text:
    Charles JOHNSON, County Judge v. SUNRAY SERVICES, INC.
    90-329
    816 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      George E. Butler, Jr., Washington County Attorney, for appellant Washington County.

      James G. Lingle, P.A., by: George D. Oleson, for appellants.

      Robert B Leflar, amicus curiae, for Ozark Headwaters Group of the Sierra Club.

      The Niblock Law Firm, by: Walter R. Niblock, amicus curiae, for Beaver Water District.

      Davis Cox, & Wright by: Wm. Jackson Butt, II and Tim E. Howell, for appellees.
   Robert L. Brown, Justice.

This appeal comes to us from a decree by the chancery judge voiding a Washington County quorum court ordinance to regulate solid waste disposal facilities (“landfills”) on constitutional grounds. The appellants are Washington County, members of the quorum court and other Washington County officials. The appellee is Sunray Services, Inc. (“Sunray”), a corporation that provides solid waste disposal services and that had applied to the quorum court for site approval to provide such landfill services at Durham in Washington County. The effect of voiding the quorum court ordinance was to allow Sunray to proceed with plans to construct the landfill.

The appellants raise several issues on appeal, but we reverse on the issue of whether the ordinance was rationally related to a legitimate government purpose. We hold that it was. We further decline to affirm on the basis of the various issues raised by Sunray as additional arguments in support of the chancellor’s decree.

The facts in this case are largely without dispute, although the findings and conclusions that can be gleaned from them are the subject of intense controversy. On June 30, 1989, Miller Matthews, chairman of the board and sole shareholder of Sunray, acquired 1,850 acres in the Durham area and immediately granted Sunray an option to purchase that land. On July 14, 1989, Sunray requested site approval for a landfill in a letter to the quorum court. The quorum court referred the request to its Environmental Affairs Committee (“EAC”). Under the rules of the Arkansas Department of Pollution Control and Ecology (“Pollution Control”) the request had to be acted on within sixty days, or the request would be deemed approved.

Over the next sixty days the EAC had two meetings in which Sunray’s request was discussed — July 25,1989, and August 21, 1989. At the first meeting EAC heard comments from citizens opposed generally to landfills and from a geologist opposed to the specific site. Sunray consultants also discussed the proposed Durham site before the committee. At the close of the meeting, the committee recommended a moratorium on any new landfills in the county until a regional study could be completed.

The quorum court considered landfill limits in general and the Durham site in particular at its August 10, 1989 meeting. Public comment was received regarding buffer zones from main water supplies and a landfill moratorium. Sunray’s counsel spoke in favor of the Durham proposal. The meeting ended with the quorum court’s sending the moratorium issue back to EAC for additional consideration.

On August 21,1989, EAC considered and heard comments on the Durham proposal, Sunray’s past record, buffer zones for landfills in general, and pending Environmental Protection Agency regulations. Sunray’s attorney also answered questions about the project and spoke in favor of it. The committee concluded the meeting by recommending that the quorum court adopt more restrictive landfill standards than Pollution Control had done.

The quorum court met again on September 14, 1989. At a prolonged meeting a general restriction ordinance was discussed as well as Sunray’s site proposal. Citizen comments were received both in favor of a restrictive ordinance and opposed. Richard Starr, the Beaver Water District director, and Dr. Richard Meyer, a limnologist, spoke in favor of some buffer zone between landfills and main water sources. Sunray’s counsel made a presentation in favor of the site proposal. By a vote of 11 to 2 the quorum court passed Ordinance No. 89-23, which established a two-mile buffer zone between landfills and main water sources. That ordinance reads in pertinent part:

ARTICLE 1. No hazardous or other solid waste disposal facility as defined by Arkansas law shall be located within two (2) miles of the main water sources within Washington County, specifically Beaver Lake, Illinois River, Middle, Main and West Forks of the White River, Lee Creek, Prairie Grove Lake, Lincoln Lake, Clear Creek, Spring Creek, Fall Creek, Richland Creek, Barron Fork, Fly Creek, Wedington Creek, Cove Creek, Muddy Fork, Ballard Creek, Evansville Creek and Cincinnati Creek, and any other main water source so designated by the Quorum Court.

The ordinance included civil remedies for violations and an emergency clause making it effective immediately. The quorum court then heard from two Sunray consultants on the issue of the landfill request at Durham. The Sunray consultants did not discuss the effectiveness of a buffer zone to protect main water sources. Armed with the ordinance, the quorum court promptly denied Sunray’s Durham site request on the basis that the site fell within two miles of the Middle Fork of the White River — a main water source listed in the ordinance and a Beaver Lake tributary.

Sunray appealed the quorum court’s decision to Pollution Control on October 6, 1989, by filing a preapplication for a landfill with that department and requesting the Director of Pollution Control to review the quorum court’s actions. The director did conduct a review, and on December 27, 1989, he overruled the quorum court’s denial and authorized Sunray to continue with the preapplication process for site approval. Before Pollution Control could make its site evaluation, the state Attorney General issued an opinion on February 27, 1990, which caused the director of Pollution Control to halt all further activity relative to the Durham site until the issue of the ordinance’s validity and the denial of Sunray’s request by the quorum court could be finally decided.

Sunray filed suit on March 2, 1990, to have the ordinance declared unconstitutional and invalid, and Washington County counterclaimed to enjoin Sunray from violating the ordinance. Trial was held before the chancellor on May 29-30, 1990. Sunray’s testimony consisted of evidentiary depositions of quorum court members and live testimony of a Pollution Control hydrogeologist (Mark Witherspoon), an engineer employed by SCS Engineers of Covington, Kentucky (Jim Walsh), a second hydrogeologist (Dr. William White, a professor at Pennsylvania State University), and its owner (Miller Matthews). Washington County offered the testimony of quorum court member and EAC Chair Lois Imhoff, and that of Beaver Water District director Richard Starr.

The decree of the chancery judge was entered on August 3, 1990. It struck down the ordinance as unconstitutional on due process and equal protection grounds and it further dismissed Washington County’s counterclaim. In the decree the chancellor made findings of fact, including the following:

(16) That the overwhelming testimony of the experts reflects that proximity to a water source is not a reliable basis for predicting whether a landfill may pollute nearby streams or rivers.
(17) That the experts convincingly established that rational and objective factors to consider in siting a landfill include geology of the land, degree of slope, directional flow of ground water, and the texture of the soil.
(18) That Washington County Ordinance No. 89-23 as adopted was not based upon rational and objective factors but rather upon negative attitudes and fears, community opposition and adverse public sentiment.
(19) That while genuinely wanting to protect water sources in Washington County, members of the Quorum Court arbitrarily and irrationally adopted Ordinance No. 89-23 to deny Sunray’s request for specific geographic site approval and to halt its effort to site a landfill at the Durham Site.
(20) That by enacting Ordinance No. 89-23 the Quorum Court has effectively blocked Sunray’s application process without specifically naming any factors which inherently threaten the public health, welfare, safety and environment regardless of proper design and operation of the landfill.
(21) That by enacting Ordinance No. 89-23, the Quorum Court has effectively denied all potential landfill operators and potential users of land for landfill purposes the right to pursue an application process without naming factors which inherently threaten the public health, welfare, safety and environment regardless of proper siting, design and operation of the landfill.

The decree also contained these conclusions of law:

(4) That Washington County Ordinance No. 89-23 bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of due process of law. U.S. Const. Amend. XIV, Section 1; Ark. Const. Art. 2. (Citing case authority.)
(5) That Washington County Ordinance No. 89-23 creates an unlawful classification against landfill operators and users of land for landfill purposes which bears no rational relation to any legitimate governmental purpose and is therefore unconstitutional, illegal, invalid and unenforceable as a violation of equal protection of law. U.S. Const. Amend. XIV, Section 1. (Citing case authority.)

In deciding this case we first consider the pollution threat involved. With landfills the threat of pollution of water sources is directly related to underground water flow. This is so because the potential exists for landfill refuse to mix with rain, seep underground, travel along the underground water course for some distance, and eventually pollute surface water sources. There was considerable expert testimony offered by Sunray at trial that surface conditions and distance bear little or no relationship to the direction of underground water flow. Indeed, virtually all of the scientific testimony presented at trial supported Sunray’s contentions. Mr. Witherspoon of Pollution Control testified that distance is not a valid criterion for a landfill site’s suitability and that he could find no rational basis for imposing a two-mile buffer zone. Prohibiting landfills within two miles of surface water without proper study and adopted criteria and without empirical justification for doing so was arbitrary and irrational in his opinion. He admitted that distance might be a factor where geologic studies have been done and where “you have a good definition of the geologic structure.”

