author: John I. Purtle, Justice.

text:
    Herbert MALONE v. STATE of Arkansas
    CR 86-206
    729 S.W.2d 167
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      William L. Wharton, for appellant.

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

The appellant was convicted in the Pulaski County Circuit Court of aggravated robbery, aggravated assault and theft of property. The information charged appellant as an habitual offender, alleging that he had committed “four or more” previous felonies. For reversal he argues: (1) that the court erred in failing to suppress real evidence; (2) that the court erred in refusing to grant a continuance; and (3) that the court erred in allowing evidence of more than four previous convictions in the sentencing phase. The sufficiency of the evidence is not argued on appeal. We do not find reversible error.

A branch of First Federal Savings and Loan Association in Little Rock, Arkansas, was robbed on April 8, 1986. During the investigation immediately following the robbery, the officers identified the appellant as a suspect and determined that he was on a bus headed for Memphis, Tennessee. The Tennessee authorities were advised by the Arkansas police that an Arkansas arrest warrant had been issued. Shortly after appellant arrived in Memphis, the local officers took him into custody. The appellant’s person was searched during the arrest. The officers found a locker key on appellant and used that key to open a locker in the Memphis bus station. The locker contained cash and travelers checks stained with red dye and a handgun.

On the day the trial began the appellant moved for a continuance in order to obtain the presence of witnesses from New Jersey. The request for a continuance was overruled on the grounds that there had been no prior request that the out-of-state witnesses be subpoeaned. At the trial the items found in the bus station locker were introduced into evidence. Several officers gave detailed testimony that the appellant voluntarily signed a consent to search form before they opened the locker. The appellant also testified at his trial and contradicted the officers’ testimony. (He had not testified at the hearing on the original motion to suppress.)

The information had alleged that the appellant had been previously convicted of “four or more felonies.” However, during the penalty phase of the trial the state was allowed to introduce eight prior felony convictions.

We first consider the argument that the evidence found in the locker at the bus terminal should have been suppressed. The chief argument is that the show of force by several officers induced the appellant to agree to sign the consent to search form. For this point he relies upon Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). Rodriquez held that a voluntary consent to search must be proven by clear and positive evidence. In Rodriquez the appellant had been surrounded by armed officers and when he questioned the authority for the search, one of the officers “patted his gun and stated that was all the search warrant he needed.”

The facts of the present case are completely different. When one of the arresting officers sought permission to search the locker, the appellant initially refused and stated he wanted to contact federal authorities. A guard was then placed by the locker in order to secure the evidence while applying for a search warrant. The appellant then changed his mind and agreed to sign the consent to search form. (At trial several officers confirmed the voluntary execution of the consent to search form.)

The burden of proof on the issue of a voluntary consent to search cannot be discharged by the state by merely showing that the accused acquiesced in the search. It must also be shown that there was no actual or implied duress or coercion. White v. State, 261 Ark. 23, 545 S.W.2d 641 (1977). The evidence in this case shows that Officer Bartlett approached the appellant and asked him to step outside the station. The appellant then identified himself and was placed under arrest. Other officers were nearby, but out of precaution they remained at a distance until after the arrest. There is no evidence in the record to indicate that the officers either coerced appellant or used any kind of improper influence whatsoever. Certainly the testimony of the five officers present at the scene satisfies the state’s burden. The trial court therefore correctly concluded that there was no basis for the suppression of the evidence obtained from the bus terminal.

Appellant’s second argument is that the court erred by failing to grant a continuance. Prior to trial both the appellant and his attorney sought to discontinue the attorney/client relationship. The requests were denied. On the day of the trial, the appellant sought to obtain a continuance in order to secure the testimony of out-of-state witnesses. (The appellant wanted to call his mother and his sister as witnesses, and he stated they could not be present until the following week.) No previous mention of the need to call these witnesses had been made to the state or defense counsel. The normal procedure for obtaining attendance of such witnesses is set out in Ark. Stat. Ann. § 27-1403 (Repl. 1979). Such procedure was not followed. In the present case no justifiable excuse was offered for the failure to make an effort to have the witnesses present until the day of the trial. Without citation of authority, we have no hesitancy in holding that the trial court did not abuse its discretion in denying a continuance.

The final argument is that the court erred in instructing the jury that appellant had eight prior felony convictions when the information alleged “four or more.” Our prior decisions relating to the number of prior convictions that can be introduced in the penalty phase may have resulted in some confusion. We take this opportunity to clarify the correct procedure for introduction of prior convictions.

The law in effect at the time of the offense, Ark. Stat. Ann. § 41-1001 (Supp. 1985), controls the number of prior convictions which may be introduced for enhancement purposes. The statute states, in pertinent part:

(1) A defendant who is convicted of a felony committed after June 30,1983, and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows:
(2) A defendant who is convicted of a felony committed after June 30,1983, and who has previously been convicted of four (4) or more felonies, or who has been found guilty of four (4) or more felonies, may be sentenced to an extended term of imprisonment as follows:

Under the foregoing statute there are really only two possible enhanced punishment ranges. The first is the range of punishment for those who have been convicted of, or found guilty of, more than one, but less than four, felonies. The second punishment range is for those who have been convicted or found guilty of four or more felonies.

We considered the enhancement provisions in Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980). There we said that prior convictions are like essential elements of an offense, inasmuch as they must be specifically alleged in order to be introduced at trial. In Clinkscale the appellant had been charged with “two or more” prior felonies. During the sentencing procedure, the state moved to introduce five prior convictions. The defendant objected to this procedure, stating that the state was limited to the introduction of two felonies. The trial court recognized that five priors would increase the punishment range of allowable imprisonment and rejected the proof of “more than two” prior felonies. We reversed because we found that the trial court had actually considered more than two prior felonies.

The number of allowable prior felonies was again considered by this Court in the case of Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984). The Reed opinion attempted to distinguish between “more than two” and “two or more” prior offenses. We take this opportunity to clarify when and why such distinctions may become important. For the purposes of the application of the enhancement statute, we hold that there is no distinction between “two or more” and “more than two” or “four or more” and “more than four.”

The statute controlling the appellant’s case is set out above. The second and fourth finding of prior guilt or conviction places the defendant in a higher range for the purpose of enhancement of punishment. It would be error to allow the state to prove “four or more” priors when the information charges the defendant with only “two or more” felonies because a more severe range of punishment for the offense is invoked when four or more priors are established. When the state alleges “two or more” prior felonies, the accused is justified in believing that he will not have to face the introduction of “four or more” prior convictions at trial. On the other hand, if the state alleges “four or more” there is no limit to the number which may be proven.

The accused is, however, entitled to know before trial the range of possible punishment that he faces. A.R.Cr.P. Rule 17 requires the prosecutor, if requested, to disclose the names and addresses of all witnesses to be called, and to identify any books, papers, documents, or tangible objects to be introduced. Under this rule of criminal procedure, the accused is entitled to know before trial the number of previous convictions the state will attempt to introduce. These discovery rights can be waived if the defense does not utilize them. Plummer v. State, 270 Ark. 11, 603 S.W.2d 402 (1980). The information requested must be furnished in sufficient time to permit the beneficial use of it by the defense. Lewis v. State, 286 Ark. 372, 691 S.W.2d 864 (1985).

In the present case the appellant did not attempt to determine pursuant to Rule 17 discovery procedures the exact number of prior felonies that would be considered. The proving of eight prior convictions instead of four did not add an element to the offense or change the range of punishment. Therefore, there has been no showing of prejudice to the appellant.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Kendall BOWERS v. STATE of Arkansas
    CR 86-216
    729 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      Ross & Ross, P.A., by: Joe Ross, for appellant.

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

On July 11,1984, appellant pled guilty to three counts of aggravated robbery and was sentenced to imprisonment for forty years. Two years later, he filed his petition for Rule 37 relief, claiming that his attorney misinformed him regarding the amount of time he would actually serve. He argued below, and now on appeal, that he would not have pled guilty if he had been properly informed concerning his parole eligibility. The trial court denied appellant’s petition without a hearing, and we affirm.

As noted by the State, appellant’s abstract of record consists only of a list of the pleadings with little or none of their contents described; and while he recites part of his rule 37 petition, the court’s order denying it is not set out. When, as here, an appellant’s abstract is deficient, our practice is to rely on the record if it shows that the trial court’s decision should be affirmed on a particular point, but not to explore the record for prejudicial error if none is shown by the abstract. Smith v. State, 278 Ark. 462, 648 S.W.2d 792, cert. denied, 464 U.S. 890 (1983).

In reviewing the record, we are apprised that the appellant entered his guilty plea, knowing he would receive a forty-year sentence. It was after he entered his plea that he claims his counsel misinformed him that he could expect to be paroled after four or five years. Clearly, under those circumstances, appellant had not relied upon counsel’s advice concerning parole eligibility when entering his plea of guilty. However, even if he had been given such information before entering his plea, we have held that erroneous advice concerning parole eligibility does not automatically render a guilty plea involuntary. Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986).

Because appellant fails to demonstrate any prejudicial error, we affirm.

Holt, C.J., not participating.

