author:
Frank Holt, Justice.
      George Rose Smith, Justice, John I. Purtle, Justice,

text:
    Timothy GILBERT v. STATE of Arkansas
    CR 82-86
    639 S.W.2d 346
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      William R. Simpson, Jr., Public Defender, and Howard C. Koopman, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

On June 16, 1981, the appellant was charged with committing the offenses of aggravated robbery and theft of property on June 2, 1981. The information also charged that the appellant was a habitual offender, having been convicted of four or more previous felonies and, therefore, should have his sentence increased pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). In January, 1982, a jury found appellant guilty of both offenses and in a bifurcated proceeding assessed his punishment, as a habitual offender, at life imprisonment for aggravated robbery and twenty years imprisonment for theft of property.

The trial court determined that the substantive law in effect at the date of the offense governs and, therefore, the jury was instructed on the range of sentences found in Ark. Stat. Ann. § 41-1001 (Repl. 1977), which was in effect on the date of the offense, rather than Act 620 (1981), § 41-1001 (Supp. 1981), which became effective after the offense. On the other hand, the trial court determined that Act 252 (1981), Ark. Stat. Ann. § 41-1005 (Supp. 1981), by which the court and not the jury determines the number of previous convictions, is procedural rather than substantive. Since the procedural law in effect on the date of the trial, rather than the date of the offense governs, the trial court followed the procedure stated in Act 252. The previous statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977) provided that the jury would determine the number of previous convictions.

Summarizing, the appellant was sentenced in accordance with the range of punishments provided in the habitual offender statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977), which was in effect at the time of the alleged offenses, but the court, rather than the jury, determined the number of prior felony convictions, as Act 252, Ark. Stat. Ann. § 41-1005 (Supp. 1981),.provides.

The appellant makes three arguments for reversal. First, he argues that the determination of the number of prior felony convictions by the judge deprived him of his right to have the jury determine the facts. Second, Act 252 violates Art. 7, § 23, Ark. Constitution (1874), which says, “Judges shall not charge juries with regard to matters of fact, but shall declare the law ...” Third, if the trial judge was correct in making the determination of the number of prior felonies pursuant to Act 252, he also should have instructed the jury on the new range of punishments found in Act 620 of 1981, which arguably would be less harsh as applied to him.

The state responds that the appellant is precluded from raising these arguments on appeal for want of a proper objection below. With respect to the appellant’s third argument the state clearly is correct. The appellant’s attorney not only failed to object to the use of the range of punishments in the act which existed at the time of the offense, he actually agreed with the trial court that “it’s substantive and would depend on the date of the offense.” The appellant cannot agree with a ruling by the trial court and then attack that ruling on appeal. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

The appellant’s first two arguments are but different ways of contending that Act 252 is unconstitutional because it grants to the trial court duties that only the jury may perform. In Price v. State, 276 Ark. 80, 632 S.W.2d 429 (1982), we held that we need not reach the question of the constitutionality of Act 252 if the number of prior felony convictions is not disputed. Here, it is undisputed that the appellant had been convicted of eight prior felonies. The appellant, however, claims that he pleaded guilty simultaneously to the last three felonies, which he understood from plea negotiations, would run concurrently and count as only one conviction. However, each plea of guilty to each offense is considered as a separate and previous conviction, even though concurrent sentences are imposed, under the habitual offender statutes. Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981). Further, a defendant’s claim of innocence with respect to some of the established prior convictions is irrelevant. Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). Since the number of prior felony convictions is not actually disputed by the appellant, this case is in the same posture as Price v. State, supra, where we deemed it unnecessary to reach the question of the constitutionality of Act 252.

Affirmed.

Smith, J., concurs and Purtle, J., dissents.

George Rose Smith, Justice,

concurring. It seems to me that the court is in effect saying that the provisions of Act 252, permitting the trial judge to determine the number of previous convictions, are constitutional and separable when the facts are undisputed. That is certainly my view.

John I. Purtle, Justice,

dissenting. It is my opinion that the number of prior convictions is a factual question of a substantive nature which should be decided by the jury. I think the provisions of Act 252 allowing the court to determine the number of previous convictions deprive an accused of the right to a jury trial on this portion of the accusations.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    Gardner SMITH, Jr. v. STATE of Arkansas
    CR 82-63
    639 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      Charles P. Allen, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was tried before a petit jury in Phillips County and convicted of the offense of rape as defined by Ark. Stat. Ann. § 41-1803 (Repl. 1977). Sentence was affixed at a term of life imprisonment.

On appeal the appellant urges three grounds for reversal: (1) the trial court erred in denying the defendant’s motion in limine and allowing into evidence defendant’s prior convictions; (2) the trial court erred in denying the defendant’s motion to dismiss the charge of rape, or in the alternative, to reduce the charge of rape to the charge of sexual abuse in the first degree; and, (3) the trial court erred in not instructing the jury as to the applicable punishment pursuant to § 8 of Act 620 of 1981. None of the three grounds argued by the appellant amounted to prejudicial error and we affirm the proceedings in the trial court.

The facts reveal that the rape occurred in the victim’s home about 2:30 a.m. on December 11, 1980. The appellant alleged he intended to go into the victim’s house and get a little rest and was “ ... trying to get some of the alcohol and stuff out of myself.” He alleged he knocked at the door, then went to the window and kicked it in after which the victim opened the door. The victim insisted the door remained locked at all times and that he came to the window, kicked it in and entered through it. At one time appellant stated to the jury he was in front of the window when he noticed a monkey on his back and ended up kicking the window in. In any event, he entered the home without an invitation and proceeded to have sex with the victim, according to her testimony. He denied having intercourse with the victim and stated that he just felt of her private parts and then fell asleep. He admitted asking her about “having a little sex” with him and that he assisted her in taking off her undergarments. This clothing was presented to the police officer, and later introduced into evidence in a torn condition. She stated her panty hose and panties were not torn prior to the time that appellant entered her home. The only dispute in the facts is that the victim claimed she was raped and the appellant said he did not have intercourse at all with her. When the police came to the scene after being called by the victim’s daughter, they found the appellant sitting on the victim’s couch and brought him outside where he was observed by the victim. She had been unable to see him while he was inside because there were no lights on in that portion of the house. The victim stated there was no one else in the house except the person who had raped her. She observed the police bring the appellant out. Although she could not identify him from the observation she made at the time of the incident, she was able to identify him as the man brought out of her house by the police.

