author: Steele Hays, Justice.

text:
    Stanley Demarcus RHODES v. STATE of Arkansas
    CR 87-68
    736 S.W.2d 284
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      Marie-Bernarde Miller, P.A., for appellant.

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

Stanley Rhodes has appealed from the denial of a petition for a Rule 37 hearing. On February 7, 1985, Rhodes was charged with several offenses committed a few days earlier. He had robbed two citizens in separate but closely timed incidents. A North Little Rock police officer attempted to apprehend him and Rhodes fired three times with one of the shots wounding the officer.

Rhodes was charged with three counts of aggravated robbery — two relating to the private individuals and one resulting from his armed efforts to resist apprehension by the officer after the robberies. Rhodes was also charged with attempted capital felony murder for shooting at and wounding a police officer.

On November 12,1985, Rhodes pleaded guilty to the above charges. Four additional charges were nol prossed. He was sentenced to twelve and fifteen years for the robberies, forty years for the armed resistance immediately after the robberies and thirty years for the attempted capital murder. The sentences were ordered to run consecutively.

Rhodes filed a timely Rule 37 petition and from the denial of that petition he brings this appeal. He raises only one issue, which has no merit. He argues that the court erred by failing to set aside the aggravated robbery charge involving the policeman as it was a lesser included offense of attempt to commit capital murder.

Appellant makes this argument on three different theories, first that the aggravated robbery was the underlying felony of the attempted capital murder charge and should be set aside. Appellant cites us to those cases where we have held that one cannot be convicted of both capital felony murder and the underlying felony that supports it. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982).

However, as the trial court correctly held, appellant was charged with the attempted murder of a police officer which is attempted capital murder, Ark. Stat. Ann. § 41-1501(1) (b), and not of attempted murder in the course of those felonies specified in § 41-1501 (l)(a). While the statutes are not mentioned in the charging documents, a description of the crime committed is. It relates only to the attempted shooting of the officer and essentially restates the language of § 41-1501(1)(b). No other facts are mentioned relating to any felony to otherwise support the charge. As appellant was not charged or convicted of capital felony murder under § 41-1501(l)(a), but under § 41-1501(l)(b), which requires no underlying felony, there is no merit to his argument.

Appellant next contends that in proving the elements of attempted capital murder it is necessary to prove the elements of aggravated robbery. Thomas v. State, 280 Ark. 593, 660 S.W.2d 169 (1983) is dispositive of this point. We stated that one offense can’t be a lesser included offense of the other when each requires proof of a fact which is not required by the other, the elements of the statutory definitions being different.

In Thomas the appellant argued that first degree battery was a lesser included offense of aggravated robbery. Appellant was charged with battery under § 41-1601(1) (c):

(1) A person commits battery in the first degree if:
***
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.

The charge of robbery was made under § 41-2102(1)(a):

(1) A person commits aggravated robbery if, [with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to employ physical force upon another] and he
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed ....

W e noted that first degree battery under this section requires serious physical injury to another, while aggravated robbery does not. And aggravated robbery requires the purpose of committing theft and being armed with a deadly weapon, while the first degree battery charge does not.

In our case, appellant was convicted of both aggravated robbery and attempted capital murder. Capital murder under § 41-1501(l)(b) provides:

(1) A person commits capital murder if:
(b) with the premeditated and deliberated purpose of causing the death of any law enforcement officer . . . when such person is acting in line of duty, he causes the death of any person;

Attempted capital murder under this section would require an attempt to cause the death of a person, and specifically a law officer acting in the line of duty. Aggravated robbery has no such requirements. Aggravated robbery requires the purpose of committing theft and being armed with a deadly weapon while the capital murder offense does not. Each offense requires proof of a fact not required by the other.

As his final point appellant contends that under § 41-105(1)(2) his conduct was continued and uninterrupted and he cannot be convicted of two offenses.

Ark. Stat. Ann. § 41-105(l)(e) provides:

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

Appellant states that in the course of resisting apprehension there was a struggle and he fired on the arresting officer three times with the officer’s revolver. He contends his conduct was uninterrupted and only a continuation of the robbery, that he should only be prosecuted for one crime.

As the state points out, the record contains a meager account of the facts and the burden is on the appellant to bring up a sufficient record to demonstrate error. As the record stands, there is no apparent error. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). However, appellant’s argument must fail in any case. As the 1983 Commentary to § 41-105(l)(e) points out:

On several occasions, a defendant has mistakenly argued that his conduct was a continuing course of conduct and that multiple convictions were therefore prohibited by subsection (l)(e) . . . . Subsection (l)(e) applies only when an offense is defined as a continuing course of conduct. . .

The original Commentary to the section provides:

Subsection (1) (e) prohibits multiple convictions for an uninterrupted course of conduct that violates a statute defining a continuing offense. It would find application in prosecutions for such offenses as nonsupport (§ 41-2405) or promoting prostitution (§§ 41-3004 — 3006).

Aggravated robbery is not a continuing offense, as discussed in the Commentary to the statute. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). As we perceive the facts in this case § 41-105(l)(e) has no application. Here appellant was charged with two separate offenses and for different conduct for each offense as pointed out in the previous argument. He was not charged with several counts for the same continuous crime which is what § 41-105(1 )(e) is directed to.

Affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Michael Eugene MAYFIELD v. STATE of Arkansas
    CR 87-60
    736 S.W.2d 12
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      Wm. B. Brady, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Michael Eugene Mayfield, was convicted of aggravated robbery. He contends the trial court erred in failing to suppress a statement he made while in police custody because the rights warning he was given failed to inform him that he could have an attorney present even if he could not afford one. We agree that the warning he was given was insufficient to comply with the requirements set forth in Miranda v. Arizona, 384 U.S. 436 (1966), and thus we must reverse the conviction. We disagree with the appellant’s further contention that the jury was improperly instructed as to the minimum sentence with which he was charged. We discuss the latter point to give direction in the event there is a retrial.

Acting upon information he received in investigating a crime, not the subject of this appeal, Detective Jones of the Little Rock Police Department arrested the appellant for the robbery of an Arby’s store. At police headquarters Jones testified he read the appellant his rights from “the standard Little Rock Police rights form.” The form used was introduced into evidence at the appellant’s trial. It provides, in pertinent part:

“I have been advised that I am a suspect in a[n] aggravated robbery-theft of property, that I have the right to use the telephone, that I have the right to remain silent, that I have the right to talk with an attorney, either retained by me or appointed by the Court, before giving a statement, and to have my attorney present when answering any questions.”

After having signed the rights form, the appellant signed a further statement that he waived his rights and voluntarily made a statement. His statement was a detailed confession to having participated in the robbery with which he was then charged.

In a hearing before the trial, the appellant moved to suppress the confession on the ground that the warning did not comply with the requirements stated in Miranda v. Arizona, supra. He renewed the objection at the trial when the confession was introduced. The state presented no evidence against the appellant other than the confession. The appellant was convicted and sentenced to imprisonment for ten years which the court had instructed the jury to be the minimum sentence for the offense charged.

1. The warning

In Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981), which was also an appeal from a Pulaski County Circuit Court, the advice given the appellant was apparently precisely the same as in the case before us now. The words quoted from the rights warning form in that case are the same as those here. As in this case, Thomerson challenged his conviction on the basis that he had not been informed of his right to counsel even if he were indigent or could not afford an attorney. We affirmed the conviction, citing Tasby v. U.S., 451 F.2d 394 (8th Cir. 1971), for the proposition that the language of the warning may deviate from that used by the Supreme Court in the Miranda case as long as it “does not negate the over-all effectiveness of the warning.” We then discussed the familiar “totality of the circumstances” test for determining the voluntariness of the confession and in the process of that discussion noted that it would be better for the police to inform an accused of his right to counsel without cost. Our opinion in the Thomerson case spoke not at all about whether the effectiveness of the warning had indeed been subverted except in the context of discussing the voluntariness of the confession.