Hickman and Purtle, JJ., concur and would affirm under Rule 9 of Rules of the Arkansas Supreme Court and Court of Appeals.


text:
    Rev. Vivan T. RHODES and Pearl RHODES v. WESTSIDE FREE WILL BAPTIST CHURCH, et al.
    86-265
    729 S.W.2d 171
    Supreme Court of Arkansas
    Opinion delivered May 18, 1987

      R. H. "Bud” Mills, P.A., for appellants.

      Larry D. Douglas, for appellees.
   Tom Glaze, Justice.

The case involves a dispute over church property. Claiming ownership of the property, Reverend Vivan Rhodes and his wife, Pearl, brought this action, requesting the appellees be enjoined from entering or trespassing on it. Appellees, representatives and trustees of the Westside Free Will Baptist Church (Westside Baptist), answered and counterclaimed, and, among other things, denied the Rhodes’s allegation of ownership. After the Rhodeses presented their case-in-chief at trial, appellees moved to dismiss the Rhodes’s complaint, saying the Rhodeses had failed to make a prima facie case. The chancellor granted appellees’ motion, and, on appeal from that decision, appellants list one point for reversal, viz., that they had presented sufficient evidence to sustain their claim. We disagree, and, therefore, affirm.

The facts leading to this controversy are largely undisputed. By warranty deeds in 1959 and 1968, Reverend Rhodes and his now-deceased wife, Irma, conveyed two tracts of land to the trustees for the Peoples Mission, their successors and assigns. Both deeds contained a reverter clause that stated “should this property cease to be used for religious purposes then it should revert to the grantors, their heirs and assigns.” Reverend Rhodes was pastor at Peoples Mission, a non-denominational church, and during his participation at Peoples Mission, various church buildings were constructed on the property, culminating with the completion of a fellowship hall in 1968. Rhodes remained active in the church until September 1982, when he entered the hospital. Due to health and other problems, he became inactive and was away from the church. It was during this period of Rhodes’s absence from Peoples Mission that changes began to occur.

Rhodes’s son, appellee Garry Rhodes, began taking a more active role in the church’s affairs. Garry said that he was asked by his father to call a Reverend Donnie Villines, who was subsequently selected in December 1982 as the new pastor of Peoples Mission. In early 1983, church members met and voted to formally organize the church, naming it the People’s Mission Independent Baptist Church. The members adopted a constitution and bylaws, elected its officers, named new trustees and formally hired Reverend Villines as the pastor. Later, the newly-formed church hired another pastor, and, under his auspices, the church, in March 1985, was renamed the “Westside Free Will Baptist Church.”

In August 1985, Reverend Rhodes, who had remarried, moved back into his house which is located on property near the church. On August 1,1985, Rhodes and Arthur Sutherlan, as the two surviving trustees of Peoples Mission, held a meeting. At that meeting, the two men executed a deed, describing the property earlier deeded Peoples Mission in 1959 and 1968, to Rhodes, as grantee. In turn, Rhodes signed a deed to this property, naming him and his wife grantees. In September 1985, Rhodes and his wife filed this suit against the Westside Baptist Church, its pastor and trustees, including his son, Garry.

We should first make it clear that appellants have never contended that the newly-established church was illegally formed or that trustees were not duly elected. While Rhodes has steadfastly complained that he and Sutherlan, as trustees of the original church, were never notified that the Peoples Mission would be formally organized, he does not assert title to the disputed property as a result of the church members’ failure to legally organize Peoples Mission into a different legal entity—which eventually became a denominational church named Westside Baptist Church. Appellants, instead, filed this action against Westside Baptist Church and its trustees, who, as parties in this case, are successor trustees to those previously named for Peoples Mission in the 1959 and 1968 deeds.

Under appellants’ theory of the case, Rhodes asserts that the appellees violated the reverter clauses contained in the 1959 and 1968 deeds, and, as a consequence, the title to the church property reverted to him, as grantor. Our court, of course, has long held that slight circumstances will often be seized upon to prevent a forfeiture. Jeffries v. State, Use of Woodruff County, 216 Ark. 657, 226 S.W.2d 810 (1950) (wherein the court affirmed the chancellor’s decision not to approve a forfeiture when the deed given Woodruff County restricted the use of the property to “county purposes.”)

When we review the record at bar, we find no evidence that appellees breached the “religious purposes” restriction contained in the 1959 and 1968 deeds. In fact, Rhodes tacitly conceded throughout his testimony that the property he had conveyed to Peoples Mission is still being used for religious purposes. Rather, his chief complaint is that he never intended the property to be used by a denominational church, and, for that reason, he had the reverter clause placed in both deeds. Although we understand Rhodes’s disappointment in the changes made in Peoples Mission after he became inactive, our study of the record leaves no doubt that the property he conveyed to the church in 1959 and 1968 is still being used for religious purposes, albeit denominational and Baptist ones.

Based on the evidence presented, the chancellor clearly was correct in finding that the appellants failed to make a prima facie case to invoke the deeds’ reverter clauses. Accordingly, we affirm.


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice

text:
    The CITY COURT OF PEA RIDGE, ARKANSAS v. Albert TINER
    86-267
    729 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Thurston Thompson, for appellant.

      Jeff Duty, for appellee.
   Jack Holt, Jr., Chief Justice.

Albert Tiner was charged in the City Court of Pea Ridge under state law for driving while intoxicated. The city court refused his motion for a change of venue to Rogers Municipal Court. Tiner subsequently petitioned the Benton County Circuit Court for a writ of prohibition to prevent the city court from proceeding. The circuit court granted the writ and ordered a change of venue. The city court appeals from that order.

We agree with the trial court and affirm. In Russell v. Miller, 253 Ark. 583, 487 S.W.2d 617 (1972), we analyzed similar issues in light of Ark. Stat. Ann. § 19-1102 (Repl. 1980) and § 22-725 (Repl. 1962). Section 19-1102 invests the mayor’s court (now renamed the city court) with the same jurisdiction and power of a justice of the peace over criminal cases arising under the laws of this state. Section 22-725 provides the jurisdiction of the justice of the peace may be subject to a motion for change of venue to municipal court and that, upon the filing of such a motion, the justices of the peace “shall have no further jurisdiction in the case.” We concluded, and rightfully so, that when these statutes are read together, they mean that the jurisdiction of the mayor’s court (city court), like that of the justice of the peace, is subject to a motion to transfer to municipal court when a state offense is involved, and that upon the filing of a motion to take a change of venue, jurisdiction is withdrawn from the city court.

Divestment of jurisdiction from the city court is not contrary to Ark. Const, art. 7, § 43, which gives the General Assembly authority to set jurisdiction of corporation courts.

Writs of prohibition may be utilized when the trial court is entirely without jurisdiction or is attempting to act beyond its jurisdiction. Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980). The granting of the writ of prohibition in this instance was proper.

Affirmed.

Hickman, J., dissents.

Darrell Hickman, Justice

dissenting. In my opinion the legislature cannot confer jurisdiction in a criminal case upon a municipal court when the act is committed beyond its corporate limits. That was the intent of the constitution in its scheme of inferior courts. Ark. Const, art. 7, §§ 40,45. See also my dissent in Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981).

The effect of the majority’s decision is that an offense committed in one city can be tried in another. This is not a question of venue, but of jurisdiction. Furthermore, the statute does not state cases from city courts may be transferred to another court, only cases from justices of the peace courts. Whatever happened to the law that we interpret legislative acts according to the clear meaning of the words used? City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977); Vault v. Adkisson, 254 Ark. 75, 491 S.W.2d 609 (1973). This is yet another decision compounding the confusion that exists in the inferior court system.


author: Darrell Hickman, Justice.

text:
    Terry RICKETTS v. STATE of Arkansas
    CR 86-210
    729 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Murphy & Carlisle, by: John Wm. Murphy, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Terry Ricketts was convicted of first degree murder and second degree battery and was sentenced to 46 years imprisonment and fined $ 10,000. On appeal he argues that the evidence was insufficient to support the conviction for murder because the state failed to prove premeditation and deliberation and because he acted in self-defense. He also argues that the sentence was excessive. We affirm.

On the evening of April 18, 1986, Mickey Freeman had a private party at a building he owned called the “pool hall” located in Newton County. Roger Nichols, the murder victim, and five others were present. They put a sign on the door, which read “Private Party — Keep Out,” covered the windows with curtains and parked a truck in the driveway in order to keep the party private. Around 10:00 p.m. Ricketts and two other individuals entered the building uninvited and began to play pool. Freeman told Ricketts they had three seconds to leave. He then fired a military, semi-automatic carbine three times in their direction. The shots hit a wall within five feet of them. Ricketts left the premises, and there was testimony that Ricketts said he would kill Freeman. Both groups had been drinking alcohol for much of the day and evening.