The victim stated she left after the assault and told her daughter who lived next door about the rape. She testified the appellant hit her on the side of the head when she yelled and also choked her. The daughter called the police who took the appellant into custody at the scene. The victim was taken to the police station later on the same date and made an incident report. The original report stated that someone had broken into her house and struck her. The initial report did not mention rape. However, the victim reported it immediately to her family and stated she thought she reported it to the police. In any event, the rape charge was added to the report a few days after the initial incident report. It is possible the victim, being 78 years of age, did not remember to tell the police about the entire circumstances of the incident when she arrived at the station. On the other hand, the officer may have simply failed to include it in his initial report. It makes no difference because the victim has consistently stated that she was raped at the time and place mentioned.

I.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION IN LIMINE AND ALLOWED INTO EVIDENCE PRIOR CONVICTIONS OF THE DEFENDANT.

The first point argued by appellant relates to the court overruling his motion in limine in which he sought to prevent evidence of prior convictions being introduced. The convictions in question had occurred 15 and 16 years prior to the charge for which appellant was being tried. The appellant attempts to exclude these convictions pursuant to the provisions of Rule 609 of Uniform Rules of Evidence which is as follows:

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten [10] years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

The key words in the foregoing rule are “if a period of more than ten [10] years has elapsed since the date of the conviction or of the release.” The appellant admits that it has been less than ten years since he was last confined for the offenses for which he had been convicted. He had been sentenced to a term of ten years for burglary in March of 1965 and seven years for rape in September of 1965. He was paroled in 1969 which was revoked in 1973. He was again paroled in 1974 which was revoked in 1976at which time he served until his release in 1979. His last confinement was in 1979 and therefore clearly within the ten-year exclusion listed in Rule 609. We hold to the wording of the statute that this rule applies to the date of conviction or to the release from confinement, whichever is later. It does not matter that the conviction was more than ten years past if he last served time for that conviction within ten years of the time of trial for the subsequent criminal act.

At the pretrial hearing on the motion in limine the court ruled that the prior convictions were permissible pursuant to Rule 609. The court also ruled that the probative value of the evidence outweighed the possibility of prejudice to the appellant. The court specifically made the ruling separately as to each incident. Rule 609 concerns itself with the credibility of a witness who is offering testimony in the current case. The appellant insists that Rule 404 (b) prohibits the use of the evidence of the two prior convictions. Rule 404 (b) states:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

The foregoing rules serve two separate purposes. Thus a past conviction which would not be admissible under Rule 404, as evidence of other crimes, might be admissible under Rule 609 for the purpose of attacking the credibility of a witness. The trial court was required by our rules to make a determination of whether the probative value of this evidence outweighed its prejudicial effect. We cannot say that the trial court abused its discretion in this instance. Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980). Under one set of circumstances we have held that it was reversible error when the court failed to grant appellant’s motion to prevent evidence of a prior conviction on a charge of rape involving a young boy when the crime under consideration was also a charge of rape against a young boy. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). These matters must be decided on a case by case basis. We have allowed cross-examination of a defendant when the matter related to a prior conviction of the same nature as that for which he was being tried. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In Rhodes, the instance was allowed pursuant to Rule 608.

II.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT’S MOTION TO DISMISS THE CHARGE OF RAPE, OR IN THE ALTERNATIVE, REDUCE THE CHARGE OF RAPE TO THE CHARGE OF SEXUAL ABUSE IN THE FIRST DEGREE.

This point amounts to an argument that the evidence was insufficient to support the verdict. In the factual statement we have set forth facts which very clearly indicate that this matter was a question for determination by the jury. Holding that the evidence was insufficient to support the verdict is equal to stating that there should have been a directed verdict at the close of all the evidence. We have many times stated that we view such matters in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Jones v. State, supra; Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). In reaching this decision we are aware that the victim was unable to personally identify the appellant as the person who raped her. However, all of the circumstantial evidence clearly shows the appellant was the only other person present in her home at the time of the rape. We have previously held that circumstantial evidence can present a question for the jury and be the basis to support a conviction. Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). We hold that the circumstantial evidence in this case was at least of a substantial nature and we find it is sufficient to support the verdict.

The second part of this argument is that the charge of rape should have been reduced to that of sexual abuse in the first degree. We cannot agree with this argument. We have many times held that the testimony of a victim need not be corroborated to prove the crime of rape. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981). For the reasons previously stated we hold that there was sufficient evidence to support the conviction for rape and it was not error to fail to refuse to reduce the charge to sexual abuse in the first degree.

III.

THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY AS TO THE APPLICABLE PUNISHMENT PURSUANT TO § 8 OF ACT 620 OF 1981.

The final point argued by the appellant is that the class Y felony should have been used instead of the class A felony which was in effect at the time of the commission of the crime. Act 620 of 1981 became effective in June of that year. The crime for which the appellant was tried was committed on December 11, 1980. The trial was held on July 28, 1981. The appellant argues that he should have been tried under the act which was in effect at the time of the trial. The only difference in the old law and the new law is that the new one provides that rape is a class Y felony and the punishment ranges from not less than 10 years nor more than 40 years, or life. In the class A felony law which was in effect at the time of the commission of the crime the penalty was not less than five years nor more than 50 years, or life. It is hard to understand how the appellant could have been prejudiced even if the wrong instruction had been given because the maximum punishment under the old and the new is life which is the sentence the appellant received. We have held previously that when procedures are changed, the law in effect at the time of the trial governed. On the other hand, when substantive law is changed, we have held that the trial is governed by the law in effect at the time of the offense. See Duncan v. State, 260 Ark. 491, 541 S.W.2d 926 (1976); and Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Act 620 of 1981 changed the penalty provided for rape and also reclassified it from a class A felony to a class Y felony. The minimum sentence was raised from five to ten years. Therefore, we are of the opinion that the change was substantive and not procedural. Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982).

We have reviewed the transcript for other errors and can find no reversible error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Robert Lee BORECK v. STATE of Arkansas
    CR 81-128
    639 S.W.2d 352
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The prosecutrix reported to the police that she had been raped but about two weeks later she told the police, in a recorded statement, that she wanted the charge against appellant dismissed. The charge was not dismissed and shortly before trial the State moved to prohibit the appellant from cross-examining the prosecutrix about the matter. At the hearing on this threshold motion the prosecutrix testified that friends of the appellant had offered to pay her medical bills of $70 to $90 if she agreed to have the charge dismissed and she agreed. She testified that in furtherance of that agreement she made the'recorded statement to the police. In addition, she testified that she neither got the money nor were her medical bills paid. The threshold motion was granted and the appellant was prohibited from cross-examining the prosecutrix about attempting to have the charges dismissed. The appellant was tried, convicted and sentenced to 31 years in prison. We reverse and remand. Jurisdiction is in this court pursuant to Rule 29 (1) (b).

