author: Robert L. Brown, Justice. Robert H. Dudley, Justice,

text:
    Dwight SULLINGER v. STATE of Arkansas
    CR 92-573
    840 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered October 26, 1992

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

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Dwight Sullinger, an habitual offender, appeals from his conviction for first-degree murder and felon-in-possession-of-a-firearm for which he was sentenced to life imprisonment on the murder conviction and six years for possession of a firearm. He raises several points on appeal: (1) whether the court erred in failing to sever the murder charge from the felon-in-possession charge; (2) whether the court erred in allowing the state to introduce unsigned judgments of his past felony convictions; (3) whether the court erred in allowing unsigned judgments without proof that the pleas were constitutional; (4) whether the court erred in failing to grant a mistrial on the basis of prejudicial remarks relating to cocaine by the prosecutor; and, (5) whether Ark. Code Ann. § 5-2-207 (1987), which provides that voluntary intoxication is not an affirmative defense, is unconstitutional. We hold that there was no prejudicial error committed, and we affirm the conviction.

FACTS

The essential facts occurred on April 15, 1991, when Dwight Sullinger shot and killed Pocahontas Police Officer Scotty Bennett. Several hours before he was killed, Bennett, together with Pocahontas Officers Kevin Faust and Charles Buazard, had responded to a disturbance at Sullinger’s home. As the officers were preparing to leave, Sullinger asked Bennett whether he would return later if the appellant needed him. Bennett agreed to do so.

The three officers left Sullinger’s home and went to dinner. While at dinner, a call came in to the officers at about 7:15 p.m. to return to the appellant’s house. Officers Bennett and Faust left in their patrol car with Stan Mitchell, a reporter from the Jonesboro Sun, in the back seat. Officer Buazard followed in his patrol car. Officers Bennett and Faust and Stan Mitchell arrived at the appellant’s home first, and Officer Bennett got out of the car. At that point, Sullinger came out of his house with a shotgun held along the side of his leg. According to Stan Mitchell, Sullinger then said: “Scotty, you deserve this.” He raised the shotgun and shot and killed Bennett. He then threatened Officer Faust with the shotgun. Officer Buazard arrived at the scene subsequent to the shooting.

After firing at Officer Bennett, Sullinger ran inside his house and shot himself under the chin with the same shotgun, wounding himself. The appellant then came out of his house without the shotgun and was taken into custody by Officer Buazard. He was charged with capital murder, and the state requested the death penalty. Later, the information was amended to charge him as an habitual offender and with the felon-weapon charge.

Before the trail, Sullinger moved for severance of the capital-murder charge and the weapon charge. The motion was denied. During the five-day trial in December 1991, Officers Faust and Buazard testified that the appellant was angry at Officer Bennett because Bennett had cited him for DWI in March 1991. Sullinger mounted a defense on the basis that his alcohol and tranquilizer abuse had eroded any purposeful intent to commit murder. Following the trial, the jury convicted him of first-degree murder and of the felon-weapon charge. The penalty phase ensued, during which time two prior felony convictions were presented to the jury. The appellant, as noted earlier, was then sentenced to life imprisonment for murder and six years on the felon-weapon charge.

/. SEVERANCE

Prior to trial, the appellant moved to sever the charges, and the motion was denied. At the commencement of the trial, the information with the joined charges was read to the jury, and defense counsel moved for a mistrial. That motion, too, was denied.

During the state’s case, the prosecutor introduced into evidence an exhibit containing a certified copy of one felony judgment against Sullinger for breaking and entering fourteen years ago when Sullinger was age seventeen. Sullinger objected to the evidence, and the objection was overruled. A renewed motion for a mistrial was not made at that time. Nor did the appellant request an admonition to the jury. The appellant also objected to the felon/weapon instruction to the jury, but he requested no curative instruction at that time. Prejudicial error by virtue of the admitted felony conviction is now asserted on appeal.

The issue before us is not unlike that raised in a recent case where the charges of first-degree murder and felon-in-possession-of-a-firearm were joined and tried together. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). In Ferrell, we held that the denial of the motion to sever was error under Ark. R. Crim. P. 22(a) because the two offenses joined were not part of “a single scheme or plan,” and therefore severance should have been granted. However, we further held that the prejudice was rendered harmless by the circumstances in the case and particularly by the fact that 1) a curative instruction was given, 2) Ferrell voluntarily took the stand where his prior conviction was brought out on cross-examination, and 3) no further objection was made by the defense that Ferrell was compelled to testify because of the joined offenses. We further noted that the evidence against Ferrell was overwhelming with three eyewitnesses testifying to the murder.

The case before us has all of the critical Ferrell factors save one — there was no curative instruction or admonition to the jury that the prior felony should not be considered in the murder case. The state in its brief argues that the appellant should have asked for curative relief, and his failure to do so precludes him from raising the issue now. In making the argument, the state cites us to White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). In White, the issue was whether a prior bad act — a previous fight between the appellant and the victim — could be introduced. The defense made an objection to the evidence, but it was overruled. No demand for a mistrial or admonition or curative instruction to the jury followed. We said: “Inasmuch as we agree with the trial court that the testimony was admissible, the appellant would have been entitled to a limiting instruction on the purpose for which the testimony was to be considered. Because such an instruction was not requested, appellant cannot now claim error.” 290 Ark. at 140, 717 S.W.2d at 789.

In the case before us, it was error to join murder and the weapon charges for trial. Ferrell v. State, supra. However, had a curative instruction or admonishment been given, the facts would have been virtually identical to Ferrell. The issue then becomes whose duty was it to request curative relief. We believe that burden falls upon the defendant, and the failure to request curative relief cannot inure to his benefit on appeal.

We further observe that though the appellant moved for a mistrial at the beginning of the trial, he did not renew his motion when the felony evidence was introduced or when the appellant took the stand or when the jury was instructed. He simply objected to the introduction of the felony judgment. A motion for a mistrial and an objection to evidence are categorically different. A mistrial motion asserts that the error is beyond repair and cannot be corrected by any curative relief. An objection to evidence does not carry with it the same gravity, and an admonition or instruction to the jury are acknowledged means of ameliorating the situation. Here, Sullinger requested no such relief, and we agree that he should not now be allowed to benefit from that omission and distinguish the Ferrell decision on that basis for appeal purposes.

We, therefore, hold as we did in Ferrell that trying the two charges together was error, but the error was rendered harmless by the circumstances of this case. The proof of guilt in this case was considerable with two eye witnesses to the killing. Moreover, the appellant voluntarily took the stand to assert his defense of diminished capacity to engage in purposeful conduct. By doing so, he was subject to cross-examination on his past criminal record though he discussed his criminal record on direct examination. Again, there was no suggestion by the appellant that he was compelled to take the stand due to the introduction of the one felony judgment during the state’s case-in-chief. Lastly, in this case as opposed to Ferrell, the appellant was charged as an habitual criminal, and the two prior felonies became admissible during the penalty phase of the trial.

II. UNSIGNED JUDGMENT

For his second point, Sullinger seeks to exclude the two unsigned felony judgments on the basis that because they were not signed by the judge, there was no proof that they were valid. In support of this position appellant cites us to a civil rule, Ark. R. Civ. P, 58, which provides that a judgment must be signed to be valid.

This issue of sufficient judgments was decided in Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990). In Thomas, we held that copies of the defendant’s prior judgments which were not signed were admissible for enhancement purposes in the penalty phase because they were authenticated by evidence that satisfied the trial court of their validity beyond a reasonable doubt. The evidence before the circuit judge in this case supports his decision of their validity. Not only did he have certified copies of the two informations and judgments but also the trial court’s docket sheets evidencing the guilty pleas. To be sure, unsigned judgments in other contexts might well be invalid, but the appellant has presented no authority other than a civil rule to support their invalidity when introduced during the penalty phase of a trial. There was no abuse of discretion by the circuit judge on this point.

III. CONSTITUTIONALITY OF JUDGMENTS

Sullinger next argues that an alternative reason for not admitting the unsigned judgments is that, because they were not signed, there is no proof they were obtained in compliance with his constitutional rights. He cites us to Ark. R. Crim. P. 24.4 which provides that a defendant must be advised of his right to counsel.

Here there was no constitutional infirmity apparent from the judgments and supporting court records. The records showed that he was represented by counsel on both matters. The appellant has the burden of producing a record exhibiting prejudicial error. See Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991). The only alleged infirmity that the appellant has shown is that the judgments were not signed. Failure to sign a judgment, however, does not, in itself, demonstrate that the judgment is invalid. The court did not err on this point.

IV. PROSECUTORIAL MISCONDUCT

The appellant argues that the prosecutor committed prejudicial error by questioning witnesses repeatedly in such a way as to convey Sullinger had a cocaine problem. The state presented evidence as part of its case that Sullinger had a history of substance abuse, including cocaine and LSD usage. The defense countered that there was no cocaine usage shown in the past eleven or twelve years; rather, his problem centered upon alcohol abuse and abuse of Xanax, a tranquilizer.

Despite that fact, the prosecutor on several occasions interrogated witnesses in such a manner as to highlight the appellant’s cocaine abuse. He first raised the issue with state hospital psychiatrist, Dr. Wendell Hall, on redirect, and this was objected to a repetitive. The circuit judge sustained the objection.