Dr. White testified that a two-mile buffer zone provides no protection at all against landfill pollution of water sources. Underground geology controls, he testified; not distance from surface waters. He further stated that Northwest Arkansas does have a subsurface geology that could cause underground water to flow in any direction, including the opposite direction from where surface water is located. He knew of no rationale for requiring a minimum distance between landfills and surface water. Dr. White admitted that he had not done extensive field investigations in Northwest Arkansas.

A third expert called by Sunray was Jim Walsh, an engineer retained to work on the landfill site. He also testified that there was no rational explanation for prohibiting a landfill as far away as two miles from surface water. Any monitoring or control of contamination from the landfill should occur within 300 feet of the site, he stated. Otherwise, the contamination plume spreads out as it covers a greater distance and is impossible to contain. Walsh stated that there was no justification for a setback requirement beyond 300 feet. He was, however, aware of three states that had distance requirements of up to 1,000 feet.

The appellants countered this testimony with the live testimony of quorum court member and EAC chair, Lois Imhoff, and Beaver Water District engineer and director, Richard Starr. Lois Imhoff testified that two miles was a compromise and that some quorum court members had argued for five miles. She said that Richard Starr spoke in favor of the ordinance to protect the drinking water and recreation uses of Beaver Lake as did Dr. Richard Meyer, a University of Arkansas limnologist, who studies lake qualities. She admitted that no analysis had been done on the effect the rivers named in the ordinance had on drinking water or recreation. Her testimony was followed by that of Richard Starr, who stated that he opposed all landfill sitings within the Beaver Lake watershed because of the impact on water quality. He testified that the ordinance did have a rational basis since distance offers some protection against pollution and provides an area to work in in the event of a leaking problem. He disagreed with the conclusion that controlling contamination could only effectively occur within 300 feet of the landfill.

In the evidentiary depositions of quorum court members and other appellants submitted by Sunray, some quorum court members alluded to public sentiment and common sense as justifications for the ordinance. Some members also admitted the direct correlation between adopting the ordinance and denying Sunray’s request for site approval. .

I.

ARBITRARINESS

The first question confronting this court is whether the ordinance is so lacking in any rational relationship to a government purpose so as to be arbitrary and constitute a due process violation. We think not. We have long subscribed to a lenient rational basis test in Arkansas. This test is best set forth in a 1983 tax case. See Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). There, we noted that the legislature is better equipped than the courts to investigate the arbitrariness of a certain tax exemption aimed at out-of-state retirees. We then said:

Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose. Since we can reasonably conceive of lawful purposes for the state’s classification scheme, it may not be held to have been arbitrarily enacted.

280 Ark. at 215, 655 S.W.2d at 464. Hence, any rationale that is a lawful purpose will void a constitutional challenge for arbitrariness.

The Washington County quorum court was empowered to adopt landfill standards more restrictive than those of Pollution Control. See Ark. Code Ann. § 8-6-209 (Repl. 1991). By enacting a local zoning ordinance, the quorum court was exercising a legislative function, and the ordinance is subject to judicial scrutiny only to determine whether it is arbitrary, capricious, and unreasonable. See Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Absent arbitrariness or unreasonableness, the local ordinance should stand because the judiciary does not review the wisdom or rightness of legislation. Id.; see also West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

We believe a rational basis was embraced by the quorum court and supports this ordinance. Admittedly, no studies or analyses of the sub-surface geology had been made of the area in question by either party. And Sunray’s case was replete with testimony that a) underground waterways may well not correspond to surface waterways due to sub-surface geology, and b) distance could work to impede the control of pollution emanating from the landfill. On the other hand Lois Imhoff testified that Dr. Richard Meyer and Richard Starr had told the quorum court that a buffer zone could provide protection and a safety area to correct leaking problems. Richard Starr confirmed that point of view to the chancellor in live testimony.

The goal of the quorum court was to protect water sources from landfill pollution — certainly a legitimate objective. It adopted an ordinance which endorsed a two-mile buffer zone as a means of doing this. We will not dismiss distance as a totally arbitrary reason for the ordinance when the record contains support for this position from the testimony of Richard Starr as well as other public comment, and when the quorum court members say they looked to common sense for additional support for their position. We are especially reluctant to give total credence to Sunray’s experts when their testimony was premised to some extent on sub-surface geology, and no tests or analyses have been performed to ascertain the geology between Durham and the Middle Fork of the White River.

We also note that other jurisdictions have looked to distance as a meaningful criterion for limiting landfill sitings. See Fla. Stat. Ann. § 403.707(5) (West Supp. 1990) (3,000 feet as the limiting distance); R.I. Gen. Laws § 23-18.9-9.1() (Reen. 1989) (total prohibition in watersheds for drinking water); RSA 483:4 (XVIII) (Supp. 1990) (1,320 feet from normal high water mark of designated natural rivers).

The chancery judge appears to some extent to have weighed the efficacy of competing methods for combating landfill pollution. In doing so, he looked to the fact that “overwhelming testimony” negated proximity to water as a reliable basis for predicting landfill pollution. The appropriate inquiry, however, was to ask whether a two-mile distance could have any bearing on landfill containment. For the ordinance to be arbitrary there must be a finding that it could have absolutely no bearing on the objective, and the testimony before the chancellor was conflicting on that point.

We, therefore, hold that the findings of the chancery judge pertaining to the arbitrariness of the ordinance and the absence of a legitimate rationale to sustain it to be clearly erroneous. We further hold that the chancellor erred as a matter of law in concluding that there was no rational relationship between the ordinance and pollution containment, since the quorum court members could have determined from the information before them that distance was a legitimate rationale for the ordinance.

II.

EQUAL PROTECTION

The chancery judge concludes in his Decree that the ordinance creates an unlawful classification against landfill owners and operators, but he does not define the favored class. Nor does Sunray in its complaint. The classification alleged could be between landfill owners within the buffer zone and other businesses in Washington County; or between landfill owners in the zone and landfill owners outside of the zone; or between landfill owners in the zone and other businesses in the zone. Our review is hampered by not knowing precisely what is the classification in question.

Clearly, Sunray and other similarly situated landfill owners in the buffer zone are singled out. Nevertheless, though a classification may exist in state law, any rational basis which demonstrates the possibility of a deliberate nexus with legitimate state objectives will save the ordinance. Arkansas Hosp. Ass’n v. Arkansas State Board of Pharmacy, 297 Ark. 454, 763 S.W.2d 73 (1989); see also Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).We have already held in this case that such a rational basis exists, and the U.S. Supreme Court has further held that the judiciary should not sit as a superlegislature to judge the wisdom or desirability of legislative policy in equal protection cases which do not affect fundamental rights and where regulation of local economic matters is involved. See City of New Orleans v. Dukes, 427 U.S. 297 (1976) (per curiam). We, accordingly, reverse the chancellor’s conclusion that the ordinance establishes an arbitrary classification and violates the Equal Protection Clause.

III.

PREEMPTION

The chancellor acknowledged in his decree that the quorum court was authorized by state law to adopt more restrictive landfill standards than Pollution Control under Ark. Code Ann. § 8-6-209 (Repl. 1991). He went on to state that these standards must not conflict with any state law, but he did not find or conclude that such a conflict existed. In his memorandum opinion handed down the same date as his decree, he specifically says that if the ordinance had had a rational basis, it would not have been inconsistent with state or federal law.

The Solid Waste Management Act was passed by the Arkansas General Assembly in 1971. See Ark. Code Ann. § 8-6-201, et seq. (1987). During its last two regular sessions the General Assembly passed two comprehensive amendments to the Act. Act 870 of 1989 and Act 752 of 1991, now codified at Ark. Code Ann. § 8-6-201, et seq. (Repl. 1991 and Supp. 1991). The stated purpose in both Acts was to remedy disparities among the counties in their capacity to dispose of solid waste and in their ability to implement environmentally responsible operations. Both acts establish regional districts and create regional boards to adopt solid waste plans and to issue landfill permits.

