author: Darrell Hickman, Justice. John I. Purtle. Justice,

text:
    Michael SMITH v. STATE of Arkansas
    CR 87-123
    757 S.W.2d 554
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Pruitt & Hodnett, by: Roger T. Jeremiah, for appellant.

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

Michael Smith was convicted of seven counts of terroristic threatening in the first degree and seven counts of false imprisonment in the first degree. At trial he insisted on representing himself and a public defender was appointed to assist him. He was sentenced to 21 years for each count of terroristic threatening and 15 years for each count of false imprisonment; the sentence imposed was 242 years. Actually, the trial judge miscalculated and the sentence should have read 252 years. Eight arguments are made for reversal; all are meritless.

Smith was a truck driver for Don Youngblood Trucking Company in Alma, Arkansas. A dispute arose between Young-blood and Smith, and Smith was fired. An argument between Smith and Youngblood, which occurred over the telephone, reveals that Smith told Youngblood he was coming to the office to get his check. Upon arrival he was told that the computer was not working and the check was not ready. An employee started preparation of Smith’s check by typewriter. While waiting for his check, Smith and Youngblood began arguing again. Smith became very angry, pulled a pistol and threatened to kill everyone in the building if the police arrived or if the phones were used before he received his check. There were seven employees in the building at that time in two offices. Smith moved back and forth down a short hallway to monitor everyone in the building while communicating his threats. After he received his check, he went to his apartment in Van Burén, Arkansas, where the police later arrested him and took possession of the check.

Smith first contends that under Ark. Code Ann. § 5-1-110(a)(5) (1987) his conduct was uninterrupted; therefore, at most he may only be convicted of one count of terroristic threatening and one count of false imprisonment.

Ark. Code Ann. § 5-1-110(a)(5) provides:

(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(5) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

Appellant argues that this section “would prohibit prosecution for multiple counts where the conduct of the defendant is a continuing course of conduct and was uninterrupted.” We have considered this argument before and decided that for this subsection to be applicable, the conduct must be defined as a continuing course of conduct crime. Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987). As we pointed out in Rhodes, the statute clearly states that a defendant may not be convicted of more than one offense if the conduct is defined as a continuing course of conduct.

Neither terroristic threatening nor false imprisonment is defined as a continuing offense. Examples of such offenses are nonsupport [Ark. Code Ann. § 5-26-401 (1987)], and obstructing a highway [Ark. Code Ann. § 5-71-214 (1987)]. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977); Rhodes v. State, supra. Because neither offense is defined as a continuing course of conduct, § 5-1-110(a)(5) has no application to the facts of this case. If Smith had killed seven people, it would hardly be argued that he could only be convicted of one count of murder.

Smith makes two arguments regarding the sufficiency of the evidence. First, he argues that there was insufficient evidence to support convictions of terroristic threatening of two victims, Winona Davis and Minnea Smith; and second, he alleges there was not sufficient evidence to support a conviction for false imprisonment of Minnea Smith.

In a criminal case we will affirm if there is substantial evidence to support the verdict. Robinson v. State, 291 Ark. 212, 723 S.W.2d 818 (1982). Substantial evidence is that which rises above speculation or conjecture and compels a conclusion one way or another. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). We review the evidence in the light most favorable to the appellee, the state in this case. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977). We consider only testimony tending to support the guilty verdict. Brown v. State, 278 Ark. 604, 648 S.W.2d 67 (1983).

Regarding Smith’s first attack on the sufficiency of the evidence, he says that no evidence was presented at the trial which tended to show that two of the seven persons present in the office were actually terrorized. Smith misunderstands the proscription of the criminal code provision on terroristic threatening. Ark. Code Ann. § 5-13-301(a)(1) (1987) provides:

A person commits the offense of terroristic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to another person.

The conduct prohibited by this section is the communication of the threat with the purpose of terrorizing another. It is not necessary that the recipient of the threat actually be terrorized. Richard v. State, 266 Ark. App. 733, 585 S.W.2d 375 (1979). In view of this premise, it is clear that testimony of some witnesses to Smith’s statements that “he’d kill everyone in the building” is sufficient to sustain his conviction on all counts of terroristic threatening. A jury could easily conclude that he meant anyone or all of the seven.

In Smith’s second sufficiency argument, he asserts that there was no testimony from Minnea Smith that she felt restrained without consent or legal justification, that is, falsely imprisoned. The same logic applies here that applies to the first sufficiency of evidence argument. There is no requirement that the state place every victim on the witness stand to satisfy the burden to prove by substantial evidence every element of a crime. The jury could easily conclude all were falsely imprisoned.

Smith asks that his case be reversed and dismissed because he was not taken before a judicial officer without delay. He was arraigned seven days after his arrest. Our rules provide that a detained person shall be taken before a judicial officer without unnecessary delay. A.R.Cr.P. Rule 8.1. Failure to comply does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978); Gerstein v. Pugh, 420 U.S. 103 (1975). In Gerstein the United States Supreme Court said:

[W]e adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information . . . nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction ....

The remedy for violation of Rule 8.1 is suppression of the evidence obtained as set forth in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987). The appellant here concedes that the Duncan test is not satisfied so we need not speak on the matter.

Appellant also seeks reversal based on the trial court’s ruling that statements taken after his arrest were admissible. The trial court considered the evidence at a pretrial hearing. The appellant concedes that on this issue it was a “swearing match.” We have repeatedly held that any conflict in witnesses’ testimony is for the trial court to resolve. Harris v. State, 294 Ark. 484, 743 S.W.2d 822 (1988); Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987). We find no abuse of discretion in the court’s ruling.

Appellant makes several other general arguments which we find meritless. He contends that his convictions are in violation of the double jeopardy clause of the United States and Arkansas Constitutions. No objection was made on this basis at the trial. So we will not consider it on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). That is true even if the error is of constitutional import. Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983). He argues that the trial judge erred in failing to recuse when Smith raised the possibility of a class action federal lawsuit for failure to promptly arraign him and others. The trial judge has considerable discretion in matters such as this, and we will not reverse absent a clear abuse of that discretion, which the appellant has not demonstrated. Woods v. State, 278 Ark. 271, 644 S.W.2d 937 (1983).

The final argument concerns the denial of numerous pro se motions filed by the defendant before his trial. He argues that the denial of these motions amounts to a denial of due process, yet he does not support his argument with any convincing authority or reasoning. Consequently, we will not consider it. Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986).

Affirmed.

Purtle, J., dissents.

John I. Purtle. Justice,

dissenting. I think we ought to follow the law but in doing so we should use common sense and apply that degree of justice which is compatible with the law. Basically, I disagree with this outrageous sentence, which indicates a need for sentencing guidelines at the state level.

This appears to be a case where an employee becomes outraged and uncontrollable because he had been fired and his final check was not ready. His conduct is inexcusable and highly criminal. He ought to be punished but the courts should not act arbitrarily and unreasonably in response to the acts of an accused. There is no more justification for the reaction by the system than there is for the original action of the criminal.

The majority opinion relies upon Ark. Code Ann. § 5-1-110(a)(5), which is also the foundation of this dissent. The case before us is a clear example of a continuing course of uninterrupted conduct and the law does not otherwise provide that specific periods of this conduct constitute separate offenses.

Rhodes v. State, 293 Ark. 211, 736 S.W.2d 284 (1987), is cited in support of the majority. There is no comparison to be found between Rhodes and the present case. Rhodes was charged with offenses which were committed within a “few days” of each other. He robbed two citizens in separate robberies and a few days later had a shoot-out with officers who were trying to arrest him. He was charged with attempted murder for his resisting efforts. We properly held that there was no continuing course of conduct and each offense was a separate course of conduct. The opinion ended by stating: “He was not charged with several counts for the same continuous crime.”

When the impulse is single only one charge is proper, no matter how long the action may continue. Rowe v. State, 271 Ark. 20, 607 S.W.2d 567 (1980). If the same conduct establishes more than one offense, a conviction may be had for only one. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). There is no separation of the acts by the appellant in this case. It was all one continuous course of conduct directed at obtaining his paycheck. When he completed his goal he left. This is not as though he went to each of the seven persons and addressed them separately or if he had shot each one of them.

The statement that if he had killed all seven he could be punished for seven separate murders is scary. Of course he could be punished for separate murders. It takes separate impulses to commit multiple murders. But to assume he might have or could have killed seven people is very little stronger than locking up the first man you meet on the street because he might commit a crime. He might, but then he might not.

This sentence is unconscionable and should be reduced to a sentence appropriate for the conduct attributable to the appellant in the case before us. It was, after all, but one uninterrupted course of conduct, lasting only a matter of minutes.


source: Caselaw Access Project

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

license: Public Domain

text:
    J.C. BELL v. STATE of Arkansas
    CR 86-180
    757 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988
    [Rehearing denied November 7, 1988.]