Cocaine usage was again raised on redirect examination of state witness Dr. John Anderson, a state hospital psychologist, and an objection was made and sustained. Next, during the appellant’s case, the prosecutor was cross-examining defense witness Dr. James Murray, a Pocahontas physician, and the following colloquy took place in front of the jury:

PROSECUTOR: Well, did he tell you that he was a marijuana user?
DEFENSE ATTORNEY: Judge, I object to that, that’s improper cross examination.
PROSECUTOR: Judge, I’m. . .
DEFENSE ATTORNEY: Dr. Murray has indicated that he has no opinion concerning his ability to discriminate and Mr. Stallcup’s been trying to do this all day to prejudice this jury.
PROSECUTOR: Judge, I’m trying to. . .
DEFENSE ATTORNEY: He’s trying to make the jury think that Mr. Sullinger abused cocaine. He keeps trying to do that and I object.
PROSECUTOR: If I can answer Mr. Jarboe. He’s gone into, “Dr., did he, do your records show anxiety,” and all this. I’m trying to find out if this doctor knew about this man’s past drug history, if he was informed of all this particularly before he put him in Green Leaf (sic). I mean he, he may have thought this man had an alcohol problem when really it was, it was a cocaine problem, it was. . .
BY THE COURT: Step up.
PROSECUTOR: Sir?
BY THE COURT: Step up.
DEFENSE ATTORNEY: I move for a mistrial. Mr. Stallcup has just told the jury that he had a cocaine problem and I move for a mistrial, Your Honor.

The circuit judge then ordered the prosecutor, out of the hearing of the jury, not to mention cocaine again because it was irrelevant. The prosecutor responded that cocaine use leads to paranoia. After continued discussion and completion of Dr. Murray’s testimony, the circuit judge asked the appellant’s attorney whether he wanted the jury admonished. He answered in the affirmative and also added that he moved for a mistrial. The judge then told the jury to disregard the reference to the “cocaine problem.” Defense counsel renewed his motion for a mistrial, and it was denied.

We have no doubt that a trial tactic of the prosecutor was to tag Sullinger with the label of a cocaine abuser. The prosecutor argued that he was doing this because cocaine abuse could lead to paranoia, even though there was no proof that Sullinger had used cocaine in eleven or twelve years. We question the strategy and agree with the circuit judge that the prosecutor pushed the issue to the brink of a mistrial.

At the same time, the judge asked defense counsel if he wanted the jury admonished, and counsel said he did. A strong admonition was made. Though counsel also renewed his motion for a mistrial, he could not have it both ways. We have held in the past that a strong admonition can cure any possible prejudice resulting from prosecutorial misconduct. See, e.g., Porter v. State 308 Ark. 137, 823 S.W.2d 846 (1992).

We hold that the prosecutor’s conduct was not so drastic as to warrant a mistrial. See Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). We further hold that any potential prejudice was cured by the admonition.

We turn next to the prosecutor’s questioning about homosexuality on voir dire. Sullinger did not raise this issue, and we do so under the authority of Supreme Court Rule 11 (f) because a life sentence is involved. The prosecutor began by questioning a prospective juror:

THE PROSECUTOR: Mr. Chesser, do you believe that one man placing another man’s penis in his mouth and sucking on it is normal human behavior, if the guy doing the sucking enjoys it?
DEFENSE COUNSEL: I move for a mistrial. I object to the question. It’s prejudicial and I move for a mistrial.
THE COURT: The objection is going to be sustained. The motion for mistrial is overruled. The jury is to disregard the question, and it does not apply to the defendant.

Later, as part of voir dire, this discussion ensued:

PROSECUTOR: Is there anybody that feels that homosexuality is normal human behavior?
DEFENSE ATTORNEY: Objection, Judge. Now Mr. Stallcup — may we approach the bench?
(Thereupon the following is held at the bench out of the hearing of the prospective jurors.)
BY THE COURT: I know where you’re coming from on that, you’re going to use it in the cross examination of the psychiatrists.
PROSECUTOR: Judge, I’m trying to pick the best jury I can and that’s a perfectly. . .
BY THE COURT: I understand that. But the problem is is that you’re making it sound like Dwight Sullinger is homosexual.
PROSECUTOR: I haven’t said that.
BY THE COURT: I know you haven’t said it yet but I said it to you.
PROSECUTOR: I’ll be glad to say that to them.
BY THE COURT: I think that if you’re going to ask it is [sic] that you need to preface with the fact that you’re not implying that Dwight Sullinger is a homosexual.
PROSECUTOR: Okay.

The circuit judge then admonished the jury that there was no allegation that Sullinger was homosexual or that that was the reason for the question.

Further on in the trial, during the direct examination of Dr. Anderson, the prosecutor asked a question about perverse sexual activity involving urinating into another man’s mouth. Defense counsel did not object but asked for an instruction, and the judge told the jury to disregard the question as irrelevant.

The issue of homosexuality, as raised, clearly disturbed the circuit judge because of the potential for prejudice. The judge was correct to be concerned. Any suggestion that Sullinger was homosexual or was engaging in perverse sexual activity such as urinating into another’s mouth could have prejudiced the jury. The prosecutor argues that he was within his bounds to pursue these questions because he intended to interrogate the defense expert, Dr. Douglas Stevens, on his theories and studies regarding sexuality in an attempt to impeach his credibility and expertise. Later in the trial, he did, in fact, cross-examine Dr. Stevens about sexuality. Moreover, the judge specifically admonished the jury that the earlier questions asked on voir dire and to Dr. Anderson were either not raised to suggest Sullinger was homosexual or were irrelevant.

Laying the groundwork for the future cross-examination of a witness can be a perilous undertaking when the subject matter is explosive as it was in this case. However, because the jury was admonished each time the initial sexuality questions were posed, we hold that prejudice was avoided. Furthermore, the prosecutor’s subsequent impeachment questions posed to Dr. Stevens about his work in the area of sexuality clarified for the jury the purpose behind the earlier questions.

V. SELF-INDUCED INTOXICATION STATUTE

Sullinger strongly contends that an individual cannot form the requisite intent necessary to commit murder if he is intoxicated. Under Ark. Code Ann. § 5-2-207 (1987), voluntary intoxication is no longer an affirmative defense. The appellant argues that this relieves the prosecution of its duty to prove the element of intent beyond a reasonable doubt which violates his due process rights.

We have repeatedly held that Ark. Code Ann. § 5-2-207 (1987) is constitutionally sound. See, e.g., Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); White v. State, supra. Moreover, the appellant was not harmed by this statute, as he testified at length about his history of alcohol abuse. His medical records from the Greenleaf Center where he was treated for alcoholism and his DWI record were admitted, and three eyewitnesses testified that he had been drinking at the time of the shooting. (He registered 1.6 on the breathalyzer after his arrest.) Thus, even though the appellant could not use voluntary intoxication as an affirmative defense, he was able to bring, and indeed did bring, enough evidence of his history of alcohol abuse before the jury for its consideration.

Finally, there was, most assuredly, ample evidence of purposeful intent in this case as attested to by two eye witnesses to the shooting.

In sum, this case does not warrant a reversal. This was a five-day trial in which a man initially charged with capital murder with the death penalty requested was convicted of the lesser offense of first degree murder and sentenced to life imprisonment. Though problems abounded during the course of the trial, we cannot say that the appellant was denied a fair trial or that the circuit judge abused his discretion.

The record has been examined in accordance with Ark. Sup. Ct. R. 11(f), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.

Holt, C.J., Dudley, and Newbern, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. Appellant unquestionably shot and killed a fine police officer who was acting in the line of duty in Pocahontas. He was charged with capital murder and being a felon in possession of a firearm. As set out in the majority opinion, “[I]t was error to join murder and the weapon charges for trial. Ferrell v. State. . . [305 Ark. 511, 810 S.W.2d 29 (1991)].” Also, as set out in the majority opinion, the prosecutor was guilty of misconduct. The majority opinion recites, “We have no doubt that a trial tactic of the prosecutor was to tag Sullinger with the label of a cocaine abuser.” The record shows that appellant had not used cocaine for twelve years, and the prosecutor knew it. In addition, there was no evidence that appellant was a homosexual or that sex or sexual preferences had anything to do with the killing of the police officer. Yet, as set out in the majority opinion, the prosecutor in voir dire asked a prospective juror, “Mr. Chesser, do you believe that one man placing another man’s penis in his mouth and sucking on it is normal human behavior, if the guy doing the sucking enjoys it?” With these admitted errors, the majority opinion summarily holds that “there was no prejudicial error committed.” I am unable to agree with such a holding.

In Ferrell v. State, supra, cited in the majority opinion as authority for its holding, we held that a similar error in joining offenses was not prejudicial because the evidence of guilt was overwhelming. In that case, appellant was charged with first degree murder and claimed self-defense. It was one or the other: guilty or not guilty. We held that the error “was rendered harmless by the circumstances of this case.” Ferrell, 305 Ark. at 516, 810 S.W.2d at 32. In the case at bar it was also unquestioned that appellant killed the victim, but the defense in this case raised questions about appellant’s mental capacity to form the requisite intent. It was not one or the other. Instead, it was a case of guilty of either capital murder or first degree murder or second degree murder or manslaughter. He was charged with capital murder, and the State sought to convict him of that charge. His defense was lack of mental capacity to form the requisite intent. The jurors may have had some question about his mental capacity to form the required intent for capital murder since they found him guilty of first degree murder. The jury might have found him guilty of second degree murder if the prosecutor had not been guilty of misconduct, which may have been designed to cause prejudice, and had the trial court not erred. This case was not a case of appellant being simply guilty or not guilty. It was a case in which the degree of the crime was governed by his capacity to form the required intent. Thus, I cannot agree that the prosecutorial misconduct, which may have been designed to cause prejudice, and the trial court’s error, were harmless. Accordingly, I dissent.

Holt, C.J., and Newbern, J., join in this dissent.

