 1987, Schwarz was informed by the Pulaski County Circuit Clerk that a “correction deed” conveying Lot 11 to Lois Schwarz and bearing his signature had been recorded on April 7, 1986.

In September 1988, Lot 11 was conveyed by the Thomasons to appellees Steven Murphy and his wife, Delores Murphy. The Murphys assumed payment of their note and executed a note in favor of Randy H. Thomason and a second mortgage on the property.

On October 22, 1993, Schwarz filed a lis pendens and an action for ejectment or, in the alternative, a partition of the property in Pulaski County Circuit Court on the basis that the “correction deed” purportedly signed by him was a forgery. An amended and substituted complaint later named the Thomasons, the Murphys, the trustee or successor trustee of the deed of trust, and Colonial Mortgage Company as defendants. On July 26, 1994, Colonial Mortgage filed an action in Pulaski County Chancery Court to quiet title due to Schwarz’s forgery allegations and for foreclosure and named as defendants the Thomasons, the Murphys, any unknown tenants of the property in question, and Karl Schwarz. On motion by the Thomasons, the circuit court transferred the ejectment/partition suit to chancery court for consolidation with the foreclosure action.

Once in chancery court, appellees Colonial Mortgage and the Thomasons moved for partial summary judgment on Schwarz’s ejectment/partition claim. For purposes of the summary judgment motion, the chancellor found the “correction deed” conveying Lot 11 to Lois Schwarz to be a forgery. The chancellor then granted the motion because the complaint was filed outside of the time for filing an action for cancellation of an instrument. Her order reads in part:

In order for Schwarz to prevail on his cause of action for ejectment or partition, Schwarz must first cancel the Correction Deed in the record chain of tide.

The Court finds that the period of limitations for cancellation has expired and, therefore, Schwarz has lost his opportunity to set aside the Correction Deed.

In reaching this conclusion, the chancellor specifically relied on Hedlund v. Hendrix, 39 Ark. App. 58, 837 S.W.2d 488 (1992). The chancellor also awarded Colonial Mortgage judgment and a first lien in the foreclosure action and judgment and a second lien to appellee Randy H. Thomason.

I. Jurisdiction

We first address whether chancery court had jurisdiction of this matter, though this issue was not raised by the parties. The initial action in circuit court was for ejectment or, alternatively, for partition. The action was premised on an allegation that the “correction deed” was forged. Ejectment lies in law. Carter v. Phillips, 291 Ark. 94, 722 S.W.2d 590 (1987). Partition may be filed in either law or equity. Ark. Code Ann. § 18-60-401 (1987). After Colonial Mortgage filed its action to quiet title and its foreclosure action in chancery court, the ejectment/partition suit was transferred to chancery court and consolidated.

Because the initial action in circuit court contained a claim for partition as well as ejectment, a basis for equitable jurisdiction was present. In addition, counsel for appellees Colonial Mortgage and the Thomasons sought to quiet tide in their litigation in chancery court caused by the cloud on title created by the ejectment lawsuit. They further raised equitable claims such as laches and estoppel as defenses to Schwarz’s ejectment claim at the hearing before the chancellor. See Robertson v. Chronister, 196 Ark. 141, 161 S.W.2d 1048 (1938). We do not know whether these same defenses were raised in the appellees’ answer to the ejectment action, since the answer was not designated as part of the record. We conclude that the chancellor correctly assumed jurisdiction of this matter.

II. Statute of Limitation

Schwarz argues on appeal that the statute of limitation for cancellation of instruments has no bearing on this case. That statute reads in pertinent part:

(a) Actions on promissory notes and other instruments in writing not under seal shall be commenced within five (5) years after the cause of action shall accrue, and not thereafter. However, partial payment or written acknowledgment of default shall toll this statute of limitation.

Ark. Code Ann. § 16-56-111(a) (Supp. 1995).

Schwarz urges that § 16-56-111 (a) essentially applies to cancellation of contracts and negotiable instruments. We agree. The only instances in which this statute has been applied to a cause of action to establish title to real property is where a party has sued on a contract contained within the deed. See, e.g., Woods v. Wright, 254 Ark. 297, 493 S.W.2d 129 (1973) (requiring the appellant to specifically perform a contract of sale entered into between the appellee and the appellant’s grantor); Daniels v. Johnson, 234 Ark. 315, 351 S.W.2d 853 (1961) (suit to foreclose on mortgage, not a deed); Federal Land Bank v. MAiller, 184 Ark. 415, 42 S.W.2d 564 (1931) (limitations for cancellation of instrument applied to grantee’s promise to take care of grantor for life).

