author: Jack Holt, Jr., Chief Justice.

text:
    John S. GILL, Jr. v. STATE of Arkansas
    CR 86-41
    716 S.W.2d 746
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Herman H. Hankins, Jr. and Steven G. Beck, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This case presents the question of the authority of a court in Clark County to revoke probation imposed by a court in Ouachita County. We hold that the Clark County judge was without authority to revoke the probation.

The appellant, John S. Gill, Jr., is serving a sentence imposed after he pled guilty in Clark County Circuit Court to obtaining property with a check drawn on insufficient funds in violation of Ark. Stat. Ann. § 67-720 (Repl. 1980). When Gill entered his guilty plea, the Clark County Circuit Court judge revoked Gill’s probation on an unrelated charge from Ouachita County Circuit Court and ordered the two sentences to be served consecutively. In this appeal, Gill challenges the Clark County Circuit Court’s authority to revoke the probation ordered by the Ouachita Circuit Court. The State concedes error. Our jurisdiction to interpret statutes is pursuant to Sup. Ct. R. 29(l)(c).

This situation is governed by Ark. Stat. Ann. §§41-1208(3) and 41-1209 (Repl. 1977). Section 41-1208(3) provides that a defendant arrested for violation of probation shall be taken “before the court supervising the probation.” Section 41-1209(1) explains that a defendant arrested for violation of probation is entitled to a preliminary hearing as soon as practicable after arrest and reasonably near the place of arrest to determine whether there is reasonable cause to believe he has violated his probation. Once that determination is made, the court “shall order the defendant held for further revocation proceedings before the court that originally . . . placed him on probation.” § 41-1209(1). Section 41-1209(2) further provides that probation “shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that. . . placed him [the defendant] on probation. . . .”

Pursuant to these statutes, once appellant was arrested in Clark County for an unrelated crime, he should have been returned to Ouachita County for a revocation hearing.

In making the decision to revoke the Ouachita court’s sentence of probation, the Clark County circuit judge relied on Ark. Stat. Ann. § 43-2830.3(D) (Supp. 1985) which provides in part:

Any person found guilty of a felony and placed on probation or suspended sentence therefor, who is subsequently found guilty of another felony committed while on probation or suspended sentence, shall be committed to the Department of Correction to serve the remainder of his suspended sentence plus the sentence imposed for the subsequent felony. The sentence imposed for the subsequent felony is to be served consecutively with the remainder of the suspended sentence.

The judge’s reliance on § 43-2830.3(D) was misplaced. In this situation — where a defendant serving probation for conviction of a felony is convicted of another felony — § 43-2830.3(D) requires the court to revoke his probation and order him to serve his suspended sentence. The statute does not, however, address the question of which court is empowered to revoke the probation. In the absence of a provision in § 43-2830.3 conferring jurisdiction, the jurisdictional statements contained in § § 41 -1208 and 41-1209 control. Accordingly it was error for the Clark County circuit court to revoke appellant’s probation and we reverse.

In so holding, we do not reach the question raised by both parties as to the constitutionality of § 43-2830.3, in light of the U.S. Supreme Court’s holdings in Morrissey v. Brewer, 408 U.S. 471 (1972); and Gagnon, Warden v. Scarpelli, 411 U.S. 778 (1973) that, before probation or parole can be revoked, the defendant has a due process right to notice and a hearing. The view we have taken of this case renders it unnecessary to consider this question. We will not decide constitutional issues unless their determination is essential to disposition of the case. McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Johnny Lee KINSEY v. STATE of Arkansas
    CR 86-63
    716 S.W.2d 188
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      John W. Settle, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Johnny Kinsey was convicted of attempted murder in the first degree (sentence of thirty-five years and a fine of $15,000), aggravated robbery (thirty years), burglary (fifteen years), and felon in possession of a firearm (twelve years and $ 10,000). Appellant’s sentencing was pursuant to the habitual offender statute, Ark. Stat. Ann. § 41-1001 (Supp. 1985). Appellant argues on appeal that theevidence was insufficient to support the convictions of aggravated robbery and burglary; attempted first degree murder was a lesser included offense of the aggravated robbery; aggravated robbery was a lesser included offense of the burglary; and fines could not be assessed against him as an habitual offender. Supreme Ct. R. 29(1 )(b) gives this court jurisdiction. We affirm.

Mrs. Elaine Paul was the primary witness in the trial of the appellant. She testified that the appellant came to her door holding the prescription drugs she had ordered for her husband, Dr. Edgar Paul. She opened the door and appellant came toward her with a gun, backed her to the wall, and told her to hold out her fingers. He inspected her jewelry, commenting that it was “cheap.” When Dr. Paul entered the room and told the appellant to get out, the appellant shot Dr. Paul in the right shoulder. Dr. Paul fell to the floor, and Mrs. Paul ran to the back of the house where she pushed an alarm button and called the police. When she returned the appellant had fled, taking only the medicine.

The appellant contends that the evidence was insuffident to prove that he had the intent or purpose to commit theft as required by the aggravated robbery statutes, Ark. Stat. Ann. §§ 41-2102 and 2103 (Repl. 1977 and Supp. 1985). In Johnson & Carroll v. State, 276 Ark. 56, 632 S.W.2d 416 (1982), the appellants entered a hotel guest’s room, stuck a gun in his chest and told him to “Get them up.” Instead, the guest began shooting at the appellants and they fled. We held this fact situation was sufficient to show an intent to commit theft for purposes of an aggravated robbery conviction, and stated:

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. . . . Common knowledge and experience, when considered in the light of the facts of this case, could enable the jury to find that the only purpose appellants could have had in sticking a gun in Sealey’s chest and saying, “Get them up.” was to rob Sealey.

Likewise, the motives of the appellant in holding Mrs. Paul at gunpoint while he inspected her jewelry were clear and the jury justifiably concluded that appellant intended to commit theft.

It follows that Mrs. Paul’s testimony was also sufficient to convict the appellant of burglary for unlawfully entering her home with the purpose of committing an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977).

The appellant next argues that the double jeopardy clause and Ark. Stat. Ann. § 41-105(1) and (2)(a) (Repl. 1977) prohibit his conviction of attempted first degree murder because it was established by proof of the same or less than all the elements required to establish the aggravated robbery. In some instances this argument would have merit, in that one form of aggravated robbery includes the element that the defendant “inflicts or attempts to inflict death or serious injury upon another person” with the purpose of committing a theft. This puts aggravated robbery in the same posture as felony murder, where a defendant cannot be convicted of felony murder and the underlying felony. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In this case, however, the aggravated robbery and the attempted first degree murder were two different criminal actions with separate victims. The aggravated robbery had already been fully performed when the appellant held Mrs. Paul at gunpoint and examined her jewelry with the purpose of committing a theft. The attempted first degree murder occurred separately when the appellant shot Dr. Paul. Although crimes are committed in the same escapade, they are not part of the same conduct when committed against different persons. Swaite, supra.

Neither is aggravated robbery a lesser included offense of burglary. Aggravated robbery requires some type of serious force or threat of force used with the purpose of committing a theft, none of which is required to commit burglary. Burglary requires only that the defendant enters or remains unlawfully in an occupiable structure with the purpose of committing any offense punishable by imprisonment. Although aggravated robbery was the punishable offense which the appellant had the purpose of committing, a defendant may be convicted of the burglary for entering the home and the subsequent offense he commits after the entry. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). The “unlawful entry is an independent and substantive offense with the result that cumulative penalties may be imposed for entering with intent to steal and for stealing.” Id., citing commentary to § 41-2002.

Appellant’s last argument is that Ark. Stat. Ann. § 41-803 (5) (Supp. 1985) prohibits the court from imposing fines on a defendant who has previously been convicted of two or more felonies. A complete reading of this statute makes it clear that this is not the legislative intent:

(5) If a defendant pleads or is found guilty of an offense other than capital murder, treason, a Class Y felony or murder in the second degree, the court may suspend imposition of sentence or place the defendant on probation, in accordance with Chapter 12 [§§ 41-1201 — 41-1211] of this Article. If the offense is punishable by fine and imprisonment, the court may sentence defendant to pay a fine and suspend imposition of sentence as to imprisonment or place him on probation. The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by Section 1204 [§ 41-1204]. The court shall not suspend imposition of sentence, place the defendant on probation or sentence him to pay a fine if it is determined, pursuant to Section 1005 [§ 41-1005], that the defendant has previously been convicted of two (2) or more felonies.