       During the penalty phase after conviction, two prior felony judgments for breaking and entering different establishments on the same night were introduced.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Bobby ASHCRAFT v. Glenn “Sonny” COX and the Arkansas County Democratic Central Committee, et al.
    92-1166
    839 S.W.2d 219
    Supreme Court of Arkansas
    Opinion delivered October 30, 1992

      Claude W. Jenkins, for appellant.

      Berry & Mejia, by: Russell D. Berry, and Green & Henry, by: J.W. Green, Jr., for appellee.
   Tom Glaze, Justice.

This election contest was filed by appellant, Bobby Ashcraft, the incumbent candidate for Democratic nominee for Arkansas County Judge. Appellee, Glenn “Sonny” Cox, was a candidate who opposed Ashcraft at the May 26, 1992 Democratic Primary election, and the Arkansas County Democratic Committee certified Cox as having won the election 2,933 to 2,930. Ashcraft’s complaint challenged the validity of four ballots he claims were cast and counted in Cox’s favor and alleged that after these ballots were properly declared invalid by the court, Ashcraft would be the winner. Cox moved to dismiss Ashcraft’s complaint, asserting it failed to allege a cause of action. The trial court agreed, and granted Ashcraft’s motion. We affirm in this appeal.

There is little dispute concerning the facts in this case. After the polls closed on election day, the election officials commenced tabulating the ballots that were electronically cast by the voters, and during the count, the officials became aware that three ballots were missing. Because they were unable to find these ballots, the officials ceased counting ballots and went home. At this time, Ashcraft was leading 2,930 to Cox’s 2,928.

The officials returned the next morning, and found the three missing ballots, two in the LaGrue East Township ballot box and the third was located in the Keaton Township box. These three ballots still had their respective ballot stubs attached to them, but in recounting the ballots in the county judge’s race, the election officials separated the stubs and ran these ballots through the voter-counter machine. In his complaint, Ashcraft alleged these three ballots and ballot stubs could not be identified on the appropriate voter lists, and consequently, he could not name the three voters whose ballots were improperly cast and counted in Cox’s favor.

Ashcraft also alleged two absentee ballots were received by mail. He asserted that one of these ballots was counted, but should not have been because no proof existed showing the absentee voter, Donnie Dewayne Manues, had mailed his ballot before the May 26, 1992 primary election.

Obviously, if the three missing ballots found on the morning of May 27th were correctly counted, Cox won the election 2,931 to Ashcraft’s 2,930, even without considering whether Manues’s absentee ballot should have been counted. We conclude, as did the trial judge, that the three disputed ballot were properly counted and included in the results certifying Cox as the nominee for county judge.

Ashcraft concedes, in seeking to invalidate the three disputed ballots, that he does not challenge the qualifications of the voters who cast the votes. Nor does he allege any fraud in their having been cast or counted. Ashcraft first contends simply that the statutory law required each of the voters to separate the ballot stub from the ballot and to place the stub in the stub box and the ballot in the ballot box. See Ark. Code Ann. § 7-5-309 (1987). He urges that the three voters’ failure to follow these requirements invalidates their respective ballots and precludes their votes from being counted. Ashcraft also argues that Ark. Code Ann. § 7-5-315(5)(1987) requires election judges and clerks to count ballots until the count is completed. Because the election officials involved here stopped and later resumed the count the day after the election, Ashcraft, citing Miley v. Rester, 16 So.2d 608 (La. App. 1944), claims he is entitled to the vote count that was tallied favoring him on the night of the election when the officials first stopped their count.

Concerning Ashcraft’s contention that he is entitled to the 2,930 to 2,928 vote count that apparently existed on the night of the election, we would point out that, while § 7-5-315 directs the election judges and clerks to continue the count to completion, the provisions of election laws are mandatory before the election, but are merely directory afterwards. Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992). In addition, the courts do not favor disfranchising a legal voter because of the misconduct of another person. Id.

If we adopted Ashcraft’s suggestion, election results could be established by election judges and clerks at any point in time they desired to terminate their vote count. Our election laws provide safeguards against undue delays in election officials’ counting ballots and delivering election returns by requiring such materials and returns to be delivered to the party county committee within twenty-four hours after the polls close. Ark. Code Ann. §§ 7-5-317(b) and -318 (1987). No statutory authority, however, prohibits election officials from taking a reasonable but temporary break in counting ballots and canvassing returns.

Here, the election officials temporarily ceased counting ballots because they could not find three missing ballots. No fraud was alleged or involved in this stopping and resuming of the vote count. To adopt the rules suggested by Ashcraft would serve to disfranchise qualified voters whose only misfortune was to cast ballots at polling precincts where election officials decided, for good reason or bad, to take a temporary break in their counting duties.

We next direct our attention to Ashcraft’s argument that the three ballots with stubs attached should not have been counted because the voters apparently marked and cast them in the ballot box without separating the ballot stubs and placing the stubs in the stub box. In his complaint, Ashcraft alleged ballots could not be identified with the voters because the election officials failed to maintain a voter list as required under Ark. Code Ann. § 7-5-307 (1987). Again, Ashcraft’s complaint alleges no fraud, and in no way challenges the qualifications of any voter casting ballots in this election. See Ark. Code Ann. § 7-5-312 (1987). To the contrary, the voters, who cast the three ballots found in ballot boxes but belatedly counted in this May 26th primary election, were presumably registered, eligible voters whose only mistake was their failure to separate the ballot stubs from their ballots and to place the stubs in the ballot stub box.

Ashcraft cites no election law provisions prohibiting election officials from counting ballots that were cast with stubs attached — at least in circumstances like here, where no fraud is asserted nor where the qualifications of the voters have not been challenged. We believe the election officials were correct in counting the three ballots once their whereabouts were found. For this reason, we hold the trial court was right in deciding Ashcraft’s complaint failed to state a cause of action since the election results in this race for county judge would not have changed. Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965). Cox’s votes, including the three ballots discussed above, total 2,931 to the 2,930 cast in favor of Ashcraft. Accordingly, we affirm the trial court’s decision to dismiss Ashcraft’s complaint without the necessity of considering the parties’ further argument concerning the validity of the absentee ballot cast by Manues.

An immediate mandate shall issue.

       Actually, Ashcraft claims that four ballots were counted that should not have been, but the county committee certified that Cox had 2,933 votes, or five more than Cox appeared to have when the election officials temporarily ceased counting. As a consequence, Cox apparently received an additional vote on final certification which Ashcraft’s complaint failed to address. Regardless of this unquestioned ballot in Cox’s favor, Cox still had sufficient ballots to win since we conclude Cox was entitled to the three found ballots that were cast at the polls.

       This allegation is somewhat difficult to understand. Voters must sign their registration affidavits before receiving a ballot (voter) card, and no allegation is made indicating more ballots were cast than the numbers of voters signing their affidavits on May 26. If the three voters were omitted from the precinct voter lists, their names could still be identified by first comparing and eliminating the names on the voter lists against the registration affidavits signed on May 26. Those registration affidavits signed by voters on May 26 and whose names do not appear on the voter list would be the voters who cast the three unidentified ballots. The election officials most likely became aware that the three ballots were missing when the officials opened the ballot (card) box to check the number of ballots cast against the list of voters as is required by Ark. Code Ann. § 7-5-613 (1987).


author: Jack Holt, Jr., Chief Justice.

text:
    Avanell LOONEY v. ESTATE of Edna WADE, Deceased
    92-518
    839 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered November 2, 1992

      Honey & Honey, P.A., by: Charles L. Honey, for appellant.

      Wynne & Wynne, by: Robin F. Wynne, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this appeal is whether the Ouachita County Probate Court erred in denying the probate of the second will of Edna Wade because its proponent, Avanell Looney, the writer of the will and recipient of its proceeds, had failed to overcome the rebuttable presumption that Ms. Wade lacked the requisite mental capacity and that undue influence was brought to bear on her. We affirm the probate court.

Edna Wade died at the age of 81 at the Sparkman Residential Care Center on November 3, 1990. She had executed her first known will on July 20, 1985, leaving her estate to a “good friend” Dorothy Wilkins, or, in case Ms. Wilkins predeceased her, to another friend, Sue Warnix. At that time, Ms. Wade lived alone in a small house trailer and had no living close family. The will was signed by Edna Wade and witnesses by Dr. Charles H. Fohn and Pat Chandler, R.N., who attested to the will and signed a proof of will on that same date. Ms. Wilkins helped Ms. Wade by cleaning her house, taking her to buy groceries, and caring for her general welfare.

On June 10, 1987, Ms. Wade entered the Sparkman Residential Care Center as a permanent resident. Two days later, a second will was signed by Ms. Wade. This will was in the handwriting of Avanell Looney, the sole beneficiary of Ms. Wade’s estate and the owner and administrator of the Sparkman Residential Care Center. The attesting witnesses to the second will were Kathy Kee, Tressie Reid, and Ruth Goodgame. Kathy Kee is Avanell Looney’s daughter and Tressie Reid is Avanell Looney’s mother. Ruth Goodgame is a distant relative of Ms. Wade and her roommate at the center. Ms. Wade paid Ms. Looney $650.00 per month to reside at the facility.

On February 6, 1991, the Ouachita County Probate Court entered an order admitting the first will to probate and appointing Dorothy Wilkins as personal representative. Letters testamentary and notice of probate were filed two days later. On March 7, 1991, Avanell Looney filed a contest of the first will on the grounds that it was revoked by the second will.