      Sandra Tucker Partridge, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.

       Newbern, J., would grant rehearing.

   John I. Purtle, Justice.

The appellant was sentenced to life without parole after being convicted of capital felony murder. He makes nine arguments for reversal. Finding no prejudicial error, we affirm the conviction.

This case is quite unusual in that we are considering the direct appeal some fourteen years after the conviction. Meantime, the appellant filed a petition for relief pursuant to A.R.Cr.P. Rule 37, which was denied by the trial court after a hearing. The denial of the petition was subsequently affirmed by this court. See J.C. Bell v. State, 269 Ark. 85, 598 S.W.2d 738 (1980). The appellant then took action in the federal courts which resulted in the present direct appeal in this court. See Bell v. Lockhart, 795 F.2d 655 (8th Cir. 1986).

The parties to this appeal have been presented with many obstacles in obtaining a complete record. Some of the proceedings were never recorded. To add to the problem in this case, the Jefferson County Courthouse burned on April 28, 1976, and the court reporter died on April 21,1986. Pursuant to Ark. R. App. P. Rule 6(d), the trial court held a hearing in August, 1987, to settle the record on appeal.

The appellant was charged with first degree murder in an information filed on February 11,1974. An amended information was filed on March 20, 1974, five days before trial, charging the appellant and two others with capital felony murder.

The first argument presented for reversal is that the appellant cannot obtain an adequate record to properly pursue this appeal, and is therefore entitled to a new trial. The exhibits which were introduced at the trial were burned in the courthouse fire, and there are no transcriptions of hearings held on several pretrial motions. (The entries on the docket sheet clearly establish that hearings were held on some of these motions and the record does contain a transcription of the hearing on the motion to suppress the appellant’s confession.) Additionally, the opening statements and closing arguments were not recorded.

We do not consider the absence of these materials to be prejudicial to the appellant. The exhibits are adequately described in the transcript which has been lodged in this court; moreover, with the exception of the hearing on the motion to suppress, no one recalls anything about the hearings held on the other motions. At the time of appellant’s trial, Ark. Stat. Ann. § 22-352 (Repl. 1962), required that if either of the parties or the court wanted these proceedings recorded, a request must be made at the time of the proceedings. Neither the court nor the parties requested that these hearings and arguments be recorded. (This statute was omitted from the present code.) Meantime, we have held that the responsibility of keeping a complete record is that of the trial court. See Holiday Inns, Inc. v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982). Even so, the attorneys for the parties cannot abandon their responsibility as officers of the court to assist in preserving the record of the proceedings for review.

The record in this case is adequate to inform us of what transpired at the hearings and the trial. It was not the fault of either the state or appellant that the exhibits burned in the courthouse fire. The case is most unusual in regards to the record, but we hold that the appellant has not demonstrated prejudice resulting from the state of the record. See Johnson v. State, 289 Ark. 589, 715 S.W.2d 441 (1986); and Williams v. State, 275 Ark. 356, 629 S.W.2d 302 (1982).

Bell’s second argument is that there was insufficient evidence to convict him of capital murder. On appellate review we view the evidence in the light most favorable to the appellee. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984).

The appellant’s confession was introduced at the trial. An accomplice, Timothy Armstrong, testified that he drove the appellant and a third party to the crime scene and then drove them away after the robbery. A witness testified that he saw two men enter the store where Mr. Allen was killed about the time of the murder, that one of the men was wearing a big black hat, and that the two men exited the store by a side door. The witness’ wife called the police, who came to the scene and found Mr. Allen’s body. Another witness testified he heard strange noises coming from the victim’s shoe shop and noticed two men leaving the store at that time. A third witness, testified that he observed a vehicle fitting the description of Armstrong’s vehicle parked near the scene. Three men were in the car when he first observed it, and two of them subsequently got out and went into Mr. Allen’s store and returned about fifteen minutes later. This witness also said one of the men was wearing a big black hat. A fourth witness testified that he saw a vehicle fitting the same description parked on a street near the store with a man sitting in it.

When the appellant was picked up shortly after the crime was committed, he was wearing a large black hat and had a .38 caliber pistol in a shoulder holster. Two empty shells and four live rounds of ammunition were in the pistol at that time.

The pathologist testified that the victim was killed with two gunshot wounds to the head and that the injuries were consistent with .38 caliber pistol bullets. The state’s ballistic expert testified that a bullet removed from the victim’s head was from a .38 caliber pistol. The test on the bullets fired from the appellant’s gun were inconclusive due to the mutilated condition of the bullet taken from the victim’s body.

Aside from the appellant’s confession and the accomplice’s testimony, there is substantial evidence to support the verdict of the jury.

For his third argument, the appellant contends that the trial court erred in denying his pretrial motion for a continuance and for his commitment to the Arkansas State Hospital for a mental examination. The motion stated “[t]hat the defendant intends to raise the defense of insanity both at the time of the commission of the alleged felony and at the time of trial, and that he hereby requests this court to order an examination by the Arkansas State Hospital for nervous diseases . . . .” The trial court refused to grant a continuance. The request for commitment was effectively denied because instead of committing the appellant to the Arkansas State Hospital, a fully staffed hospital in Little Rock, the trial court ordered either of two medical doctors at a local mental health clinic to examine the appellant to determine if there were reasonable grounds to believe the appellant was insane. See Ark. Stat. Ann. § 43-1301 (Ark. Code Ann. §§ 16-86-102 through 105 (1987)). It is undisputed that the appellant was not present for the hearing on this motion, if such a hearing was in fact held. The appellant contends that holding a hearing on the motion in his absence was prejudicial.

We have long held that an accused has the privilege of being present in person and by counsel whenever any substantial step is taken in his case. Brown v. State, 24 Ark. 620 (1867); Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927). There are two very basic reasons for our holdings: (1) the right of an accused to be heard; and (2) the right of an accused to confront his accusors. The right to be heard and the right to confront are guaranteed by the Sixth Amendment to the Constitution of the United States. Faretta v. California, 422 U.S. 806 (1975), and Ark. Const, art. 2, § 10; Bearden v. State, 44 Ark. 331 (1884). In addition, the Due Process Clause of the Fourteenth Amendment gives an accused the right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934). The United States Supreme Court recently stated: “Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 479 U.S. 1303, 107 S.Ct. 7 (1986).

In Faretta v. California, supra at 819, in discussing the Sixth Amendment, the court stated:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment.

Of less importance, but still significant, Ark. Code Ann. § 16-89-103(a)(1) (1987) provides: “If the indictment is for a felony, the defendant must be present during the trial.”

We have held that a substantial step in the case was taken in the absence of the accused, and reversal was required, when the names of jurors were placed in a box and witnesses were sworn and put under the rule, Bearden v. State, 44 Ark. 331 (1884); testimony is taken, Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896); instructions were reread, Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899); and the judge went into the jury room, Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904). A hearing on a motion for a continuance and for commitment to the state hospital in preparation for a possible insanity defense is a substantial step in the case, and the appellant’s presence would unquestionably contribute to the fairness of the procedure.

When a significant step in the case is taken in an accused’s absence, the case must be reversed, if it appears that he has lost an advantage or has been prejudiced by reason of a step taken in his absence. The reason for the rule is to secure to the accused a full and adequate defense at his trial. Where there is no possibility of prejudice, there is no reason for requiring the presence of the defendant. Bearden v. State, 44 Ark. 331 (1884). This harmless error rule refers, for example, to a case where the trial judge, in the defendant’s absence, admonished the jurors not to speak to anyone about the case until after the case was submitted to them, Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927), and where the trial judge granted the defendant’s motion in his absence. Polk v. State, 45 Ark. 165 (1885); Bond v. State, 63 Ark. 504, 39 S.W. 554 (1897).

Whether to grant a continuance is within the sound discretion of the trial court. In the absence of abuse of that discretion this court will not reverse. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987); and Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). It is the appellant’s burden to demonstrate abuse of that discretion. Without the benefit of testimony and other information developed at the Rule 37 hearing, we might have reached a different conclusion. However, that evidence is before us. (See the opinion we rendered affirming the denial of the Rule 37 petition. Bell v. State, 269 Ark. 85, 598 S.W.2d 738 (1980).) Bell’s trial counsel testified at the Rule 37 hearing that nothing during the trial surprised him and that he did not know of anything else he could have done in preparation for the trial even if the continuance had been granted.

The trial was held unusually soon after the crime. Ordinarily a trial court’s docket prevents holding a trial so quickly. However, one goal of the courts is to pursue a speedy trial, and this goal is consistent with the best interests of the accused and society. Had the defense attorney testified that he did not have enough time to prepare for the trial, or that there were vital witnesses he could not interview within the time frame, the denial of the motion for a continuance might well have constituted an abuse of discretion. A speedy trial is desirable and proper so long as it does not prevent the appellant and the state from receiving a fair trial. We cannot establish a minimum time for holding trials because each case must stand upon its own circumstances.

