text:
    Theodore JONES v. Charles D. RAGLAND and the ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION
    87-75
    737 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Theodore Jones, pro se.

      Timothy J. Leathers, Kelly S. Jennings, John H. Theis, Robert Jones, Phillip Raia, Ann Kell, and Joe Morphew, by: Wayne Zakrezewski, for appellee.
   Jack Holt, Jr., Chief Justice.

Because the appellant, Theodore Jones, failed to report and pay certain state taxes, he received an estimated tax assessment pursuant to an audit by the appellee, Department of Finance and Administration, hereafter called the Department. Jones appealed the assessment through administrative channels and then to chancery court where the chancellor found the final assessments proper. We affirm.

Jones operates A-l Auto Salvage. He stopped reporting and paying state income tax in 1976, however, he continued to report and pay state sales taxes through 1981. When the Department attempted to conduct an audit, Jones refused to surrender his records. As a result, the Department filed suit in chancery court for production of the records and the chancellor ordered Jones to deliver. When he refused, Jones was held in contempt and placed in jail.

Thereafter, the Department assessed taxes against Jones in an estimated amount of approximately $143,000.00. Jones did not protest the assessments which resulted in the filing of certificates of indebtedness, the issuing of writs of execution, and the seizing of Jones’ property for sale. Prior to the sale, Jones entered an agreement with the Department to produce his records and dismiss the several suits he had pending against the Department. In exchange, the Department agreed to return his property and assess the taxes at the statutory rate instead of by estimates.

The Department received Jones’ records and found them to be inadequate and incomplete. The Department estimated assessments of sales, income and withholding taxes in the amount of $16,177.07. Jones protested the assessments and an administrative hearing was held at which time the withholding tax assessments were dismissed because Jones had no employees. The sales and income tax assessments in the amount of $11,490.56 were upheld and Jones appealed to chancery court.

Jones returned his sales tax permit, but continued to operate his business. The Department counterclaimed to enjoin Jones from operating his business without a permit. After a lengthy trial, the chancellor affirmed the assessments and enjoined Jones from operating his business. Jones brings this appeal from that decision raising several points for reversal.

The first point Jones raises is the chancellor was wrong in finding the estimated taxes were reasonably assessed. Jones argues there was no cause for the Department to estimate his taxes since he had produced his records. We disagree. Ark. Stat. Ann. § 84-1907 (Repl. 1980) requires the taxpayer to keep suitable records for tax purposes. If a taxpayer fails to keep suitable records, the Commissioner of Revenues may make an estimated assessment based on the available information. Ark. Stat. Ann. § 84-4711(d) (Repl. 1980).

Jones’ records were not suitable to determine the amount of taxes due. He admitted he did not keep records of sales for resale and barters and he paid sales tax only on money transactions, not barter transactions. One-half the pages in his ticket books were missing and he could only account for a few of the missing pages. As to the income tax assessment, Jones testified that he lived in poverty after his wife retired. When Mrs. Jones testified, she refused to divulge her social security number and her former employer.

In making its assessment, the Department determined Jones’ records did not accurately reflect his business in several ways: 1) one-half the pages in the ticket books were missing; 2) no records were kept to document sales for resales as required by Ark. Stat. Ann. § 84-1907; 3) no records of barter transactions, which are taxable sales, were kept. Ark. Stat. Ann. § 84-1902(c) (Repl. 1980); 4) some duplicate tickets reflected different transactions from the original tickets; 5) Jones’ ownership of valuable real estate; 6) questionable that Jones could live on $1600 annually; 7) a new building on Jones’ property; 8) no evidence that Jones’ wife had any income; 9) Jones ran a cash business; 10) information that Jones had made unreported sales to a Tennennbaum Co.; 11) a $35,000 bank account; and 12) an AP&L meter on Jones’ property which was assigned to another business. Even though the Department conceded some of these enumerated reasons for estimating the taxes were without merit, when taken as a whole, it cannot be said that the chancellor’s finding, that Jones failed to keep adequate records causing the state to estimate his tax assessments is erroneous. We will not reverse the chancellor unless his findings are clearly erroneous. ARCP Rule 52(a).

Jones claims the Department’s methods for computing the estimated tax assessments were unreasonable. The Department based the sales tax assessment on the monthly gross sales figure of $2400. The Department reached this figure by determining the taxable sales shown in the ticket books which was $800. Another $800 was added for sales for resales which were wrongfully claimed as exempt. Since one-half of the ticket book pages were missing, another $800 was added to cover any unreported sales.

The income tax assessment was based on U.S. Department of Labor statistics since Jones’ records were insufficient. The records showed he earned only $1600 annually for a 25 year period and the Department was skeptical that Jones could live on that amount. Since one-half the sales and all the barter transactions were not recorded, the Department concludes Jones’ income was more than the amount shown in his records. Also, Jones testified stripped cars could be sold for $15-20 each. While utilizing these facts, coupled with an estimate of Jones’ cost of living expenses and Labor Department statistics, Jones’ annual income was estimated at $14,820.

Jones has the burden to refute the reasonableness of the estimated assessments. Ark. Stat. Ann. § 84-4711 (d). He has failed in this regard, except for the assessment on monthly gross sales of $2,400.00. We cannot find any support in the record for the $800.00 added to gross sales based on sales for resale. To the contrary, the state’s only explanation is that “Well, again we just sort of estimated and used the Eight Hundred Dollar figure, which made the total then Twenty-Four Hundred Dollars per month.” Since this assessment was clearly arbitrary, we reverse the chancellor’s findings to. $ 1,600.00. We find no other error as to the findings for the other estimated assessments.

Jones claims the tax audit should have been limited to three years instead of six years. Ark. Stat. Ann. § 84-4715(a) (Repl. 1980) provides a three year statute of limitations on audits. Act 401 of 1979 created an exception to this section permitting an audit to extend back six years if the taxpayer understates his taxes by twenty-five percent or more. Ark. Stat. Ann. § 84-4715(e) (Repl. 1980). This act became effective January 1, 1980. Jones argues since part of his taxes became due prior to the adoption of Act 401, the three year statute of limitations should apply because Act 401 cannot be applied retroactively. Ragland v. Travenol Laboratories, Inc., 286 Ark. 33, 689 S.W.2d 349 (1985) . This argument was not raised at trial and we will not consider arguments raising a statute of limitations for the first time on appeal. Hooper v. Ragar, 289 Ark. 152, 711 S.W.2d 148 (1986) .

Jones further argues the chancellor erred in quashing the subpoenas of five witnesses because this action violated his constitutional rights. We will not review this argument, because Jones failed to cite any authority to support the argument. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Jones also contends the chancellor was wrong in finding the Department complied with the agreement with him, and for his argument, attempts to incorporate by reference a brief presented to the lower court which was not abstracted. Since this is improper, we do not reach this issue. Ark. Sup. Ct. R. 9; Zini v. Perciful, 289 Ark. 343, 711 S.W.2d 477 (1986).

Jones lastly argues he was denied his right to the assistance of counsel of his choice. Jones wanted a non-lawyer to sit at his table and assist him during the trial and the chancellor would not allow, it. Only licensed attorneys can represent another person in court. Undem v. State Board of Law Examiners, 266 Ark. 683, 587 S.W.2d 563 (1979).

Inasmuch as we have reversed the chancellor’s findings by reducing the assessments on monthly gross sales from $2,400.00 to $1,600.00, it is necessary that this case be remanded for a recalculation of the assessment on gross sales tax. We hereby remand with orders to the chancellor to enter a judgment consistent with this opinion. In all other particulars, we affirm.

Hickman and Purtle, JJ., concur in part and dissent in part.

John I. Purtle, Justice,

concurring in part and dissenting in part. I agree with the majority opinion to the extent that it finds no basis in the record for assessing sales tax on the “sales for resale.” I also agree with that part of the opinion holding that the appellant owes sales tax for three years based on the receipts which he furnished the department. However, I do not agree with extending the three year statute of limitations or in upholding the arbitrary income tax assessment.

This is a clear case of overreaching on the part of the tax collectors. The conduct of the appellant in this case should be considered in light of his perception that the efforts of the Department of Finance and Administration to conduct an audit of his taxes began as a direct result of Jones’ participation in litigation against the Arkansas Attorney General, which successfully challenged the Attorney General’s position in the Arkansas National Guard.

The record in this case reveals that Jones, pursuant to the agreement between himself and the Department, brought in his sales receipts for several years and he included a summary of each year’s receipts on a sheet attached to the outside of these records. It is quite clear that the tax collectors only looked at one bundle for one year and out of it they based their assessment on only a small sample of these. They found his cover sheets to be accurate on the selected samples they examined. The original assessment was levied partially upon the fact that they found a $35,000 savings account in the name of Jones. Subsequently, it developed that it was not even the same Jones. Therefore, they graciously dropped this item as a basis for the estimated assessments.

During one of the hearings one of the tax collectors informed the appellant that all the department had to do was make one telephone call and the property would be subject to levy again. The Department of Finance and Administration employee stated: “That writ of execution can be issued again by a phone call which I can make from that office in there. I mean we are back where we were to start.” What could be more threatening? Power is a heady thing and must of necessity be subject to review. Appellant, acting as his own counsel spoke about his records during the hearing in the Revenue Department, when he stated: “This is all my books and records for the year 1977. It’s never been open. These papers have never been audited yet they say that they have been audited. They agreed to audit my papers.” The response from the state’s attorney: “We believe there was no need to go through everyone of those for that same purpose, so we used a sample.. . . We agreed to do an audit and we did an audit based on the sample. We didn’t agree to examine each and every invoice, as we regularly do not examine each and every invoice on any audit that we do except in very rare circumstances.”