After trial, the probate court found that (1) the first will was “duly executed as provided by law,” (2) the second will was a handwritten document written out by the sole beneficiary, Avanell Looney, and witnessed by the mother and daughter of the sole beneficiary, (3) Ms. Goodgame, the third witness, was unable to positively testify as to signing the will, and (4) these facts gave rise to the rebuttable presumption that there was undue influence on the part of Ms. Looney. The probate court further found that Ms. Looney had the burden of proving beyond a reasonable doubt that the testatrix had both mental capacity and freedom of will to execute a valid will at the time it was signed and that she failed to meet this burden of proof. Thus, probate of the second will was denied and the petition dismissed. It is from that dismissal that this appeal arises.

Probate cases are reviewed de novo on appeal, and this court will not reverse unless the findings of the probate judge are clearly erroneous. Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992); Baerlocker v. Highsmith, 292 Ark. 373, 730 S.W.2d 237 (1987). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Daley v. Boroughs, supra.

In a typical will contest, the party contesting the validity of the will has the burden of proving by a a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. In re Davidson, 310 Ark. 639, 839 S.W.2d 214 (1992); In re Kueteman, 309 Ark. 546, 832 S.W.2d 234 (1992); Baerlocker v. Highsmith, supra; Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). However, where as here, a beneficiary under the will actually drafts or procures the will, a higher burden of proof is applied under Arkansas law:

In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979), we held that the proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. We again held in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980), that where a beneficiary procures the making of a will, “it is incumbent upon those who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and actions as are requisite to render a will legally valid.”

Park v. George, 282 Ark. 155, 159, 667 S.W.2d 644, 647 (1984) (emphasis added). See also Short v. Stephenson, 238 Ark. 1048, 386 S.W.2d 501 (1965). In other words, it was incumbent on Ms. Looney to rebut a presumption of undue influence and lack of mental capacity by proving beyond a reasonable doubt that there was no undue influence and that Ms. Wade had testamentary capacity. Ark. R. Evid. 301(a); Park v. George, 282 Ark. at 160, 667 S.W.2d at 647.

Without reciting in detail all of the testimony, we conclude that the probate judge did not err in finding that Ms. Looney failed to rebut this presumption. To the contrary, the record reveals that undue influence was brought to bear on Ms. Wade. Undue influence on a testatrix may be inferred from facts and circumstances. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). We have long defined undue influence that invalidates a will and which the law condemns as “not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives testator of his free agency in the disposition of his property.” McWilliams v. Tinder, 256 Ark. 994, 511 S.W.2d 480 (1974); Parette v. Ivy, 209 Ark. 364, 190 S.W.2d 441 (1945). In the present case, Ms. Wade was in fear that no one would care for her in her declining years because of her small monthly income, so she made her will in favor of the care center owner. In testimony, Ms. Looney’s daughter testified regarding the circumstances surrounding the signing of the second will:

Q. What did she do while you were in there [during the signing] ?
A. She talked.
Q. What did she say?
A. She just said what she had — what she wanted to be given to my mom and what the bank had, and she wanted to be taken care of until her death.
Q. Who wanted to be taken care until. . .
A. Ms. Edna did.
Q. So, Edna said, I want to be taken care of the rest of my life?
A. Yes.
Q. Was that in response to her saying, Avanell, I am going to give you this to take care of me the rest of my life? Is that how you thought it was being said?
A. She just wanted someone to take care of her.
Q. So, she was asking your mom to draw up this will to be taken care of the rest of her life?
A. To be guaranteed, yes.

One of the items constituting undue influence, fear, is clearly present from this testimony.

There are other indicia of undue influence in the record. First, Ms. Looney was the owner and administrator of the residential care center; Ms. Wade was completely dependent on here for her well-being and care. As such, Ms. Looney owed her a fiduciary duty to protect her, not to gain financially from her advanced age and weakened physical condition. Ms. Looney was well paid by Ms. Wade for her care.

Second, Ms. Looney testified that she had taken Ms. Wade to see an attorney at least two times, yet it never occurred to her to have that attorney work on Ms. Wade’s new will, nor did Ms. Looney see anything wrong with drafting a will in her favor and having her close kin witness it.

Third, testimony at trial of Appellant and her witnesses was conflicting and cast doubt on what really happened when the second will was signed.

Giving due deference to the superior position of the probate judge, we do not find that the probate judge’s findings were clearly erroneous.

Affirmed.


author: Robert H. Dudley, Justice. Tom Glaze Justice, Robert L. Brown, Justice,

text:
    Randy WINKLE v. STATE of Arkansas
    CR 92-225
    841 S.W.2d 589
    Supreme Court of Arkansas
    Opinion delivered November 2, 1992

      Bill Murphy, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether the accused waived his right to a jury trial. Appellant was charged by citation in circuit court with the felony of driving while intoxicated, third offense, and with the misdemeanors of driving on a suspended driver’s license and hindering apprehension or prosecution. The charging instrument is not at issue. The circuit clerk gave written notice to appellant and his attorney that his case had been set for non-jury trial on a particular date. The clerk’s notice also provided:

Defendant is hereby advised under Art. 2 Sec. 10 Ark. Constitution and ARCP-31, that he has the right to a trial by jury rather than the Court. If Defendant desires a jury trial, written notice with a copy to the Second Division Circuit Judge, shall be filed at least 10 days before the above date of trial; otherwise your right to jury trial will be waived.

Neither appellant nor his counsel asked for a jury trial and, at his non-jury trial, neither objected to proceeding without a jury. Appellant was convicted of driving while intoxicated, third offense, and hindering apprehension. He appeals and argues that the procedure violated his state constitutional right to a jury trial. The argument is meritorious, and, accordingly, we reverse and remand.

Article 2, section 10 of the Constitution of Arkansas provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury. . . .” Article 7, section 43 makes this provision inapplicable to criminal proceedings in municipal court, but “such right . . . remains inviolate when they pursue their appeal to circuit court where their case is tried de novo." Edwards v. City of Conway, 300 Ark. 135, 138, 777 S.W.2d 583, 584 (1989). In syntax with the above, Article 2, section 7 provides: “The right of trial by jury shall remain inviolate, . . . but a jury trial may be waived in the manner prescribed by law." [Emphasis supplied.]

The first phrase of this section, “The right of trial by jury shall remain inviolate,” stood alone in the 1836 constitution, the statehood constitution; in the 1861 constitution, the secession constitution; in the 1864 constitution, the military constitution; and in the 1868 constitution, the reconstruction constitution. It was. not until the 1874 constitution, the present constitution, that the second phrase providing for waiver was adopted. We interpreted the first phrase, standing alone as it did in our first four constitutions, to mean that the right of trial by jury cannot be violated in criminal cases. The phrase means that a defendant in a criminal case, whether a misdemeanor or felony, simply cannot waive a jury trial. Wilson v. State, 16 Ark. 601 (1855); Bond v. State, 17 Ark. 290 (1856); Oliver v. State, 17 Ark. 510 (1856); Cooper v. State, 21 Ark. 228 (1860); Cason v. State, 22 Ark. 214 (1860); Bennett v. State 22 Ark. 215 (1860) (This six line opinion also reversed four additional cases for the same reason.)

In 1874 we adopted the second phrase, “but a jury trial may be waived in the manner prescribed by law.” Four years later, in Lester v. State, 32 Ark. 722 (1878), we said that the phrase means precisely what it says; that a defendant can waive a jury trial in the manner provided by statute.

The two phrases of the section taken together mean that the accused’s right of trial by jury shall not be violated unless that right is waived in the manner provided by law. In Moore v. State, 241 Ark. 335, 407 S.W.2d 744 (1966), we said this section means that a defendant is entitled to a jury trial in circuit court unless he waives that right in accordance with the governing statute. In Scates v. State, 244 Ark. 333, 337, 424 S.W.2d 876, 879 (1968), we wrote, “While the Arkansas Constitution provides in Article 2, section 7, for the right of trial by jury, it also provides for waiver of this right under the same provision in accordance with Ark. Stat. Ann. § 43-2108, supra."

The word “waiver” means an intentional relinquishment of a known right. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It is the doing of an intentional act. A “waiver in the manner prescribed by law” is now governed by two of the Arkansas Rules of Criminal Procedure. The first, Rule 31.1, provides: “No defendant in any criminal cause may waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court.” The second rule, Rule 31.2, provides: “Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.” In Fretwell v. State, 289 Ark. 91, 94, 708 S.W.2d 630, 632 (1986), we wrote: “Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two requirements are mandatory before the court has any discretion in the matter.”

Recently, in Elmore v. State, 305 Ark. 426, 427, 809 S.W.2d 370, 370 (1991), we held that pursuant to the constitution and these two rules a defendant is “entitled to be tried by a jury without even making such a motion.” [Emphasis added.] The holding is the common sense reading of the constitution and the rules of criminal procedure.

The constitution provides the only manner in which the right to a jury trial in a criminal case can be violated, and that is by waiver “in the manner prescribed by law.” This makes applicable the doctrine of expressio unis est exclusio alterius, which means that because one exception is expressed, others are excluded. We first applied the doctrine in Hall v. State, 1 Ark. 201 (1838), and have continued to apply it through the years.

The only real question is whether the loss of the right to a jury trial can be questioned without a contemporaneous objection. The constitution and the rules of criminal procedure provide the only way a waiver can occur. In Johnson v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975), we held that, even though the appellant’s motion for a jury trial was not timely, such was of no moment with respect to the absolute jury trial right which is accorded to a defendant in a circuit court unless it is waived. Accord Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991). The court of appeals in Bussey v. Bank of Malvern, 270 Ark. 37, 43, 603 S.W.2d 426, 430 (Ark. App. 1980) wrote:

We believe that the trial court erred in taking the case away from the jury and that this case should be reversed irrespective of the fact that counsel for appellant failed to object to the error. We agree with appellants’ contention that the right to jury trial is a constitutional right which is so fundamental that the rule that cures error where counsel fails to object ought not be readily applied to the denial of rights protected in the Constitution of Arkansas and described therein as “inviolate.” (Ark. Con. Art. 2, Section 7) Procedural rules governing jury trials are not intended to diminish the right to a jury trial. These rules should be interpreted so as not to give effect to dubious waivers of rights.