The trial judge has considerable discretion in determining the scope of cross-examination. Rules 403 and 611 (b) Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1979); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). However, we have consistently taken a broad view of the right of an accused in a criminal prosecution to be confronted with the witness against him. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981). This is because cross-examination is not solely a means to test the truth of the witness’ direct testimony but is also the principal means by which the credibility of a witness is evaluated. A broad view of cross-examination is especially important where it might reveal bias on the part of a key witness. Simpson v. State, supra; Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Here, if the cross-examination had been allowed, the jury would have been informed of the prosecutrix’s attempt to dismiss the charges in exchange for the payment of her medical bills. The jury may have considered the evidence of attempted dismissal inconsistent with her direct testimony that she had been raped and probative of the truthfulness of that testimony. In addition, the jury may have found her to be less credible if they thought she was biased since she was unable to extort an agreed payment. On the other hand, the jury may have thought that the underlying reasons for her actions were well founded and that the evidence supported both her testimony on direct and her credibility. Thus, the evidence was relevant and would have aided the jury in its evaluation of the prosecutrix’s testimony. For these reasons, the cross-examination should have been allowed.

We find no merit in the other points argued on appeal.

Reversed and remanded.


text:
    Odis Donnell THOMAS v. STATE of Arkansas
    CR 82-70
    639 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      Robert B. Wellenberger, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant pleaded guilty to a charge of rape and was sentenced to 30 years in prison. He then filed a Rule 37 petition for post-conviction relief alleging ineffective assistance of counsel and failure of the trial court to inquire into the factual basis of the plea. The trial court denied post-conviction relief and we affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (e).

On November 28, 1979, appellant was arrested. Late that afternoon he gave a statement in which he said, “I asked her ... [to have consensual intercourse] and she started laughing. We laid down on the floor, she pulled her pants off and I showed her the knife. I was on my knees, I laid over on her and put it in, she kept saying don’t hurt me and I told her I wouldn’t hurt her. I stayed on her for about 10 minutes. When I got through I stood up and waited until she put her clothes on. ...” The next day the information was filed, formal arraignment was held which included a full explanation of the charge and a detailed description of appellant’s rights, an attorney was appointed and a plea of not guilty was entered. The attorney, the appellant, his mother and his step-father examined and discussed the contents of the prosecutor’s file, which included written statements from the victim, the appellant and appellant’s next-door neighbor.

On December 6, 1979, a week after the formal arraignment and the plea of not guilty, appellant and his attorney appeared before the court and entered a plea of guilty. Again the judge asked appellant if he understood the charge and asked whether he had discussed the case in detail with his attorney and whether he was satisfied with his attorney’s services. He responded affirmatively to each question. The judge asked if the appellant had been threatened, mistreated or promised anything for his plea of guilt. He answered, “No, sir.” The judge then repeated the explanation of the minimum and maximum penalty, appellant’s right to a jury trial, his right to subpoena and cross-examine witnesses and the burden of proof and the requirement of a unanimous twelve member jury verdict for a finding of guilt. The appellant stated he understood and did not want a jury trial. Appellant was again told of the 30-year sentence to be recommended by the Prosecuting Attorney and he repeated the sentence to be recommended to the judge. When again asked for his plea, appellant responded, “Well, I’m not guilty, though, but I’m going to plead guilty to it.” The court responded, “No, sir. I can’t accept that. You are either guilty or not guilty.” Appellant then stated that he was guilty.

Appellant contends that his plea was involuntary for two reasons: first, he was denied effective assistance of counsel and second, counsel coerced him into pleading guilty.

The issue, as in the recent case Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981), is whether the guilty plea was entered intelligently and voluntarily and with the advice of competent counsel. In Williams, we stated that appellant has the burden of showing that the advice he received from his attorneys was not within the range of competence demanded from lawyers in criminal cases. Horn v. State, 254 Ark. 651, 495 S.W.2d 152 (1973). In addition, this Court has often stated that there is a presumption that counsel was competent. See, e.g., Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982); Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980); Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980). In view of this presumption, appellant’s burden is a heavy one. Rightmire v. State, supra.

We will reverse the denial of post-conviction relief only if the findings of the lower court are clearly against the preponderance of the evidence. Williams v. State, supra. Thus, the question to be resolved is whether the trial court’s findings were clearly against the preponderance of the evidence.

Appellant’s contention that he was denied effective assistance of counsel is a two-pronged allegation: first, his attorney failed to properly investigate his case and second, the attorney failed to properly prepare a defense.

Appellant’s first argument on ineffective assistance of counsel is that his attorney failed to properly investigate an alibi defense. However, in view of the fact that appellant’s statement admitted sexual intercourse with the prosecutrix at the time and place alleged, it was obvious that the only issue was forcible compulsion, and there simply was no need for the attorney to investigate a ludicrous alibi defense.

Appellant also contends that counsel was ineffective in not pursuing an insanity defense. The attorney testified that he explained the defense of insanity to appellant and offered to file a motion seeking to have appellant examined by the Arkansas State Hospital but appellant chose to plead guilty. The attorney had observed the defendant during lengthy periods of consultation and thought appellant was coherent and knew the difference between right and wrong. The trial judge ordered a psychiatric evaluation of appellant on September 23, 1980, in preparation for the hearing for post-conviction relief. The examining psychiatrist concluded from his examination that appellant "was probably not suffering from mental disease or defect of such degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the law at the time of the alleged offense.” There was sufficient evidence in the record for the trial judge to conclude that the failure to pursue an insanity defense did not amount to ineffective assistance of counsel. The findings of the trial court are not clearly against the preponderance of the evidence.

Appellant also alleges that his plea of guilt was based on an involuntary confession. In Irons v. States 267 Ark. 469, 591 S.W.2d 650 (1980), we stated:

When there is a collateral attack on a plea of guilty, rendered upon advice of counsel, the inquiry is not addressed to the merits of claims of constitutional deprivation prior to the entry of the plea, but it is focused upon the question whether the plea had been made intelligently and voluntarily upon advice of counsel. Such deprivations are pertinent only in evaluating the advice rendered by counsel. Horn v. State, 254 Ark. 651, 495 S.W.2d 152. If the appellant’s plea of guilty was entered voluntarily and was not the result of ineffective assistance of counsel, any other possible defenses, except for jurisdictional defects, were waived by him. Horn v. State, supra; Rimmer v. State, 251 Ark. 444, 472 S.W.2d 939; Wilson v. State, 251 Ark. 900, 475 S.W.2d 543....