The state had seized his property and the appellant had been thrown in jail for contempt for refusing to furnish his records. The state subsequently agreed to drop the unrealistic tax assessments against him, if he would drop the lawsuits he had against them. The appellant agreed not to challenge the constitutionality of the Arkansas tax laws in return for the state agreeing to do a normal audit and collect whatever tax and penalty his records revealed he owed.

The original assessment against appellant included unemployment taxes due to the employment of three persons. Proof revealed the appellant did not have any employees at all. This is but one more example of the tax collector’s cold-blooded handling of this case.

The assessment by the state of income taxes allegedly due from the appellant had even less foundation in the record than did the sales tax assessment for “sales for resale.” In fact, the reasoning behind the assessment of income tax is completely void of information concerning the appellant’s standard of living. The income tax assessment was based entirely on standardized tables promulgated by the Internal Revenue Service. Moreover, since the majority finds no support in the record for the $800.00 added to the Department’s estimated gross monthly sales based on sales for resale (a figure equal to H of the total estimated sales), this reduction in total sales should be accordingly reflected in the appellant’s estimated yearly income (almost $15,000) and income taxes. The majority opinion fails to identify the year, nature, or amount of the respective taxes owed by the appellant. I think the following question and answer is representative of the whole process here. The appellant, serving as his own counsel, asked the state’s witness: “Then you made no eifort in fact in seeing that these were accurate figures? They are purely speculation, is that correct, sir?” State’s witness: “Yes.” This, in my opinion, accurately describes the entire procedure by the state against this citizen. The taxpayers of the state of Arkansas have a right to expect more consideration from their servants.

The tax collectors never at one time contacted the appellant during the audit here in question. Most of his records were never inspected, yet they were declared insufficient. The chief argument for assessing the income tax is that Jones simply could not have lived on the amount of income he reported. His reported income for the past several years was approximately $150 a month. Up until 1976 his wife was gainfully employed outside the home. Also, the taxpayer’s father, who had independent income, lived with him. The fact is that three people were living out in the country on a known income of about $650 per month. The property was owned by the appellant and his wife and there were no mortgages to pay. Many three member families living in the setting described above would actually be able to save money. I know a great many elderly people here in the city of Little Rock who live on not much more than $200 per month. They do not eat well and perhaps don’t sleep well either, but nevertheless they survive. There is nothing in this record that supports the finding that appellant could not live on the reported income. Obviously the appellant and his wife are frugal. They should not be penalized for being independent and willing to live inexpensively.

It is amazing to me that this Court, in Ragland v. Travenol Laboratories, Inc., 286 Ark. 33, 689 S.W.2d 349 (1985), held that the statute in question here, Ark. Stat. Ann. § 84-4715(e) (Repl. 1980), did not operate retroactively and that the state was limited to three years in collecting such taxes, yet holds in the present case that the six year statute applies retroactively. The majority avoids this issue by stating that we will not consider arguments raised for the first time on appeal. However, the record reflects that the issue of the three year statute of limitations was unequivocally presented to the trial court in the appellant’s direct testimony:

What is the fact that I learned, that Act 401 of 1979 did not go into effect until January 1,1980. It alters the fact of that statutorily, the Department of Finance is limited to three years on audits. ... Yet, it is also a fact that the Department of Finance and Administration is holding certificates of indebtedness against Jones’ estate in the amount of approximately One Hundred Forty-Three Thousand Dollars in violation of A) the retrospective concept of law, by applying Act 401, 1979 to the years 1976, 1977, 1978 and 1979 in the instant case, thereby depriving Jones of the use of his property, denying him constitutional guaranteed rights and B) the statutory three year limit is found at Ark. Stat. Ann. 844715A. [Emphasis added.]

The appellant argued that Act 401 of 1979 should not be applied retroactively, and that the applicable statute of limitations was therefore three years. This is exactly the conclusion reached by this Court in Travenol. We have previously held that the legislature intended to allow three years in which the Commissioner could commence a challenge to the sufficiency of an income tax return. Ragland v. Alpha Aviation Company, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985).

Jones is apparently a fiercely independent man, and obviously a dissenter. Nevertheless, he is entitled to the same rights as other citizens. It seems to me that the Boston Tea Party was carried out by the likes of Theodore Jones. He may be a thorn in the side of tax collectors but he still deserves equal and fair treatment under the law. I do not think he has been treated fairly.

This case is a clear example of the strong hand of the government reaching into the lives and trampling upon the rights of individuals in order to reach a result desired by the government. It seems that all sight is lost of the fact that the Constitution was adopted by the people and for the protection of the rights of the people. This taxpayer struck a deal with the state and the state reneged. He had little choice but to sign the agreement — he had already spent some time in jail and all of his property had been seized. In doing so, the government had of course seized appellant’s wife’s property as well. Arbitrary, capricious, vindictive, and speculative are the best words to describe the actions of the state in this case. The income tax assessment is completely unfounded by the evidence in the record. I would reverse the assessments except with respect to the three years’ sales taxes.

Hickman, J., joins in this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Calvin HOLLOWELL v. The ARKANSAS DEMOCRAT NEWSPAPER
    87-154
    737 S.W.2d 646
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987
    [Rehearing denied November 23, 1987.]

      Calvin C. Hollowell, pro se.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

This is a defamation suit. The appellant, Calvin Hollowell, was a deputy sheriff with the Pulaski County Sheriff’s Department. He was fired primarily because of “immoral conduct.” Specifically, he was charged with having sex with four known prostitutes. Hollowell appealed his dismissal to the Civil Service Commission, which upheld the sheriff’s decision to terminate him. Hollowell appealed that decision to the Pulaski County Circuit Court, which reviewed the commission’s decision de novo. The court found the commission’s decision to be supported by substantial evidence and affirmed.

Meanwhile, the Arkansas Democrat was reporting much of this activity. They first reported that several deputies were fired because of an alleged sex ring being operated out of the prison. They later reported the actions of the Civil Service Commission and the circuit court upholding Hollowell’s dismissal.

Hollowell sued the Democrat for defamation. The case was submitted to the trial court on a motion for summary judgment. The judge, after considering the pleadings, affidavits, exhibits, and briefs of the parties, granted the Democrat’s motion and dismissed Hollowell’s suit.

On appeal Hollowed makes several arguments; however, his appeal is meritless. That he was a public official is not seriously disputed; therefore, he had to prove, assuming the newspaper articles were false (which the Democrat does not, in fact, concede), that the articles were published with actual malice. See Gertz v. Robert Welch, 418 U.S. 323 (1974); Lancaster v. Daily Banner-News Publishing Company, 274 Ark. 145, 622 S.W.2d 671 (1981). There was no evidence presented to show that the articles were written or published with actual malice.

Accordingly, the trial court was correct in granting summary judgment.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result but wish to state that the requirement that the plaintiff establish “actual malice” relates only to accusations concerning the performance of the public official’s duties.


author: John I. Purtle, Justice.

text:
    Jean Ann JONES v. AMERICAN HOME LIFE INSURANCE COMPANY NORTH LITTLE ROCK FUNERAL HOME v. The Honorable Lee A. MUNSON, Chancellor
    87-85 and 87-145
    738 S.W.2d 387
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987
    [Rehearing denied December 21, 1987.]

      Howell, Price, Basham & Hope, P.A., by: Dale Price and Robert J. Price, for Jean Ann Jones.

      Davidson, Horne & Hollingsworth, A Professional Association, by: Allan W. Horne and Virginia R. Williams, for North Little Rock Funeral Home, American Home Life Ins. Co., John Smith, and Ann Powell; and by: Allan W. Horne and Chet Roberts, for North Little Rock Funeral Home.

       Rehearing was denied in North Little Rock Funeral Home v. Munson.

   John I. Purtle, Justice.

Both the petition for writ of prohibition and the appeal from Pulaski Chancery Court arise from the actions of the city of North Little Rock enacting two separate ordinances closing the same alley connecting 19th and 20th Streets, and parallel to Main and Poplar Streets, in North Little Rock, Arkansas. The same parties are involved in both suits, but different ordinances are the subjects of the respective suits. In the first suit the chancellor declared the first ordinance invalid and also found that the plaintiff (appellant) had not suffered any damage as a result of the actions of the defendants. The city of North Little Rock subsequently enacted a second ordinance, apparently in an effort to remedy the defects of the first one. The plaintiffs filed suit once again, challenging the validity of the second ordinance. The defendants filed a motion to dismiss upon the grounds of res judicata and lack of standing. The chancellor overruled the motion and the defendants then filed a petition for writ of prohibition in this Court.

We first consider the matters raised in the appeal from the decree of the chancellor denying damages and declaring the ordinance invalid. Ordinance #5642, closing the alley between 19th and 20 Streets, was enacted on March 12, 1984. The appellant owns residential property at the south end of the alley, on the east side, adjacent to 19th Street. The complaint was filed on May 3, 1984, and resulted in a final order being rendered on June 17,1986. The chancellor found that the plaintiff (appellant) was not entitled to damages and that the ordinance was invalid. The plaintiff appeals only from the failure of the trial court to award damages and the defendants (petitioners in the prohibition case) cross-appeal asserting the chancellor erred in finding the ordinance invalid.

