author: Tom Glaze, Justice. Steele Hays, Justice,

text:
    FARMERS BANK of Greenwood v. Steve PERRY, et al.
    89-303
    787 S.W.2d 645
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Walters Law Firm, P.A., by: James B. Pierce, for appellant.

      Robert S. Blatt and Mark E. Ford, for appellees.
   Tom Glaze, Justice.

This case comes to us on appeal from a judgment against Farmers Bank, the primary issue on appeal being the admissibility in evidence of an exculpatory clause in the Bank’s rental agreement for a safety deposit box.

In June 1979, Wanda, Steve T. and Steve L. Perry, appellees, went to the Farmers Bank of Greenwood, appellant, where they had accounts, to obtain a safety deposit box. Appellees were advised the Bank had no boxes available in Greenwood, but some were available at its branch office in Hartford. Appellees were able to secure a box at the Hartford Branch. The boxes were available only to customers of the Bank and no rent was charged. The Bank obtained the signature of Wanda. Perry on the following signature card:

On the night of December 22, 1983, the Hartford Branch office was burglarized and 113 of the 120 deposit boxes were broken into. The contents of appellees’ box were lost, which included currency and coins. Appellant denied responsibility for the loss, and appellees brought this suit, claiming appellant negligently failed to take proper measures to protect the contents of appellees’ safety deposit box.

At trial, the court refused to allow the introduction of the signature card in evidence on the ground that appellant could not contractually eliminate its tort liability. The jury returned a verdict for the appellees in the amount of $20,000, and Farmers Bank has appealed from the judgment entered on the verdict.

As its primary point on appeal, the Bank challenges the trial court’s ruling in excluding the signature card from the jury and asks us to reverse on that basis. Arkansas law, however, clearly supports the trial court’s decision. In fact, this court has never upheld an agreement purporting to release a party from liability for his own negligence before it occurred. See Williams v. U.S., 660 F. Supp. 699 (E.D. Ark. 1987). The rationale behind the numerous decision invalidating so-called releases given before liability arises is based upon the strong public policy of encouraging the exercise of care. Id. When construing such release contracts, this court has said that it is not impossible to

avoid liability for negligence through contract; however, to avoid such liability, the contract must at least clearly set out what negligent liability is to be avoided. Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972). Finally, contracts which exempt a party from liability for negligence are not favored by the law, and they are strictly construed against the party relying on them.

Here, the appellant Bank prepared the signature card, containing exculpatory language, which says, “The undersigned customer holds the Farmers Bank harmless for loss of currency or coin left in the box.” Such language does not expressly exempt the Bank from liability for its own negligence. If it had intended to exempt itself from liability for negligence, the Bank could have more aptly done so in its card or written release. Cf. Gulf Compress Co. v. Harrington, 90 Ark. 256, 119 S.W. 249 (1909) (where written warehouse receipt provided the company was “not responsible for loss by fire . . . ,” and this court held the release did not exempt the company for its negligence, causing fire damage to cotton plaintiff had stored with the company).

In the present case, the record reflects proof that the Bank had been negligent in failing to restore a burglar alarm system that had been inoperative for more than a week prior to, and including, the day burglars entered and stole monies and valuables from the Bank’s vault. The vault stored the lock box which contained appellees’ valuables that were also stolen. During the trial, the Bank attempted to introduce into evidence its signature card — signed by appellee Wanda Perry — with its disclaimer for loss of currency and coins. The trial judge excluded the card, holding the Bank could not “sweep away” its tort liability through the card’s introduction. We believe the trial judge correctly concluded the Bank’s disclaimer failed to contain language that removed the Bank’s liability for negligence. That being so, he was also correct in excluding the disclaimer from evidence because it was irrelevant.

Appellant Bank also objects to the court’s refusal to allow certain testimony from an expert. During the trial, the appellant called Ken Sanders, who was at the time working for another bank, but who has previously worked as a bank examiner. Appellant argues that Sanders testified to a number of matters, but the court, upon objection from appellees, refused to let him testify about security measures exercised by appellant in comparison to branch banks of similar sized communities within the state.

Neither the objection nor the discussion between the trial judge and the attorneys is abstracted with regard to this point. Further, Sanders’ proffered testimony, if any, does not appear in the abstract, as well. Therefore, without going to the record, we cannot determine whether the trial court erred. As we have stated numerous times, we will not go to the single record to determine whether reversible error has occurred. See Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984); First National Bank of Brinkley v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984).

Appellant also sought to introduce testimony of six customers reflecting that they had been told not to keep currency or coins in their safety deposit boxes. Specifically, the proffered testimony was to the effect that the witnesses had been instructed by Connie Ford, the Bank’s branch manager, that the boxes were not provided for the purpose of keeping valuables, but were only for storing important papers and documents. One witness offered testimony that it was “common knowledge of the community” that these boxes were only for important papers. Appellant offered testimony of these witnesses to undergird its efforts to introduce the Bank’s disclaimer signed by appellees and to show the applicable standard of care. Under the circumstances of the cases and in view of our earlier discussion and holding that the Bank’s disclaimer was inadmissible, we agree with the trial court’s ruling that these witnesses’ testimony was irrelevant. As we have said repeatedly, rulings on the relevancy of evidence are discretionary with the trial court, and we do not reverse absent an abuse of discretion. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985); A.R.E. Rule 104.

Appellant also contends the trial court erred in refusing to instruct the jury on the proper duty of care. One instruction classified the Bank as a gratuitous bailee, there being proof that the boxes were provided without charge. But the signature card expressly states that the box is given in consideration of checking or savings accounts held by the bailor and only patrons with accounts at the Bank were given boxes. A bailment for the mutual benefit of the parties is not a gratuitous bailment. See Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988); Warren v. Geater, 206 Ark. 518, 176 S.W.2d 242 (1943).

In addition, appellant wanted an instruction defining negligence in comparison to the standards of similar banks. It was not error to refuse an instruction on this point, as there was no evidence of other standards.

In its next point for reversal, appellant argues the trial court erred when it allowed appellees to impeach a witness with an inadmissible prior inconsistent statement. Appellees had called the branch manager, Connie Ford, who testified that the burglar alarm had been inoperative “for a few days.” The appellees sought to impeach this testimony with a prior inconsistent statement. Ms. Ford had talked to an FBI agent after the burglary and told him that the alarm had been out for a much longer time than a few days prior to the burglary. Appellee read the statement taken by the FBI agent and asked.Ms. Ford if that is what she had told him. The appellee never asked that the statement be admitted into evidence and only read it verbatim, at the suggestion of the court, when the witness could not remember the contents of the statement she had made to the agent.

Appellant’s objection below is not entirely clear, but we interpret the objection as being: 1) appellees had refused to give the statement to appellant earlier when requested and 2) had refused to call the FBI agent as a witness. On appeal, appellant argues that it was 1) hearsay, 2) unauthenticated, and 3) appellant was entitled to see the statement before it was offered into evidence.

The appellees could properly examine the witness about a prior inconsistent statement for impeachment purposes under A.R.E. Rule 613. That rule also provides that the statement or its contents need not be disclosed at that time, but on request shall be shown to opposing counsel. This answers the only objection that was made both below and on appeal. We note that there was never any request by appellee that this be used as substantive evidence under A.R.E. Rule 801(d)(1), nor could it have been so treated in this case. The statement of the agent was hearsay, the statement of Ms. Ford was not. Nevertheless, her statement could have been admissible under A.R.E. Rule 613 for impeachment purposes. See Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Aside from the evidentiary rule arguments now made by the Bank, we note that none would have been prejudicial error even if one of them had merit, since the F.B.I. report, containing Ms. Ford’s statement, was allowed to be introduced without objection.

Finally, the appellant contends certain errors arose in the selection and voir dire of the jury. Again, we find no merit in appellant’s contentions. First, the appellant argues that because the trial court failed to ask preliminary questions of the prospective jurors there was no showing that the veniremen met the requirements of a juror as set out in Ark. Code Ann. § 16-31-101 (1987), such as being a registered voter and a citizen of the United States. Further, the appellant contends that when faced with only having nineteen prospective jurors, the trial court erred in continuing the trial for a short time to allow the sheriff to try and contact jury members of other panels. We have held that under statute as well as practice in this state, it is too late, after the rendition of a verdict, to raise the ineligibility of a juror, unless it can be shown by the complaining party that diligence was used to ascertain his disqualifications and prevent his selection as a juror. See Ark. State Highway Comm. v. Kennedy, 233 Ark. 844, 349 S.W.2d 133 (1961); Missouri Pacific R.R. Co. v. Bushey, 180 Ark. 19, 20 S.W.2d 614 (1929). Since below, the appellant accepted the jury as “good for the defense” and raised no objection to the method of selection until its motion for a new trial, the appellant has waived his right to question the jury panel.