Neither Act 870 nor Act 752 expressly repealed the counties’ authority to adopt more stringent landfill standards under Ark. Code Ann. § 8-6-209 (Repl. 1991). And like the chancellor we do not find a repeal of § 8-6-209 due to a direct conflict with inconsistent provisions in the two new acts. On this point we have been resolute in holding that repeals of statutes by implication are not favored. See City of Ft. Smith v. Driggers, 294 Ark. 311, 742 S.W.2d 921 (1988); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). Moreover, § 8-6-209 can be harmonized with the existing Solid Waste Management Act in that while regional boards are authorized to issue landfill permits under the Act, this does not preclude local governments from adopting additional landfill standards. In this same vein our County Government Code provides generally that it is consistent for the counties to promulgate more exacting standards of conduct than the state has adopted. See Ark. Code Ann. § 14-14-809(c) (1987) .

Sunray also advances the argument that the state and federal governments have preempted the area of solid waste management, including the issuance of permits, and further argues that when Pollution Control authorized Sunray to commence the preapplication process, the quorum court could not impede this action by passing an ordinance and refusing to approve the Durham site. Sunray adduces much case authority from other jurisdictions in support of its preemption argument. But the authority cited does not embrace a situation, such as we have here, where a state statute specifically authorizes the counties to adopt more stringent landfill standards than the state. In sum, the power of the quorum court to act as it did in this case in passing the ordinance is expressly recognized under state law in § 8-6-209, and that section has not been repealed. We hold that neither the Arkansas Solid Waste Management Act nor the Resource Conservation and Recovery Act have preempted the authority of local governments to adopt additional landfill standards as provided for in this statute. See 42 U.S.C. § 6901, et seq. (1988) ; Ark. Code Ann. § 8-6-201, et seq. (Repl. 1991 andSupp. 1991).

IV.

DE NOVO REVIEW

We agree with Sunray that in an appeal from a chancery court decision all issues raised before the chancellor are before this court for review. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). However, we do not find merit in Sunray’s de novo arguments.

a. Vagueness. Sunray contends that the ordinance is vague and overbroad in that it does not specify the factors that will determine “any other main water source,” it does not define “civil penalties,” and it does not state whether the two-mile buffer zone begins at the centerline of the river or the shoreline. The ordinance lists the primary water sources which vitiates this argument, while providing flexibility for the quorum court to expand on the list. There is also a legitimate flexibility in the civil penalties to be sought. Lastly, if it is the entire water source that is meant to be protected, common sense requires that the shoreline be the boundary of the buffer zone. Cf. Connally v. General Construction Co., 269 U.S. 385 (1926).

b. Separation of powers. Sunray attacks the ordinance on grounds that the quorum court retains the power to approve civil litigation brought by the EAC officer, in conjunction with the county judge. This shared authority with the county executive does not constitute a usurpation of executive power such as occurred in Chaffin v. Arkansas Game and Fish Commission, 296 Ark. 431, 757 S.W.2d 950 (1988).

c. Retrospective application. The ordinance was not applied retrospectively, as Sunray argues, but used prospectively to deny the application. Undeniably, the ordinance’s adoption and denial of the landfill application were closely related in the minds of some, if not all, quorum court members. But the ordinance was passed first and subsequently used as a means for dismissing the application.

d. Impairment of contract. No contract with Sunray was impaired by the adoption of the ordinance. The landfill site was purchased with full knowledge that it would not be operational without government approvals. Adoption of the ordinance was a facet of that approval process.

e. Planning Board referral. The Planning Board does have authority to prepare a zoning ordinance for the county. See Ark. Code Ann. § 14-17-209(a) (1987). But that is not exclusive authority which divests the quorum court of its power to adopt standards for the location of landfill sites. See Ark. Code Ann. § 8-6-209 (Repl. 1991).

f. Exclusionary zoning. Though Sunray contends that landfills, as a practical matter, are almost totally excluded throughout the county, this fact is disputed by the appellants. The chancellor made no finding on this point. Without a clear factual basis to sustain a holding of exclusionary zoning, we decline to so hold.

g. Bill of attainder. Sunray finally argues that the ordinance was a punishment directed specifically at its business and its landfill application in violation of the federal constitution and state law. See Ark. Code Ann. § 14-14-805(8) (1987). We disagree. While the Sunray application may have been the immediate catalyst for quorum court action, landfill standards were a source of on-going debate before the quorum court. The ordinance does not provide a specific penalty for Sunray or landfill owners in general. Followed to its logical end, Sunray’s argument suggests that all regulations, zoning or otherwise, which affect landowners are acts of attainder. That is not the law.

Reversed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Mark Anthony McKILLION v. STATE of Arkansas
    CR 91-73
    815 S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Keith N. Wood, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Sr. Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Mark Anthony

McKillion, was charged with breaking and entering and theft, with penalties to be assessed under the habitual offender statute. He was convicted of both offenses in the guilt phase of the bifurcated trial, and during the sentencing phase the trial court found that he was an habitual offender with four or more prior convictions and so instructed the jury. The court further instructed the jury that the sentence to be considered for the breaking and entering offense which is a Class D felony was eight to fifteen years under the habitual offender statute. See Ark. Code Ann. § 5-4-501 (1987). For burglary the jury was instructed that the punishment was ten to thirty years under the same act. Id. The jury sentenced the appellant to the maximum term in each case — fifteen years for breaking and entering and thirty years for burglary, with the two sentences to run concurrently.

At the time of the instruction on sentencing during the penalty phase, the appellant requested that the trial court also instruct the jury on sentencing for breaking and entering, which had a penalty of not more than six years, and under the burglary statute, which had a term of years of three to ten years. See Ark. Code Ann. §§ 5-4-401 (a)(4), 5-4-501(a)(5) (1987). The trial court refused to instruct the jury on penalties for the individual offenses, and that is the sole basis for the appellant’s appeal. We agree with the trial court’s decision.

The trial court was correct in instructing the jury under the habitual offender statute. We decided this identical issue as recently as last year. See Hart v. State, 301 Ark. 200, 783 S.W.2d 40 (1990); see also Woodson v. State, 302 Ark. 10, 786 S.W.2d 120 (1990). In Hart,the appellant also argued that an instruction on the penalties for the offenses charged should be given and that the language for penalties under the habitual offender statute was permissive since it used the term “may,” and, therefore, permitted an instruction of penalties under the non-habitual offender statute. We rejected the argument and held that the sensible meaning of the statute was to give the jury discretion to sentence only within the parameters set out in the habitual offender statute. We see no reason to reverse our position on this issue, and because the Hart case effectively disposes of the matter, we affirm.


author: Per Curiam.

text:
    James E. BUSH v. Sherrell BUSH
    RC 91-50
    816 S.W.2d 590
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Thomas R. Newman, for appellant.

      Carolyn Whitefield, for appellee.
   Per Curiam.

Appellant, James E. Bush, through his attorney, has tendered the record in this case, but the clerk has notified his attorney that the record on its face appears to be without the time allotted for docketing. Appellant insists the clerk is in error in refusing to file the record and has filed a motion for a rule on the clerk. See Rule 5 of the Rules of the Supreme Court and Court of Appeals. The rule is denied.

On January 30, 1991, the final decree was entered. On that same day the appellant filed a motion for a new trial. On February 8, 1991, he filed a notice of appeal. On February 27, 1991, the Chancellor took his motion under advisement and, on June 24, 1991, denied it. Appellant filed his second notice of appeal on July 15, 1991.

In 1988, we significantly amended Rule 4(c) and (d) in an effort to simplify Arkansas appellate practice.

Rule 4(c) of the Rules of Appellate Procedure now provides:

(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additonal [additional] fees shall be required for such filing. (Emphasis added.)

A part of the Reporter’s notes to the foregoing rule provides:

Thus, the 1988 amendment follows the more simplified procedure established in the federal rule, but adds a 30-day “window” for judicial action on postrial motions to prevent problems with excessive delay. Under Rule 4(c), a motion is deemed denied if the trial court neither grants nor denies the motion with 30 days of its filing, and, under Rule 4(d), the time for filing the notice of appeal begins to run at the end of that 30-day period. If, however, an order granting or denying the motion is acted upon within the 30-day period, the time for filing the notice of appeal begins to run upon entry of the order.

Appellant cites a number cases construing an older version of the rule. Under the older version of the rule, the 30-day period for filing a notice of appeal ran from the expiration of 30 days after the motion for a new trial was filed unless the motion was set for a hearing or was taken under advisement within 30 days after it was filed. See, e.g., Watts v. Reynolds, 286 Ark. 425, 692 S.W.2d 247 (1985). Rule 4(c) no longer contains the italicized language, and the cases interpreting the older version of Rule 4(c) are to be distinguished.