Id. at 472, 591 S.W.2d at 561-62.

Thus, the question of the voluntariness of a pretrial confession is not itself the basis of post-conviction relief. It is, however, significant in relation to the charge of ineffective assistance of counsel, discussed above. In this case, the appellant did not give a pretrial confession; he gave a pretrial statement that the sexual intercourse was had with consent and consent, in turn, would have been the anticipated defense. Thus, the plea of guilt was not caused by an attorney ineffectively allowing an involuntary pretrial confession to stand. We affirm the trial court’s ruling that the appellant did not meet his heavy burden and did not prove ineffective assistance of counsel.

Appellant’s next contention is that his plea was involuntary because his attorney coerced him into pleading guilty. The main thrust of his argument is that his attorney discussed the possible existence of racial prejudice in the community and how it might affect a sentence recommended by a jury. Appellant is black and the prosecutrix is white.

The discussion by an attorney of all of the factors which might possibly lead to a higher sentence at trial does not, of itself, mean that a plea was compelled. In Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981), we stated that the accused’s justified fear of receiving a higher sentence if he went to trial did not warrant post-conviction relief. In Todd v. State, 253 Ark. 283, 485 S.W.2d 533 (1972), we said: “A plea of guilty even if induced by the possibility of a more severe sentence does not establish coercion.” Id. at 285, 485 S.W.2d at 534. The fact that the attorney discussed possible racial prejudice against the defendant does not, of itself, constitute coercion of a plea.

Appellant’s final argument is that the trial court did not inquire into the factual basis of his plea. Rule 24.6, A.R.Cr.P. provides:

Determining Accuracy of Plea.
The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.

We have held that compliance with Rule 24.6 is mandatory. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). But, deficiencies in the proceedings can be remedied at post-conviction hearings. Deason v. State, 263 Ark. 56, 562 S.W.2d 79 (1978). At the time of the plea Rule 24.6 was not strictly complied with as the court did not ask the appellant about the factual basis of the plea. However, the written statements of appellant and the prosecutrix were admissible, Davis v. State, 267 Ark. 507, 592 S.W.2d 118 (1980), and both statements plus one from a third witness were considered by the court at the post-conviction hearing. The appellant’s statement left only one factual element of the crime in doubt and that element was forcible compulsion. Appellant admitted in his written statement that he had a knife and showed it to the prosecutrix. He admitted engaging in sexual intercourse with the prosecutrix but intimated it was with consent. Twice the trial court read to appellant the charge against him, “sexual intercourse by forcible compulsion.” Twice the appellant stated he understood the charges. Appellant’s attorney twice stated in open court that he had read and explained the charges to him. Twice the appellant acknowledged that he had discussed the matter in detail with his attorney and twice he acknowledged that he was satisfied with the attorney’s services. He understood that the Prosecuting Attorney would recommend 30 years in prison if he pleaded guilty to the charge of rape. He then pleaded guilty. All of these attendant circumstances demonstrate that the trial court had a factual basis for finding the element of forcible compulsion. Thus, a factual basis for the plea was established and there was substantial compliance with Rule 24.6.

Affirmed.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    Melanie Raye Jaecks TEMPLE v. Jack Anthony TUCKER and Diana Lynn TUCKER
    82-36
    639 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982

      Gilbert L. Glover and Jean Turner Carter, Legal Services of Arkansas, for appellant.

      Charles S. Gibson, for appellees.
   Steele Hays, Justice.

On October 7,1979, appellant, an unmarried minor, gave birth to a son. On January 31,1980, she signed a consent to adoption by the appellees and an adoption hearing was held on April 28. The appellant was not present and no guardian ad litem was appointed for her. On May 6, a temporary decree of adoption was entered. On July 22, the appellant filed a petition to set aside the decree, alleging that the consent was not valid because no guardian ad litem had been appointed. On September 4, 1981, appellant’s petition was dismissed and the adoption decree was made final. The appellant appeals from thatrulingand argues that the interlocutory decree was in error because no guardian ad litem was appointed as required by Schrum v. Bolding, 260 Ark. 114, 539 S.W.2d 415 (1976) and by Arkansas Rules of Civil Procedure 17 (b). We affirm the Chancellor.

Under Arkansas’ prior adoption laws, service of process was required even though a consent had been given, and if the consenting parent was a minor a guardian ad litem was necessary. Arkansas’ new adoption act (Act 735 of 1977) institutes a different procedure and no longer requires service of process if consent has been given. The act requires no service, notice, or any further participation by those who consent to an adoption. Since appellant has not challenged the new act on constitutional grounds, we need not consider whether it meets due process requirements. Rather, the question presented is whether Rule 17 (b) of the Arkansas Rules of Civil Procedure, requiring the appointment of a guardian ad litem, should be used to supplement the present adoption act where the consenting parent is a minor.

Appellant relies on Schrum v. Bolding, decided in 1976, before the passage of the Revised Uniform Adoption Act. Ark. Stat. Ann. §§ 56-201 — 56-221 (Supp. 1981). Under Arkansas law in effect prior to Schrum all persons whose consent to an adoption was required, regardless of whether consent was given, were to be named as defendants and were to receive notice of the proceedings by service of summons. Ark. Stat. Ann. § 56-104 (Repl. 1971). It was on this statute that the holding in Schrum was based. The minor mother in Schrum had waived service of process, but the Court pointed out that a minor cannot waive service of process, Moore v. Wilson, 180 Ark. 41, 20 S.W.2d 310 (1929), nor can a guardian ad litem be appointed until after service of process, Ark. Stat. Ann. § 27-826 (Repl. 1979), and no judgment can be rendered against an infant until a defense has been made by a guardian ad litem, Ark. Stat. Ann. § 27-825 (Repl. 1979). Under the current Revised Uniform Adoption Act, which streamlines the old adoption procedure, we have a totally different scheme. If consent has been given, notice to the consenting party is not required, nor is any further participation required of them. The new act makes this quite clear in Ark. Stat. Ann. § 56-207 (b):

Except as provided in section 12 notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.

and again in § 56-212 (a), directing to whom notice shall be given:

... to (1) any agency or person whose consent to the adoption is required by the Act but who has not consented and (2) a person whose consent is dispensed with upon any ground mentioned in subsections (1), (2), (6), (8) and (9) of subsection (a) of Section 7 of this Act.