Our error in the Thomerson case lay in confusing the threshold requirement of a warning with the requirement that a confession, given after a warning, be made voluntarily and upon waiver of the rights of which the accused has earlier been apprised. In Harryman v. Estelle, 616 F.2d 870 (5th Cir. 1980), an accused was asked a question before any warning whatever had been given, and he gave an incriminating answer. It was argued that the initial question was more of an exclamation by the police officer than a question, and thus in the circumstances the interrogation was not the kind of police questioning the Supreme Court had intended to control in the Miranda case. In response, the court said:

This argument misunderstands Miranda. Prior to Miranda, the Supreme Court attempted to protect an accused from improper police questioning by holding inadmissible statements that appeared to have been involuntary in light of the totality of their surrounding circumstances, including the characteristics of the accused and the details of the interrogation. See Schneckloth v. Bus tamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Spano v. New York, 360 U.S. 315, 321 n.2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959) (citing 28 cases). Were we to follow such an approach here, we might well find that Harryman’s statement was voluntary and therefore properly admitted.
But in Miranda, the Court found the totality of the circumstances approach inadequate. Recognizing that in-custody questioning has inherently coercive tendencies, the Court adopted in its place a set of rigid procedural rules. It held that until these rules have been followed, and an accused has been adequately informed of and waived his rights, he may not be questioned. If he is questioned, any statements he makes in response cannot be presented by the prosecution as part of its proof at trial. 384 U.S. at 444-91, 86 S.Ct. at 1612-36. See Michigan v. Tucker, 417 U.S. 433, 443-44, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974).
The rigidity of the Miranda rules and the way in which they are to be applied was conceived of and continues to be recognized as the decision’s greatest strength. E.g., Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630. See also Fare v. Michael C., 439 U.S. 1310, 1314, 99 S.Ct. 3, 5, 58 L.Ed.2d 19 (1978) (Rehnquist, J., on application for stay) (calling rigidity of Miranda its “core virtue”). The decision’s rigidity has afforded police clear guidance on the acceptable manner of questioning an accused. It has allowed courts to avoid the intractable factual determinations that the former totality of the circumstances approach often entailed. When a law enforcement officer asks a question of an accused and the accused, without the benefit of Miranda’s safeguards, answers, the totality of the circumstances is irrelevant. The accused’s answer is simply inadmissible at trial as part of the prosecution’s case in chief. [616 F.2d 870 at 873, 874]

The conviction was affirmed on the basis of the court’s determination that the error was harmless due to other overwhelming evidence of guilt beyond a reasonable doubt. In the case before us now, the only evidence against the appellant was his confession.

While we continue to use the “totality of the circumstances” to test the voluntariness of a confession, see Smith v. State, 292 Ark. 162, 729 S.W.2d 5 (1987) and Stone v .State, 290 Ark. 204, 718 S.W.2d 102 (1986), we will not look beyond the warning given to ascertain if the accused knew what his rights were when the confession was made. That is the specific mandate of the Supreme Court in the Miranda case and in Prysock v. California, 453 U.S. 355 (1981) as well.

In Trotter v. State, 290 Ark. 296, 719 S.W.2d 268 (1986), we took too far the admonition we had given in the Thomerson case. There we said a warning which had told the accused he was entitled to counsel even if he could not afford one was insufficient because it did not say he could have an attorney at absolutely no cost to him. We affirmed the conviction because there was evidence that the sheriff had gone beyond the reading of the rights form we found to be inadequate and had in fact informed the accused he was entitled to counsel without charge. In Smith v. State, supra, we took back our strong language from the Trotter case, and we approved a warning which said, “If, you cannot afford a lawyer, one will be appointed for you, before any questioning, if you wish.” We noted that in three of the four parts of the Miranda case opinion in which the Supreme Court discusses what the warning must be, the language having to do with indigency or “if he cannot afford one” was used. The clear implication was that, while we require that an accused person be told that if he is indigent or cannot afford a lawyer the court will appoint one, there are no “magic words” which have to be used, such as “absolutely without cost to you.”

We have no doubt whatever that at the heart of the Supreme Court’s opinion is its concern that the indigent accused in police custody be informed that he has just as much right to representation by an attorney as a person who can afford one. The Supreme Court said in the Miranda case:

In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. [436 U.S. at 473]
He must be warned prior to any questioning that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. [384 U.S. at 479, emphasis supplied.]

In California v. Prysock, supra, the Supreme Court noted that while the warning need not mimic the language of the Miranda decision, it must effectively get across to the accused the right to have retained counsel or appointed counsel if the accused cannot afford an attorney. In the Prysock case the Supreme Court reversed a California decision which had held the warning given an accused was insufficient because it did not follow precisely the language used in the Miranda decision. The court said, “. . . Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. . . .” (453 U.S. at 359), but in considering whether the information required by the Miranda case was given the accused, the court said:

It is clear that the police in this case fully conveyed to respondent his rights as required by Miranda. He was told of his right to have a lawyer present prior to and during interrogation, and his right to have a lawyer appointed at no cost if he could not afford one. These warnings conveyed to respondent his right to have a lawyer appointed if he could not afford one prior to and during the interrogation. [453 U.S. at 361, emphasis added.]

The warning given in the case before us did not convey to the appellant the fact that he could have a lawyer free of charge. To do that the warning must make some reference to the indigency of the person being warned in connection with informing him that an attorney will be appointed for him. While we are not holding that specific words are required, we suggest it would be very simple for the warning to say that the person being warned has the right to have an attorney present and that he may either retain one himself or, if he cannot afford one, have one appointed by the court.

2. The instruction

The trial court instructed the jury that the minimum sentence for aggravated robbery was ten years imprisonment. The appellant contends that was error because the minimum sentence for that offense is six years. The contention of the appellant is based upon Ark. Stat. Ann. § 41-2102(3)(a) (Supp. 1985) which says, “Upon pleading guilty or being found guilty the first time of aggravated robbery with a deadly weapon, such person shall be imprisoned for no less than six (6) years.” The instruction, and the state’s position here, is based on subsection (2) of that statute which says, “Aggravated robbery is a class Y felony.” Ark. Stat. Ann. § 41-901 (Supp. 1985) provides that a defendant convicted of a class Y felony shall be sentenced to not less than ten years and not more than forty years, or life.

We agree with the state’s position on this point. Section 2102 of Act 280 of 1975 made aggravated robbery a class A felony with no further specification as to punishment. In 1979, the general assembly passed Act 1118 amending § 2102 of Act 280 of 1975 to provide:

(2) Except as provided in subsection (3) below, aggravated robbery is a Class A felony.

Subsection (3) then provided the specific penalties which are now contained in Ark. Stat. Ann. § 41-2102(3), the first of which provides:

(a) Upon pleading guilty or being found guilty the first time of aggravated robbery with a deadly weapon, such person shall be imprisoned for not less than six (6) years. . . .

In 1981, the general assembly adopted Act 620, § 13 of which provided:

Subsection (2) of Section 2102 of Act 280 of 1975, the same being Arkansas Statute 41-2102(2), is hereby amended to read as follows: “(2) Aggravated robbery is a class Y felony.”

The general assembly thus made the offense a class Y felony and abolished the exception for subsection (3) of Act 280 of 1975 as amended by Act 1118 of 1979. This brought into conflict subsections (2) and (3) of the statute as it is presently codified. Subsection (2) makes aggravated robbery a class Y felony without exception. Subsection (2) was enacted subsequent to the provisions of subsection (3). Section 18 of Act 620 of 1981 provided, “All laws and parts of laws in conflict with this Act are hereby repealed.” Subsection (2) was in § 13 of that Act, thus subsection (3) has been repealed. While we might simply say that the later of two conflicting acts will be considered to have repealed the former, see Price v. State, 284 Ark. 148, 685 S.W.2d 506 (1985), we need not rely on that doctrine in view of the repealer clause.

Reversed.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. If this appellant were misled by the wording of the Miranda warning as given in this case and left in doubt as to his right to be represented by a lawyer, I might agree with the majority. But he makes no such claim. In Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981), the same argument now made was considered on an identical set of facts, and unanimously rejected. I believe we should adhere to our recent precedent.


author: Tom Glaze, Justice.

text:
    Dewayne FRANKLIN v. STATE of Arkansas
    CR 87-92
    736 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered September 28, 1987

      Murray F. Armstrong, for appellant.

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

This case involves a Rule 37 proceeding in which the appellant sought to withdraw his guilty plea to a reduced charge of first degree murder to which he was sentenced to thirty years imprisonment. Appellant appeals the trial court’s denial of his petition, and argues (1) he was denied effective assistance of counsel and (2) the trial court erred in finding a factual basis for appellant’s plea. We find no error, and, therefore, affirm.