The last sentence is relied on by appellant for the proposition that the court cannot impose a fine on an habitual offender. This sentence is a limitation on the court’s exercise of the leniency allowed in the first part of the statute. Read in context, it obviously means that the court is not allowed to “only” impose a fine in place of a prison sentence when the defendant is an habitual offender. There is no conceivable reason why the legislature would allow fines to be assessed against first offenders in addition to a prison sentence, and not to allow fines for habitual offenders. Even penal statutes should not be interpreted so strictly as to reach absurd consequences which are clearly contrary to the legislative intent. Dollar v. State, 287 Ark. 61, 697 S.W.2d 868 (1985).

Affirmed.


author: George Rose Smith, Justice.

text:
    4000 ASHER, INC. v. STATE of Arkansas
    CR 86-68
    716 S.W.2d 190
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      R. W. Laster and Arthur M. Schwartz, for appellants.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

In May, 1984, two members of the Little Rock police department’s vice squad entered a newly opened “adult” bookstore and bought a magazine, a paperback book, and a video cassette. When the officers examined their purchases, they considered them to be obscene. The officers then went to the prosecuting attorney’s office, where a deputy prosecutor issued a felony information charging the corporate owner of the bookstore and its manager with having possessed and promoted obscene materials. The officers obtained a warrant for the arrest of the manager, Clark.

A jury trial resulted in a hung jury. The case was then submitted by agreement to the circuit judge. He found both defendants guilty and fined the corporation $10,000 and Clark $1,000. Both have appealed, the case coming to this court under Rule 29(1)(a) and (c). They do not question the fact that the materials are obscene. Instead, Clark raises a procedural point, and both appellants attack the validity of the applicable statute on three constitutional grounds. We cannot sustain any of their arguments.

First, Clark insists that he should not have been arrested without a prior judicial determination of obscenity. This contention is fallacious. The cases that are cited dealt with police action by which obscene matter was summarily seized without judicial authorization. In the case at hand there was neither a search nor a seizure. The articles were offered for public sale by the bookstore. The officers walked in and bought them. There was no violation of the prohibition against unreasonable searches and seizures, for the obscene matter was lawfully obtained by the police. Maryland v. Macon, 105 S.Ct. 2778 (1985). Here the usual Arkansas criminal procedure was followed: The officers completed their investigation and then went to the prosecuting attorney and submitted the charges.

In their second argument the appellants attack our obscenity statute as being so discriminatory as to deny the equal protection of the laws. Act 28 of 1981 (1st Ex. Sess.); Ark. Stat. Ann. §§ 41-3584 et seq. (Supp. 1985).

The statute broadly prohibits any person from promoting obscene materials. § 41-3585.2. To “promote” includes to sell or offer to sell. § 41-3585.1(6). The present attack centers on an exemption for employees of motion picture theaters, as follows:

(1) No employee is liable to prosecution under this Act for promoting or possession with intent to promote any obscene motion picture provided the employee is acting within the scope of his regular employment.
(2) As used in Subsection (1) of this Section, “employee” means any person regularly employed by the owner or operator of a motion picture theatre if he has no financial interest other than salary or wages in the ownership or operation of the motion picture theatre, no financial interest in or control over the selection of the motion pictures shown in the theatre, and is working within the motion picture theatre in which he is regularly employed, but does not include a manager of the motion picture theatre. [§ 41-3585.7.]

It will be seen that under the statute if a motion picture theater exhibits obscene films, an employee such as an usher or ticket seller is not liable to prosecution unless he has the specified financial interest in or control of the theater or the selection of its films. The appellants argues that since a clerk in a bookstore would not have the same freedom from prosecution, the statute makes an unreasonable distinction and hence denies equal protection.

The appellants insist that their position is supported by a Maryland case, and indeed it is. Wheeler v. State, 380 A.2d 1052 (1977). There the Maryland statute had an exemption for any employee who was not an officer of the theater and had no financial interest in it. There was no similar exemption for bookstore employees. In finding the obscenity statute to be invalid the court said, at page 1059:

Thus, an usher in the exempted class who distributes to the theatre patrons a program concerning the film being shown, which program itself constitutes obscene matter, would not be subject to the prohibitions of § 418. The bookstore employee, however, or any other person not within the exempted class, who distributed that same program, would be subject to punishment for violation of the statute. Thus, the law operates on some persons and not upon others like situated or circumstanced.

We cannot agree with the Maryland court’s comparatively narrow view of legislative authority in the matter of classification. Here the appellants were selling obscene materials. Such materials are not speech within the protection of the First Amendment. Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973). For that reason the courts do not subject the statute to that close scrutiny which is required when a law may infringe on free speech. Instead, the statute must be upheld if, as in any other equal protection case, there is a rational basis for the classification.

We are persuaded by the reasoning of the Supreme Court of Washington when it upheld a statute that granted an exemption to motion picture operators or projectionists but not to employees of bookstores. State v. J-R Distributors, 82 Wash.2d 584, 512 P.2d 1049 (1973). We quote the court’s analysis:

There are valid reasons for the classification. The following are by no means exclusive: (1) Book and magazine stores offer a wide range of materials from which both the customer and clerk may select at the time of sale. Each has an opportunity to choose that which will be sold or purchased. On the other hand, motion pictures are shown one reel at a time and the projectionist must exhibit those selected by the manager. (2) Projectionists do not decide which films to exhibit and thus should not be obliged to make a judgment as to their obscenity. Furthermore, to require a projectionist to decide whether the showing of a particular film would be a crime might tend to “chill” the dissemination of borderline, but constitutionally protected motion pictures. [512 P.2d 1061-62.]

The same result was reached on similar facts in State v. Lesieure, 404 A.2d 457 (R.I. 1979).

To the Washington Court’s discussion may be added another thought. The theater projectionist or ticket seller or usher plays no part in inducing patrons to come to the theater to see an obscene picture; that is management’s responsibility. But the bookstore clerk often can play a role in the sale of pornography. A clerk could readily determine that one of the items sold in the case at bar was obscene by glancing at any page to which the book might be opened at random. The exhibit in question contains nothing except an obscene photograph on every page. Hence the clerk could actively promote the sale of a book or magazine by recommending it to his steady customers. The theater employee has no similar opportunity. Without further discussion we conclude that the statutory exemption in favor of theater employees is valid.

The appellants also complain of a second exemption in the same section of the statute:

(3) No employee, board of directors or trustee of a bona fide school, museum or public library, acting within the scope of his regular employment, is liable to prosecution for violation of this Act for disseminating writings, films, slides, drawings, or other visual reproductions which are claimed to be obscene. [§ 41-3585.7.]

It is again argued that the statute denies equal protection because bookstore employees do not enjoy the same immunity from prosecution that is granted to the employees of schools, museums, and libraries. We think the classification to be reasonable on its face, and there is no proof indicating otherwise. A similar exemption for employees of schools and museums was upheld in Commonwealth v. Ferro, 361 N.E.2d 1234 (Mass. 1977). There the court justified the distinction on the ground that the legislature might properly have a policy of protecting educational resources from use in obscenity litigation rather than in social service. An even stronger basis for upholding the Arkansas statute is that it restricts the exemption to an employee, director, or trustee “acting within the scope of his regular employment.” The legislature could reasonably believe that there is no real possibility that employees of such educational and governmental facilities will be called upon to disseminate obscene material in the course of their regular employment. Presumably the exemption was inserted as a precaution against the possibility that someone might check a book out of a public library and contend that the librarian was disseminating obscene matter.

With regard to this exemption the appellants also argue that the statute is overbroad in that the reference to “bona fide” schools, museums, and libraries is too vague, because the exact meaning of bona fide is not given in the statute. This argument is hardly worth discussion, for the settled meaning of bona fide as synonymous with its literal translation, “good faith,” is so familiar that the average person could not be misled. The use of “bona fide” has been approved, in the face of a similar contention, in a number of cases. U. T. Inc. v. Brown, 457 F. Supp. 163 (D.C.N.C. 1978); Baseline Liquors v. Circle K. Corp., 129 Ariz. 215, 630 P.2d 38 (Ariz. App. 1981); People v. Latsis, 578 P.2d 1055 (Colo. 1978).