Because the language of the RUAA is clear in dispensing with notice once the necessary consent is given, the holding in Schrum must be read in light of the prior adoption statutes which did require notice to all whose consent was required. Too, we take note of the fact that of the seven other states that have adopted the RUAA or substantially similar acts, none has provided for or been construed as requiring a guardian ad litem.

Appellant argues that Rule 17 (b) requires the appointment of a guardian ad litem in proceedings where the consenting parent is an infant. We disagree. Once consent is given under the RUAA, it eliminates the need for any court appearance and any requirement that the person whose consent was given be a party to the proceedings. Rule 17 (b) contemplates an adversarial situation requiring a guardian ad litem whenever a minor has to “sue or defend.” Under the statutory scheme of the RUAA, however, once consent has been given, the participation by the individual giving consent is finished. In contrast, had a minor mother not given consent and was contesting the adoption, the application of 17 (b) would be appropriate. We might point out the act does not preclude a careful practitioner from seeking the appointment of a guardian ad litem for a minor mother and certainly that precaution would lessen the probability of an attack on the adoption decree in a later proceeding, as occurred in this case, and of a subsequent contention that the minority of the parent contributed to an invalid consent. See 2 UALR L.J. 135 (1979).

We might well point out that the new adoption act provides yet another method of surrendering parental rights which is intended to be followed where the consenting mother surrenders her child, not directly to the adopting couple, as here, but to an agency, which may later place the child for adoption by parents it selects. The latter method is set out in Section 20 of the act (Ark. Stat. Ann. § 56-220 [Repl. 1971)] and provides that the consenting parent, regardless of age, can appear before a j udge of a court of record or before a representative of the agency and relinquish her parental rights as well as the rights to later withhold her consent. Under this procedure the consenting parent has ten days in which to revoke her consent and the relinquishment is invalid unless this right of withdrawal is stated.

Appellant’s other argument challenges the trial court’s finding that the appellant gave a valid and informed consent to the adoption. We find the evidence sufficient to sustain the court’s findings and not clearly against the preponderance of the evidence. We will not disturb the decision unless we find to the contrary. Rule 52 ARCP.

Affirmed.

Hickman and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. The sole issue in this case is whether a minor parent has the capacity to execute a binding consent to adoption.

Melanie Temple, appellant, in August of 1979 was an indigent six months pregnant 15-year-old unmarried child. The Tuckers, appellees, had tragically lost their two children, one apparently before birth and the other only two hours after birth, and wanted to adopt a baby. They heard about Melanie’s situation and also heard that the baby had already been promised to another couple. The Tuckers sought out Melanie and agreed to pay all of the costs of delivery in exchange for the child. After the infant was born on October 7, 1979, and after the Tuckers had paid s'ome of the costs of delivery, Melanie decided to keep the baby.

Three months later Melanie’s mother sent the infant to Texas to live with an aunt of Melanie’s. On January 31, 1980, the Tuckers drove Melanie and her mother to the office of the Tuckers’ attorney. There Melanie signed a consent form which* was notarized by the attorney’s secretary. Melanie testified that she did not want to sign the consent form but was forced to do so by her mother. The mother’s testimony was fairly and accurately abstracted as follows:

Melanie didn’t want to sign the Consent, but I made her because I wanted her to go to school, and get an education. She wasn’t but 16. Her father has legal custody of her, not me, but I signed the papers to give the baby up. (T. 71) My daughter, Melanie Raye Jaecks signed the Consent to Adoption in my presence. I made her sign it. I made her let me take the baby to Texas for a month even though she didn’t want to. She bawled and squalled, and I told her that she is going to go to school. I told her that she couldn’t take care of him and to let me take him to Texas. Finally, she said, okay but not agreeably. I took him. Then the night that Diana and I came back with him, we wouldn’t even come in the house because we knew that she was so emotionally tied to him that it would be best that she never see him. We even sent his chest, all of his clothes, everything to Jack and Diana, so we could get them out of the house where she wouldn’t see them. They never came in the house with him (T. 72) because they knew that this was not really what Melanie wanted. It was what I wanted. They knew that we couldn’t let her see the baby because she would cry every time we mentioned him.
I think Melanie first learned that the adoption had gone through in the latter part of July. I told her that I felt like I had to tell her that I got that letter in April and that her six months was not up if she wanted him. She said, “Yes, I want him.” It was not her idea to consent to the adoption. I did all this (T. 73) because I wanted her to go to school. I guess I pushed her. (T. 74).
The majority opinion holds that the consent is binding

and that it, in turn, abrogates the need for service of process or notice.

It is important to note that the majority opinion does not cite any section of the Revised Uniform Adoption Act as authority for the proposition that a minor has the capacity to consent to adoption. The reason, quite obviously, is because there is no such authority in the adoption section of the act. An even more important statutory interpretation factor is omitted from the majority opinion and that is the General Assembly expressly repealed our previous statute, which, in part, provided:

(d) The minority of a parent shall not bar or in any way vitiate his consent to an adoption. Ark. Stat. Ann. § 56-106 (d) (Repl. 1971).

It was solely on the basis of this previous statute that we held the minority of the parent was not a bar to the execution of a valid consent. Martin v. Ford, 224 Ark. 993, 227 S.W.2d 842 (1955); Combs v. Edmiston, 216 Ark. 270, 225 S.W.2d 26 (1949).

Absent some statutory authority to the contrary, a minor does not have capacity to execute a binding legal instrument. Such an instrument is voidable. 42 Am.Jur.2d Infants § 58 (1969). Thus, the minor parent lacked capacity to execute a consent which she could not legally avoid.

The essential reason to hold that the minor lacked capacity is one of public policy. The beginning of this dissenting opinion set out facts sufficient to alert one to the real danger in a case such as this — the markets for children. Those markets were described by Derden, Adoption, Revised Uniform Adoption Act, 2 UALR Law J. 135 (1979) as follows:

[T]here are more parents who wish to adopt than there are available children. The basic economic principle of supply and demand dictates that the baby market is, and will continue to be, a seller’s market. There are two distinct types of markets, referred to as a gray market and a black market. The black market has been defined as independent adoptive placement in which a third party makes a profit. The gray market is similar but the profit motive is replaced by the good intentions of doctors, lawyers, friends, and parents.
It would be naive to contend that such activities are not occurring in Arkansas. In 1958 an attorney for the State Department of Public Welfare stated that “at least four examples of the outright sale of babies” had occurred in Arkansas. He went on to comment that the control against “the selling of flesh” in Arkansas was the high integrity of Arkansas j udges and attorneys____ (Footnotes omitted.)