Next, the appellant alleges that its motion for a new trial should be granted because, during voir dire, one of the jurors failed to reveal that her in-laws were related to the appellees by marriage. See Ark. Code Ann. § 16-31-107 (1987). Pursuant to Ark. Code Ann. § 16-31402(b)(1) (1987), except by the consent of all parties, no person shall serve as a petit juror in any case who is related to any party or attorney in the cause within the fourth degree of consanguinity or affinity.

We have defined affinity as the tie which arises from marriage between the husband and blood relations of the wife and between the wife and the blood relations of the husband. Mitchell v. Goodall, 297 Ark. 332, 761 S.W.2d 919 (1988). Based on this definition, we have held that there can be no affinity between the blood relations of the husband and the blood relations of the wife. Id. Clearly, here the juror would not be disqualified to serve on the jury under § 16-31-107 (1987). In addition, we note that the juror stated that there were no factors that would prevent her from rendering a fair impartial decision based on the law and evidence in this case. We also mention that this same juror revealed in voir dire that her father-in-law was one of the witnesses who was expected to testify in behalf of the appellant. Thus, the trial court did not abuse its discretion in denying the appellant’s motion for a new trial.

Holt, C.J., and Hays and Turner, JJ., dissent.

Steele Hays, Justice,

dissenting. Notwithstanding the fact that the appellees expressly agreed “to hold Farmers Bank harmless for loss of currency or coins” left in the safety deposit box, the trial court refused to permit the introduction of that provision in the trial of this case. Thus that evidence was excluded from the jury. The majority opinion asserts that Arkansas law “clearly supports the trial court’s decision.” I respectfully disagree.

The majority relies entirely on two decisions of this court [Middleton & Sons v. Frozen Food Lockers, 251 Ark. 745, 474 S.W.2d 895 (1972) and Gulf Compress Company v. Harrington, 90 Ark. 256, 119 S.W. 249 (1909)] and one decision of the United States District Court for the Eastern District of Arkansas, Williams v. United States, 660 F. Supp. 699 (1987). However, none of those decisions is on the point we are being asked to decide. Those cases recite the general principle that exculpatory clauses are not favored in the law and are strictly construed because they tend to induce a want of care and allow a party to avoid liability of a common law duty. 57A Am. Jur. 2d Negligence § 49 (1989).

But exculpatory clauses are not invalid per se. The law is aptly summarized in 17 C.J.S. Contracts § 262 (1963):

It is generally held by many jurisdictions that one may contract for such exemption, except where prohibited by statute or some overriding consideration, of public policy, particularly when the obligee is under no disadvantage by reason of confidential relationship, disability, inexperience, or necessities of the situation. As otherwise expressed, in cases where the public interest of some statutory prohibition are not involved, it is permissible for a party to contract to absolve himself from liability for future negligence.

Yet the majority opinion offers no statutory prohibition against this type of exculpatory clause nor makes any attempt to analyze whether public policy overrides a provision the parties themselves found agreeable. Certainly none of the three cases cited provides that authority.

Williams v. United States, supra, is a suit under the federal tort claims act. Admissibility of the exculpatory clause was not an issue. The trial judge, sitting as a jury as required under the act, considered the provision and held that it was not sufficiently explicit to defeat liability for the death of a child caused by the negligence of agents of the United States.

Nor do the Harrington and Middleton cases, supra, afford a stronger base for the majority position. If anything, they give support to the argument that the jury is entitled to consider such provisions under appropriate instructions of the law. In Harrington, Gulf (a public warehouse) accepted Harrington’s thirty-four bales of cotton for storage, issuing receipts which recited “not responsible for loss by fire, acts of Providence, natural shrinkage, old damage, or failure to note concealed damage.” The cotton was destroyed by a fire caused by Gulfs negligence. Harrington sued and his recovery was affirmed on appeal. Again, admissibility of the exculpatory clause as evidence was not an issue, Gulf was seeking to uphold the cause as a matter of law. Moreover, the clause in that case was an attempt to exclude all liability for loss or damage attributable to a wide variety of causes, whereas the provision now before us purports only to exclude liability for loss to a particular type ofproperty — coins and currency. Thus, Gulf knew exactly the nature and value of the property it was accepting, whereas, the bank contends it was not privy to the contents of its depositors’ lock boxes and in that circumstance there is a greater need for latitude in contracting for reasonable limits on the type of property deposited.

The clause in Harrington was overbroad and failed to inform the bailor that the bailee was excluding liability not only for fire for which a bailee would not be accountable (such as arson or fire which spread from other premises), but was also excluding fire which was the result of the bailee’s own negligence. In that situation this court held, correctly, that if the bailee was seeking to avoid liability for its own negligence that must be clearly stated. No similar deficiency exists in this case. The language in Harrington was addressed entirely to potential causes of loss, whereas the language here does not advert to causes, but to a particular type of property, coins and currency, property with a high risk factor.

This case more nearly resembles the Middleton case. In Middleton, the bailor, stored 18,000 pounds of meat in Cato’s frozen food locker under an agreement, according to Cato, that the storage was “at Middleton’s risk.” The meat rotted and Middleton sued for the value of his meat and Cato counter-sued for damage to his plant and business. The jury declined to award damages to either and on Middleton’s appeal the case was reversed and remanded because of error by the trial court in instructing the jury that if it found the meat was stored “at Middleton’s risk” it should find for Cato.

The admissibility of the exclusionary clause was not disputed either before the trial court or the appellate court — its admissibility was a foregone conclusion — but the instruction given had the effect of upholding the clause as a matter of law by telling the jury that if it found the storage was “at Middleton’s risk”, it must find for Cato. That was error. The jury should have been instructed that under the law such provisions must be clear and explicit and strictly construed against Cato, the party seeking to rely on it. So instructed, the jury could then decide whether the clause met those requirements of the law.

Additionally, here the trial court rejected as irrelevant proffered testimony by Ms. Connie Ford, branch manager of the bank, that she told the bank’s customers that coins and currency were not to be kept in the box, only documents such as wills and deeds. While the appellees take issue with that assertion, it was of course for the jury to determine whether the bank knew it was being made the custodian of coins and currency and, if so, to determine the extent of its exposure to a loss arising from such custody. That consideration was sensibly analyzed in relation to exculpatory clauses by the concurring opinion in Real Good Food Stores, Inc. v. First National Bank of Oregon, 276 Or. 1057, 557 P.2d 654 (1976), involving liability for night deposits:

[U]sually, the bailor, after transferring possession of the goods to the bailee, is unaware of the disposition made of his property. For this reason the bailor is entitled to a presumption of negligence on the part of the bailee if the goods are not returned upon demand. And for the same reason, it may be unreasonable to allow a public bailee to disclaim responsibility for stored goods by an exculpatory claiise. But where the bailee has no knowledge of the value or contents of stored goods or even that goods have been entrusted, as here, a different rule is called for. [Emphasis in original.]

That reasoning, I submit, is soundly applicable to safety deposit boxes. Unlike bailments generally, a safety deposit box holder has access to the contents of the box which is at least equal to, and probably greater than, that of the bank. Neither can acquire the box itself without the other, but once acquired, the customer then has access to the contents in the privacy of a booth, or at least beyond the ken of the bank employees. What is removed from or added to the box is largely a matter which the customer alone determines.

In view of the foregoing it seems to me to be especially tenuous to conclude that this provision is against public policy, assuming that is the implicit holding of the majority. In Bene v. New York Life Insurance Co., 191 Ark. 714, 87 S.W.2d 979 (1935), we said:

As to whether a contract is against the public policy is a question of law for the court to determine from all the circumstances of each case. Persons should not be unnecessarily restricted in their freedom to make contracts, and a court will not hold that a contract is void, as being contrary to public policy, unless the contract binds one to do something which is injurious to the public interest.

I find nothing injurious to the public interest in permitting a jury to determine from all the evidence whether these parties are bound under the applicable law by the agreement they entered into.

Holt, C.J., and Turner, J., join this dissent.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Jimmy Ray LYONS v. FORREST CITY MACHINE WORKS, INC.
    89-318
    785 S.W.2d 220
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Ponder & Jarboe, by: Dick Jarboe, for appellant.

      David Hodges, for appellee.
   Tom Glaze, Justice.

This case involves the procedural question of whether the appellant properly made service of summons and complaint on the appellee, a domestic corporation. Appellant filed a products liability suit against appellee Forrest City Machine Works (F. C. Machine Works). The summons in question was addressed to F. C. Machine Works, and the return shows that F. C. Machine Works was served as the person being named as the defendant, on February 17, 1986. The trial court granted the appellee’s motion to dismiss on the basis that service in the case was not valid, and appellant challenges the trial court’s finding and dismissal in this appeal. Alternatively, appellant argues the trial court erred in failing to allow him to amend the return to show that a proper agent of the corporation was served; and in failing to grant a continuance at the hearing to allow the appellant to have the summons reissued and properly served. We affirm.