The appellant’s only argument on direct appeal challenges the chancellor’s refusal to award damages for the closing of the alley and the asserted diversion of water onto her property. There was much testimony, including that of expert witnesses, in favor of and against the appellant on the issue of damages. There was testimony from several witnesses that the appellant’s property actually benefited from the closing of the alley and the construction by the North Little Rock Funeral Home of the building and parking lot. This testimony indicated that the parking lot was topographically arranged to cause surface water to go into the waste-water drainage system and not onto 19th Street as it had previously done. We do not reverse the findings of fact of the trial court unless the findings are clearly against the preponderance of the evidence. Black & Black Oil Co. v. Guy R. Smith Drilling Co., 289 Ark. 487, 712 S.W.2d 901 (1986). Findings of fact by the trial court shall not be set aside unless clearly erroneous. ARCP Rule 52(a). Without going into detail on the testimony, it is sufficient to say that there is ample evidence to support the chancellor’s findings that the appellant is not entitled to damages and we therefore affirm the trial court’s decision on this issue.

The appellee’s argument on cross-appeal challenges the chancellor’s finding that Ordinance #5642 was invalid. The question to be considered at this point is whether or not the ordinance was timely contested. Ordinance #5 642 was enacted by the North Little Rock Board of Directors on March 12,1984. If the city government was acting pursuant to Act 17 of 1945 (Ark. Stat. Ann. § 19-3824 et seq. (Repl. 1980)), the statute of limitation runs within thirty days. See Ark. Stat. Ann. § 19-3829. The complaint was filed more than thirty days after enactment of this ordinance. To determine under what authority the city was proceeding, it is necessary for us to review the relevant facts and statutes.

Ark. Stat. Ann. § 19-3824 (Repl. 1980) states: “Cities of first and second class and incorporated towns are hereby given power and authority to vacate public streets and alleys within such cities and towns under the conditions and in the manner herein provided.” (Emphasis added.) The next section (19-3825) states:

In all cases where the owner of property within a city or town shall have dedicated, or may hereafter dedicate, a portion of such property to the public use as streets or alleys by platting such property and causing such plat to be filed for record, as provided by law, and any street or alley, or section thereof, shown on the plat so filed shall not have been actually used by the public as a street or alley for a period of five (5) years . . . the city or town council shall have power to vacate and abandon the street or alley, or any portion thereof, by proceeding in the manner hereinafter set forth.

Further, § 19-3827 requires that no street or alley shall be abandoned without the written consent of the owners of all lots abutting on the street or alley.

The general powers of cities and towns are set out in Ark. Stat. Ann. § 19-2301 et seq. (Repl. 1980). Pursuant to Ark. Stat. Ann. § 19-2304 additional powers are granted to cities of the first class. The latter statute specifically provides that cities may change or vacate such portions of a street or alley which may not, for the time being, be required for corporate purposes. This section was not repealed by section 19-3824 et seq. Cernauskas v. Fletcher, 211 Ark. 678, 201 S.W.2d 999 (1947).

This Court considered a legally and factually similar situation in the case of Stephens v. City of Springdale, 233 Ark. 865, 350 S.W.2d 182 (1961). The attack on the Springdale ordinance was lodged on the 31 st day after enactment of the ordinance. The Springdale decision held that Act 17 of 1945 could not be the basis for abandoning the street in question because one of the conditions for proceeding under that Act, i.e., that the street had not been used by the public for 5 years, had not been met. Therefore, this Court concluded that the statute of limitations found in § 19-3829 did not apply.

In the present appeal, the alley had never been platted, filed of record, or dedicated to the city. Moreover, the written consent of the appellant abutter had not been obtained. The city had no authority to close this alley under the provisions of Act 17 of 1945. Therefore, the thirty day statute of limitation is not applicable to this ordinance. Moreover, even if we decided that the thirty day limitation did apply and that the ordinance was valid, the issue is moot because Ordinance #5642 has been repealed by the enactment of Ordinance #5948. See Morgan v. Sparks, 258 Ark. 273, 523 S.W.2d 926 (1975).

Municipalities are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. Clearly the legislature has granted authority to the cities to regulate by ordinance, including the authority to close streets, sidewalks, and alleys, as stated in 19-2304. Obviously, the city was attempting to proceed under Act 17 of 1945 because Ordinance #5642 tracks almost word for word with the suggested ordinance found at § 19-3828. In examining the ordinance in question we have determined that the provisions of Ark. Stat. Ann. § 19-3824 et seq. were not met. Therefore the thirty day limitation does not apply.

We now turn to the petition for writ of prohibition. After the chancellor’s final order in the first suit, the city of North Little Rock enacted Ordinance #5948 on June 14, 1986. This subsequent ordinance was enacted pursuant to § 19-2304 in an effort to remedy the defects of the first ordinance, which had been declared invalid by the trial court on June 7, 1986. The second suit was filed on August 14, 1986, and challenged the validity of the second ordinance. The defendants filed a motion to dismiss based upon the grounds of res judicata and lack of standing. The chancellor overruled the motion and defendants sought prohibition in this Court. Petitioners (defendants below) argue that the trial court lacked jurisdiction to proceed in the second suit.

It is true that we held in Fausett & Company, Inc. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985), that “standing” is a jurisdictional matter. However, we do not interpret the holding in Fausett to apply to the present situation. In Fausett the “standing” issue concerned an unincorporated non-profit association which was attempting to enforce certain property rights in the courts of this state. We held the association lacked “standing” because it was not a person or corporation legally in existence at the time. In Fausett we also held that a writ of prohibition is proper when the pleadings show that as a matter of law the plaintiff does not possess the requisite “standing” to sue. In this case, the pleadings make no such showing.

The complaint in this second action was generally a restatement of the allegations contained in the first complaint. Jones alleged in her complaint that the closed alley and its construction has caused water flow damages to her property and her property to depreciate in value. Whether Jones can show such damages rise to the legal definition of special damages, thereby giving Jones standing, is an issue to be developed at trial. On the question of standing, see City of Little Rock v. Linn, 245 Ark. 260, 432 S.W.2d 455 (1968); McKnight v. Tate, 222 Ark. 564, 261 S.W.2d 793 (1953); and Wenderoth v. Baker, 238 Ark. 464, 382 S.W.2d 578 (1964).

A writ of prohibition is appropriate “to relieve one from the onerous burden of litigation when the trial court is attempting to act wholly without jurisdiction or is threatening or about to act in excess of jurisdiction.” Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980). Any other view would permit the writ of prohibition to be used not to test the issue of jurisdiction but to test the sufficiency of a complaint filed in a court having jurisdiction both of the subject matter and of the person. Under the circumstances of this case, a final judgment is necessary before a party can appeal. See Farm Bureau Mutual Ins. Co. v. Southall, 281 Ark. 141, 661 S.W.2d 383 (1983) (wherein the court denied Farm Bureau’s petition for writ of prohibition as not the proper remedy for failure of the trial court to grant a motion to dismiss).

The authority for cities to enact ordinances pursuant to Ark. Stat. Ann. § 19-3824 et seq. was considered at length by this Court in Risser v. City of Little Rock, 225 Ark. 318, 281 S.W.2d 949 (1955). The city of Little Rock passed an ordinance closing parts of East 10th and East 26th Streets in the city. The ordinance stated that it was enacted pursuant to § 19-3824 et seq. Suit was filed to enjoin enforcement of the ordinance. The trial court found that the city was not proceeding pursuant to this statute because the streets were still being used by the public. After this ordinance was attacked in court, the city enacted a second ordinance pursuant to § 19-2304. The question before the Court in Risser was the validity of the second ordinance.

The Risser case is very persuasive in several respects. There was a second ordinance involved and it concerned the same streets as did the first ordinance. The opinion addressed the doctrine of res judicata and pointed out that the doctrine did not. apply because the ordinances were entirely different. The Court stated:

[The second] ordinance was not in effect when the first case was tried. At the time of the first suit, ... the only issue raised in those pleadings was the validity of [the first] ordinance. Hence, the issue in the first case is not the same as the issue in the case at bar, and the cause is therefore not res judicata.

Likewise, we hold that the decision concerning the validity of the first ordinance is not res judicata with respect to the validity of the second ordinance.

We hold that the chancellor’s refusal to award damages in the first suit was not clearly erroneous, and that the chancellor’s decision that the first ordinance was invalid was correct because the requirements of Act 17 of 1945 were not met. Moreover, since we have concluded that the Pulaski Chancery Court has jurisdiction to proceed with the second suit, the petition for writ of prohibition is denied.

Affirmed on direct and cross appeal.

Petition for writ of prohibition denied.

Hays, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Seymore COTTON a/k/a Seymore Jameel ABDULLAH v. STATE of Arkansas
    CR 87-112
    738 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      S. Kyle Hunter, for appellant.

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

On September 9,1969, a jury found appellant, Seymore Cotton, guilty of burglary and fixed his sentence at five years. He did not appeal. On January 29, 1987, over seventeen years after his conviction, appellant filed a petition for post-conviction relief. A.R.Cr.P. Rule 37. He alleged that his conviction should be set aside because of insufficient evidence. The trial court denied the petition on the basis of the three year statute of limitation contained in A.R.Cr.P. Rule 37.2. We affirm the holding.

