author: Per Curiam.

text:
    Jack Gordon GREENE v. STATE of Arkansas
    CR 96-362
    941 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      William M. Pearson, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jack Gordon Greene was convicted of capital murder and sentenced to death. He moved to dismiss the appeal. We denied the motion because we deemed it equivocal. Greene v. State, 326 Ark. 179, 929 S.W.2d 147 (1996). Mr. Greene filed a second motion that we deemed unequivocal. Therefore, in an opinion issued on December 9, 1996, we remanded the case to the Trial Court to determine whether Mr. Greene was competent to waive his appeal. Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996).

Although the latter order did not require the Trial Court to order a psychological examination to determine Mr. Greene’s competency to make the choice between life and death, the Trial Court did so on December 16, 1996. The order provided, in relevant part, as follows:

In order to insure that the Defendant has the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence, the Court does hereby order that the Defendant shall be examined by qualified personnel from the Arkansas State Hospital in order to evaluate his ability to understand the choice between life and death and to knowingly waive any and all rights to appeal his sentence.

The psychological examination did not take place. A hearing was held by the Trial Court on January 10, 1997. At the hearing, extensive dialog occurred between Mr. Greene and the Trial Court. An order was entered by the Trial Court to the effect that Mr. Greene understood the choice he was making and was competent to waive his appeal.

A transcript of the hearing was filed with this Court. Upon review of the transcript, we noted the following colloquy between the Trial Court and Mr. Greene:

BY MR. GRBENE: There’s something I’d like to bring up though, Your Honor. The last time I had a visit with this attorney here of mine, he came down to Tucker Max and asked at your request that I be interviewed by a panel of psychologists there at the prison. Would you mind explaining to me what that was about?
BY THE COURT: The last time?
BY MR. GREENE: The last time.
BY THE COURT: Well, that was basically pursuant to the order of the Supreme Court on the motion that was filed down there that you be examined again and this Court hold another competency hearing to see if you want to waive your appeal. We were just following that directive; and it’s my understanding that you didn’t want to have any other examination and they ceased and that’s just kind of a standard practice that’s followed when competency is going to be a question.
BY MR. GREENE: Well, like I mentioned to Mr. Pearson here, since I’ve been on death row, and even before, I have several court orders signed by you that I was supposed to be transferred to the State Hospital for no longer than a period of thirty days for a psychological evaluation. I have at least three of them that I know of and I have still yet to be transferred to the State Hospital; but I thought I found it very unusual for my attorney to just pop up to visit me and say that he wishes that I would meet an independent panel and not the ones that interviewed me before, but an independent panel of psychologists to see if I’m competent to be doing what I’m doing. [Transcript, pp. 28-29.]

From that discussion, and particularly the statement of the Trial Court that the examination in question was in response to the order to determine whether Mr. Greene had the mental capacity to waive his appeal, we concluded that an unsuccessful attempt had been made by State Hospital personnel to examine Mr. Greene at the prison.

After reviewing the transcript of the January 10 hearing, we concluded that the psychological examination should occur, and we said so in a per curiam order of March 3, 1997. Greene v. State, 327 Ark. 511, 939 S.W.2d 834 (1997). We noted that the Trial Court had ordered such an examination and that it was correct to have done so. We again remanded the case to the Trial Court “so that an evaluation may be done by State Hospital personnel to determine Mr. Greene’s mental capacity to understand his choice between life or death and to resolve it knowingly and voluntarily. A further hearing is then to be held by the Trial Court to decide the issue.” Greene v. State, 327 Ark. at 513.

In response to our March 3 order, the Trial Court held another hearing. Mr. Greene testified that he recalled that the Trial Court had ordered a mental evaluation of him to determine his competency to waive his appeal but that he had not been examined and that State Hospital personnel had not visited him at the prison for that purpose.

With the permission of the Trial Court, Mr. Greene read a passage from the report of an evaluation of him by the State Hospital which took place in 1995 for the purpose of determining if he was “death penalty eligible.” The report concluded that Mr. Greene was competent to proceed in a resentencing hearing and had the mental state to be death-penalty eligible. As we pointed out in our order of March 3, 1997, the issue is different when the question is whether a party is competent to waive an appeal from a death sentence. Id. at 512-13.

In further discussion with counsel and with the Trial Court, Mr. Greene made it clear that he would not cooperate with any attempt on the part of State Hospital personnel to conduct an evaluation as ordered by the Court. The Trial Court recognized the futility in again ordering an evaluation of Mr. Greene. There was a long discussion in which Mr. Greene leveled considerable criticism (amply sprinkled with profanity) toward prison personnel, State Hospital personnel, and ultimately this Court. The Trial Court concluded that there was no requirement that the evaluation take place and that, if Mr. Greene had a right to such an evaluation, he had waived it and was competent to waive his right to appeal.

In these circumstances, we continue to agree with the Trial Court’s apparent initial conclusion that an evaluation by trained psychological examiners of Mr. Greene to determine his capacity to waive his appeal was necessary. As Mr. Greene has refused to cooperate in any such examination, and says he will continue to refuse, we deny his motion to dismiss his appeal.

The stay of execution will remain effective. The Clerk of this Court will establish the briefing schedule for the appeal.

Motion denied.


source: Caselaw Access Project

license: Public Domain

text:
    Excel WARREN v. STATE of Arkansas
    CR 97-166
    942 S.W.2d 259
    Supreme Court of Arkansas
    Opinion delivered April 21, 1997

      Zimmery Crutcher, for appellant.
    No response.
   Per Curiam.

On March 12, 1997, we issued a per curiam instructing counsel for appellant, Zimmery Crutcher, to file within thirty days a motion and affidavit accepting full responsibility for not timely filing the notice of appeal in this cause. That thirty-day period has elapsed, and counsel has filed no response, motion, or affidavit.

Appellant’s attorney, Mr. Crutcher, is directed to appear before this court at 9:00 a.m., Monday, May 5, 1997, to show cause why he should not be held in contempt of court for failure to perfect the appeal in this case.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Jack FOSTER v. JEFFERSON COUNTY BOARD of ELECTION COMMISSIONERS, A Body Corporate; Don A. Eilbott, Chairman of the Jefferson County Board of Election Commissioners, In His Individual and Official Capacity; Ruth Parette, In Her Individual and Official Capacity; City of Pine Bluff, A Municipal Corporation; and Steve Dalrymple, In His Official Capacity as Judge of the Municipal Court of Pine Bluff
    96-332
    944 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Bowden Law Firm, by: David O. Bowden, for appellant.

      Joe Childers, Pine Bluff Ass’t City Att’y, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

The subject of this appeal is Act 181 of 1955. Section 1 of the Act provides as follows:

From and after the passage of this Act, the office of Municipal Judge in any Municipal Court in counties having a population of not more than 76,100 nor less than 76,000 according to the 1950 Federal census, shall be voted upon by the qualified electors of the entire county in which such Municipal Court is located.

On May 12, 1994, appellant Jack Foster, a resident of the city of Pine Bluff, brought an action for injunctive and declaratory relief against appellee Jefferson County Board of Election Commissioners and others, claiming that Act 181 of 1955 was unconstitutional and that only qualified voters living within the corporate limits of Pine Bluff should be permitted to vote for municipal judge. Fie further alleged that the expenditures of tax monies on the upcoming 1994 election constituted an illegal exaction. Specifically, Foster complained that, because the only county within Arkansas having a population between 76,000 and 76,100 according to the 1950 census was Jefferson County, the Act constituted local and special legislation in violation of Amendment 14 to the Arkansas Constitution, which prohibits the General Assembly from passing any local or special act. Following a trial, the chancellor concluded that Act 181 was neither local nor special legislation. We affirm.

1. Special legislation

It is an undisputed fact that Act 181 can only apply to Jefferson County. However, this fact alone is not dispositive of whether the Act is violative of Amendment 14. A legislative act is special if, by some inherent limitation or classification, it arbitrarily separates some person, place, or thing from those upon which, but for separation, it would operate. Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988); Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988). An act is local if it applies to any division or subdivision of the state less than the whole. Id. Nevertheless, the fact that a statute affects less than all of the state’s population does not necessarily render it local or special. City of Little Rock v. Waters, 303 Ark. 363, 797 S.W.2d 426 (1990). Although a law may be limited in effect to only a few classifications, it is not necessarily special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the law. Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969).

We must presume legislation is constitutional and rationally related to a legitimate governmental objective. Villines v. Tucker, 324 Ark. 13, 918 S.W.2d 153 (1996). This presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality. Fayetteville Sch. Dist. v. Arkansas Bd. of Educ., 313 Ark. 1, 852 S.W.2d 122 (1993). All doubts wifi be resolved in favor of an act’s constitutionality if it is possible to do so. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980).

The chancellor ruled that Act 181 was not violative of Amendment 14 because it related to the administration of justice and because it was motivated by a nondiscriminatory purpose — to give all electors in Jefferson County an opportunity to vote on the municipal judge. In Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984), we articulated the following test for determining whether statutes relating to the administration of justice are local or special legislation:

We will continue to hold that statutes designed to meet the judicial needs of an area on a non-discriminatory basis are a part of a judicial system for the entire state and are not local or special within the meaning of Amendment 14, even though such statutes may apply only to individual counties, judicial districts or divisions within districts. . . . The limited application of the statute must be non-discriminatory and bear a reasonable relation to the subject matter of the legislation.