In addressing appellant’s first argument, we have held that the petitioner has the burden to prove the counsel’s assistance ineffective. Davis v. State, 267 Ark. 507, 592 S.W.2d 801 (1986). In fact, counsel is presumed competent, and the burden of overcoming that presumption rests on the petitioner. Muck v. State, 292 Ark. 310, 730 S.W.2d 214 (1987). More importantly, as appellant’s conviction here is based upon a guilty plea, we have held that a petitioner having entered such a plea normally will have difficulty in proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

Appellant contends that, because of his counsel’s actions (or his failures to act), he pleaded guilty while under a misunderstanding of the law and his rights. See McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977). Under these circumstances, he claims his plea was involuntary. Specifically, appellant testified that his attorney, Robert Morehead, was ineffective because (1) Morehead only saw him three times in eight months and failed to reply to appellant’s phone calls and letters; (2) Morehead failed to inform him adequately about the plea bargain, leading appellant to believe he would serve less than thirty years — perhaps three to five years; and (3) Morehead failed to investigate appellant’s case, including not talking to any of the people allegedly involved in the crime.

As was the case in Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986), appellant’s claims and testimony were denied by his attorney. Morehead said that he had seen appellant “a half a dozen or more” times. He discussed with appellant the possible risks in going to trial, the most serious being that appellant could receive the death penalty. Considering that risk and the fact that his co-defendants were “pointing their fingers” at appellant, Morehead suggested the alternative of negotiating for a term of years. He said he discussed all of appellant’s options with him. After receiving the prosecutor’s agreement to reduce the charge to first degree murder with a recommendation of a thirty-year sentence, Morehead testified that he then completed a plea statement with the terms in it. The appellant showed no indication that he did not understand the statement and signed it. Morehead also denied advising appellant that he would receive a lighter sentence than thirty years. He further said that he discussed the plea agreement with appellant, who indicated his acceptance of it in front of the trial judge. Finally, concerning appellant’s charge that Morehead failed to talk with the others involved in the crime, Morehead related that those defendants refused to assist him, since they were also facing capital felony charges.

In hearing appellant’s and Morehead’s testimony, the trial judge obviously resolved the conflicts in their stories against appellant. Such conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe any witness’s testimony, especially that of the accused since he has the most interest in the outcome of the proceeding. Huff v. State, supra.

In his second argument, appellant urges that the trial court posed inadequate inquiries to establish a sufficient factual basis to the murder charge and failed to inform him of the minimum and maximum sentences before the court accepted appellant’s plea. There clearly is no merit to this claim. At the guilty plea hearing, appellant stated he was guilty as an accessory, and then proceeded with a brief recitation of the facts of the case. At the same hearing, the trial court had a written statement previously made by appellant, as well as two witnesses’ proffered testimony, which inculpated appellant. Also, before accepting appellant’s plea, the court fully informed appellant of the minimum and maximum sentences he could receive for first degree murder.

Because we are unable to say the trial court’s findings in denying appellant’s petition for relief are clearly against the evidence, we affirm. See Whisenhunt v. State, 292 Ark. 33, 727 S.W.2d 847 (1987).


author: Jack Holt, Jr., Chief Justice.

text:
    Charles James ROBINSON v. STATE of Arkansas
    CR 87-98
    737 S.W.2d 150
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      William R. Simpson, Jr., Public Defender, Deborah R. Sailings, Deputy Public Defender, by: Steff Padilla, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Charles James Robinson, was convicted of rape and aggravated robbery. Robinson was sentenced as a habitual offender to two consecutive life terms. On appeal, Robinson argues his due process rights were violated by the admission of an in-court identification because the pre-trial procedures were suggestive and a mistrial should have been declared due to the prosecutor’s comments during closing argument. We find both of these arguments meritless and affirm.

In three separate trials, Robinson was convicted of rape, aggravated robbery, and in one trial, an additional charge of theft. These convictions, which arose from three separate incidents, involving three different victims, are the subject matter of separate appeals before this court. We affirmed one appeal in Robinson v. State, 293 Ark. 51, 732 S.W.2d 159 (1987). We are now reviewing the second appeal.

On January 8, 1986, Robinson went to a Little Rock book store and browsed for about 10 minutes. He approached the counter and asked the owner/manager about a specific book. When she bent over to look it up, Robinson grabbed her from behind, put his hand over her mouth and what seemed to be a gun to her back. He took her into the back room and raped her. Robinson then hog-tied her and took money from her wallet and out of the cash register.

The victim was called to the police station on March 2,1986, where she was placed in a room with 10 to 12 other people for a brief period while waiting to view a lineup. Upon viewing the lineup, she identified Robinson as her attacker. Robinson argues that the pre-trial identification procedure was suggestive because the victim may have heard a statement by another victim that “He’s there”, and thus, the in-court identification of Robinson was tainted. The trial court denied Robinson’s motion to suppress.

In claiming that the identification was tainted, the appellant, in his brief, states:

“On March 2, 1986, over two months after the incident, (the victim) and some 10 to 12 people were sitting in a single room when one of the women returned and stated, ‘He’s there’.”

Robinson believes the victim may have overheard the statement.

This statement is misleading and without factual basis inasmuch as it does not appear in the record. To the contrary, the victim testified the people waiting to view the lineup did not discuss why they were called to the police station, and their conversation was limited to the wait. The victim was the first person called to view the lineup. She stated thereafter she did not have any discussions with anyone; rather, she went directly to the detectives division, signed her statement and left.

The factors we consider in measuring the reliability of the in-court identification are the opportunity of the identifying witness to observe the accused at the time of the criminal act, the lapse of time between the occurrence and the identification, any inconsistencies in the description given by the witness, whether there was a prior misidentification, the facts surrounding the identification, and all matters relating to the identification process. Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987); Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).

The victim testified she observed Robinson browsing in the book store for about 10 minutes prior to the attack. She got a good look at him because he was the only person in the store and there was nothing obstructing her view. She testified the entire episode lasted for about 45 minutes. A six member lineup was conducted about two months after the attack. The victim viewed the members for about four minutes asking them to turn to each side and raise their right hands. At that time, she identified Robinson as her assailant. Later she testified she had no doubt Robinson was her assailant.

As his second point for appeal, Robinson argues the trial court should have granted his motion for mistrial during the prosecutor’s closing argument. The prosecuting attorney stated the description given by the victim fit Robinson “to the tee.” Robinson’s motion for a mistrial was denied. Robinson argues the motion should have been granted because the statement called the jury’s attention to Robinson’s refusal to testify. A comment about the accused’s silence is presumed prejudicial and a mistrial is the proper remedy. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984); Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978). Our law provides the failure of a defendant to testify shall not create any presumptions against him. Ark. Stat. Ann. § 43-2016 (Repl. 1977). A prosecuting attorney should carefully refrain from using any words or gestures which would be calculated to call a jury’s attention to the fact that a defendant has not testified. Evans v. State, 221 Ark. 793, 255 S.W.2d 967 (1953). In no way can the prosecutor’s remarks in this case regarding the victim’s description of Robinson be calculated to call the jury’s attention to the fact that Robinson had not testified. Accordingly, there was no basis for Robinson’s motion for mistrial.

As required by Ark. Sup. Ct. R. 11 (f), we have reviewed all abstracted rulings adverse to Robinson as well as the points raised on appeal. We find no error.

Affirmed.


author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Johnny STEPHENS v. STATE of Arkansas
    CR 86-129
    737 S.W.2d 147
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Gill, Johnson, Gill & Gill, by: Kenneth Johnson, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Johnny Stephens, was convicted of aggravated robbery and manslaughter. He was sentenced as an habitual offender to concurrent terms of 20 years for aggravated robbery and eight years for manslaughter. His appeal to the court of appeals was affirmed. Stephens v. State, 15 Ark. App. 352, 693 S.W.2d 64 (1985). Stephens filed a motion for post conviction relief, alleging ineffective assistance of counsel for failure to expose false testimony. A hearing was held by the trial court, and his motion was denied. It is from that decision that this appeal is brought. We affirm.

Stephens and four other men were involved in an armed robbery during which one of the robbers was killed. Stephens and Kenneth Beatty stood trial for acting as lookouts during the robbery. The remaining two parties, Samuel White and William McCarty negotiated pleas of guilty to the charges rather than stand trial. White testified at Stephens’ trial that he pled guilty to the charges and received a sentence of 12 years for aggravated robbery and 5 years for manslaughter, to run concurrently, and was presently serving the 12 year sentence. This testimony was false because White had not yet pled or been sentenced for aggravated robbery.