The chancellor placed great weight on the decision by the Court of Appeals in Hedlund v. Hendrix, 39 Ark. App. 58, 837 S.W.2d 488 (1992). We do not agree that that case is controlling. The issue in Hedlund was whether a lawsuit to cancel a release of a guarantor from a guaranty obligation on a promissory note had to be filed within five years under § 16-56-111 (a). The Court of Appeals held that it did. That is a totally different situation from the case before us. First, Hedlund involved a guaranty of a negotiable instrument. Secondly, it was necessary for the release in Hedlund to be cancelled before a cause of action could accrue against the guarantor. In the instant case, Schwarz maintained that the “correction deed” was forged, and the chancellor assumed the forgery for purposes of summary judgment. The law is clear that a forged deed cannot divest a person of an estate in land. See Coulter v. Clemons, 237 Ark. 227, 372 S.W.2d 396 (1963); Williams v. Warren, 214 Ark. 506, 216 S.W.2d 879 (1949); Hall v. Mitchell, 175 Ark. 641, 1 S.W.2d 59 (1927). Thus, Schwarz still had good title, and the forged “correction deed” was not a bar to Schwarz’s pursuit of an ejectment action. We see no basis for the chancellor’s conclusion that the “correction deed” first had to be cancelled by Schwarz when Schwarz contended the deed was a forgery.

We conclude that the seven-year statute of limitation for recovery of lands, contained in Ark. Code Ann. § 18-61-101 (1987), applies to this case. That statute provides in relevant part:

No person or his heirs shall have, sue, or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments after seven (7) years once his right to commence, have, or maintain the suit shall have come, fallen, or accrued. All suits, either in law or equity, for the recovery of any lands, tenements, or hereditaments shall be had and sued within seven (7) years next after the title or cause of action accrued and no time after the seven (7) years shall have passed.

Ark. Code Ann. § 18-61-101(a) (1987).

The appellees argue as an alternative ground for affirmance that Schwarz did not meet proof with proof with respect to whether his signature on the correction deed was forged. This argument belies the plain language of the chancellor’s order: “For purposes of [Appellees’] Motion for Summary Judgment only, the [C]ourt has construed the signature of Karl Schwarz on the Correction Deed as a forgery, as Schwarz has alleged.” Presenting proof of forgery was clearly not necessary.

The appellees also advance the argument that the ejectment action is barred by Ark. Code Ann. § 18-61-103 (1987), which provides:

No action of ejectment, when the plaintiff does not claim title to the lands, shall be brought or maintained when the plaintiff, or his testator or intestate, has been five (5) years out of possession.

Id. (emphasis added). This argument does not apply to this case because Schwarz does claim title to Lot 11. See Sutton v. Lee, 181 Ark. 914, 917, 28 S.W.2d 697 (1930).

The appellees raise other arguments which we also take to be alternative grounds for affirming the chancellor. They contend that Schwarz is still under a binding court decree to grant Lot 11 to his former wife. Yet, no party in this matter has sought to enforce the original divorce decree, and Lois Schwarz is not a party to the consolidated litigation. The appellees further contend that Schwarz ratified the forged correction deed by accepting the benefit of satisfied notes and mortgages on Lot 11 and by waiting so long to file suit. Whether a ratification occurred or whether the defenses of laches or estoppel have merit are matters which require further development before the chancellor in our opinion. In reviewing the propriety of an order of summary judgment, we will not affirm a trial court on alternative grounds when those grounds require additional fact finding.

This case is a troubling one because of the conduct of Karl Schwarz in executing an erroneous deed and because the “correction deed” may have been forged. Nevertheless, we are convinced that § 16-56-111 (a) is inapplicable and that summary judgment was inappropriate.

Reversed and remanded.

       The circuit court in its amended order erroneously stated that it was consolidating the two matters while directing the circuit clerk to transfer the ejectment/partition case to chancery court. The chancellor corrected this in her order and consolidated the two matters following the transfer.


author: Per CURIAM.

text:
    Sherman NOBLE v. STATE of Arkansas
    CR 96-1107
    932 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Lewellen & Associates, by: R. C. Lewellen, for petitioner.

      Winston Bryant, Att’y Gen., by: Brad Neuman, Asst. Att’y Gen., for respondent.
   Per CURIAM.

Petitioner, Sherman Noble, has petitioned this court to issue a writ of mandamus to the Honorable Fred Davis, III, Circuit Judge, and to Jeanette Hence, Circuit Clerk. We decline to issue the writ.