Rule denied.


text:
    IN THE MATTER OF THE ESTATE OF Janet Louise McLaughlin
    91-225
    815 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Gary Eubanks & Associates by: James Gerard Schulze, for appellee.

      George D. Ellis and Steven W. Quattlebaum, for appellee.
   Per Curiam.

Janet Louise McLaughlin died intestate on September 26, 1990, in an automobile accident. Her son, Justin Cardin, was injured in the same accident. She was survived by her husband, Greg McLaughlin; her injured son, Justin Cardin; her parents, Billy and Charlene Williams; and her brother and sisters.

On October 8, 1990, Billy and Charlene Williams filed a petition to be appointed guardians of the person and estate of their injured grandson, Justin Cardin. They were subsequently appointed guardians.

On October 11, 1990, in a separate probate proceeding, Greg McLaughlin was appointed administrator of the Estate of Janet Louise McLaughlin.

On May 28, 1991, Billy and Charlene Williams filed a pleading in the probate proceeding in which Greg McLaughlin had been appointed administrator of the Estate of Janet Louise McLaughlin. They labeled the pleading a “Petition for Right of Intervention to Protect Interest of Justin Cardin.” In it, they sought to be appointed special administrators of the Estate of Janet Louise McLaughlin. Underlying these pleadings is a dispute over whether Greg McLaughlin’s attorneys or Billy and Charlene Williams’ attorneys will represent Justin in his case against the third party tortfeasor. The trial court denied the petition for appointment of a special administrator. Billy and Charlene Williams seek to appeal. We dismiss the appeal.

Ark. Code Ann. § 28-1-116(b) (1987) provides:

(b) Orders Which Are Not Appealable. There shall be no appeal from an order removing a fiduciary for failure to give a new bond or to render an account as required by the court, nor from an order appointing a special administer.

Ark. Code Ann. § 28-48-103(f) (1987) provides:

(f) The order appointing a special administrator shall not be appealable.

The Williamses contend that the cited statutes prohibit the appeal of the appointment of a special administrator but do not prohibit the appeal of an order denying the same. We do not think the legislature intended the statutes to be so interpreted.

Our statutory interpretation is guided, in part, by decisions from other states which have similar statutory language.

In Graham v. Gipson, (In re Gibson’s Estate), 64 Ariz. 181, 167 P.2d 383 (1946), the Arizona Supreme Court, in interpreting a statute almost identical to those cited above, held:

The order [refusing to appoint a special administrator] , is not an appealable order under our statutes. There is no provision in [the Arizona Probate Code] providing for an appeal, either from the appointment or the refusal to appoint a special administrator. In fact, no appeal may be taken from an order appointing a special administrator. We hold that the converse of this statutory rule is also the law, and that there is no appeal from an order refusing to appoint a special administrator. (Emphasis added.)

167 P.2d at 384.

The Montana Supreme Court reached the same conclusion in McCabe v. District Court, 106 Mon. 272, 76 P.2d 634 (1938). In that case, the court, citing a state statute which provided that no appeal must be allowed from the appointment of a special administrator, held that there was no appeal from an order refusing to appoint a special administrator. Id. at 638.

Accordingly, we dismiss the appeal.


author: PER CURIAM. Tom Glaze, Justice,

text:
    Douglas Wayne EASTER v. STATE of Arkansas
    RC 89-66
    815 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered September 25, 1991

      Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen.', by: 01 an W. Reeves, Senior Asst. Att’y Gen., for appellee.
   PER CURIAM.

The motion for belated appeal is granted.

Dudley, Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. In a per curiam dated February 8,1988, this court outlined the pertinent facts of what occurred in this case after Douglas Easter was found guilty of aggravated robbery and sentenced to twenty years imprisonment. Easter perfected no appeal, but later filed a motion with this court to allow him a belated appeal because his retained attorney, Charles L. Honey, had failed to perfect an appeal even though Easter had requested Honey to do so. In response to Easter’s motion, Honey filed his response and affidavit stating he had advised both Easter and his family of his right to appeal. In our per curiam, we summarized Honey’s version of his communication with Easter and his family as follows:

After he informed Easter that the appeal would cost $2,500 plus the cost of the transcript, Easter elected not to proceed with an appeal. Honey also states in his affidavit that he informed Easter that if he was unable to afford an appeal, he would ask to be relieved as counsel so that Easter could ask the trial court to appoint an attorney to represent him on appeal at public expense. Honey contends that Easter held fast to his decision not to appeal even after being informed that he could apply to the trial court for indigent status.

Because a conflict arose in Easter’s and Honey’s versions about whether Easter had waived his right to appeal, we remanded the factual issue to the trial court. This court recognizes that it is the trial court’s task to assess the credibility of witnesses and resolve conflicts of fact. See Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982). The trial court resolved the issue, finding Easter had knowingly, intelligently and voluntarily waived his right to appeal. Based on that factual resolution, this court denied Easter’s motion for a belated appeal.

Easter later filed a habeas corpus petition in the United States District Court, Eastern District, Pine Bluff, and alleged ineffective assistance of counsel. The federal magistrate judge agreed with the state trial court and found that the state court’s finding of fact after an evidentiary hearing was presumed to be correct. See 28 USC § 2254(d). The magistrate recommended dismissal of Easter’s petition. The federal district court rejected the magistrate’s recommendation and disagreed that the state court’s findings should be presumed correct because the record did not show the trial court informed Easter of his right to appeal. The federal district court is wrong on this point.

At the evidentiary hearing before the state court, Honey testified that the trial judge told Easter he had thirty days to perfect an appeal and Easter agreed, saying, “I think [the judge] said something like that.” Easter was asked also whether the judge was on the bench when the judge told him he had thirty days to appeal and Easter responded, “Yes, sir, he could have.”

Regardless of whether the trial judge informed or did not inform Easter of his right to appeal, the record is replete with evidence that he was fully aware of his appeal rights. He admitted this knowledge in his handwritten motion seeking a belated appeal, and conceded that he discussed his desire to appeal on the day he was sentenced. Nonetheless, after Honey told Easter that he would handle his appeal for a fee of $2,500, Easter never discussed the appeal again with Honey. It is settled law that an attorney is not required to perfect an appeal when the petitioner who is aware of his appeal rights stands silent. Davis v. State, 293 Ark. 203, 736 S.W.2d 281 (1987); Munn v. State, 278 Ark. 283, 644 S.W.2d 945 (1983).

In my view, the state trial court’s findings and decision were amply supported by the record, and the federal district court is clearly wrong in ignoring those findings. Easter knew he had thirty days to lodge an appeal. He also knew he could petition for appointed counsel if he could not pay his retained attorney’s proposed fee. Yet, neither Easter nor his family did anything. Our case law clearly reflects Easter, by standing silent, waived his right of appeal. In my view, the federal district court is wrong in making its own findings in this case and ruling Easter should be freed if his belated appeal is not granted.

Dudley and Corbin, JJ., join this dissent.

       Apparently, the federal district court found this testimony in conflict with the sentencing transcript which did not include the trial judge’s admonition that Easter had thirty days to appeal. If so, I can And nothing in the record where the court attempted to settle the record to determine why this conflict exists.


author: Jack Holt, Jr., Chief Justice.

text:
    Dale Freemond DAY v. STATE of Arkansas
    CR 91-94
    816 S.W.2d 852
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Denny Hyslip, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Dale Freemond Day, the appellant, was convicted of battery in the first degree and murder in the first degree, and sentenced to ten and forty years imprisonment, respectively. The sentences are to run concurrently.

Day now seeks reversal of his convictions, alleging that the trial court erred; 1) in admitting two photographs of the murder victim into evidence; 2) in refusing to sever the battery and murder offenses; 3) in refusing to grant funds for a private psychiatric evaluation; and 4) in allowing the admission of Day’s statements into evidence. We disagree with all four arguments and affirm.

The facts at trial were presented primarily through the testimony of the battery victim, the investigating officers, and Day, himself.

On the evening of March 3, 1990, Day, who had been residing in Minnesota, arrived at the home of his estranged wife, Victoria Day, in West Fork, Arkansas. Finding no one there, Day entered one of the bedrooms and eventually fell asleep. He awoke to the sound of the television and realized that Victoria and her uncle, James Woodring, with whom she had been having an affair, were in the living room watching a T.V. program. Victoria shortly thereafter entered the bedroom, whereupon Day struck her repeatedly with the butt of a shotgun, breaking both of her hands. Day then went into the living room and hit Mr. Woodring with the shotgun. Mr. Woodring had been asleep on the couch and when he attempted to rise, Day shot him. Day shot Mr. Woodring twice more as Mr. Woodring attempted to leave the house through the front door. The victim got as far as the driveway before he collapsed and died. Day asked Victoria for her car keys and drove Victoria’s car to a nearby convenience store where he had parked his own car earlier. Day exchanged cars, drove to the sheriff’s department, and turned himself in at approximately 2:45 a.m. on March 4.