In arguing that service was valid, the appellant contends that Jimmy Rowe, as plant manager, was a proper person to serve on behalf of F. C. Machine Works and that the deputy sheriff left the summons with Rowe. Rule 4(d) (5) of the Arkansas Rules of Civil Procedure controls service of process on a domestic corporation. May v. Hankins Distributing Co., 301 Ark. 494, 785 S.W.2d 23 (1990). It provides as follows: “(S)ervice shall be made... by delivering a copy of the summons and complaint to an officer, partner other than a limited partner, managing or general agent, or any agent authorized by appointment or by law to receive summons.”

In considering appellant’s initial contention, we first must decide whether Rowe, as a plant manager, was a managing or general agent within the meaning of Rule 4(d)(5). For guidance, we turn to the practice commentary, C4-23, to Federal Rule 4(d)(3), which is identical to our Rule 4(d)(5). In this commentary the following general rule is given on who qualifies as a managing or general agent:

(T)he person served must have some measure of discretion in operating some phase of the defendant’s business or in the management of a given office. He must have at least such status that common sense would trust him to see that the summons gets promptly into the hands of the right corporate people. And he should be working for the defendant at the time of service.

While Rowe’s specific duties were not related, we do know that Rowe worked for the appellee for thirty-two years and was the plant manager at the time of the alleged service. Rowe, as plant manager, unquestionably had some measure of discretion in operating or managing appellee’s business. In addition, Rowe’s deposition reflects that he had more knowledge than anyone else about the company’s product, a grain buggy, produced at the appellee’s plant. In view of his title, experience and tenure, Rowe was a ranking person within appellee’s business, and was one who could be trusted to make sure that any summons would be promptly brought to the attention of the corporate people.

While we agree that the plant manager was a proper person to serve under Rule 4(d)(5), we cannot agree that Rowe actually was served. At the hearing on the appellee’s motion to dismiss, the only evidence before the trial court on the service of the process was the return and Rowe’s affidavit. In his affidavit, Rowe stated that the deputy sheriff came to the plant requesting to serve the summons on an officer. After the deputy was told that no officers were present, Rowe averred that the deputy sheriff left without serving anyone. Specifically, Rowe stated that he did not accept service and that he informed the deputy that he was not an officer and was not designated to accept service. As stated earlier, the return of service indicates that F. C. Machine Work was served as “the person named therein as defendant,” and nothing on the return reflects that Rowe was ever served or that anyone refused service.

We have stated that the return of service is prima facie evidence of what transpired, but it is not conclusive where testimony shows it to be false. Hirsch v. Perkins, 211 Ark. 388, 200 S.W.2d 796 (1947); see also Emerson v. Bridgforth & Kinney, 271 Ark. 289, 608 S.W.2d 47 (Ark. App. 1980). In other words, failure to make proof of service does not affect the validity of service, because proof of service may be made by means other than demonstration on the return of the serving official. Cox, Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1, 14 (1979).

At the hearing on the motion to dismiss, the appellant failed to produce any evidence to show that Rowe, or any other proper person under Rule 4(d)(5), was served on behalf of F. C. Machine Works. Therefore, we affirm the trial court’s finding that service of process was not proper.

In the alternative, the appellant argues that the trial court should have granted his request for an amendment to the return of service to show that Rowe was served. Under ARCP Rule 4(h), a trial court may allow any summons or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the summons is issued. Once again, the appellant failed to present any evidence to support an amendment to the return reflecting that Rowe had been served.

Finally, the appellant argues that the trial court should have granted a continuance to allow him the opportunity to have the summons reissued and properly served on David Hodges, appellee’s president, who was physically present at the time of the hearing. Hodges also was appellee’s attorney in this litigation.

Under ARCP Rule 4(i), if service of summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon motion or upon the court’s initiative. In Act 401 of 1989, the General Assembly attempted to give the trial court discretion under this rule by inserting the word “may” for “shall.” We have stated, however, that we give full effect to legislation in an area of procedure or practice we have not preempted by rule and will defer to the general assembly where a court rule conflicts with a public policy adopted by legislative act or as part of the constitution. See St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Here, by adopting Rule 4, we have preempted the area of service of process, thus we will not give effect to the substitution by Act 401 of the word “may” for “shall.” Therefore, under our Rule 4(i), the trial court’s dismissal of the case for failure to make service of summons was mandatory.

For the reasons stated above, we affirm.

Hays, J., concurs. Turner, J., dissents. Price, J., not participating.

       Another summons addressed to David A. Hodges, president of the corporation, was issued in this case. The summons was never served and it is not in dispute in this appeal.


author: Otis H. Turner, Justice.

text:
    The KANSAS CITY SOUTHERN RAILWAY COMPANY v. Jim C. PLEDGER, Commissioner of Revenues, Revenue Division, Department of Finance and Administration, State of Arkansas
    89-313
    785 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Rowland & Templeton, and Hardin, Jesson & Dawson, for appellant.

      John H. Theis, Robert L. Jones, William E. Keadle, Rickey L. Pruett, Cora L. Gentry, David B. Kaufman, Malcolm P. Bobo, and Beth Carson, by: Philip Raia, for appellee.
   Otis H. Turner, Justice.

This appeal involves the interpretation of certain provisions of the Arkansas income tax laws relating to corporate income taxes. The appellant, the Kansas City Southern Railway Company, deducted dividends received from its subsidiary, L&A Railroad, as nontaxable or exempt income for the 1982 taxing year. Kansas City Southern had a net loss in the 1982 tax year and carried this loss forward on its 1983 Arkansas income tax return. However, in computing the net operating loss to be carried forward, it did not add back to its gross income the nontaxable dividend income from its subsidiary. This resulted in an assessment by the Arkansas Department of Finance and Administration of additional taxes. A penalty for the appellant’s failure to file an estimate of its 1984 taxes was added, as well as a late filing penalty that was assessed on its 1983 tax return.

The appellant challenged both the state’s method for calculating the net operating loss and its assessment of penalties. The controversy was submitted to the chancellor for motion on summary judgment, and from a ruling favorable to the state of Arkansas, this appeal is taken, and we affirm.

For reversal, the appellant alleges three errors in the decision of the chancellor:

First, the chancellor’s interpretation of the words “all nontaxable income” as used in Ark. Code Ann. § 26-51-427(2) (1987 & Supp. 1989) is not reasonable, logical or in accordance with the ordinary usage of language;

Second, the chancellor should have interpreted Ark. Code Ann. § 26-51-404 (1987 & Supp. 1989) as amending Ark. Code Ann. § 26-51-427(2) when she considered whether or not exempted dividends received should be included in gross income in computing net operating loss;

Third, the appellant’s interpretation of the statutes was reasonable, and although it might be found that a tax was due and owing, no penalty should have attached and in no event should nonpayment have been attributed to willful neglect.

We must consider together the applicable statutory provisions in resolving the ultimate issue in this case — whether the appellant is required to sweep back into gross income the tax-exempt dividend income from its subsidiary in arriving at a net operating loss. Including exempt dividends in gross income, in this instance, will eliminate the net operating loss and the resulting benefits in carrying such loss forward to succeeding tax years.

Arkansas Code Annotated § 26-51-404(b)(9), enacted as a part of Act 570 of 1965, provides:

(b) The term “gross income” does not include the following items, which shall be exempt from taxation under this act:
(9) Dividends received by a corporation doing business within this state from a subsidiary if at least ninety-five percent (95%) of the subsidiary’s capital stock is owned by a corporation doing business within this state

Arkansas Code Annotated § 26-51-427(2)(A), enacted as a part of Act 147 of 1957, provides:

(2). . . [T]he term “net operating loss” is defined as the excess of allowable deductions over gross income for the taxable year, subject to the following adjustments:
(A) There shall be added to gross income all nontaxable income, not required to be reported as gross income, as provided by law, less any expenses properly and reasonably incurred in earning nontaxable income, which expenses would otherwise be nondeductible. . . .

We must determine whether or not the two quoted statutory provisions can be read together and applied without reaching a “strained, illogical, and unreasonable” result, as the appellant contends.

The appellant concedes that these statutes are not ambiguous; therefore, unless the statutes, both relating to the same subject, are in conflict and cannot be reconciled, they are to be read together, and each is to be given its intended effect. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). See also, Wells v. Heath, 274 Ark. 45, 622 S.W.2d 163 (1981); Cummings v. Washington County Election Commission, 291 Ark. 354, 724 S.W.2d 486 (1987). In the absence of ambiguity, the statute must be given effect as it reads without resorting to construction or interpretation. Ragland v. Meadowbrook Country Club, 300 Ark. 164, 777 S.W.2d 852 (1989); Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).

The appellant would draw a distinction between the terms “exempt income” and “non-taxable income” on the basis that income, once exempt, is exempt from taxation for all purposes. We decline to give such an interpretation to the term.