Because of public policy I would not subject a six months pregnant 15-year-old indigent to the gray or black markets, especially when the statute does not authorize it. I would follow either Rule 17 (b) ARCP and require the appointment of a guardian ad litem or require a proceeding under the termination of parental rights section of the act, Ark. Stat. Ann. § 56-220 (Repl. 1981). The majority does not. Thus, I dissent.

I am authorized to state that Mr. Justice Hickman joins in this opinion.

       North Dakota, Arizona, Montana, New Mexico, Alaska, Oklahoma and Ohio.


author: Per Curiam.

text:
    Donald James CARRIER v. STATE of Arkansas
    639 S.W.2d 360
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982
    Movant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for respondent.
   Per Curiam.

On April 16, 1982, the Clerk of the Supreme Court received from the Union County Circuit Clerk a trial record to be lodged on appeal in the case of Donald James Carrier. Since Carrier, who was convicted of murder in the first degree and sentenced to life imprisonment, had filed an untimely pro se notice of appeal, the Clerk declined to file the record. The attorney of record in the case, Ronald Griggs, then filed a motion for rule on the clerk. The attorney admitted that he had not been relieved as counsel in the case and had not taken any steps to perfect the appeal. We denied the motion for rule on the clerk but noted that a subsequent such motion would be granted if the attorney admitted his error or gave other good cause for granting the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. We also denied a motion to be relieved as counsel filed by Mr. Griggs. Griggs did not file a second motion for rule on the clerk.

On July 30, appellant filed a pro se motion for belated appeal and appointment of counsel. Griggs responded to appellant’s motion by affidavit. The affidavit contains no good reason for the attorney’s failure to follow the proper procedure for withdrawing from a criminal case.

Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

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

The method for taking the appeal is set out in Rule 36.9. Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from a case. In Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and the petition to withdraw should contain a statement of the reasons therefor. Also, we held that a copy of the request for withdrawal, if granted, should be sent to the appellant.

In view of the fact that the present attorney did not follow the procedure prescribed for withdrawal, we must still consider him the attorney of record and hold him responsible for the duties imposed upon him by the rules, statutes and opinions of the court as recited above. The belated appeal will be granted and a copy of this opinion forwarded to the Committee on Professional Conduct.

Motion granted.


text:
    James Paul HARDIN v. STATE of Arkansas
    639 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered September 27, 1982
    Movant, pro se.

    No response by the State.
   Per Curiam.

James Paul Hardin was convicted of aggravated robbery on May 19, 1982. He has now filed a motion for belated appeal of the conviction. He alleges that his attorney Robert Lamb placed the responsibility for filing the notice of appeal on him. He further states that he did not file the notice of appeal because he did not understand how to perfect an appeal. Mr. Lamb has filed an affidavit in response to Mr. Hardin’s motion in which he states that he told Hardin to notify him if he decided to appeal. Apparently Hardin did not communicate further with Lamb, but this did not absolve counsel of his duty to follow the rules of this Court with regard to the representation of a criminal defendant.

Rule 36.26 of the Arkansas Rules of Criminal Procedure provides:

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

Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from a case. In Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and that the petition to withdraw should contain a statement of the reasons therefor. Also, we held that a copy of the request for withdrawal, if granted, should be sent to the appellant.

In view of the fact that the present attorney did not follow the procedure prescribed for withdrawal, we must still consider him the attorney of record and hold him responsible for the duties imposed upon him by the rules, statutes and opinions of this court as recited above. The belated appeal will be granted and a copy of this opinion forwarded to the Committee on Professional Conduct.

Motion granted.


author: George Rose Smith, Justice.

text:
    Jim MULLINS v. STATE of Arkansas
    CR 82-61
    639 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982

      Skillman ér Durrett, by: V. E. Skillman, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Mullins was charged with having sold “a quantity of controlled substance, to-wit: 100 quaalude tablets containing methaqualone, a Schedule II controlled substance,” to an undercover police officer. The jury returned a verdict of guilty, with a 30-year sentence. The only argument for reversal is that the cpurt should not have admitted into evidence the 90 whole tablets and 10 half tablets that remained after the other 10 half tablets had been tested by a chemist at the State Crime Laboratory.

The chemist testified that she received 100 white tablets each monogrammed “Lemon 714,” which is the mark used by the Lemon pharmaceutical firm in marketing the drug methaqualone under the name of Quaalude. She selected ten tablets at rapdom for testing, cut them in half, and found by testing ten of the halves that all ten contained methaqualone, a Schedule II drug. She admitted on cross-examination that she could not state on oath just what the other tablets were without having tested them. On the basis of that admission it is argued that the remaining tablets and half tablets should not have been admitted into evidence.

There are two answers to this contention. One, there is not the slightest basis in the record for a speculation that either Lemon or some third person substituted counterfeit tablets for some of those that were sold as Quaaludes. The trial judge could find from the representative sampling and testing of ten tablets that the other ninety were identical. Uniform Evidence Rules 104 (a) and 901 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979). See also Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (Ark. App. 1980).

Two, although the information charged Mullins with having sold 100 tablets, the trial judge without objection instructed the jury that Mullins was charged with the offense of delivering methaqualone and that the State’s burden was to prove that Mullins "transferred methaqualone to another person in exchange for money.” Under that instruction any question about whether there were ten or a hundred genuine tablets became immaterial, because in either view there was substantial evidence to support the verdict.

Affirmed.


author: Frank Holt, Justice.

text:
    Robert Earl MONTGOMERY v. STATE of Arkansas
    CR 82-116
    640 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    [Rehearing denied November 8, 1982.]

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of second degree murder and assessed his punishment, as a habitual offender, to thirty years imprisonment and a $15,000 fine. As requested by the appellant, the court converted the $15,000 fine to an additional year of imprisonment. We affirm.