The partial record shows that on May 21, 1996, the circuit court entered an order adverse to petitioner. Thirty-one days later, on June 21, 1996, petitioner filed a notice of appeal and designation of record. On June 26, 1996, the circuit judge dismissed the notice of appeal, and the circuit clerk refuses to tender a record to this court.

The circuit judge was in error in dismissing the appeal. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. Barnes v. State, 322 Ark. 814, 912 S.W.2d 405 (1995). At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record, which would allow the appellate court to determine whether the appeal should be lodged. Barnes, 322 Ark. at 815, 912 S.W.2d at 406. However, even though the circuit judge erred, we decline to issue a writ of mandamus. The notice of appeal was untimely, see Ark. R. App. P. 4(a), and it would be a vain and useless act to mandamus the circuit judge to reinstate the notice of appeal and then dismiss the appeal in this court. The law does not require a vain and useless act. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).

Writ declined.


text:
    Paul R. PARKER, Petitioner v. Sharon PRIEST, In Her Official Capacity as Secretary of State of the State of Arkansas, Respondent; Mike Wilson, Individually and On Behalf of The Committee to Promote Arkansas, Intervenors
    96-995
    932 S.W.2d 320
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      William Randal Wright, for petitioner.

      Winston Bryant, Att’y Gen., by: Kay J Jackson DeMailly, Asst. Att’y Gen., for respondent.

      David A. Couch, for intervenors.
   Sandra Smith Hochstetter, Special Justice.

The Interven-ors in this case have filed a Motion to Disqualify me on the basis of an alleged conflict of interest. Intervenors claim that I have a working relationship with the Friday law firm and Mr. James Simpson, attorneys for Amendment 4, which is an alternate gambling proposal to Intervenors’ Amendment 7. Because of this purported relationship, Intervenors claim that there is, at a minimum, an appearance of impropriety. However, for the reasons set forth below, I would deny Intervenors’ Motion to Disqualify.

Canon 3B(1) of the Arkansas Code of Judicial Conduct states that “a judge shall hear and decide matters assigned to the judge except those in which disqualification is required.”

Disqualification on the basis of relationships is addressed in Canon 2B which states in pertinent part that “a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgement.”

In this case, Intervenors allege that I have a working relationship with Mr. James Simpson and the Friday law firm. In support thereof, Intervenors cite a pending case between NorAm Gas Transmission Company and Par Oil Corporation in which Friday, Eldredge & Clark represents NorAm Gas Transmission Company. Intervenors also claim that Mr. James Simpson regularly represents Arkla.

The facts, however, are as follows. I do not know Mr. Simpson and have never worked with him. Mr. Simpson does not regularly represent Arkla, nor does any other attorney with his firm. Over the past twelve years Arkla has only retained the services of the Friday law firm twice, and I was not involved with either case. I represent Arkla, not NorAm Gas Transmission Company, so any case involving NorAm Gas Transmission Company, which is a separate corporation from Arkla, is entirely outside the realm of my involvement or control.

Since I have no relationship with either Mr. Simpson or the Friday law firm, there can be no bias, prejudice, or influence to possibly create a conflict of interest. The absence of any relationship further means that there can be no appearance of impropriety or any reasonable basis to question my judicial impartiality. Accordingly, as there is no conflict of interest, real or apparent, there is no basis for disqualification, and Canon 3 B(l) requires that I “shall hear and decide matters” assigned to me. I would therefore deny Intervenors’ Motion to Disqualify.


author: Per Curiam.

text:
    Paul SCHLAF and Scott Harford v. Frank GILBERT and Sharon Priest, Secretary of State of the State of Arkansas
    96-1037
    930 S.W.2d 384
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Oscar Stilley, for petitioners.

      Kelly Law Firm, PLC, by: A.J. Kelly, for respondents.
   Per Curiam.

This is the second of two original actions

challenging proposed Amendment 9. On October 21, 1996, this court handed down its opinion in the first case. In that opinion, we held that proposed Amendment 9 was violative of the amendment process provided by Article V of the United States Constitution and, consequently, exceeded the scope of the powers reserved to the people in Amendment 7 of the Arkansas Constitution. We ordered that proposed Amendment 9 not be placed on the ballot, or, alternatively, that the results of the vote on the proposal not be certified. Donovan v. Priest, No. 96-1120 (Ark. Oct. 21, 1996). As a result, this second case has become moot, and, accordingly, we dismiss it.


text:
    Monty SCOTT, et al. v. Sharon PRIEST, Secretary of State of the State of Arkansas
    96-1077
    932 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, for petitioners.