Id. at 406; see also Villines, 324 Ark. at 19. In providing for a statewide judicial system, the legislature should strive to create a system that is as uniform as practical. Littleton, 281 Ark. at 405; Villines, 324 Ark. at 18. Applying the test in Littleton to the facts in the present case, the appellant had the burden of proving that the limited application of Act 181 bore no reasonable relation to the purpose of the legislation. There was evidence at trial that, prior to the passage of Act 181, residents of Jefferson County living outside Pine Bluff were paying part of the expenses of the Pine Bluff Municipal Court, yet they were not permitted to vote for the municipal judge there. A rational basis for Act 181 was to remedy this inequity. Appellant did not offer any proof at trial to show that there was a contrary purpose behind Act 181. Nor did he offer proof that, in 1955, other counties in the state had a similar situation to Jefferson County’s, where residents lived outside the municipality, paid part of the expenses for the municipal court, and were precluded from voting for the municipal judge. Thus, we must conclude that the application of Act 181 to Jefferson County bore a reasonable relation to its purpose — to allow those Jefferson County residents whose taxes helped fund the Pine Bluff Municipal Court the opportunity to vote and thus be represented in the election for municipal judge.

Appellant must also show that the limited application of Act 181 to Jefferson County was discriminatory. In the argument section of his brief, appellant complains that the announced purpose of the Act could have applied to Pulaski County. However, he simply offered no proof at trial that Pulaski County or any other county had residents whose tax dollars were funding the municipal courts but were unable to vote, nor did he demonstrate that Act 181 provided an alternate procedure for selecting municipal judges in this state. Because appellant has failed to satisfy both prongs of the Littleton test, we decline to hold that Act 181 is unconstitutional.

2. Arkansas Civil Rights Act of 1993

Appellant’s second point is that Act 181 violates the Arkansas Civil Rights Act of 1993, codified at Ark. Code Ann. §§ 16-123-101 to -108 (Supp. 1995). Fiowever, upon our review of the abstract and record, we find no ruling on this issue. It was appellant’s burden to obtain a ruling from the chanceEor, and the absence of such a ruling constituted a waiver of this issue on appeal. Southern Farm Bureau Cas. Ins. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996). Moreover, we observe that appeEant did not develop this issue below by demonstrating proof of a racial motive behind Act 181, or by offering evidence that, as a result of the Act, there was a disparate impact upon minority voters. To the contrary, in his brief, he stated that “[o]ne can only speculate that in 1955 the changing patterns of racial composition within rural Arkansas may have contributed to the desire to have those in rural Jefferson County elect the municipal judge in Pine Bluff.” In short, mere speculation does not equate to proof of racial motive or disparate impact. Consequently, we must affirm the decision of the chanceEor.

Affirmed.

       While Act 181 effectively provides for the mandatory countywide election of the Pine Bluff Municipal Judge, we note that, pursuant to Ark. Code Ann. § 16-17-120(a) (Repl. 1994), any city may pass an ordinance providing that their municipal judge be elected by the electors of the entire county.


text:
    John Ervin MEDLOCK v. STATE of Arkansas
    CR 96-1435
    942 S.W.2d 861
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Michael J. Medlock, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

The appellant, John Ervin Medlock, was convicted in Fort Smith Municipal Court of driving while intoxicated and for refusing to submit to a breathalyzer test. He appealed his convictions to the Fort Smith District of Sebastian County Circuit Court. At trial, over Medlock’s objection, the circuit judge refused to instruct the jury on the charge of refusal to submit to the breathalyzer test, found him guilty as charged, and suspended his license for six months. On appeal, Medlock asks that we reverse his conviction for refusal to submit on the basis that the statutory provision governing the offense at the time of his arrest on November 27, 1995, Ark. Code Ann. § 5-65-205 (c) (Repl. 1993), which provides for a judicial determination and not a trial by jury, deprives him of his right to a jury trial under the federal and state constitutions. We agree that Medlock was entitled to a jury trial under the Arkansas Constitution and reverse.

The statutory provision at issue, Ark. Code Ann. § 5-65-205(c) (Repl. 1993), provides as follows:

If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to:
(1) Suspend the motor vehicle operator’s license for:
(A) A period of not less than six (6) months nor more than one (1) year if the person had not previously refused the test within three (3) years of the refusal in question and if the person had not been convicted of driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood within three (3) years of the refusal;
(B) A period of not less than one (1) year nor more than sixteen (16) months if the person had previously refused the test within three (3) years of the refusal in question or if the person had been convicted of driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood within three (3) years of the refusal;
(C) A period of not less than two (2) years nor more than thirty (30) months if the person had previously refused the test two (2) times within three (3) years of the refusal in question or if the person had been convicted of the second offense of driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood within three (3) years of the refusal; or
(2) Revoke the motor vehicle operator’s license if the person had previously refused the test three (3) times within three (3) years of the refusal in question or if the person had been convicted of the third offense of driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood within three (3) years of the refusal. The revocation shall continue for a period of three (3) years.

Medlock argues that this provision is facially unconstitutional because it removes from the jury’s province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated.

We first analyze this issue under the Sixth Amendment to the United States Constitution. In Duncan v. Louisiana, 391 U.S. 145 (1968), the Supreme Court held that defendants are not entitled to a jury trial for petty offenses. To determine whether a legislature views a particular offense as serious, primary emphasis is placed on the maximum authorized period of incarceration. Blanton v. North Las Vegas, 489 U.S. 538 (1989). For purposes of the Sixth Amendment, it is appropriate to presume that society views an offense carrying a maximum prison term of six months or less as a petty offense. Id. at 543.

Applying this principle here, it is clear that Medlock is not entitled to a jury trial under the Sixth Amendment. Arkansas’s refusal-to-submit law does not provide for either incarceration or a fine. Instead, the only penalty authorized is the suspension or revocation of the accused’s driver’s license. Thus, Medlock had no Sixth Amendment right to jury trial.

Medlock also challenges the refusal-to-submit law as violative of the Arkansas Constitution and Rules of Criminal Procedure. Arkansas Const, art. 2, § 7, provides that “ [t]he right to trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law . . . .” Rule 31.1 of the Arkansas Rules of Criminal Procedure provides that there may not be a waiver of the right to jury trial without the assent of the prosecutor and the approval of the court. The only way a defendant may waive the jury trial right is by personally making an express declaration in writing or in open court, and the open-court proceedings where the defendant waives his or her right must be preserved. Ark. R. Crim. P. 31.2; see also Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992).

While there is no entitlement to a jury trial in a municipal court, the right remains inviolate when an appeal is pursued to a circuit court where the case is tried de novo. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989); Ark. Code Ann. § 16-17-703 (Repl. 1994). When a conviction is appealed from a municipal court to a circuit court, the case is tried de novo, and the appellant is entitled to a trial by jury. State v. Roberts, supra; Weaver v. State, 296 Ark. 152, 752 S.W.2d 750 (1988); Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). In this case, Medlock appealed his convictions to circuit court and did not waive his right to jury trial.

The State defends the circuit judge’s ruling by emphasizing that the operation of a motor vehicle is a privilege, not a right, and that the State may exercise its police power to regulate this privilege. Stevens v. State, 319 Ark. 640, 893 S.W.2d 773 (1995). However, the legislature, in exercising its police power to regulate the privilege of operating a motor vehicle, has chosen to make refusing to submit to a breathalyzer test part of our criminal code. Thus, a conviction for refusal to submit to a breath test, like any other criminal offense, is subject to Arkansas law that guarantees the right to a jury trial unless that right is expressly waived.

Under Arkansas law, it does not matter that Medlock was convicted of a petty offense. In Johnston v. City of Pine Bluff, supra, Johnston was convicted of violating a City of Pine Bluff speeding ordinance. The circuit judge denied Johnston’s request for a jury trial, and she appealed. This court rejected the City’s theory that Johnston had only been convicted of a petty offense for which the Arkansas Constitution does not guarantee the right to trial by jury. We reversed Johnston’s conviction, stating specifically that, under Arkansas law, “No distinction is made between petty offenses and other misdemeanors.” Id. at 347.

In the present case, the statutory provision at issue, Ark. Code Ann. § 5-65-205 (c) (Repl. 1993), provides that the trial judge, rather than the jury, is to determine whether a defendant is guilty of refusing to submit to chemical test. Clearly, to the extent that this provision prevents a defendant from having a jury determine whether he or she is guilty of the offense, we hold that it unconstitutionally infringes upon the right to jury trial under the Arkansas Constitution. Consequently, we must conclude that it was error to deny Medlock’s request to submit his refusal-to-submit charge to the jury and reverse his conviction.

Reversed.


author: David Newbern, Justice.

text:
    Larry HULSEY v. Tom SMITHERMAN, Judge
    CR 96-1441
    943 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Steven D. Oliver and Daniel D. Becker, for petitioner.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for respondent.
   David Newbern, Justice.

Petitioner Larry Hulsey was arrested for rape on November 2, 1994. He seeks a writ of prohibition directing the Garland Circuit Court to dismiss the charge. He contends his right to a speedy trial has been denied. After delays not at issue here, the Trial Court ordered Mr. Hulsey to the State Hospital for examination on November 21, 1995. Almost a year later, on November 14, 1996, the State Hospital report was presented to the Court. If, in calculating the one-year period prescribed in Ark. R. Crim. P. 28.1, the time it took to obtain the report is not excluded from the one-year period, Mr. Hulsey is entitled to the writ; if that time is excluded, he is not entitled to the writ. We hold the time is excluded, and thus we deny the writ.

On October 5, 1995, Mr. Hulsey notified the Trial Court of his assertion that he lacked the mental capacity to stand trial and that he would defend the charge on the basis of his inability to appreciate the criminality of his conduct or to conform his conduct to the law when the crime was committed. In conjunction with that notice, Mr. Hulsey moved to be examined at the State Hospital. That same date, the Trial Court entered an order that Mr. Hulsey be given a thirty-day evaluation at the State Hospital. The order provided that, if the State Hospital were unable to accept Mr. Hulsey immediately, the Director of the State Hospital should evaluate Mr. Hulsey at the Garland County Detention Center. On November 2, 1995, Mr. Hulsey moved that he be transported from the Department of Correction to the Garland County Detention Center for an evaluation to be performed there on November 7, 1995. The motion was granted.