This Court has repeatedly stated that attacks on the sufficiency of the evidence are direct attacks on the judgment which must be made at trial or on direct appeal. Such attacks cannot be brought under Rule 37. Sanchez v. State, 290 Ark. 39, 716 S.W.2d 747 (1986) (per curiam); Hickey v. State, 287 Ark. 197, 697 S.W.2d 118 (1985) (per curiam); Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985) (per curiam); Jones v. State, 283 Ark. 363, 677 S.W.2d 738 (1984) (per curiam), cert. denied, 469 U.S. 1219 (1985); Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984); Williams v. State, 280 Ark. 543, 659 S.W.2d 948 (1983) (per curiam); Pitcock v. State, 279 Ark. 174, 649 S.W.2d 393 (1983) (per curiam); McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983) (per curiam). For example, in McCroskey, this Court explained:

[Insufficiency of the evidence is not a proper ground for postconviction relief. Rule 37 affords a remedy when the sentence in a case was imposed in violation of the Constitution of the United States or of this State or is “otherwise subject to collateral attack.” Rule 37.1. Challenges to the sufficiency of the evidence are a direct attack on the conviction which must be made on direct appeal. As such, the issue is not cognizable under Rule 37.

Id. at 157, 664 S.W.2d at 271.

On appeal, appellant contends that, based on the evidence presented, no rational trier of fact could have found the essential elements of burglary beyond a reasonable doubt, and therefore, his conviction was violative of his constitutional rights. See Jackson v. Virginia, 443 U.S. 307 (1979). However, this Court has consistently stated that a constitutional violation is not in itself enough to trigger application of Rule 37. See, e.g., Bell v. State, 265 Ark. 596, 579 S.W.2d 586 (1979) (per curiam). Rule 37 “is not intended to provide a review of mere error in the conduct of the trial or to serve as a substitute for appeal.... Unless an allegation raises issues so fundamental as to render the judgment void, such issues cannot be raised by the use of Rule 37[.2].” Woodard v. State, 273 Ark. 235, 240, 617 S.W.2d 861, 864 (emphasis added), cert. denied, 454 U.S. 1068 (1981). In this case, even if the facts supported appellant’s contention and a constitutional violation did occur, the violation would not be of such a magnitude as to void the conviction. Therefore, appellant is not entitled to relief under Rule 37.

Affirmed.


text:
    Janice M. PITTS, in her own behalf and as Next Friend of Dana ROSEBY and Adrian ROSEBY v. William SIPES and Pulaski County Special School District
    87-144
    737 S.W.2d 647
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      The Cortinez Law Firm, by: Robert R, Cortinez, for appellant.

      Walter A. Murray, for appellees.
   Robert H. Dudley, Justice.

The appellant was driving a school bus for the Pulaski County Special School District when the bus was struck from the rear by a stolen truck. The truck was driven by an unknown person who fled from the scene and has never been caught. Appellant filed suit for herself and on behalf of her two children, who were passengers in the bus, against the owner of the truck, William Sipes. He answered that the truck had been stolen. The appellant then amended her complaint to include her employer, the appellee school district, as a defendant because it is a self-insurer for uninsured motorist coverage. In the amended complaint the appellant asserted uninsured motorist claims against the appellee.

The appellee moved to dismiss the appellant’s amended complaint against it for lack of subject matter jurisdiction. The appellee contended that the appellant was receiving worker’s compensation benefits which constituted her exclusive remedy against the appellee. The trial court granted the motion for partial summary judgment and dismissed appellant’s amended complaint against the appellee school district with prejudice. Next, one of appellant’s children, Adrian Roseby, dismissed her complaint without prejudice.

Appellant seeks to appeal the granting of the partial summary judgment on one of the two counts against one of the multiple parties. The partial summary judgment is not an appealable order. ARCP Rule 54(b). The rule provides that when more than one claim for relief is made in an action, or when multiple parties are involved, and, when the trial court directs the entry of a final judgment as to one or more, but fewer than all of the claims or parties, then before there may be an appeal, the trial court must make an express determination that there is a danger of hardship or injustice which an immediate appeal would alleviate. That requirement has not been met.

The fundamental policy of the rule is to avoid piecemeal appeals, so the discretionary power vested in the trial court to grant an immediate appeal is to be exercised infrequently, and only in harsh cases. Tulio v. Arkansas Blue Cross & Blue Shield, Inc., 283 Ark. 278, 675 S.W.2d 369 (1984).

Appeal dismissed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice, Tom Glaze,

text:
    William WINFREY, Jr. v. STATE of Arkansas
    CR 87-67
    738 S.W.2d 391
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      John H. Adametz, Jr., and William H. Craig, for appellant.

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

A jury found the appellant guilty of the rape of Damon Franklin who was less than eleven years old; guilty of the rape of Adrian Adams who was also less than eleven years old; and guilty of attempt to commit the rape of Kesia Franklin, also less than eleven years old. Ark. Stat. Ann. § 41-1803 and § 41-701 (Repl. 1977). We reverse the judgments of conviction.

Soon after the crimes were reported, the prosecutor had one of his employees interview each of the three victims and make a written report setting out her impressions of the victims and some of their statements concerning the crimes. At trial, after the first victim had completed her direct testimony, the appellant’s counsel moved for the state to produce the reports. See Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). The state responded that the reports were the work product of the state and production of them was not required. The trial court accepted the state’s argument and ruled that appellant’s counsel could view the reports, but not have copies of them, and could not use them for cross-examination purposes. The appellant assigns the ruling as error for different reasons.

First, appellant argues that the reports were “statements,” and he was entitled to have the state produce them in accordance with Ark. Stat. Ann. § 43-2011.3(b) and (e). The cited statute provides, in part, that after a state’s witness testifies on direct examination, the court shall, on motion by the defendant, order the state to produce any prior statement of the witness, which the state has in its possession, which relates to the subject matter of the witness’ testimony. The statutory definition of “statement” includes “a substantially verbatim recital of an oral statement made by said witness to an agent of the state and recorded contemporaneously with the making of such oral statement.” The key words in the latter quotation are “substantially verbatim recital.” Among the factors to be taken into account in deciding whether a statement is substantially verbatim (not precisely verbatim) are the extent to which it conforms to the language of the witness, the length of the written statement in comparison to the length of the interview, whether quotations may be out of context, and the lapse of time between the interview and the transcription, which need be only contemporaneously, not simultaneously made. C. Wright, Federal Practice and Procedure: Criminal 2d § 436 (1982). In general, if there is no assurance that the witness said whatever is attributed to him in the report, then it would be grossly unfair for his credibility to be jeopardized by using the report on cross-examination. On the other hand, if the trial court can rest assured that the witness said whatever is attributed to him, then that part of the report containing the statements should be ordered produced for the defendant.

Selected colloquy between the prosecutor’s employee, appellant’s counsel, and the trial court, quoted below, shows that the statements of the witnesses contained in the reports were substantially verbatim, nothing was taken out of context, and the victims’ words were quoted in writing at the time of the interview.

Q [Defense Attorney] And these reports that you made also include, do they not, statements directly attributed to the three children? Statements they made to you about what happened?
A [Prosecutor’s employee] Actual statements word for word? I know I put — There are possibly some quotes that I wrote down, but not word for word.
Q Well, a substantial part of these three reports includes, as I understand it, what these three children told you either happened, or did not happen?
A Yes.
Q And it — Your reports are a true reflection of what the children told you?
A True.
Q And even though they were not formal statements, these are things that they told you that either happened, or did not happen?
A Right.
THE COURT: All right. Ms. Parker, at the time that you interviewed the three children, did you record your questions, and their responses, responses in that way with a question/answer type of thing that you’re accustomed to seeing the Deputy Prosecutors take of a suspect, or a witness, or being done in court?
THE WITNESS: I usually do my interviews in a more informal way. I don’t — It’s not so much of a direct question, direct answer. It’s more of a discussion the way that I, I talk with the children.
THE COURT: Do you write down phrases, or key words? Things of this nature?
THE WITNESS: Yes. Yes.
THE COURT: You say there may have been some direct quotes?
THE WITNESS: I believe. Now, I’m not sure, because I haven’t — But I believe — Most of the time I try to, to at least put it in the children’s words. Something to give the Prosecutors an idea of how the children relate the information.

In some parts, the reports contained a substantially verbatim, and contemporaneously made, recital of the victims’ statements. The trial court erred in refusing to order the state to produce copies of those parts of the reports which contained the victims’ substantially verbatim statements.

In reading the lengthy ruling by the trial court, it is apparent that its ruling was based mainly upon acceptance of the state’s argument that the reports were the “work product” of the state and need not be disclosed. There simply is no “work product” exception for the production of witnesses’ statements in Ark. Stat. Ann. § 43-2011.3(b) and (e). See Goldberg v. United States, 425 U.S. 94 (1976) and C. Wright, Federal Practice and Procedure: Criminal 2d § 437 (1982).

Even though the trial court erred in refusing to order the state to produce copies of the statements for appellant, reversal is not required for violation of the state statute if the error was harmless. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). Since the trial court allowed the appellant’s counsel to examine the statements, and gain the full knowledge of their contents, violation of the production statute was harmless.

The appellant contends that even if the error was harmless under state law, it must be reversed under the Confrontation Clause of the Sixth Amendment, as applied to this State through the Due Process Clause of the Fourteenth Amendment. The argument is based upon the fact that, even though the trial court allowed appellant’s counsel to view the reports, it expressly ruled that the appellant could not use the statements on cross-examination for impeachment purposes. In that part of its ruling, the court stated: “The main thing I want to put across is that you, you can’t use Court’s 1, 2, or 3 [the statements] for impeachment purposes.”

The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination. Delaware v. Fensterer, _U.S._, 106 S. Ct. 292 (1985) (per curiam). It is constitutional error to deny a defendant the right “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” Pennsylvania v. Ritchie, No. 85-1347, slip op. at 13 (United States Supreme Court Feb. 24, 1987) (Powell, J., plurality opinion), quoting Davis v. Alaska, 415 U.S. 308, at 318 (1974). Indeed, “the main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis, 415 U.S. at 315-316. The Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-317. The reports in the case at bar contained prior statements by the witnesses which were in part inconsistent with their testimony at trial, and the trial court denied appellant the right of using the prior statements during cross-examination of the victims.