The trial court found that White was not convicted of aggravated robbery as he had testified, but there was no evidence to suggest that the statement by White was perjured or the result of a conspiracy between the prosecutor, Sam Pope, and White. The trial court determined that there was a plea agreement pending between Pope and White in which White would plead guilty to aggravated robbery and the prosecutor would recommend a 12 year sentence in exchange. The plea was postponed until after White testified truthfully at Stephens’ trial, however, the prosecutor forgot about the plea until White filed a motion to dismiss for lack of speedy trial. The court specifically found that Stephens “has failed to meet his burden of proof... the Petitioner has failed to show how this error... was so serious that [counsel] was not functioning as counsel guaranteed by the Sixth Amendment; nor has Petitioner showed that this error resulted in prejudice so severe that Petitioner was deprived of a fair trial or that, but for counsel’s conduct, there was a reasonable probability that the outcome would have been different.” We will reverse the denial of a Rule 37 petition if the pertinent findings of the trial court are clearly erroneous. Campbell v. State, 283 Ark. 12, 670 S.W.2d 800 (1984).

Stephens argues his trial attorney was ineffective in failing to reveal the false testimony and this failure affected the outcome of the trial. The standard for determining ineffective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668 (1984). Stephens must show that counsel’s performance was deficient and that counsel made such a serious error that he was not performing as counsel guaranteed by the sixth amendment to the United States Constitution. In sum, counsel’s deficient performance must prejudice Stephens’ case to the extent that he did not receive a fair trial and there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984).

Stephens’ attorney may not have known the testimony was false. Pope testified that Stephens’ attorney was aware there was a plea bargain but was not aware of the details. The attorney asked White questions trying to get to the plea agreement, but his questions did not reach the issue. Normally, the questions an attorney asks a witness are a matter of trial strategy and not grounds for Rule 37 relief. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). Failure to pursue questioning on White’s plea agreements was not such a serious error as to have deprived Stephens of a fair trial, nor is there a reasonable probability that the outcome of the trial would have been different had White been fully cross-examined. Stephens was convicted on the testimony of White and another accomplice, McCarty. When Stephens was arrested in California, he was in possession of items taken from the robbery. Stephens was sentenced as an habitual offender with three previous felony convictions. The sentences Stephens received were well within the range of punishment for the offense charged and were reasonable. Stephens v. State, supra. We do not see that Stephens’ attorney’s actions affected the outcome of the trial.

Stephens argues since the state’s case against him consisted of White and his credibility and he did not take the stand nor put on any evidence, his attorney was ineffective in failing to attack White’s testimony. This argument is a challenge to White’s credibility which is not a ground for collateral attack on a judgment under A.R.Cr.P. Rule 37. Gunn v. State, 291 Ark. 548, 726 S.W.2d 279 (1987).

Stephens also questions the sufficiency of the evidence as he claims the state’s case was dependent on White’s testimony since none of the victims or witnesses at the scene saw anyone except White and Williams. A challenge to the sufficiency of the evidence is not permissible for post conviction relief. Gunn v. State, supra, Sanchez v. State, 290 Ark. 39, 716 S.W.2d 747 (1986). A petitioner cannot question the weight and sufficiency of the evidence under Rule 37 by framing his question as an allegation of ineffective assistance of counsel. Gunn v. State, supra.

Lastly, Stephens alleges the state knowingly used false testimony. In Napue v. Illinois, 360 U.S. 264 (1959), the United States Supreme Court held the failure of the prosecutor to correct the testimony which he knew to be false denied the petitioner due process of law. The state may not knowingly use false testimony to obtain a conviction even when the testimony goes to the witness’ credibility.

The record in this case does not support a claim that the state knowingly used false testimony. White testified at the evidentiary hearing that the prosecutor instructed him to state he was serving a 12 year sentence if the subject came up at Stephens’ trial. On cross-examination, White stated he did not recall the exact conversation with Mr. Pope. “I’m not sure I didn’t invent that to justify my own actions.” The prosecutor, Sam Pope, testified that he told White to tell the truth; he did not tell White what to say. Pope further testified that White’s statement slipped by him at trial because he was caught up with what was going on. However, he believes the statement was basically true and not perjured.

The trial court found there was no conspiracy against Stephens by White and Pope. There is no evidence in the record to show that the trial court was wrong. It is a question of credibility between Pope and White and the trial court is in the best position to judge credibility. McDaniel v. State, 291 Ark. 596, 726 S.W.2d 679 (1987).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant was convicted of aggravated robbery and manslaughter primarily upon the testimony of one Samuel White. The appellant did not testify. No other witness placed the appellant at the crime scene. There is no doubt that Samuel White and William McCarty actually committed the crime. One of their accomplices was killed by a relative of the victim, during the robbery. Two witnesses to the crime described White as the leader of the band. The prosecutor negotiated an agreement with White, whereby White would testify against the appellant at appellant’s trial in return for the prosecutor’s acceptance of a guilty plea and a five year sentence on manslaughter and, after his testimony at the appellant’s trial, a guilty plea with a twelve year sentence on the aggravated robbery charge. The five year sentence was imposed prior to appellant’s trial; however, the twelve year sentence was forgotten about until it was too late to impose a penalty. The result is that White served not one day for, nor was he ever convicted of, nor did he enter a guilty plea to, the crime of aggravated robbery.

During appellant’s trial White appeared as a witness for the state and testified that he had received a twelve year sentence for the aggravated robbery and that he was serving the time. Defense counsel apparently did not know that White had, in fact, not beén sentenced and had not entered a guilty plea to the aggravated robbery charge. However, he could have walked across the hall and looked at the docket sheet and found that White had not been sentenced. The failure to discover this information, coupled with the perjured testimony of White, who was the state’s chief witness, denied the appellant a fair trial.

It is no secret that the state frequently holds a sentence over an informer’s head to insure his cooperation during the trial of another person. Such tactics are not illegal, but I do believe that in order to insure a fair trial the jury should know the pressure that is being brought to bear on the state’s witness. It seems very obvious that had the jury been informed that Samuel White was lying to them and that he had a secret agreement with the prosecutor to enter a sentence later, the jury may well have not given the sentence it did. At least with respect to the sentence imposed, it is my opinion that counsel’s performance prejudiced the appellant’s case to the extent that he did not receive a fair trial and that there is certainly a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984); and Strickland v. Washington, 466 U.S. 668 (1984). See also Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The jury certainly was under a false impression that White was serving time for aggravated robbery. In fact, he never served a day for this particular aggravated robbery.

In the state’s closing argument the prosecutor asserted that two other persons had fessed up to the truth and were serving their time. This simply was not the truth and in my opinion constituted prejudicial error. Even though the prosecutor may have honestly forgotten about his agreement with White until it was brought to his attention a year later, it is nevertheless a fact that the jury did not learn that the state’s key witness was lying to them. The prosecutor candidly admitted that it is possible he made the agreement as stated by White, but he did not remember it at the time of the hearing on the Rule 37 petition. It matters not whether the prosecutor remembered or whether he intentionally participated in misleading the jury, the result to the appellant is the same. He did not have a fair trial.

I would reverse and remand with instructions to grant the petition for a new trial.


text:
    Gayle TERRY, ex rel CHRISTIAN BOOK CENTER, INC. v. Lee TAYLOR and Edjuana TAYLOR
    87-97
    737 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Robert E. Irwin, for appellant.

      Bullock & McCormick, by: David H. McCormick, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this chancery action is whether it is barred by a prior circuit court judgment under the doctrine of res judicata. Jurisdiction is pursuant to Rule 29(1)0) of the Rules of the Arkansas Supreme Court.

On June 27, 1978, the appellant, Gayle A. Terry (Terry), filed a petition in the Chancery Court of Pope County for an accounting of the business operations of the Christian Book Center, Inc. (Center), in which Terry and the appellees, Lee Taylor (Taylor) and his wife Edjuana, each owned 50% of the stock. The petition alleged that Lee and Edjuana Taylor had operated the Center to the exclusion of Terry and also had denied him knowledge of the affairs of the corporation. In addition to an accounting, Terry asked the court to issue an order declaring both Taylors to be constructive trustees for the use and benefit of the Center and Terry.