For reversal appellant asserts that the trial court abused its discretion by refusing to excuse two jurors for cause. One juror was the husband of a Little Rock police officer. When first questioned by the appellant’s attorney, he stated that it would be hard to answer whether he would tend to give a police officer more credibility than some other witness. Upon further questioning by the court, he stated that his wife’s being a police officer would not give him any difficulties, that he could judge the case solely and entirely on what he heard in court, that he had no preconceived notions about the ease, and that he could consider a police officer’s testimony just as he would any other witness’ testimony. The other juror was challenged because he had once consulted with the state’s attorney on a matter when that attorney had been in private practice. This juror stated that his past relationship with the prosecutor would not influence him, and that he could render a fair and impartial verdict. The appellant had exhausted his peremptory challenges before the voir dire of these two jurors. Appellant argues that permitting either of these jurors to serve infringed upon his constitutional right to a fair and impartial trial.

The question of a juror’s qualification lies within the sound judicial discretion of the trial court and the appellant bears the burden of showing the prospective juror’s disqualification. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Satterfield v. State, 252 Ark. 747, 483 S.W.2d 171 (1972); Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1976). The correct test is whether the prospective juror can lay aside any preconceived opinion and render a verdict based upon the evidence presented and the instructions of the court. We have held that being associated in business with one of the trial attorneys does not alone disqualify a prospective juror. C. A. Rees & Co. v. Road Improvement Dist. No. 1 of Clark County, 167 Ark. 383, 267 S.W. 770 (1925). Likewise, the mere fact that a prospective juror is related to a law enforcement officer, who is not involved in the case being tried, does not alone disqualify that juror. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73; and Johnson v. State, 270 Ark. 871, 606 S.W.2d 381 (Ark. App. 1980). Here, the wife of the juror was neither a witness nor an investigator in the case. In fact, she was an officer of the Little Rock Police Department. All of the officers testifying were from the North Little Rock Police Department. Unlike Pickens v. State, 260 Ark. 633, 542 S.W.2d 764 (1976), both jurors here unequivocally affirmed their ability to make a fair and impartial decision. We hold the appellant has not demonstrated the court abused its discretion.

The court denied appellant’s request that the charge of first degree murder be reduced to second degree murder. The state, however, moved for an instruction on second degree murder in addition to the instruction on first degree murder. This motion was granted over appellant’s objection, and he assigns this as error. Since the appellant had moved to have the charge reduced to second degree murder, his request in this regard was, in effect, granted by the jury verdict. We do not reverse unless the asserted error is prejudicial. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977). Here, appellant has not demonstrated he was prejudiced by the court’s ruling.

Appellant next contends that the evidence was insufficient to support a verdict of guilty. On appeal we review the evidence in the light most favorable to the appellee, and we affirm if there is substantial evidence to support a verdict, which means that we must decide whether the jury could have reached its conclusion without having to resort to speculation or conjecture. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); and McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979).

Here, the state medical examiner testified that the deceased died between 8 and 12 p.m. Friends of the appellant testified appellant came by their home at approximately 10:30 p.m. He had a large amount of blood on his clothing. He explained that he had been fishing and had bloodied his clothing while cleaning the fish, a statement which he later admitted was a fabrication. Witnesses testified, and appellant admitted, that he and the victim had spent the evening barhopping and drinking. According to the appellant he drove the victim in a van to a designated location where the victim was to purchase a quantity of drugs from other individuals. When the victim refused to consummate the transaction, these individuals killed him by repeated blows to the head with a hammer. In the scuffle appellant’s clothing-was covered with blood. Following the alleged offense he fled the scene, because of threats, in possession of the van which was entrusted to the victim by his employer, and he secreted the van following the alleged murder. Further, he disposed of the hammer, the murder weapon, which was recovered when he accompanied officers to the location where he had thrown it in the river. The officers testified that their investigation failed to connect the individuals named by appellant with the crime. Viewing the evidence most favorable to the appellee, as we must do on appeal, we hold there is substantial evidence to support the jury’s finding of second degree murder; that is, that appellant knowingly caused the death of the deceased under circumstances manifesting extreme indifference to the value of human life. Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977).

The appellant’s multiple fourth point is that the trial court erred in admitting evidence of prior convictions of the defendant. He first asserts that Act 252 of 1981 (Ark. Stat. Ann. § 41-1005 [Supp. 1981]) unconstitutionally grants the trial court the power to make a factual finding as to the number of prior felony convictions in a habitual offender sentencing procedure. However, here, the court submitted the fact issue (pursuant to AMCI 7001 and 7002) to the jury and it, rather than the trial court, made the finding as to the number of prior convictions. In order to have standing to attack the constitutionality of a statute, the appellant must show that the questioned statute resulted in a prejudicial impact on him. Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); McCree v. State, supra; and Williams v. State, 260 Ark. 457, 541 S.W.2d 300 (1976). Here, appellant has not demonstrated that the questioned statute was used to his detriment.

The evidence of prior convictions consisted of a copy of records (a pen pack) from the Arkansas Department of Correction which was certified by the custodian of the records. The appellant contends that this evidence violated the Uniform Rules of Evidence, Rules 803 (6) and 803 (8). This objection was not made at trial and cannot be reviewed here. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979); A.R.Cr.P., Rule 36.21, and Uniform Rules of Evidence, Rule 103 (a).

The appellant further argues that the records introduced as evidence of the prior convictions were inadequate under Ark. Stat. Ann. § 41-1003 (2) (Supp. 1981), because no comparison was made of the fingerprints contained therein to insure that the appellant was the same individual named in the certified records. The pen pack also contained photographs of the person convicted of the recorded offenses. Appellant argues that the trial court’s finding was based only upon the certificate, photographs and commitment papers. He asserts there is no evidence that the fingerprints with the file were his. Therefore, the statutory requirements were not met and the evidence (pen pack) should have been excluded.

Section 41-1003 states:

A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trial court beyond a reasonable doubt that the defendant was convicted or found guilty. (Italics supplied.)

The state is not limited to the modes of proof listed specifically in § 41-1003 but can rely on “any evidence” that satisfies the appropriate burden of proof. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Elmore v. State, 268 Ark. 225, 595 S.W.2d 218 (1980). As the commentary to § 41-1003 states, “The commission wished to make clear that the state may prove a previous felony conviction by means other than introduction of one of the certificates described in the statute.” The question of whether the photographs and the certified records actually established beyond a reasonable doubt that the appellant was the person who had been convicted of the previous offenses is for the trier of fact to decide. Elmore v. State, supra. On appeal our task is merely to decide whether there was substantial evidence to support that conclusion. Cassell v. State, supra. Here, we find there was substantial evidence.