This sagacious statement was correct when written, and it is correct today. To hold otherwise would be holding that a rule of appellate procedure supersedes an express provision of the constitution.

The State also argues that our holding in this case is in violation of the holding set forth in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). We think not. The right to jury trial is part of the basic structure of our courts. Every judge, on his own motion, should accord such a basic right. In Wicks v. State, supra, we set out various exceptions to the contemporaneous objection rule, and we provided that the rule is not applicable when the trial court should intervene on its own motion to correct a serious error. This is such a serious error. The right to a trial by jury in a criminal case is a fundamental right of our jurisprudence and is recognized by the Magna Charta, the Declaration of Independence, the federal constitution, and our state constitution.

' It is also argued that our holding in this case conflicts with our holding in Rischar v. State, 307 Ark. 429, 821 S.W.2d 25 (1991). Again, we think not. In Rischar the defendant was convicted in municipal court, appealed to circuit court, and failed to appear there for his scheduled jury trial. The circuit court affirmed the municipal court judgment. The defendant appealed the circuit court’s ruling to this court. We affirmed. Section 16-96-508 of the Arkansas Code Annotated of 1987 authorizes a circuit court to affirm the judgment of a lower court if the appellant fails to appear when his case is scheduled for trial. Thus, when an appellant fails to appear in circuit court, he waives his right to a jury trial “in the manner prescribed by law.”

The State also argues that in Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983), we held that a defendant must make a contemporaneous objection to preserve the jury trial issue. In that case the appellants argued only that the record did not reflect that they waived their right to a jury trial in the manner prescribed by A.R.Cr.P. Rules 31.1 and 31.2. We held that the contemporaneous objection rule would overcome Rules 31.1 and 31.2 standing alone, but we expressly noted that the appellants did not make an argument based upon the constitution. Thus, the. case is clearly distinguishable from the case at bar.

Reversed and remanded for trial.

Hays, Glaze, and Brown, JJ., dissent.

Tom Glaze Justice,

dissenting. To reverse this case borders on the absurd.

Clearly, Mr. Randy Winkle had a right to appeal his municipal court convictions for DWI, third offense, hindering apprehension and suspended driver’s license to the Grant County Circuit Court. In fact he appeared with counsel in the circuit court, and received a de novo trial by the trial judge sitting without a jury. In advance of trial, Winkle was notified in writing by the court that he had a constitutional right to trial by jury, and if he desired a jury, Winkle should notify the court at least ten days before the trial date, otherwise his right to a jury trial would be waived.

Neither Winkle nor his attorney requested a jury trial. Nor did they object at trial to his being tried by the court without a jury. Instead, he waited to raise the jury trial issue only after he was again convicted, sentenced to nine days in jail, fined $1,750 and had his driver’s license suspended. In sum, Mr. Winkle lost his case before the trial judge, and now on appeal, he cites Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), and argues for the first time that he was entitled to a jury trial below. Even now, the appellant does not ask for the remedy given by the majority, that is, to have his case remanded for a jury trial. Instead, the appellant requests that this court reverse and dismiss his conviction.

Obviously, Winkle was entitled to a jury trial; the trial judge knew that and informed Winkle of such right. His right to a jury was in no way diminished by requiring him in these circumstances to object to proceeding against him without a jury. Allowing Winkle to lay behind the log to see first if he might obtain a favorable decision merely encourages game-playing in these cases involving municipal appeals.

Recently, our court expressed that few tenets are more firmly established than the rule requiring a contemporaneous objection to preserve a point for review on appeal. Miller v. State, 309 Ark. 117, 827 S.W.2d 149 (1992). Even a constitutional question must be raised in the trial court to be reviewable on appeal. See Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983). This court has applied the contemporaneous objection rule to constitutional rights such as the right to be free from double jeopardy and the sixth amendment right to present a defense. Moore v. State, 303 Ark. 514, 796 S.W.2d 329 (1990); Harrison v. State, 303 Ark. 247, 796 S.W.2d 329 (1990); Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987).

Undisputably, Winkle had a right to a trial by jury, see Ark. Const. art. 2, § 10; nonetheless, our case law is settled that if a defendant believes he or she is going to be denied that constitutional right, the defendant must enter a contemporaneous objection. Here, if Winkle had done so, the trial court would have had an opportunity to correct any error. As evidenced by its earlier pretrial notice to Winkle, the court knew Winkle was entitled to a jury and would have assuredly granted him a jury trial.

The majority court in its opinion spends much time in discussing whether Winkle waived his right to a jury as provided by statute or rule. Such discussion begs the question since the issue is whether Winkle objected to a trial by the court, not whether he waived his right to a jury. By analogy, the United States and Arkansas Constitutions mandate a defendant has a sixth amendment right to present a defense. Nevertheless, if the defendant chooses not to waive such a right, the defendant must still interpose an objection if he or she is forced to trial contrary to such right.

In this case, Winkle never waived his jury trial right, but neither did he object to proceeding without one. Undoubtedly, he would have received a jury trial if he had interposed an objection at any stage of the trial court proceeding.

While recognizing Winkle’s inviolate right to a trial by jury, it seems more than passing strange to allow him to sit through an entire trial without mentioning his now belated expressed interest in not having had one. To the extent the majority court relies on Elmore, 305 Ark. 426, 809 S.W.2d 370, this court should concede it erred and overrule that decision.

Hays and Brown, JJ., join this dissent.

Robert L. Brown, Justice,

dissenting. I join Justice Glaze’s dissent and add one observation. The trial court initiated the jury trial waiver issue by its written notice to the appellant and counsel. The appellant made no response. That is different from a situation where a defendant initiates the waiver under Ark. R. Crim. P. 31.2. Thus, by not availing himself of a jury trial after notice from the trial court, the appellant waived it.


author: Steele Hays, Justice.

text:
    Rickey HUGHEY v. STATE of Arkansas
    CR 92-708
    840 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered November 2, 1992

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Rickey Hughey appeals from a judgment of conviction for engaging in a continuing criminal enterprise in violation of Ark. Code Ann. § 5-64-414 (Supp. 1991). Hughey’s conviction resulted in a sentence of thirty years in the Department of Correction.

Through the testimony of some twenty-seven witnesses the prosecution established that between August 1989 and July 1991 Hughey would procure crack cocaine in Dallas which at least six other individuals, acting under Hughey’s direction, would process and sell in Columbia County, primarily from a house referred to as “in the hole,” generating substantial income. This conduct was alleged to violate Ark. Code Ann § 5-64-414 (Supp. 1991).

Our statute is patterned closely after the federal statute, 21 U.S.C. 848 (Supp. 1992) and requires five elements of proof. The first element involves the commission by the defendant of a felony under the Controlled Substances Act. The second is that such felony must be part of continuing series of two or more drug felonies under the act. Third, the enterprise must be undertaken by the defendant in concert with five or more persons. Fourth, the defendant must have been the organizer, or supervisor or manager, and, fifth, have realized substantial income or resources from the enterprise.

The second element includes a requirement that the course of illicit conduct span a definite period of time and a “series” is established by proof of three or more related violations. United States v. Jones, 801 F.2d 304 (8th Cir. 1986). Under the wording of our statute element two is met if there are two felonies under the act in addition to the felony committed by the defendant. The third and fourth elements are discussed in United States v. Moya-Gomez, 806 F.2d 706 (7th Cir. 1988):

The basic outlines of the disputed management element [of the CCE statute] have been liberally construed. United States v. Possick, 894 F.2d 332, 335 (8th cir. 1988). “The statute is written in the disjunctive language, and the government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three.” Id. Furthermore, the terms organizer, supervisor, or manager are to be given their ordinary meaning, United States v. Wilkinson, 754 F.2d 1427, 1431 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985); and it is irrelevant that other persons may have exercised supervision superior to the defendant’s, United States v. Becton, 751 F.2d 250, 254-55 (8th Cir. 1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985). See also United States, v. Maull, 806 F.2d 1340, 1343 (8th Cir. 1986), cert. denied, 480 U.S. 907, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Losado, 674 F.2d 167, 174 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). The Eighth Circuit has summarized nicely the nature of the government’s burden of proof on this question:
The government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. In essence, the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual’s compliance with the defendant’s directions, instruction, or terms.

Possick, 849 F.2d at 335-36 (emphasis supplied) (citations omitted); see also United States v. Lueth, 807 F.2d 719, 731-32 (8th cir. 1986); United Stated v. Cruz, 785 F.2d 399, 407 (2nd Cir. 1986); Becton, 751 F.2d at 254-55.

Nor is it necessary that the five individuals working under the defendant must be involved directly in drug sales. See United States v. Jones, supra; United States v. Moya-Gomez, supra. Nor is it necessary that the five act in concert at the same time or that the role of each to the defendant be identical. United States v. Jenkins, 904 F.2d 549 (10th Cir. 1990); United States v. Phillips, 664 F.2d 971 (5th Cir. 1981).