Gayle Terry and Jane Terry, his wife, filed an action on September 6, 1979, against the Taylors in the Circuit Court of Pope County alleging that Lee Taylor had used his position of trust for his own private gain. This, the Terrys claimed, resulted in damage to their interest in the Center and to the Center’s economic value. They prayed for damages of $25,000 on behalf of the Center and $35,000 on behalf of them individually. On November 13,1981, the jury returned a verdict for the Terry s and the Center against the Taylors and fixed the damages at $35,000, which compensated the Center and the Terrys for loss of profits caused by Lee Taylor’s breach of trust. We affirmed the decision of the circuit court in Taylor v. Terry, Individually, ex rel Christian Book Center, Inc., 279 Ark. 97, 649 S.W.2d 392 (1983).

On October 5, 1982, in the chancery court action, Taylor filed a brief in support of his prior motion for summary judgment arguing that since the chancery action involves matters that are necessarily within the issues that were litigated or might have been litigated in the circuit court action, it is barred by the doctrine of res judicata.

In December of 1986, the chancery court granted the motion for summary judgment. The court based its ruling on its determination that the judgment in the circuit court action barred the chancery action under the doctrine of res judicata. It is from this order that Gayle appeals.

Terry contends that the chancery court erred in granting summary judgment in that it based its ruling on an erroneous determination that the judgment in the circuit court action barred the chancery action. Under the doctrine of res judicata, the judgment or decree of a court of competent jurisdiction upon the merits concludes the parties to the litigation and constitutes a bar to a new action involving the same claim or cause of action before the same or any other tribunal. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985); Meyer v. Eichenbaum, 202 Ark. 438, 150 S.W.2d 958 (1941).

Terry argues that since the parties were not the same in both actions, res judicata is not a bar. Precisely identical parties are not required; a substantial identity is sufficient. Wells v. Ark. Public Svc. Comm’n, 272 Ark. 481, 616 S.W.2d 718 (1981). When a party to one action in his individual capacity and to a second in his representative capacity is, in both cases, asserting or protecting his individual rights, the doctrine of res judicata binds him. Estate of Knott v. Jones, 14 Ark. App. 271, 687 S.W.2d 529 (1985).

In the circuit court action, Terry asserted both his individual and corporate rights. Terry’s prayer for relief asked for both corporate and individual damages; the judgment on the jury verdict reflects a finding for Gayle A. Terry and Jane Terry, individually, and Christian Book Center, Inc. against Lee Taylor in the sum of $35,000.

Both the circuit and the chancery court suits arose out of a series of connected transactions involving Taylor and the business activities of the Center. Thus, both actions involve the same single claim for the purposes of res judicata. Restatement (Second) of Judgments (1980) § 24. Therefore, the circuit court judgment bars Terry’s chancery court claim. Bailey, 287 Ark. 268, 697 S.W.2d 916.

A summary judgment should be granted when there is no genuine issue of material fact for trial. Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). Since the chancery suit is barred by res judicata, the chancery court did not err in its finding that there was no genuine issue of material fact for trial. Therefore, we affirm the judgment of the chancery court.


author: Darrell Hickman, Justice.

text:
    Robert Harold MUNNERLYN v. STATE of Arkansas
    CR 87-101
    736 S.W.2d 287
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Gregory E. Bryant, for appellant.

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

Appellant Robert Harold Munnerlyn was convicted of robbing the England Package Store, North Little Rock, Arkansas. His attorney, Greg Bryant, has filed a brief that consists of copies of pages from a brief filed on behalf of Munnerlyn in another criminal case. Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987).

In that case there was an omnibus hearing on a confession in which Munnerlyn confessed to three robberies, one on November 9, 1985, one on November 16, 1985, and one on November 24, 1985. He did not confess to the robbery in this case. So the record of the omnibus hearing is irrelevant. Yet, Munnerlyn’s attorney has made the record of the omnibus hearing a part of this record and raised legal arguments entirely irrelevant to this case. The record in this case has not been abstracted.

The attorney general’s office, represented by J. Blake Hendrix, must also have assumed that the arguments in Munnerlyn’s other case were relevant to this appeal: the state filed a four page brief that is irrelevant.

The case is remanded and the attorneys are directed to properly abstract and brief this case. Briefs are due pursuant to Rule 11, Rules of the Supreme Court as though the transcript were lodged today.

Remanded.


text:
    Laurie RONE v. Stanley Eugene LITTLE, et al.
    87-79
    737 S.W.2d 152
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Sanders & Hill, by: Robert Sanders, and Wilson, Engstrom, Corum & Dudley, by: William R. Wilson, Jr., for appellant.

      Wood, Smith, Schnipper & Clay, for appellee.
   Darrell Hickman, Justice.

Laurie Rone sued a fellow employee, Stanley Little, and two of her employers, H.R. Hospitality, Inc., and Shamrock Properties, Inc., for personal injury. The employers had a champagne party for their employees to celebrate the opening of the Sheraton Lakeside Resort in Hot Springs, Arkansas. Rone left the party with Little, who she says was intoxicated. According to her statement, Little lost control of the vehicle, which left the road, striking a telephone pole. Rone allegedly suffered serious and permanent injuries.

Pursuant to a joint motion, the trial judge dismissed H.R. Hospitality and Shamrock Properties, leaving Little as the only defendant in the lawsuit. Rone filed an appeal from this order, but it is not an appealable order. See ARCP Rule 54(b); Kilcrease v. Butler, 291 Ark. 275, 724 S.W.2d 169 (1987).

Appeal dismissed.

Purtle, J., not participating.


author: John I. Purtle, Justice.

text:
    Charles James ROBINSON v. STATE of Arkansas
    CR 87-103
    737 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      William R. Simpson, Jr., Public Defender, by: Steff Padilla, Deputy Public Defender, for appellee.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A single information alleged that the appellant, Charles James Robinson, raped and robbed three different women on three different dates. The cases were severed and appellant was tried before a jury and received two ninety-nine year sentences as a habitual offender for the rape and aggravated robbery of the victim in the present case. On appeal appellant argues that the in-court identification should have been suppressed and that the evidence does not support the conviction for aggravated robbery. We find neither argument persuasive and therefore affirm the action taken by the trial court.

In Robinson v. State, 293 Ark. 51, 732 S.W.2d 159 (1987), we considered the same pre-trial lineup because all three of the rape victims identified the appellant at that time. It is unnecessary to repeat the lineup facts set out in detail in Robinson v. State, supra, except to add that after the victim in the present case viewed the lineup, another victim replied “Yes” to her inquiry, “Did you see him?”

It is reasonable to assume that pre-trial identification may have a great bearing on the in-court identification. Therefore, the trial court should carefully examine the reliability of the pre-trial identification from a totality of the circumstances. If the pre-trial identification procedures do not produce a substantial likelihood of misidentification, the trial judge should allow the identification evidence to be submitted to the jury for a determination of credibility. Manson v. Brathwaite, 432 U.S. 98 (1977); and Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987).

In the present case the victim was face to face with her assailant in a lighted room for several minutes. She talked to him and observed him walking about the room. She faced him during the rape. After the crime she gave an accurate general description of his physical appearance and furnished a detailed description of his clothing as well as the knife he used to threaten her. She immediately and positively identified the appellant as her assailant at a pre-trial lineup two months later.

There is no evidence to support the appellant’s argument that the pre-trial identification was suggestive. Obviously, the victim knew the police had a suspect or they would not have asked her to view the lineup. Neither the officers nor the other victims indicated to the victim who to pick in the lineup. We hold that the pre-trial lineup was not suggestive and the victim’s identification was reliable.

The second argument is that the evidence was insufficient to prove the appellant had the intent or purpose to commit aggravated robbery. The evidence in the light most favorable to the appellee showed that after the appellant put a knife to the victim’s throat, she told him she would give him all of her money if he would go away and leave her alone. She later gave him one hundred and eighty-seven dollars.

Intent or purpose to commit a crime can be formed in an instant. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986) and Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979). Also, a person is presumed to intend the natural and probable consequences of his acts. Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986). Since intent cannot ordinarily be proven by direct evidence, the members of the jury are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Kinsey v. State, 290 Ark. 4, 716 S.W.2d 188 (1986).

A challenge to the sufficiency of the evidence will be upheld if there is substantial evidence to support it. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The victim testified that after the appellant placed a knife to her throat, she unwillingly offered him all of her money. When he accepted the victim’s money, the appellant clearly demonstrated his intent to rob her. We hold that there is substantial evidence to sustain the verdict and the convictions.