      Ann Purvis and Winston Bryant, Att’y Gen., by: M. Wade Hodge, Asst. Att’y Gen., for respondent.
   Per Curiam.

The Petitioners, Monty Scott, Bob Wheeler, Bill Goodwin, Eric Jackson, and Bill Walmsley, individually and on behalf of the Committee Against Amendment 8, brought this original action. They challenge the certification made by the Secretary of State with respect to the sufficiency of the number of signatures of registered voters needed to place proposed Amendment 8 to the Arkansas Constitution on the ballot in the coming general election. See Ark. Const, amend. 7.

We appointed the Honorable Jack Lessenberry as master to ascertain the facts in the dispute. Judge Lessenberry filed his report in a timely manner.

We need consider the petition no further, as proposed amendment 8 was, on October 21, 1996, held by this Court to be improper, on other grounds, for inclusion on the ballot. Our opinion to that effect was rendered in response to an original action brought by these same Petitioners against the Secretary of State in case number 96-1078.

Diane Bray intervened in this action and moved to disqualify the Friday Law Firm from its representation of the Petitioners on the ground of conflict of interests. That issue has become moot as a result of our action in case number 96-1078.

Original action dismissed.

Special Justice JOHN C. LESSEL joins in this opinion.

Dudley, J., not participating.


text:
    O.C. WILLINGHAM v. STATE of Arkansas
    CR 96-1222
    932 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered October 28, 1996

      Honey & Honey, P.A., by: Charles L. “Chuck” Honey, for appellant.
   Per Curiam.

Appellant O.C. Willingham, by his attorney, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed, but neither appellant nor his current attorney admit fault. As such, the motion for rule on the clerk does not state good cause for granting the motion as discussed in our per curiam, In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979). If appellant’s current attorney, Charles L. Honey, will concede by affidavit that it was his fault that the record was not filed, or if other good cause is shown, then the motion will be granted. The present motion for rule on the clerk is denied.


author: Bradley D. JESSON, Chief Justice. TOM GLAZE, Justice.

text:
    Phil STRATTON v. Sharon PRIEST, Secretary of State; Charlie Cole Chaffin, Intervenor
    96-1150
    932 S.W.2d 321
    Supreme Court of Arkansas
    Opinion delivered October 29, 1996

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Deputy Att’y Gen., and Wendy K. Michaelis, Ass’t Att’y Gen., for appellee.

      Boswell, Tucker, Brewster & Hicks, by: Ted Boswell, for intervenor.
   Bradley D. JESSON, Chief Justice.

On July 15, 1996, Jim Guy Tucker resigned as Governor of the State of Arkansas. Lieutenant Governor Mike Huckabee became Governor, pursuant to Ark. Const., amend. 6, § 4. His succession left a vacancy in the office of Lieutenant Governor. On July 30, 1996, pursuant to Ark. Code Ann. § 7-7-105 (Repl. 1993), Governor Huckabee issued a proclamation calling for a special election to fill the vacancy. The election was called for November 5, 1996, the date already scheduled for the 1996 general election.

On August 26, 1996, the appellant filed a complaint in Pulaski County Chancery Court challenging the constitutionality of Ark. Code Ann. § 7-7-105. On September 9, 1996, he filed an amended complaint, seeking a declaration that the statute was in conflict with the Arkansas Constitution and maintaining that any funds spent on the special election would constitute an illegal exaction. He further prayed that the Secretary of State be enjoined from certifying any candidate for Lieutenant Governor on the November 5 election ballot. One of those candidates is Charlie Cole Chaffin, the inter-venor in this case. The chancellor rejected the appellant’s challenge and ruled that § 7-7-105 does not conflict with the Arkansas Constitution. We agree and affirm.

The appellant contends that § 7-7-105 offends the “orderly succession in the executive branch” provided for in Ark. Const., art. 6, § 14, and Ark. Const., amend. 6, § 5. Article 6, § 14, is an original provision of our 1874 constitution. It required a special election to fill a vacancy in the office of Governor when the office was vacated with more than twelve months remaining in the Governor’s term. No provision was made in the 1874 constitution for the office of Lieutenant Governor. Conflicting interpretations of Section 14 and other sections of Article 6 resulted in a gubernatorial succession crisis in the early part of this century. As a result, Amendment 6 was adopted by a vote of the people in 1914. Amendment 6 created the office of Lieutenant Governor and took up the matter of gubernatorial succession. See Bryant v. English, 311 Ark. 187, 843 S.W.2d 308 (1992), for a detailed rendition of the history of these constitutional provisions.