Later that evening, Freeman and Ricketts met again at a rock quarry. Ricketts drove up, stuck his head in the car Freeman was in, and tried to grab the carbine which Freeman had with him. Freeman wrestled it away and Ricketts then left. About 2:00 a.m. on April 19, Ricketts woke a friend, Johnny Hefley, in order to borrow his shotgun. Ricketts said he saw some deer along the road, and Hefley told Ricketts he had only squirrel shot. Ricketts said that was okay and took the gun. There was testimony that Ricketts told Hefley, “you ain’t seen me over here.” Minutes later, Freeman, Nichols, and Dennis Shátwell passed Ricketts and his friends, who were stopped on the side of the road. Freeman wanted Shatwell to drive on, but Shatwell stopped to see if they needed help. Almost instantaneously, Ricketts fired the borrowed shotgun toward Shatwell’s truck, killing Nichols and injuring Freeman. Shatwell immediately drove off. Ricketts fired a second time, hitting the truck. There was testimony that Ricketts said “take that” when he fired.

Ricketts claims Freeman had his carbine pointed out the window at him when he drove up, and he feared for his life since Freeman had already fired at him once that evening. Ricketts testified that as he picked up the shotgun, it accidently fired and that he was not aiming at anyone. He also testified that someone told him to “reload and shoot again,” but he did not remember who said this. However, other testimony and evidence indicated Freeman did not have the gun pointing out the window, but instead had the gun between his legs with the barrel pointing downward, and Ricketts simply aimed and fired the shotgun at Freeman.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). On appeal we view only the evidence which is most favorable to the jury’s verdict and do not weigh it against other conflicting proof favorable to the accused. Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985).

There is sufficient evidence of first degree murder in this case. Premeditation and deliberation need not exist for any particular length of time, and they can be inferred from the circumstances of the case, such as the character of the weapon used, the manner in which it is used, the nature, extent, and location of the wounds inflicted, the conduct of the accused, and the like. Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987); Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).

One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Martin v. State, 290 Ark. 293, 718 S.W.2d 938 (1986); Burton v. State, 254 Ark. 673, 495 S.W.2d 841 (1973); Ark. Stat. Ann. § § 41-506, 41-507 (Repl. 1977). The jury did not accept Ricketts’ defense of self-defense. Also, Ricketts’ actions are not excused simply because he was under the influence of alcohol. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

The sentence imposed against Ricketts was not excessive because it was within the statutory limits. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Affirmed.


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

text:
    The ARKANSAS RURAL MEDICAL PRACTICE STUDENT LOAN AND SCHOLARSHIP BOARD v. Dennis Wayne LUTER
    86-253
    729 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Fred H. Harrison, General Counsel for the University of Arkansas and Steve Clark, Att’y Gen., by: C. Randy McNair, Asst. Att’y Gen., for appellant.

      Harkey, Walmsley, Belew & Blankenship, by: John Norman Harkey, for appellee.
   John I. Purtle, Justice.

In 1949 the legislature passed Act 131 creating the Arkansas Rural Medical Practice Student Loan and Scholarship Board to promote medical practice in rural areas. The act provided for a five member board, established methods of funding and authorized the Board to lend money to University of Arkansas medical students in amounts not exceeding $1,625 per year nor $6,500 per student. The loans were subject to a number of conditions including a provision that if the recipient elected to practice in a community having a population of 2,000 or less (defined as a rural community), the debt was discharged on a ratio of 20 per cent for each year of practice in such rural community. By subsequent amendments a number of changes have been made in the original act, including increases in the population of a rural community and in the amounts available per student.

While attending medical school during 1974, 1975 and 1976, Dr. Dennis Luter (appellee) received loans totalling $13,900 from the Board (appellant). The notes provided that if Dr. Luter practiced medicine in a community having a population of 6,000 or less, the loans would be discharged as provided in the act. The loans became due on January 1, 1979 but payment was extended by the Board due to hardship.

In 1982 Dr. Luter located in Batesville. The Board notified him that Batesville, having a population of 8,241, did not qualify as a rural community. Dr. Luter refused payment of the notes and in October of 1985 the Board filed suit against him. Dr. Luter moved to dismiss the complaint based on Act 797 of 1985, which increased the population of a rural community from 8,000 to 8,300. The parties stipulated that Batesville had a population of 8,241. The trial court granted the motion to dismiss upon a finding that Batesville met the definition of a rural community under Act 797. The Board has appealed.

When Dr. Luter settled in Batesville in mid-1982, a rural community was defined under Act 47 of 1981 as having a population of 8,000 or less. Hence Dr. Luter was clearly not entitled to have his debt to the Board discharged. However, Act 797 of 1985 increased the figure to 8,300. The act, with an emergency clause, took effect on April 3, 1985, so the issue is whether Act 797 was intended to operate retrospectively. If so, we must affirm the trial court. If not we must reverse. We hold the act was not meant to operate retrospectively.

The general rule can be stated categorically—laws affecting substantive rights operate prospectively. The editors of Am.Jur.2d, Vol. 73, Statutes, § 350, state the rule in these terms:

The question whether a statute operates retrospectively, or prospectively only, is one of legislative intent. In determining such intent, courts observe a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. However, a contrary determination will be made where the intention of the legislature to make the statute retroactive is stated in express terms, or is clearly, explicity, positively, unequivocably, unmistakably, and unambiguously shown by necessary implication or by terms which permit no other meaning to be annexed to them, and which preclude all question in regard thereto, and leave no reasonable doubt thereof. (Our emphasis).

The operation of a statute must be prospective only, “unless the words are so clear, strong and imperative as to have no other meaning.” United States Fidelity & Guaranty Co. v. Struthers Wells Co., 209 U.S. 306 (1908). “Any doubt is resolved against retroactivity and in favor of prospectivity only. McQueeney v. Catholic Bishop of Chicago, 159 N.E.2d 43, 80 A.L.R.2d 796 (1959). “A retrospective application will not be given to a statute which interferes with antecedent rights unless such be the unequivocal and inflexible import of the terms and the manifest intention of the legislature.’’’’ United States v. Security Industrial Bank, 459 U.S. 70 (1982) (our emphasis). Statutes will not be construed to have retroactive operation “unless the language is so clear it will admit of no other construction.” Sutherland Statutory Construction, Vol. 2, § 41.04, p. 348.

Our own cases are in accord with the foregoing. In Abrego v. United Peoples Federal Savings & Loan, 281 Ark. 308, 664 S.W.2d 858 (1984) this court refused to give retroactive application to a regulation of the Federal Home Loan Bank Board affecting due-on-sale clauses in mortgages. The Abrego opinion quotes with approval language from United States v. Security Industrial Bank, et al., supra:

The first rule of construction is that legislation must be considered as addressed to the future, not to the past. . . . The rule has been expressed in varying degrees of strength but always of one import, that a retrospective operation will not be given to a statute which interferes with antecedent rights . . . unless such be “the equivocal and inflexible import of the terms, and the manifest intention of the legislature.”

The court in Abrego concluded:

In the absence of any express language requiring retroactive application of the regulation, and because of the vested property rights under state law, the regulation does not operate retroactively. (Our emphasis).

In United States Gypsum Co. v. Uhlhorn, 232 F. Supp. 994 (E.D. Ark. 1964) the federal district court considered retroactivity in connection with a dispute over the procedures for purchasing state lands. Prior to March 30, 1959 one procedure was prescribed. By Act 452 of 1959 the procedure was changed while an application to purchase was pending, but prior to completion and issuance of a deed. Judge Gordon Young held that Act 452 only applied prospectively and did not affect the application filed under prior law:

Clearly, a statute under the laws of Arkansas will not be given a retroactive effect if it is susceptible to any other construction. (Citations omitted) Uhlhorn at p. 1002.

In Chism v. Phillips, 228 Ark. 936, 311 S.W.2d 297 (1958), we said:

“It is presumed that all legislation is intended to act only prospectively, and all statutes are to be construed as having only a prospective operation unless the purpose and intention of the Legislature to give them a retroactive effect is expressly declared or necessarily implied from the language used.”

To the same effect see Hardin, Commissioner of Revenues v. Ft. Smith Couch & Bedding Co., 202 Ark. 814, 152 S.W.2d 1015 (1941) and Snuggs v. Board of Trustees of Arkansas State Employees Retirement System, 241 Ark. 402, 407 S.W.2d 933 (1966).

Turning to Act 797, we find no express language that the act is intended to operate retroactively. In fact the only express language is to the contrary—that the act will take effect on passage and approval (April 3, 1985). In other cases we have considered such contradictions to weigh against retroactivity. See Lucas v. Hancock, 266 Ark. 142, p. 153, 583 S.W.2d 491 (1979). Hence, our interpretation of the act must be aimed at determining whether retroactive effect is implied so clearly and unequivocally as to eliminate any doubt.

The trial court relied on the language in Section 3 of the act:

Emergency. It is hereby found and determined by the General Assembly that the definition of rural community as used in the Rural Medical Student Loan and Scholarship Act has been misconstrued; that it is the intention of this Act to redefine the term “rural community” for the purposes of that Act and to make it applicable to persons who have in the past or now practice medicine in such rural communities; that some doctors have been denied the cancellation of their loans due to the misinterpretation of the law; and that this Act is immediately necessary to provide an equitable remedy to such persons. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.