Affirmed.


text:
    Jay D. URICH v. STATE of Arkansas
    CR 87-50
    737 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Jeff Duty, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Jay Urich was convicted in the Municipal Court of Ft. Smith of driving while intoxicated in violation of the Omnibus DWI Act, Ark. Stat. Ann. § 75-2501 et seq. Appellant was fined $500 and his driver’s license was suspended for ninety days pursuant to § 7 5-2511. Two weeks later he was arrested in Benton County for driving with a suspended driver’s license. He was convicted by the Benton Circuit Court and sentenced to ten days in jail.

On appeal, Urich challenges his conviction in Benton Circuit Court on the grounds that the suspension of his license by the Ft. Smith Municipal Court was of no effect and therefore he could not be convicted of driving with a suspended license. Urich argues that he was prosecuted by the City of Ft. Smith in violation of Rule 1.5 of the A.R.Cr.P., which provides:

All prosecutions for violations of the criminal laws of this state shall be in the name of the State of Arkansas, provided that this rule shall in no way affect the distribution, as provided by law, of moneys collected by municipal courts.

The only evidence in the record of the Ft. Smith proceedings is an abbreviated “Transcript of Judgment,” which has two blanks, one by City of Ft. Smith and one by State of Arkansas. The blank indicating the City of Ft. Smith is checked. Urich argues that because Rule 1.5 was not followed, the Ft. Smith conviction was of no effect. He cites nothing other than the rule itself, but the implication of his contention is that the city had no authority to prosecute him. The argument constitutes a collateral attack on the Ft. Smith conviction, which could have been raised by appeal. However, since lack of subject matter jurisdiction is subject to collateral attack, [Ark. State Hwy. Comm. v. Rice, 259 Ark. 190, 532 S.W.2d 727 (1976); Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W.2d 651 (1967)] we will treat appellant’s argument as being that the Ft. Smith Municipal Court had no jurisdiction to convict him of a violation of state law.

That municipal courts may exercise jurisdiction over state misdemeanor violations is settled law. Article 7, § 1 of the Arkansas Constitution provides:

The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts ....

Ark. Stat. Ann. § 22-702 establishes municipal courts and § 22-709 grants jurisdiction to municipal courts over misdemeanors.

The same issue was raised in Ex Parte Hornsby, 228 Ark. 975, 311 S.W.2d 529 (1958), where the petitioner was convicted in municipal court of violating a state DWI statute. We found the argument without merit, citing Ark. Stat. Ann. § 22-709.

Urich also submits that under Ark. Stat. Ann. §75-1511, the municipal judge of Ft. Smith had no authority to suspend his driver’s license. The statute provides:

At the time of arrest for violating § 75-2503 [driving while intoxicated] the arresting officer shall seize the motor vehicle operator’s license of the person arrested and issue to such person a temporary driving permit to expire on the date of arraignment. The arresting officer shall remit the seized operator’s license to the court. Upon arraignment, the judge shall issue such person a temporary permit to expire on the date of the trial. If the person is convicted of violating § 75-2511, the court shall transmit the operator’s license to the Office of Driver Services and shall instruct the Office of Driver Services to suspend or revoke such person’s motor vehicle operator’s license as follows: (Our emphasis).

Urich contends that the statute should be construed as reading that only the Office of Driver Services is authorized to suspend licenses, and not the sentencing judge. He then asserts that inasmuch as the municipal judge directed an unauthorized suspension, it is of no effect, and that in any case, the court never transmitted the license to the ODS as directed by the statute, which is essential in order to support a valid suspension.

Appellant’s brief suggests these points involve matters of jurisdiction which, as we have noted, could be addressed in a collateral attack. However, we decline to consider the argument within the context of this case because the record contains only this: “Disposition: Fined 500.00/90 days D.L. susp.” There is no evidence that the statute was not fully complied with. All we have is appellant’s bare claim on appeal that such was the case. Nothing in the statute requires that this information be part of, or noted on, a judgment.

There is a similar flaw in appellant’s argument that the judge was not authorized to suspend the license. The above notation on the judgment tells us nothing as to who or what was involved in authorizing the suspension. We do not reverse unless the record demonstrates error. Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978). It is appellant’s burden to demonstrate error, and he has failed to do so. Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977); Clemenson v. Rebsamen, 205 Ark. 123, 168 S.W.2d 195 (1943).

Affirmed.


author: David Newbern, Justice.

text:
    ARKANSAS COMMISSION OF POLLUTION CONTROL AND ECOLOGY v. HUSKY INDUSTRIES, INC.
    87-49
    737 S.W.2d 157
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Phillip Deisch, for appellant.

      Walker, Campbell & Campbell, by: Gene C. Campbell, for appellee.
   David Newbern, Justice.

Husky Industries, Inc., applied for a variance from Department of Pollution Control and Ecology regulations applicable to emissions from its charcoal making kilns. A variance was granted by the department, but it was a lesser variance than the one Husky had sought.

Husky appealed the director’s decision to the Arkansas Commission on Pollution Control and Ecology. Evidence was taken in a hearing before a department hearing examiner who made recommendations as to the order to be entered by the commission. The commission affirmed the director’s decision and entered its order for the lesser variance.

Husky appealed that decision to the circuit court which reversed the commission and ordered the matter remanded to the commission which was directed to grant the variance originally sought by Husky. We hold the court erred by substituting its judgment for that of the commission and in exceeding the statutory limits upon its authority to review the commission’s order, thus we reverse the court’s order and remand for reinstatement of the ruling of the commission.

In the main sections of its variance request, Husky sought exemption from sections 3 and 4 of the Arkansas Air Pollution Control Code for its charcoal making facilities at Huntsville and Omaha, Arkansas. Section 3 prohibits installation, alteration, or replacement of equipment without first obtaining a permit from the department. Section 4 establishes visible emission limits of forty percent opacity for existing equipment and twenty percent opacity for new equipment. The request was that the existing kilns be exempt from section 4 and that Husky be allowed to replace its kilns and remain exempt unless the cost of replacement exceeded fifty percent of the replacement cost of the “existing facility,” in which event smoke emission controls would have to be installed.

The commission’s order required that Husky, within forty-five days, submit applications for permits, which it had never before obtained, for the kilns located at Huntsville and Omaha showing an estimated remaining life expectancy for each kiln so as to establish a date at which a replacement kiln would be built with the proper emission control. It also provided that any new kilns would have to have the controls required by law, but granted a two-year variance with respect to existing kilns, ending July 1, 1987. It then provided that at least one after burner or other approved control device would have to be provided each year at each facility until all kilns which had existed on the date the variance was granted were in control.

In its “Statement of the Case” preceding its “Finding of Facts and Order,” the commission noted that, pursuant to Ark. Stat. Ann. § 82-1939 (Repl. 1976), it has the power to grant a variance “to protect the public health and welfare if it finds that strict compliance with such regulation is inappropriate . . . because strict compliance would result in substantial curtailment or closing down of a business. . . .” The commission noted further, however, that the section states the commission shall weigh the equities involved and the relative advantages and disadvantages to the residents and the occupation and activity affected.

Two of the commission’s findings of fact were as follows:

11. The installation and operation of pollution control equipment would be an added cost to Husky’s operation; however, it was not established that the cost of such equipment would make Husky’s operations unprofitable.
12. Husky’s facilities are significant in supporting employment in their areas although the evidence failed to establish reliably the actual extent of Husky’s economic input into the community.

In its order reversing the commission’s order, the circuit court cited the disputed evidence as to the extent of the noncompliance of Husky’s kilns, and found that the evidence did not satisfactorily demonstrate that Husky’s smoke emissions endangered the public health and welfare. The order noted the considerable testimony as to the economic hardship on the communities to be affected if Husky’s operations at Huntsville and Omaha were discontinued. It also noted that the testimony of an official of the company had shown that the operations in question were of marginal profitability and would be closed due to the added costs of “full compliance.” The final paragraph of the order was as follows:

The Court therefore believes that for the reasons stated, the Commission did not give proper consideration to the evidence of the economic impact that strict compliance would have upon the community and industry involved and, therefore, the Order and Findings of Fact of the Commission denying the Request for Variance of Husky Industries, Inc., is reversed and remanded to the Commission with direction to enter an Order not inconsistent herewith granting the Request for Variance of Husky, Industries, Inc., as submitted.

The statute governing the circuit court’s review of an order of the commission is Ark. Stat. Ann. §82-1906, Subdivision 7. (d) (Supp. 1985). Subdivision 7. is entitled “Review on Appeal.” Subsection (d) of that subdivision provides the circuit court may vacate the commission’s decision:

... if the action of the Commission is:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error or law;
(5) not supported by substantial evidence o[f] record; or
(6) arbitrary, capricious, or characterized by abuse off] discretion.