The appellants’ fourth argument is that we have at least one other statute under which the same conduct by them would have been a misdemeanor. Ark. Stat. Ann. § 41-3553 (Repl. 1977). It is insisted that there is a denial of equal protection when a state has two statutes which are applicable to the same offense but carry different punishments. The Supreme Court rejected that constitutional argument in United States v. Batchelder, 442 U.S. 114 (1979). We followed the Batchelder case in Miller v. State, 273 Ark. 508, 621 S.W.2d 482 (1981), and have consistently adhered to that position. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). No reason is suggested for a reconsideration of our settled rule.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Edgar McCRAY v. STATE of Arkansas
    CR 86-56
    715 S.W.2d 878
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Banks & Ritchey, by: Charles A. Banks, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order of the circuit court denying a writ of habeas corpus. We affirm the order. The trial judge correctly ruled that the only two issues in a habeas corpus hearing, after a governor’s rendition warrant on a request for extradition has been issued, are whether the detained party is the person named in the warrant and whether he is a fugitive. Smith v. Cauthron, 275 Ark. 435, 631 S.W.2d 10 (1982); Glover v. State, 257 Ark. 241, 515 S.W.2d 641 (1974). Both questions were answered in the affirmative by a stipulation between the parties; McCray was wanted in Georgia on the charge, and he had been there at the time of the alleged offense.

McCray argued to the lower court and he argues to us that he was illegally arrested and detained and this voids the governor’s rendition warrant.

We have no record except the lawyers’ statements to the trial judge. McCray was arrested in Gosnell, Mississippi County, Arkansas, on October 25,1985, on a traffic offense. A computer check indicated a possible outstanding warrant for McCray’s arrest in the State of Georgia. Evidently, the charge, trafficking in cocaine, was confirmed the next day. A week later, a municipal court hearing was held at which time bond was set. The sheriff apparently would not approve a property bond. Three days later another hearing was held in municipal court, and another bond was set. Again, the sheriff would not approve a property bond. A circuit court hearing was held on November 15, 1985, and no relief was granted. We have no record from any of those court appearances.

This habeas corpus hearing occurred on January 6, 1986, before a different circuit judge.

The trial judge was right not to go beyond the two questions pertinent to this hearing.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Earnest Lee WADE v. STATE of Arkansas
    CR 79-19
    716 S.W.2d 194
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

In 1977, appellant was serving a fifteen year sentence for committing the crimes of grand larceny, burglary, and armed robbery in Union County. He was scheduled to become eligible for parole from the Cummins Unit of the Department of Correction in June of 1979. He filed a petition for post-conviction relief and, in June of 1977, prison officials received a court order in the mail, purportedly from the Union County Circuit Court, which stated that appellant’s convictions “are declared void and of no force and effect, and case numbers CR-74-30, CR-74-58, and CR-74-73, are hereby dismissed.” Prison officials consulted the attorney general’s office about the validity of the order. After being assured the order was valid, prison officials released appellant in June 1977.

Four months later, in October 1977, appellant was arrested on an unrelated matter and was jailed. His cell was searched, and officials discovered a copy of the purported Union County Circuit Court order and two unused envelopes bearing the printed return address of the Union County Circuit Clerk. Further investigation revealed that the order was a forgery. Appellant was charged in a two count information with second degree forgery and second degree escape. On September 25, 1978, appellant was found guilty of second degree escape but was acquitted on the forgery count.

Appellant filed a timely notice of appeal and petitioned the trial court to allow him to proceed as a pauper. The trial court refused to allow appellant to appeal as a pauper since his affidavit detailing his financial situation revealed that he owned a one-third interest in 182 acres in Flint, Michigan. One week after his motion was denied appellant sent a letter to the trial judge asking for an evidentiary hearing and stating that he did not immediately expect to receive any funds from the land and that he had no money. The trial court took no further action. Appellant filed a habeas corpus petition in federal district court. That court denied the petition. On appeal, the Eighth Circuit Court of Appeals remanded to the federal district court for an evidentiary hearing, stating that appellant’s constitutional right to be represented by counsel may have been violated. Wade v. Lockhart, 763 F.2d 999 (8th Cir. 1985). The federal district court ultimately found that appellant had been wrongly denied the right to counsel. On October 22, 1985, this Court ordered the appeal reinstated and appointed counsel for this appeal. Jurisdiction is in this Court because the judgment of conviction was entered prior to July 1, 1979, the date the Court of Appeals was impanelled. Rule 29(1). We affirm the conviction.

Both appellant and his attorney have filed briefs in this court. One of the principal points of appeal is that the verdicts of guilty of escape but not guilty of forgery are inconsistent and, consequently, cannot stand. We need not examine the argument in detail since consistency in verdicts is not necessary. Each count in an information or indictment is regarded as if it were a separate information or indictment. Dunn v. United States, 284 U.S. 390 (1932); United States v. Powell, _ U.S. _, 105 S.Ct. 471 (1984); and see Brown v. Parker, 217 Ark. 700, 233 S.W.2d 64 (1950). If separate informations had been filed against appellant for escape and forgery, and had been separately tried, and the same evidence presented in both cases, an acquittal on one could not be pleaded as collateral estoppel to the other. Where the same offenses áre separately charged in two counts of one information the same rule must hold. Dunn v. United States, supra.

Appellant and his attorney, in their separate briefs, make four arguments which are essentially that the evidence was insufficient to sustain a guilty verdict for second degree escape.

A person commits the offense of second degree escape if he escapes from a correctional facility. Ark. Stat. Ann. § 41-2811(1)(c) (Repl. 1977). The word “escape” is defined as meaning the unauthorized departure of a person from custody of a correctional facility. Ark. Stat. Ann. § 41-2801(3) (Repl. 1977). Appellant contends that there was no proof of his mental culpability and that his departure was not unauthorized.

There is substantial evidence of appellant’s culpable mental state. Before his release, appellant told a fellow inmate that he was working on some papers which would get him out of the penitentiary early. Appellant also told the inmate that he might escape from the penitentiary. After his escape he was arrested on an unrelated charge and placed in jail. In his cell officials found an exact copy of the forged order and two unused envelopes bearing the return address of the Union County Circuit Clerk. The significance of the copy of the forged order is obvious. The significance of the unused envelopes is that they are identical to the one which was used to mail the forged order to the penitentiary officials. Of course, appellant was the sole beneficiary of the forged document which was supposedly entered in response to the post-conviction petition which he filed.

There is also substantial evidence that the departure was unauthorized. The appellant was released on the basis of the document which purported to be a certified copy of an order of the Union County Circuit Court setting aside his earlier convictions. Both the circuit judge and the circuit clerk testified that their signatures on the purported order were forgeries. Nevertheless, appellant contends that because the attorney general’s office stated the order was valid, his discharge was not unauthorized. The argument is without merit. The erroneous advice from the attorney general did not legitimize the fraudulent order. A release based upon a fraudulent order, coupled with substantial evidence of appellant’s culpable mental state, is not an authorized release.

Appellant next contends that the trial court committed error in refusing to grant a continuance. To prevail on the point, the burden of demonstrating that there has been an abuse of discretion rests upon appellant. Appellant does not meet that burden.

The trial court first appointed Pamela Baxter to represent appellant but, at her request, she was relieved as counsel. On August 23, 1978, Richard Byrd was appointed, but appellant would not discuss his case with Byrd. Appellant’s version of his refusal to discuss the case is set out in his pro se brief as follows:

On August 23, 1978, the trial court appointed Richard Byrd as attorney of record to the appellant. Appellant was not, however, made aware of this appointment at the time. Approximately two weeks prior to trial, Mr. Byrd visited the appellant stating that he had been appointed as counsel and wanted to discuss the case facts. Appellant not being privy to the Court’s action, responded that he could not discuss the case with a stranger nor could he accept Mr. Byrd as being the appointed counsel until such was confirmed by the court.

Byrd went ahead and obtained full discovery of the state’s witnesses, examined copies of the state’s proposed exhibits and prepared to go to trial. Appellant then wrote Byrd as follows:

“Dear Mr. Byrd:
In talking to you earlier this month, it was my understanding based on what you said, that you were to be appointed to represent me. I now discover from my sources that you have already been appointed to represent me. And because of this, I find it necessary to write you this letter.
I am certain that you have complied to this appointment because the Circuit Court ordered it. And I can somewhat understand your position. However, at no time, have I expressed to Court a desire for appointment of counsel. Therefore, as far as I am concerned, you don’t represent me. Besides I have been informed you are acting in concert with the Prosecutor there in Pine Bluff.
So when I appear in Court next week, please understand that you do not represent me.”