The appellant was entitled to be present at the hearings on his pretrial motions. His presence was waived, however, by his failure to specifically request such hearings or to request that he be present when the motions were considered. At the time of the trial, rules of circuit and chancery courts were in effect. Rule 2(e) stated: “Unless a hearing is requested by counsel or is ordered by the court, a hearing will be deemed waived and the court may act upon the matter without further notice 5 days after the time for reply has expired.” In Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980), we held that all bench and in-chambers conferences taking place during the trial must be recorded. Although a desirable practice, this case does not hold that hearings on pretrial motions must be recorded. There is no evidence that the appellant or his attorney, or anyone else, requested that these motions be heard and reported. The appellant had an absolute right to demand to be present at the hearings on his motions, but did not do so. Therefore this argument was not preserved for appellate review.

The appellant also contends that it was prejudicial error to allow the amendment of the information only five days before trial. He was originally charged with first degree murder in the perpetration of aggravated robbery. At the time, first degree murder was punishable by life imprisonment. Ark. Stat. Ann. § 41-1502. Five days before the trial, the state moved to amend the information to charge the appellant with capital murder in the perpetration of aggravated robbery. Capital murder is punishable only by death by electrocution or life without parole. Act 438 of 1973 (Ark. Stat. Ann. § 41-1501).

Arkansas Statutes Annotated § 43-1024 (now codified at Ark. Code Ann. § 16-85-407 (1987)) provides in pertinent part: “[N]o indictment shall be amended ... so as to change the nature of the crime charged or the degree of the crime charged.” The trial court allowed the amendment. The appellant assigns as error the ruling allowing the amendment.

First, capital murder and first degree murder are not crimes of the same degree. A charge of capital murder includes the lesser included offense of first degree murder, but clearly a charge of first degree murder does not include capital murder. Therefore, they are of a different degree. Second, they are not of the same nature. They include different elements and different proof. See Prokos v. State, 266 Ark. 50, 582 S.W.2d 36 (1979). Third, the nature of the punishments is different. Fuller v. State, 246 Ark. 704, 709, 439 S.W.2d 801, cert. denied, 396 U.S. 930 (1969).

Further, we have repeatedly held that capital murder and first degree murder are separate and distinct crimes, and that there is no unconstitutional overlapping because there is no impermissible uncertainty in the definition of the two offenses. See, e.g., Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981), cert. denied, 456 U.S. 1008 (1982).

Since the crimes are of different degree and nature, the amendment was improper. However, we affirm on this point, but solely because there was no objection to the amendment on this ground. The point was not preserved for appeal.

His next argument is that the trial court erred in admitting appellant’s confession. The main contention in support of this point is that the appellant had only an eighth grade education and could not read or write. Also, that he was very young and had been drinking all day. There is no need to cite authority for the proposition that a custodial confession cannot be admitted into evidence until the state makes a prima facie showing that the accused acted knowingly, voluntarily and intelligently when he made the confession. Upon review we make an independent determination as to the voluntariness of a custodial confession and affirm the ruling of the trial court unless it is clearly wrong. Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); and Tucker v. State, 261 Ark. 505, 510, 549 S.W.2d 285 (1977). Being unable to read and write does not automatically render a confession inadmissible. Mitchell v. State, 206 Ark. 149, 174 S.W.2d 241 (1943).

The appellant alleges force and intimidation were used to coerce his confession. However, Officer Willard testified that he gave the appellant the Miranda warnings and obtained a waiver of his rights. Officer Mclllwain testified that he and Officer Willard were the only two people in the room during questioning of the appellant, and that no force or intimidation was used. The record reveals that appellant was arrested and was read his rights about IT. 15 p.m. Thereafter he was questioned and commenced giving a statement, which was completed by 12:20 a.m. Upon review of the totality of the circumstances, we have determined that the resolution of the voluntariness issue in this case turns upon the credibility of the witnesses. Credibility of witnesses is a matter within the discretion of the trier of fact. Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987); see also Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984). We cannot say that the trial court abused that discretion in this case.

The sixth argument for reversal is that the trial court erred in admitting slides and photographs of the crime scene and the victim. The only pertinent allegation concerning the prejudicial nature of the photographs was the statement made by the prosecutor at the Rule 37 hearing. He states: “Well, they are pretty horrible, horrendous pictures, I’ll say that.” Even though the photographs may have been horrible and horrendous, they may have accurately reflected the victim and the crime scene and may have been helpful to the jury in determining the issues before them. As previously mentioned, the photographs were destroyed in the fire. We recognize that the appellant is at a disadvantage under the circumstances. However, based upon the descriptions of the photographs in the testimony, we cannot conclude that the photographs were prejudicial. Trial counsel objected to the photographs on the grounds of relevancy and repetition. The trial court determined that their probative value substantially outweighed the danger of unfair prejudice and admitted the photographs. The record does not reveal that the court abused its discretion in admitting these photographs. See Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).

The seventh argument is that it was improper to “death qualify” the jury. This issue has been settled adversely to the appellant in the case of Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).

For his eighth argument the appellant alleges that the trial court erred in failing to grant a new trial based upon a comment by the prosecutor in closing argument. Although there is no transcript of the closing argument, the record does reflect that defense counsel objected to a remark by the prosecutor in which he allegedly made a reference to the defendant’s failure to testify at the trial. The record also reflects that the motion for a new trial was denied.

At the time of appellant’s trial, closing arguments were not recorded unless requested. No such request was made in this case. Even if the closing argument is not being recorded, it is proper for either side to object during the argument if they feel the proceeding has become prejudicial. Under such circumstances it is the duty of the court to require a record to be made of such objection. We recognize that any reference by the state to the failure of an accused to testify is reversible error. However, no one recalls what the prosecutor said. It was the appellant’s duty to object at the time such statement was made and to preserve an adequate record for appellate review. Failure to do both prevents the appellant from arguing the issue at this time. See Williams v. State, 275 Ark. 356, 629 S.W.2d 302 (1982), where we refused to grant certiorari because the closing arguments were not requested nor ordered reported.

Bell’s ninth and final argument is that the court committed prejudicial error by allowing the jury to consider the aggravating circumstance of pecuniary gain. This too has been settled adversely to the appellant. O’Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988); Lowenfield v. Phelps,_U.S__, 108 S. Ct. 546 (1988).

After a careful review of the record available, recognizing the handicap under which appellant has proceeded, we cannot find prejudicial error. The fact that the trial attorney may have been ineffective concerning his advice on the desirability of an appeal has now been cured. See Bell v. Lockhart, supra. There is no prejudice because the appellant was not entitled to be released on bond pending resolution of an appeal. We have examined the record pursuant to Supreme Court Rule 11 (f) and determined that there are no prejudicial errors not argued by the appellant.

Affirmed.

Holt, C.J., and Glaze, J., concur.

Dudley and Newbern, JJ., dissent.

Tom Glaze, Justice,

concurring. I agree with the dissent that the appellant was entitled to be present if a hearing had been held on his motions. However, hearings are not required before a trial judge can rule on a motion, and neither the appellant, nor the record, shows a hearing was either requested or held on the motions he presented or filed with the court. For this reason, I join the majority.

Holt, C.J., joins in this concurrence.

Robert H. Dudley, Justice,

dissenting. I dissent to that part of the majority opinion which affirms the conviction even though the appellant was absent when substantial steps were taken in his case.

The majority opinion fully recites the accused’s constitutionally guaranteed right to be present in person and by attorney whenever any substantial step is taken in his case. I wholeheartedly agree, and would reverse on this point because the appellant was not present when his motion for continuance and commitment was heard.

The majority opinion attempts to beg the issue by stating that the appellant waived a hearing since he did not request one. The facts simply do not sustain the majority position. The judge’s docket sheet entry for March 20, 1974, five days before trial, reflects:

3/20/74 Motion for continuance filed by defendant, J.C. Bell, presented and denied. (Emphasis supplied.)
3/20/74 Order for examination by SE Ark. Mental Health Clinic 19-605.

On the same day the trial court entered an order directing two medical doctors at a local health clinic to examine the appellant and determine if there were reasonable grounds to believe he was insane. As can be seen from the above evidence, the hearing was not waived, and, in fact, the motion was presented and denied.

It is undisputed that the appellant was not present when the motion was presented and denied. Therefore, the accused was not present in person when substantial steps were taken in his case. This has long been held to be reversible error. Bearden v. State, 44 Ark. 331 (1884); Bennett v. State, 62 Ark. 516, 36 S.W. 947 (1896);Kinnemer v. State, 66 Ark. 206, 49 S.W. 815 (1899); and Stroope v. State, 72 Ark. 379, 80 S.W. 749 (1904).