Section 5 of Amendment 6 is entitled “Qualifications and Duties of Lieutenant Governor — Succession to the Governorship.” It reads as follows:

The Lieutenant Governor shall possess the same qualifications of eligibility for the office as the Governor. He shall be President of the Senate, but shall have only a casting vote therein in case of a tie vote. If during a vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office or be absent from the State, the President of the Senate shall act as Governor until the vacancy be filled or the disability shall cease; and if the President of the Senate for any of the above causes shall become incapable of performing the duties pertaining to the office of Governor, the Speaker of the Assembly shall act as Governor until the vacancy be filled or the disability shall cease.

The appellant argues that § 5 requires any vacancy in the office of Lieutenant Governor to be filled by succession, not by election. The appellant misunderstands the purpose and spirit of § 5. It addresses the subject of gubernatorial succession. It answers the question, “In case of a vacancy in the office of Governor, who shall be Governor?” The subject of succession to the office of Lieutenant Governor is not addressed.

Acts of the General Assembly are presumed to be constitutional and will only be struck down where there is a clear incompatibility between the act and the state constitution. Clinton v. Clinton, 305 Ark. 585, 810 S.W.2d 923 (1991). Neither art. 6, § 14, nor amend. 6, § 5, is concerned with filling vacancies in the office of Lieutenant Governor. Therefore, § 7-7-105 does not conflict with those provisions.

The only reference in the Arkansas Constitution to vacancies in the office of Lieutenant Governor is contained in Amendment 29. That amendment provides for gubernatorial appointment to fill vacancies in most elected offices. However, it excepts from the Governor’s appointment power vacancies in the offices of Lieutenant Governor, member of the General Assembly, and United States Congressional Representative. These are the very offices that are to be filled by special election under § 7-7-105. Thus, the Arkansas Constitution and § 7-7-105 exist in harmony.

The appellant also makes a rather offhand argument that § 7-7-105 is incompatible with § 3 of Amendment 6. He claims that the statute “attempts to nullify the provisions of Amendment 6, § 3, that require the Governor and Lieutenant Governor be elected at the same time in the same election.” The appellant probably means to refer to § 2 of Amendment 6, which provides that the Lieutenant Governor “shall be chosen at the same time and for the same term” as the Governor. Section 2 addresses the ordinary situation in which an election is held at the end of the current officeholder’s term. It does not contemplate the situation in which a vacancy in office must be filled. Thus, § 7-7-105 and § 2 do not conflict.

In light of our holding, the appellant’s request for attorney fees pursuant to Ark. Code Ann. § 26-35-902 (Supp. 1995) need not be addressed.

Affirmed.

Dudley and Glaze, JJ., dissent.

ROAF, J., not participating.

TOM GLAZE, Justice.

The simple answer to this election case is that the chancery court, deciding it below, did not have subject-matter jurisdiction. Therefore, this appeal should be dismissed. Someday in the not-too-distant future, this court will be forced to resolve the subject-matter-jurisdiction issues its more recent cases (including this case) have caused the bench and bar, when determining where to file election actions — in equity or at law.

First, I emphasize that this is an election case, not an illegal-exaction one, and that this court has clearly held that the chancery court has no jurisdiction in matters pertaining to elections. State v. Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169 (1989); see also Curry v. Dawson, 238 Ark. 310, 379 S.W.2d 287 (1964). Moreover, in Foster v. Jefferson County Quorum Ct., 321 Ark. 105, 901 S.W.2d 809 (1995), this court, quoting from Jackson v. Munson, 288 Ark. 57, 701 S.W.2d 378 (1986), stated the following:

While it is true we have been liberal in permitting illegal exaction suits, we have held that an illegal exaction complaint was not proper where exclusive jurisdiction of the underlying matter was conferred on the circuit rather than the chancery court. (Emphasis added.)

In the present case, the appellant’s underlying action seeks declaratory relief holding the Governor’s proclamation, calling a special election to fill the existing vacancy in the Office of Lieutenant Governor, to be unconstitutional. Assuming entitlement to such relief, his complaint requests that the Secretary of State be enjoined from certifying the votes cast in the candidates’ race for that office.

In Catlett v. Republican Party of Ark., 242 Ark. 283, 413 S.W.2d 651 (1967), this court clearly held that cases like the one before us must be filed in and decided by a court of law. Catlett has never been overruled. The Catlett court clearly enunciated the rule as follows:

[C]ourts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if any, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. (Emphasis added.)