From reports filed with the Trial Court by Dr. Paul Deyoub on November 9 and November 20, 1995, it appears that Dr. Deyoub went to the Garland County Detention Center on November 7, 1995, for the purpose of evaluating Mr. Hulsey. According to the reports, Dr. Deyoub was unable to conduct the evaluation on account of Mr. Hulsey’s refusal to cooperate. It appears that Dr. Deyoub approached Mr. Hulsey in his cell and found him lying on the floor pretending to be unconscious. Mr. Hulsey did not speak to the doctor or respond in any way to the doctor’s entreaties that Mr. Hulsey participate in the evaluation. For twenty minutes, the doctor attempted to persuade Mr. Hulsey to cooperate, but Mr. Hulsey did not respond, except to open his eyes slightly every so often. The doctor then left Mr. Hulsey alone and returned thirty minutes later. Mr. Hulsey was still lying on the floor, but he had moved to a different place in his cell.

Dr. Deyoub said in his report that he did not believe that Mr. Hulsey’s refusal to cooperate was the result of any mental illness. The doctor advised the Trial Court to commit Mr. Hulsey to the State Hospital if it found that an evaluation remained necessary. The doctor suggested that Mr. Hulsey would not cooperate unless the evaluation was performed at the State Hospital.

On November 21, 1995, the Trial Court ordered that Mr. Hulsey be taken to the State Hospital for a mental evaluation. As noted above, the period from that date forward is the one Mr. Hulsey argues is chargeable to the State and should not be excluded from the prescribed one-year period.

By January 1996, the evaluation ordered on November 21, 1995, had not been performed. On January 10, 1996, Mr. Hulsey moved for a continuance and stated that he had not completed his mental evaluation and that the trial-date should be continued from January 17, 1996, the previously scheduled date, until after completion of the evaluation. The Trial Court granted the motion, reset the trial for July 24, 1996, and noted that the delay would be excluded for speedy-trial purposes.

On June 25, 1996, the Trial Court learned the examination had not occurred, and he entered another order on June 28, 1996, that Mr. Hulsey be committed to the State Hospital for a thirty-day evaluation.

By July 1996, the evaluation still had not been performed. Mr. Hulsey noted this in a motion for continuance filed on July 10, 1996. He requested that the trial be continued from July 24, 1996, the previously scheduled trial date, until after the completion of the evaluation. The Trial Court granted the motion on July 11, 1996, reset the trial for October 9, 1996, and excluded the delay for speedy-trial purposes.

On September 17, 1996, defense counsel sent a letter to the Division of Mental Health Services of the Department of Human Services inquiring about the status of the evaluation. The defense filed another motion for continuance on September 30, 1996, which stated that Mr. Hulsey remained in the Department of Correction waiting to be evaluated. The Trial Court granted the motion on October 1, 1996, and continued the trial from October 9, 1996, the previously scheduled date, to December 4, 1996. The Trial Court noted that the delay would be excluded for speedy-trial purposes. On October 29, 1996, Mr. Hulsey filed a “motion for speedy trial.” Mr. Hulsey asked the Trial Court to grant him a speedy trial on the rape charge or to dismiss the charge with prejudice.

By November 1996, the evaluation remained unperformed. The Trial Court entered an order on November 5, 1996, directing the Assistant Director of the Division of Mental Health Services to appear on November 19, 1996, and show cause why the evaluation had not been completed.

The State Hospital filed a report with the Trial Court on November 14, 1996, which indicated that the State Hospital had conducted the evaluation of Mr. Hulsey on November 8, 1996, and determined that Mr. Hulsey was aware of the nature of the charges and the proceedings taken against him and was capable of cooperating effectively with an attorney in the preparation of his defense. The report further stated that Mr. Hulsey, at the time of the commission of the alleged offense, did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The show-cause order was set aside.

The Trial Court held a hearing on November 19, 1996, in which Mr. Hulsey again moved to dismiss for lack of speedy trial. No evidence or testimony was presented to justify the delay in the mental evaluation. The Trial Court entered an order on November 20, 1996, denying Mr. Hulsey’s motion to dismiss for lack of speedy trial.

According to Ark. R. Crim. P. 28.1(c),

Any defendant charged after October 1, 1987, in circuit court and held to bail, or otherwise lawfully set at liberty, including released from incarceration pursuant to subsection (a) hereof, 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.

We apply the rule to incarcerated persons even though there is no provision stating that an incarcerated person is entitled to be tried within a year or have a charge dismissed. See Brawley v. State, 306 Ark. 609, 614, 816 S.W.2d 598, 601 (1991) (Dudley, J., concurring); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).

The initial twelve-month period ended on November 2, 1995. “When a defendant is not brought to trial within this twelve-month period, the State has the burden of showing the delay was legally justified.” Hufford v. State, 314 Ark. 181, 183, 861 S.W.2d 108, 109 (1993). See also Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993).

Portions of this nearly two-and-one-half-year delay were not excluded and thus were charged against the State. Again, we are concerned only with whether the delay from November 21, 1995, to November 14, 1996, is to be excluded. In asserting that it has met its burden of demonstrating that this particular delay was to be excluded from the one-year period, the State relies solely on Ark. R. Crim. P. 28.3(a), which provides in relevant part as follows:

The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial ....

Once a defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of demonstrating that there has been no violation because some of the time comprising the one year provided in the rule is to be excluded as “legally justified.” Wallace v. State, supra; Hufford v. State, supra. The argument of the State in this case, however, is that Rule 28.3(a) states flatly that the time constituting a delay resulting from an examination and hearing on competency is to be excluded.

In Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991), it was argued that a delay of over nine months in getting a mental examination was attributable to the State and thus not to be excluded from the one-year period. The argument was that, although various appointments for examination were made for Mr. Brawley, who was incarcerated, transportation was not provided by the State and he missed the appointments. Mr. Brawley argued that, once it was shown that it was not his fault that he missed his appointments, the “burden shifted back” to the State. We referred to the “literal language” of Rule 28.3(a) and noted that Mr. Brawley had cited no authority supporting his argument.

Mr. Hulsey cites three cases in which we have dealt with delays related to mental evaluations of criminal defendants. Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995); Brawley v. State, supra; Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991). In each case we denied the relief sought. Mr. Hulsey distinguishes them solely on the basis that the delay was longer in this case than in the others cited. He quotes the following from the Mack case: Mack v. State, 321 Ark. at 551, 905 S.W.2d at 844, quoting Collins v. State, 304 Ark. 587, 590, 804 S.W.2d 680, 681 (1991). Mr. Hulsey argues the “scrutiny” to which we referred should be applied here and then cites the Collins case and our dismissal of Mr. Collins’s argument that the delay was not his “fault” but was caused by renovations at the State Hospital.

We have previously taken pains to underscore that the State Hospital is independent of the judiciary and prosecuting attorney’s office and, thus, “delays caused by its operation would not be subject to the same level of scrutiny as delays caused by the criminal justice system itself.”

In view of the manner in which we have applied Rule 28.3(a), and our characterization of the State Hospital’s role in the process of determining the mental status of an accused, we need not agree or disagree with Mr. Hulsey’s implication that the matter of “fault” is at issue. Cf. Brawley v. State, supra, (concurring opinion of Glaze, J., upon denial of rehearing). We must point out, however, that if fault, or perhaps comparative fault, were the issue we would have difficulty in getting beyond the fact that Mr. Hulsey could have had the requisite mental examination on November 7, 1995, had he chosen to cooperate with the examiner.

While we do not condone the State Hospital’s delay in bringing about an examination of Mr. Hulsey after it was ordered by the Trial Court, we hold it was a delay, in the words of Rule 28.3(a), “resulting from other proceedings concerning the defendant” and thus was excluded in computing the time for trial.

Petition denied.


text:
    Larry LADWIG v. STATE of Arkansas
    CR 96-1432
    943 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Bynum & Kizer, by: Maxie G. Kizer, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly Terry, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Larry Ladwig was charged with capital murder in connection with the death of Rakaan Ellsworth, the fifteen-month-old son of Mr. Ladwig’s wife, Stephanie Ells-worth. He was convicted of first-degree murder as that crime is described in Ark. Code Ann. § 5-10-102(a)(3) (Repl. 1993), and sentenced to imprisonment for forty years. On appeal, Mr. Ladwig contends his motion for a directed verdict should have been granted because the State failed to prove that he, in the terminology of the statute, “knowingly caused the death of a person fourteen years of age or younger.” We hold that Mr. Ladwig’s testimony is sufficient to support the jury’s determination that his actions resulting in the child’s death were done “knowingly.” Mr. Ladwig’s other point concerns an alleged error in the sentencing procedure, but as it was not raised at the trial, we decline to consider it. The conviction is affirmed.

Í. Sufficiency of the evidence

The evidence demonstrated that on the morning of August 31, 1995, Mr. Ladwig was at home with the child. Rakaan’s mother fed Rakaan and left for work before 7:00 a.m. At a few minutes after 8:00 a.m. she received a telephone call from Mr. Ladwig. He told her that Rakaan was making “funny noises” and would not wake up.

Ms. Ellsworth rushed home to find Rakaan in his crib with his eyes dilated and unblinking. They took Rakaan to Jefferson Regional Hospital in Pine Bluff. Rakaan did not respond to any of the treatment administered at the Hospital, so he was airlifted to the Arkansas Children’s Hospital in Little Rock. Rakaan did not regain consciousness. He was pronounced brain dead and removed from life support equipment. He died on September 1, 1995.