On September 25,1978, the day the case was set for trial, the following colloquy took place:

THE COURT: I have received a petition from the defendant. I don’t believe it’s been filed in this case; but, nevertheless, I did receive a copy in my office. I’ll see that it is filed, in which the defendant states that he did not desire an attorney to represent him and specifically requested that Mr. Byrd not represent him in the matter, if I understand that correctly.
Was that the substance of your petition, Mr. Wade, that you did not want an attorney to represent you?
MR. WADE: Which petition are you speaking of?
THE COURT: I am speaking of the petition where you asked that Mr. Byrd not represent you.
MR. WADE: Well, I wrote you a letter referring to Mr. Byrd.
THE COURT: It was not a petition? It was a letter?
MR. WADE: Yes.
THE COURT: Well, I’ll see that is put in the file. It doesn’t appear to be in this file.
Is that your desire not to have a lawyer representing you in the trial of this case?
MR. WADE: It’s my desire.

A few moments later appellant stated that he had changed his mind and desired to accept Byrd’s appointment as his attorney, but that Byrd had not fully discussed the case with him and he needed a continuance to discuss the case with Byrd.

Appellant, with his vast experience in criminal courts and in writ writing, was obviously attempting to prevent his scheduled trial and thwart the court system. The motion, under the circumstances set out was a hoax and a sham. The trial court was unquestionably correct in denying the motion.

Appellant’s final argument is that the trial court erred in instructing the jury in the language of AMCI2811. However, the appellant offered no objection to the instruction. One who does not object to an instruction, stating the matter to which he objects and the ground for his objection, is precluded from raising the matter on appeal. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980).

Affirmed.


author: Steele Hays, Justice.

text:
    Winston Randolph BLAIR v. STATE of Arkansas
    CR 86-57
    716 S.W.2d 197
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986
    [Rehearing denied November 17, 1986.]

      Bob Keeter and J. Brent Standridge, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In August, 1967, the appellant, Winston Randolph Blair, was convicted of first degree murder and sentenced to life imprisonment. After entry of the judgment two motions were filed for an extension of time to prepare the trial transcript. These motions were granted but no further action was taken and the appeal was never completed.

In the last seventeen years appellant has made several attempts to seek post-conviction relief. This appeal of the denial of a Rule 37 petition is the latest in a series of petitions and motions, and the fourth Rule 37 petition appellant has brought.

In 1970, appellant sought a writ of habeas corpus contending he had made statements to the police without benefit of counsel and that he had diminished capacity at trial. The petition, treated as a Rule 1 petition (the forerunner of Rule 37) was denied. In 1973, a second Rule 1 petition was filed and it, too, was denied.

Appellant appealed to this court from that denial requesting a belated appeal from his 1970 Rule 1 petition. He argued that the trial court had failed to notify him of its denial of the writ. In an unpublished per curiam, dated October 22, 1973, we held a petitioner is limited except in extraordinary circumstances to one petition for post-conviction relief and that all available grounds must be alleged. We found appellant was not entitled to a belated appeal of his first petition as he had not shown that he sought any action or asserted any lack of notice during the two years following the filing of his first petition.

A third petition in 1974 was denied. Appellant now brings this appeal from the denial of his fourth petition. He argues ineffective assistance of counsel and the right to a direct appeal from his original conviction. He is not entitled to relief. Issues which could have been raised on appeal or in the original petition for post-conviction relief but were not must be considered waived. Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983); Ruiz and Denton v. State, 280 Ark. 190, 655 S.W.2d 628 (1983); A.R.Cr.P. Rule 37.2 (formerly Rule 1, see our Per Curiam Order, 239 Ark. 850a (1965).) The issues raised in this petition were not raised in appellant’s original petition. Any error in the proceeding by the trial court in reviewing the original petition was by way of appeal. Appellant did not make a timely appeal of that denial and a belated appeal of that order was denied by this court thirteen years ago.

We note additionally that this petition was not filed within three years from the date of commitment, nor did it raise any issues that would render the conviction void. See A.R.Cr.P. Rule 37.2(c); Scott v. State, 267 Ark. 536, 592 S.W.2d 122 (1980).

The order is affirmed.


author: David Newbern, Justice.

text:
    Alonzo “Bo” DENTON v. STATE of Arkansas
    CR 86-62
    716 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986
    [Rehearing denied October 27, 1986.]

      Henry & Mooney, by: John R. Henry, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was charged as an habitual offender and convicted of possession of amphetamine or methamphetamine with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. On these three convictions he was sentenced to 40,25, and 12 years respectively, with the 40 and 25-year sentences to run concurrently, and the 12-year sentence to run consecutively to them. The only point presented by the appellant is that there was not substantial evidence to support the convictions. The appellee concedes there was not sufficient evidence to support the conviction of possession of amphetamine or methamphetamine with intent to deliver. We agree, and thus we modify the 40-year sentence to 10 years which is the minimum sentence for the lesser included offense of mere possession of amphetamine or methamphetamine enhanced by the appellant’s ten prior felony convictions. There is sufficient evidence to support the convictions of possession of drug paraphernalia and felon in possession of a firearm. We thus affirm those convictions along with the conviction on the reduced charge of possession of amphetamine or methamphetamine.

On two occasions a police informant, Larry White, drove to the residence of the appellant with a third party, a drug suspect named Mincey. On each visit, White remained outside in the car while Mincey went inside and returned after purchasing crystal methamphetamine which was turned over to police authorities. Neither White nor the policemen who were watching from a distance saw the purchase being made. Based on the knowledge thus obtained that illegal drug sales were occurring in the appellant’s house the police sought and obtained a warrant to search the Denton residence. At the time the search was conducted the residence was occupied by the appellant, his wife, and an unidentified female visitor. There was testimony that the appellant’s two teenaged daughters also lived in the house with the appellant and his wife as well as another younger daughter.

The search resulted in seizure of numerous items including many plastic bags and pieces of plastic bags, some of which contained a “powder residue” of amphetamine and methamphetamine. Also seized were two pipes, described by a witness as the type used for marijuana, a number of marijuana seeds, and a jar containing a number of cigarette leavings which contained marijuana as well as an amount of substances described as the type used to “cut” drugs, a shotgun, and a high-powered rifle. The amphetamine or methamphetamine seized was not in an amount sufficient to permit measurement of it, but was residue found in pieces of plastic bags which had been scraped.

1. Possession

The appellant’s argument is that he cannot be found to have been in possession of the bags containing the amphetamine residue, the drug paraphernalia, or the firearms because these items were all found in a bedroom in his house; a house shared with four other persons. For his position he cites Watson v. State, 88 Nev. 196, 495 P.2d 365 (1972), which says possession, in the sense used to say one possesses everything which may be found in one’s home, is not the same as the meaning which must be ascribed to the word when it is used in a penal statute. In that case some marijuana seeds were found in a bedroom occupied by the appellant’s two teenaged daughters. No other marijuana was found in the house. In the case before us now the amphetamine residue, the drug paraphernalia (with the exception of a set of scales seized from the kitchen), and the guns were found in a bedroom which could, according to evidence in the record, be fairly characterized by us as the master bedroom. Closets in that bedroom contained clothing which was described as the type which would fit the appellant and his wife.

We agree the evidence might not have been sufficient had the only evidence been that the contraband was found in some portion of a structure occupied by the appellant and others. In Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982), we reversed a conviction for possession of drugs found in a bedroom. The reversal came, in part, because there was no testimony showing whose bedroom it was, and the residence in question was occupied by several persons. However, in Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976), we held that joint occupancy coupled with “some factor . . . linking the accused with the narcotic” is sufficient. 259 Ark. at 518, 534 S.W.2d at 236.