Two circuits have rejected arguments that the fifth element requires proof of substantial net income. In United States v. Jeffers, 532 F.2d 1101 (7th Cir. 1976), the court wrote:

The statute provides that a person only engages in a continuing criminal enterprise when, in conjunction with meeting all the other requirements, he “obtains substantial income or resources” from the enterprise. 21 U.S.C. § 848 (b) (2) (B). Nothing else in the statute provides aid in determining how “substantial income” should be characterized, whether it should be “net” or “gross.” Nor does the Committee Report on the Act provide assistance. The only passage in the report which deviates from the statutory language in question speaks of “substantial profits” rather than “substantial income.” H.R.Rep.No. 1444, 91st Cong., 2nd Sess. (1970) (to accompany H.R. 18583), 1970 U.S. Code Cong. & Admin. News pp. 4566, 4575.

In United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973), the court observed that the federal statute was aimed at those who trafficked in heroin where “substantial sums of money chang [ed] hands.”

I.

We first address Hughey’s second point of error, a challenge to the sufficiency of the evidence. See Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The thrust of the argument is that the prosecution of Hughey was built on the testimony of Curtis “Petey” Cole. Cole was a cousin of Hughey and undeniably an accessory in any criminal enterprise pertinent to the charge against Hughey. Cole’s testimony included assertions that he rented “in the hole” for Hughey with money Hughey gave him; that “on many, many occasions” he sold cocaine for Hughey; that he accompanied Hughey to Dallas three times to obtain cocaine (though he did not actually witness the transactions); that he would be given cocaine in bulk which he would reduce to rocks with a razor blade; that he sold rocks for $20 each, $15 of which he would give to Hughey. Cole could give no information as to volume or total sales, but he gave Hugehy money every two or three days; the most he would make in a week of sales would be $400 to $500, $250 to $300 of which would go to Hughey. Cole stated specifically that he worked “for Rickey,” that he was mostly “over” the others, whom he identified as Eric Garnett, Donald Fears, Sammy Samful, Chris Manning and Clifton Hughey.

Hughey argues that under Ark. Code Ann. § 16-89-111(e)(2) (1987) a felony conviction cannot be held upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Furthermore, when Cole’s testimony is excluded in accordance with the test mentioned, for example, in Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983), “there is virtually no evidence of an enterprise of any kind.” We reject the argument because we find ample corroboration of Cole’s testimony elsewhere clearly connecting Hughey to the ongoing enterprise.

Jerry Rose testified that, working with an undercover officer, he purchased two $20 rocks of cocaine at “in the hole” from Eric Garnett. He said Eric, Rickey Hughey and Petey Cole were in front of the house when he came up and Rickey asked Eric if he knew Rose. Eric said that he had seen Rose before. Rose asked Eric if he “had anything” and with that Eric and Rose went inside the house where the purchases were completed.

Officer Randy Nixon testified about a traffic stop of Rickey Hughey near Texarkana. Hughey was driving eastward in a rented car. Under the passenger’s seat Nixon found a plastic sack containing matter which was subsequently identified as cocaine.

Officer Dexter Turner testified that on January 7, 1991, incognito he purchased six bags of marijuana and two rocks of crack cocaine from Petey Cole at “in the hole” at a price of $ 100.

Tracey Webb testified that he bought five rocks of crack cocaine from Rickey Hughey at “in the hole.” He paid Hughey $100. He testified he had bought cocaine previously at the same place.

Cora Mae Chambers, Petey Cole’s girlfriend and owner of the property, admitted, albeit reluctantly, that Rickey Hughey was at the place when cocaine was being sold, adding, “But it don’t mean it’s his.” Asked whether she had previously told the police it was Rickey Hughey who brought the cocaine to the house, she said she could not recall.

Donald Fears denied any knowledge of cocaine sales at “in the hole,” but admitted he was a lookout. Pressed further, he testified he was working for Rickey, “looking out for the cops.”

Officer Scott Lee testified that he made a traffic stop of a vehicle occupied by Rickey Hughey, Clifton Hughey and Jennie Biddle, Rickey Hughey’s girlfriend and mother of his infant son, Rickey, Jr. A search of Ms. Biddle’s purse produced a weapon and $2,900 in cash consisting of eighteen $100 bills and eighty $20 bills, which Ms. Biddle said belonged to Rickey Hughey. Hughey had five $100 bills. During the search a dog trained in drug detection was brought and made “a hit on the purse,” indicating the money had been in close proximity to drugs.

Clifton Hughey, though denying at one point that Petey Cole sold drugs for Rickey Hughey, did admit that Cole worked for Rickey Hughey and that Rickey was “running the place.” He gave the following testimony:

Q: Did you say to Mr. Young: “So, in other words, you’re saying that the drugs that Petey was selling, they wasn’t Petey’s drugs, he was selling it for Rickey?” And did you say this: “It had to of been cause Rickey was the one who came around here to get Petey and they’d leave and meet down there at the place. When the people came around that don’t want the food I tell ‘em, ‘Man, they gone somewhere, I don’t know where they at.’ They would leave me down there. I would stay down there, you know, all day long just about. I never did stay all night there, I stayed at home with my mom and my sister.” Did you say that?
A: Yes, sir.
Q. All right. Why did you say that?
A. Cause it was the truth.
Q. Okay. But, the question was: “So, in other words, you’re saying that the drugs Petey was selling, they wasn’t Petey’s drugs, he was selling it for Rickey,” and you said: “It had to of been.” Is that the truth.
A: But, I can’t prove that, though.
Q: Okay. Did you ever hear there was drugs being sold down there at this place?
A: Yeah, I heard it.

On the latter element of substantial income, the state’s proof was not insufficient. Hughey had no visible means of support during most, perhaps all, of the period in question, yet he was shown to have had large amounts of cash in denominations of $100, $20, $10 and $5’s. The $3,400 uncovered by the traffic stop was in $ 100 and $20 bills. A bank employee testified to deposits to Hughey’s account, always in cash, of sizeable sums: $1,000 on February 4, 1991, $1,500 on January 28, 1991, $1,130 on April 15, $1,800 on May 28 and $2,000 on April 22. The witness personally handled two of those transactions and testified the deposits were in small increments — $5’s, $10’s and $20’s and the two transactions were unusual enough that she reported them to her supervisor. Hughey was shown to have owned three late model vehicles and had paid between $1,300 and $1,600 in cash for a stereo system in one. He paid $1,181.09 in cash in $ 100 bills for tires and wheels for one of the vehicles. There was testimony that he purchased a ring for Sharon Hughey costing $895 and had an account at Peoples Bank of Waldo with a balance of $1,746.10. Sharon Hughey, Rickey Hughey’s estranged wife, testified that Rickey Hughey gave her $ 1,500 for the down payment on a 1989 Escort, one of the three vehicles mentioned earlier. There was proof that during a six month interval Hughey paid $3,240 in insurance premiums, using cash. Jennie Biddle testified to having deposited $1,500 from Hughey in a savings account in the name of Rickey Hughey and Rickey Hughey, Jr.

There were other circumstances in evidence which gave color in greater or lesser degrees to the testimony of Curtis Cole regarding the enterprise. It would serve no useful purpose -to furhter detail the proof, as the excerpts already provided are more than enough.

II

A roster of the state’s witnesses included several of those allegedly involved in the enterprise. Some were openly antagonistic and the state on occasion sought and obtained permission to question them as hostile witnesses, using prior statements to police to impeach the credibility of their in-court responses. Hughey contends the state’s impeachment of its own witnesses by the use of prior inconsistent statements was improper and resulted in the jury’s giving substantive effect to such statements.

Hughey names Eric Garnett, Cora Mae Chambers, and Donald Fears, as those whose testimony was affected by this ruling but his brief gives little help in differentiating between the substantive testimony of these witnesses and evidence that the trial court allowed only for impeachment purposes. And while we will not go to the record to sustain an assertion of error, we will endeavor to address the point but we find no merit in the argument.

The credibility of a witness may be attacked by any party, including the party calling the witness. Ark. R. Evid. 607. One method of impeachment of a witness is the use of prior statement inconsistent with testimony at trial. Ark. R. Evid 613.

Considerable discretion necessarily rests with the trial court in determining where the line is drawn in the impeachment of a hostile witness and those rulings are reviewed from the aspect of an abuse of discretion. In obvious cases, as in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), on which Hughey relies, reversal may result. But this case is not the counterpart of the Roberts case. In Roberts, there was a single crime and a single witness — a child who witnessed an encounter between his parents resulting in his mother’s death. In a statement to the police shortly after the incident the child implicated his father. Later he recanted and the prosecution was aware when it called the child as a witness that he had repudiated his earlier account. There is no indication in this case that the prosecution was informed on that score and it had a right to assume the witnesses would testify in accordance with the statements they had given. Nor do we find in the abstracted record that the entire statements of these witnesses were introduced, as occurred in Roberts.

Additionally, each of the three gave substantive testimony material to the prosecution. Cora Mae Chambers admitted having seen rock cocaine packed in foil; David Fears admitted having served as a lookout and Eric Garnett admitted having accompanied Hughey on one trip to Dallas.

Finally, the court admonished the jury it could consider the previous statements only for purposes of impeachment and we assume the jurors heeded that admonition.

Hughey’s two remaining points can be more readily disposed of. During the testimony of Officer Njxon he referred to several forms of a car rental agency which appeared to be issued to Rickey Hughey and purportedly signed by him. When the state offered the forms in evidence to show frequent use of rental vehicles counsel objected on grounds of relevance and an inadequate foundation. On appeal, Hughey argues the evidence should have been excluded as hearsay. That argument is raised for the first time on appeal.