Certainly the words “to persons who have in the past or now practice medicine in such rural communities. . .’’is suggestive of retrogression. But we do not believe it meets the requirements of the law. That language would be more persuasive if it were not part of the emergency clause—the same provision that expressly declares that the act is meant to take effect on passage. In short, it is difficult to conclude that an act which expressly states it will take effect at passage can by the same provision imply that it takes effect at some earlier unspecified time. If that is the intent of the legislature, it must be more explicit. The implication is at least as great that it is meant to take effect at passage and apply to persons who now or in the past have practiced medicine in a rural community. We note too that in previous amendments to Act 131 the legislature has expressly provided that no provision of the amending act shall impair any loan obligation now outstanding. (See Act 62 of 1972).

Therefore, we cannot say with assurance that the ambiguous wording of the emergency section of Act 797 so clearly manifests an intent that the act have retroactive effect that we are free of doubt. On the contrary, the language itself leaves us with a distinct uncertainty as to the intent.

There are added reasons why we have come to this view—Act 797 is amendatory and we have held that the rules against retroactive operation apply especially with reference to amendatory acts. Lucas v. Hancock, Adm’x., supra.

Secondly, it is plain this legislation (Act 797) insofar as it changes the population ceiling of a rural community from 8,000 to 8,300 operates specially. The original act set the ceiling at 2,000. Act 69 of 1955 left that figure intact. Act 181 of 1963 increased it to 4,000, Act 533 of 1971 increased it to 6,000 and Act 47 of 1981 to 8,000. None of the seven amendments to this legislation have been made retroactive nor have the previous population changes been so clearly tailored to a specific community. While we regard such considerations as matters of legislative discretion, where the issue is retroactivity versus prospectivity, there is authority to the effect that “the policies against retroactivity weigh most heavily against retroactive laws which are also special in their application.” Sutherland Statutory Construction, Vol. 2, § 41.04, p. 348.

Finally, also present here is the factor that retroactive application of Act 797 would impair contractual rights of the Board which had vested some six years prior to the adoption of Act 797. When that is so, it is even clearer that the language of an enactment must be express if it is to have retroactive effect. Appellee argues that a state may impair its own rights as opposed to those of a private entity without violating Article 2, Section 17 of the Arkansas Constitution. But the issue is not the exercise of the power but whether that was indeed the intent. We are decidedly of the view that Act 797 failed to make that intention clear.

Appellee cites Aluminum Co. of America v. Neal, 4 Ark. App. 1, 626 S.W.2d 620 (1982) wherein the Court of Appeals construed Act 215 of 1979 (allowing lump sum attorney fees in workers compensation cases) as intended to take effect retroactively. Act 215 was passed promptly after this court invalidated lump sum attorneys fees in U.S.F. & G. v. Potter, 263 Ark. 689, 567 S.W.2d 104 (1978). But in Neal there was no element of vested rights and no hint of special legislation. Lump sum attorney fees had been allowed before Potter and they were reinstated by Act 215. The Court of Appeals simply held the act was intended to continue such allowances without interruption. The remedial objectives of the legislation warranted that result.

The order appealed from is reversed and the case is remanded for further proceedings.

Hickman, Hays, and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. While the language in Act 797 does not state specifically that the act shall be applied retroactively, it does contain explicit language that can have no other possible intent. Thus it is either expressly stated or necessarily implied, depending on one’s point of view. Section 3 of the act reads in part:

. . . it is the intention of this act to redefine the term “rural community” . . . and to make it applicable to persons who have in the past or now practice medicine in such rural communities', that some doctors have been denied the cancellation of their loans due to the misinterpretation of the law; and that this Act is immediately necessary to provide an equitable remedy to such persons. (My emphasis.)

When the legislative intent to have an enactment operate retroactively is clearly stated, it is the duty of the judicial branch to construe the legislation accordingly. We did that in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). The Court of Appeals did the same in Aluminum Co. of America v. Neal, 4 Ark. App. 1, 626 S.W.2d 620 (1982). Yet neither statute construed in those cases expressly or impliedly suggested retroactive application, we simply chose to construe the acts in that fashion.

Clearly, if Act 797 is to provide the equitable remedy to persons who have in the past practiced medicine in a rural community who are being “denied cancellation of their loans due to misinterpretation of the law,” the act must be given retroactive effect. Under the majority’s interpretation, the purpose and avowed intent of the act is defeated.

The very fact that earlier amendments to Act 131 of 1949 have expressly stated that no provision of the amending act shall be construed as impairing any loan “now outstanding” (See Act 62 of 1972, for example) reinforces the position that Act 797 intends that loans of persons practicing in rural communities of 8,300 and under would be affected by the 1985 amendment. The fact that Act 797 raised the rural community ceiling to 8,300 rather than 9,000 evidences, I believe, that the intent of the legislation was that anyone then practicing in Batesville (or other smaller communities) would benefit under the act.

I am not troubled by the fact that the emergency clause (which is actually part of the act) states that the legislation takes effect at passage. That is the traditional wording of emergency clauses and cannot defeat an intent otherwise stated—that the act have retroactive operation. Act 169 of 1913, for example, provides that it will be construed as having retroactive effect, at the same time stating it will take effect at passage.

As to the argument that legislation cannot impair antecedent rights under a contract it is enough to say that only the rights of the state itself are impaired by Act 797 and it is plain the state is free to impair those if it wishes. Skelton v. B.C. Land Company, Inc., 260 Ark. 122, 539 S.W.2d 4 (1977).

I believe the trial court ruled correctly and should be affirmed.

Glaze, J., joins in this dissent.

       Ark. Stat. Ann. § 80-2908—2919 (Repl. 1980).

       In contrast, see Act 169 of 1913 (“provided, that this Act shall be construed as retrospective as well as prospective in operation”) or Act 102 of 1935 (“This act shall be retroactive and shall take effect as of October 1, 1934”).


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

text:
    Edgar HARVEY v. STATE of Arkansas
    CR 86-213
    729 S.W.2d 406
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Henry J. Swift, for appellant.

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

The appellant was convicted of two counts of first degree murder. His appeal presents three issues. First, he contends the statement he made to police officers should not have been admitted into evidence because he had once declined to make a statement. As we determine the statement to have been voluntarily made after waiver of his right to remain silent, we find no error. Second, he contends his tape recorded statement, which was made while he was in custody and which was partially inaudible, was inadmissible, and that a transcription of the tape recording should not have been admitted into evidence and given to the jury because it was inaccurate. We find no unfair prejudice resulting from admission of the recording or evidence to support the claim that the transcription was inaccurate. Third, the appellant contends it was error to permit introduction of gory pictures of the victims. We find the photographs were not so inflammatory as to prejudice the jury unfairly.

1. Voluntariness of statement

The appellant contended he killed the victims in self-defense. After having shot each of them with a shotgun, he called the police to report the killings. Upon his arrest the appellant was taken to the police station where, at 5:00 a.m. on December 25, 1985, he was warned of his rights and signed a waiver form but declined to make a statement. The following morning, at 9:10 a.m., two police officers who had not previously spoken with the appellant interrogated him. One of the officers, Detective Sanders, testified that neither he nor the other officer at the second interrogation knew the appellant had earlier refused to make a statement. The appellant was again given the standard notification of his rights and warning that any statement he made might be used against him. He again waived his rights and signed a form to that effect. The appellant made the statement which was tape recorded and admitted into evidence.

The appellant contends his statement was not voluntary. At the trial he testified that he told the officers at the time the statement was made that he was not feeling well and that they should talk to him later. No such testimony was given by Detective Sanders who said the statement was made voluntarily by the appellant who not only signed the waiver of rights form but also said he understood his rights.

In Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986), we held that a resumption of police questioning of an incarcerated suspect by an officer to whom the suspect had not previously refused to speak was not necessarily a violation of the right to remain silent. We pointed out, after reviewing Michigan v. Mosley, 423 U.S. 98 (1975), and the difference between interrogation after a request for counsel and after refusing to make a statement, that as long as there is no evidence of coercion, a statement made voluntarily may be admissible against an accused who made it even though he once previously refused to make a statement.

A hearing was held by the trial court, at the request of the appellant, to determine the voluntariness of the statement. The only matter presented at the hearing by the appellant was his objection to the statement’s admissibility “as a matter of law” on the ground of the previous refusal of the appellant to make a statement. When the court inquired whether he was contending he had been coerced to make the statement, the appellant’s counsel responded that he could not “relate” to that as the appellant was unsure what had happened. He presented no evidence of coercion whatever at that hearing, and the judge found that the statement was voluntary.

Although we probably need not do so in this case, we will review the evidence as to the voluntariness of the confession and come to an independent conclusion, as has been done in other cases where the voluntariness of the confession was at issue. See Davis v. North Carolina, 384 U.S. 737 (1966); Cage v. State, 285 Ark. 343, 686 S.W.2d 439 (1985). However, we do not reverse unless the trial court’s determination of voluntariness is clearly erroneous. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). The factors we consider are set out in Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984).

The appellant testified he was forty years old and could read and write. Although his counsel intimated the appellant had no education there was no evidence of it one way or the other. He was twice advised of his rights and twice signed waiver forms. There is no evidence that he was held incommunicado for a long time or that he was repeatedly questioned in an attempt to wear him down. Nor does the record contain any other evidence of coercion or promise. The appellant stated to Detective Sanders that he understood his rights just prior to making the statement. He had been incarcerated just a little over twenty-four hours.