The question thus becomes whether there is any evidence linking the appellant with the items found other than his joint occupancy of the bedroom where they were found. During the surveillance of the Denton residence which occurred before the search, Larry White, the police informant, was carrying a concealed microphone. The officers conducting the surveillance thus were able to hear conversations between White and Mincey, the suspect who went into the home to buy the drugs. At the trial, Officer Barnett was asked by the prosecution about the occasion of the second visit to the Denton residence which occurred two days before the search. Barnett testified about conversations he heard between White and Mincey. At one point, describing what Mincey said to White, Barnett testified, “Bo asked him if he was getting these drugs for his own use or if he was taking them and reselling them.” This testimony was permitted over the appellant’s objection and after the court, at the appellant’s request, had read AMCI 201 to the jury. That instruction told the jury essentially that before they could consider any statement made by Mincey against the appellant they would have to find beyond a reasonable doubt that Mincey and the appellant were members of a conspiracy, that the statement was made during the life of the conspiracy, and that it was made in furtherance of some purpose of the conspiracy.

The appellant has raised no issue on appeal with respect to the admissibility of Barnett’s testimony, and we find his report of his electronic surveillance of the drug buy just two days before the search is sufficient to provide the link between the appellant and the contraband found in the bedroom which the evidence showed to have been jointly occupied by the appellant and his wife.

2. Intent to deliver

The appellee’s concession that the evidence was insufficient to show possession with intent to deliver is premised on Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978), where the appellant was arrested in possession of a bottle cap containing a mere trace of heroin. We held that, although there was other evidence that the appellant had been trafficking in drugs, “[t]he State must prove that the accused possessed a specified quantity of a particular drug with the intent to deliver that drug” [263 Ark. at 450, 565 S.W.2d at 420], and possession of a mere trace of a drug is not sufficient because it cannot be seriously argued that such a miniscule amount is held with the intent to sell it.

In Berry v. State, supra, we chose to reduce the sentence to the minimum the jury could have given for the offense of possession, and we will follow that precedent here. The penalty for possession of a schedule II substance is that applicable to a ClassC felony. Ark. Stat. Ann. § 82-2617(c) (Supp. 1985). Fora Class C felony, one who has previously been convicted of four or more felonies may be sentenced to imprisonment for not less than ten nor more than thirty years. Ark. Stat. Ann. § 41-1001(2)(d) (Supp. 1985). We therefore modify the 40-year sentence by reducing it to a sentence to 10 years to run concurrently with the 25-year sentence for possession of drug paraphernalia. The 12-year sentence for felon in possession of a firearm will be served consecutively to the other two sentences.

The judgment is affirmed as modified, ánd the case is remanded to the circuit court for the entry of an appropriate order.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Charles Franklin DIX v. STATE of Arkansas
    CR 86-39
    715 S.W.2d 879
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986
    [Rehearing denied October 27, 1986.]

      Sieve Kirk, for appellant.

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

      Purtle, J., would grant.

   David Newbern, Justice.

The body of William Norman was found just off the concrete turnaround area at the end of a rest stop on 1-40 in Conway County. Charles Dix, the appellant, who had been Norman’s traveling and drinking companion in the few days before the body was found, and who was later arrested while driving Norman’s car, was convicted of first degree murder and sentenced to life imprisonment. His appeal questions the jurisdiction of the trial court and the sufficiency of the evidence to support the conviction. We find no error.

The undisputed facts are that Dix was arrested in Tennessee on April 5, 1985, for driving a motor vehicle while not in possession of a driver’s license. He was released on a bond provided by Owens and Owens, a bonding company, and he began hitchhiking. He was picked up by Norman, and the two of them, on April 7, Easter Sunday, drove to Mayflower, Arkansas, where Norman’s brother lived. A witness testified that Norman and Dix asked directions to Norman’s brother’s home, and that Norman was driving a Ford station wagon with Arizona license plates. Norman spent one night in his brother’s home while Dix slept in Norman’s car. The day of April 8 was spent by Norman and Dix drinking beer and driving to Little Rock in an unsuccessful attempt to visit Norman’s nephew. Norman’s brother had told him he was welcome in his home but not if he and Dix continued drinking. Norman told a family member he was trying to get rid of Dix who would soon resume hitchhiking.

The night of April 8 was apparently spent by Norman and Dix in Norman’s station wagon parked at Lake Conway in Faulkner County. On the evening of April 9, Norman’s car was seen driving down an embankment to Lake Conway. The car was seen in the vicinity of the lake at 7:00 and again at 9:00 p.m.

When the body was discovered on the morning of April 10, a witness, Zane Owens, who had spent the night camped at the rest area, was interviewed by the police. He reported, as he also testified at the trial, that he had noticed Norman’s body at the end of the rest area at approximately 10:00 p.m. the night before, but he had had no reason to suspect Norman was dead. It looked to Owens as if Norman were sleeping on the ground, as he was covered by a blanket and some rags. He also saw a blue Pontiac Bonneville with an open door near the body and assumed the car was in some way related to Norman’s presence there.

After Norman’s body was identified, police were taken by his brother’s wife to the place on the lake where Norman and Dix had camped. There they found a large stick with blood on it as well as beer cans and other debris including a torn Tennessee traffic citation issued to “Charles Dickey” by the Tennessee Highway Patrol. The name was one Dix admitted to using because he could not get a driver’s license or car insurance in his own name due to multiple arrests for driving without a license. Also found was a torn business card of Owens & Owens, “licensed bondsmen.”

The state medical examiner testified that Norman was killed by blows to the head which appeared to be consistent with having been made by a blunt, wooden, rounded object, and by strangulation. A nylon hose or panty hose was found around Norman’s neck, and the neck showed signs of strangulation. The medical examiner testified he estimated the time of death to have been sometime before midnight on April 9. The alcohol found in the blood and stomach of the victim showed he was so drunk he was on the verge of passing out and thus defenseless when he was killed.

In his defense, Dix testified that on Monday, which would have been April 8, he and Norman stayed at the lake, and the morning of April 9 they drove to Little Rock and returned to the lake sometime after 6:00 p.m. He said Norman told him he, Norman, was not going to fool with his family any more but was going to Oklahoma City, and they were planning to sleep at the lake again and then drive together the next morning to Oklahoma City. Dix said he then went to sleep in the back seat after removing his artificial leg to get comfortable. According to his testimony he awakened at 2:00 or 3:00 a.m. to find a stranger driving the car toward Oklahoma City. When Dix inquired about Norman, the stranger said he had “put him out.” The stranger then made him get in the front seat without putting his artificial leg back on; upon reaching Oklahoma City made him exchange Norman’s Arizona license plates for Oklahoma tags, still without reattaching the artificial leg; and then drove to Austin, Texas, where the stranger, whom Dix had come to know as “Bobby,” walked away from Dix and the car, telling Dix to forget he had ever seen him.

Dix was arrested for driving Norman’s Ford station wagon while intoxicated in Austin. He again identified himself as Charles Dickey. He was later identified as the person who had been with Norman before Norman was killed, and he voluntarily submitted to extradition to Conway County. The Oklahoma license plates on the car were traced to an Oklahoma City car dealer.

Officers who interviewed Dix in Conway County testified about a statement that Dix had given the Texas authorities in which he said he had hitchhiked through Missouri and Oklahoma and denied having been in Arkansas. When told by Texas officers he was wanted for murder in Arkansas, Dix said he knew nothing about what happened in Arkansas and would not discuss it with them until he had gotten an Arkansas attorney.

1. Jurisdiction

Dix’s argument is that because the bloody stick was found by Lake Conway in Faulkner County, and because some witnesses testified about the likelihood that the body had been moved, Conway County in which the body was found lacked jurisdiction to try him. The Morrilton police chief, who investigated the crime, testified it was his opinion that Norman had been killed in Faulkner County. He did not state his basis for that opinion.

The Conway County Circuit Court does not have jurisdiction to try an offense committed elsewhere. Ark. Stat. Ann. § 43-1408 (Repl. 1977). The state need not prove jurisdiction, however, “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” Ark. Stat. Ann. § 41-110 (Repl. 1977). In Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. den., 440 U.S. 911 (1979), we held that “before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court.” 263 Ark. 746, 569 S.W.2d 77 (emphasis supplied).

In Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983), the appellant testified the murder victim had jumped from a car he was driving forty miles an hour. The medical examiner testified the victim was run over by a heavy vehicle but her death had occurred before she was run over. We held the testimony that the death occurred earlier was no positive evidence that the crime occurred in any particular place. The same is true here. The strongest factor cited by the appellant is that a bloody stick, which may have been the murder weapon, was found in Faulkner County. There was no evidence presented of blood on the ground near where the stick was found. Nor was there evidence of blood in the victim’s car. There was just no positive evidence from which a juror could say, based on the record before us, where the crime occurred. We cannot say that the police chiefs opinion, elicited on cross examination and not supported by any further testimony given by him or by any evidence of record, may be considered to be the kind of affirmative or positive evidence required to place the burden on the state to prove the crime occurred in Conway County.

2. Sufficiency of the Evidence

Our burden on appeal is to decide whether the jury’s verdict is supported by substantial evidence. Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985). We view the evidence in the light most favorable to the jury’s verdict. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985).

When the drunken association of Dix and Norman in close proximity to Norman’s death is considered along with Dix’s general condition of being a stranded hitchhiker with no vehicle and his having been arrested driving Norman’s car, and these facts are combined with the improbable story Dix told about the disappearing stranger, the evidence becomes sufficiently substantial for affirmance. We regard Dix’s story as being improbable for several reasons. First, he and Norman had agreed to go to Oklahoma City. Norman certainly did not go, but that is the direction taken by the stranger. Second, Dix would have had the jury believe he was being held in semi-captivity by the stranger due to the stranger’s refusal to let Dix put his artificial leg on, and yet the stranger sent him out of the car to get the Oklahoma license plates. Third, there was evidence that Dix told Texas authorities a very different story from the one he related on the witness stand. A Texas investigator’s notes which were made when Dix was arrested in Texas showed that after his DWI arrest Dix denied having been in Arkansas but said he had come to Texas through Missouri and Oklahoma.

In Jones v. State, 61 Ark. 88, 32 S.W. 81 (1895), we approved an instruction containing these words: “If you find from the evidence that the defendant has made any false, improbable and contradictory statements explaining suspicious circumstances against him, then this may be considered by you.” 61 Ark. at 101, 32 S.W. at 85. Our approval of the jury giving weight to the making of false and improbable statements on the part of the accused was restated in Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Again, we hold that the appellant’s statements, combined with the other evidence of “suspicious circumstances against him” were sufficient to constitute substantial evidence of guilt.

3. Other Objections

In compliance with Arkansas Supreme Court and Court of Appeals Rule 11 (f) we have concerned ourselves with an objection Dix’s counsel made when Dix stated that he declined to speak further with Texas authorities about any incidents in Arkansas until he had obtained a lawyer. The objection was that in cross examining Dix about his inconsistent statement to Texas authorities the prosecution was “forcing” Dix to reveal that he had insisted upon his right to counsel.

There is no question here about admissibility of any statement Dix may have made after invoking his right to counsel. Nor is there any doubt that Dix’s revelation that he invoked his right to counsel was completely voluntary. He was being asked about whether he had told Texas authorities about the stranger who had brought him to Texas. Dix’s response was that he told the Texas authorities he had waived extradition to Arkansas and did not want to talk about it until he had talked to his lawyer.

Dix’s counsel contended at the trial that the reference to refusal to talk without obtaining legal advice was analogous to the prosecution mentioning an accused’s refusal to testify on his own behalf. We know of no authority to that effect.

We find no prejudice. Even if it could possibly be considered prejudicial for the state to point out that an accused refused to respond to interrogation absent counsel, in this case it was brought up by the accused and not the state.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The only fact connecting the crime to Conway County was the discovery of the body of the victim of this murder in Conway County. The only evidence having a tendency to locate the place of the murder indicated it occurred near Lake Conway in Faulkner County.

Although the corpse was found in Conway County about an hour after the victim and the appellant were seen together at Lake Conway, the uncontroverted testimony by the state medical examiner was that the body had been moved after the death. Death was caused by trauma from a blunt instrument and/or by strangulation. The apparent murder weapon, a blunt stick or club, with human blood on it, was found at Lake Conway where the parties were last seen. The Morrilton Chief of Police, who investigated the murder, concluded it happened in Faulkner County.

Proof of lack of venue is clearly discernible in the majority opinion. I agree with the opinion where it states that the state need not prove jurisdiction “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” We stated in Gardner v. State, 263 Ark. 739, 746, 569 S.W.2d 74 (1978), that “before the state is called upon to offer any evidence on the question of jurisdiction there must be positive evidence that the offense occurred outside the jurisdiction of the court.”

Arkansas Statute § 41-110(2) (Repl. 1977) states: “[t]he state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” The statute also specifically requires that “jurisdiction” and “venue” be proven by the state “beyond a reasonable doubt” when there is such affirmative evidence.

Article 2, Section 10, of the Arkansas Constitution provides that “the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed. . . .” the Sixth Amendment to the Constitution of the United States reads as follows: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . .”

The danger of allowing a defendant to be tried in any county where the victim’s body is found is that it expands the jurisdiction of the courts beyond their statutory and constitutional limitations. It creates the possibility of a body being moved to another county. This Court has, in my opinion, legislated a venue change which serves the public interest and the desire of the Court. Even though the purpose is a noble one it has been accomplished in the face of existing law. We have authority to point out needed changes in the law, but not to enact legislation or amend the Constitution.

I would reverse and remand the matter for a trial in Faulkner County, where the crime no doubt occurred.


author: Per Curiam.

text:
    Raphael S. JOHNSON, Ida JOHNSON & Robert JOHNSON v. STATE of Arkansas
    715 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Stephen E. James, for appellant.
    No objection.
   Per Curiam.

Appellants, Raphael S. Johnson, Ida Johnson & Robert Johnson, by their attorney, Stephen E. James, have filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellants. Their attorney admits that the record was tendered late due to a clerical mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Dwight David LOWE v. STATE of Arkansas
    CR 86-66
    716 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Jones, Tiller & Walker, by: Marquis E. Jones, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant and the Attorney General’s Office filed a joint petition seeking a dismissal of the charges against the appellant. In the petition, the parties state that appellant was arrested on May 20, 1984; charged with theft of property on June 6,1984, and released on bond on June 8,1984. He filed a motion to dismiss the charges on January 31, 1986, which was denied on February 4, 1986. The parties claim that appellant’s right to a speedy trial has been violated and, accordingly, the trial court should be reversed and the charges should be dismissed.

We deny the parties’ petition. Without briefs on the issue we cannot determine if any excludable periods toll the speedy trial rule and we are unwilling to accept a decision on the merits made by the litigating parties. A litigant can waive the right to appeal or withdraw an appeal, but it is the function of this court to resolve legal issues on appeal and it is not permissible for the parties to usurp that function.

Accordingly the petition is denied and the parties are ordered to brief the issues.


text:
    Deborah MONK v. FARMERS INSURANCE COMPANY
    86-189
    716 S.W.2d 201
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Honey & Rodgers, P.A., by: Charles L. Honey, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   Per Curiam.

The appellee has moved to dismiss this appeal because the appellant’s notice of appeal was not filed within ten days after her motion for a new trial was deemed to have been disposed of in accordance with Ark. R. App. P. 4(c).

In her response, the appellant notes that her new trial motion was deemed to have been disposed of on May 29, 1986, and her motion for judgment n.o.v. was deemed disposed of on June 2, 1986. She contends that Ark. R. App. P. 4(a) permits her to appeal within thirty days of either of the deemed disposals. The notice of appeal was filed June 18, 1986.

The appellant would have us say that, because she is appealing from the denial of the new trial, as well as the original judgment, Rule 4(a) rather than Rule 4(d) is controlling. The problem with our doing that is that the motion for new trial has not been denied. Rather, it has been “deemed disposed of’ in accordance with Rule 4(c). When that occurs, the only appealable matter is the original judgment or order. The appeal must be within ten days of the deemed disposal of the motion as provided in Rule 4(d).

As authority for her point that an appellant has thirty days rather than ten to appeal from a “deemed disposed of’ motion for a new trial, the appellant cites our opinion in Reynolds v. Spotts, 286 Ark. 335, 692 S.W.2d 748 (1985). In that opinion we correctly applied Rule 4(c) to bar an attempted notice of appeal filed on August 30, 1984, with respect to a case in which a new trial motion was deemed disposed of on April 25, 1984. We misspoke in that opinion when we said the time for filing a notice of appeal ran out on May 28,1984. We should have said it ran out ten days from April 25, 1984.