Newbern, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Billy Joe HENSON v. STATE of Arkansas
    CR 88-71
    757 S.W.2d 560
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Greene Law Offices, by: Bill Lupen, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A jury found the appellant guilty of aggravated robbery and theft of property. Upon the recommendation of the jury, the court sentenced the appellant as a habitual offender to thirty years in prison for theft of property and life for aggravated robbery. For his appeal he argues that there was insufficient evidence to support the convictions on either charge; and that the trial court erred in refusing to give an instruction on the lesser included offense of robbery. W e agree that the proffered instruction should have been given and reverse the trial court.

The manager of a local business entered his office where the safe was located and discovered the safe open and a man in the process of taking money from the safe. The man then stated: “You caught me. Here’s the money.” The two men were in close proximity to each other, and when the culprit put his hand either inside his coat or in his pocket, the manager retreated on the assumption that the man was about to pull a weapon. At the same time the thief exited through the back door with the bag of money. The manager testified that there was between seven and eight hundred dollars in the safe at the time of the robbery.

We do not discuss the question of the sufficiency of the evidence other than to say that the evidence presented at this trial was sufficient to sustain the appellant’s conviction for either charge or the charge of robbery. The facts may not develop the same at a second trial.

We now turn to the issue concerning the refusal of the trial court to instruct the jury on the lesser included offense of robbery. It has long been the law in Arkansas that where there is the slightest evidence tending to disprove one of the elements of the greater offense, it is error to refuse to give an instruction on a lesser included offense. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980); and Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). Where there is the slightest evidence to warrant such an instruction, it is error to refuse to give it. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); and King v. State, 117 Ark. 82, 173 S.W. 852 (1915).

The question presented is not whether there was sufficient evidence to support a conviction for aggravated robbery since the jury could have accepted or rejected all of the proof on that charge. The issue is whether the jury should have been allowed to consider the offense of robbery, which is included in the offense of aggravated robbery. The jury, as trier of fact, should have been afforded the opportunity to consider whether to believe all or just part of the testimony of the chief prosecuting witness; i.e., whether to find the appellant guilty of aggravated robbery or simple robbery.

We are not unmindful of our decisions in such cases as Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984), where the evidence presented at the trial mandated either a conviction for the offense charged or acquittal. However, when the evidence presented demonstrates that the accused could be guilty of a lesser offense than that charged, it is the duty of the court to give instructions embracing all degrees of a particular offense applicable to the evidence. Westbrook, supra.

There is a line of cases, apparently relied upon by the trial court, holding that a lesser included offense instruction is not required where the question for the jury is truly an “all or nothing” proposition. In Young, supra, where the charge was aggravated robbery, the question was whether the proffered instruction on the lesser included offense of robbery should have been given. We upheld the decision of the trial court refusing to give the robbery instruction. We found no rational basis for giving the instruction because it had never been disputed, denied or controverted that a pistol was used in the robbery. The appellant was obviously guilty of aggravated robbery or nothing at all. See also Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982).

The state relies on Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986); and Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977) and argues that there was no rational basis for giving the instruction on the lesser offense. In Doby this court relied upon Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975), and followed the rationale that the accused was guilty of the offense charged or nothing at all. In Hamilton we found error in refusing to give an instruction on the lesser included offense of robbery and reduced the sentence to one for robbery.

The appellant’s defense at trial was simply that he didn’t commit the crime. His not guilty plea put the burden on the state to prove his guilt. The fact that he did not take the stand to deny his guilt did not lessen the state’s burden.

When the facts are susceptible of more than one interpretation, a lesser included offense instruction should be given. Generally a robbery instruction is required when the charge is aggravated robbery. A similar example is that a possession instruction is generally required when the charge is possession with intent to deliver. However, the facts of a particular case may develop so clearly that there would be no rational basis for giving a lesser included offense instruction.

Since the facts in this case are susceptible of more than one interpretation, robbery or aggravated robbery, the instruc-. tion should have been given. The evidence was not so conclusive as to demonstrate that only aggravated robbery could have been committed by the appellant. This is not a case of all or nothing.

Reversed and remanded for a new trial.

Dudley, J., not participating.


author: Robert H. Dudley, Justice.

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, et al. v. GREENE ACRES NURSING HOMES, INC., Extendi-Care, Inc., et al.
    88-102
    757 S.W.2d 563
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Breck G. Hopkins, Deputy Gen. Counsel, and Richard B. Dahlgren, Asst. Gen. Counsel, Dept, of Human Servs., Office of Gen. Counsel, for appellant.

      Mooney & Boone, for appellee Extendi-Care, Inc.

      Branch, Thompson & Philhours, A Professional Association, by: Robert F. Thompson, for appellee Greene Acres Nursing Homes, Inc.
   Robert H. Dudley, Justice.

This is an appeal from a circuit court judgment reversing the decision of an administrative agency, the Long Term Care Facilities Advisory Board. We hold the appeal is moot as to Greene Acres Nursing Homes, Inc. and reverse the circuit court’s judgment as to Extendi-Care, Inc.

A brief history of the legislation involved is helpful in understanding the issues. Act 593 of 1987 (Regular Session) became effective on April 4, 1987. Prior to that date, it was necessary to obtain a certificate of need from the State Health Planning and Development Agency before a nursing home could be constructed, expanded, or altered. With the enactment of Act 593, it was no longer necessary for a nursing home to obtain a permit of approval for an associated capital expenditure of less than five hundred thousand dollars ($500,000). On June 19, 1987, Act 40 of 1987 (1st Extraordinary Session) went into effect. It placed a moratorium on the licensing of additional nursing home beds. There are certain exceptions to the moratorium, none of which are pertinent to this appeal.

Appellees, Greene Acres Nursing Homes, Inc. and ExtendiCare, Inc., submitted applications for licenses to add beds to their nursing home facilities after Act 593 (Regular Session) became effective but before the effective date of the Act 40 (1 st Extraordinary Session) moratorium. The amounts of capital expenditure associated with their proposed expansions brought them within the $500,000 or less exception of Act 593. However, appellees were notified by letters dated July 20, 1987, that their applications would be reviewed in conformance with the law in effect at the time of the review, that is, Act 40 of 1987.

Appellees and over seventy other similarly situated applicants requested a hearing before appellant, the Long Term Care Facilities Advisory Board. One hearing for all of the applicants was held on September 17,1987. By letter of October 19,1987, the Chairman notified the applicants that all applications would be reviewed individually applying the law in existence at the time of the review, that is, Act 40. The letter also specifically designated that it was final agency action for purposes of judicial review.

Appellees petitioned for judicial review in circuit court. The case was heard on January 4,1988, and the circuit court reversed the agency action holding that Act 40 did not apply to applications filed during the pendency of Act 593. That holding was in error.

Before discussing the reason that holding was in error, we dispense with the mootness issue raised by appellee Greene Acres Nursing Homes, Inc. It argues that this appeal is moot because the Office of Long Term Care inspected and approved the additional beds as evidenced by a letter dated May 13, 1988. Appellants do not deny that the additional beds have now been licensed. Rather, they argue that they “were obliged to conform their conduct to the dictates of the trial court’s order.” The argument is misplaced, however, because the trial court stayed that part of its order requiring the State to inspect and license the facilities in its Limited Supersedeas Order filed March 29,1988. Since appellants went ahead and licensed the additional beds, even in the absence of a court order requiring them to do so, this appeal is moot with respect to appellee Greene Acres Nursing Homes, Inc., and that part of the appeal is dismissed. Therefore, the remainder of this opinion is addressed to the issues only as they affect appellee Extendi-Care, Inc.

The administrative decision which was under review by the trial court clearly involved a question of law, not fact. Agency interpretations of statutes are afforded great deference, even though they are not binding. Arkansas Pub. Serv. Comm’n v. Allied Tel. Co., 274 Ark. 478, 625 S.W.2d 515 (1981). The language of the Acts in question is very clear. Section 6 of Act 593 dispensed with the requirement of a permit of approval for nursing homes having an associated capital expenditure of less than $500,000; however, it did not abolish the license application process. Section 6 of Act 40, on the other hand, imposes a moratorium on all requests for additional beds unless the applicant falls within certain specified exceptions not asserted in this appeal:

(A) From the effective date hereof [June 19, 1987] until June 1, 1989, there shall be no new hospitals, home health agencies, nor nursing homes, . . . constructed in this State nor shall there be any additional beds licensed for existing hospitals, nursing homes, or intermediate care facilities in this State. The Commission may remove any or all of the moratoria anytime after June 1, 1988 ... .

The emergency clause of Act 40 provides that it “shall become effective from and after its passage and approval.”