When Rakaan was being treated at Jefferson Regional Hospital, the doctors noticed several bruises on his body and a large knot on his forehead. They determined that the bruises, the severe swelling of his head, and his other injuries were evidence of child abuse. Police detectives questioned Ms. Ellsworth and Mr. Ladwig at the Hospital.

Mr. Ladwig went to the police station. He was advised of his rights and signed a waiver at 10:07 a.m. He then gave the first of three statements. In the first statement he said that the knot on Rakaan’s forehead was the result of a fall which occurred on the playground. He also claimed that he fell on Rakaan causing him to hit his head on the side of the swimming pool on the evening of August 30. According to the first statement, when he checked on Rakaan at about 7:35 that morning, he discovered that Rakaan had not finished his bottle. Mr. Ladwig told the officers that he could not awaken Rakaan, changed Rakaan’s clothes, and then began to shake him to wake him up. He called Ms. Ellsworth because Rakaan remained unresponsive.

Later, Mr. Ladwig admitted that he had not been entirely truthful and agreed to give a second statement. In that statement he confessed that the bruises on Rakaan’s legs were probably caused by his squeezing the child’s leg too hard. He explained the child’s bruised stomach by saying that on the day before Rakaan’s hospitalization, “He wouldn’t be quiet and stuff, so I would lay him down and I would slap him with my hand open on his stomach and I’d do that four or five times, and I don’t know, I just kept doing it.”

When questioned about the knot on the victim’s forehead, Mr. Ladwig said, “He was doing the same thing, and blew up and stuff and I pushed him from behind and [he] fell forward and hit his head on the door.” Mr. Ladwig told investigators that he bruised Rakaan’s ears by squeezing them and shaking the victim on two or three occasions. Although denying that he picked the child up by the ears, he said, “I picked him up and had my hands on his ears and was shaking him and I probably squeezed too hard.” That occurred “in the last couple of days.” Mr. Ladwig also admitted that in the same time period he “probably hit [Rakaan] up side the head once or twice” in an effort to quiet him.

When questioned about his activities on that morning, Mr. Ladwig continued to claim that he shook the child only in an effort to wake him. The police arrested Mr. Ladwig after this statement was concluded.

Mr. Ladwig gave a third statement on September 3, 1995. In this statement, he said that he panicked when he could not awaken Rakaan and that he placed his hands on the child’s shoulders and shook him in his crib. He admitted that, at the time, he felt like his previous actions had caused the child’s unconsciousness.

When questioned about the knot on the back of Rakaan’s head, he said:

The only thing I can think of is when I was shaking him in the crib he hit the, hit the crib, or I hit him on the top of the crib or something when I was shaking him, or something. ... I don’t know. I mean he might have hit his head and he probably did, because I had him right by the top and it was shaking and his head was going back and forth, and that’s probably where he hit his head. ... I probably shook him for more than ten minutes. ... I was shaking him more than a little bit.

Mr. Ladwig also admitted that he knew that slapping a child could hurt him, and that he had heard that a child could be injured if shaken. In regard to shaking a baby, Mr. Ladwig said:

You shake them so much that it, I mean you can do damage to their head. . . . You could kill, probably kill them, or serious, you know, seriously give them head damage or something. I don’t know if that’s — I don’t know a whole lot about it, but I know you probably could kill them if you shook them or something.

At trial, the State introduced all three of the statements given by Mr. Ladwig. The State also produced testimony from Dr. Erickson, an associate medical examiner at the Arkansas State Crime Laboratory. He told the jury that the cause of death was craniocerebral trauma.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 878 S.W.2d 409 (1994); Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747, (1993). In determining whether substantial evidence exists, the Court reviews the evidence in the light most favorable to the appellee. Id.

According to Ark. Code Ann. § 5-2-202 (Repl. 1993), “A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.”

The evidence was sufficient to show that Mr. Ladwig struck and shook the child knowing that the result could be serious injury or death. The motion for directed verdict was properly denied.

2. Sentencing

When the jury could not agree on sentencing, the Trial Court scheduled a hearing to render a sentence as is permitted by Ark. Code Ann. § 5-4-103(b) (Repl. 1993). At that hearing, the Trial Court told Mr. Ladwig that he would depart upward from the presumptive sentence stated in the statutory sentencing guidelines, as permitted by Ark. Code Ann. § 16-90-804 (Supp. 1995), and stated as the justification, required by Ark. Code Ann. § 16-90-804(a)(2)(A) (Supp. 1995), the following:

Principally because the Court finds, as did the jury, that your conduct was cruel and the victim in this matter was a small, vulnerable child. Secondly the Court is well aware that the jury in your case was deadlocked on the sentence to recommend to this Court. Eleven jurors were in favor of 40 years. One juror was holding out for life.

The Trial Court stated that there was “no good reason to deviate from the coEective wisdom and judgment of the eleven jurors” who sentenced Mr. Ladwig to forty years imprisonment.

Mr. Ladwig argues, for the first time on appeal, that the Trial Court erred in its upward departure from the sentencing grid. He claims, without referring to any direct evidence, that the Trial Court had an ex parte communication with the jury, and that the Trial Court failed to use his discretion when he sentenced him in accordance with the wishes of a majority of the jurors.

We will not consider an argument contesting the sentence if the appellant, even though present during the sentencing phase, failed to voice to the Trial Court his objection to the sentence. Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996); Reece v. State, 325 Ark. 465, 928 S.W.2d 334 (1996). A defendant who makes no objection at the time sentence is imposed has no standing to complain of it. Williams v. State, 303 Ark. 193, 794 S.W.2d 618 (1990); McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).

Affirmed.


author: Tom Glaze, Justice.

text:
    Kevin BARNETT v. STATE of Arkansas
    96-1501
    942 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      William R. Simpson, Jr., Public Defender, by: Russell Byrne, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

In 1992, appellant Kevin Barnett was charged with breaking or entering, theft, and a class A misdemeanor. After being evaluated and diagnosed as suffering from schizophrenia, the State agreed that it would be in the best interest of justice that Barnett be acquitted. In accordance with Sections 3 and 4 of Act 911 of 1989 [now Ark. Code Ann. §§ 5-2-314 and - 315 (Supp. 1995)], Barnett was committed to the care and custody of the Director of Human Services for treatment and evaluation. Barnett’s case was also transferred to the Probate Court of the Sixth Judicial District for future hearings. See Ark. Code Ann. § 16-13-1003 (Supp. 1995). In August of 1992, Barnett was found still affected by mental disease or defect, but not a present risk of harm to himself or to the person and property of others. As a consequence, the probate judge entered an order conditionally releasing Barnett to the custody of the North Arkansas Human Services System for further treatment for a period of five years. See Ark. Code Ann. § 5-2-316(b) (Repl. 1993).

During his period of treatment with the North Arkansas Human Services System, Barnett incurred charges of disorderly conduct, loitering, and aggravated assault, which prompted the State, on April 23, 1993, to move for the revocation of his earlier conditional release. On April 30, 1993, the probate court granted the State’s motion and returned him to the custody of DHS. He was detained at the Arkansas State Hospital. Barnett eloped from the Hospital, but was returned on December 6, 1994. Upon his return, Barnett was retested, and as a result, DHS changed its earlier diagnosis of schizophrenia to polysubstance abuse and borderline intellectual functioning. Afterwards, Barnett was placed in drug treatment centers. DHS eventually asked that Barnett be conditionally released to the Hoover House in Little Rock, and on October 4, 1996, the probate court, over Barnett’s objections, granted DHS’s request. Barnett urged the probate court to discharge him from any further treatment, since his diagnosis had changed. We uphold the probate court’s decision.

Pursuant to §§ 5-2-314 and -315, the probate court held a hearing concerning whether Barnett should be discharged or conditionally released, and after the hearing it found by clear and convincing evidence that Barnett had recovered from his mental disease or defect to such an extent that his conditional release would be in the best interest of both the State and Barnett. It further found that Barnett would not pose a risk of harm to himself or to the person or property of others. See §§ 5-2-315(a)(2)(C)(ii) and 5-2-314(e). Additionally, the court concluded that Barnett currently was not exhibiting evidence of psychosis and his mental illness was responding to medication and other therapy.

Barnett claims the probate court erred in proceeding under §§ 5-2-314 and -315 because he is no longer suffering from a psychological mental disease or defect. He suggests the civil commitment statutes, Ark. Code Ann. §§ 20-47-201 -228 (Repl. 1991 and Supp. 1995) should apply, and under those statutes his new diagnosis is not an impairment and is excluded under the definition of mental illness. See § 20-47-202(j)(l) and (2). Barnett is mistaken.

In his argument, Barnett quotes Dr. Tom Kramer, staff psychiatrist for the State Hospital, as saying, “Barnett no longer suffers from mental disease or defect.” This is a misquote. Kramer was actually asked, “Is he (Barnett) suffering from any psychological mental disease or defect that you’re aware of other than this borderline intellectual functioning?”, to which Kramer answered, “No.” Kramer further testified, “Borderline intellectual functioning is classified as a mental defect.” See also Diagnostic and Statistical Manual of Mental Disorders 684 (4th ed. 1994). Barnett offered no evidence to contradict Kramer’s opinion. Consequently, we hold the probate court’s findings are clearly supported by the evidence, and its order granting the State’s motion for Barnett’s conditional release should be affirmed.


text:
    Danny SMITH v. STATE of Arkansas
    CR 96-684
    943 S.W.2d 234
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Thurman Ragar, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant Danny Smith was convicted of raping his seven-year-old daughter, and was sentenced to thirty-five years’ imprisonment. At trial, the State presented descriptive testimony of the rape and medical proof confirming it, and Smith does not challenge that evidence on appeal. Instead, the two points he raises are, one, his counsel provided ineffective assistance at trial because counsel failed to advise him to testify, and two, the trial judge erred in refusing to allow Smith to introduce extrinsic evidence to challenge testimony given by a cellmate, Larry Green.