For example, the report of the interview with Damon Franklin reflects in part: “William [appellant] has also had anal intercourse with Adrian [one of the other victims], and Damon has seen this. He recalls once when they were all sleeping at William’s house (Joyce Franklin was in William’s bedroom), Damon saw William trying to get Adrian to ‘suck’ him, and then he performed anal intercourse on him.”

However, at trial, Damon Franklin testified that he had never seen the appellant commit, or attempt to commit, any sexual crime upon Adrian.

In her statement, Kesia Franklin said that the appellant committed oral sex and painful anal intercourse upon her:

William would wake Kesia up in the middle of the night and carry her into the bathroom. Sometimes he would wake her up by performing oral sex on her. Other times he would just pick her up. He would get a towel from the bathroom and place it on the floor in the hallway. He would then place Kesia on the towel face down, remove her clothing (sometimes she slept in street clothes — more often in a gown), and perform anal intercourse on her.
Kesia said both her bedroom door and her mother’s bedroom door would be closed. When Kesia would cry or try to yell for help William would put his hand over her mouth. He also would threaten her — He said if she ever told anyone he would “do it again and then I’ll get a gun and blow your head off.”
William also bought Kesia clothes and candy to keep her from telling. She was afraid of him, and that kept her from telling. She didn’t know if he would really get a gun, but he would often slap her, so she knew he would hurt her if he got mad.
Kesia denies vaginal intercourse. She said he would always put his “thing” in her “behind.” This hurt, and sometimes she would bleed and have stomach cramps.
He usually performed oral sex on her before he took her into the hallway. She said she’d wake up and find his head between her legs.

Yet, her testimony at trial was only that the appellant attempted to have anal sex with her, but was unsuccessful.

The statement of Adrian Adams, in part, reflects: “William made Adrian perform oral sex on him only once that Adrian can remember.” At trial, Adrian did not testify that appellant performed oral sex upon him.

The quoted parts of the prior statements are inconsistent with part of the trial testimony, but the trial court, by direct restriction on the right of cross-examination, prevented appellant’s counsel from using the statements for impeachment purposes. Of course, the right of cross-examination includes the right to show that testimony is unbelievable, or that the witness could not remember events crucial to the testimony. United States v. Abel, 469 U.S. 45, 50 (1984). Because this type of evidence can at times make the difference between conviction and acquittal, the Supreme Court has found that this type of direct restriction on cross-examination violates the Confrontation Clause. Davis v. Alaska, 415 U.S. 308 (1974). Until recently, such a direct restriction on cross-examination was not subject to the harmless error rule, but instead required automatic reversal since it denied the defendant “the right of effective cross-examination which ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ Brookhart v. Janis, 384 U.S. 1, 3.” Davis v. Alaska, 415 U.S. 308, at 318 (1974) quoting Smith v. Illinois, 390 U.S. 129, 131. This language was repeated in United States v. Bagley, 473 U.S. 667, at 677 (1985). Then, in 1986, the Court, although not expressly overruling Davis, supra, wrote:

Read properly, however, Davis does not support an automatic reversal rule, and the above-quoted language merely reflects the view that on the facts of that case the trial court’s error had done “serious damage” to the petitioner’s defense.

Delaware v. Van Arsdall,_U.S._, 106 S. Ct. 1431 at 1437 (1986).

The Court then explained the standard for analyzing cases such as the one at bar:

Accordingly, we hold that the constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. Cf. Harrington, 395 U.S., at 254, 89 S. Ct. at 1728; Schneble v. Florida, 405 U.S., at 432, 92 S. Ct., at 1059.

(Emphasis supplied.)

Here, the state could not make its case without the testimony of the victims. Their credibility was the key factor in the determinations of guilt. Yet, the trial court, by ruling that appellant’s attorney was prohibited from using the prior inconsistent statements for impeachment purposes, prevented appellant from questioning the witnesses’ credibility. Accordingly, we cannot say the error was harmless beyond a reasonable doubt.

Appellant asks us to reverse and dismiss, rather than reverse and remand because, he argues, the evidence was not sufficient to support the three convictions. We reject the argument and remand for a new trial. The uncorroborated testimony of the minor victims was sufficient evidence to have sustained the convictions. Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982).

Reversed and remanded for a new trial.

Hickman and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I would affirm the convictions in this case, because I find any error to have been harmless. The outcome would have been exactly the same, and it will be the same on a retrial. Indeed, if the prior statements are used, they will only buttress the state’s case and convince the jury, even more so, that the defendant is guilty. Actually, the statements are more damning than the testimony presented at trial.

Tom Glaze,

dissenting. With due respect to the majority’s analysis of the record, I strenuously disagree it supports reversal of this case. First, the trial court did not prohibit appellant’s proper use of the three summaries of interviews obtained by Mary Parker from the children. Second, Parker’s handwritten summaries do not qualify as statements which the appellant could use for the unlimited cross-examination of the three children.

I will first consider appellant’s claim that he was denied the proper use of Parker’s summaries. The majority recites a remark made by the trial judge when ruling on appellant’s request for Parker’s summary interviews. At a rather lengthy hearing, the trial judge is quoted correctly as having said, “The main thing I want to put across is that you, you can’t use Court’s 1,2 or 3 (the summaries) for impeachment purposes.” The judge — if you put this remark in context with his other comments— was exactly right in his ruling. The judge perused Parker’s interview of each child and said the handwritten summaries were narratives of opinions, conclusions and consolidations of thoughts that Parker put together involving the three children. Parker testified, “I didn’t take actual statements”; nor did she tape the interviews. None of the interview summaries were signed or approved by the children. In other words, those summaries simply do not qualify as statements under Ark. Stat. Ann. § 43-2011.3(b) and (e)(1) (Repl. 1977). That being so, appellant clearly was limited in his use of those actual summaries when cross-examining the children. Even so, the judge told appellant’s counsel that he could ask about matters contained in the interviews. Of course, appellant would have been bound by the childrens’ answers, and appellant’s next course of action would be his examination of Parker, who was the actual authoress of those summaries.

In retrospect, it is easy to surmise, perhaps, that appellant should have been more exacting in stating how he intended to use the Parker summaries, and the judge could have been more precise in his ruling. Nonetheless, it is clear to me what the trial judge ruled in the instant case when discussing the appellant’s use of the three summaries; it was not to preclude appellant’s examination of the children — only the manner in which appellant went about it. Again, the only way to make this point clear is to set out the judge’s entire ruling. Because of its length, I will take the privilege of highlighting those parts I believe support the judge’s intention to allow appellant broad cross-examination of the children:

The Court finds that these statements do not constitute statements within the meaning of [11.3] . . . And while they contain information that summarize faults given by this witness, and the other two prospective witnesses, that they’re more in the nature of a work product of the Prosecuting Attorney’s office. They do, in my opinion, contain exculpatory information. And while, to the view of some, might contain information on which a witness could be cross examined, probably the only witness who could be cross examined is the person that wrote it. In other words, / don’t see how, Daemon, Adrian, or Kesia could be asked about statements that they made to another person about, did they say something that was different. That is, for the purpose of impeachment, to show a prior inconsistent statement, that’d be. This — the material’s simply not phrased, or put so as to adopt that kind of use of this. The Court also finds that the, the statements contain quite a bit more information than Kesia Franklin has testified on her direct examination. But the failure of the Prosecuting Attorney to inquire into those matters, which are not exculpatory by any means, doesn’t make her statement any more available to the Defense for the purpose of impeachment, or any other use. The attorneys for the defendants have had the opportunity to view the statements. They object strongly to each and every ruling of the Court. They are admonished that, during their cross examination of any of these witnesses, that is, Kesia, Adrian, and Daemon, they are prohibited from referring to specific references. However, they are permitted to inquire if they had made any statements to any kind of people. If, if the witness was asked about different kind of things that they would ordinarily be entitled to inquire about during cross examination. I simply, because of the method that I chose to apprise the defendants of that which the State felt like that it couldn’t — wouldn’t be required to provide, to give them a leg up, so to speak, against any other witnesses. In other words, while you may have a pretty good frame of mind about what’s contained in these statements, I don’t think that you have gained such an appreciation of exact terminology that you could pose questions, and, and that kind of thing. But I don’t want to limit you in any way to the things that I think the testimony has already alluded to, and that common sense would permit. And that is, did you make a statement to anyone? Have you told anybody? This, that, and the other. Have you alleged that there was other abuse involved, especially whatnot? Now, that kind of thing, I think, would be permissible. And the mere fact that something that you might inquire about may have been in this statement, you’re not going to be prohibited from inquiring about that simply because it’s duplicated. The main thing I want to put across is that you, you can’t use Court’s 1, 2 or 3 for impeachment purposes. But just because something appears in one of those statements doesn’t mean you can’t ask about it. And now, maybe the next time I do something like this, I’ll go about it a little differently. Because, it seems like, maybe I’m creating some problems for you. But I want you to be as aggressive as you feel like that you should be. I don’t want to limit your cross examination in any way. And I think that you probably maybe understand the spirit more than the words that I speak. And, and I would say this, that if you fault in any way, I would must prefer that you fault by asking a question that the State may object to as inappropriate. And if you do, the State will object, and I’ll rule upon it. So you are not pinned in in any way from the latitude that you can go into, and the scope of cross examination. Simply, you’re not going to be able to, to use this to that, to that extent. Now, the, the jury has overheard us say something about a statement being provided to you. And then we came back here. I think we just ought to leave the matter where it is. That I don’t need to say anything one way or the other about what was done in that regard. I find that the, the question, or the request by the Defense was quite appropriate. That it should have been requested under the statute. And that there’s nothing sinister, inappropriate, or whatnot by anyone.