I. ADMISSION OF PHOTOGRAPHS

Day first contends the trial court erred in admitting into evidence two photographs, State’s exhibits 3 and 4, depicting James Woodring’s body after the shooting. Day asserts the pictures were overly gruesome and inflamatory and that the probative value of the pictures was outweighed by their prejudicial effect. We do not agree.

Testimony at trial established that Mr. Woodring had been asleep prior to Day’s assault and that he ran out of the house, barefoot, to escape from Day. State’s Exhibit 3 showed that Mr. Woodririg was shoeless, and Exhibit 4 showed where Mr. Wood-ring had fallen in proximity to the house. They were the only photographs of the crime scene admitted into evidence.

Even inflamatory photographs can be admitted if they shed light on any issue or are helpful to the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). The admission of such evidence lies within the discretion of the trial court, and we will not reverse, absent an abuse of that discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). We find no such abuse here.

II. SEVERANCE OF OFFENSES

Day next argues that the trial court erred in denying his pretrial motion to sever the first degree battery charge and the first degree murder charge.

In addition to the battery and murder offenses, Day was charged with felon in possession of a firearm. The trial court severed this offense, but held that the battery and murder charges should be tried together as they were “part of the res gestae.”

Ark. R. Crim. P. 21.1 provides:

Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

A trial court’s decision to deny a motion for severance is discretionary, and two or more criminal offenses are based “on a series of acts connected together” when the offenses occurred close together in time and place. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991) (citing Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990)).

Here, Day’s assault on Victoria Day occurred only minutes before Day shot and killed James Woodring, who was present in the next room. Furthermore, Day’s distress and jealousy over his wife’s affair with Mr. Woodring can fairly be characterized as the “single scheme or plan” which prompted him to commit the offenses. The court was correct in not severing the charges.

III. PSYCHIATRIC EVALUATION

Citing Ake v. Oklahoma, 470 U.S. 68 (1985), Day next claims the trial court erred in refusing to grant his request for a private psychiatric evaluation in order to determine his competency to stand trial. Ake provides in pertinent part:

. . .[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

470 U.S. at 83. Day’s claim is without merit. In the first place, an examination of the record reflects that Day did not demonstrate to the trial judge that his present competence or his sanity at the time of the offenses would be a significant factor at trial. The trial court, as a cautionary measure, ordered psychiatric evaluation of Day by Dr. Travis Jenkins of the Ozark Guidance Center. Dr. Jenkins reported that Day was competent to stand trial and that there was “no evidence to suggest that he was psychotic at the time of the alleged offenses. . .”, or during Dr. Jenkins’interview with him.

As a result of Dr. Jenkins’ report, Day filed a motion to appoint a private psychiatrist, claiming that since he had some difficulty with anxiety, depression, and behavioral problems, he was entitled to the opinion of a “private employed expert.” In denying Day’s motion, the trial court noted that Dr. Jenkins’ report reflected that “any evidence of anxiety, depression or behavioral problems were not pertinent to [Day’s] psychiatric assessment around the time of the alleged offenses,” and that “he had been afforded an evaluation at [the] Ozark Guidance Center by a duly licensed and qualified psychiatrist. . .”

We have repeatedly held that a defendant’s right to examination under Ake is protected by an examination by the state hospital. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990); Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989). So, even if Day was entitled to an examination, his evaluation at the Ozark Guidance Center is equivalent to examination by the State Hospital. We find no fault in the trial court’s rulings.

IV. ADMISSION OF STATEMENTS

Lastly, Day argues that the trial court erred in allowing into evidence the oral and written statements he made to the police.

Day filed a pretrial motion to suppress all oral and written statements, alleging they were obtained in violation of his privilege against self-incrimination and right to counsel. A suppression hearing was held in which the State called the two officers present when the statements were made. Officer Seigle Bell, an investigator with the Washington County Sheriff’s Department, was on duty at the Sheriff’s office when Day turned himself in in the early morning hours of March 4. Officer Bell testified that Day came into the dispatch room with Corporal Leroy Johnson, who pointed to Day and stated, “I think this is the man you’re looking for.” (Officer Bell testified that he had previously received a report of a possible homicide which named the appellant as a suspect.) Day stated his name, and Officer Bell asked him to place his hands against the wall while he proceeded to pat Day down for weapons. At that point, Day remarked: “The gun is in my car. It’s parked outside.” Officer Bell immediately escorted Day to the waiting room and advised him of his Miranda rights.

Day challenges the admission of this initial statement on the grounds that his entrance to the Sheriffs office placed him in a custodial situation and that he should have been “mirandized” before he uttered the incriminating information. We agree with the trial court, however, that the statement was admissible as a spontaneous utterance.

In determining whether statements are admissible, we evaluate the totality of the circumstances and reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Walker v. State, 303 Ark. 401, 797 S.W.2d 447 (1990). The statement was made within minutes of Day’s arrival at the station, and there is no evidence that Day was coerced or induced into speaking. Officer Bell’s decision to frisk Day first for weapons was appropriate under the circumstances and did not constitute the type of “custodial interrogation” for which the Miranda warnings were designed. We have held many times that a suspect’s spontaneous statements, although made in police custody and prior to Miranda warnings, are admissible against him. See Futch v. State, 288 Ark. 323, 705 S.W.2d 11 (1986); Ward v. State, 272 Ark. 99, 612 S.W.2d 115 (1981).

The other admitted statements to which Day objects occurred after he was twice issued the Miranda warnings. In the first instance, Officer Bell testified that he read each sentence from the standard form used in the department and wrote down Day’s response. Day then reviewed and initialed the form, indicating that he understood his rights.

Following this procedure, Officer Bell and Day entered Officer Bell’s office and sat down with a cup of coffee, at which point Day began talking about the incident, implicating himself in both the battery and murder offenses. Officer Bell testified that he advised Day to wait until Captain O’Kelly arrived, before talking, but Day insisted on continuing.

When Day completed his story, Officer Bell told him that he was going to write out a statement from his notes and have Day sign it. Day then stated, “Well, before I sign anything, I probably better talk to a lawyer.”

Captain O’Kelly testified that when he arrived, Officer Bell briefed him concerning Day’s statement and informed him that Day wished to speak with an attorney before proceeding further. In the presence of Officer Bell, Captain O’Kelly again advised Day of his Miranda rights, and Day executed a second statement of rights form. Captain O’Kelly then informed Day that he knew of Day’s request for counsel and asked Day whether he wanted him to contact a lawyer, to which Day responded that Officer Bell had been mistaken about his request and that he only wanted a lawyer prior to going to court. Captain O’Kelly testified that Day “wanted to tell him what happened.” Day allowed Captain O’Kelly to make written notes of his statement, at the end of which he added his signature.

As to Day’s oral statement to Officer Bell, Day merely argues that this statement is inadmissible since it was “tainted” by the first oral statement. This argument is meritless as the first statement was a spontaneous utterance.

Furthermore, again reviewing the totality of the circumstances, there is no evidence that Day (a repeat offender with five previous convictions) was not fully aware of his rights. Officer Bell testified that Day appeared sober and reasonable and clearly indicated that he understood the rights read to him. Once Day received and understood the Miranda warnings administered to him but, nonetheless, insisted on talking to Officer Bell, he waived those rights.

With regard to the statement made to Captain O’Kelly, Day contends that it, too, was tainted and also, that when he informed Officer Bell he wanted an attorney, all interrogation should have ceased. The trial court ruled that Day effectively recanted this request when he informed Captain O’Kelly that Officer Bell had been wrong about his desire for counsel, and that he wanted to talk. In addition, the trial court noted that there was a serious question as to whether Day actually asserted his right to counsel. In either event, the trial court was correct.