Here, the income of the subsidiary, L&A Railroad, was reported and taxed as an entity separate from its parent company, Kansas City Southern. This method of tax reporting was chosen by the appellant for its own reasons (which are neither known nor relevant here), although a consolidated return could have been filed. The income of the subsidiary was then paid to the parent in the form of dividends and was statutorily exempt from taxation as income to the parent. If, however, the parent sustained a net operating loss that could be carried over to subsequent tax years, then — and only then — for the restricted purpose of computing such net operating loss, all non-taxable income must be added back into income and considered.

The privilege of a net operating loss carry-forward as a deduction in subsequent tax years is a tax privilege existing through legislative grace. Skelton v. B.C. Land Co., Inc., 256 Ark. 961, 513 S.W.2d 919 (1974). The same authority certainly has the power to dictate how and to what extent such a privilege may then be exercised.

This appears to be a case of first impression in Arkansas. The appellant makes a compelling argument, citing authority from other jurisdictions. A case which appears to be directly on point is Midland Financial Corp. v. Wisconsin Dept. of Revenue, 116 Wis.2d 40, 341 N.W.2d 397 (1983). The statutes at issue in Midland, though similar to ours, were held by the Wisconsin court to be ambiguous. They are therefore distinguishable from the unambiguous Arkansas provisions. As the chancellor in the present case declared: “I am bound to apply an unambiguous statute as it is written.” There could not be a more succinct statement of the application of this well-established principle.

We also hold the chancellor’s imposition of statutory penalties to be correct. The appellant’s 1983 tax return was due on or before September 15,1984, following the granting of a six-month extension. The return was filed, however, on October 15, 1984.

The effective law at the time, Ark. Code Ann. § 26-18-208(1) (1987), provided that upon a taxpayer’s failure to file a required return, unless it was shown that the failure was due to reasonable cause and not to willful neglect, five percent of the amount of the tax for each month the return was delinquent would be added up to a maximum of 25 percent.

When the appellant filed its late return for the 1983 tax year, it admitted a tax liability of $44,931.00. There is no reasonable and sufficient explanation for the appellant’s delinquency. The ensuing penalty assessed by the appellee and upheld by the chancellor was mandated by the language of the statute and was therefore appropriate.

An additional penalty was assessed by the appellee for the appellant’s underestimated taxes for 1984. Arkansas Code Annotated § 26-51 -911 (a) (1987) provides that every taxpayer subject to income tax shall file a declaration of estimated tax for the income year if the taxpayer reasonably expects the tax liability to exceed $100.00. Arkansas Code Annotated § 26-51-912 (1987) then provides a penalty of one-half of one percent per month of the amount of the underestimate, in addition to the amount of the tax, unless the taxpayer estimates the tax as the same amount for the preceding income year. In that event the estimate is sufficient to avoid a penalty.

The appellant’s 1983 return admitted some $45,000 in taxes due. It could hardly be said that the appellant reasonably believed that its income tax liability for 1984 would not have exceeded the $100 statutory exemption for filing tax estimates.

We find no error and affirm the decree of the chancellor in all respects.

Price, J., not participating.


author: Claude W. Jenkins, Special Justice.

text:
    Gary Leonard SMITH v. STATE of Arkansas
    CR 89-172
    785 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      Greene Law Offices, by; Bill Luppen; and Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Claude W. Jenkins, Special Justice.

The appellant, Gary Smith, was convicted in the Pulaski County Circuit Court on the charge of driving while intoxicated, fourth offense. On appeal, he argues that (1) the trial court erred in denying his motion to suppress; (2) the trial court erred in allowing the introduction of the result of his breathalyzer test because the State failed to prove that the officer who gave the test was certified; and (3) the trial court erred in finding him guilty of driving while intoxicated, fourth offense, because the State failed to show that he was represented by counsel in an earlier proceeding in Louisiana wherein he was convicted of driving while intoxicated.

The evidence concerning Smith’s initial arrest was that the arresting officer observed Smith driving in the center lane of I-430 “quite slow.” Several other vehicles were in the area. As the officer drove past Smith, she noticed that he had his bright lights on. She slowed down, and he slowed down “even slower.” She then got behind Smith and turned on her blue lights.

Smith argues, in essence, that his actions prior to the time the arresting officer turned on her blue lights did not give the officer reasonable suspicion to stop him. We disagree. In United States v. Cortez, 449 U.S. 411 (1981), the Supreme Court found that under certain circumstances, a police officer may rely on his experience and make “inferences and deductions that might well elude an untrained person.” Police officers are required to obtain special training before certification and are also trained through experience to observe the actions of individuals in order to ascertain suspicious activities so that they may protect the public from unlawful activities.

The arresting officer testified that Smith’s slow driving in the center lane of 1-430, together with the bright lights when other traffic was present (for which Smith was issued a warning), and Smith’s reactions to her slowing down caused her to stop him.

We find that Smith’s actions at the location, time, and under the circumstances were sufficient to give the arresting officer a reasonable suspicion that a misdemeanor involving risk of forcible injury to persons or damage to property had been, or was about to be, committed, and therefore the officer was entitled to stop Smith, as the stop was reasonably necessary to determine the lawfulness of Smith’s conduct. See A.R.Cr.P. Rule 3.1.

Smith next contends that the trial court erred in allowing the introduction of the results of his breathalyzer test because the State failed, under the best evidence rule, to prove that the officer who gave the test was certified. We disagree.

Arkansas Code Ann. § 5-65-206(d)(l) (1987) does not require the machine operator’s testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results. This court adopts the rationale of the Arkansas Court of Appeals in its holding in the case of Johnsons. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986) that the provision only requires that the person who calibrates the machine, and the person who operates it, will be made available for cross-examination by the defense upon reasonable notice to the prosecutor.

However, there is ample evidence in the record of this case to uphold the verdict of the lower court aside from the results of the breathalyzer test.

Smith also alleges that the trial court erred in finding him guilty of driving while intoxicated, fourth offense. This contention is based upon his argument that the State failed to show that he was represented by counsel in connection with a previous conviction for driving while intoxicated in Louisiana.

On the contrary, we find that the record of the Louisiana conviction placed into evidence in this case showed that Smith had signed a document entitled “Waiver of Constitutional Rights and Plea of Guilty,” which stated in part that:

The judge has addressed me individually in open court of my right to trial, my privilege against self-incrimination, my right to be represented at all times in the proceeding, including appeal, by counsel of my choice or a court-appointed attorney at no cost to me if I lack finances to employ one. ... I understand my rights and that I desire to waive them by entering a plea of guilty.

The document that appears in the record of this case contains not only Smith’s signature but also the signature of someone identified as his attorney at the place indicated on the document for his attorney to sign “if represented.” Although the document is mainly a written guilty plea containing a waiver of constitutional rights, it was signed by both Smith and his attorney at the proper place on the document showing that Smith was represented by an attorney.

This record is sufficient to sustain the lower court in finding the defendant guilty of driving while intoxicated, fourth offense.

Affirmed.

Dudley and Price, JJ., not participating.


author: Per Curiam.

text:
    Boyd HULS v. STATE of Arkansas
    CR 89-206
    785 S.W.2d 467
    Supreme Court of Arkansas
    Opinion delivered March 19, 1990

      John Wesley Hall, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Boyd Huls was convicted of second degree murder and sentenced to twenty years imprisonment. The conviction was affirmed. Huls v. State, 27 Ark. App. 242, 770 S.W.2d 160 (1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to Criminal Procedure Rule 37.

The petitioner, who was represented at trial by Carmack Sullivan and Wayne Emmons, contends that his attorneys were ineffective. In reviewing a claim of ineffective assistance of counsel, we adhere to the standard set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered.

The petitioner was convicted of the murder of Pasha Williams, a young woman with whom he had had a personal relationship for some time. The petitioner claims that his attorneys were remiss in not preserving for appellate review his objection to testimony by Dr. Allen Windberry, a dentist, whose testimony he contends contained hearsay. At trial, Dr. Windberry testified that he had treated Williams for some missing and cracked teeth and that she told him that the injury was caused by the petitioner’s having thrown a lamp at her. (The injury to Williams’ teeth occurred approximately six months before her death.) Prior to trial, the petitioner’s counsel made an oral motion in limine asking for the exclusion of Dr. Windberry’s testimony about the “broken teeth and the history. . . .” The trial court denied the motion. When Windberry testified at trial, defense counsel did not object. On appeal, petitioner’s attorney argued that Windberry’s statements were inadmissible hearsay and the Arkansas Court of Appeals agreed; the court, however, declined to address the issue further because the motion in limine was so vague as to require counsel to renew the objection at trial in order to preserve it for appeal, which had not been done. The petitioner now argues that counsel’s failure to preserve the issue for appeal constituted ineffective assistance of counsel.