Here, appellant’s suit is an attempt to restrain the holding and certifying of the election results in the Lieutenant Governor’s race. As is clearly explained in Catlett, chancery court has no authority to restrain the holding of an election or control the conduct of an election. Consequently, the chancellor should have dismissed the appellant’s complaint.

The appellant was well aware of his jurisdiction problem below after appellees filed a motion to dismiss appellant’s complaint for want of equity jurisdiction. Consequently, he added language to his complaint, alleging the Secretary of State’s certification of election results would be an ultra vires act and therefore result in an illegal exaction of state funds. In adding this language, appellant seems to rely on our recent case of Priest v. Polk, 322 Ark. 673, 913 S.W.2d 902 (1995), a plurality decision, where the court said that the question of subject-matter jurisdiction is determined by the “characterization” of the case.

Appellant’s argument simply ignores our Foster decision, which holds that an illegal exaction complaint is not proper where exclusive jurisdiction of the underlying matter is conferred in circuit court. It is important to note that, in Craighead County Bd. of Election Comm’rs, 300 Ark. 405, 779 S.W.2d 169, this court not only emphasized Arkansas’s case law establishing chancery court has no jurisdiction in election matters, but also this court sanctioned mandamus and declaratory relief as the proper methods of enforcing our state’s election laws. Mandamus, of course, lies only in circuit court. Accordingly, appellant here should have filed his action in circuit court, asked that court to declare Arkansas’s election law, Ark. Code Ann. § 7-7-105 (Repl. 1995), unconstitutional, and requested the Secretary of State be mandated to remove the Lieutenant Governor’s race from the ballot or not certify the votes cast in that race.

In sum, our case law simply does not permit a plaintiff (appellant here) to “characterize” (or recharacterize, if you will) his underlying action to be an illegal exaction action when the core issue is enforcement of Arkansas’s election laws, namely, whether § 7-7-105 is constitutional and, therefore, provides the people with the political right to vote for a Lieutenant Governor at a special election.

In a concurring opinion in Polk, I voiced my concern that subject-matter jurisdiction questions would continue to arise in the filing of these election statutory and constitutional matters unless this court clarifies for the bench and bar what is expected of them. In this regard, the court in my view should follow the clear dictates and principles set out in the Curry, Foster, Craighead County, and Catlett cases. The majority decision today simply ignores these cases.

I would dismiss this case for lack of subject-matter jurisdiction.

Dudley, J., joins this dissent.

       The appellant filed his notice of appeal on September 26, 1996. The record was filed with this court the next day. We granted the appellant’s motion for expedited consideration. Final briefs were filed on October 16, 1996.


author: BRADLEY D. Jesson, Chief Justice. Tom Glaze, Justice,

text:
    John GULLICK v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    95-830
    931 S.W.2d 786
    Supreme Court of Arkansas
    Opinion delivered November 4, 1996

      Steven S. Zega, for appellant.

      Deborah C. Reagan, for appellee.
   BRADLEY D. Jesson, Chief Justice.

This appeal is brought by John Gullick, the father of Angela Gullick. He appeals from two orders of the juvenile division of chancery court. The first order, entered April 17, 1995, placed Angela in the custody of the Department of Human Services. The second order, entered April 24, 1995, denied Mr. Gullick’s petition for a writ of habeas corpus seeking Angela’s return to parental custody. We affirm.

Angela is the younger of two daughters of John and Shariee Gullick. The girls have lived with their father most of their lives, their mother not having been present for many years. The older daughter, Julia, was voluntarily placed into foster care by John Gullick in 1993. In November of 1994, the Department of Human Services began an investigation into allegations that Mr. Gullick had physically abused Angela. The investigation revealed that on November 10, 1994, Angela, along with her stepmother Debbie Gul-lick and Debbie’s child Amanda, returned home from a meeting to find John Gullick enraged and possibly intoxicated. Mr. Gullick wrapped a jacket around Angela’s neck and tried to choke her. Angela was twelve years old at the time. She is also blind.