The record supports the trial court’s finding that the statement was voluntary.

2. The recording and the transcript

The tape recording of the appellant’s statement is inaudible in places. Detective Sanders testified that a transcript of the tape had been made, and that it reflected what was on the tape, but did not include the inaudible portions. The appellant objected to the admission into evidence of the recording on the basis of its partial inaudibility and to the transcript on the basis of its inaccuracy. The judge admitted both.

The appellant’s argument on this point states simply that the inaudibility of the recording and the fact that the transcript has left out parts of the interview violate his right to due process of law accorded by the Fifth and Fourteenth Amendments to the United States Constitution. No such constitutional argument was made to the trial court, and thus we will not consider it here. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985).

Nor do we find the admission of the transcript into evidence otherwise erroneous. The judge admonished the jury that the transcription was to be used only as an aid in understanding the recording. By comparing the recording with the transcript, the jury could ascertain the instances where the person who made the transcript omitted the inaudible portions of the statement. While we have some reservations about the fact that some of what the appellant said in the interview was not recorded, it is not a matter of great concern, as the audible portions of the recorded statement are essentially consistent with the appellant’s testimony at the trial and state he killed the victims in self-defense. The transcript was an accurate representation of the audible portion of the recording. If the transcript is accurate, it is admissible if it would otherwise be necessary to play the tape several times for the jurors. Baysinger v. State, 261 Ark. 605, 550 S.W.2d 445 (1977).

3. The photographs

Even if photographs are inflammatory in the sense that they show human gore repulsive to the jurors, they are admissible within the discretion of the trial judge if they help the jury understand the testimony. In this case a police officer testified that the photographs of the two victims at the scene of the crime fairly depicted the positions in which they were found. A medical examiner testified the autopsy pictures aided his testimony as to the condition of the bodies and their positions at the times the shots were fired. The judge did not abuse his discretion in admitting these photographs. Fairchild v. State, 284 Ark. 289, 293 S.W.2d 380 (1984).

In support of his argument on this point, the appellant cites Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), in which this court found too many photographs were introduced and thus the court’s discretion had been abused. Here, the judge seemed to follow that decision to the letter by excluding pictures which were duplicative. We find no error.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The introduction of some of these photographs served absolutely no purpose other than to arouse the passion and prejudice of the jury. I do not understand how the colored photographs of the blood and of the autopsy procedures assisted the jury in understanding the testimony of any witness or assisted any witness in presenting his testimony.

The facts of the case were not disputed, and there was never any need for much of an investigation. The appellant called the sheriff and reported that he had killed these two men. When the sheriff arrived at the scene of the crime, the appellant gave them the gun that he had used and explained how he had murdered the victims. Each was shot once in the chest by the appellant with a shotgun. The shots fired by the appellant killed the men instantaneously. If the photographs were of any assistance to the jury, which they were not, then the less gruesome photographs would have been adequate.

The majority misses the issue by stating that the trial court excluded pictures which were duplicative. I interpret this to mean that he excluded duplicate representations of the inflammatory photographs. The opinion fails to point out how the pictures aided the presentation of testimony to the jury or the jury’s understanding of any relevant evidence.

In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), we analyzed and re-examined our position relating to the introduction of inflammatory photographs and stated:

The analysis should firmly emphasize the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature, rather than promoting a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and the crime scene the prosecution can offer.

It appears that such reasoning is limited to the Berry case; the majority opinion in the present case certainly does not follow the same logic.

The courts should scrupulously honor the defendant’s right to a fair trial. Unusually repulsive and gruesome pictures should not be used when their relevance is slight, and the prejudice is great. If there is no significant relevance to an issue, then the primary purpose for their introduction can only be to inflame and arouse the passions and prejudices of the jury.

Often bodies are moved or repositioned for the purpose of taking photographs for presentation to the jury. Two of the photographs in question are of such inflammatory nature that I believe a stranger could have been placed in the defendant’s chair and the jury would have convicted him after viewing the pictures. One picture is worth a thousand words—especially if it is gruesome and gory.

When Berry was decided I had hoped that we were going to take a straightforward and practical approach in matters relating to the introduction of photographs in criminal cases. However, it appears that we are now back to our old rule which is essentially that introduction of photographs is not subject to review on appeal. Each such decision invites the state to present even more gruesome photographs in the next trial.

The danger of allowing the introduction of such photographs is that such evidence will be substituted for the direct proof required to establish that the accused committed the crime. Courts and prosecutors sometimes fail to recognize that pictures frequently present a false impression.

My fears are based upon statements by this Court such as were made in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), where the court stated: “In this case the photographs were obviously a strong part of the state’s direct evidence, and we find no abuse of discretion by the trial court.” Indeed they probably were—and will continue to be in the future. Hopefully, photographs will not become the chief record on appeal.

The introduction of the irrelevant and prejudicial photographs in this case was as senseless as was the crime. Truthfulness and fair play demand the exclusion of these morbid pictures.


author: David Newbern, Justice.

text:
    Jack L. MAY, et ux v. J.T.L., Inc.
    86-283
    729 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Phil Stratton and Casey Jones, Ltd., by: Phil Stratton, for appellants.

      Peel, Eddy & Gibbons, for appellee.
   David Newbern, Justice.

The appellee sold the appellants two tractors and a front end loader on a financing contract. The appellants did not meet their obligation, as provided in the contract, to pay for the equipment. The appellant notified the appellee they were revoking their acceptance of the items. Then the appellee replevied the items and sued the appellants for the deficiency between the price for which the appellee resold them and the price stated in the contract. The appellants counterclaimed, asserting they had properly revoked their acceptance and were entitled to recover the money they had paid the appellee under the contract. The trial court granted a directed verdict in favor of the appellee as to the appellants’ counterclaim, and a jury found in favor of the appellee in the amount of the alleged deficiency.

The questions presented in this appeal are whether the directed verdict was proper, i.e., whether the appellants had grounds to revoke their acceptance of the items, and whether the court properly allowed introduction of a lease agreement between the parties. We hold that it was error to direct a verdict against the counterclaim.

The appellee introduced the lease agreement, which apparently preceded and merged with the contract in question here, for the purpose of showing the duration of the contractual warranty on the equipment. The appellants objected to its introduction into evidence on the basis of the parol evidence rule. While we would not have reversed the decision on the basis of the erroneous admission of the lease as irrelevant, we note that in the event of a retrial of the case it should not be admitted unless some issue with respect to the warranty period develops.

On October 5, 1984, the appellants purchased from the predecessor of the appellee a 1983 Case model 1940 tractor, a 1983 Case model 1190 tractor, and a 1983 Case front end loader. The purchase price for all three items was $40,000. The appellants traded in equipment for which they were given credit of $14,000 against the purchase price, and they paid $3,000 cash. The balance due was to be paid in three equal, annual, installments of $ 10,250.54, but the first payment was not to be due until November 1,1985. The appellant experienced difficulty with the larger of the two new tractors. The testimony was that it would only operate for two hours before overheating. Appellant Jack May testified that he frequently called the appellee about the problem and was advised to flush the tractor’s radiator and “blow it out.” He did so on numerous occasions, but it did not cure the problem. He testified that he also had trouble with the air conditioner on that tractor and that it had not been successfully repaired.

In August of 1985, Jack May was complaining to his brother-in-law about the problem with the new Case tractors, and the brother-in-law told him they were not Case tractors. He protested that they were, and when the two men went out to look, the wiring harness was pulled back on one of the machines, and there, stamped on the engine, was the name “David Brown.” The appellants formally revoked their acceptance of all the equipment in September, 1985. The appellee repossessed it, sold it, and then brought this action for the deficiency between the price it received upon the resale and the contract price of $18,739.02. The appellants counterclaimed for the $17,000 they had invested in the equipment, asserting that they had the right to revoke their acceptance of the equipment because it did not conform to the equipment they had the right to receive under the contract.

The testimony showed that David Brown was a company which manufactured tractors in Meltham, England, up until 1972 when the David Brown Company was purchased by the Case company. Since that time Case tractors of less than one hundred horsepower have been manufactured at that particular plant and exported to the United States. At first they were sold with decals showing both the Case and David Brown names, but for years have had exterior markings, at least, only as Case tractors. Jack May testified that David Brown tractors have a reputation which is inferior to that of Case tractors, and he did not know he was buying any David Brown equipment.

In granting the appellee’s motion for directed verdict as to the appellants’ counterclaim, the court and the appellants’ counsel engaged in the following colloquy:

The Court: What should it have conformed with?
Mr. Stratton [appellants’ counsel]: Should have conformed to the Case product.
The Court: And the Case product is exactly what your man got, but he happens to have an engine block with the name David Brown stamped on it, which they have explained.
Mr. Stratton: Mr. Dorsey testified that the entire tractor was made in England and shipped here.
The Court: That’s my understanding. Rolls Royces and Jaguars are made in England.
Mr. Stratton: I understand that. When you buy a Rolls Royce you know what you’re getting. You’re not getting a Volkswagen.
Mr. Peel [appellee’s counsel]: This is the correct jury instruction that this is what they had to prove and they did not.
Mr. Stratton: I’d like to see your jury instruction.
The Court: Phil, there isn’t any question of fraud in this thing.
Mr. Stratton: Deception, your Honor, putting one label on another; that’s a jury question.
The Court: No, I don’t think there is. Now if David Brown were still in business — or whatever the name is — and were still producing tractors, something like that, you might have a better argument. But if they haven’t produced since ’72, they can’t be misleading anybody. What would you be misleading them for or about, that they were getting a better deal than what they thought? They can’t be getting any better deal because there ain’t anything else out under the name of David Brown.