As can be seen from its ruling, the court suggested that the appellant cross-examine the children regarding Parker’s summaries and allow the state to object when it deemed the appellant’s questioning inappropriate. The court said it would then rule on the state’s objection. Appellant made no attempt to follow the court’s direction, and, instead, merely inquired of the children whether they had told Parker the truth, to which they said yes.

In sum, Parker’s summaries did not qualify as statements under Ark. Stat. Ann. § 43-2011.3(b) and (e)(1) and (2) (Repl. 1977), and appellant was not entitled to the same use of those summaries as he would have had if they had been statements under that statute. Neither can I agree, from my view of the trial judge’s ruling, that the court prohibited appellant’s use of Parker’s summaries so as to violate appellant’s rights under the confrontation clause of the United States or Arkansas Constitution. The case fails to rise to one of constitutional magnitude. The trial court merely found that the summaries were not statements, which I believe is justified by the reading of any one of Parker’s three summaries.

The trial court allowed appellant to cross-examine the children, regarding the Parker summaries, but limited his actual use of those summaries, viz., not allowing him their use when examining the children to show prior inconsistent statements made by them. In my view, that was a matter appellant was required to pursue with Parker, after having made inquiry of the subject matter with the children.

I cannot say the trial court abused its discretion in making its ruling, and I certainly cannot agree appellant’s constitutional rights were violated by such ruling. I would affirm.

       Parker was the case coordinator of the state’s Victim/Witness Assistance Unit.

       For the reader to better understand the nature of the summaries, I attach to this dissenting opinion the shortest one which Parker made after her interview of Adrian. Although longer, the other two are the same style.


author: David Newbern, Justice.

text:
    William R. GROOMS v. STATE of Arkansas
    CR 85-140
    737 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Grant & Berry, by: Sandra T. Berry, and William E. Keadle, for appellant.

      Steve Clark, Att’y Gen., by: /. Blake Hendrix, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an appeal from denial of relief sought pursuant to Ark. R. Crim. P. 37. As the petition filed in the circuit court was a second petition, the first one having been denied and the denial affirmed in this court, it was proper for the circuit court to deny it.

The appellant, William R. Grooms, was convicted of theft by receiving, sentenced to twenty years in prison, and fined $10,000. During the trial, his counsel, on direct examination, asked Grooms about his prior criminal record, and he testified about prior convictions. The prosecutor then cross-examined Grooms whereupon he revealed convictions in addition to the ones discussed on direct examination. The sentencing phase of the trial was combined with the guilt-innocence phase with the consent of the accused.

Grooms filed a notice of appeal, but at Grooms’s request the appeal was not perfected. He chose, rather, to pursue a Rule 37 petition upon the ground, among others, that his counsel had been ineffective in allowing the evidence about his prior convictions to come in as part of the guilt-innocence phase of the trial. The petition was denied, and this court affirmed, Grooms v. State, 283 Ark. 224, 675 S.W.2d 353 (1984), concluding that Grooms had not demonstrated ineffectiveness of counsel.

On January 28, 1985, Grooms filed a petition for writ of error coram nobis, seeking correction of his sentence. This court denied relief in an unpublished per curiam opinion of October 7, 1985, noting that the coram nobis petition is not a substitute for Rule 37 relief, and that the petitioner, “. . . had a remedy in the trial court in the form of a petition to correct an excessive sentence pursuant ... to Rule 37.2(c) if the sentence exceeded the maximum allowed by law.”

In our earlier consideration of Grooms’s petition pursuant to Rule 37, we affirmed, having considered the same issue he has again presented in the appeal before us now, and we did not state that our affirmance was without prejudice to the bringing of another such petition. A successive Rule 37 petition will not be entertained unless the original petition was specifically dismissed without prejudice to filing a subsequent petition. Ark. R. Crim. P. 37.2(b); Porter v. State, 289 Ark. 475, 712 S.W.2d 304 (1986); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981).

Although the circuit judge denied the petition for a different reason, the result was correct for the reason we have stated, thus the decision is affirmed. Dandridge v. State, 292 Ark. 40, 727 S.W.2d 851 (1987); Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985).

Affirmed.


author: Tom Glaze, Justice.

text:
    Helen MAJEWSKI v. Leona CANTRELL and Frank B. HENSLEE
    87-118
    737 S.W.2d 649
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      R.W. Laster, for appellant.

      Everett O. Martindale, for appellee Leona Cantrell.

      Jones & Petty, for appellee Frank Henslee.
   Tom Glaze, Justice.

Appellant, Helen Majewski, owned a building that she leased to appellee, Frank B. Henslee, who used the building to operate a take-out seafood business and a catfish restaurant. On October 19, 1983, appellee, Leona Cantrell, an employee of Henslee, injured her back by slipping and falling on a wet spot on the restaurant kitchen floor. In December 1984, Cantrell sued Majewski, alleging the wet, slippery floor was caused by rainwater that entered through the building’s roof, which Majewski negligently failed to repair. Majewski answered, denying liability, and moved for summary judgment, which was denied; she then filed a cross-complaint against Henslee, alleging he was responsible for repairs and maintenance to the building. Henslee answered and counterclaimed against Majewski. After a two-day trial, the jury found against Majewski, awarding $125,000 in damages to Cantrell and granting $1,250 to Henslee on his counterclaim.

Appellant appeals, arguing the court erred in denying (1) her motion for summary judgment; (2) her motion for a directed verdict at the conclusion of the testimony; and (3) her motion for judgment n.o.v. and a new trial. She also urges the jury’s award to Cantrell was excessive. We affirm.

Majewski’s first three points for reversal are premised on her claim that, at the time Cantrell was injured, no lease agreement existed between Henslee and Majewski requiring her to repair and maintain the building’s roof. She argues the initial-written lease with Henslee, under which Majewski agreed to make such repairs, had long expired. Majewski contends that, upon that lease’s expiration, Henslee became a month-to-month tenant to whom she owed no duty of repair.

Majewski is correct that a lessor, under common-law rule that Arkansas follows, owes no duty of repair of the premises to the lessee; but it is also true that a landlord, who agrees to such repairs, can be held liable for them. See Hurst v. Field, 281 Ark. 106, 661 S.W.2d 393 (1983).

While Majewski argues otherwise on appeal, the proof presented below reflects she had agreed to repair and maintain the roof. Henslee testified such an agreement existed, and Majewski never denied it. In fact, Majewski admitted she had sent a worker to fix the roof on numerous occasions both before and after Cantrell’s fall. Clearly, the record belies Majewski’s argument that she had no agreement or duty to repair the tenant’s (Henslee’s) roof.

Even assuming she entered such an agreement, Majewski contends Cantrell was only a licensee to whom Majewski owed a duty of care not to willfully or wantonly injure. See Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968). Based on that premise, Majewski further argues the evidence was wholly insufficient to support a jury’s finding that she was guilty of willful and wanton conduct. The sufficiency of evidence question notwithstanding, Majewski is wrong on the law regarding the duty she owed Cantrell, an injured-third-party employee of Henslee.

Early Arkansas case law recognized that an owner-lessor, who agreed to furnish all repairs, could be found negligent and liable to an injured third party. See Collison v. Curtner, 141 Ark. 122, 216 S.W. 1059 (1919). The majority rule, which controls the facts here, is best set forth in the Restatement (Second) of Property § 17.5:

A landlord is subject to liability for physical harm caused to the tenant and others upon the leased property with the consent of the tenant or his subtenant by a condition of disrepair existing before or arising after the tenant has taken possession if: (1) the landlord, as such, has contracted by a promise in the lease or otherwise to keep the leased property in repair; (2) the disrepair creates an unreasonable risk to persons upon the leased property which the performance of the landlord’s agreement would have prevented; and (3) the landlord fails to exercise reasonable care to perform his contract.

See also Restatement (Second) of Torts § 357 (1965); W. Keaton, Prosser and Keaton on Torts § 63 (5th ed. 1984); J. Page, The Law of Premises Liability § 9.8 (1976).

The court gave instructions to the jury which correctly stated the law, including that pertaining to comparative fault. Our examination of the record reflects sufficient evidence to support a jury’s finding that Majewski did, indeed, agree to repair the roof of the building she rented Henslee, that she repeatedly failed to repair the roof, and that such disrepair permitted rainwater inside the building, causing an unreasonable risk to, and proximately causing the injury sustained by, Cantrell. Accordingly, the trial court, in denying Majewski’s summary judgment motion, was correct in determining material factual issues existed. The court, too, in finding sufficient evidence to deny Majewski’s directed verdict motion, also correctly denied her motion for judgment notwithstanding the verdict based upon insufficiency of the evidence. We note appellant’s additional reference to a motion for new trial when discussing the sufficiency of evidence, and take this opportunity to mention our amendment of ARCP Rule 50(e) that omitted any reference to the motion for new trial. That amendment makes it clear that a party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for new trial. See In Re: Amendments to the Rules of Civil Procedure, 279 Ark. 470, 651 S.W.2d 63 (1983).

Appellant’s last point is that the jury’s award of $125,000 was excessive. We cannot agree. The law is well settled that a jury’s verdict will ordinarily not be disturbed on appeal unless it is wholly without support in the evidence, or it may be said to be the result of passion or prejudice, or to shock the conscience or a sense of justice. Price v. Watkins, 283 Ark. 502, 678 S.W.2d 762 (1984).