Debbie Gullick left the home the next day, taking both Amanda and Angela with her to a women’s shelter in Fayetteville. Mrs. Gullick found her own place in December and moved out of the shelter. During this period, she maintained physical custody of Angela. Divorce proceedings began between Debbie and John Gul-lick. During the course of those proceedings, John Gullick asked the chancellor to return custody of Angela to him. Debbie Gullick, having no biological relation to Angela, was required by the chancellor to return Angela to her father. The chancellor made his ruling on Wednesday, January 25, 1995. That same day, the Washington County prosecutor’s office filed a Family In Need of Services (FINS) petition in the juvenile division of chancery court. The petition called for a hearing the following Monday and prayed that the court order disposition of the care, custody and control of Angela. By amended petition on January 27, the prosecutor incorporated the affidavit of Debbie Gullick, which described the November 10 incident.

After a request for a continuance by John Gullick, the hearing was held on Thursday, February 2, 1995. The prosecutor offered substantial evidence that John Gullick wrapped a jacket around Angela’s neck and tried to choke her on November 10. There was also evidence that John Gullick had an alcohol-dependency problem, had threatened witnesses regarding their testimony, and had attempted suicide. Finally, Ms. Weller, a child advocate at the Fayetteville women’s shelter, testified that Angela had told her that she would run away if sent back to her father and that she would rather kill herself than be returned to his custody.

At the close of the hearing, the prosecutor and the guardian ad litem recommended that Angela be placed in foster care. The prosecutor told the court that she was most concerned about Angela’s immediate safety and that she considered the situation an emergency. The judge declared that he wanted to put Angela in a safe place and was especially mindful of Angela’s statements that she might run away or kill herself if returned to her father’s custody. He ordered Angela placed into the custody of the Department of Human Services and ordered the preparation of a case plan with an eye toward reunification of the family.

The court’s ruling was memorialized in an order entered April 17, 1994. In the interim between the hearing and the entry of the order, John Gullick filed a petition for a writ of habeas corpus. In the petition, he claimed that the court was required by Ark. Code Ann. § 9-27-328 (Repl. 1993) to make specific findings before removing a child from a parent’s custody and that, in the absence of such findings, custody of Angela should be returned to him. The court denied the petition by order entered April 24, 1995.

On appeal, John Gullick argues that a juvenile court cannot deprive him of the custody of his child unless the court takes the steps and makes the findings mandated by § 9-27-328(a). That statute, as it appeared on February 2, 1995, read as follows:

Before a juvenile may be removed from the parent, guardian, or custodian of the juvenile by order of a juvenile court, excluding commitments to youth services centers, the court shall order family services appropriate to prevent removal or to reunify the family and, in its orders, make these specific findings:
(1) Whether removal of the juvenile is necessary to protect the juvenile, and the reasons therefor;
(2) Which family services were made available to the family before removal of the juvenile;
(3) What efforts were made to provide those family services relevant to the needs of the family before the removal of the juvenile;
(4) Why efforts made to provide the family services described did not prevent removal of the juvenile; and
(5) Whether efforts made to prevent removal of the juvenile were reasonable, based upon the needs of the family and the juvenile.

These findings are not to be viewed as mere formalities. Congress requires that, before a state may be eligible for federal matching funds, the removal of a child from the home must be the result of a judicial determination that “reasonable efforts” were made, prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to return to his home. See 42 U.S.C. § 671(a)(15) and § 672(a)(1). Public Law 96-272, popularly known as the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 - 676 (1985 and Supp. 1996), was passed by the Congress for the purpose of shifting emphasis in federal programs toward preventive services to allow children to remain safely at home rather than being placed in foster care. See generally In-Interest of S.A.D., 382 Pa. Super. 166, 555 A.2d 123 (1989). However, Arkansas law recognizes that there are certain situations in which it may be impractical or unwise to leave a child in the home. Under Ark. Code Ann. § 9-27-328(b), the federal requirement that reasonable efforts be made to prevent removal of a child from the home is deemed to have been met in the following situation:

Where the state agency’s first contact with the family occurred during an emergency in which the juvenile could not safely remain at home, even with reasonable services being provided, the responsible state agency shall be deemed to have made reasonable efforts to prevent or eliminate the need for removal.

Given the evidence in this case, Angela Gullick could not remain safely at home with her father. While living with him on November 10, she had been subject to serious and frightening physical abuse. Further, there is no question that the situation necessitating her removal constituted an emergency. After the November 10 incident, Angela was immediately removed from the household under the protection of her stepmother. When it became clear during the divorce proceeding that Angela would be returned to her father’s custody, the prosecutor’s office took prompt action, filing a petition and seeking an immediate hearing.