Although Windberry’s testimony contained hearsay, petitioner’s counsel were not ineffective for failing to preserve the issue. Ineffective assistance of counsel cannot be established merely by showing that some error was made by counsel. Moreover, it is not enough to show that a failure to object prevented an issue from being addressed on appeal since the standard for judging the effectiveness of counsel requires a showing of more than the failure to raise an issue; the petitioner must establish prejudice at trial under Strickland. Strickland requires a showing that, but for counsel’s errors, the jury would have had a reasonable doubt respecting guilt. In weighing the prejudice which accrued from an error by counsel, the totality of the evidence before the jury must be considered. Here, even if a timely objection at trial could have prevented the jury from hearing Dr. Windberry’s testimony, the evidence that Williams had accused petitioner of assaulting her six months before her death, when taken with the entire body of the evidence presented at trial, does not lead this court to conclude that there was a reasonable probability that the jury would have acquitted petitioner if Windberry had not testified.

The petitioner next contends that his attorneys were ineffective for failing to challenge the testimony of Officer Paul Martin on the ground that Martin was not a certified police officer. Martin, who searched the petitioner’s home pursuant to petitioner’s voluntary consent, found a hammer and a bloodstained blanket which were admitted into evidence by the state. There is no merit to petitioner’s argument for several reasons. First, petitioner has misunderstood the focus of our cases construing Ark. Code Ann. § 12-9-108 (1987), which provides that action taken by a police officer is invalid if the officer has not met the standards of the Arkansas Commission on Law Enforcement Standards and Training. In those cases where we reversed the convictions of defendants cited by a non-qualified officer, the only charging instrument was the non-qualified officer’s citation. Mitchell v. State, 298 Ark. 536, 769 S.W.2d 8 (1989); Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989). In a Rule 37 proceeding the burden is on the petitioner to demonstrate prejudice, and petitioner does not allege that a valid criminal information was not filed charging him with the offense, or even so much as allege, that Officer Martin was the arresting officer. Moreover, even if the evidence obtained by Officer Martin and his testimony were excluded, there was ample evidence to convict petitioner of second degree murder.

The petitioner also contends that he was denied effective assistance of counsel in that Carmack Sullivan was unprepared for trial, old and in poor health, and physically incapable of trying the case. He states that Wayne Emmons was called in to act as co-counsel only two weeks prior to trial and was required with little advance notice to conduct a majority of the questioning for the defense. Petitioner states further that Sullivan for all practical purposes turned the trial over to Emmons with the cross-examination of the state’s third witness and that Sullivan admitted that he could not hear the witnesses, that he physically faltered throughout the trial and was asleep during substantial parts of the state’s case.

While a reading of the five-volume transcript cannot show whether counsel physically faltered or fell asleep, it does reveal that Sullivan took a much more active part in the trial than petitioner indicates. Sullivan cross-examined several witnesses after the point where petitioner says he turned the case over to Emmons, made objections, took part in an in-camera discussion during petitioner’s testimony, took part in the discussion of jury instructions and argued in favor of bond after trial. Sullivan’s statement about not being able to hear witnesses was made in a pre-trial hearing in which he said that he and other lawyers had difficulty hearing because of the poorly arranged courtroom. The trial judge replied that the clerk was engaged in discussions with the quorum court to rearrange the courtroom to make it more convenient. While Sullivan may have been old and somewhat infirm, the burden is on petitioner to point to specific instances where counsel’s conduct resulted in actual, identifiable prejudice to him. Strickland v. Washington, supra; Brents v. State, 285 Ark. 199, 686 S.W.2d 395 (1985). Petitioner has not met that burden.

Petitioner also fails to point out any specific deficiency on Emmons’s part which may have arisen from his lack of preparation, except for contending that Sullivan was physically unable to put character witnesses on the stand at the close of the defense and that Emmons could not do so because he had left the trial for an appointment in Nashville, Tennessee. The failure to call character witnesses in itself, however, does not constitute ineffective assistance of counsel because it cannot be said that the absence of the witnesses created a reasonable probability that the outcome of the trial would have been different had the witnesses testified.

The petitioner states that his theory of defense was that Pasha Williams had been addicted to amphetamines over a long period of time and was suffering from a form of drug induced psychosis. He contended at trial that at some time during the night of her death Williams began to hallucinate, that she became violent and picked up a hammer and struggled with him until he finally decided to take her to the hospital. He then wrapped her in a blanket, put her in the back of his pickup truck and drove her to the hospital where she died shortly after arriving at the emergency room. The petitioner claims that although evidence was available almost none was presented to support his theory other than the testimony of the petitioner, his family, and a social worker with North Arkansas Human Services. He states that numerous witnesses were available to corroborate his story and that some were subpoenaed but none were called. Petitioner further alleges that although Dr. Jonathan Lipman was called to testify for the defense about amphetamine induced psychosis, “little or no” evidence was presented to show that the victim suffered from it. He ignores totally the fact that Dr. Lipman, an expert witness with substantial credentials, testified that he had reviewed Williams’s medical records and that she did indeed suffer from amphetamine induced psychosis. Other witnesses also testified about her bizarre behavior.

Petitioner claims that Dr. Jay Dicks, a forensic pathologist from the University of Missouri Hospital, was available to testify and prepared to review the autopsy report and give an expert opinion as to the actual cause of death. The petitioner does not state what the actual cause of death may have been, but he states that Dr. Dicks could have testified in support of petitioner’s theory that Williams’ death was caused in part by the negligence of the Fulton County Hospital staff in their use of a laryngoscope during the resuscitation effort. However, he does not state that Dr. Dicks would have so testified. Petitioner asserts that two “nurses,” identified only as Harris and Ferrell with no designation as to their professional training, could have testified that Dr. Benton, the doctor who treated the victim in the emergency room, did not establish an airway with the laryngoscope and that a nurse inserted the instrument correctly about a half-hour after the victim arrived. No more is said about what the nurses saw which would suggest that medical negligence caused the injuries to the victim’s throat. Petitioner fails to mention the fact that Dr. Benton and Dr. Malak, the medical examiner, were questioned by the defense at length on whether the laryngoscope could have caused the damage to the victim’s throat and both firmly maintained that it could not have done so. In light of their testimony, it cannot be concluded that the testimony of the nurses, the specific facts of whose testimony are not provided, could have changed the outcome of the trial.

In a related allegation, petitioner claims that the fact that two hours were spent trying to resuscitate the victim was never brought out. The record refutes the claim. Several direct references were made to the two-hour effort, and the jury was made well aware of the time spent in the emergency room.

In a footnote petitioner states that Dr. Malak’s testimony on the cause of any death has been demonstrated in recent months to be “suspect,” and thus the defense was particularly prejudiced by not rebutting his evidence. The assertion will not be considered. This court does not take notice of gratuitous assertions based on matters not in the record.

Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). When assessing an attorney’s decision not to call a particular witness, it must be taken into account that such a decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel’s ineffectiveness. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The petitioner has not shown that counsel’s decision not to call any particular witness amounted to more than a tactical decision.

Finally, petitioner claims that counsel were ineffective for failing to seek a change in venue because of prejudicial pretrial publicity. He has attached articles from newspapers in Fulton County which mention that he was originally charged with manufacturing a controlled substance, methamphetamine, as well as second degree murder. The petitioner argues that even though the drug charge was eventually dismissed almost two years after it was filed, the jury had been bombarded with news coverage of the methamphetamine charge, resulting in gross prejudice to him. He further maintains that a change of venue would have been warranted because the trial was postponed for one month after the jury was selected. The decision of whether to seek a change of venue is largely a matter of trial strategy and therefore not an issue to be debated under our post-conviction rule. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). To establish that the failure to seek a change in venue amounted to ineffective assistance of counsel, a petitioner must offer some basis on which to conclude that an impartial jury was not empaneled. Petitioner here does not specify any conduct of a juror from which it can be ascertained that the juror was unprepared to afford him an impartial hearing of the evidence. Jurors are presumed unbiased, and the burden of demonstrating actual bias is on the petitioner. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984); Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). The essentially conclusory allegations made by petitioner are not sufficient to overcome the presumption that the jurors were truthful when they stated that they could give the petitioner a fair trial. A defendant is not entitled to a jury totally ignorant of the facts of a case, Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987), and he is not entitled to a perfect trial, only a fair one. Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985).

Petition denied.

Price, J., not participating.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Carl R. FREEMAN v. CITY OF DeWITT
    CR 89-207
    787 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990
    [Rehearing denied April 23, 1990.]

      Malcolm R. Smith, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Carl Freeman, was convicted of driving while intoxicated, first offense, and sentenced to 24 hours in jail, which was reduced to time served, fined $593.00 plus costs of $51.25, had his driver’s license suspended for 90 days, and ordered to participate in an alcohol treatment or an education program.