The trial court cited none of these as reasons for its decision in this case. While number (5) might be thought to be implicated because the court mentioned that the evidence was insufficient to show Husky’s smoke emissions were a threat to the public health or welfare, it is clear and uncontested that Husky’s kilns are not in compliance with the commission’s regulation. Otherwise, presumably, Husky would have perceived no need for a variance. The court’s finding that the commission “did not give proper consideration” to the threat to the economies of the communities involved posed by “strict compliance” is not a basis upon which review was permitted. Moreover, it is apparent that the commission did not require “strict compliance,” and it gave substantial consideration to the hardship evidence, as it was the only basis for the substantial variance it granted to Husky in its order.

In Arkansas Commission on Pollution Control & Ecology v. Land Developers, Inc., 284 Ark. 180, 680 S.W.2d 909 (1984), we held that, to the extent Subdivision 7. of the statute permitted de novo review of the commission’s decisions, it was unconstitutional. That subdivision was amended by Act 284 of 1985 to restrict the review in the circuit court to the matters listed above. The review here clearly exceeded that statutory authority. We thus reverse and remand to the circuit court for reinstatement of the commission’s order.

Reversed and remanded.


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    Bill WORTMAN v. Don SHIPMAN
    87-70
    737 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Callis L. Childs, for appellant.

      Harkey, Walmsley, Belew & Blankenship, by: Leroy Blankenship, for appellee.
   Tom Glaze, Justice.

This civil case had its origin in events which resulted in a prior federal indictment against the appellant, charging him with deliberately assaulting a federal law enforcement officer, Don Shipman. Appellant was tried three times on that charge, each resulting in hung juries and mistrials. The United States government subsequently dismissed the federal charge against the appellant. Shipman then filed this tort suit against appellant, alleging appellant’s negligent handling of a firearm caused injury to Shipman. He also alleged appellant deliberately, intentionally, willfully and maliciously shot him. Shipman was favored with a jury verdict, awarding him compensatory damages of $500.00 and punitive damages of $20,000.00. On appeal, appellant raises ten points for reversal. We concluded none of his arguments warrant a reversal, and, therefore, we affirm.

A brief discussion of the facts is necessary before considering appellant’s arguments. Appellant’s cabin and surrounding property is located in Searcy County, and it shares common boundaries with U.S. Forest Service property. Both federal and state law enforcement officers had conducted a surveillance near and around appellant’s land because they believed marijuana was being cultivated in that area. Appellant conceded that he knew federal and state officers were suspicious of marijuana in the area and that he had complained about low flying aircraft, including helicopters, that had been employed to surveil appellant’s land and surrounding property for marijuana. He also complained to the Arkansas Game and Fish Commission regarding one of its game wardens who had been on appellant’s property looking for marijuana. These activities and events served as the backdrop for the shooting incident that occurred on July 31, 1983.

On July 31, because appellant was aware that individuals had been “sneaking” around the area, he cancelled plans to go on an outing. Instead, he positioned himself on a nearby bluff overlooking a roadway and waited until he saw two men (Ship-man and his fellow officer) walking in the roadway. Appellant, armed with a twelve-gauge shotgun, confronted the men, and ordered them to lie face down in the road. Appellant claimed he did not know the men were federal officers, but Shipman and his fellow officer both testified they had informed appellant they were officers and offered to show him their identification. Aside from this conflict in testimony, all agree that soon after the two officers had dropped to the ground as directed by appellant, they jumped up and ran to escape when appellant shot at them several times. Appellant hit Shipman with one of the shots, injuring him in the leg. At trial, Shipman contended that the shooting was deliberate, that appellant knew he and his colleague were law enforcement officers and that appellant, in an attempt to protect his marijuana, deliberately ambushed them. Appellant, on the other hand, tried to show, without success, that he was unaware the men were officers, that he was merely attempting a citizen’s arrest for their having trespassed on his property and that he shot Shipman in self-defense. In support of his story, appellant testified that his shooting was prompted because one of the men had reached for his revolver as they made their escape.

In addressing appellant’s arguments, we first note difficulty in meeting some points head-on because of the mixed criminal and civil legal theories advanced at the trial. Appellee filed this suit in tort, alleging ordinary negligence and tort of outrage. Appellant defended appellee’s suit by attempting to inject certain criminal defenses such as self-defense and justification; in fact, he argues here that the trial court erred in refusing to give jury instructions containing those defenses. Appellant, however, fails to cite any authority to support his position, and, indeed, we know of none. The authority, instead, runs counter to appellant’s argument.

This court on numerous occasions has said that when an AMI instruction is applicable in a case, it shall be used unless the trial judge finds it does not accurately state the law. Boyd & Smith v. Reddick & Twist, 264 Ark. 671, 573 S.2d 634 (1978); Vangilder v. Faulk, 244 Ark. 688, 426 S.W.2d 821 (1968). In the instant case, the trial judge correctly read AMI instructions concerning negligence, comparative negligence and those instructions commonly given in connection with these legal theories. He also included appropriate AMI instructions pertaining to damages. Appellant interposed no objection to any of these AMI instrúctions, but he did attempt to modify AMI 206 and 612 by including language regarding self-defense, justification and assumption of risk.

In Vangilder, supra we held that if counsel offers an instruction in lieu of an AMI instruction and the offer is refused, preservation of the record on appeal requires counsel to specify the reasons why the AMI instruction is inadequate or inaccurate. Here, appellant failed to give his reasons for modifications, nor, as already mentioned, does he give us authority or convincing argument why his modified AMI instructions or other instructions should have been read. That being so, we are compelled to hold that the trial judge was correct in his rulings on the instructions both given and denied at trial.

Before departing from the subject of jury instructions, we need mention the court’s giving, without objection by either party, AMI 2217, as that instruction read before its revision after 1982. That revision added language providing for damages in cases — such as the one at hand — where intentional conduct is involved. In other words, the trial court gave the old AMI 2217 without modification, which reads as follows:

Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. Before you can impose punitive damages you must find that [appellant] knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct with malice and [or] in reckless disregard of the consequences from which malice may be inferred . . .

In Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), we concluded that the foregoing instruction was formulated for use in negligence cases and not designed — without modification — to apply in a case of an intentional tort. See also Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985). In the instant case, both ordinary negligence and intentional tort were alleged and considerable evidence was offered in support of both theories. Neither the appellant nor appellee argue that the prior version of AMI 2217 was given erroneously, thus, such is not an issue in this appeal — at least, not a direct issue. We mention this point, however, because both parties discuss and argue the case as one involving an intentional tort. As previously discussed, appellant raised issues of self-defense and justification. Appellee then countered with evidence in an attempt to show, generally, why appellant shot the appellee, and specifically, to prove, circumstantially, that appellant was trying to protect marijuana patches he had grown near his property line at the time he shot appellee. Obviously, these arguments and defenses have little relevance to the instructions given the jury, allowing it to award punitive damages when appellant’s conduct was less than intentional, viz., when his conduct was so reckless as to infer malice.

In the context within which this case was presented to the jury, we now may combine several of appellant’s arguments and dispose of them together.

Appellant argues the trial court erred in allowing excessive reference to marijuana throughout the trial, admitting aerial photographs reflecting the location of the marijuana patches in issue, permitting testimony about appellant having grown marijuana more than three years prior to the shooting incident and admitting testimony which tended to show appellant shot some cows that had trespassed onto his property and adjoining and nearby marijuana patches. Obviously, the parties and witnesses referred to marijuana in view of the fact that the appellee and his fellow law enforcement officers were in the process of searching for marijuana when the appellee was shot. Also, in appellant’s counsel’s opening as well as his closing argument, he denied any connection with marijuana, saying appellant did not use or grow it. Thus, from the commencement of this case, both parties made varied references to marijuana and tried this cause as though it was a marijuana case. Appellant, in his closing argument, referred to the trial as a marijuana case. We can say in summary that we find little merit in appellant’s assertion that the court erred in allowing evidence that depicted the location of the marijuana patches involved here, that tended to connect appellant with those patches and that showed he had grown marijuana on earlier occasions, all of which inferentially rebutted appellant’s opening remarks to the jury. See Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984) (wherein this court said that when a proponent opens the door to a line of questioning, the opposing party may fight fire with fire by introducing rebuttal evidence on that issue).