Professors LaFave and Israel state in Criminal Procedure, Vol. 1, § 6.9 (1984 and Supp. 1991), “there is much to be said for the conclusion some courts have reached: ‘where a suspect makes an equivocal assertion of counsel, the police must cease all questioning, except that they may attempt to clarify the suspect’s desire for counsel.’ ” (Citing Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990)). See also United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985). Here, Day’s comment that he wanted to talk to a lawyer “before I sign anything” constitutes the type of “equivocal” assertion to which Professors LaFave and Israel are referring, and should not preclude further questioning to clarify the matter. See Criminal Procedure, supp. 1991 at 132.

We do not agree with Day that Captain O’Kelly’s dialogue with him following his announcement that he would like to talk with counsel before signing anything amounted to “interrogation.” Captain O’Kelly was merely clarifying Day’s request and took no action to elicit incriminating information. Even if we found that Day properly invoked his right to counsel, his statement still became admissible evidence since it was he, and not the police, who initiated further discussion of the evening’s events. See Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

For the foregoing reasons, we affirm.


text:
    Joseph Harold WENZEL v. STATE of Arkansas
    CR 91-76
    815 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      Davis and Associates, P.A., by: Charles E. Davis, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Joseph

Harold Wenzel, was charged with breaking into two homes and raping the occupants. He was tried by a jury, convicted of two counts of burglary and two counts of rape, and sentenced to a total of sixty years imprisonment.

On appeal, Wenzel claims the trial court erred in allowing the admission of FBI DNA profile test results because 1) the DNA laboratory proficiency test results were not timely disclosed, and 2) the DNA profile test results were obtained from vaginal swab samples which were depleted during testing. There is no merit to either of Wenzel’s arguments, and we affirm.

Wenzel first argues that the DNA profile test results should not have been admitted into evidence since the State’s failure to timely provide the proficiency test results, with regard to the profiles, deprived him of due process and his right to pretrial discovery.

The FBI DNA profile results were obtained by comparing Wenzel’s blood samples with vaginal swab samples containing semen, taken from both victims. Agent Lawrence Presley, who conducted the analyses, testified that both tests revealed a “match” between the DNA profile of Wenzel’s blood and the semen obtained from the vaginal swabs. Although the record is unclear as to its definition, proficiency testing apparently is an internal procedure, conducted by the FBI on occasion, to determine whether its laboratory technicians are performing the analyses correctly.

In preparation for trial, Wenzel’s counsel filed a motion for discovery of all scientific tests. Later, Wenzel filed an amended motion for discovery in which he requested a number of documents pertaining to the DNA tests. Wenzel received all the items requested, including autoradiographs, laboratory notes and the profile results, except for the proficiency test results.

The trial court conducted what it termed a “Frye” hearing on July 11, 1990, to determine whether the DNA profile tests constituted admissible evidence and to consider Wenzel’s discovery motions, particularly with regard to discovery of the proficiency tests. Agent Presley testified that it was the policy of the FBI not to release the proficiency tests. The hearing was continued on August 30, on which date Wenzel filed a motion in limine requesting that the DNA profiling results be excluded since he had been denied access to the proficiency tests. The trial court ruled that the profile tests were generally admissible but reserved ruling on the motion in limine until the day of trial, which was to begin on September 4. The court, apparently concerned as to whether it had jurisdiction to order the FBI’s release of the proficiency tests, instructed the State to determine why the FBI maintained a policy against releasing the proficiency “grades,” and cautioned that Agent Presley should bring the records to trial and be ready to release them if so ordered.

On the second day of trial, just prior to the State’s direct examination of Agent Presley, the trial court took up the matter of Wenzel’s motion in limine. The following dialogue took place:

THE COURT: The next one is that the defendant has been denied access to the proficiency tests. We had a hearing — I don’t remember what day it was — when the FBI man was down here, Mr. Presley. It was about a month ago, maybe?
MR. ZISER: The first part of July, Your Honor.
THE COURT: And then on August 30th this Motion in Limine. Now, I’ve told you both on the record, I believe, that I was going to delay my ruling until I was able to have some information from the prosecutor. Are you willing to give — I know he said it was their policy not to give out proficiency tests. Now, are you not wanting to give them out?
MR. ZISER: Your Honor, Agent Presley arrived today and he brought the proficiency test results with him. He told me that as far as he was concerned, just to release them. So the State is in position to release them to the defendant in this case if they still want them. I’ve got them right here on my desk. I would like to have a copy made so that I have one as well as the defense does, but I certainly have no objection to them seeing them.
THE COURT: Mr. Davis?
MR. DAVIS: Your Honor, I’m most grateful to the State, but it’s a little bit late in the hour to further proceed or call this witness until I have an opportunity to see those, Your Honor. Apparently, they were here not only today but yesterday.
MR. ZISER: No, sir, I got them over the lunch hour today.
THE COURT: Well, your original discovery motion has requested those, but it wasn’t brought to my attention that you were still — you know, wanted a motion to compel. A month ago you asked this fellow on the stand, or the first part of July, and he said, Well, by golly, our policy is we don’t give them up. Now on August 30th is when you filed your Motion in Limine asking me to do something about it, and I’m trying to do it. I’ve told them we’re going to wait until this fellow comes down here and see what he’s got. Now, he’s got these proficiency tests and what I’m going to do is let you make copies of them, Mr. Ziser, or give him the originals one, so Mr. Davis can look at them before he has to cross examine the witness. Over your objection, Mr. Davis, I’m going to allow him to call the witness to get his testimony started this evening, and I’m going to quit about five o’clock and he can finish up his testimony in the morning. That will give you this evening to go through these proficiency tests to see if there’s any bad test results in there or what’s in there. I don’t know. But that’s how we’re going to work it. Your objection to my ruling will be noted.
MR. DAVIS: Thank you, Your Honor.
THE COURT: Anything else on your motion? I think that finally got all your motion covered, didn’t it?
MR. DAVIS: Yes, Your Honor.

(Emphasis added.)

Wenzel’s argument on appeal, that because he was not furnished the proficiency tests in a timely manner, he was denied due process and his right to pretrial discovery under A.R.Cr.P. Rule 17.1, was not raised below. Wenzel argued, in his motion in limine and at the pretrial hearing, that denial of access to the proficiency tests violated the due process clause and the sixth amendment. Then, at trial, Wenzel’s objection appears to have been premised on the fact that the court was going to permit Agent Presley to testify before Wenzel had an opportunity to examine the proficiency tests, to which the court responded, “Over your objection, Mr. Davis, I am going to allow them to call the witness, and he can finish up his testimony in the morning. That will give you this evening to go through these tests.” Wenzel never objected, however, to untimely discovery and lack of time to examine the evidence, either when the court announced its decision to defer a ruling until the day of trial, or during the trial itself. More importantly, Wenzel did not ask for an additional continuance following his overnight examination of the records. See Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Hughes v. State, 264 Ark. 723, 574 S.W.2d 888 (1978). Only specific objections made at trial are preserved for appeal. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

Furthermore, by failing to object on the basis of untimely discovery, both when the trial court deferred its ruling at the pretrial hearing and when it granted an overnight continuance, Wenzel, in effect, agreed with the trial court’s ruling by which the profile results would be admitted and cannot now attack that ruling on appeal. See Matthews v. State, 305 Ark. 207, 807 S.W.2d 29 (1991).

Wenzel also objects to the admission of the DNA profile test results on the basis that FBI technicians used up all of the semen found on the vaginal swabs, during the DNA testing. This objection was properly preserved in Wenzel’s motion in limine and at the pretrial hearing.

Wenzel concedes that the State did not technically withhold the samples, but argues that its failure to preserve enough evidence so that the defense could conduct its own tests, deprived him of a fair trial. The United States Supreme Court addressed the issue in California v. Trombetta, 476 U.S. 479, 488 (1984), stating: “[w]hatever duty the Constitution imposes on the State to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.” The court opined that “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489. (Emphasis ours.) Later, in Arizona v. Youngblood, 488 U.S. 51 (1988), the court reiterated the necessity of showing the apparent exculpatory value of the evidence at issue and further held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58. The court directed its holding to “those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id.

Wenzel has made no showing that the evidence possessed any apparent exculpatory value before it was destroyed, as required by the first prong of the standard in Trombetta, nor has he alleged or proven bad faith on the part of the State, as required by Arizona. Also, from the evidence presented at trial, the chance that the swab samples would have exonerated Wenzel appears virtually nil.

Affirmed.