Freeman appeals on two points of error: 1) that the trial court erred in failing to suppress the results of a breathalyzer test because it was not obtained in compliance with Ark. Code Ann. § 5-65-202 (1989), and 2) the trial court erred in not dismissing the charges or in not suppressing the testimony of the arresting officer due to his failure to be in compliance with the minimum employment standards set by the Commission on Law Enforcement Standards and Training.

We reverse and dismiss on the basis of finding merit in Freeman’s second point of error; consequently, we need not address his first argument.

On January 15, 1989, Freeman was stopped by Officer Stigaullde, of the DeWitt Police Department, for erratic driving. Subsequently, Stigaullde suspected that Freeman was intoxicated, due to the odor of alcohol and the results of field sobriety tests, and took him to the police station for a breathalyzer test. After he assessed the results of the breathalyzer test, Stigaullde arrested Freeman on the charge of driving while intoxicated.

Freeman alleges in his second point of error that the trial court erred in refusing to dismiss the chárges or in not suppressing the testimony of the arresting officer because of the officer’s failure to be in compliance with minimum standards for employment set by the Commission of Law Enforcement Standards and Training.

We recognized in Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), that:

Qualifications of candidates for police positions in Arkansas are set by regulations promulgated by the Arkansas Commission on Law Enforcement Standards and Training. By Ark. Code Ann. §§ 12-9-104 and 12-9-106 (1987), the general assembly has empowered the commission to establish minimum selection and training standards and general qualifications of law enforcement personnel.
Commission on Law Enforcement Standards and Training Regulations . . . provide:
§ 1002(2) (c). Every officer employed by a law enforcement unit shall be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record.
§ 1002(2) (i). Every officer employed by a law enforcement unit shall be examined by a licensed psychiatrist or a licensed psychologist, who, after examination, makes recommendations to the employing agency.
§ 1002(4). The minimum standards for employment or appointment must be completed before employment eligibility is established. Employment eligibility should depend upon the results and recommendations received by the investigator and examiners.

Arkansas Code Ann. § 12-9-108(a) (1987) also provides that “[a] person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training [Commission] shall not take any official action as a police officer, and any action taken shall be held as invalid.”

In Grable, supra, we held that strict compliance with the standards and qualifications of police officers is required by the emphatic language of section 12-9-108(a), and that substantial compliance with those requirements was insufficient.

We reaffirmed the Grable standard in Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990), and stated that meeting the minimum employment qualifications under the Standards Act is mandatory and requires strict compliance.

In this case, Stigaullde was originally employed by the DeWitt Police Department on November 21, 1979. Two weeks after his initial employment, Stigaullde underwent a psychological examination and a fingerprint check, and the results of both of these procedures were placed in Stigaullde’s personnel file.

On September 2,1982, Stigaullde resigned from the DeWitt Police Department in order to work for the police department of Hope, Arkansas. Thereafter, Stigaullde was rehired by the DeWitt Police Department in March 1987; no additional psychological testing or fingerprint checks were performed by the police department in regard to Stigaullde’s reemployment.

Freeman contends that Stigaullde’s initial lack of complianee with the Commission standards for employment or, in the alternative, the fact that the reports were not updated prior to his reemployment, preclude him from making a valid arrest.

Our decisions in Grable, supra, and Johnson, supra, mandate that this case be reversed on the basis of noncompliance with section 1002(2)(i) regarding the psychological report.

Although Stigaullde’s personnel file at the DeWitt Police Department did contain the results of both a psychological examination and fingerprint checks prior to his reemployment on March 1987, the psychological report did not contain the necessary recommendations required by section 1002(2) (i).

The report states in pertinent part as follows:

REASON FOR REFERRAL: Mr. Stigaullde was referred to this Agency for evaluation by the DeWitt Police Department where he is presently employed.
TEST ADMINISTERED: MINNESOTA MULTI-PHASIC PERSONALITY INVENTORY (MMPI)
TEST RESULTS AND INTERPRETATION: This appears to be a valid MMPI profile, although a significant need to appear in a favorable light and to give socially approved answers regarding self-control and moral values is suggested. A rather defensive attitude toward emotional tension and distress is likely. The test results also suggest a mildly independent and non-conforming individual, who is probably energetic and active. A history of minor difficulty with societal limits and expectations may occur.
DIAGNOSTIC IMPRESSION: The test results do not suggest the presence of a psychiatric disorder.
This evaluation should be considered as only one part of the overáll assessment for employment.

This report interprets the results of the test administered to Stigaullde but clearly does not contain any recommendations. Therefore, compliance with section 1002(2)(i) has not been met and, according to section 12-9-108(a), Stigaullde “shall not take any official action as a police officer, and any action taken shall be held as invalid.”

We also stated in Grable, supra (citing Robbins v. State, 219 Ark. 376, 242 S.W.2d 640 (1951)), that it is the duty of the state to give notice of the offense charged in the charges levied against the defendant. “Just as the defendant has no duty to establish any fact proving his innocence, Griffin v. State, 169 Ark. 342, 275 S.W. 665 (1925), he has no duty to prove the negative proposition that there are no charges against him other than the one before the court of which he complains.”

Apparently, the citation that Stigaullde issued to Freeman serves as the only basis for the offense, as the State has not shown any additional charges.

If the state is willing to stand on the charge of which the defendant complains, so be it, and the court can then determine its validity. If there is a valid charge against the defendant other than the one to the validity of which he objects, the state should be able to produce it and should have the duty to do so.

Grable, supra.

Finally, we find that the issue of whether Act 44 of November 8, 1989, which ab initio amended subsection (a) of section 12-9-108 to the effect that actions taken by law enforcement officers who were not in compliance with employment regulations would not be invalid merely because of that noncompliance, is an application of ex post facto law need not be addressed, as we will not consider arguments raised for the first time on appeal. Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988) (citing Hopper-Bond Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988)).

Reversed and dismissed.

Hays, J., concurs.

Price, J., not participating.

Steele Hays, Justice,

concurring. I concur in the result reached in this case because the psychological evaluation fails to substantially comply with Regulation 1002(2)(i). I have expressed my views on Grable v. State, 298 Ark. 489, 769 S. W.2d 9 (1989) and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), in a dissenting opinion to Johnson v. City of Kensett, 301 Ark. 592, 787 S.W.2d 651 (1990), a companion case also being decided today.


author: Jack Holt, Jr., Chief Justice.

text:
    Newton Donald JENKINS, Sr. v. STATE of Arkansas
    CR 89-151
    786 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990

      Bob Leslie, for appellant.

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

The sole issue in this appeal is whether the appellant, Newton Donald Jenkins, Sr., was denied his right to speedy trial. We hold that he was not and affirm.

On April 8,1988, Jenkins, along with two other defendants, was arrested and charged with five counts of theft by deception (counts one through five), one count of fraud (count six), and one count of making false statements to the Commissioner of the Arkansas Securities Department (count seven). On July 1,1988, he pleaded not guilty.

On September 6, 1988, Jenkins filed a motion for a twelve-day extention of time from September 7, 1988, until September 19, 1988, to file pretrial motions. The trial court granted this motion.

On September 19, 1988, Jenkins filed a motion to sever defendants, and the State responded that the motion was unwarranted. On September 27,1988, the case was passed for two days at Jenkins’ request.

On September 29,1988, an omnibus hearing was held, and the court denied Jenkins’ motion for severance of the defendants. However, with the agreement of parties, the court severed the counts: Counts one, five, six, and seven were to be tried separately; and counts two, three, and four were to be tried together. Trial was set on all counts, except six and seven, for the week beginning December 12, 1988.

On December 12, 1988, counts two, three, and four were tried as scheduled, and a mistrial was granted as to those counts. Counts one and five were not tried on December 15 and 16,1988, as originally scheduled.

On January 24,1989, an omnibus hearing was held concerning trial of counts six and seven. The court stated, “Give me a trial date.” The case coordinator asked, “How fast do you want to do it?” Appellant’s attorney replied, “May, if possible, Judge.” The prosecutor replied, “March, if possible.” The court stated, “When are we setting things?” The case coordinator responded, “March.” Defense counsel then stated that he needed more time. Thereafter, the court asked if the omnibus hearing could be held that day. Defense counsel responded that he needed to file some motions first. As a result, the court set the omnibus hearing for April 4 and trial for April 19, 1989.

On January 31, 1989, the State filed an amended information charging Jenkins with one count of theft by deception, one count of fraud, and one count of making false statements to the Commissioner of the Arkansas Securities Department. These counts were the same as counts one, six, and seven of the original information. The omnibus hearing was held on April 4,1989, as scheduled.

On April 13, 1989, Jenkins filed a motion to dismiss on the ground that his right to speedy trial had been denied since twelve months had expired since the date of his arrest. At the conclusion of a hearing, the court denied the motion, finding, in part, that defense counsel wanted to go to trial at a later date than scheduled and that “it was put off” by “continuance or acquiescence.”