Since appellee submitted its application during the effective dates of Act 593, it qualified for the exception to the permit of approval requirement. However, even if its application for a license was complete under Act 593 for purposes of processing and review, a license for that application still had not been granted prior to the effective date of Act 40. The clear language of Act 40 prohibits the issuance of licenses during the effective dates of the moratorium. The fact that Act 40 results in the denial of licenses with respect to applications submitted prior to its enactment does not mean that it is being applied retroactively. Rather, Act 40 is being applied from and after its effective date of June 19, 1987, to impose the legislatively mandated moratorium.

We also reject appellee’s argument that Act 40 applies only to the review and issuance of permits of approval and that it is not applicable to the licensure of projects. In doing so, we again need only turn to the clear language of the Act, “nor shall there be any additional beds licensed for . . . nursing homes ... in this State.”

We dismiss in part and reverse and remand in part to the trial court for proceedings in accordance with this opinion.


author: Steele Hays, Justice.

text:
    James Timothy CARMICHAEL v. STATE of Arkansas
    CR 88-70
    757 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      William C. McArthur, for appellant.

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

Appellant James Carmichael was convicted of capital felony murder and attempted rape. He was sentenced to life without parole and has appealed on three assignments of error: (I) the trial court erred in limiting appellant’s cross-examination, (II) in allowing the state to argue a fact not supported by the evidence and (III) in refusing to direct a verdict for insufficient evidence. We sustain the trial court.

Evidence offered by the state established that around 1:30 a.m. on April 19, 1987, Mrs. Elizabeth Marsh left a lounge in North Little Rock. As she drove home a car pulled up beside her at a traffic light and a man asked if she wanted to “smoke a bowl.” She said no, she was going home. The man followed her into an alley behind her house and as she walked toward her house he grabbed her, pulled her to the ground and began pulling her pants and underpants down.

Mrs. Marsh’s husband came to investigate and fought the assailant as he tried to leave in his car. Mrs. Marsh joined in the struggle and scratched the man several times as they tried to pull him from the car. The man managed to drive away after shooting Mr. Marsh in the abdomen, the bullet proceeding upward through his lung and heart. Mrs. Marsh thought additional shots were fired. She described the assailant to police as dark-skinned, possibly a Mexican-American, wearing dark pants and a light tee-shirt. He had a mustache and was between twenty-eight and thirty years of age. She described the car as a red and white Oldsmobile and she thought the car had struck a post at the end of the alley.

On the following day appellant came to police headquarters accompanied by his attorney and stated that he might have information relevant to a homicide he had read about in the morning paper. He gave an account of his actions of the previous day and delivered a .25 calibre pistol to the police. Mrs. Marsh tentatively identified appellant from a photo spread and at the trial she positively identified him as the man who attacked her.

Appellant testified that he began drinking during the afternoon of April 18 as he drove around. Not wanting to risk a DUI, he picked up a hitchhiker near Prothro Junction and asked the hitchhiker to drive. The two rode around drinking until appellant passed out. When he woke up he was in a ditch on Washington Avenue. He began walking and in about three blocks he came upon his car. The keys were in it as well as a pistol from which three shots had been fired. Appellant was twenty-five years of age and, though clean shaven when he appeared at police headquarters, his mustache had been shaved off that morning. Appellant had a number of scratches on his neck, back and arms. The jury returned a verdict of guilty on the charges of capital felony murder and attempted rape.

I

Appellant complains that he was unduly restricted in his cross-examination, citing several instances. When defense counsel asked Officer Peckat about the significance of fingernail scrapings an objection was sustained. However, appellant concedes he was able to elicit the proof he wanted by rephrasing the question, thus the argument is moot.

While questioning Officer Peckat on cross-examination defense counsel asked what Mrs. Marsh had said about the shirt worn by the assailant, bringing an objection from the state:

Mr. Douglass: Your Honor, I am going to object at this time.
The Court: Sustained.
Mr. McArthur: Your Honor, this is part of their investigation, material they gained.
The Court: It’s hearsay, though, Mr. McArthur.
Mr. McArthur: All right.

Appellant cites nothing to sustain his argument and in the context presented we find no error. A.R.E. Rule 801(c). A.R.E. Rule 803(8)(i).

At a later point in cross-examination Officer Peckat was asked if he took a recorded statement when appellant came to police headquarters. He answered in the affirmative, drawing an objection that the statement would be self-serving. The objection was sustained.

Appellant has offered neither authority nor argument as to how the trial court erred and has not attempted to show any prejudice as a result of the ruling. Appellant testified in his own defense that the statement he gave to the police was complete and just as he was now testifying. Thus appellant has not shown that any evidence was excluded from the jury because of the ruling. Hall v. State, 286 Ark. 52, 689 S.W.2d 524 (1985).

For the same reason we find no error in the contention that defense counsel was precluded from asking Officer Peckat whether appellant had informed him that his car had minor damage following the episode with the hitchhiker. The appellant’s testimony included this proof. Hall v. State, supra.

We fully agree with appellant that the use of cross-examination is an important tool in bringing the facts before the jury and wide latitude should be afforded by the trial court. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985); Trammel v. State, 193 Ark. 21, 97 S.W.2d 902 (1936). Even so, the trial court must determine when the matter has been sufficiently developed and the outer limits have been reached and unless the trial court’s discretion is abused we will not reverse. McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980).

The remaining point concerns a civil suit. On cross-examination Mrs. Marsh was asked if she was suing appellant for damages. The state objected on grounds of relevancy. The trial court overruled the objection and permitted proof that Mrs. Marsh had filed a civil suit against appellant, but sustained an objection to the amount of damages being claimed. Appellant insists he was entitled to show not only that Mrs. Marsh had filed a civil suit, but the amount claimed as damages as well.

We need not decide whether the trial court’s discretion was wrongly exercised in this instance, because there was no proffer of the amount, or any details of the civil suit. For all we know the amount may have been of no great consequence and we will not remand for a second trial just to find that out. We have held that a proffer is necessary unless the excluded matter is apparent from the context within which the questions are asked, or the information is unavailable to the cross-examiner. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983); Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). Obviously this information was available to the appellant and we can see no reason why we should dispense with a proffer under the circumstances.

II

The closing arguments were not recorded, however, the record indicates that counsel for the state argued, “Mr. McArthur says, ‘Well, they didn’t match any of the fingerprints that were found on the car.’ ” Appellant contends that the remark assumed facts which were not in the record. Since the arguments are not available we are left simply with the quoted passage, which is nothing more than a reiteration of what the prosecutor understood Mr. McArthur to have said. The trial judge neither sustained nor denied the objection, he merely observed that this was closing argument, that the jury would remember the evidence and should disregard any remarks not supported by the evidence. We have held frequently that such admonitions cure a variety of disputes arising from closing arguments. Williams v. State, 294 Ark. 345, 351, 742 S.W.2d 932, 935-36 (1988); Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983); Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981); Hoover v. State, 262 Ark. 856, 867-68, 562 S.W.2d 55, 61-2 (1978). Certainly that is so in this case.

Ill

Appellant’s final point is that the evidence was insufficient to sustain a verdict of guilt on charges of capital felony murder and attempted rape. We disagree. Obviously, the jury chose to disbelieve appellant’s decidedly implausible account of how his car and gun were involved in the crimes while he himself was not. We need look no further than the testimony of Mrs. Marsh that appellant was the assailant, as that alone sustains the convictions. Treadway v. State, 287 Ark. 441, 700 S.W.2d 364 (1985); Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985).

The answer need not rest there, however, because there are circumstances which reinforce the jury’s verdict. Appellant’s neck, back and arms reflected numerous scratches consistent with Mrs. Marsh’s testimony that she had scratched her assailant in the struggle. Too, her description of the assailant and his clothing generally fit the appellant. Finally, the fact that appellant admittedly changed his appearance by shaving off his mustache immediately after the event is a corroborating circumstance.

IV

In compliance with our Rule 11(f), the Attorney General points out that when sentence was initially imposed, the appellant was sentenced to life without parole for capital murder and to thirty years for attempted rape, that under Ark. Code Ann. § 5-1-110(a)(1)(b) (1987) a defendant may be tried for multiple offenses but he may not be convicted of two offenses if the second offense is included within the first. Since rape and attempted rape are lesser included offenses of capital murder, it was error for the appellant to be convicted and sentenced for attempted rape. The Attorney General is correct. McClendon v. State, 295 Ark. 203, 748 S.W.2d 641 (1988); Walton v. State, 279 Ark. 193, 250 S.W.2d 231 (1983); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

However, though no objection was raised on this issue, the trial court endeavored to correct the mistake when the written judgment and order of commitment were made and entered a few days after sentencing. As the state points out, while the court’s oral pronouncement of sentence rather than the entry of the judgment prevails, Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986); Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979), in view of the trial court’s purported correction of the oral sentence it seems unlikely that the appellant has been prejudiced. If he thinks otherwise, A.R.Cr.P. Rule 37 remains available. See Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982).

AFFIRMED.