Smith failed to preserve his first argument. In order for a defendant to present an ineffective assistance of counsel claim on direct appeal, he must have first presented that claim to the trial court during the trial or in a motion for a new trial. Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Here, Smith did neither.

Smith’s second point arises from State testimony given at trial by Larry Green, a cellmate who related a conversation he claims to have overheard between Smith and another cellmate, Karim Akbar. Green testified that Smith told Akbar that incest was not a sin before God, because it was done in the Bible, that the prosecution could not prove he hurt his daughter because she could have fallen and hurt herself, and that, if he had not been drinking and doing drugs, it probably would not have happened.

Smith’s counsel attacked Green’s credibility on cross-examination, and asked him whether he had any charges pending against him. Green answered he was unaware of any and explained he had been incarcerated because he had violated California parole. Smith then told the judge that he would like to call the circuit clerk concerning charges Smith asserted were pending against Green in Crawford County. The judge refused Smith’s request which Smith claims was error.

In Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), this court stated the general rule that a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. The court explained the reason for the rule is that to permit such a tactic would only distract the jury from the main issue, waste time, and prejudice a defendant. However, this court has held that a matter is not collateral if the evidence offered is relevant to show bias, knowledge, or interest. Dansby v. State, 319 Ark. 506, 893 S.W.2d 331 (1995). In other words, if a witness denies or does not fully admit the facts claimed to show bias, the attacker has a right to prove those facts by extrinsic evidence. Id. at 519-520.

In the present case, Smith offered no evidence showing bias on Green’s part, and failed to explore that issue on cross examination. Rather, Smith merely sought to challenge Green’s denial that any charges were pending against him in Arkansas by offering the circuit clerk’s testimony to the contrary. Because Smith fads to show any bias, knowledge, or interest on Green’s part, we conclude the trial court did not abuse its discretion in excluding Smith’s proffer of the clerk’s testimony.

We affirm.


author: Donald L. Corbin, Justice.

text:
    Michael S. CHAVIS v. STATE of Arkansas
    CR 96-768
    942 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Sanford & Stiritz, by: Jon R. Sanford, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Michael S. Chavis appeals the judgment of the Pulaski County Circuit Court convicting him of rape in violation of Ark. Code Ann. § 5-14-103 (Supp. 1995) and sentencing him to thirty years’ imprisonment in the Arkansas Department of Correction. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(l). Appellant raises three points for reversal, two of which comprise essentially the same argument. We find no error and affirm.

Appellant was convicted of rape by a jury on January 23, 1996, and was sentenced to thirty years’ imprisonment pursuant to the judgment and commitment order filed January 25, 1996. On February 20, 1996, Appellant’s trial counsel filed a notice of appeal. Three days later, however, Appellant’s newly retained counsel filed a motion for new trial alleging that Appellant’s trial counsel had been ineffective in his representation of Appellant, in that, among other allegations not pertinent to this appeal, trial counsel had failed to move for a mistrial on the ground that one of the jurors had fallen asleep during trial. The trial court never ruled on the motion for new trial, and as such, the motion was “deemed denied” as of the 30th day after it was filed pursuant to Ark. R. App. P. — Civ. Rule 4(c), applicable to criminal appeals through Ark. R. App. P. — Crim. Rule 2(a)(3). It is from that deemed denial that Appellant appeals.

Appellant now contends that his trial counsel was ineffective in failing to bring to the trial court’s attention, either through objection or motion for mistrial, that one of the jurors slept through a portion of the trial. Additionally, Appellant argues that he was denied a fair trial as guaranteed by the Arkansas and United States Constitutions due to that juror’s inattentiveness. There is no evidence, however, that Appellant ever raised the issue of his being denied a fair trial separately and apart from his allegation of trial counsel’s ineffectiveness. Accordingly, we address the argument as one solely based upon the constitutional right to the effective assistance of counsel.

Whereas A.R.Cr.P. Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, we will address this issue on direct appeal, provided it was first raised during trial or in a motion for new trial. Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996). We will not, however, consider such a claim unless the surrounding facts and circumstances were fully developed either during the trial or during other hearings conducted by the trial court. Id.

Here, the trial court did not conduct a hearing on the motion for new trial, did not make any factual findings as to counsel’s ineffectiveness, nor did it make a ruling on the motion. As this court noted in Dodson, the “deemed denied” provision of Rule 4(c) does not apply to appeals from Rule 37 petitions. Although this appeal is from the denial of a posttrial motion for new trial, rather than from the denial of a Rule 37 petition, the “deemed denied” provision of Rule 4(c) is similarly inapplicable to this case. Id. The reasons for the necessity of an actual ruling and fully developed facts are the same in both instances, as this court explained in Dodson:

Such a deemed ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the claim. As the trial court is in the best position to evaluate trial counsel’s performance and competency, an order reciting its findings is necessary to enable us to conduct a meaningful review of the claim.

Id. at 644, 934 S.W.2d at 202.

In the case at hand, Appellant has failed to present us with a sufficient order from which to consider his allegation of trial counsel’s ineffectiveness. Thus, based upon our holding in Dodson, we affirm as to this point.

For his final point for reversal, Appellant argues that the trial court erred in excluding Terri Chavis, mother of the child victim, from the courtroom in violation of A.R.E. Rule 616. Rule 616 provides in pertinent part:

[I]n the event that the victim of a crime is a minor child under eighteen (18) years of age, that minor victim’s parents, guardian, custodian or other person with custody of the alleged minor victim shall have the right to be present during any hearing, deposition, or trial of the offense.

We find no merit to this argument due to the fact that Appellant lacks standing to assert the rights of the victim’s mother, and furthermore, even if he had standing, he has failed to demonstrate how the witness’s exclusion from the courtroom prejudiced him in any way. Williams v. State, 320 Ark. 67, 894 S.W.2d 923 (1995).

Affirmed.


text:
    Don CROSS v. ARKANSAS LIVESTOCK and POULTRY COMMISSION; and Jack Gibson, Individually and as Head of the Arkansas Livestock and Poultry Commission
    96-304
    943 S.W.2d 230
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997
    [Petition for rehearing denied June 2, 1997.]

      Diana M. Maulding, for appellant.

      Winston Bryant, Att’y Gen., by; Arnold M. Jochums, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Don Cross appeals the order of the Pulaski County Circuit Court granting summary judgment to Appellees Arkansas Livestock and Poultry Commission and Jack Gibson, Executive Director of the Commission, and dismissing Appellant’s due process claim arising out of his discharge from the Commission and his claim for tortious interference against Gibson. We affirm.

Facts and Procedural History

Appellant was discharged from the Commission by Appellee Gibson on May 24, 1994, after having worked for the state agency for approximately nine years. Appellant filed a complaint against the Commission and Gibson, individually and as Executive Director of the Commission, in the circuit court on November 8, 1994. The complaint alleged that Appellant had a property interest in his continued employment with the Commission and was entitled to notice and a hearing prior to his termination, pursuant to the Fourteenth Amendment to the United States Constitution, and that, additionally, Gibson had tortiously interfered with his contractual rights to continued employment with the Commission. Appellant sought relief from Appellees in the form of reinstatement of his employment, back pay, restitution of pension benefits, and damages for emotional distress. Appellant also sought punitive damages for his claim against Gibson.

Appellees moved to dismiss the complaint for lack of jurisdiction based on the doctrine of sovereign immunity, but the trial court denied the motion. Appellees then filed a motion for summary judgment and, after hearing argument from both sides, the trial court granted the motion and dismissed both claims with prejudice. Appellant appeals the decision of the trial court on both claims. Additionally, in the trial court, Appellant sought partial summary judgment against Appellees on the due process claim, but there is no indication in the abstract that the trial court ever ruled on Appellant’s motion. As it is the movant’s burden to obtain a ruling on his motion, we will not address this point of appeal. Southern Farm Bureau Cas. Ins. Co. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996).

Claim Against the State Commission

Before we address the merits of Appellant’s points of appeal, we must first address Appellees’ argument that the trial court lacked jurisdiction pursuant to Article 5, Section 20, of the Arkansas Constitution of 1874 to hear Appellant’s claim against the state agency.

Article 5, section 20, of the Arkansas Constitution provides that, “[t]he State of Arkansas shall never be made defendant in any of her courts.” This court has consistently interpreted this constitutional provision as a grant of sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions. See, e.g., Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990). The doctrine of sovereign immunity is rigid and, as such, the immunity may be waived only in limited circumstances. State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). Sovereign immunity is jurisdictional immunity from suit. Department of Human Servs. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). Simply put, where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction. Staton, 325 Ark. 341, 942 S.W.2d 804.

In Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771, this court discussed the nature of the State’s immunity from suit and this court’s historical interpretation of it:

The completeness of the intent of such immunity is best illustrated by the long and unequivocal line of cases expressly recognizing and protecting the immunity. As early as Pitcock v. State, 91 Ark. 527, 121 S.W. 742 (1913), this court held that the constitutional prohibition was not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Further, where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction.
Extending this immunity to its next logical step, we held that where a suit is brought against an agency of the state with relation to some matter in which the defendant represents the state in action and liability, and the state, though not a party of record, is the real party in interest so that judgment for plaintiff would operate to control the action of the state or to subject the state to liability, the action is, in effect, one against the state and prohibited by the constitutional bar. Page v. McKinley, 196 Ark. 331, 118 S.W.2d 235 (1938). See also, Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

Id. at 455, 784 SW.2d at 773-74. This court has recognized exceptions to the doctrine of sovereign immunity where an act of the legislature has created a specific waiver of immunity, State v. Tedder, 326 Ark. 495, 932 S.W.2d 755 (1996), and where the State is the moving party seeking specific relief. Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953). Obviously, where the State is the moving party, it is prohibited from raising sovereign immunity as a defense to any counterclaim or offset. Parker, 222 Ark. 811, 262 S.W.2d 891.

Appellant has chosen not to respond directly to Appellees’ argument concerning lack of jurisdiction, but he maintains that jurisdiction is implied from Ark. Code Ann. § 19-4-1614(a) (Repl. 1994), which provides in pertinent part:

In the event an employee of the State of Arkansas, or the authorized agent of the employee, files suit against the State of Arkansas in a court of competent jurisdiction for relief under the provisions of Title VII of the Federal Civil Rights Act of 1964, as amended, or the Federal Civil Rights Act of 1866, or the Federal Civil Rights Act of 1871, or the Fourteenth Amendment to the United States Constitution, and the court finds for the employee and in so finding awards wages or salaries for personal services rendered in addition to wages or salaries already paid or due, the additional wages or salaries shall be paid from the regular salary appropriation from which the employee is normally paid. [Emphasis added.]

Appellant construes this section to provide that the State of Arkansas may be sued in her own courts provided the basis of the suit is one grounded in the federal acts and constitutional provisions outlined in that section. Appellant insists that this provision amounts to an implied waiver of the State’s immunity by the legislature.

We construe that section, codified within the State Accounting and Budgetary Procedures, to provide nothing more than a means for the payment of such judgments against the State. We do not interpret that section as creating a waiver of the State’s immunity from suit in her own courts. Nor are we persuaded by Appellant’s argument that if section 19-4-1614(a) does not provide for an employee’s suit against the State in the courts of this State, then the provision becomes meaningless. Appellant may pursue such claims in federal court. We thus conclude the trial court lacked jurisdiction to hear this claim pursuant to the doctrine of sovereign immunity; hence, we affirm the ultimate dismissal of the claim with prejudice.

Claim against Jack Gibson

Concerning the claim against Appellee Jack Gibson, we must likewise initially determine whether the trial court lacked jurisdiction to hear Appellant’s complaint. Ark. Code Ann. § 19-10-305 (a) (Repl. 1994) provides:

Officers and employees of the State of Arkansas are immune from liability and from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.

Thus, with the exception of those persons covered by liability insurance, if any officers and employees of the State of Arkansas act without malice and within the scope of their employment, they are immune from an award of damages in litigation. Smith, 320 Ark. 253, 895 S.W.2d 550. We conclude that on the face of the complaint, in which Appellant alleged that Gibson intentionally deprived him of employment “without just cause and for personal motives and thus interfered with [his] employment” with the Commission, the trial court had jurisdiction to hear the claim against Gibson, both in his individual capacity and as Executive Director of the Commission.

In its order, the trial court found that because Appellant could not establish the existence of a contract for his employment with the Commission, it necessarily followed that he could not establish the required element that Gibson’s termination of his employment tortiously interfered with Appellant’s contractual relations with the Commission. Appellant argues on appeal that the trial court was in error in determining that the existence of a contract is a prerequisite to maintaining the tort claim. We agree.

In Mid-South Beverages, Inc. v. Forrest City Grocery Co., Inc., 300 Ark. 204, 778 S.W.2d 218 (1989), this court recognized that no contractual relationship had to exist between the parties in order to maintain an action for tortious interference. The elements of tortious interference which must be proved are: (1) the existence of a valid contractual relationship or a business expectancy; (2) knowledge of the relationship or expectancy on the part of the interfering party; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502 (1992). Clearly, the first element of the tort may be proved by demonstrating either a valid contractual relationship or a business expectancy.

Notwithstanding the fact that the trial court erroneously held that a contract must first exist in such an action, Appellant’s claim must ultimately fail because Gibson is not a third party who was in a position to interfere with Appellant’s continued employment with the Commission. Gibson, as Executive Director, and the Commission were one and the same in undertaking the act of terminating Appellant’s employment with the Commission. The Commission cannot act on its own; rather it may act only through its officers. In United Bilt Homes, this court stated that, “[t]he principle has long endured in the law that a third party who intentionally and with malice interferes with the contractual relations of another incurs liability for his action in tort.” Id. at 50-51, 832 S.W.2d at 503 (emphasis added). This court further observed that underlying the tort of interference is the premise that a person has a right to pursue valid contractual and business expectancies unmolested by the wrongful and malicious intermeddling of a third party. Id. It would hardly seem logical to hold that a party to an alleged contract or business expectancy had tortiously interfered with the other party’s rights by terminating the contract or business relationship. In such an instance, the more appropriate action would be one of breach of contract.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court granting summary judgment to Appellee Gibson. We will sustain the trial court’s decision if it is right, even though we may do so on a different basis. Viswanathan v. Mississippi County Community College Bd. of Trustees, 318 Ark. 810, 887 S.W.2d 531 (1994), cert. denied, 116 S. Ct. 550 (1995).

Affirmed.


author: Donald L. Corbin, Justice. John Harris Jones, Special Chief Justice,

text:
    George H. DUNKLIN Jr., Co-Executor of the Estate of Hattie Boone Black, Deceased v. Louis L. RAMSAY Jr., Lester Asher McKinley, Warren A Jennings Jr., and Georgea Boone McKinley Greaves, as Co-Executors of the Estate of Hattie Boone Black, Deceased
    96-471
    944 S.W.2d 76
    Supreme Court of Arkansas
    Opinion delivered April 28, 1997

      Malcolm R. Smith and Friday, Eldredge & Clark, by: William A. Waddell, Jr., and J. Lee Brown, for appellant.

      Russell D. Berry and Eichenbaum, Scott, Miller, Liles & Heister, P.A., by: Leonard L. Scott, for appellees.
   Donald L. Corbin, Justice.

This appeal is from an order of the Arkansas County Probate Court, Southern District, holding that Appellant George H. Dunklin Jr., co-executor, did not have standing to challenge the petition for partial distribution of the estate of Hattie Boone Black, filed by the majority of the co-executors of the decedent’s estate. This court has jurisdiction to hear the appeal on the basis that it presents an issue of first impression requiring us to interpret an act of the General Assembly. Ark. Sup. Ct. R. 1-2(a)(17)(i) and (vi) (as amended by per curiam order July 15, 1996). We find no error and affirm the judgment of the probate court.

The pertinent facts of this case are not in dispute. Miss Hattie Boone Black died on February 5, 1993, and left as her last will and testament an instrument dated July 22, 1988, which nominated and appointed Appellant and all four Appellees, Louis L. Ramsay Jr., Lester Asher McKinley, Warren A. Jennings Jr., and Georgea Boone McKinley Greaves, as executors of the estate. The will also listed the surviving heirs and devisees of the decedent as Georgea Oliver McKinley and Elisabeth Black Dunklin, both sisters of the decedent, and the Hattie Boone Black Testamentary Trust. All five of the executors named in the will were additionally named as trustees of the foregoing testamentary trust, with three of the five, namely Appellant and Lester Asher McKinley, both nephews of the decedent, and Georgea Boone McKinley Greaves, niece of the decedent, being beneficiaries of the trust. The will provided that the powers granted to the trustees were to be exercised by a majority of the trustees entitled to vote with respect to the particular issue involved. Additionally, subsection (h) of Article III of the will included an in terrorem clause, which provided that any named beneficiary who contested or disputed the probate of the will would forfeit his or her interest in the estate.

On February 8, 1993, the executors filed a petition for probate of the will, which was granted that same date. On November 30, 1994, Appellees filed a petition for partial distribution of the estate. Appellant responded to the petition with an objection to the Appellees’ interpretation of Article II of the decedent’s will, which provided in pertinent part:

I give and bequeath all of my personal property, whether tangible or intangible (with the sole exception of all common stock in Black, Inc., and in all other corporations, owned by me at the time of my death), to my sister, Georgea Oliver McKinley.

In their petition for partial distribution, Appellees stated that a majority of the co-executors had agreed that this bequest should be construed to include all tangible and intangible personal property belonging to the decedent at the time of her death except for the decedent’s stock in Black, Inc., since that was the only corporation that was owned by the decedent at the time of her death. Appellant was the sole dissenter, asserting that the parenthetical clause included all common stock in Black, Inc., as well as any other corporations in which the decedent had an ownership interest. In other words, the dispute here centers around the question of whether the reference to the decedent’s ownership in the parenthetical clause applies to her ownership of any common stock or her ownership in whole of any corporation.

Appellees filed a motion for summary judgment requesting the probate court to dismiss Appellant’s response on the ground that he had no standing as a co-executor to contest or resist the construction agreed upon and sought by the majority of the executors. Appellees included in their motion a portion of the interrogatories posed to Appellant in which Appellant indicated that he was seeking an interpretation or construction of the will solely in his capacity as co-executor.

Appellant responded to the motion by stating that he had standing to request a construction of the will, as provided in Ark. Code Ann. § 28-26-101 (b) (1987), as an “interested person” due to his status as a fiduciary. Appellant cites as authority Ark. Code Ann. § 28-l-102(a)(ll) (1987), which defines “interested persons” as including “any heir, devisee, spouse, creditor, or any other having a property right, interest in, or claim against the estate being administered, and a fiduciary[.]”