On April 19,1989, Jenkins was tried on counts two and three and sentenced to five years imprisonment and a fine of $22,500. On June 1,1989, he pleaded nolo contendere to count one, with reservation of the right to appeal his conviction, along with his other convictions, on speedy trial grounds. If successful, he would be permitted to withdraw his plea and be discharged. He was sentenced to five years on count one, the sentence to run concurrently with the sentence on his other convictions.

For reversal, Jenkins contends that the trial court erred in denying his motion to dismiss the charges against him based upon the denial of his right to speedy trial. We hold that Jenkins was not denied his right to speedy trial on counts two and three in that he would have been speedily tried on these counts but for his request in January 1989 to go to trial in May 1989. Accordingly, we need not address whether any other periods of delay are excludable. As for Jenkins’ contention concerning count one, to which he pleaded nolo contendere, we do not reach the merits of his argument because we find that he is not authorized by our rules of criminal procedure to appeal from this plea.

Arkansas R. Crim. P. 28.1(c) provides:

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 for in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

The date Jenkins was arrested, April 8,1988, began the time period for speedy trial. Ark. R. Crim. P. 28.2(a). Trial was held on counts two and three on April 19, 1989, eleven days past the twelve-month time limit for speedy trial.

Once the accused has shown that the trial is to be held after the speedy trial period has expired, the State has the burden of showing the delay was legally justified. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988).

We find that the State has met its burden as it is readily apparent from the record that counts two and three would have been tried in March, well within the time for speedy trial, but for defense counsel’s request at the January 24, 1989, omnibus hearing, that the case be tried in May, after the time for speedy trial had expired. Moreover, he acquiesced in the court’s decision to hold the trial on April 19, 1989.

Where an accused is offered a speedy trial but requests that the case be tried at a later date, and that delaying act is memorialized by a record taken at the time it occurred, he cannot complain that his right to speedy trial was denied. See Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989). Sec also Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). This holding is based upon the rule that one cannot agree with a trial court’s ruling and then attack it on appeal. Key, supra.

We do not reach the merits of Jenkins’ contention concerning count one, to which he pleaded nolo contendere, because we hold that, under the circumstances, he cannot appeal from this plea.

Except as provided for in Ark. R. Crim. P. 24.3(b), there shall be no appeal from a plea of guilty or nolo contendere. Ark. R. Crim. P. 36.1. Under Rule 24.3(b), a defendant may enter a conditional plea of guilty or nolo contendere, reserving the right, on appeal from the judgment, to review of an adverse ruling on a motion to suppress evidence. Simply put, this Rule does not provide for a conditional plea of nolo contendere, with reservation of the right to review of an adverse speedy trial determination. See Pickett v. State, 301 Ark. 345, 783 S.W.2d 854 (1990); Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1989).

Granted, the court, the prosecutor, and the defense counsel all agreed that Jenkins could enter a conditional plea, reserving the right to appeal the trial court’s adverse speedy-trial ruling. Notwithstanding this agreement, we cannot reach the merits of Jenkins’ contention since our rules clearly do not provide for such an appeal.

Affirmed.

Price, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Donald JEFFERS v. STATE of Arkansas
    CR 89-216
    786 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990

      Sherman and James, for appellant.

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

In 1980, the appellant pleaded guilty to first degree murder and aggravated robbery. The murder occurred in the course of the aggravated robbery. He was sentenced for both offenses. The trial court later set aside the conviction for aggravated robbery, the underlying offense. See Ark. Code Ann. § 5-1-110(a)(1) (1987). Appellant now stands convicted only of first degree murder. In a petition for post-conviction relief under A.R.Cr.P. Rule 37, he contends that the trial court, in 1980, failed to establish a factual basis for his plea and failed to establish that his plea was voluntarily or intelligently made. The post-conviction petition was not filed until 1988. The trial court denied relief. We affirm.

Petitions claiming relief pursuant to A.R.Cr.P. Rule 37 must be filed within three (3) years of the date of entry of judgment, unless the ground for relief would render the judgment of conviction absolutely void. A.R.Cr.P. Rule 37.2(c). A ground sufficient to void a judgment of conviction must be one so basic that it renders the judgment a complete nullity, for example, a judgment obtained in a court lacking jurisdiction to try the accused, or a conviction obtained in violation of an accused’s rights against double jeopardy. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). A trial court’s failure to establish a factual basis for a guilty plea is not so basic as to render a judgment of conviction a complete nullity.

Affirmed.

Price, J., not participating.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Michael JOHNSON v. CITY OF KENSETT
    CR 89-187
    787 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered March 26, 1990
    [Rehearing denied April 23, 1990.]

      Hughes & Hughes, P.A., by: Teresa L. Hughes, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.

       Hays, J., would grant rehearing.

   David Newbern, Justice.

The issue in this appeal is whether the charge brought against the appellant, Michael Johnson, was invalid because of the failure of the officer who brought the charge to meet certain minimum qualifications of the Law Enforcement Standards Act. We hold that, because the personnel file of the officer contained no recommendation by a psychological examiner and no completed fingerprint check as required by law, the charge the officer brought against Johnson was invalid, therefore, the conviction is reversed and the case dismissed.

Johnson was convicted in municipal court of driving while intoxicated. The conviction was appealed to circuit court. At the circuit court de novo trial, Johnson moved to suppress the evidence resulting from his arrest and for dismissal on the basis of failure of compliance with the Law Enforcement Standards Act, Ark. Code Ann. §§ 12-9-101 through 12-9-404 (1987).

Section 12-9-108(a) provides:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission of Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

In its regulation 1002, entitled “Minimum Standards for Employment or Appointment,” the commission has provided:

(1) Verification of minimum employment standards must be contained in the permanent personnel file which is maintained by the employing department.
(2) Every officer employed by a law enforcement unit shall:
(c) Be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record. Procedure is prescribed in Specification S-2, Fingerprint Record Check.
(i) Be examined by a licensed psychiatrist or licensed psychologist, who, after examination, makes recommendations to the employing agency. (See specification S-7.)

Specification S-2, pertinent to the fingerprint requirement, provides:

PROCEDURES: 3. The original copies of all fingerprint record checks and results will be placed in the applicant’s permanent personnel file and will be available for examination at any reasonable time by representatives of the Commission. Record checks will be maintained regardless of the results of such inquiry.

Specification S-7, pertinent to the psychological examination, states:

REQUIREMENT: (1) All applicants will be examined to determine emotional stability.
PROCEDURES: (1) An actual interview and psychometric evaluation will be utilized.
(2) The result of the evaluation will be recorded. A report of the evaluation will be forwarded to the employing agency along with the Confirmation of Psychological Evaluation Form, F-2b. This form will be signed by the examiner designating the applicant as being Recommended or Not Recommended. . . .

The evidence as to whether Johnson was driving under the influence of alcohol at the time he was arrested and charged was stipulated, and it was ample to support a conviction. Other evidence taken at the trial revealed that, at the time he was hired, the personnel records of Officer Branch, who had arrested and charged Johnson by citation, contained no fingerprint report. Testimony of the Kensett police chief indicated that the fact that the fingerprint record was not in the file was not questioned until after this case arose. The chief testified he made some calls to try to locate the records on October 3,1988. The incident in question here occurred September 10,1988. The chief eventually discovered that the records had inadvertently been sent by the FBI to the White County Sheriffs Office rather than the Kensett Police Department which employed Branch.

A psychological examination report dated June 25, 1987, was introduced as an exhibit. No abstracted testimony indicates whether it was in Branch’s personnel file on September 10,1988. The report seemed to be an entirely favorable description of Officer Branch’s personality, and said “[h]e appears to have the capacity to function well as a police officer,” but it contained no direct recommendation, either way, on employment of Branch as a police officer.

Harold Webb, a standards specialist with the Arkansas Commission on Law Enforcement Standards testified that even though the form 2-B containing the psychological report and recommendation had not been forwarded to his agency for purposes of the certification process an officer might still be eligible to make arrests. He stated his opinion, however, that, “If he doesn’t have the paper (Form 2-B) showing he’s recommended on file at his agency and it doesn’t clearly show he was recommended for law enforcement employment, then his arrests would not be valid.”

As we pointed out in Grable v. State, 298 Ark. 498, 769 S.W.2d 9 (1989), we are not concerned with the legality of the arrest because an illegal arrest is not, standing alone, a basis for reversal of a conviction. The real controversy here, as in the Grable case, is whether Officer Branch had authority to charge Johnson with an offense. There is no evidence of any other charge having been made.

In the Grable case we held that there must be strict compliance with the standards for hiring law enforcement officers, and we took the general assembly at its word to the effect that failure of compliance required us to hold an official act by the officer invalid. The state argues here that in Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), which was decided the same day as the Grable case, we took back our statement and held that substantial compliance would be sufficient. We do not read the Mitchell case as being inconsistent with the Grable case. Both required strict compliance.