As to this aspect of the case, our holding is that the trial court got it exactly right. This is not like the cases in which General Motors put engines bearing one brand name in cars bearing another. See In re General Motors Corporation Engine Interchange Litigation, Oswald v. General Motors Corporation, 594 F.2d 1106 (7th Cir. 1979). Here, there is no longer a David Brown product. The Case organization has taken over the David Brown plant in England and is producing its smaller engine tractors there. The fact that the David Brown name is stamped on the engine of a tractor otherwise marked as a Case tractor does not make it a product which does not conform to the contract any more than if it were made in the former David Brown plant and had the name “Case” stamped on the engine.

The problem, however, is, as the appellants contend, that in granting the directed verdict the court ignored the evidence about the fact that the larger tractor had been unsatisfactory from the inception of the purchase. Article 2 of the Uniform Commercial Code, particularly the part codified as Ark. Stat. Ann. § 85-2-608 (Add. 1961) permits a buyer to revoke his acceptance of a “lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it.”

Whether goods are nonconforming and a revocation of acceptance was given within a reasonable time are questions of fact. Frontier Mobile Home Sales v. Trigleth, 256 Ark. 101, 505 S.W.2d 516 (1974); Dopieralla v. Ark. La. Gas Co., 255 Ark. 150, 499 S.W.2d 610 (1973); O’Neal Ford, Inc. v. Early, 13 Ark. App. 189, 681 S.W.2d 414 (1985). In this case there was sufficient evidence of nonconformity to go to the jury, thus it was error to direct the verdict against the appellant’s counterclaim. We must also reverse the verdict in favor of the appellee, for if it is ultimately determined that the appellants’ counterclaim is to prevail, the appellee would not be entitled to recover on the contract.

Reversed and remanded.


author: David Newbern, Justice. Darrell Hickman, Justice, David Newbern, Justice.

text:
    Ronnie MIDGETT, Sr. v. STATE of Arkansas
    CR 86-215
    729 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered May 25, 1987
    [Supplemental Opinion on Denial of Rehearing June 29, 1987.]

      Edward T. Barry, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

       Hickman, Hays and Glaze, JJ., would grant rehearing.

   David Newbern, Justice.

This child abuse case resulted in the appellant’s conviction of first degree murder. The sole issue on appeal is whether the state’s evidence was sufficient to sustain the conviction. We hold there was no evidence of the “. . . premeditated and deliberated purpose of causing the death of another person . . .” required for conviction of first degree murder by Ark. Stat. Ann. § 41-1502(l)(b) (Repl. 1977). However, we find the evidence was sufficient to sustain a conviction of second degree murder, described in Ark. Stat. Ann. § 41-1503(l)(c) (Repl. 1977), as the appellant was shown to have caused his son’s death by delivering a blow to his abdomen or chest “. . . with the purpose of causing serious physical injury. . . .” The conviction is thus modified from one of first degree murder to one of second degree murder and affirmed.

The facts of this case are as heart-rending as any we are likely to see. The appellant is six feet two inches tall and weighs 300 pounds. His son, Ronnie Midgett, Jr., was eight years old and weighed between thirty-eight and forty-five pounds. The evidence showed that Ronnie Jr. had been abused by brutal beating over a substantial period of time. Typically, as in other child abuse cases, the bruises had been noticed by school personnel, and a school counselor as well as a SCAN worker had gone to the Midgett home to inquire. Ronnie Jr. would not say how he had obtained the bruises or why he was so lethargic at school except to blame it all, vaguely, on a rough playing little brother. He did not even complain to his siblings about the treatment he was receiving from the appellant. His mother, the wife of the appellant, was not living in the home. The other children apparently were not being physically abused by the appellant.

Ronnie Jr.’s sister, Sherry, aged ten, testified that on the Saturday preceding the Wednesday of Ronnie Jr.’s death their father, the appellant, was drinking whiskey (two to three quarts that day) and beating on Ronnie Jr. She testified that the appellant would “bundle up his fist” and hit Ronnie Jr. in the stomach and in the back. On direct examination she said that she had not previously seen the appellant beat Ronnie Jr., but she had seen the appellant choke him for no particular reason on Sunday nights after she and Ronnie Jr. returned from church. On cross-examination, Sherry testified that Ronnie Jr. had lied and her father was, on that Saturday, trying to get him to tell the truth. She said the bruises on Ronnie Jr.’s body noticed over the preceding six months had been caused by the appellant. She said the beating administered on the Saturday in question consisted of four blows, two to the stomach and two to the back.

On the Wednesday Ronnie Jr. died, the appellant appeared at a hospital carrying the body. He told hospital personnel something was wrong with the child. An autopsy was performed, and it showed Ronnie Jr. was a very poorly nourished and underdeveloped eight-year-old. There were recently caused bruises on the lips, center of the chest plate, and forehead as well as on the back part of the lateral chest wall, the soft tissue near the spine, and the buttocks. There was discoloration of the abdominal wall and prominent bruising on the palms of the hands. Older bruises were found on the right temple, under the chin, and on the left mandible. Recent as well as older, healed, rib fractures were found.

The conclusion of the medical examiner who performed the autopsy was that Ronnie Jr. died as the result of intra-abdominal hemorrhage caused by a blunt force trauma consistent with having been delivered by a human fist. The appellant argues that in spite of all this evidence of child abuse, there is no evidence that he killed Ronnie Jr. having premeditated and deliberated causing his death. We must agree.

It is true that premeditation and deliberation may be found on the basis of circumstantial evidence. That was the holding in House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959), where the evidence showed a twenty-four-year-old man killed a nineteen-year-old woman with whom he was attempting to have sexual intercourse. The evidence showed a protracted fight after which the appellant dumped the body in a water-filled ditch not knowing, according to House’s testimony, whether she was dead or alive. Although it is not spelled out, presumably the rationale of the opinion was that Hoiise had time to premeditate during the fight and there was substantial evidence he intended the death of the victim when he left her in the water. Our only citation of authority on the point of showing premeditation and deliberation by circumstantial evidence in that case was Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925), where we said:

The very manner in which the deadly weapons were used was sufficient to justify the jury in finding that whoever killed Jones used the weapons with a deliberate purpose to kill. Jones’ body was perforated three times through the center with bullets from a pistol or rifle, and was also horribly mutilated with a knife. The manner, therefore, in which these deadly weapons were used tended to show that the death of Jones was the result of premeditation and deliberation.

While a fist may be a deadly weapon, the evidence of the use of the fist in this case is not comparable to the evidence in House v. State, supra, and Weldon v. State, supra, where there was some substantial evidence consisting of other circumstances that the appellant who dumped the apparently immobile body in the water and walked away and the appellant who wielded the deadly weapons intended and premeditated that death occur. Nor do we have in this case evidence of any remark made or other demonstration that the appellant was abusing his son in the hope that he eventually would die.

The annotation at 89 A.L.R. 2d 396 (1963) deals with the subject of crimes resulting from excessive punishment of children. While some of the cases cited are ones in which a parent or step-parent flew into a one-time rage and killed the child, others are plain child abuse syndrome cases like the one before us now. None of them, with one exception, resulted in affirmance of a first degree murder conviction. Several were decisions in which first degree murder convictions were set aside for lack of evidence of premeditation and deliberation. See, e.g., People v. Ingraham, 232 N.Y. 245, 133 N.E. 575 (1921); Pannill v. Commonwealth, 185 Va. 244, 38 S.W.2d 457 (1946). The case cited in the annotation in which a first degree murder conviction was affirmed is Morris v. State, 270 Ind. 245, 384 N.E.2d 1022 (1979). There the appellant was left alone for about fifteen minutes with his five-month-old baby. When the child’s mother returned to their home she found the baby had been burned severely on one side. About a month later, the appellant and his wife were engaged in an argument when the baby began to whine. The appellant laid the baby on the floor, began hitting the baby in the face and then hit the baby’s head on the floor, causing the baby’s death. At the time of the offense, the Indiana law required malice, purpose, and premeditation to convict of first degree murder. In discussing the premeditation requirement, the court said only:

Premeditation which also may be inferred from the facts and circumstances surrounding the killing, need not long be deliberated upon, but may occur merely an instant before the act. [Citation omitted.] It is clear from the facts adduced at trial regarding the burning and beating of the child that the jury could well have inferred that his killing was perpetrated purposely and with premeditated malice. [384 N.E.2d at 1024]

No explanation is given for the quantum leap from “the facts,” horrible as they were, to the inference of premeditation. We made the same error in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), another child abuse case in which the facts were particularly repugnant, where we said:

Premeditation, deliberation and intent may be inferred from the circumstances of the case, such as the weapon used and the nature, extent and location of the wounds inflicted . . . . [T]he weapon used was a fist which struck the abdomen with such force as to rupture the colon. The child sustained fingernail scratches, four broken ribs, and other internal damage, as well as numerous bruises due to blows with a fist all over his body. The required mental state for first degree murder can be inferred from the evidence of abuse, which is substantial. [287 Ark. at 162-163, 697 S.W.2d at 98]

The problem with these cases is that they give no reason, like the reasons found in House v. State, supra, and Weldon v. State, supra, to make the inference of premeditation and deliberation.