As the failure to file a timely notice of appeal deprives this court of jurisdiction, Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984); La Rue v. La Rue, 268 Ark. 86, 593 S.W.2d 185 (1980), the motion to dismiss is granted.


text:
    Santiago SANCHEZ a/k/a Robert George Pacicco v. STATE of Arkansas
    CR 85-211
    716 S.W.2d 747
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Appellant, pro se.

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

Petitioner Santiago Sanchez and a co-defendant Gary Piercefield were convicted of possession of methamphetamine, a controlled substance, and sentenced as habitual offenders to 35 and 22 years in prison. On appeal, we reversed and dismissed the judgment against Piercefield and affirmed petitioner’s conviction. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). Sanchez now seeks permission to proceed in circuit court for an evidentiary hearing pursuant to Criminal Procedure Rule 37.

Much of the petition concerns the sufficiency of the evidence against petitioner, but that question was settled at trial and on appeal. The sufficiency of the evidence is not a ground for collateral attack of a judgment under Rule 37. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983). Petitioner also contends that this Court misconstrued the evidence on appeal and made mistakes in its opinion, claims which should have been made in a petition for rehearing and are not grounds for postconviction relief.

Petitioner further argues that he was denied the right to confront Piercefield at trial, that evidence from the search of his car should have been suppressed and that the prosecution entered into a plea bargain with a potential witness whereby the witness would be precluded from testifying in petitioner’s behalf. The assertions of error raised by petitioner could have been argued at trial and subsequently on the record on appeal. Since they were not, they must be considered waived. Even questions of constitutional dimension are waived if not advanced in accordance with the controlling rules of procedure, unless they present a question so fundamental as to render the judgment of conviction absolutely void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981). A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). The issues raised by the petitioner, even if meritorious, would not be enough to void the judgment in his case.

Petitioner also argues that his attorney at trial Garner Taylor, Jr. was ineffective. He cites specific acts and omissions of counsel as support for the claim, none of which is in itself sufficient to demonstrate that he was prejudiced. We nevertheless find good cause to grant permission to file a petition for an evidentiary hearing in the trial court on the allegation that Taylor was ineffective because, unbeknownst to petitioner, Taylor was under felony indictment at the time of the trial in the very court in which petitioner was being tried. Petitioner contends that after his trial an attorney named William Cromwell told him that Taylor was under indictment. He verified through “knowledgeable persons” and press reports that Taylor had been charged with the aggravated assault of a Fort Smith woman and that the charge was pending in April, 1985, when he was tried. It goes without saying that a conflict of interest could exist where counsel was under indictment in the court where his client was also under indictment, depending on factors such as whether the attorney was involved in plea negotiations, the disposition of the charge and other considerations. See United States v. DeFalco, 644 F.2d 132 (3rd Cir. 1980).

While it is possible for an attorney under indictment to render effective assistance to his client, petitioner’s allegation that counsel’s representation was affected by the indictment is sufficient to warrant a hearing. Upon filing of a proper petition in the circuit court, the court must determine whether counsel was under indictment and, if so, whether counsel’s representation was so affected that his performance was deficient in that he made specific errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. The deficient performance must have resulted in prejudice so pronounced as to have deprived petitioner of a fair trial whose outcome cannot be relied on as just. Strickland v. Washington, 466 U.S. 668 (1984). In all other respects, the petition is denied.

Petition granted in part and denied in part.

Newbern, J., not participating.


text:
    Anthony Fredrick THRASH v. STATE of Arkansas
    715 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered September 22, 1986

      Don E. Glover, for appellant.
    No response.
   Per Curiam.

Appellant, Anthony Frederick Thrash, by his attorney has filed for a rule on the clerk.

His attorney, Don E. Glover, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Charles C. BOYETT, III v. STATE of Arkansas
    CR 86-80
    716 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Howell, Price, Basham & Hope, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

In 1983 the appellant Boyett and Steven E. Rice were jointly charged, on the day after a bank robbery, with aggravated robbery and theft of property. About a month later the circuit judge accepted negotiated pleas of guilty and sentenced each defendant to concurrent terms of 20 years for the robbery and 5 years for the theft. In 1985 Boyett filed the present pro se petition for relief under Criminal Procedure Rule 37, asking that his sentences be set aside for ineffective assistance of counsel. The trial court denied the petition without a hearing, finding from the record that even if all the allegations of the petition were established, there would still be no basis for relief. The court added “for purposes of appellate review” that even if the court were inclined to grant an evidentiary hearing, the court would not grant a new trial on the issue of guilt but would grant a rehearing only as to the sentences, because the petition sought only that relief. We hold that the court was in error. Our jurisdiction is under Rule 29(l)(e).

Most of the allegations in the petition were already supported by the record. Boyett and Rice were both represented by the same public defender, Joe O’Bryan, who was appointed to handle their defense. Boyett was a first offender who had no other charges pending against him. Rice had prior convictions for theft of property and forgery. In addition, charges were pending against Rice in four other felony cases. The judgment accepting the pleas provided that the 20 and 5 year terms were to run concurrently with the terms in the other four pending cases. The record does not show whether additional punishment was actually assessed against Rice in the other cases. The petition also alleges (a) that the 20-year and 5-year sentences were offered by the State as a “package deal” that had to be accepted by both defendants and (b) that Rice was the more culpable participant in that he had entered the bank with a gun while Boyett waited outside in a car.

The possibility of ineffective assistance arises from the lawyer’s representation of both defendants. The principles controlling this case were laid down in Holloway v. Arkansas, 435 U.S. 475 (1978), reversing Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976). There the public defender, representing all three defendants in a robbery case, asked that separate counsel be appointed to represent each defendant, because their interests were conflicting. Counsel did not feel free to disclose just what the conflict was. We affirmed the trial court’s refusal to appoint separate counsel, basing our decision on the absence of a showing of any material basis for the alleged conflict of interest.

In reversing our decision the Supreme Court held that it is not necessary for a defendant to show that the conflict of interest prejudices him in some specific fashion. The Court buttressed its position with this reasoning:

Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. . . .
But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial negotiations and in the sentencing process. 435 U.S. 489-490.

Absent an evidentiary hearing at which the facts may be developed and at which Mr. O’Bryan may explain his acceptance of the State’s package, the possibilities of injustice outlined by the Supreme Court are present in the case at bar. Boyett’s status as a first offender was in decided contrast to Rice’s prior convictions and pending charges. A separate attorney for Boyett could probably have negotiated a lighter punishment than that to be inflicted upon Rice. But Boyett’s advantages melted away when there was only one defense lawyer for both defendants, for that lawyer obviously could not in good conscience play one of his clients against the other in pretrial negotiations. We are not saying that he is entitled to relief; we are saying that he is entitled to a hearing.

Little need be said about the trial judge’s suggestion that Boyett be restricted to an attack upon the sentences alone. It is the established practice in Arkansas for the courts to be liberal in allowing amendments to Rule 37 petitions, for under Rule 37.2(b) a prisoner is not ordinarily permitted to file a second petition after his first one has been denied.

Reversed.

Hickman, J., not participating.


author: John I. Purtle, Justice.

text:
    Benjamin JOHNSON v. STATE of Arkansas
    CR 86-70
    716 S.W.2d 202
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      William R. Simpson, Jr., Public Defender, and Thomas B. Devine, III, Deputy Public Defender, by: Arthur L. Allen, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was found guilty of rape and sentenced to 30 years. He was also found guilty of kidnapping for which he was sentenced to a term of ten years. The sentences were ordered to be served consecutively. On appeal the appellant argues the evidence to establish the lesser included offense of kidnapping was insufficient to support the conviction. We do not consider the argument because it is raised for the first time on appeal.

This matter is before us on direct appeal, and we do not consider matters which were not raised before the trial court. Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982). We have made exception to this rule where prejudice is conclusively shown and relief would unquestionably be granted under A.R.Cr.P. Rule 37. Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). We do not find such to be the case here, and accordingly affirm the judgment of the trial court.

Affirmed.