       The term “Frye” hearing stems from the seminal case of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which first promulgated a standard for determining the admissibility of novel scientific evidence. Although it labeled the hearing as such, the trial court noted that this court has not yet decided whether to adopt the Frye standard of admissibility (see Rock v. State, 288 Ark. 566, 708 S.W.2d 78 (1986)), and thus considered the matter in light of both Frye and the Arkansas Rules of Evidence. Again, we need not determine which standard is appropriate since the issue of reliability and admissibility of the DNA tests, themselves, is not before us.


author: Robert H. Dudley, Justice.

text:
    Kenneth FERRELL v. COLUMBIA MUTUAL CASUALTY INSURANCE COMPANY
    90-221
    816 S.W.2d 593
    Supreme court of Arkansas
    Opinion delivered September 30, 1991

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellant.

      Daggett, Van Dover & Donovan, by: Robert J. Donovan, for appellee.
   Robert H. Dudley, Justice.

The basic issue in this case is

whether the statute setting out the method for prospectively cancelling an automobile insurance policy has abrogated an insurance company’s common law right to rescind an automobile insurance policy ab initio. We hold that under some circumstances an insurance company still has the right to rescission ab initio. In so holding, we reverse the trial court.

Kenneth Ferrell’s automobile insurance policy, which had been issued by Southern Farm Bureau Insurance Company, ended at midnight, January 31, 1988. Early the next morning, February 1, he went to Jarvis Insurance Agency in Crossett to purchase a new policy, which would provide bodily injury, property damage, and collision coverage on his three (3) personal cars and a 1988 Toyota owned by his daughter Christi. The agency apparently assumed that he owned the Toyota. Harold Jarvis, the agent, quoted a price for such a policy. Kenneth said he wanted the cars to be covered immediately, and a clerk took his application. The trial court found that he made numerous material misrepresentations in the application including: not acknowledging his moving traffic violations; not acknowledging his wife’s moving traffic violations; not listing his son’s moving traffic violations or accidents; and, most importantly to this case, not listing his daughter’s moving traffic violations. The trial court found that his daughter, Christi, had no knowledge of the material misrepresentations and did not participate in making them. However, Christi testified that her father was her agent in the procurement of the policy:

Q. Were you relying on your father to get insurance for you or your car?
A. Yes, sir.
Q. And was he authorized to make an application on your behalf to get that insurance?
A. Yes, sir. He was paying for my insurance, so I didn’t—
Q. I understand.

Kenneth paid the premium, and the Jarvis Agency issued a preferred-risk binder on Columbia Mutual Insurance Company. Three (3) days later, on February 4, 1988, Christi did not see a stop sign in Monroe, Louisiana, ran through it, and was hit by another car. The market value of her 1988 Toyota was diminished by $ 11,500.00. In addition, her car destroyed a nearby street sign for which the City asked $89.03 in damages. She immediately reported the accident to the Jarvis Agency.

In the meantime, Columbia Mutual was processing the binder through its normal channels. It had requested U.S. Data, a reporting company, to check the driving history of the listed drivers. U.S. Data furnished the history, probably on February 9. On February 10, an underwriter for Columbia Mutual rejected the binder because of Kenneth’s and Christi’s driving records. The records reflected that Kenneth had two speeding infractions; Christi had four speeding infractions and one accident within the last three years. Under its preferred plan, Columbia Mutual will not issue coverage if a driver has had a driving offense within three years. On February 18, 1988, Columbia Mutual refunded the premium to Kenneth and advised him it was rescinding the policy, ab initio, because of his fraud. At that time, the underwriter did not know about Christi’s wreck.

On February 25, 1988, Columbia Mutual filed suit in chancery court against Kenneth and Christi. The suit sought rescission of the policy retroactive to the date of issue, February 1. The basis of the suit was the material misrepresentation in the policy application.

Kenneth and Christi answered and filed a counterclaim and an amended counterclaim. They alleged that they had suffered property damages of $11,500.00 less a deductible amount of $250.00, and that they had paid $89.03 to the City of Monroe, for a total of $11,339.03 plus interest. They also sought a 12% penalty, and a reasonable attorney’s fee pursuant to Ark. Code Ann. § 23-79-208 (1987). Finally, they prayed for punitive damages in the amount of $250,000 because of Columbia Mutual’s “bad faith” in the “cancellation” of the insurance policy.

Columbia Mutual filed an amended complaint in which it asked alternatively that if the policy were not retroactively rescinded and if Columbia Mutual were required to pay any losses under the binder, then it be given judgment over and against Kenneth for his fraudulent misrepresentation. This amounted to an alternate common law action of deceit. The chancery court took jurisdiction and began to hear all of the causes of action; however, at the conclusion of all the evidence, the chancellor granted Columbia Mutual’s motion to strike Kenneth’s and Christi’s counterclaim for punitive damages on the ground that equity lacks jurisdiction to award punitive damages.

On September 30, 1988, the chancellor granted a partial summary judgment in favor of Christi. He found that the “notice of cancellation” provisions of Ark. Code Ann. §§ 23-89-303 and 304 (1987) and the public policy of this State prohibited Columbia Mutual’s rescission of coverage ab initio. Subsequently, the chancellor granted Christi judgment against Columbia Mutual for $11,339.03, a 12% penalty of $1,360.72, and an attorney’s fee of $8,507.37. The Chancellor awarded Columbia Mutual a judgment over and against Kenneth for the same amount. Kenneth appeals and designates four (4) points for reversal. Columbia Mutual cross-appeals and designates two (2) points. Because the cross-appeal determines the complete outcome of the case, we discuss it first.

In this appeal, Columbia Mutual argues that the trial court erred in refusing to rescind the binder ab initio. It argues Ark. Code Ann. §§ 23-89-303 and 304 (1987), which provide that an insurer must give notice before cancelling a policy, do not apply to first-party property damage coverage. The argument is meritorious.

It is undisputed that at common law an insurance company could retroactively rescind coverage because of fraud or material misrepresentation. Old Colony Life Ins. Co. v. Fetzer, 176 Ark. 361, 3 S.W.2d 46 (1928). Rescission of a contract and cancellation of a contract are two distinct remedies, based on different grounds, 17 G.J. Couch, Couch Cyclopedia of Insurance Law, §§ 67:33, 67:54 (R.A. Anderson, ed., 2d rev. ed. 1983). Cancellation takes effect only prospectively, while rescission voids the contract ab initio. Id.

Many courts have interpreted “no fault” insurance legislation, see Ark. Code Ann. § 23-89-202 (1987), and compulsory motor vehicle acts, see Ark. Code Ann. §§ 27-22-101—104 (Supp. 1991), as expressing a public policy that one who suffers a loss as the result of an automobile accident shall have a source and means of recovery. As a result, courts have held that when an innocent third party has suffered damages as a result of an insured’s negligent operation of an insured vehicle, there is no right of retroactive rescission. These courts have held that the insurance company’s right of retroactive rescission has been abrogated, and the only remedy for an insurance company is prospective cancellation in accordance with the terms of the statute. See Teeter v. Allstate Ins. Co., 9 App. Div. 2d 176, 192 N.Y.S.2d 610 (1959), aff'd 9 N.Y.2d 655, 212 N.Y.S.2d 71, 173 N.E.2d 47 (1961). There are additional reasons for holding that prospective cancellation statutes abrogate retroactive rescission of a policy of liability insurance. If an insurer could unilaterally rescind coverage, unscrupulous insurers could hold the threat over the head of third party claimants in an attempt to bargain down their claims; and immediately issued binders are a marketing gimmick, and insurers are not entitled to be protected from their own gimmicks because they could verify information before extending coverage. See Metropolitan Property & Liability Ins. Co. v. Insurance Comm’r, 535 A.2d 588 (Pa. 1987).

Regardless of the reasoning used, all courts that have considered the question as it applies to an innocent third-party claimant have held that the insurer cannot, on the ground of fraud or misrepresentation, retroactively avoid coverage under a compulsory insurance or financial responsibility law. See Dunn v. Safeco Ins. Co., 14 Kan. App. 2d 732, 798 P.2d 955 (1990), for a listing of cases. In this case, however, we are not dealing with an innocent third-party claimant and make no holding on that issue. Instead, we are dealing with the insureds themselves, Kenneth Ferrell and his daughter Christi, and we are not dealing with a liability policy, but instead with collision coverage. Kenneth made the material misrepresentations for himself and as agent for his daughter. His misconduct is imputed to her.