At trial, Cantrell, a woman in her early 50’s, testified she is in constant pain, has trouble sleeping, and has been unable to work since the accident. Before her fall, she sometimes worked more than one job and averaged about $300 per week in wages and tips. Cantrell said she used to go out every chance she got and that she danced, fished and enjoyed all outdoor sports. Now, she says her neck hurts even when she knits. She lives with her son and daughter-in-law, and they and her other relatives take care of most household chores. She said her doctor bills were over $3,500. Her relatives supported her testimony, stating before the accident, she was very active but now she is depressed and cannot perform even minor tasks. One of her doctors, Dr. Lipscomb, stated he never found anything objectively wrong with Cantrell, but gave her a 5% permanent impairment rating.

Because we cannot say the proof fails to support the amount awarded, and finding no passion or prejudice or other improper influence, we believe the verdict should stand. Price, supra.

       Majewski also argues any lease agreement between the parties violated the Statute of Frauds and was unenforceable; she failed, however, to specifically plead the Statute of Frauds as an affirmative defense and she is unable to rely on the defense now. See Vaughan v. Sutton, 236 Ark. 310, 365 S.W.2d 863 (1963).


text:
    Melvin PHILLIPS v. Joe LaVALLE
    CA 86-159
    737 S.W.2d 652
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Richard McMillan, for appellant.
    No response.
   Tom Glaze, Justice.

The court of appeals certified this case to us pursuant to Rule 29(1) (c) because it involves the interpretation or construction of Rule 3(e) of the Rules of Appellate Procedure. The court of appeals earlier had reversed the trial court’s order granting appellee’s, Joe LaValle’s, timely notice of appeal and designation of record because Phillips failed to specifically state in the notice that the transcript had been ordered from the court reporter, as is provided in Rule 3(e). The court of appeals, relying on Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987) and Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), reversed the trial court’s order, holding the court had no power to dismiss an appeal. LaValle, still claiming Phillips’s failure to comply with Rule 3(e), then filed his motion to dismiss with the court of appeals. Upon that court’s certification, we are now called on to rule on LaValle’s motion. We deny it.

Phillips timely filed his notice of appeal on January 30, 1986, but the notice failed to mention the ordering of the transcript. Nonetheless, Phillips did order the transcript on February 12,1986, thirteen days after filing his notice of appeal. The court reporter later informed Phillips’s counsel that she could not start on the transcript before March 1986. Clearly, Phillips’s counsel acted promptly in ordering the transcript and his failure to mention he had ordered it in his notice of appeal in no way delayed this proceeding or in any way frustrated the purpose of Rule 3(e). Our decision in Wise v. Barron, 280 Ark. 202, 655 S.W.2d 446 (1983) controls the situation posed here and dictates the court’s decision, denying LaValle’s motion to dismiss. See also Johnson v. Carpenter, supra.

Hays, J., not participating. Hickman and Newbern, JJ., would grant.


text:
    David Charles STEPHENS v. STATE of Arkansas
    CR 87-55
    738 S.W.2d 91
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Robert C. Marquette, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This case involves a criminal episode which resulted in appellant being convicted of three crimes, kidnapping, robbery and rape. In August 1985, appellant robbed an EZ Mart in Sebastian County and fled the scene in the car of a female employee, whom he forced by gunpoint, to accompany him. He drove to someplace in Crawford County, stopped on a dirt road and raped the employee. On December 5, 1985, appellant was convicted of robbery and kidnapping in the Sebastian County Circuit Court. On March 21, 1986, he was convicted of rape in the Crawford County Circuit Court from which he brings this appeal. Appellant was represented by different attorneys in the Sebastian and Crawford County trials. He raises two points for reversal: (1) his Crawford County rape conviction violated his constitutional rights against double jeopardy because it arose out of the same conduct or criminal episode that already had resulted in his robbery and kidnapping convictions in Sebastian County; and (2) his motions for production of a transcript and for a continuance were wrongfully denied by the trial court.

Appellant, citing Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986), first argues that the double jeopardy clause of the United States Constitution protects him against multiple punishments for the same offense and that, under that clause and A.R.Cr.P. Rule 21.3, the state was barred from prosecuting him at the second trial on the rape charge. From our review of the abstract of record, we cannot find that the double jeopardy and Rule 21.3 issues were raised or ruled on by the trial court. Therefore, appellant’s first point, being raised the first time on appeal, is not properly before the court. Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981).

Appellant next contends the trial court erred in denying his motions for the transcript of the prior Sebastian County trial and for a continuance. We cannot agree. Here, appellant argues that the trial court’s denial of the motions (1) caused his inability to adequately prepare for trial and (2) rendered him unable to determine whether appellant’s attorney in the Sebastian County trial had filed a joinder motion. At trial, appellant made no mention of his attempt to determine if a joinder motion had been filed in the earlier trial. Again, such an argument would have been based upon Rule 21.3 and whether, under that rule, he had requested or waived his right of having the related offenses joined in one trial. That issue simply was not presented below and cannot be considered here. Vasquez v. State, 287 Ark. 468, 702 S.W.2d 411 (1986) (supplemental opinion on denial of rehearing).

We note, too, that appellant provides no record concerning whether his counsel in the Sebastian County proceeding had filed a joinder motion. Nor does he show that he made any efforts to obtain that information to support his transcript and continuance motions, except to say he could not acquire it without the Sebastian County trial transcript, which he was denied by the trial court. As the state points out, appellant had other means without ordering a full transcript of the Sebastian County trial, by which he could establish whether a joinder motion had been filed. In any event, the record is not sufficient for this court to address the joinder issue even if it had been argued below.

We are left with the question of whether the trial court’s denial of the Sebastian County transcript otherwise caused him to be inadequately prepared for the Crawford County trial which, in turn, made it prejudicial error for the trial court to deny him a continuance. Counsel was notified of his appointment to represent the appellant on February 19,1986, and at the same time, the court informed counsel that the trial date was March 21, 1986. Appellant’s counsel requested the Sebastian County transcript and moved for a continuance on March 17,1986, four days before trial. By letter dated March 18,1986, the trial judge ruled against counsel’s motions, noting counsel had access to the state’s complete files, including all the witnesses’s statements, and ruling the best interest of the administration of justice would not be served by the postponement of the trial.

The denial of the motion for continuance is within the sound discretion of the trial court, and the court’s ruling will not be reversed absent a clear abuse of that discretion. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). The burden is on the appellant to establish that there has been an abuse of that discretion. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). Appellant fails to show such abuse of discretion.

For the reasons stated above, we affirm.


author: Per Curiam.

text:
    Mikey Dale FORREST v. STATE of Arkansas
    737 S.W.2d 653
    Supreme Court of Arkansas
    Opinion delivered October 19, 1987

      Appellant, pro se.
    No objection.
   Per Curiam.

On October 9,1984, the appellant Mikey Dale Forrest was found guilty by a jury of two counts of burglary and two counts of theft of property. He was sentenced to two concurrent terms of twenty years for the burglary convictions and two concurrent terms for the theft convictions. The prison terms for burglary were ordered served consecutively to the terms for theft. His trial attorney John Frank Gibson filed a notice of appeal but did not lodge the record with this court within the time allowed for filing a record on appeal. He filed a motion for rule on the clerk in which he contended that the court reporter was at fault for miscalculating the time for filing the record. We denied the motion, noting that it is the attorney’s responsibility to file the record. We said that if Gibson would admit that the error was his fault, the record would be filed.

Gibson filed a second motion for rule on the clerk but again insisted it was the court reporter’s responsibility to prepare the record and notify counsel if an extension of time to lodge the record was needed. We denied that motion also. We said at that time that we put “the responsibility where it belongs, on the shoulders of a lawyer who is at fault.” Gibson apparently abandoned the appeal since he did not file another motion for rule on the clerk admitting fault. Mikey Dale Forrest has now filed a pro se motion for rule on clerk in which he asks that the record be lodged.

The motion for rule on clerk is granted. Appellant is correct that it was his attorney’s responsibility to lodge the record and that it was through no fault of his that counsel failed to meet his responsibility. If John Frank Gibson were not now a prosecuting attorney, we would require him to continue to represent the appellant in this matter since he was clearly at fault and was remiss in abandoning the appeal. Because he is no longer in a position to represent the appellant, we will appoint Robert L. Baker as counsel.

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

Motion granted.


text:
    Victor Wayne BOGAN v. STATE of Arkansas
    CR 87-110
    738 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered October 26, 1987

      Sandra T. Berry of Grant & Berry, for appellant.

      Steve Clark, Att’y Gen., by; Robert A. Ginnaven III, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The present appeal is from the trial court’s order denying appellant’s motion for a belated appeal. The only matter for consideration on appeal is whether the trial court erred in denying the appellant the right to a belated appeal. After reviewing the entire record and the briefs we are of the opinion that the trial court did not commit prejudicial error.

OnNovember 12,1985,theappellant was tried by a jury and convicted of two counts of delivery of a controlled substance. He was sentenced to twenty years on each count to be served concurrently. The appellant was represented at the trial by an attorney whom he had employed. After the trial the appellant was informed by the court that he had a right to appeal. His attorney informed him that he did not think there had been reversible error in the trial proceedings and therefore would not recommend an appeal. No written notice of appeal was ever filed, nor did counsel seek permission to withdraw.