In their reply, Appellees asserted that Appellant was not acting as an “interested person,” but rather as a co-executor. Appellees further argued that as a dissenting co-executor, Appellant had no power to act contrary to the will of the majority of the executors pursuant to Ark. Code Ann. § 28-48-104(a) (1987), which provides:

Unless otherwise provided by will, the powers given to two (2) personal representatives may by exercised only by their joint action, and powers given to more than two (2) personal representatives may be exercised only by the joint action of a majority of them. [Emphasis added.]

A hearing was held on the motion, and the probate court ruled that Appellant’s objection to the majority’s interpretation of the will was overruled on the basis that a dissenting co-executor has no standing to object to the majority’s actions under existing law. This appeal followed.

As provided in Ark. Code Ann. § 28-1-116 (1987), a right to review by this court lies from all probate court orders, with a few exceptions not applicable to this case. Section 28-1-116(a), (b); In re Guardianship of Vesa, 319 Ark. 574, 892 S.W.2d 491 (1995). We review probate matters de novo on appeal, but we will not reverse the findings of the probate judge unless they are clearly erroneous. Wells v. Estate of Welb, 325 Ark. 16, 922 S.W.2d 715 (1996); White v. Welsh, 323 Ark. 479, 915 S.W.2d 274 (1996). In an appeal from the grant of summary judgment, all of the facts and circumstances are viewed in a light most favorable to the party against whom judgment was entered. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990).

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 922 S.W.2d 718 (1996). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stucco Plus, Inc. v. Rose, 327 Ark. 314, 938 S.W.2d 556 (1997).

In support of his argument on appeal, Appellant asserts that: (1) He is a fiduciary, by way of his status as a co-executor, and as such he may petition the probate court to construe the will as provided in section 28-26-101 and (2) the probate judge’s ruling deprived him of any meaningful right to seek a construction of the will or to contest Appellees’ petition in that any attempt by him to contest the petition as a legatee or beneficiary would subject him to the repercussions of the in terrorem clause of the will.

Appellees contend that it is plainly evident from the language of section 28-48-104 that power may only be exercised by the joint action of a majority of an estate’s “personal representatives,” which is defined in section 28-l-102(a)(19) as executors or administrators. In support of their position, Appellees cite us to the case of In re Greenberg’s Estate, 146 N.E.2d 404 (Ill. App. 1957). The issue in that case was whether a single co-executor had the right to hire independent counsel in his capacity as co-executor contrary to the express opposition of a majority of the co-executors. The Illinois appeals court held that although the dissenting co-executor was free as an individual to seek independent counsel at his own expense, he did not have the power to obtain his own counsel at the expense of the estate. The court went on to hold:

Apart from the directive of the will providing for majority control, the salutary principle of law as enunciated in Dingman v. Boyle, 285 Ill. 144, 120 N.E. 487, Coleman v. Connolly, 242 Ill. 574, 90 N.E. 278, and Wilson v. Mason, 158 Ill. 304, 42 N.E. 134, is that co-executors and co-trustees must act as an entity in matters pertaining to the administration of the estate; any other rule would lead to confusion and chaos and create unnecessary charges against estate funds. ... If each co-executor were to be allowed independent counsel, it could well be that in the approach to every decision there would be as many opinions as co-executors.

Id. at 408. Although the present case does not involve an identical issue, the analysis provided by the Illinois appeals court against such individual power is clearly applicable to the question presented here.

Appellees contend further that, for purposes of seeking a construction of the decedent’s will, Appellant is not an “interested person” as contemplated by section 28-26-101, because his status as a fiduciary is wholly dependent upon his status as a co-executor. Appellees do not dispute that Appellant has the right to petition the probate court for a construction of the decedent’s will in his capacity of legatee or beneficiary, although he must do so at the risk of losing his interest in the proceeds of the will. Appellees contend, however, that if Appellant has been deprived of any meaningful right for construction of the will by the in terrorem clause, as he claims, it is the result of the decedent’s wishes, as opposed to the ruling by the probate court.

We conclude that the plain language in section 28-48-104 clearly mandates that in situations where there are more than two executors of a decedent’s estate, the powers given to them may be exercised only by the joint action of a majority of them, unless otherwise provided by the will. The language on the face of the statute is clear and, thus, there is no need for further interpretation of the statute. Additionally, we are not persuaded by Appellant’s argument that he may nonetheless petition for construction of the will in his capacity of fiduciary, as we conclude that his status as fiduciary is wholly dependent upon his status as co-executor.

As for Appellant’s contention that he is deprived of any meaningful opportunity to seek interpretation or construction of the will due to the harsh repercussions of the in terrorem clause, we agree with Appellees’ assertion that any such deprivation was arranged by the decedent herself, not the probate judge. This court has previously reviewed such in terrorem clauses and has consistently held that such clauses are valid. See, e.g., Jackson v. Braden, 290 Ark. 117, 717 S.W.2d 206 (1986); Lytle v. Zebold, 235 Ark. 17, 357 S.W.2d 20 (1962); Ellsworth v. Arkansas Nat’l Bank, 194 Ark. 1032, 109 S.W.2d 1258 (1937).

Based upon the foregoing analysis, we affirm the order of the probate court holding that Appellant, in his capacity as co-executor, lacked standing to oppose the action of the majority of the executors and the majority’s interpretation or construction of the decedent’s will.

Affirmed.

G. William Lavender, Richard Lusby, and Walter L. Skelton, Sp.JJ., join in this opinion.

John Harris Jones, Sp.C.J., and Richard C. Kalkbrenner, Sp.J., dissent.

Arnold, C.J., Newbern, Glaze, Brown, and Thornton, JJ., not participating.

John Harris Jones, Special Chief Justice,

dissenting. This appeal relates to construction of the Will of Hattie Boone Black, primarily Article II:

I give and bequeath all of my personal property, whether tangible or intangible (with the sole exception of all common stock in Black, Inc., and in all other corporations, owned by me at the time of my death), to my sister, Georgea Oliver McKinley.

Article III willed the residue to a Trust of which the life beneficiaries were decedent’s nieces, Mary McKinley Jennings, Georgea Boone McKinley Greaves, and Deborah Boone Dunklin Tipton, and her nephews, Lester Asher McKinley and George H. Dunklin, Jr., with remainder over to their descendants.

The parties to this action are the Appellant, George H. Dunklin, Jr., and the Appellees, Louis L. Ramsay, Jr., Lester Asher McKinley, Warren A. Jennings, Jr., and Georgea Boone McKinley Greaves, all of whom are Co-Executors of the Will as well as Co-Trustees of the Trust under the Will.

The issue on appeal is whether the Probate Court erred in ruling that Dunklin in his capacity as one of the five Co-Executors had no standing to ask the court to construe the Will.

Contentions of the parties and their supporting arguments, recurring in the appellate briefs, were set forth in the pleadings and memoranda, hereinafter summarized. Agreement on some points was reached during hearing on a Motion for Summary Judgment filed by Appellees and later granted by the Probate Court, dismissing Appellant’s Response to the Petition for Partial Distribution.

Appellees as Co-Executors petitioned the Probate Court for partial distribution reciting that a majority of the Co-Executors had agreed that the bequest under Article II should be construed to include all tangible and intangible property of decedent except for her stock in Black, Inc., further stating that the fifth Co-Executor, the Appellant, “has expressed some doubt regarding the proper construction of this provision.”

The Petition also asserted, “All persons interested in the decedent’s estate and the designated beneficiaries of the trust described in Article III have received notice of the filing of this Petition or have filed herein their written Waivers of Notice thereto [.]”

Attached was Exhibit A indicating the specific properties to be distributed and their valuations on the Estate Tax Return.

Appellant as one of the Co-Executors responded to the Petition asserting his belief the Will is clear on its face that all common stock owned by decedent in Black, Inc., and all other corporations should be distributed to the Trust rather than to Mrs. McKinley.

Appellees then filed Motion for Summary Judgment that the four executors “have construed the Will of decedent herein to bequeath to Georgea Oliver McKinley all of decedent’s tangible and intangible personal property except her stock in Black, Inc.,. . . . Respondent herein has no standing as co-executor to contest or resist the construction agreed upon or sought by the other four executors.” Under Ark. Code Ann. § 28-48-104 (1987) powers of the personal representatives “may be exercised only by the joint action of a majority [.] ” Prayer was for summary judgment dismissing Appellant’s Response.

In responding to the Motion, Appellant asserted that under Ark. Code Ann. § 28-26-101 (1987) construction of a will is made by the court, although petition for construction may be filed by executors as done in this case. Powers under Ark. Code Ann. § 28-69-304 (1987) and under the Will do not include construction of a will.

Appellees replied, “Petitioners do not claim that they have the power to construe the Will. . . . [T]hey do have the power, as co-executors, to file a petition asking the Court to construe it as the majority construes it. George H. Dunklin, Jr., ... as a dissenting co-executor, has no power to the contrary.” A supporting memorandum cited authority including “when administration of a trust is vested in co-trustees, they form but one collective trustee and must exercise their powers jointly. . . 76 A.L.R.2d Trusts § 348, p. 325. See also Restatement 2d, Trusts, § 194.” The memorandum continued:

All we do here is question the authority of George H. Dunklin, Jr. as a dissenting co-executor. He may not act contrary to the other co-executors in filing a petition, whether it be for construction of the Will, ... or whatever. . . . He has full rights individually and every other individual legatee under the Will has such rights, but he has no more rights as co-executor than any other stranger to the estate.

Appellant in a memorandum responded: The court under Ark. Code Ann. § 28-26-101 has authority to construe the will; a construction is necessary before the petition may be determined. Under § 28-26-101 the Court may construe a will on petition of an interested party, defined under § 28-l-102(a)(ll) to include a fiduciary. As a fiduciary Appellant has the right to disagree with the construction urged by Appellees and present his construction to the Court. Served with the petition he had standing to respond.