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

text:
    George S. BENNETT and Everett SHELTON v. STATE of Arkansas
    86-38
    716 S.W.2d 755
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Thomas M. Carpenter, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The Attorney General’s office filed this suit seeking to obtain reimbursement for the State for maintaining appellants as inmates in the Department of Correction. The action was filed pursuant to the “State Prison Inmate Care and Custody Reimbursement Act.” Ark. Stat. Ann. §§ 46-1701 to -1707 (Supp. 1985), which provides that when an inmate is found to have an “estate,” the State may have a guardian of the estate appointed, and the estate may be liable to the State for the inmate’s room, board, clothing, and medical expenses. “Estate” is defined as including payments from the Social Security Administration or any other pensions or retirement benefits. Appellant Bennett’s estate consisted solely of funds he received from Social Security retirement benefits, and appellant Shelton’s estate consisted of funds received from the Veterans’ Administration disability benefits. Bennett objects to subjecting his estate to liability because the Social Security Act provides that “none of the moneys paid . . . shall be subject to . . . levy ... or other legal process.” 42 U.S.C.A. § 407. Similarly, Shelton contends the veterans’ statute protects his estate from the State’s action. It provides, “Payments . . . shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” 38 U.S.C.A. § 3101(a). The trial court found that the appellants’ estates were subject to legal process in these cases, and, after using the formula provided in Ark. Stat. Ann. § 46-1704(b), ordered part of the estates to be paid to the State. We affirm.

Appellants contend that the State act is in conflict with the federal acts, and under the Supremacy Clause of the Constitution of the United States the federal acts must prevail. If the acts were in conflict, the federal acts would clearly prevail under the Supremacy Clause. Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973). However, there is no conflict because the federal statutes contain an implied exception to the exemption from legal process when the State provides for the care and maintenance of a beneficiary of social security or veterans’ funds.

As set out in Department of Health v. Davis, 616 F.2d 828 (5th Cir. 1980), the purpose of social security benefits is to provide for the care and maintenance of the beneficiaries. The exemption of benefits from creditors’ actions was enacted as part of the original social security legislation. Pub. L. No. 74-271, § 208, 49 Stat. 622, 625 (1935). This exemption evidences a clear legislative philosophy of precluding beneficiaries from diverting their social security benefits away from the statute’s seminal goal of furnishing financial, medical, rehabilitation, or other services to needy individuals. 42 U.S.C. A. §301. The benefits are paid for the purpose of assuring the beneficiaries’ care and maintenance, and the State seeks to do nothing more than apply them to the cost of appellant Bennett’s care. Neither the purpose of the benefits, nor the purpose of the exemption is accomplished by barring the State from recovering.

Likewise, veterans’ payments “are intended primarily for the maintenance and support of the veteran.” Lawrence v. Shaw, 300 U.S. 245, 250 (1937). Accordingly, the veterans’ benefit exemption was held inapplicable where a state sought reimbursement for the expenses of continuous hospitalization of a mentally ill dependent of a veteran where the dependent’s entire estate consisted of monthly pension payments received by a guardian. In re Lewis’ Estate, 287 Mich. 179, 283 N.W. 21 (1938). In that case, the Supreme Court of Michigan, at page 24, wrote:

The very purpose of a pension, such as in this case, is to provide support for the beneficiary and, in this proceeding for reimbursement, the state, under the statute, is asking no more than the pension was given to provide.
We are not here concerned with actions by creditors seeking to turn the pension to satisfaction of their demands, but only with the question of reimbursement of the state for care and maintenance. Certainly the pension protective law does not intend the fund for the welfare of the beneficiary and then, under restrictions thereof, after receipt by the beneficiary, prevent employment thereof for care and support of the pensioner.

The reimbursement of the state for the care and maintenance of the beneficiaries of these two federal programs is entirely consistent with the thrust of the federal legislation.

The appellants contend that the case of Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973), dictates reversal of the trial court. In Philpott, the Court rejected a state welfare agency’s claim for reimbursement from a welfare recipient’s disability benefits and noted the exemption was phrased in broad terms:

On its face, the Social Security Act in § 407 bars the State of New Jersey from reaching the federal disability payments paid to Wilkes. The language is all-inclusive: “[N]one of the moneys paid or payable . . . under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process . . . .”

However, the Fifth Circuit Court of Appeals recognized that a fundamental distinction exists between cases such as the one at bar and Philpott. That court distinguished Philpott as follows:

With regard to the social security statute, the Supreme Court in Philpott v. Essex County Welfare Board, 409 US 413; 93 S Ct 590; 34 L Ed 2d 608 (1973), precluded a state from recovering financial assistance rendered to a person claiming permanent and total disability. Philpott is different from this case, however, since there the welfare recipient was capable, at least in part, of providing for his own care, and the state was not acting in loco parentis, as it is here. The beneficiary in Philpott was merely receiving assistance in providing for himself. Glass-cock, however, determined to be incompetent by the Veterans’ Administration since February 21, 1952, has been in confinement until the present because he is apparently incapable of caring for himself to any degree. Glasscock has had no needs during the period he has been in the Florida State Hospital that were not met by the state. Accordingly, the state is seeking to have the guardian, who is responsible for overseeing her ward’s care and maintenance, do what is required by Florida law; apply the benefits received by the ward for care and maintenance to reimburse Florida for undertaking his care and maintenance. Thus, contrary to the guardian’s argument, Philpott does not control the outcome of this case.

Department of Health v. Davis, 616 F.2d 828, 830 (5th Cir. 1980). (Emphasis added.)

The Court of Appeals of Michigan followed the Fifth Circuit and recognized the same distinction. Department of Correction v. Brown, 125 Mich. App. 620, 337 N.W.2d 23 (1983). Similarly, we do not find that Philpott controls the cases at bar because here the State provided the care and maintenance for the beneficiaries.

Appellants’ final contention is that because we liberally construe exemptions, we must reverse the trial court. We find no merit in the argument. It is true that we do liberally construe exemptions from legal actions on pensions when creditors who have not provided for the care and maintenance of a beneficiary seek to turn the pension to the satisfaction of their demands. Waggoner v. Games Sales Co., 288 Ark. 179, 702 S.W.2d 808 (1986). Such actions by creditors if allowed, would keep the imprudent beneficiary from caring and maintaining himself. Here, we are not concerned with an action which could prevent a beneficiary from caring and maintaining himself; instead, we are concerned only with the question of reimbursement of the State for care and maintenance.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. In my opinion the Supremacy Clause of the United States Constitution requires this Court to declare Ark. Stat. Ann. § 46-1701 et seq. to be ineffective in attempting to make Veterans’ Administration disability retirement benefit and Social Security retirement benefit funds subject to garnishment and/or execution. Were it not for the fact that the recipients of the disability payments, here in question, were imprisoned, I believe the decision of this Court might well have been different. I believe the case of Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973) is controlling. I can see no implied exception to the exemption in Philpott. I agree with the majority that both Veterans’ Administration disability benefits and Social Security retirement benefits are intended primarily for maintenance and support of the retiree. Medical expenses and other personal obligations are also included in the recipients’ anticipated costs of living. However, in enacting these laws the United States Congress unquestionably, by the clear and express language of the statutes, intended the recipients to be the owners of such funds and that no one, even judgment creditors, could take these funds away from the beneficiaries.

The Veterans’ benefit exemption is set out in 38 U.S.C. § 3101 as follows:

Payments of benefits due or to become due under any law administered by the Veterans’ Administration . . . shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary ....

(Emphasis added.)

In the recent decision of Waggoner v. Games Sales Co., 288 Ark. 179, 702 S.W.2d 808 (1986), this Court apparently recognized the Supremacy Clause when it declared Civil Service retirement benefits were not subject to a writ of garnishment on a judgment. The Civil Service Retirement Disability Fund exemption, 5 U.S.C.A. § 8346(a), uses about the same language as the Veterans’ Administration disability benefit and Social Security benefit funds use to exempt those funds from the attachment process. In Waggoner we stated, “ [w]e are of the opinion that the better rationale is to follow the clear language of the statute and to hold that the money which came from disability payments by the Civil Service Retirement System is exempt from garnishment by a judgment creditor under the provisions of 5 U.S.C.A. § 8346(a).” I see no reason to change the clear logic of that decision.

The majority opinion in the present case is precedent for allowing judgment creditors, who have furnished food, clothing, lodging, and other items of the costs of living to recipients of Veterans’ benefits and Social Security benefits, to garnish such benefits. I find the majority opinion to be entirely inconsistent with the clear and unambiguous language of the federal statutes creating these exemptions in favor of the beneficiaries. Any change in the law should come from Congress.

I would reverse and dismiss.