After a hearing on the motion the trial court made findings of fact and conclusions of law which were the basis for denial of appellant’s post-conviction motion. Among the trial court’s findings of fact were that the defendant was not indigent at the time of the trial; that he retained private counsel for the trial as well as the evidentiary hearing on the motion for belated appeal; that both the court and the appellant’s attorney advised him of his right to appeal the conviction and judgment on the merits; that the attorney representing appellant at the trial was very experienced; that the trial attorney also met with the appellant’s wife after the trial and told her that the appellant would have to notify him if he wanted to appeal and that he would be required to pay the costs of the appeal, including costs of the transcript of the record; that the attorney was not paid any additional fee for an appeal; and that the appellant was represented at the post-conviction hearing by employed counsel. Therefore, the court found that the appellant had been informed of his right to appeal, both by the court and counsel, and that defendant chose not to appeal. The motion was denied and this appeal resulted.

There is no statute, rule or regulation which requires a convicted person to appeal a verdict. In fact it is the duty of the person convicted to notify the attorney and/or the court if he desires an appeal. Henderson v. State, 217 Ark. 107, 643 S.W.2d 107 (1982). If counsel is made aware that his client desires to appeal from the judgment of the trial court, the attorney must either give notice of appeal or seek permission to withdraw. The duty of trial counsel is set forth in A.R.Cr.P. Rule 36.26 as follows:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

When an appellant timely informs his attorney that he desires to appeal, the attorney is obligated to continue representation, unless permitted to withdraw by the proper court. Long v. State, 280 Ark. 508, 660 S.W.2d 911 (1983). We have held counsel to be ineffective when the appellant filed the notice of appeal pro se and the attorney of record did not follow through on the appeal. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986).

We had a somewhat factually and legally similar case before us in Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978). In Houston the appellant was notified of his right to appeal by his attorney who also sent papers for appeal purposes to Houston which he failed to return. Under the circumstances of that case we held that counsel was not ineffective and the appellant was not entitled to a belated appeal. In the case of Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983), we discussed the matter of post-conviction responsibility between the accused and his attorney. In Lewis there had been a discussion between the attorney and his client concerning an appeal. The attorney stated that he told Lewis that it would cost $1000.00 or more to perfect the appeal. Counsel took no further action. In granting the motion for belated appeal, we stated:

It is apparent from the attorney’s affidavit in this case that he neither withdrew from the case in accordance with Rule 36.26 nor took any action to see that his client understood that an indigent could ask the trial court to appoint an attorney to perfect an appeal at public expense. Since counsel knew that his client wanted to appeal, he was obligated to file a notice of appeal or obtain permission from the trial court to withdraw. To do nothing amounted to a denial of effective assistance of counsel. Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). If petitioner could not afford the cost of appeal, a motion for permission to proceed as an indigent should have been filed in the trial court. An attorney cannot abandon a convicted defendant merely because his appeal must be pursued at public expense. An attorney who wishes to withdraw from a case must obtain permission from the trial court to withdraw by means of a petition to withdraw containing a statement of reasons for withdrawing.

The foregoing procedure applies whether counsel is retained or appointed and must be followed when the defendant indicates he desires to appeal.

In the present case the trial court determined at the hearing on the motion that counsel was never notified that the appellant desired to follow through with an appeal. The court further found that the appellant was not indigent and therefore had made no showing that he was entitled to an appeal at public expense. Under the circumstances of this case there was no obligation on the part of counsel to comply with the provisions of Supreme Court Rule 11(h) or A.R.Cr.P. Rule 36.26.

The findings of the trial court on a post-judgment motion will not be disturbed unless clearly against the preponderance of the evidence. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. See United States v. United States Gypsum Co., 333 U.S. 364. We cannot say that the findings of the trial court on this post-conviction motion were clearly against the preponderance of the evidence. Therefore, the judgment of the trial court is affirmed.

Affirmed.


text:
    Larry Wayne BURKS v. STATE of Arkansas
    CR 87-75
    738 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered October 26, 1987
    [Rehearing denied November 23, 1987.]

      William R. Simpson, Jr., Public Defender, and Deborah Sailings and Thomas B. Devine III, Deputy Public Defenders, by: Thomas B. Devine III, for appellant.

      Steve Clark, Att’y Gen., by: /. Brent Standridge, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of capital murder and aggravated robbery. The trial court merged the robbery with the capital murder conviction and sentenced the appellant to a term of life imprisonment without parole. On appeal the appellant argues that all of his statements as well as their fruit, a handgun, should have been suppressed because the statements were made after he was “seized” without probable cause. We hold that there was probable cause for an arrest and therefore affirm appellant’s conviction for capital murder.

On April 13, 1986, at approximately 10:00 p.m., two men committed aggravated robbery on the premises of a store on Confederate Boulevard in Little Rock. The owner of the store was shot during the robbery and died sometime later. One of the robbers, Clarence McClendon, was identified and arrested on April 15, 1986. A clerk at the store where the robbery occurred informed the police that she saw appellant with McClendon in the store in the afternoon of the robbery. Another clerk indicated to the police that he saw the appellant and McClendon in the store together in the afternoon and again in the evening right before the robbery. The sheriffs department also received several anonymous telephone calls implicating appellant as the other participant in the crime.

On April 21, 1986, four or five armed officers went to the College Station area with a photograph of appellant obtained from the Little Rock Police Department for the purpose of questioning appellant about the robbery. After locating him about 6:45 p.m., the officers identified themselves and requested that he go with them to the sheriffs department to answer questions about the robbery. The appellant accompanied the officers to the sheriffs department where he made incriminating statements after he was given his Miranda warnings. At 9:45 p.m. he signed a written statement which informed the officers of the location of the .22 pistol used in the robbery.

The appellant argues that he was “seized” within the meaning of the Fourth Amendment, when he accompanied the police to the sheriffs department. If the police lacked probable cause for arrest at that time, appellant’s custodial statements and the handgun would have been inadmissible at his trial. Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422 U.S. 590 (1975); Wong Sun v. United States, 371 U.S. 471 (1963); and Roderick v. State, 288 Ark. 360, 705 S.W.2d 433 (1986).

The protection of the Fourth Amendment, applicable to the states through the Fourteenth Amendment, guarantees the right of people to be secure against unreasonable searches and seizures. Rule 10.1(b) of the A.R.Cr.P. defines a “seizure” as the taking of any person or thing or the obtaining of any information by an officer under the color of authority. The United States Supreme Court has concluded that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. U.S. v. Mendenhall, 466 U.S. 544 (1980). An example given by the Supreme Court in Mendenhall of a circumstance that might indicate a seizure, even where the person did not attempt to leave, was the threatening presence of several officers. A seizure pursuant to an arrest or any other detention that severely intrudes upon a person’s liberty, such as a custodial interrogation, must either be supported by probable cause, Dunaway, supra, or by clear and positive testimony that demonstrates consent. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

Standing alone, the fact that the appellant accompanied four or five officers to the sheriffs department without being arrested or required to go with them does not show that he consented to the detention or interrogation. Foster v. State, supra. There is no testimony or other evidence that the appellant was ever told by any of the officers that he was free to leave at any time. In view of appellant’s uncontradicted testimony that he was never so informed, we conclude that the officers failed to comply with A.R.Cr.P. 2.3 which provides:

If a law enforcement officer acting pursuant to this rule requests any person to come to or remain at a police station, prosecuting attorney’s office or other similar place, he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

Since the officers did not comply with the positive duty prescribed by this rule, and we find no justification for such non-compliance, we conclude that the custodial interrogation of the appellant was not voluntary and constituted a seizure within the meaning of the Fourth Amendment and thus required probable cause.

Probable cause exists where reasonably trustworthy information of facts and circumstances within the officers’ knowledge would lead a person of reasonable caution to believe that a felony was committed by the person to be arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981). Probable cause to arrest without a warrant does not require the degree of proof sufficient to sustain a conviction. Roderick v. State, supra.

It is argued by the appellant that the anonymous telephone calls should not be considered in determining whether probable cause existed. On the other hand the state argues that the anonymous calls should be considered when there is some proof that the calls were reliable. Both sides rely on Illinois v. Gates, 462 U.S. 213 (1983), where the Supreme Court held that an anonymous letter, the reliability of which was confirmed by independent corroboration, gave the magistrate a substantial basis for concluding that there was probable cause to issue a search warrant.

The anonymous tips in the present case were of value to the officers in making their initial investigation. Generally speaking, an officer would indeed be foolish to ignore anonymous tips. So long as the officer does not invade the privacy and freedom of others, he is free to investigate any police matter in any manner not prohibited by law. However, we stated in Conor v. State, 260 Ark. 172, 538 S.W.2d 304 (1976):

The pivotal question, however, is the reliability of the information upon which the officers acted. The identity of the anonymous caller remains unknown. In contrasting such an informant with one who discloses his identity the Supreme Court has said: “The informant was known to [the officer] personally and had provided him with information in the past. This is a stronger case than obtains in the case of an anonymous telephone tip.” Adams v. Williams, 407 U.S. 143 (1972). In United States v. Calovich, 392 F. Supp. 52 (W.D. Mo. 1975), the court examined the point at length and concluded that a warrantless arrest and a warrantless search cannot be justified simply because an anonymous tip proves to be accurate.

Therefore, unverified anonymous telephone tips do not support or contribute to a probable cause determination.

Notwithstanding the above, the officers had knowledge that the appellant was seen together with Clarence McClendon at the scene of the crime in the afternoon of the robbery and again in the evening immediately before the robbery. This knowledge gave the police probable cause to arrest the appellant at the time he was seized. The confession and the handgun were properly admitted into evidence.

Affirmed.

Hickman, J., concurs.