There is no compulsory insurance statute which requires one to insure oneself against his own property loss. See Ark. Code Ann. § 27-22-104 (Supp. 1991). Thus, when a case involves only the insured and the insurer, and the loss involves the insured’s property, there is no public policy reason to hold that the insurance company’s common law right to rescission has been abrogated. Dunn v. Safeco Ins. Co., supra; United Security Ins. Co. v. Comm’r of Insurance, 133 Mich. App. 38, 348 N.W.2d 34 (1984). To hold otherwise would permit an insured to benefit from his fraudulent misrepresentations and leave the insurer without a remedy.

One case is contra, but it is based upon a statute that is markedly different from ours. In Metropolitan Property & Liability Ins. Co. v. Insurance Comm'r, 535 A.2d 588 (Pa. 1987), the court held that the statute providing for prospective cancellation abrogated the common law right of retroactive rescission between the insurer and the insured because the statute provided:

Nothing in this Act shall apply . . .
(3) To any policy of automobile insurance which has been in effect less than sixty days, unless it is a renewal policy, except that no insurer shall decline to continue in force such a policy of automobile insurance on the basis of the grounds set forth in subsecton (a) of section 3 hereof and except that if an insurer cancels a policy of automobile insurance in the first sixty days, the insurer shall supply the insured with a written statement of the reason for cancellation.

Id. at 594.

In construing the italicized language the court wrote:

the explicit language of the exception. . . clearly indicates the legislative intent to govern the termination of policies even during the sixty day period. Although that language prescribes only minimal procedures to be followed, it nevertheless clearly prescribes what an insurer must do.

Id. at 594.

On the other hand, our statute clearly provides a sixty day grace period during which the common law rules of rescission apply.

This section shall not apply to any policy or coverage which has been in effect less than sixty (60) days at the time notice of cancellation is mailed or delivered by the insurer unless it is a renewal policy.

Ark. Code Ann. § 23-89-303(b) (1987).

Accordingly, we hold that the Arkansas compulsory insurance statutes have not abrogated the insurer’s common law right to rescission when: (1) only the insurer and the insured are involved in a non-compulsory provision of the policy, and (2) the policy has been in existence less than sixty (60) dayg, unless it is a renewal policy.

Courts may sever compulsory provisions of an insurance policy from non-compulsory provisions and permit rescission only as to non-compulsory provisions. Dunn v. Safeco Ins. Co., supra. In Bankers & Shippers Ins. Co. v. McElveen, the court wrote:

The generally accepted rule is that “[w]here a compulsory automobile insurance policy contains additional clauses providing for noncompulsory coverage, a cancellation of the policy will be effective as to the latter clauses even if it does not comply with the statutory requirements as to the cancellation of the compulsory insurance.” Annotation. Cancellation of Compulsory Automobile Insurance, 171 ALR 550, 554 (1947).

Bankers & Shippers Ins. Co., 668 F.2d 185, 187 (3d Cir. 1981).

In the case at bar the chancellor held that the insurer’s cause of action for rescission had been abrogated by the cited statutes. Such a ruling was in error since, under the facts of this case, rescission was still a viable cause of action. As has been previously set out, there were misrepresentations of material facts, the knowledge of which would have caused the insurer to decline to issue the policy, and therefore, rescission is the proper remedy. We so hold in this de novo review.

All of the damages prayed for and awarded were based upon the policy remaining in effect. That policy now has been ordered rescinded. It follows that the damages awarded on the counterclaim and an amended complaint cannot be allowed to stand. Accordingly, the award of damages is reversed. Since no damages are awarded, it is no.t necessary for us to determine whether the chancellor correctly assumed jurisdiction of all facets of this case.

Reversed on cross-appeal.


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    Lloyd Edwin FLETCHER v. STATE of Arkansas
    CR 91-95
    816 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      James P. Massie, for appellant.

      Winston Bryant, Att’y Gen., by; Teena L. White, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Shelley Sanford, the victim in this aggravated robbery case, drove her car to the parking lot of the Harvest Foods store at 12th and Battery Streets in Little Rock. It was about 9:00 at night. She got out of her car and walked up to the doors of the store only to discover that the doors were locked and the store was closed. She noticed appellant and a companion standing nearby. She made a remark to them about the store’s closing hours and walked back to her car. As she was unlocking her car door, appellant came up behind her and said that he wanted to tell her something. As she turned toward him, he said, “This is a robbery.” He moved his hand inside his jacket pocket; it appeared that he had a pistol pointed at her. He had a serious look on his face. She saw a group of people coming out of a nearby building. She screamed as loudly as she could for help. Appellant and his companion ran to their car which was parked in front of the victim’s car. The victim jumped into her car. She was able to read the license number on appellant’s car. She hurriedly drove away, and after she had gone some distance, stopped long enough to write the license number on a piece of paper. She then drove several miles to another grocery store and called the police. Two days later, she viewed a police photo spread and identified appellant as her assailant.

Appellant was convicted of violating Ark. Code Ann. § 5-12-103(a)(1) (1987), which provides:

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:
(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; . . .

Ark. Code Ann. § 5-12-102 (1987) provides in part:

A person commits robbery if, with the purpose of committing ... a theft... , he employs or threatens to immediately employ physical force upon another.

Appellant’s sole argument on appeal is that the proof is not sufficient to show his intent to commit theft. Intent or purpose to commit a crime is a state of mind which is not ordinarily capable of proof by direct evidence, so it must be inferred from the circumstances. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). The jury is allowed to draw upon their common knowledge and experience in reaching a verdict from the facts directly proved. Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Circumstantial evidence can be sufficient to support a finding of guilt in a criminal case if it excludes every other reasonable hypothesis consistent with innocence. Smith v. State, supra.

Here, the victim testified that appellant approached her and said, “This is a robbery.” It appeared to her that he had a pistol in his pocket and had it pointed at her. When she screamed for help, he ran away. The only reasonable inference to be drawn is that appellant intended to take property from the victim.

In the second part of his argument, the appellant contends that the only reasonable inference to be drawn from the evidence is that his intent was to play a joke on the victim. Such an argument is a restatement of the first part of the argument. It is a different way of arguing that there are reasonable inferences to be drawn from appellant’s conduct other than an intent to take property. Such an argument has already been rejected. In addition, we note that the appellant did not testify the event was a joke. There is no evidence that appellant or his companion were acquainted with the victim. He approached a stranger at night on the parking lot of a closed store. When she screamed he did not try to explain that he was only joking. He looked and acted serious. The only reasonable inference to be drawn about appellant’s intent is that which the jury drew. As previously stated, there was substantial evidence to support appellant’s conviction for aggravated robbery.

Affirmed.


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    Vernon Roy RICHARD v. STATE of Arkansas
    CR 91-129
    815 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered September 30, 1991

      David Wisdom Harrod, for appellant.

      Winston Bryant, Att’y Gen., by: Teena White, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was charged with the rape of a three-year-old girl. The State moved to videotape the deposition of the victim so that her testimony could be heard, but she would not be required to suffer the humiliation of appearing in a public courtroom. See Ark. Code Ann. § 16-44-203 (1987). By this time the child was four years and ten months old. The appellant contended that the victim was incompetent and, on that basis, objected to taping her testimony. The trial court held a preliminary hearing on the issue and, after hearing extensive testimony by the child, ruled that the appellant had not shown her to be incompetent.

The case proceeded to trial. The appellant was found guilty of rape and sentenced, as a habitual offender, to life in prison. We need not detail the facts of the crime since the only argument on appeal involves the competency ruling. We cannot say the trial court abused its discretion in making that ruling and, accordingly, affirm the judgment of conviction.

In Logan v. State, we set out the following standards to be used in the trial and appellate courts to determine competency:

A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. (Citations omitted)

Logan v. State, 299 Ark. 266, 272, 773 S.W.2d 413, 416 (1989).

Appellant argues that the trial court erred in ruling that he did not establish either (1) lack of ability to understand the oath and its obligation, or (2) lack of understanding of the consequences of false swearing.

While the victim’s answers to questions on these issues were at times inconsistent, more often than not she displayed a clear understanding of the undesirable consequences of telling a falsehood, and conversely, she understood the positive and desirable consequences of telling the truth. She clearly had “a moral awareness of the duty to tell the truth.” Hoggard v. State, 277 Ark. 117, 122, 640 S.W.2d 102, 105 (1982). In sum, we cannot say that the trial court abused its discretion in determining the victim was competent and in allowing her to testify by means of a videotaped deposition. Thus, we affirm on the only point argued on appeal.

In addition, because the sentence imposed is life in prison, the complete record has been examined, and we find no other ruling by the trial court which we consider to be prejudicial error. See Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals.

Affirmed.