Holt, C.J., not participating.


text:
    Paul MILLER v. Don LANGSTON, Circuit Judge
    CR 88-52
    757 S.W.2d 562
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      James R. Marchewski, by: R. Paul Hughes III, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Steele Hays, Justice.

In this petition for a writ of prohibition, Paul Miller contends he has been denied a speedy trial on charges of possession of a controlled substance with intent to deliver, possession of drug paraphernalia and being an habitual .offender. (Sebastian Circuit Court Case No. 87-239). He has petitioned this court to prohibit his trial in the Sebastian Circuit Court. The trial was originally scheduled for April 19,1988, but was suspended when we issued a temporary stay for briefing pursuant to Ark. Sup. Ct. R. 16. We now dissolve the temporary stay and deny the requested writ of prohibition.

Miller was arrested on these charges on April 3, 1987, and released on bond on April 13, 1987. On April 21, 1987, Miller’s suspended sentence for unrelated crimes was revoked and he was sentenced to five years in the Department of Correction. Evidently Miller was also convicted on still different crimes on June 22,1987, and sentenced to twenty-two years in the Department of Correction. On April 13,1988, Miller filed a motion to dismiss the charges in Case No. 87-239 based on the speedy trial argument, which the trial court denied.

Miller contends that it is undisputed that he was arrested on April 3,1987, and has been incarcerated in prison since April 21, 1987. He maintains that since more than twelve months have elapsed between his arrest and the date his trial was scheduled to occur, April 19, 1988, he is entitled to have these charges dismissed pursuant to A.R.Cr.P. Rule 28.1(b):

Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Appellant’s argument interprets Rule 28.2 as providing that the time for trial shall commence with respect to him from the date of his arrest, i.e. April 3,1987. Thus, the two provisions, read together, lead to appellant’s contention that the state was obliged to try him within twelve months of his arrest. We disagree. While a literal reading of those provisions of the rule would seem to support appellant’s premise, it is clear that no such result was intended. If appellant’s theory were sustained, it could lead to problems in the scheduling of trials never contemplated by the drafters of the rule. For example, if a defendant, free on bail awaiting trial is incarcerated in prison on different charges, instead of having several months to schedule a trial, the trial court could suddenly be confronted with only a few weeks, or even days, in which to bring the accused to trial.

It is plain from the provisions of Rule 28.1 — 28.3, that the drafters recognized that an accused who is incarcerated on the pending charges, or on different charges, is at a disadvantage simply by virtue of his confinement. Hence, for such defendants shorter periods for trial are provided by the speedy trial rule. Thus, where the defendant is at liberty when arrested on other charges, as occurred in this case, the time for trial should commence running when the accused is deprived of his liberty.

In the recent case of Cooper v. Langston, Judge, (CR88-51, slip opinion September 19,1988), we considered the application of Rule 28.1(b) to an accused who is at liberty awaiting trial on one charge and who is then incarcerated in prison for other crimes. We held that the time for trial commenced running when Cooper was “incarcerated in prison in this state pursuant to conviction of another offense,” and not from the date of his arrest.

Here, Miller was not incarcerated in prison until April 21, 1987, and his trial, originally scheduled for April 19,1988, came within the time provided under Rule 28.1(b).

Writ denied.


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

text:
    ALLSTATE INSURANCE COMPANY v. Ken BOURLAND, Individually and as Administrator of the Estate of Jodi Bourland
    88-26
    758 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988
    [Rehearing denied November 7, 1988.]

      Friday, Eldredge & Clark, by: William H. Sutton and Kevin A. Crass, for appellant.

      Rees Law Firm, by: David Rees, for appellees.

       Purtle and Hays, JJ., would grant rehearing.

   David Newbern, Justice.

This is a unique default judgment case. The appellee, Ken Bourland, sued the appellant, Allstate Insurance Company, alleging entitlement to uninsured motorist coverage with respect to an accident in which his daughter, Jodi Bourland, was killed. He sued as administrator of the daughter’s estate and individually for damages to a car owned by him. Allstate denied coverage, claiming it had notified Mr. Bourland of cancellation. As Allstate is a nonresident corporation, it had 30 days to answer the complaint. Ark. R. Civ. P. 12(a). The complaint was filed April 22, 1987. On May 21, 1987, an answer and removal petition were filed in a federal court. Nothing further was filed in the circuit court until June 17, 1987, when copies of the removal documents were filed. Mr. Bourland moved for default judgment in the circuit court on June 19, 1987. The federal court remanded the case to the circuit court on June 24, 1987, after finding that Allstate had failed to file the removal documents with the circuit court “promptly” as required by 28 U.S.C.A. § 1446(e) to effect removal. Thereafter, the circuit court entered a default judgment against Allstate. The principal question is whether the circuit court should have refused default judgment because an answer had been filed in the federal court within the time prescribed by Rule 12(a) for answering in the circuit court. Mr. Bourland cross-appeals from the circuit court’s ruling that he is not entitled to an attorney fee and penalty pursuant to Ark. Code Ann. § 23-79-208 (1987). We hold the court correctly entered the default judgment and that it was not error to refuse the fee and penalty. We affirm on appeal and on cross-appeal.

At a hearing on the default judgment motion, the attorney representing Allstate testified that copies of the removal documents were prepared for filing with the circuit clerk and that she directed her secretary to place them in the mail to the circuit clerk. An affidavit of the secretary to the effect that she did so on May 21, 1987, was presented. The attorney testified that file-marked copies of the pleadings were returned to her by mail from the federal court, but there was no testimony that any such copies were returned to her from the circuit clerk’s office. Counsel for Mr. Bourland presented a copy of a letter from Allstate’s attorney to a lawyer representing a plaintiff in a companion case, which was removed to the federal court, arising out of the same accident. The letter showed copies of the removal petition and related documents were being sent to the circuit clerk with a copy of the letter to counsel. By a similar letter, dated May 21, 1987, Allstate’s lawyer gave notice to Mr. Bourland’s lawyer of the attempted removal. However, it contained no indication that a copy of the letter and copies of the documents it enclosed were mailed to the circuit clerk. By comparison of these letters, Mr. Bourland sought to show that the mailing to the circuit clerk had not taken place.

An affidavit from the circuit clerk was presented, in which she stated that she received no answer in the case before June 16, 1987, and received only the “documentation . . .to be filed. . . on June 17,1987.” In the order declaring Allstate in default, the circuit judge found as a matter of fact that no notice of removal was filed with the circuit clerk until June 17, 1987.

Allstate contends the circuit court erred in failing to consider the answer filed in the federal court sufficient to satisfy the requirement of Ark. R. Civ. P. 12(a) that an answer be filed within 30 days. Alternatively, Allstate contends the default should have been set aside pursuant to Ark. R. Civ. P. 55(c) due to “excusable neglect, unavoidable casualty, or other just cause.”

1. Default

Allstate is unable to cite, and we have been unable to find, any case in which there was a remand from the federal to the state court where it was held that a state court must treat a pleading filed in the federal court as having been filed in the state court for any purpose. Mr. Bourland has been unable to cite any authority, and we know of none, holding that a default judgment must be entered where a case has been remanded from the federal court to the state court after, and by reason of, a failure to comply with the requirement of 28 U.S.C.A. § 1446(e) that removal papers be promptly filed in the state court in order to effect the removal.

Prior to a change in the federal law which occurred in 1949, an order of the federal court to which removal was sought was required to complete removal. A party seeking to remove was required to meet state court filing requirements until the removal was approved by the federal court or run the risk of being in default in the state proceedings if removal were refused by the federal court. The leading case discussing this change in the law is Hopson v. North American Ins. Co., 71 Idaho 461, 233 P.2d 799 (1951). See also Allen v. Hatchett, 91 Ga. App. 571, 86 S.E.2d 662 (1955). The enactment of § 1446(e) made it clear that removal was effected by the removing party’s compliance with the statute, and no federal court order was required to effect removal. The party seeking to remove has it in his or her power to deprive the state court of jurisdiction merely by compliance with the provisions of § 1446(e). While there is no longer a need to comply with state court filing deadlines to avoid default if the case is removed to the federal court, it is clear that removal is not effected unless the removal documents are filed promptly with the state court.

In each of the cases cited by Allstate on this point, removal was effected by a proper filing in the federal and state court, but the case was remanded because the federal court found that it lacked jurisdiction. They hold that the time period in which responsive pleadings are due in the state court is tolled from the time the removal petition is filed until the case is remanded to the state court. The Allen and Hopson cases, cited above, are typical of such holdings. Another case cited by Allstate is a reported trial court decision, Edward Hansen, Inc. v. Kearny Post Office Associates, 166 N.J. Super. 161, 399 A.2d 319 (1979), in which the question was whether, after remand of a properly removed case, the state court could permit the pleadings previously filed in the federal court to stand in the subsequent state court proceedings. Citing Ayres v. Wiswall, 112 U.S. 187 (1884), the judge noted that, “[f] olio wing a remand the effect to be given to pleadings filed in the federal court is a matter of state policy and is not subject to federal determination.” 166 N.J. Super, at 165, 99 A.2d at 321. He then held he could accept the federal court pleadings as it would not prejudice the parties and would save duplication of effort.