Mr. Gullick argues that the state agency’s “first contact” was not during an emergency, as required by subsection (b). He points to the fact that the DHS began investigating the November 10 incident shortly after it occurred and that this “first contact” occurred long before a petition was filed by a state agency. Even if we were to consider the investigation to be the “first contact” for purposes of this statute, the investigation occurred as the result of an emergency situation, that being the serious physical abuse of the child by her father. In any event, the first affirmative action taken by a state agency for the purpose of seeking a custody disposition occurred on January 25, 1995, the very day when it appeared that Angela would be returned to her father’s custody. Under the disturbing circumstances of this case, such a return to parental custody constituted an emergency.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. At oral argument, the question was raised concerning whether a final order had been entered in this cause below from which appellant John Gullick could bring an appeal. In my opinion, there was not.

The parties agree that this action started as a family in need of supervision (FINS) case, and the custody of Gullick’s child was placed with the Department of Human Services (DHS). In such cases, DHS is to produce a case plan within thirty days of placement and the case is subject to a periodic six-month court review until a permanent order of custody is entered or the juvenile is returned to the parent or the court has discontinued orders for family services. See Ark. Code Ann. §§ 9-27-328, 9-27-332, 9-27-337 (Supp. 1995).

This court has held many times that an order, decree, or judgment must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy before it is appealable. This court has also held that a trial court’s temporary order awarding custody of a child is not appealable if such custody case remains pending subject to a trial on the merits. See Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Ark. R. App. P. 2(a). Citing the Chancellor case, the court of appeals in Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993), stated the rule as follows:

. . . the Arkansas Supreme Court clarified the law regarding appealability of temporary child custody orders by holding that a mere temporary award of custody pending trial on the merits is not appealable, but an award of custody, even if expressly stated to be temporary, is final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof. In the case at bar, the appellant’s motion to expedite is grounded on her assertions that she had not yet completed her proof in this case. Therefore, the decree in this case is a temporary award pending trial on the merits, and is nonappealable pursuant to Chancel-lory. Chancellor.

In the present case, the Washington County Juvenile Court entered an order dated April 17, 1995, finding (1) the child and her family are in need of services, (2) the child should be placed with DHS, (3) Mr. Gullick was directed to perform a number of duties (submit an affidavit of financial means, sign a release for certain information, and submit to drug testing), and (4) the court would conduct periodic six-month reviews. Obviously, since the trial court ordered certain directives to be done and other hearings to be conducted in the future, the order was temporary and under the rationale of the Chancellor and Jones cases, was not appealable.

I have looked elsewhere without success to determine if there might be a case, rule, or statute under which a parent might appeal a temporary custody order entered in a FINS or dependent-neglect case. Instead, I find that Ark. Code Ann. § 9-27-343(a) (Repl. 1993), requires that all appeals from juvenile court shall be made to the Arkansas Supreme Court or Court of Appeals in the same time and manner provided for appeals from chancery court. (Emphasis added.) Thus, § 9-27-343(a) appears consistent with the rule set out above in the Chancellor and Jones cases. I would further point out that Chancellor in particular cited Ark. R. App. P. 2(a) when holding that a temporary custody award is not a final appealable order.

At oral argument, Gullick referred to the language in § 9-27-343(c) and suggested that that subsection anticipates an appeal of an out-of-home placement decision, since it provides that, “if a final decision from the appellate court is not rendered within six months from the date of entry of the notice of appeal, the Director of the Administrative Office of the Courts shall designate either a foster-care magistrate or a juvenile judge of another court to conduct a review of the case.” While that language is bothersome and confusing, I would submit subsection (c), as enacted under Act 273 of 1989, was a part of the General Assembly’s failed effort to provide appointed magistrates (or masters) to hear juvenile cases. This court held that the appointment of such officials constituted an unauthorized grant of legislative authority and an impermissible creation of what amounts to substitute judges. See Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989).

For the reasons stated above, I believe Gullick’s appeal should be dismissed, since he appealed from a nonappealable order. At the same time, I would like to suggest that this court’s Committee on Civil Practice or the General Assembly study and determine if, for appeal purposes, a temporary custody order entered in a juvenile court’s FINS or dependent-neglect hearing should be considered differently from one entered in a chancery court proceeding. If so, a rule or law should be promulgated or enacted clearly providing for such an appeal.

       The 1995 amendments to § 9-27-328 contained in Acts 533 and 1337 of 1995, were not in force at the time of the February 2, 1995 hearing.

       The Department of Human Services filed a motion to strike a portion of the appellant’s record and abstract. That motion is-rendered moot by our decision.

       Rule 2(a) sets out what orders may be appealed from a circuit, chancery, or probate court.