Lastly, Hughey complains that the trial court erred in admitting evidence of other crimes and bad acts in violation of A.R.E. Rule 404(b). Hughey points to the two traffic stops included in the testimony of officers Lee and Nixon. In one, Ms. Biddle and Hughey were carrying $3,400 in cash and a drug detecting dog made a “hit” on Ms. Biddle’s purse. In the other, crack cocaine was discovered in the vehicle occupied by Hughey and Eric Garnett. Hughey argues that the charges based on the possession of. cocaine had not as yet gone to trial and were therefore inadmissible, that the prejudice accompanying both episodes outweighed any probative value. The trial court overruled the objections and permitted the testimony to show concerted actions, or conspiracy, and to show substantial income was being generated by the enterprise. These rulings were correct. This evidence was relevant as to time, place and type of the activity where a continuing marketing of drugs is the issue. Obviously, where the state is proceeding under Ark. Code Ann. § 5-64-414 (Supp. 1991), the parameters of relevant proof are wider. That is not to say that Rule 404(b)is vitiated in continuing criminal enterprise cases, but if the evidence is germane to any of the five elements of proof, its relevance is a matter for the discretion of the trial court. That discretion was not abused in these rulings.

Affirmed.


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    WINGATE TAYLOR-MAID TRANSPORTATION, Inc. v. Carrie BAKER and Nico Baker
    92-321
    840 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered November 2, 1992

      Daggett, Van Dover & Donovan, by: Jesse B. Daggett, for appellant.

      Roy C. Lewellen and J. L. Wilson of Wilson & Associates, for appellees.
   Steele Hays, Justice.

Wingate Taylor-Maid Transportation, Inc. (defendant below) appeals from a judgment entered pursuant to a jury verdict awarding $40,000 to Carrie Baker and $15,000 to her daughter, Nico Baker. The judgment was for personal injuries to the Bakers arising from a collision with Wingate’s tractor-trailor rig. The collision occurred when Win-gate’s driver, Fred Lynch, struck the Baker vehicle as Carrie Baker was turning left from State Highway No. 1 onto Highway 242. At the end of the trial the plaintiffs moved for a directed verdict on the issues of negligence and comparative fault and, over Wingate’s objection, the trial court directed the jury to return a verdict for the plaintiffs.

On appeal, Wingate argues several points of error, mainly that a verdict for the plaintiffs should not have been directed. We agree and, therefore, reverse and remand for a new trial.

Mrs. Carrie Baker told the jury she was driving south on State Highway No. 1 in Phillips County. Her daughter was a passenger. The highway was straight and level. Mrs. Baker intended to turn left onto State Highway No. 242 and she began slowing down as she neared the intersection. The approach to the intersection from the north is controlled by a no passing zone for southbound traffic as indicated by a solid yellow line inside the center line marker. Mrs.-Baker described the collision:

As you approach the intersection there’s a no passing zone and that’s where I started slowing down. That’s what I did on June 18. There were several cars coming from Helena in the opposite direction. I put on my indicator and starting slowing down so I’d be able to turn. I had reached about half way between the start of that yellow line before you get to the intersection. When I looked through my rear view mirror after checking the traffic again and this tractor trailer was right in back of me. He jumped out in the left lane and didn’t cut far enough and hit me. He didn’t come out far enough and he hit me once and it looked like we hooked together or something because shortly after that he came right back and hit me again and then it knocked me on through the intersection. It spun me around. I couldn’t control my car. I lunged forward and hit the car and the car just started going. The driver of the tractor trailer began to pull to the left lane and he hit me when he was attempting to come back in. He pulled out and tried to get back. He hit the rear axle of my car on the driver side. I was not hit from directly behind. Both hits were from that side. I was hit twice. I was hit just below the intersection.

On cross examination Mrs. Baker testified that she had a rear view mirror on the left side of her vehicle which was properly adjusted. She had a full view of the roadway behind her and realized the importance of keeping a lookout ahead as well as behind. She first saw the truck a considerable distance behind her and when she looked again the truck was close behind and moving into the left lane. She said she remained in the right lane as the truck moved into the passing lane. As the truck pulled abreast it struck her near her left rear wheel. Mrs. Baker maintained she never started a left turn and never crossed the center line until after the vehicles collided. The two vehicles came to rest near the southeast quadrant of the intersection.

Nico Baker’s testimony was corroborative: that her mother saw the truck behind at a pretty good distance and turned on her signal light “to help the truck slow down.” She said the truck struck them first and then struck them again. She said they were in the right lane when each impact occurred.

Officer Seigfred Lewis of the Arkansas State Police investigated the accident and obtained photographs. He said the two vehicles were southbound and the truck had apparently pulled out to pass as the car was slowing down to make a left turn “and as it started to make the left turn the impact occurred.” He charted skid marks from the truck beginning some distance from the area of impact and extending north in straight lines for 130 feet. The skid marks were located entirely in the left, or passing, lane. There was testimony by the treating physicians that Mrs. Baker stated she was turning to the left when the accident occurred.

At the close of the case the plaintiffs moved for a directed verdict on the question of liability. Because Fred Lynch had not testified, counsel for appellees maintained that plaintiffs’ testimony was not rebutted. The trial court granted the motion for a directed verdict, observing that there was no evidence of negligence, or of contributory negligence. Counsel for appellant argued there was circumstantial evidence that Mrs. Baker did not see the truck overtaking her, evoking a response by the trial court that “she testified she did see the truck and no one else has testified otherwise.”

In ruling on a motion for directed verdict, the trial court views the evidence most favorably to the non-moving party and gives that evidence its highest probative value, taking into account all reasonable inferences deducible from it. Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). The evidence must be given its highest and strongest probative value, and the motion must be granted if the evidence is so lacking in substance that it would require a jury verdict to be set aside. Jefferson Hospital Associates, Inc. v. Garrett, 304 Ark. 679, 804 S.W.2d 711 (1991).

There seems to have been a misconception at the trial level that because Fred Lynch did not testify there was no evidence to refute Mrs. Baker’s testimony. There are two responses — it has long been the law here and generally that the testimony of a party interested in the result of the action will not be regarded as undisputed in determining the sufficiency of the evidence. Metcalf v. Jelks, 177 Ark. 1023, 8 S.W.2d 462 (1928). Moreover, the testimony of the officer, his diagram of the scene, photographs of the highway and testimony of the treating physicians concerning Mrs. Baker’s description of the accident, provide ample evidence from which the jury could have inferred that Mrs. Baker was, in fact, turning when the collision occurred. That being so, it was also the jury’s prerogative to decide whether that was a proximate or contributing cause of the collision. Counsel’s admission during trial that Lynch was passing in a no passing zone is simply evidence of negligence (AMI 903). The admission could well have led to a verdict for the plaintiffs, but that was not an admission of liability for purposes of a directed verdict. It was for the jury to determine whether the admitted conduct was a proximate cause of the collision. Woodmen of the World Life Insurance v. Reese, 206 Ark. 530, 176 S.W.2d 708 (1944).

Appellees insist that because Mrs. Baker was the forward vehicle she had the superior right to the use of the highway for purposes of turning or leaving. AMI 902. We fully agree and the jury was instructed accordingly. Appellees also maintain there was no duty by Mrs. Baker to keep a lookout to the rear before turning. But they cite no authority for that principal and we are aware of none and are unwilling to adopt that proposal as a rule of law. The rules of the road provide that a motorist will keep a proper lookout (AMI 902) and we conclude that under fitting circumstances, here for example, a jury question arises as to whether ordinary care requires a lookout to the rear. We said as much in Cobb v. Atkins, 239 Ark. 151, 388 S.W.2d 8 (1965):

Proper look out means more than to look straight ahead, or more than just seeing the object; that it implies being watchful of the movements of his own vehicle as well as the movements of the things seen; that it involves the care, prudence, watchfulness and attention of an ordinary, careful and prudent person under the circumstances. [Emphasis added.]

In sum, Mrs. Baker testified she saw the truck a considerable distance away, then immediately behind and finally pulling around her while she was still in the right lane. If the jury determined, as the evidence permitted, that she began turning under those circumstances, the jury could also have decided such conduct caused or contributed to the collision. Hence, a directed verdict was not consistent with the evidence.

The remaining points are moot but we will comment briefly on two rulings for purposes of retrial. The officer testified that Fred Lynch was concerned that he might lose his job because of the accident and the presence of a woman passenger in his truck. The trial court overruled appellant’s objection based on relevance and permitted that information to go to the jury. The relevancy of evidence rests in large measure with the discretion of the trial court. Barnett v. Arkansas Transport Co., Inc. 303 Ark. 491, 798 S.W.2d 79 (1990). We cannot anticipate how this evidence will be developed at a later trial and we are not inclined to review prematurely an issue involving discretion. We will observe, however, that without something to connect the presence of the passenger with the collision, it is difficult to see the probative weight of such evidence as exceeding its rather obvious prejudice.

Another point of contention concerns peremptory challenges. The exact composition of the jury panel is not stated but it appears to have been equally divided between black and white venire persons. Appellant used his peremptory strikes to excuse three black jurors and appellees used theirs to excuse three white jurors. Appellees challenged the strikes of appellant under Batson v. Kentucky, 476 U.S. 79 (1986) and Edmonson v. Leesville Concrete Co., Inc., _ U.S _ (Decided June 3, 1991), which prompted appellant to offer an explanation for the strikes. At that point appellant moved that appellees explain their use of peremptory challenges. Appellees declined and the trial court rejected the challenge. If the use of peremptory challenges on retrial establishes a pattern suggesting that race is the motivation for the strikes, we would be constrained under Edmonson to hold that a private civil litigant may raise the equal protection claim of a person whom the opposing party has excluded from jury service on account of race.