As noted above, the case before us is not like the New Jersey case or the others cited because here no removal had been effected. We therefore cannot say that the filing deadline in the circuit court was tolled. We agree with the New Jersey judge that the question presented is one of state policy. We are certainly not required by federal law to give the answer filed in federal court the effect of meeting the filing deadline required by our rule, so we look to our own policy.

In the Hansen case, the New Jersey judge cited our decision in Trinity Universal Ins. Co. v. Robinson, 227 Ark. 482, 299 S.W.2d 833 (1957), where we dealt with a case which had been removed and then remanded and the parties had agreed that an answer filed in the federal court would be treated as if it had been filed in the state court. Our holding was that other answers, as to which no such agreement had been reached, would not be so treated. Apparently no filing deadline question was involved. While that decision may be somewhat instructive of our policy, it does not solve the problem with which we are faced here.

This court has always held that default judgments are not the law’s favorites. See, e.g., Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980). Perhaps our most recent important default judgment decision is Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), in which we held failure to file an answer within ten days of a ruling denying motions for dismissal and summary judgment did not place a party in default despite the requirement of Ark. R. Civ. P. 12(a). We said, citing Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984), that there had been no failure to appear in the action, and we would not place form over substance. The case before us is similar to those in the sense that it was shown that Mr. Bourland’s counsel had knowledge of the answer filed in the federal court. There, however, the similarity ends. Allstate filed nothing in the state court within the allotted 30 days. Although it had appeared and defended in the federal court, it had not done so in the state court.

We have been strict in our interpretation of Rule 55 where there has been a failure to make any sort of timely filing or appearance in the trial court. In Webb v. Lambert, 295 Ark. 438, 748 S.W.2d 658 (1988), we held that a default judgment was required where the answer was filed after the time limit had run, even though the plaintiff had received a copy of the answer before the time ran out. We noted that the rule says default judgment “shall” be entered in that instance. See also DeClerck v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). We see no difference between that strict policy and the policy which should be applied in the case of failure to file removal documents within the time allowed for answer or otherwise “promptly.” The trial court, like the plaintiff, is entitled to be informed of the status of litigation before it, or not before it as the case may be. It is not asking too much to require litigants or counsel to see to it that if the state court is to be deprived of jurisdiction the very instrument by which that is to be accomplished is filed there.

2. Excusable neglect, unavoidable casualty, or other just cause

The circuit court denied Allstate’s motion to set the default judgment aside for excusable neglect or unavoidable casualty as permitted by Rule 55(c). Allstate cites Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1973), for the proposition that the motion should have been granted because there was reason for counsel to believe that there had been compliance with the filing requirement. In that case, an answer was filed, but then a second, amended, complaint was filed and served on the defendant’s counsel. It was shown that the original answer was not stricken, the plaintiff waited some three months to take the default judgment, and defendant’s counsel had some reason to believe that the second service was of a copy of the complaint which had already been answered. These facts might have constituted excusable neglect, but we did not say so. We held rather that there was “substantial compliance” with the filing requirement and that the delay resulted in waiver of the filing requirement. We cannot say either of those things here.

Also cited is Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W.2d 150 (1978). There the defendant’s uncontroverted affidavit stated he had been assured by the plaintiff that the case against him would be dismissed before the time for answer ran. Upon learning that the case was not to be dismissed, the defendant drafted a handwritten answer which he attempted to file the day before the time ran out. His attempted filing was rejected due to a local court rule requiring that pleadings be typewritten. He filed a typewritten answer one day late. We held there was “excusable neglect or other just cause.” We find this case distinguishable, because there had been timely personal contact with the court clerk in an attempt to file the answer. In DeClerck v. Tribble, supra, which is more like the case before us now, we held that it was not excusable neglect for counsel to place the blame on a secretary who allegedly covered with other papers an answer which was ready to be filed and waiting on the lawyer’s desk. As in this case, nothing was filed with the trial court within the prescribed time limit. While there is nothing wrong with using the mail to send a pleading to the court, our rules do not permit filing by placing a pleading in the mail.

We cannot say the trial court erred in refusing to set aside the default judgment.

3. Attorney fee and penalty

A plaintiff must recover the exact amount claimed against an insurance company to be able to take advantage of Ark. Code Ann. § 23-79-208 (1987) which allows recovery of an attorney fee and penalty. Cato v. Arkansas Municipal League Municipal Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985); Farm Bureau Ins. Co. v. Paladino, 264 Ark. 311, 571 S.W.2d 86 (1978). In his complaint, Mr. Bourland alleged Allstate was liable under its policy number 015-446-992 with expiration date of May 19, 1987, for $25,000 for wrongful death, $4,190.35 medical bills, and $6,500 for the loss of the reasonable value of the automobile. The total thus sought, absent the attorney fee, interest, and penalty, was $35,690.35. The court awarded $34,953.85.

Mr. Bourland argues that after he learned of the insurance policy’s provisions, he sent a demand letter to Allstate seeking precisely the amount which was ultimately awarded by the court, but that he refused to amend his complaint to state that amount as he feared it might somehow alter his prevailing position on the issue of default.

We agree with Allstate’s argument; Mr. Bourland cannot have it both ways. As he sought from the court more damages than he was awarded, he is not entitled to the penalty.

Affirmed on appeal and affirmed on cross-appeal.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I disagree with the majority on the appeal and cross-appeal. If we affirm on appeal we should reverse on cross-appeal because the amount awarded was exactly the same amount the appellee offered to take prior to trial.

It is undisputed that the appellant filed a timely removal action and gave actual notice to the appellee’s attorney. The appellant furnished adequate proof that it promptly mailed the removal papers to the state court. Not one person has been misled by the failure to file the removal papers in the state court. In truth, the facts support the theory that the state court failed to properly file the removal papers as strongly as they do the theory that the appellant’s lawyer failed to mail them. A logical conclusion is that the postal service lost them.

A common sense approach to this problem is to allow the time the case is pending in federal court to suspend the running of time within which to file in the state court. Upon remand to the state court time should commence where it left off. If the case had not been remanded, the answer would never have been required to be filed in the state court. Obviously the federal court was looking for an excuse to remand when it discovered that the removal papers had not been filed in the state court. Placing form over substance does not further justice in this case.

In spite of the failure by the appellant to see that the removal papers were placed in the correct file in the state court, we could still grant relief and do justice by applying the “other just cause” provision of ARCP, Rule 55(c). That’s exactly what we did in Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), where we reaffirmed our holding in Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984), allowing a late answer to be filed. We stated: “To hold on the facts before us that the appellant failed to appear or otherwise defend appellee’s action would defy common sense, and, at a minimum, place form over substance.” We reversed and remanded with directions to set aside the default judgment.

Our procedures allow pleadings to be mailed to the courts, and allows extra time when the mail service is utilized. See ARCP Rule 6(d). A statement by an attorney that he has correctly addressed and mailed a pleading with proper postage is evidence that he has complied with this rule. Attorneys are not insurers or guarantors of delivery of the United States mail. Sometimes we strain at a gnat and swallow a camel. The court just did.

I would have the default judgment vacated and order the case tried on its merits.

Steele Hays, Justice,

dissenting. In this case, a copy of the answer filed with the District Court was sent to the opposing counsel within the time allowed by Rule 12. The copy sent to the attorney met the requirements for proper service under ARCP 5. There is absolutely no dispute that this pleading was received, and that opposing counsel had notice of the filing as well as the contents of the pleading. For this reason I cannot agree with the conclusion reached by the majority.

While the language of Rule 12 states that the answer is to be filed rather than served, that is not dispositive of the issue. The Reporter’s Notes to Rule 12 state, with regard to that point:

5. Rule 12 substitutes the word “file” for serve and requires that the responsive pleading be filed within the time prescribed by this rule as opposed to serving the pleadings as is the case under FRCP 12. By using this terminology, it is believed that arguments can be avoided as to when a pleading was served. (My emphasis).

The language in the Notes, referring to the use of filing over service as a choice of “terminology,” plainly suggests that the filing of the answer is not a requirement, but rather, merely the determinative factor when the issue of timeliness of service arises. Furthermore, there is nothing in this comment that suggests that an answer that is served in a timely fashion will not fulfill the requirements of the rule if the filing is out of time.

Rule 12 was altered from the form used in the Federal Rules, not for an innate preference for filing as opposed to service, but for the purpose of avoiding disputes when the issue of timeliness over service arose. When there is no dispute as to the date of service of the answer, there is no need to resort to the date of filing to make a determination as to the timeliness of the pleading. When actual notice by way of service is given to a party and there is absolutely no dispute as to the timeliness of that service, common sense directs that the filing provision of Rule 12 should prevail.