Hearing was held upon the Motion for Summary Judgment, at which the arguments of counsel reiterated the positions summarized above from the pleadings and memoranda with some additional agreement on issues. Mr. Berry made the principal statements on the contentions of Appellees while Mr. Waddell spoke for Appellant. During the proceedings the Trial Judge gave “an advisory opinion that on my first reading, and second, and third, I guess, it says that all common stock, to me, of any kind, goes to — is included in the exception. That’s what it seems to say to me.”

The Trial Judge later asked “[D]o Executors ever construe a Will?” Counsel for both sides agreed, Executors do not construe a Will.

THE COURT: . . . And there is ... a question as to whether one of the Executors can force a construction?
MR. BERRY: Uh-huh.
THE COURT: Well, there is no doubt that the legatee can, but the legatee would be caught in the catch twenty-two of the anti-contest clause. So, it is strictly whether an Executor can.
MR. BERRY: Yes, sir.
THE COURT: ... If we decide that question—
THE COURT: . . . [I]f a dissenting Executor can’t force it, then there is no question—
MR. BERRY: No, sir.
THE COURT: Because the majority can go ahead and do whatever they want to, regardless of what the Court feels about constructing of the Will—
THE COURT: —and that would be up to an heir who is aggrieved to come in and complain about it.
MR. BERRY: A beneficiary in some form or fashion.
MR. WADDELL: It’s — it’s your province to construe the Will. They have asked you to construe it in a certain way. . . .
THE COURT: . . . [T]he only question, is whether I should ever be involved in construing of this Will ... or just go ahead with whatever the Executors want to do.
MR. BERRY: We are saying . . . the personal representative is asking for distribution or whatever that involves construction of the Will that the personal representative, if it’s more than one; then the majority are the ones that control .... [I]n his capacity as a Co-executor, Mr. Dunklin has no authority as a dissenting Co-Executor.

After the discussion with the Court, Mr. Berry later added: In order for there to be a pending matter, Mr. Dunklin is going to have to come in in his individual capacity. If he as Co-Executor does not have authority to bring it before the Court, and the Court rules in our favor on the summary judgment motion, then he is going to have to decide if he is going to file that response in his individual capacity. If he files in his individual capacity and that kicks in the forfeiture clause, he’s out the window.

After the hearing, Appellees’ counsel filed a Supplemental Memorandum quoting the in terrorem clause of the Will which provides in part:

(h)' If any beneficiary . . . shall directly or indirectly . . . institute or become a party to any proceeding, suit or action for the purposes of. . . changing the effect of his will, wholly or in part. . . such contestant shall thereupon forfeit. . . any right, title or interest in or to any portion of my estate [.]

Thereafter, the Probate Court entered its Order on the basis that a dissenting Co-Executor has no standing to object to the majority’s action.

Construction of the Will is not now before this court. The Probate Court has made no final ruling as to the decedent’s intent as expressed in Article II. However, my view of the merits of the appeal may be affected by my agreement with the Trial Judge’s “advisory opinion” that the language of Article II of the Will is not ambiguous but means that all of the common stock owned by decedent goes into the Trust.

If the “advisory opinion” is correct, the construction by Appellees would divert assets from the Trust to Mrs. McKinley. It is Appellant’s duty as a Co-Executor to exercise due care to prevent his Co-Executors from diverting assets of the Trust.

As stated in Appellees’ brief, “The very essence of probate is to see that the decedent’s intentions as expressed in the will are carried out.”

When its jurisdiction is invoked, the Probate Court on its own motion may compel the co-trustees to perform their duties under the Trust. Restatement (Second) of Trusts § 200 cmt. h; 76 Am. Jur. 2d Trusts § 329 (1992).

Contrary to Appellees’ contention and as Appellant urges, our Probate Code provides for the Probate Court’s construction of a will:

on the petition of the personal representative or of any other person interested in the will, or if a construction of the will is necessary to the determination of an issue properly before the court, the court may construe the will in connection with the determination of the issue.

Section 28-26-101 (b) (emphasis added).

Appellees’ Petition necessitated a construction of the Will which the Probate Court could not delegate or resign to a majority of the Co-Executors.

The powers given to the Co-Executors under the Will do not include construction of the Will contrary to its plain language nor where the construction may be in doubt. Neither a majority nor all of the executors may rewrite a portion of the Will.

Among the authorities cited by Appellees is Restatement (Second) of Trusts § 194 (1959) which gives a cross-reference: “As to the duties and liabilities of trustees with respect to co-trustees, see §§ 184, 224.”

If there are several trustees, each trustee is under a duty to the beneficiary to participate in the administration of the trust and to use reasonable care to prevent a co-trustee from committing a breach of trust or to compel a co-trustee to redress a breach of trust.

Restatement (Second) of Trusts § 184 (1959).

The term, “breach of trust” has such derogatory connotations that the Restatement’s definition should be consulted. Section 201 defines “breach of trust” as a “violation by the trustee of any duty which as trustee he owes to the beneficiary.” We are not privy to the amount of the value of the stock involved, only as Mr. Waddell observed at the hearing, without dissent, “[I]t’s such a big dollar amount. . . . that’s why everybody fights this.” To divert from the Trust assets of significant value is clearly in violation of the duty which the Co-Executors owe to the lifetime beneficiaries as well as to the remaindermen, if the Will is construed in accordance with the Trial Judge’s “advisory opinion.”

Section 224 of the Restatement declares, in part:

(2) A trustee is liable to the beneficiary, if he (d) by his failure to exercise reasonable care in the administration of the trust has enabled his co-trustee to commit a breach of trust[.]

Again assuming the correctness of the Trial Judge’s reading of the Will, the Petition for Partial Distribution, if granted, would deliver to Mrs. McKinley stock which the Will bequeathed to the Trust. Restatement (Second) of Trusts § 226 (1959) states:

If by the terms of the trust it is the duty of the trustee to pay or convey the trust property or any part thereof to a beneficiary, he is liable if he pays or conveys to a person who is neither the beneficiary nor one to whom the beneficiary or the court has authorized him to make such payment or conveyance.

Comment b to the Section adds:

Mistake of law or fact. The trustee is liable although he makes the payment or conveyance under a reasonable mistake of law or of fact. If he is in doubt as to the proper person to whom a payment or conveyance should be made, he can apply to the court for instructions and will be protected by the order of the court against claims of all persons who were made parties to the proceeding.
The trustee is liable although he reasonably believes that the person to whom he pays or conveys is the beneficiary or that the payment or conveyance is authorized or directed by the beneficiary or by the terms of the trust.

Comment e to Restatement § 200 reads:

e. Co-trustee. If there are several trustees, one or more of them can maintain a suit against another to compel him to perform his duties under the trust, or to enjoin him from committing a breach of trust ....

American Jurisprudence is in full accord with the Restatement:

A trustee is under a duty to exercise due care, diligence, and skill with respect to watching cotrustees and guarding the trust estate against their defaults and breaches of trust, and if a trustee fails in this duty the trustee is hable for all ensuing losses to the trust estate. ... A trustee fails to perform the required duty in this respect where he or she hears of any fact tending to call his or her attention to the mismanagement or misapplication of trust funds by the cotrustee and fails to take any steps to safeguard the trust estate.

76 Am. Jur. 2d Trusts § 395 (1992) (footnotes omitted).

Appellees further argue that the in terrorem clause in the Will limits Appellant’s right individually to seek a construction of the Will. Such a clause works both ways. The issue of whether the actions of Appellees McKinley, Jennings and Greaves as Co-Executors in their Petition for Partial Distribution instituted a proceeding for the purpose of changing the effect of the Will, wholly or in part, worked a forfeiture of their rights as beneficiaries is not now in issue. It is clear that the actions of Appellant in this proceeding have not jeopardized h'is rights under the Will.

Appellees’ basic position was that Appellant is not an “interested person” entitled to be heard on construction of the Will; although “interested persons” as defined in the Probate Code, Ark. Code Ann. § 28-l-102(a)(ll) (1987), includes a fiduciary. As a Co-Executor, Appellees contend, Appellant has no power to act contrary to the will of the majority of the Executors, citing Ark. Code Ann. § 28-48-104(a) which provides, “powers given to more than two (2) personal representatives may be exercised only by the joint action of a majority of them.”

The fallacy of this argument is that construction of a will is not a power of the executors, and counsel for Appellees so acknowledged in their Reply and at the hearing on summary judgment, quoted above. The Will granted the Executors all of the powers vested in executors as oudined in Act 153 of the 1961 Acts, (Ark. Code Ann. § 28-69-304), which does not include will construction among its numerous specific powers. Construction of disputed terms of a will falls within the jurisdiction of the courts, not a majority vote of the executors, nor may a majority vote of the executors preclude one of their number from asking the Court to assume such jurisdiction.

Appellant’s actions herein have been to preserve assets of the Trust and to obtain court instructions for a proper construction of the Will; his costs including reasonable attorneys’ fees should be paid from the Trust estate. Wineland v. The Security Bank & Trust, 238 Ark. 625, 383 S.W.2d 669 (1964); Restatement (Second) of Trusts § 259 (1959).

My conclusion is that the trial court erred in dismissing Appellant’s Response and the case should be reversed and remanded with directions to reinstate the Response and to proceed with the Petition for Partial Distribution in a manner consistent with this opinion.

I respectfully dissent.

Richard C. Kalkbrenner, Sp.J., joins in this dissent.

       The decedent’s will in that case contained a directive that provided for majority control by the co-executors.