Reversed and remanded.

Newbern, J., not participating.


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    Winston BRYANT, Attorney General v. Randall MATHIS, Director, In His Official Capacity as Director of the Arkansas department of Pollution Control & Ecology; ILV, Incorporated; Enviroclean; Envirocorp; and Arkansas Medical Services
    92-369
    839 S.W.2d 528
    Supreme Court of Arkansas
    Opinion delivered November 2, 1992

      Winston Bryant, Att’y Gen., by: Mary B. Stallcup, Senior Asst. Att’y Gen., and Charles L. Moulton, Asst. Att’y Gen., for appellant.

      Rose Law Firm, by: W. Dane Clay, for appellees Enviroclean and Arkansas Medical Services.

      Steve Weaver, for appellees PC&E.
   Steele Hays, Justice.

The Arkansas Attorney General, Winston Bryant, (Appellant) brought this action in chancery court to challenge the legal authority of the Arkansas Department of Pollution Control and Ecology (Appellee) to allow the operation of four incinerators under the Water and Air Pollution Control Act without requiring the incinerators to further comply with the provisions of the Arkansas Solid Waste Management Act or the Arkansas Hazardous Waste Management Act.

During 1990 and 1991, PC&E issued air permits to four waste incinerators. They are ILV, Inc., Enviroclean, Envirocorp and Arkansas Medical Services, Inc., all defendants below. PC&E required the facilities to obtain permits pursuant to the Water and Air Pollution Control Act 1949 No. 472 [Part 2] [Ark. Code Ann. § 8-4-301 — 313 (1987)]. PC&E did not require permits under either the Solid Waste Act, Act 1971 No. 237 [Ark. Code Ann. § 8-6-201 -213 (1987)] or the Hazardous Waste Act, Act 1979 No. 406 [Ark. Code Ann. § 8-7-201 -226 (1987)].

On August 9, 1991, the Attorney General filed a petition for temporary injunction and declaratory judgment that “medical waste” which, he alleged, was to be disposed of by the defendant facilities, be found as a matter of law to be governed under either the hazardous or solid waste acts, or both, and that the defendant companies suspend further construction of their plants until they had obtained permits under these acts.

The appellees moved to dismiss for failure to state a claim. Ark. R. Civ. P. 12(b) (6). Dismissal was granted by the trial court, but on a number of other bases than failure to state a claim.

The Attorney General then moved to amend the judgment or alternatively for a rehearing. The Attorney General disputed the basis for the prior dismissal and the trial court again dismissed the petition but on different grounds. On January 8, 1992, the court dismissed on Ark. R. Civ. P. 12(b)(6) grounds and stated:

This court is not generally empowered to judicially review the discretionary functions of the executive branch of government. In order for this court to acquire subject matter jurisdiction of a case such as this one, the plaintiff must establish at the threshold that the challenged actions of an executive official were ultra vires, arbitrary and capricious, or in bad faith.
No party had alleged bad faith on the part of defendant Mathis, or that the actions were beyond the scope of his authority as director of PC&E.
These premises considered, the court concludes that pursuant to Rule 12(b) of the Ark. R. Civ. P., defendant’s motions to dismiss should be granted for failure to state facts upon which relief can be granted.

The Attorney General appeals from that decision, urging the trial court erred in dismissing on those grounds. The Attorney General has limited the argument to the actions of PC&E and does not undertake specific challenges against the four incinerators.

The Attorney General argues that while medical waste is not defined under either the Solid Waste Act or the Hazardous Waste Act, it is nonetheless sufficiently manifest that the legislature intended medical waste to be permitted only under one or both of those acts, and that PC&E’s failure to do so amounted to an ultra vires action. We are not persuaded by the argument.

First, there is no definition in either the Solid Waste Act or the Hazardous Waste Act of medical waste, nor has appellant cited any authority to show that term has become accepted as a term of art, or that it has such accepted qualities that we can take judicial notice of them. Without that, we cannot determine whether the legislature intended the term to be encompassed only within the Solid Waste or Hazardous Waste Acts. We are left to speculate both as to what constitutes medical waste and whether the legislative intent was to include medical waste only within the solid or hazardous waste acts. In that framework we have no basis for finding the decision by PC&E to grant permits to these facilities under the Air Pollution Control Act and not under either the solid or hazardous waste acts, to be an ultra vires act, or contrary to law. See Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984).

Equally important, even if there were some agreement as to the meaning of medical waste, when the Solid and Hazardous Waste Acts are read in their entirety, along with their predecessor, the Water and Air Pollution Control Act, it is clear the legislature left the management of a newly recognized category of waste to the discretion of the PC&E.

The Solid Waste Act

The Water and Air Pollution Act of 1949 contains broad definitions of pollutants, which would arguably include medical waste, however that term might ultimately be defined. See Ark. Code Ann. § 8-4-303 (1987). The legislature, however, saw the act as inadequate to cover the monitoring of all recycling and waste disposal problems (See Emergency Clause to the Solid Waste Act of 1971, No. 237) and adopted the Solid Waste Act ini971. In this act, in addition to greater specificity in other provisions in the act, “solid wastes” are defined more specifically than were pollutants in the previous Water and Air Act. Appellant relies on this and points to the definition of solid wastes at Ark. Code Ann. § 8-6-203 (1987), which includes “pathological wastes” as one of the substances included in that definition. Appellant then argues that pathological and medical wastes are sufficiently similar, that solid waste was intended by the legislature to include medical waste.

While it is not unreasonable to assume that pathological waste may have been intended to include medical waste, the problem is that the appellant has not persuaded us that the legislature intended the Solid Waste Act to be the sole means for monitoring waste disposal to the exclusion of earlier statements on the same subject. In fact, in the Solid Waste Act itself, the legislature has expressly stated otherwise.

The legislature expressly states in Ark. Code Ann. § 8-6-208 (1987), that the Air Pollution Act, and any actions taken under it by PC&.E, are not limited or superseded by the Solid Waste Act, and all regulations in place at the time of the act were to stay in place “until superseded by actions taken by the commission under this subchapter.” No deadline is set by the act for the PC&E to make such changes.

Section 8-6-208 in its entirety provides:

(a) All existing rules and regulations of the Arkansas Pollution Control and Ecology Commission relating to subjects embraced within this subchapter shall remain in full force and effect until expressly repealed, amended, or superseded by the commission.
(b) All orders entered, permits granted, and pending legal proceedings instituted by the commission relating to subjects embraced within this subchapter shall remain unimpaired and in full force and effect until superseded by actions taken by the commission under this subchapter.
(c) No existing civil or criminal remedies, public or private, for any wrongful action shall be excluded or impaired by this subchapter. Nothing in this subchapter shall be construed to limit or supersede the provisions of the Arkansas Water and Air Pollution Control Act, as amended, chapter 4 of this title, or any action taken by the commission under it. [Our emphasis.]

The Hazardous Waste Act

In the decade after the adoption of the Solid Waste Act, as concerns over waste disposal increased, the inadequacy of existing measures led the legislature to adopt the Hazardous Waste Act of 1979. See Emergency Clause to that act. The definition of hazardous waste is more specific than the definitions for solid waste or air pollutants, see § 8-7-203(6). Also, unlike the Solid Waste Act, the Hazardous Waste Act provides that if there is any conflict between the Hazardous Waste Act and either the Solid Waste Act or Air Pollution Act, the Hazardous Waste Act controls. See § 8-7-210.

It follows, if medical waste is included in hazardous waste, a stronger argument emerges that PC &E has no discretion over the issuance of hazardous, waste permits. The hazardous waste permit would be mandatory. However, before that step is reached, it must first be decided if a particular facility is handling hazardous waste as that term is defined by the act. The critical factor here is that the legislature has stated that it is “in the judgment of the department” as to what substances would cause particular harm to the populace or environment and therefore, be “hazardous.” That provision, § 8-7-203, reads:

(6) ”Hazardous waste” means any waste or combination of wastes of a solid, liquid, contained gaseous, or semisolid form which, because of its quantity, concentration, or physical, chemical, or infectious characteristics, may in the judgment of the department:
(A) Cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or
(B) Pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise improperly managed. Such wastes include, but are not limited to, those which are radioactive, toxic, corrosive, flammable, irritants, or strong sensitizers or those which generate pressure through decomposition, heat, or other means;

It is clear the legislature intends both the solid and hazardous waste acts to allow the PC&E, within certain guidelines, to determine what substances are permitted under those acts. Nothing cited by the appellant would support a finding that the decision by PC&E in this case in permitting a category of waste not defined in any of the acts was an abuse of discretion and certainly not an arbitrary or ultra vires act.

It should be noted that the Attorney General does not contend, for these particular incinerators, that PC&E incorrectly found their particular wastes did not constitute solid or hazardous waste under the acts. Rather, the Attorney General has argued, in essence, that anything that is termed medical waste, by anyone, will automatically be required to be classified as hazardous waste or solid waste under our acts.

We also note that appellant did not show any irreparable harm. While the Attorney General argues that medical wastes generally could potentially cause serious and irreparable harm, he failed to allege that the particular medical wastes in these cases were of such a nature, or that, whatever wastes were being incinerated, were not being sufficiently monitored and controlled under the air permit requirements.

For the reasons stated, the judgment is affirmed.

       While the petition states that the four incinerators involved were permitted to incinerate “medical wastes,” we do not know what is included in that term for each of the particular incinerators. In fact, paragraph 22 of appellant’s petition alleges (without authority) that “traditionally, the term medical waste has not been limited to just pathological or infectious waste and has included paper, cardboard, plastic, rubber, food waste cans, bottles . . . .”