Appellant argues two other points without citing legal authority in support of his arguments, viz., the trial court erred in not allowing appellant to refer to the three prior criminal trials which resulted in mistrials and in allowing value testimony on the marijuana plants found behind his cabin. Thus, we need not reach the merits of those arguments except to note that appellant made repeated references to those trials in spite of the trial court’s ruling and that appellant was allowed to fully cross-examine witnesses concerning their testimonies given in those trials. In addition, we recognize appellant does, in a general way, argue the lack of relevancy concerning the value of the marijuana plants found and taken in this case. Nonetheless, appellee offered that testimony, in part, to show the extent of the marijuana involved and that appellant intended to protect against its discovery. Given the parties’ limited arguments here and the trial court’s discretion in ruling on questions of relevancy, we cannot conclude the trial judge abused his discretion by admitting the value testimony into evidence. See Olson v. Riddle, 280 Ark. 535, 659 S.W.2d 759 (1983).

Next, we consider appellant’s argument that the trial court wrongly denied his motion to set aside or reduce the amount of punitive damages. We find no merit in this point, as well. As we stated in Pursley v. Price, supra, punitive damages constitute a penalty and must be sufficient not only to deter similar conduct on the part of the same tortfeasor, but they must be sufficient to deter any others who might engage in similar conduct. There, Price obtained damages for his truck in the sum of $367.28, and was awarded $30,000.00 in punitive damages. Pursley had fired several shots at Price’s truck after Price failed to respond to Pursley’s demands to turn off his vehicle lights which were shining into Pursley’s and his wife’s eyes when they were sitting in their carport. The evidence and awards given in Pursley were not dissimilar to the type of evidence and the amounts in damages given here. Accordingly, we are unable to hold the jury awards of $500.00 compensatory and $20,000.00 punitive damages were in any way disproportionate so as to require them to be set aside or reduced.

We now address appellant’s argument that the trial court erred in denying appellant’s motion for a prima facie hearing prior to requiring the disclosure of his tax returns. To support his argument, appellant cites Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981) wherein we held the plaintiffs were required to make a prima facie case showing a cause of action for punitive damages before Curtis could be required to provide personal financial records. We adhere to that holding, but the difference between the Curtis case and the situation at bar is that the trial judge here did conduct a hearing after appellant’s motion and two weeks prior to trial. At that hearing, the judge ruled appellee had made a prima facie case for punitive damages. In making his ruling, the trial judge found that the appellee had made a prima facie case on the punitive-damages issue, basing his decision upon an affidavit and answers to interrogatories. Appellant does not abstract those documents relied upon by the judge, but suggests that he was prejudiced by the court’s failure to have a “full hearing” on the disclosure issue. Appellant also fails to proffer evidence, if indeed any exists, that would show the trial court’s ruling may have been otherwise if appellant had been afforded another hearing on the matter. In sum, we cannot say, based upon the record before us, that the judge denied appellant a prima facie hearing on the disclosure issue or that he abused his discretion in admitting appellant’s tax returns into evidence.

Finally, we consider appellant’s assignment of error that the trial court, without notice to appellant, improperly permitted appellee to take a witness’s deposition during the trial. That witness was not called to testify at trial, nor do we find in the record where her deposition was admitted into evidence. In fact, appellant concedes the deposition was not made a part of the record in this appeal. Accordingly, we are unable to address this issue since the record is insufficient for us to consider it.

We conclude that the points raised by appellant fail to show reversible error, and we affirm.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I believe that this Court is making the same mistake that the trial court made. This is, in effect, the appellant’s fourth criminal trial for the manufacture of marijuana, a crime for which he was never charged. Three times the federal government tried to convict the appellant for assaulting a federal officer. Three times a jury failed to convict him of the criminal charge, and this civil suit followed. Moreover, the rules for the civil trial seem not to have changed from the criminal trial because the defendant was forced a fourth time to defend what amounted to a prosecution for the production of marijuana. Indeed, the majority concedes that this case was tried “as though it was a marijuana case.”

Three crops of marijuana from three different patches were paraded in front of the jury during the trial. The majority bases the right to introduce such inflammatory and prejudicial evidence upon the opening statement of appellant’s counsel in which he denied the appellant was involved in any manner with marijuana. Citing Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984) (note my dissent), the majority concludes that the appellant opened the door to this line of questioning, and thus it was permissible for the appellee “to fight fire with fire” by introducing rebuttal evidence on this issue. I had previously thought that the trial court always instructed the jury that the arguments of counsel are not evidence to be considered by them. Common sense tells me, however, that it was impossible for the jury to reach a verdict without basing it upon the allegation that appellant was a marijuana grower.

Moreover, the trial court allowed testimony concerning the market price for a full crop of marijuana to be admitted into evidence. There was no hard evidence that the appellant was responsible for the growing of the marijuana. The street value, as estimated by the officers, could do nothing but add prejudice to the appellant’s defense.

The appellee, the federal officer, was allowed to prove that several cows were found shot to death near the appellant’s property three years earlier. So far as I am concerned, dead cows have no relevance whatsoever to the case being tried. There is no testimony that the appellant shot the cows. The carcasses of the cows would have inevitably led to the discovery of the marijuana. Such evidence was neither relevant nor probative of the issue in question.

Perhaps the greatest mistake is the majority’s approval of the trial court’s requirement that the appellant introduce his income tax returns. These returns were apparently used for the purpose of showing that the appellant must have had income from growing marijuana. A person that’s smart enough to grow marijuana is not dumb enough to put it in his income tax forms. So far as I know we have never permitted individual income tax returns to be admitted as evidence in a civil case. Certainly it would have been proper to show what appellant’s net worth was by introduction of evidence of the amount of money reported on his income tax return. However, I am certain this Court will rue the day that they approved this procedure.

I would reverse the case and remand for a fair trial on the merits of the complaint.

       We hold that appellant failed to show why the trial court should have given these defenses or modified AMI instructions to include them; but we note our cautionary remarks in Rogers v. Kelly, 284 Ark. 50, 679 S.W.2d 184 (1984) that AMI 612 (assumption of risk) should be used only in exceptional circumstances, if indeed it is ever proper now that assumption of risk is not a complete defense. AMI 612 has since been deleted from the Arkansas Model Jury Instructions. See AMI Civil 2d, 10 (Supp. 1986).

       Appellant specifically argued that testimony connecting him with shooting cattle trespassing on his property more than three years prior to this shooting incident was too remote and irrelevant to the issues before the court. He also urged that testimony was highly prejudicial. As already noted, appellant denied any prior or present connections with growing marijuana and this testimony showed four cows were shot near a marijuana patch at the edge of appellant’s property and that the owner, having heard the shots, immediately responded by finding his dead cows and seeing someone’s tracks that led to appellant’s cabin. Appellant, while denying killing the cows, conceded he had been tempted to shoot the cattle on several occasions. This testimony, albeit circumstantial, tended to show appellant was implicated with the shooting of cattle which were grazing within view of some nearby marijuana.


author: Per Curiam.

text:
    Theodore Clark STEWART v. STATE of Arkansas
    CR 87-159
    737 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered October 5, 1987

      Appellant, pro se.
    No objection.
   Per Curiam.

In 1981 appellant Theodore Clark Stewart was found guilty of burglary and sentenced as an habitual offender to thirty years imprisonment in the Arkansas Department of Correction. In 1984 his retained attorney Robert New-comb filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37. No action was taken on the petition until April 1987 when it was denied. Petitioner then filed a pro se notice of appeal and the record has now been lodged here. The appellant avers that he is indigent and requests appointment of counsel for the appeal.

A petitioner under Rule 37 is entitled to appeal an adverse ruling in accordance with Rule 37.3(b). The obligation of the attorney representing the petitioner is the same as in any appeal; that is, counsel shall continue to represent his client throughout an appeal unless permitted to withdraw by the trial court or this court. See Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986). The timely notice of appeal filed by the petitioner here is proof that he desired an appeal. It cannot be discerned from the record whether he specifically notified counsel that he had filed a notice of appeal, but there is nothing in the record to indicate that counsel had been relieved as attorney-of-record and therefore he remained responsible for knowing what had been filed in regard to the case. As Robert Newcomb had not been relieved by either this court or the trial court, he is responsible for continuing his representation of the petitioner. We find petitioner to be indigent and appoint Mr. Newcomb counsel on appeal.

Motion granted.