With respect to the failure of compliance regarding the fingerprint check, the state attempts to distinguish the Grable case by arguing that here the check had been completed but was just lost, whereas in the Grable case the check had only been initiated but not completed. It is argued that for the court to hold there was a lack of compliance in this case would “provide a whole new meaning to the concept of ‘form over substance.’ ”

The stated purpose in requiring completion of the fingerprint check prior to employment of a police officer is to ascertain whether he or she has a criminal record. Here it is clear that there was no compliance with that requirement and Officer Branch was hired “in the dark.” We take seriously the state’s “form over substance” argument, but we cannot understand how the failure in this instance could be regarded as an unimportant or “formal” one. The Kensett Police Department had no knowledge whether the fingerprint check had been completed or what it might have revealed. We cannot regard the requirement in this circumstance as being directory rather than mandatory; it goes to the heart of the purpose of the requirement. See N. Singer, Sutherland Statutory Construction, § 57.12 (4th ed. 1984).

The same is true of the psychological report. Again, the record as abstracted does not show that there was any such report in Officer Branch’s personnel file at the time he charged Johnson. Even if the report introduced as an exhibit had been in the file, however, it would have been insufficient. The point is well illustrated by our opinion in Freeman v. City of DeWitt, 301 Ark. 581, 787 S.W.2d 658 (1990), which we also hand down this date. In that case, there was a psychological report which anyone could read as being unfavorable to the officer in question. Yet it was argued that the existence of the report, despite its lack of a recommendation, favorable or unfavorable, was sufficient. We cannot say that the failure of the report to make a recommendation is an inconsequential lapse. Compliance with the simple requirement of a recommendation will prevent courts and other government agencies from having to make professional psychological judgments, for which we and they are so obviously unqualified, based on reports which might otherwise be inconclusive.

Finally, the state argues that, by Act 44 of 1989, the general assembly has made clear its intention that failure to comply with the law enforcement standards is not a basis for invalidating an officer’s acts. Johnson argues application of the Act in his case would violate the constitutional prohibition against ex post facto legislation. As stated in the Freeman case, we do not reach that issue because it was not raised in the trial court.

Reversed and dismissed.

Hays, J., dissenting.

Price, J., not participating.

Steele Hays, Justice,

dissenting. I believe the majority is further expanding a strict compliance interpretation of the Law Enforcement Standards Act [Ark. Code Ann. §§ 12-9-101 — 404 (1987)] when there are sound and persuasive reasons for taking a less rigid approach. I respectfully disagree.

In Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), the fingerprint search had not been completed at the time of the arrest and in both Grable and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), the psychological examinations had not even been performed. In contrast, here the fingerprint search had been completed without a blemish on Officer Branch’s record and the psychological examination was entirely favorable and the variance in the form of the psychological report was not in the least material. It is obvious that Officer Branch was recommended for employment.

The majority concludes that Branch was hired “in the dark,” but the record tells us nothing as to whether the City of Kensett hired Branch without knowing whether his fingerprint search was favorable. The state police fingerprint report was completed on July 9,1987, and the FBI report on July 27, some six weeks before the arrest, but both were incorrectly filed with the Office of the White County Sheriff at Searcy. Whether Kensett had knowledge one way or the other is not in the record. It is clear the appellant did not argue to the trial court that Branch was hired without knowledge that his prior record was clear, the only argument was that the fingerprint check was not in his file on September 10, 1987, the date of the arrest. Near the close of a hearing the trial court specifically asked counsel if it was the defendant’s position that the arresting officer was not qualified because the fingerprint report was not in his personnel file in Kensett and the answer was “yes.”

As to the psychological evaluation, the report consisted of a lengthy narrative (see appendix) concluding with the following:

Test Results'.
Results of psychological testing reveal him to be high in poise, self-assurance, maturity, responsibility, and achievement potential. He particularly may be expected to display the following behaviors from time to time: persistent, planful, forceful, enterprising, enthusiastic, persuasive, alert, thorough, industrious, honest, practical, tolerant, helpful, tactful, reliable, and efficient.
Summary and Conclusions:
In summary, Mr. Branch was seen for a psychological evaluation to fulfill requirements of minimum standards and to determine suitability to function as a law enforcement officer. He displays no atypical behavior upon interview and test results indicate that he is high in measures of poise, maturity, responsibility, and achievement potential. He appears to have the capacity to function well as a law enforcement officer. It would be to his advantage to further his education as he is able. [Emphasis supplied.]

That the examiner deemed Officer Branch psychologically well suited for employment cannot be seriously doubted and it is of little consequence that the report was not on form 2-B and omitted a specific recommendation.

In Mitchell and Grable we examined the language of Section 12-9-108(a), which provides that persons who do not meet the standards and qualifications shall not take any official action as a police officer, and “any action taken shall be held as invalid.” We took that wording to mean that strict compliance was required, that substantial compliance would not be consistent with the obvious intent of the General Assembly to improve the quality of law enforcement. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) at 493.

However, the Grable and Mitchell decisions were soon followed by Act 44, amending “ab initio” Ark. Code Ann. § 12-9-108(a) to read:

Actions taken by law enforcement officers who do not meet all the standards and qualifications set forth in this subchapter or made by the Arkansas Commission on Law Enforcement Standards Training shall not be held invalid merely because of the failure to meet the standards and qualifications.

The majority declines to consider the effect of Act 44 because it was not raised in the trial court. But that disregards the settled rule that we affirm the trial court if it reached the right result irrespective of the reason.

The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. State, ex rel. v. K.C. & M. Ry. & B. Co., 117 Ark. 606, 174 S.W. 248 (1914); Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908). I do not suggest that Act 44 is conclusive as to our earlier interpretation of § 12-9-108(a), but when a former statute is amended or a doubtful meaning clarified by subsequent legislation, the later expression may be considered in determining the legislative intent. 2AN. Singer, Sutherland Statutory Construction § 49.11 (1984). The legislative intent is to be determined by a consideration of all legislation — prior, contemporaneous and subsequent, bearing on the meaning of the subject legislation. Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973), and while an earlier interpretation of the legislative intent cannot be overriden by subsequent legislation, such expressions are entitled to “significant weight,” particularly when a precise intent of the enacting body is obscure. Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572 (1980).

From that standpoint, I believe the appropriate interpretation of the Law Enforcement Standards Act requires substantial, rather than strict, compliance. That being so, the trial court did not err in holding that the misplacement of a completed fingerprint search evidencing no criminal record, and a clearly favorable psychological evaluation, did not defeat substantial compliance with the act.

Even if this court chooses to adhere to a strict compliance approach, we have recognized that a rigid adherence is not required. Strict compliance is tantamount to a holding that the provisions of a statute are mandatory. See N. Singer, 2A Sutherland Statutory Construction § 57.12 (4th ed. 1984). If, on the other hand, a provision is said to be directory, some deviation is allowed without thwarting the result dictated by the statute. Id. Whether less than absolute compliance with particular provisions is permitted is a matter of statutory construction and the result of interpretation. Id.

According to Sutherland, whether a provision is mandatory or directory is determined as follows:

[The courts] must consider the importance of the literal observance of the provision in question to the object of the litigation. If the provision is essential, it is mandatory. A departure from it is fatal to any proceeding to execute the statute or to obtain the benefit of it. . .
. . .This determination involves a decision of whether the violation is serious enough to invalidate acts or proceedings pursuant to the statute.
In cases where no apparent actual or potential injury results to anyone from the failure to adhere to the provisions of a statute, a directory construction usually prevails in the absence of facts indicating a mandatory construction was intended. Statutory requirements that are the essence of the thing required by statute are mandatory, while those things which are not of the essence are directory. Sutherland, supra, § 57.01; 57.03.

Thus, those things that are of the essence of the thing to be done are mandatory, while those things not of the essence of the thing to be done are directory only. Taggart & Taggart Seed Co. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983); Edwards v. Hall, 30 Ark. 31, 37 (1875).

We faced an analogous situation in applying Act 568 of 1969, the new Jury Wheel Act. In Horne v. State, 253 Ark. 1096, 490 S.W.2d 806 (1973), we held the act was mandatory. But as varying issues arose under the act, we recognized that some provisions were more important than others and not all provisions were mandatory. In Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), and Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985), we held some provisions were merely directory, and substantial compliance was sufficient.

It seems obvious in this case that the requirement that the officer’s fingerprint checks be maintained in his personnel file is intended to facilitate the implementation and supervision of the Standards Act, and does not affect in any material way the legislative objective of law enforcement officers possessing the minimum prescribed qualifications, nor has the appellant suggested how it could be otherwise. Consequently, a failure to strictly follow the dictates of a supplementary specification dealing with the filing of the fingerprint report, or the form by which the psychological evaluation is submitted, should not come within the purview of § 12-9-108(a), as constituting a failure of the officer to meet the standards and qualifications set forth by the Commission. I would affirm the judgment.

       Record,'pp. 92-93.