We have repeatedly held that default judgments are not favored by the courts and should be avoided when possible. Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987); Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984); A.O. Smith Harvester Products, Inc. v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976); Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W.2d 150 (1978). We have further found that substantial compliance by a defendant is sufficient to avoid the harshness of a default judgment in several instances. Winters v. Lewis, supra; Perry v. Bale Chevrolet, supra; Cummings v. Lord’s Art Galleries, 227 Ark. 972, 302 S.W.2d 792 (1957); Easley v. Inglis, 233 Ark. 589, 346 S.W.2d 206 (1961). While the language of “substantial compliance” was not used specifically, that was essentially our holding in two more recent cases, Tapp v. Fowler, supra and Cammack v. Chalmers, supra. Substantial compliance has been our way of defining a situation where we found that the rules had been complied with sufficiently to satisfy the rule and its purpose, and where a different holding would lead to obvious injustice.

I have no difficulty in concluding that the timely service of the answer in this case was substantial compliance with Rule 12. Given the circumstances of this case and the comments explaining Rule 12, it is clear that the rule and its purpose have been satisfied. As we stated in Tapp v. Fowler, supra, in reversing a default judgment that had been granted on technically correct, but unsupportable grounds, “To hold [otherwise] would defy common sense, and, at a minimum, place form over substance.”


author: Tom Glaze, Justice.

text:
    James SEE v. STATE of Arkansas
    CR 88-77
    757 S.W.2d 947
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Kenneth Breckenridge, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellant appeals his conviction of capital murder for the double homicide of his wife and stepdaughter. Appellant was sentenced to life imprisonment without parole by the jury. For reversal, he alleges that the trial court erred in the following three ways: (1) in not appointing an independent psychiatrist for psychiatric evaluation; (2) in admitting into evidence certain photographs of the victims; (3) in rejecting appellant’s jury instruction on involuntary intoxication.

At trial, the state’s proof clearly showed that the appellant shot and killed the two victims. Appellant’s primary defense focused on his chronic alcoholism and the undisputed facts that he had been drinking on the day the shootings occurred and that, after his arrest that day, he was given a breathalyzer test which registered .15. Accordingly, he filed a pretrial motion for a psychiatric examination, and the trial court granted the motion and committed him to the Arkansas State Hospital, where he was evaluated by Dr. Kaczenski. Kaczenski filed an extensive report with the court and concluded that the appellant suffered from a chronic alcohol dependency, but he did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time the offense was committed. Kaczenski further said that it was very likely that the appellant was voluntarily intoxicated at the time of the commission of the crime. Appellant contended at trial, and now on appeal, that Kaczenski’s evaluation was inadequate and that he failed to explore whether the appellant was involuntarily intoxicated when the offense occurred even though Kaczenski testified, “[I]t is possible he was involuntarily intoxicated.” In sum, appellant claims he was entitled to an independent psychiatric evaluation to address this point.

In Dunn v. State, we held the defendant’s right to an examination under Ake v. Oklahoma, 470 U.S. 68 (1985), was adequately protected by the examination at the state hospital. Dunn, 291 Ark. 131, 722 S.W.2d 595 (1987); see also Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Also in White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), we denied White’s request for a private psychiatrist to assist on his defense of voluntary intoxication and stated the mental health personnel, in their diagnoses, had taken into account White’s alcohol abuse problem and his intoxication at the time the crime was committed. As we held in Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979), and reinforced in White, the state is not required to furnish expenses for a defendant to shop from doctor to doctor until he finds one who considers him mentally incompetent. The appellant’s situation at hand is controlled by the principles noted in these earlier but recent cases.

While appellant argues that Dr. Kaczenski’s evaluation was deficient in several ways, including having seen the appellant only on two occasions, the record reflects that the appellant was observed and treated during a thirty-day period. As the appellant concedes in his argument, Kaczenski’s report was extensive, and we further note it met the requirements as prescribed under Ark. Code Ann. § 5-2-305 (1987). Kaczenski thoroughly considered appellant’s alcohol and medication abuse problems before giving his opinion that appellant very likely was voluntarily intoxicated when the offense was committed.

In his second argument, appellant claims seven photographs of the victims admitted into evidence were more prejudicial than probative, especially since he did not contest the state’s case as to the cause of death of the victims. He further supports his argument as to the inflammatory nature of the photographs by noting one juror was excused from duty because she became ill from viewing them. However, that juror, we note, had told the prosecutor during voir dire of the jury that the presentation of evidence regarding the victims’ wounds would greatly bother her. As to his first argument, this court has held that a defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. See Parker v. State, 292 Ark. 421, 731 S.W.2d 756.

Here, the trial judge examined each photograph to which the appellant objected, and made a determination on whether it depicted something not shown by the other photos. The court admitted three photographs which reflected different views of one of the victims as she was found at the crime scene. Four additional autopsy pictures were taken depicting the victims’ entry and exit wounds and bruises. The state’s expert witnesses used the photographs when giving their testimony concerning the victims’ cause of death. From our review of these photographs and the testimony elicited that described their use at trial, we are unable to say the lower court abused its discretion when admitting the photographs into evidence. See Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987).

Finally, appellant urges the trial court should have given AMCI4005, the jury instruction on involuntary intoxication. We disagree. Pursuant to Ark. Code Ann. § 5-2-207 (a) (1987), intoxication that is not self-induced is an affirmative defense to a prosecution if at the time a person engages in conduct charged to constitute the offense he lacks capacity to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct. Section 5-2-207 (b)(2) defines “self-induced intoxication” as intoxication caused by a substance which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know. Under these provisions, the legal issue we must decide narrows to whether the appellant, an alcoholic, has control over his drinking as to make it self-induce'd.

In Powell v. Texas, 392 U.S. 514(1968), the Supreme Court touched on a similar argument to the one the appellant offers here. In Powell the defendant was arrested, charged and found guilty of public intoxication. Powell argued to the Supreme Court that, because he was afflicted with the disease of chronic alcoholism, his appearance in public while drunk was not of his own volition and to punish him criminally for such conduct violated the eighth and fourteenth amendments to the United States Constitution. The Court rejected Powell’s argument stating the following:

We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts and thus cannot be deterred at all from public intoxication.

Our review of the cases that have considered the involuntary intoxication defense, that the appellant argues here, generally reflects the same or similar rationale as set out in Powell. In general terms, most jurisdictions have held that an irresistible compulsion to consume intoxicants caused by a-physiological or psychological disability does not render the ensuing intoxication involuntary. See Annot., Involuntary Intoxication as Defense-, 13 A.L.R. 3d 195 § 12(a) (1976); see, e.g., Evans v. State, 645 P.2d 155 (Alaska 1982) (all intoxication is to be regarded as voluntary unless it is unknowingly or externally compelled); People v. Morrow, 268 Cal.App.2d 939, 74 Cal.Rptr. 551 (1969) (when a person takes his first drink by choice and afterwards drinks successively and finally gets drunk, that is voluntary intoxication, even though he may be an alcoholic); State v. Palacio, 221 Kan. 394, 559 P.2d 804 (1977) (any person, including a chronic alcoholic, who is sane and rational when sober, and who becomes intoxicated by consuming alcoholic beverages is voluntarily intoxicated); State v. Johnson, 327 N.W.2d 580 (Minn. 1982) (self-induced intoxication by chronic alcoholic constitutes voluntary, rather than involuntary, intoxication); Shurbet v. State, 652 S.W.2d 425 (Tex. Ct. App. 1982) (alcoholism may not be the basis for the defense of involuntary intoxication).

Being presented with this issue for the first time, we have no hesitancy in holding that drinking to the point of intoxication by an alcoholic is self-induced intoxication and therefore not covered by the involuntary intoxication defense. To hold otherwise would serve only to immunize a certain category of people from prosecution for their criminal conduct because of their addiction to alcohol.

As mandated by Ark. Sup. Ct. R. 11(f), we have reviewed the record for errors prejudicial to the appellant and in finding none, we affirm.

       In the Omnibus DWI Act, Ark. Code Ann. § 5-65-103 (1987), establishes 0.10% as the legal intoxication rate.


author: Per Curiam.

text:
    James Elgin WHITE v. STATE of Arkansas
    RC 88-37
    758 S.W.2d 705
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Wilson & Associates, P.A., by: Ronald C. Wilson, for appellant.
    No objection.
   Per Curiam.

It has been our practice when a record is presented, which has not been prepared by a certified court reporter, to not allow review unless two things are done. First, all parties agree the record is accurate. Second, the mistake will not be repeated.

The first condition has been satisfied. If the trial judge will write our clerk noting that in the future his regular certified court reporter will record all such juvenile cases in the future, we will accept the record.