In Simmons v. State, 227 Ark. 1109, 305 S.W.2d 119 (1957), the appellant was antagonized more than once by his victims. After the first time he went home and got his shotgun to use, he said, for hunting squirrels. We modified the conviction from first degree murder to second degree murder, noting that the appellant had opportunities to kill the victims after he had obtained his weapon but before he shot them. His having let those opportunities pass negated premeditation and deliberation. We said:

There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation could be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree. [227 Ark. at 110-111, 305 S.W.2d at 120]

The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son’s death, he could have accomplished it in a previous beating.

In this case the evidence might possibly support the inference that the blows which proved fatal to Ronnie Jr. could have been struck with the intent to cause his death developed in a drunken, misguided, and overheated attempt at disciplining him for not having told the truth. Even if we were to conclude there was substantial evidence from which the jury could fairly have found the appellant intended to cause Ronnie Jr.’s death in a drunken disciplinary beating on that Saturday, there would still be no evidence whatever of a premeditated and deliberated killing.

In Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. den. 459 U.S. 1022 (1980), we held that to show the appellant acted with a premeditated and deliberated purpose, the state must prove that he (1) had the conscious object to cause death, (2) formed that intention before acting, and (3) weighed in his mind the consequences of a course of conduct, as distinguished from acting upon sudden impulse without the exercise of reasoning power. Viewing the evidence most favorable to the appellee, the circumstances of this case are not substantial evidence the appellant did (2) and (3), as opposed to acting on impulse or with no conscious object of causing death. The jury was thus forced to resort to speculation on these important elements.

A clear exposition of the premeditation and deliberation requirement which separates first degree from second degree murder is found in 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986):

Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first degree murder.
(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words “premeditate” and “deliberate” as they are used in connection with first degree murder. Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.
It is often said that premeditation and deliberation require only a “brief moment of thought” or a “matter of seconds,” and convictions for first degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to “speak of premeditation and deliberation which are instantaneous, or which take no appreciable time,. . . destroys the statutory distinction between first and second degree murder,” and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for “further thought, and a turning over in the mind.” [Footnotes omitted.]

The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.

Perhaps because they wish to punish more severely child abusers who kill their children, other states’ legislatures have created laws permitting them to go beyond second degree murder. For example, Illinois has made aggravated battery one of the felonies qualifying for “felony murder,” and a child abuser can be convicted of murder if the child dies as a result of aggravated battery. See People v. Ray, 399 N.E.2d 977 (Ill. App. 1979). Georgia makes “cruelty to children” a felony, and homicide in the course of cruelty to children is “felony murder.” See Bethea v. State, 304 S.E. 2d 713 (Ga. 1983). Idaho has made murder by torture a first degree offense, regardless of intent of the perpetrator to kill the victim, and the offense is punishable by the death penalty. See State v. Stuart, 715 P.2d 833 (Idaho 1985). California has also adopted a murder by torture statute making the offense murder in the first degree without regard to the intent to kill. See People v. Demond, 59 Cal. App. 3d 574, 130 Cal.Rptr. 590 (1976). Cf People v. Steger, 128 Cal. Rptr. 161, 546 P.2d 665 (1976), in which the California Supreme Court held that the person accused of torture murder in the first degree must be shown to have had a premeditated intent to inflict extreme and prolonged pain in order to be convicted.

All of this goes to show that there remains a difference between first and second degree murder, not only under our statute, but generally. Unless our law is changed to permit conviction of first degree murder for something like child abuse or torture resulting in death, our duty is to give those accused of first degree murder the benefit of the requirement that they be shown by substantial evidence to have premeditated and deliberated the killing, no matter how heinous the facts may otherwise be. We understand and appreciate the state’s citation of Burnett v. State, supra, but, to the extent it is inconsistent with this opinion, we must overrule it.

The dissenting opinion begins by stating the majority concludes that one who starves and beats a child to death cannot be convicted of murder. That is not so, as we are affirming the conviction of murder; we are, however, reducing it to second degree murder. The dissenting opinion’s conclusion that the appellant starved Ronnie Jr., must be based solely on the child’s underdeveloped condition which could, presumably, have been caused by any number of physical malfunctions. There is no evidence the appellant starved the child. The dissenting opinion says it is for the jury to determine the degree of murder of which the appellant is guilty. That is true so long as there is substantial evidence to support the jury’s choice. The point of this opinion is to note that there was no evidence of premeditation or deliberation which are required elements of the crime of first degree murder. The dissenting opinion cites two child abuse cases in which first degree murder convictions have been affirmed. One is Morris v. State, supra, with which we dealt earlier in this opinion. The other, is Lindsey v. State, 501 S.W.2d 647 (Tex. Crim. App. 1973), in which the opinion does not say the conviction was for first degree murder. In fact, the issue there was whether the killing occurred with “intent and malice” which are obviously not the same as premeditation and deliberation.

In this case we have no difficulty with reducing the sentence to the maximum for second degree murder. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The jury gave the appellant a sentence of forty years imprisonment which was the maximum for first degree murder, and we reduce that to twenty years which is the maximum imprisonment for second degree murder. Just as walking away from the victim in the water-filled ditch in House v. State, supra, after a protracted fight, and the “overkill” and mutilation of the body in Weldon v. State, supra, were circumstances creating substantial evidence of premeditation and deliberation, the obvious effect the beatings were having on Ronnie Jr. and his emaciated condition when the final beating occurred are circumstances constituting substantial evidence that the appellant’s purpose was to cause serious physical injury, and that he caused his death in the process. That is second degree murder, § 41-1503(l)(c). Therefore, we reduce the appellant’s sentence to imprisonment for twenty years.

Affirmed as modified.

Hickman, Hays, and Glaze, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Simply put, if a parent deliberately starves and beats a child to death, he cannot be convicted of the child’s murder. In reaching this decision, the majority overrules a previous unanimous decision and substitutes its judgment for that of the jury. The majority has decided it cannot come to grips with the question of the battered child who dies as a result of deliberate, methodical, intentional and severe abuse. A death caused by such acts is murder by any legal standard, and that fact cannot be changed—not even by the majority. The degree of murder committed is for the jury to decide—not us.

Convictions for murder resulting from child abuse have become more common in our courts. That is probably because such cases are being reported more often and prosecutors are more apt to seek retribution.

The decision of what charge to file in a homicide case rests with the prosecuting attorney. He has the duty to prove the charge. The decision of whether the state has proved the crime rests with the jury. Our role is only to determine if substantial evidence exists to support the verdict.

Sometimes the facts may warrant a charge of second degree murder. We have affirmed convictions for second degree murder in two such cases. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978).

Whether the particular acts of child abuse amount to first degree murder depend on the particular facts and circumstances in each case. Just as in any other murder case, the state must prove each element of the crime. For a first degree murder conviction, the state must prove premeditation and deliberation.

We have never held motive relevant to murder, nor do we even try to look into the warped minds that commit murder to make their acts rational. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). Consequently, circumstantial evidence usually plays a strong part in determining intent in any murder case.

In this case the majority, with clairvoyance, decides that this parent did not intend to kill his child, but rather to keep him alive for further abuse. This is not a child neglect case. The state proved Midgett starved the boy, choked him, and struck him several times in the stomach and back. The jury could easily conclude that such repeated treatment was intended to kill the child.

In Burnett v. State, supra, the state chose to seek a first degree murder conviction. The child was killed in an extremely horrible way. He was malnourished and dehydrated, bruises on his face and upper and lower extremities, four broken ribs, a ruptured colon, and abrasions. His life was made intolerable and insufferable until at last a blow killed him. The parents, who could not have been unaware or innocent, were found guilty of killing him, which they did. We unanimously upheld that jury verdict. It was no “quantum leap” on our part (whatever that means), just a decision based on the facts and the law. The majority unanimously joined in the Burnett decision.

The facts in this case are substantial to support a first degree murder conviction. The defendant was in charge of three small children. The victim was eight years old and had been starved; he weighed only 38 pounds at the time of his death. He had multiple bruises and abrasions. The cause of death was an internal hemorrhage due to blunt force trauma. His body was black and blue from repeated blows. The victim’s sister testified she saw the defendant, a 30 year old man, 6’2” tall, weighing 300 pounds, repeatedly strike the victim in the stomach and back with his fist. One time he choked the child.

The majority is saying that as a matter of law a parent cannot be guilty of intentionally killing a child by such deliberate acts. Why not? Is it because it is inconceivable to rational people that a parent would intend to kill his own child? Evidently, this is the majority’s conclusion, because they hold the intention of Midgett was to keep him alive for further abuse, not kill him. How does the majority know that? How do we ever know the actual or subliminal intent of a defendant? “If the act appellant intended was criminal, then the law holds him accountable, even though such result was not intended.” Hankins v. State, 206 Ark. 881, 178 S.W.2d 56 (1944); see also Black v. State, 215 Ark. 618, 222 S.W.2d 816 (1949). There is no difference so far as the law is concerned in this case than in any other murder case. It is simply a question of proof. This parent killed his own child, and the majority cannot accept the fact that he intended to do just that.

Undoubtedly, the majority could accept it if the child were murdered with a bullet or a knife; but they cannot accept the fact, and it is a fact, that this defendant beat and starved his own child to death. His course of conduct could not have been negligent or unintentional.

Other states have not hesitated to uphold a conviction for first degree murder in such cases. Morris v. State, 384 N.E.2d 1022 (Ind. 1979); Lindsey v. State, 501 S.W.2d 647 (Tex. 1973). The fact that some states (California and Idaho) have passed a murder by torture statute is irrelevant. Those statutes may make it easier to prosecute child murderers, but they do not replace or intend to replace the law of murder. Whether murder exists is a question of the facts—not the method. The majority spends a good deal of effort laboring over the words “premeditation and deliberation,” ignoring what the defendant did. Oliver Wendell Holmes said: “We must think things not words . . .” Holmes, “Law in Science and Science in Law,” Collected Legal Papers, p. 238 (1921). If what Midgett did was deliberate and intentional, and that is not disputed, and he killed the child, a jury can find first degree murder.

I cannot fathom how this father could have done what he did; but it is not my place to sit in judgment of his mental state, nor allow my human feelings to color my judgment of his accountability to the law. The law has an objective standard of accountability for all who take human life. If one does certain acts and the result is murder, one must pay. The jury found Midgett guilty and, according to the law, there is substantial evidence to support that verdict. That should end the matter for us. He is guilty of first degree murder in the eyes of the law. His moral crime as a father is another matter, and it is not for us to speculate why he did it.

I would affirm the judgment.

Hays and Glaze, JJ., join in the dissent.

Supplemental Opinion on Denial of Rehearing

June 29, 1987

731 S.W.2d 774

1. Appeal & error — no basis for granting rehearing. — Where appellant only reargues a question raised on appeal he presents no basis for granting rehearing. [Ark. Sup. Ct. R. 20(g).]

2. Criminal law — first degree murder. — Ark. Stat. Ann. § 41-1502(3) (Supp. 1985) provides that first degree murder is a class Y felony, and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life.

3. Appeal & error — insufficient proof to support jury’s VERDICT OF A HIGHER OFFENSE — APPELLATE COURT MAY REDUCE sentence. — If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter and the appellate court, in its discretion, may reduce the sentence to that prescribed for the lesser offense.

Petition for Rehearing; denied.

David Newbern, Justice.

The appellant only reargues the question whether there was evidence of premeditation and deliberation and thus presents no basis for granting rehearing. Arkansas Supreme Court and Court of Appeals Rule 20(g). However, both parties have pointed out an error of law in our opinion. We stated that the maximum sentence for first degree murder is forty years imprisonment. We should have said the maximum term of years is forty. The statute provides first degree murder is a class Y felony, Ark. Stat. Ann. § 41-1502(3) (Supp. 1985), and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life. The jury thus sentenced the appellant to the maximum determinate sentence for first degree murder, although it was not the ultimate maximum sentence, i.e., life imprisonment.

The appellant argues, in his response to the appellee’s request for rehearing, that we should grant a new trial so that a jury may set the sentence for second degree murder. We decline to do so, as we regard the maximum sentence to be supported by the evidence in the record, and as we said in Collins v. State, 261

Ark. 195, 548 S.W.2d 106 (1977):

If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State, 252 Ark. 420, 479 S.W.2d 537 [1972]. This rule applies in murder cases as well as for other felonies. Simpson v. State, 56 Ark. 8, 19 S.W. 99 [1892]. [261 Ark. at 209, 548 S.W.2d at 114.]

The sentence has been reduced to one within the range prescribed for second degree murder, and we find that sentence to be justified by the evidence in the record.

Rehearing denied.

Hickman, Hays, and Glaze, JJ., would grant.


author: Per Curiam.

text:
    Edward OWENS v. STATE of Arkansas
    CR 87-29
    729 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered May 26, 1987

      Appellant, pro se.

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

The petitioner Edward Eugene Owens was found guilty by a jury of rape and sentenced to twenty years imprisonment. The Court of Appeals affirmed. Owens v. State, CA CR 84-92 (November 14, 1984). Petitioner has now filed a timely petition to proceed pursuant to Criminal Procedure Rule 37. We find that some of the allegations contained in the petition present fact questions which cannot be resolved without a hearing and therefore grant permission for the petitioner to file a petition in circuit court for an evidentiary hearing limited to certain allegations raised in the instant petition. We find no reason to grant the motion to amend the instant petition since the amendment contains no allegations not included in the original petition.

Petitioner alleges that his attorney Arthur Allen, a deputy public defender, was ineffective in that he failed to interview and subpoena to testify J. C. Cash, Arthur Cash, Carl Stewart and Osie Jones. He contends that on February 22,1984, when counsel visited him for the first time at the county jail he told counsel that the four men had been with him and the victim in the house where the rape was alleged to have occurred. He further informed counsel that the men would testify that during the two-and-one-half hours they were there the prosecutrix who is deaf wrote several notes to them offering to have sexual relations in exchange for drugs and money and that she was not held against her will as she testified. He contends that Osie Jones would have testified that he and the woman left the house for a time to buy liquor and beer and returned. Petitioner argues that since the trial began on February 29,1984, counsel had not allowed himself enough time to contact the potential witnesses and secure their presence in court.

Petitioner also alleges that the prosecutrix and the men at the house wrote some thirty to thirty-five notes, the contents of which would have tended to prove that she was present by choice but that only five of the notes were introduced into evidence at trial because counsel did not act to secure the notes from the house. The prosecutrix testified that other notes were written but said that only petitioner and a co-defendant Robert Orilcek were present when the rape occurred. Petitioner states that while he was in custody after arrest, he arranged for Isaac Johnson to go to the house to gather the notes and deliver them to counsel. He asserts that Johnson was able to find only a few of the notes because the house had been ransacked during his absence. Petitioner states that he would have given his house key to counsel immediately after he was arrested so that the notes could have been retrieved if counsel had not delayed in seeing him.

The State has attached to its response to petitioner’s allegations, the affidavit of Arthur Allen in which he avers that petitioner gave him the name of only one witness, Leroy Porch. Counsel also states that petitioner did not tell him that there were any other notes to be retrieved from his residence.

When an allegation rests on whether witnesses should have been called at trial, it is incumbent on the petitioner to name the witnesses, provide a summary of their testimony and establish that the testimony would have been admissible into evidence. See Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). Petitioner here has identified the witnesses by name and provided a summary of their prospective testimony. If the witnesses were present at the time the offense was alleged to have occurred, their testimony concerning the events which transpired would have been admissible.

The testimony of the prosecutrix, which was contradictory in several instances, formed the core of the case against the petitioner. In light of her conflicting testimony, the testimony of the four men and the introduction of the other notes could have been of great importance to the defense.

When there is a fact question to resolve, the only appropriate means of resolving it is an evidentiary hearing in circuit court. Petitioner is granted permission to proceed in circuit court for an evidentiary hearing limited to the allegation that counsel’s failure to investigate denied petitioner the opportunity to call the four men as witnesses and introduce the other notes into evidence.

This court will not accept the affidavit provided by the State to refute the factual allegations made by the petitioner. To do so would place the court in a position of being the finder of fact and would permit the state to refute an allegation without giving the petitioner an opportunity to question the affiant.

As in all postconviction proceedings, the burden at the hearing will be on the petitioner to overcome the strong presumption that counsel’s assistance was effective. Strickland v. Washington, 466 U.S. 668 (1984). If it is reasonable to conclude that the information about the potential witnesses and the notes should have been furnished to counsel by the petitioner, the petitioner is responsible for demonstrating that he supplied to counsel the information necessary to make an adequate investigation or was unable to do so through some fault of counsel. The petitioner must also establish not only that counsel made some error but that the error resulted in actual prejudice so serious as to deny him a fair trial, whose result is unreliable. In other words, the petitioner must show that the evidence omitted from trial through counsel’s errors was important enough to affect the judgment. See Strickland v. Washington, supra; see also United States v. Morrison, 449 U.S. 361 (1981). It is not enough for petitioner to prove merely that there were other witnesses who could have testified or that the notes existed.

Petitioner has raised a number of other allegations in the instant petition which do not justify postconviction relief. Chief among them is the claim that he learned after trial that the victim had a history of accusing men of rape. He states at one point in the petition that the prosecutor knew about the victim’s history before trial and withheld the information from the defense. At another point, he alleges that the information was in the prosecutor’s file and thus available to the defense but counsel failed to use it. Since it is unclear whether petitioner is alleging prosecutorial misconduct, ineffective assistance of counsel or that new evidence exists, the issue will not be addressed further. This court will not speculate on a petitioner’s meaning.

Petition granted; motion to amend denied.