The appellant also argues that the introduction of the records, in the absence of the custodian thereof, deprived him of the right to confront the witness against him. Constitution of Arkansas (1874), Art. 2, § 10; United States Constitution, Sixth and Fourteenth Amendments. The appellant cites no cases holding that the introduction of records in the absence of the recordkeeper in a criminal trial violates the defendant’s right of confrontation. We have held that the introduction of the record of conviction of a principal is admissible in a trial of an accessory. Tiner v. State, 110 Ark. 251, 161 S.W. 193 (1913). Other jurisdictions have held that the admission of records of prior convictions in habitual offender proceedings in the absence of the recordkeeper does not violate the defendant’s face to face or confrontation rights. State v. Miller, 608 S.W.2d 158 (Tenn. Cr. App. 1980); People v. Bryan, 3 Cal. App. 3d 327, 83 Cal. Rptr. 291 (1970); State v. Dawson, 91 N.M. 70, 570 P.2d 608 (1977). Wigmore on Evidence, § 1398, Note 8; see also 21 Am.Jur.2d Criminal Law §§ 963 and 964; 70 ALR2d 1232-4. Texas permits prior convictions to be established by certified copies of records from the Department of Correction, exactly as here, and this procedure has been upheld in both federal and state courts. Tomlin v. Beto, 377 F.2d 276 (1967); Dozier v. State, 167 Tex. Crim. 84, 318 S.W.2d 80 (1958). Here, we hold there was no infringement upon appellant’s state and federal constitutional rights.

Affirmed.


author: Robert H. Dudley, Justice. Steele Hays, Justice, dissenting.

text:
    FORD MOTOR CREDIT COMPANY v. Donald E. HUTCHERSON
    82-32
    640 S.W.2d 96
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    [Rehearing denied November 8, 1982.]

      Smith ér Nixon, by: W. R. Nixon, Jr., for appellant and cross-appellee.

      Rubens ir Rubens, by: Kent J. Rubens, for appellee and cross-appellant.

      Purtle and Hays, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Donald E. Hutcherson, appellee, purchased a Lincoln Mark V automobile from Union Lincoln Mercury of Little Rock. The parties executed a level payment installment sales contract that provided for the financing of $12,700 at 10% per annum, payable in 48 equal monthly installments of $322.09, with the total finance charge stated as $2,760.32. The figures for the amounts of the monthly installments and of the finance charge were taken from ordinary interest tables supplied by Ford Motor Credit Company, the appellant, to whom Union Lincoln Mercury subsequently assigned the contract.

The contract was executed on July 17,1978, and the first payment was due August 10, 1978, a period of only 24 days, or 6 days less than an ordinary interest month or 7 days less than an exact day interest month. See Thorndike Encyclopedia of Banking and Financial Tables (1980) p. XVI. Each of the succeeding consecutive monthly installments was due on the tenth day so that Hutcherson never would be afforded a full 48 months of 30 days each under the ordinary interest tables, nor would he be afforded four full years of exact day interest. Thus, the contract charged Hutcherson 10% interest for 4 years, or 48 months, while giving him use of that money for only 3.95 years or 47 months and 24 days.

Hutcherson tendered the first payment under protest claiming that the contract was usurious. Ford Credit recomputed the finance charge using exact day interest, or a 365-day year, and tendered Hutcherson a check to cover the excess finance charge but he refused it. He made two more payments under protest and then stopped paying altogether.

Ford Credit filed suit to replvy the automobile for nonpayment of the debt to which Hutcherson pleaded usury. The Chancellor found the contract was usurious. We affirm. In addition, the Chancellor held that Hutcherson was not entitled to a refund of the money he paid under protest. Hutcherson cross-appeals and we also affirm on that issue. Jurisdiction is vested in this Court by Rule 29 (4).

The Arkansas Constitution provides that all contracts for a greater rate of interest than 10% per annum shall be void as to principal and interest. Art. 19, § 13. In Martin’s Mobile Homes v. Moore, 269 Ark. 375, 601 S.W.2d 838 (1980), the only Arkansas case discussing modes of computation of interest, we set out the four main possibilities for computing simple interest as discussed in the Thorndike Encyclopedia of Banking and Financial Tables (rev. ed. 1980) p. VII. Each method may give a different amount of interest, and yet, each would be correct for that particular mode.

Exact day interest is the method which counts each day in the interest period. The basis year to compute interest is 365 or 366 days. We have always approved this method as a non-usurious method of calculating interest when the interest rate is 10% or less. According to the testimony in this case, 10% interest using this method amounts to $2,734.42. Since the contract called for $2,760.30 in interest it was usurious according to this mode of computation.

Ordinary interest counts months and days in the interest period. The basis year is always 360 days and a month is always 30 days. We approved the 360-day rule of computing ordinary interest when the interest rate is 10% or less to allow a practical solution to the virtual impossibility of preparing a standard form of contract that would yield 10% interest per annum on an exact day basis when monthly payments are being made. Ordinary interest allows the striking of a reasonable average as a practical means of reconciling erratic values. It contains no intent to avoid our usury law. We pointed out in Martin that there was nothing insidious about ordinary interest because annual payments of 10% interest upon a $1,000 debt are $100, the same as exact day interest. The only difference arises when interest payments are to be made monthly, quarterly, or semi-annually and we held that months of a standard length can be used because of history and reason.

According to Lake’s Monthly Installment and Interest Tables (6th ed. 1970), an authoritative work we have relied on in many cases, a charge in excess of 10% ordinary interest was made in this case. According to Lake’s tables the interest on $12,700 for 24 days was $85.67. In accordance with Ark. Stat. Ann. § 68-606 (Repl. 1979) the payment is first applied to interest and the balance to principal. Thus $84.67 of the first $322.09 payment is applied to interest and the remaining $237.42 applied to principal leaving $12,462.58 to be financed over 47 months. The maximum monthly payments at 10% ordinary interest were $321.96 and thus the monthly payments contracted for were greater than 10% ordinary interest. This contract was based on ordinary interest and is usurious by its own terms and it is for that reason we affirm.

Ford Credit’s attorneys in an excellent brief contend that the contract does not exceed 10% banker’s interest. That contention is correct. Banker’s interest has a basis year of 360 days but interest is charged on the exact number of calendar days in the interest period. Thorndike, supra, p. XXV and Thorndike Yearbook (1981) p. 45. Thus in any period the interest computed equals 365/360 more than the stated annual interest rate, which would amount to 10.14% annual interest on the three 365 day years involved and 10.16% annual interest on the 366 day year involved. However, the contract at issue was not based on banker’s interest; instead it was based on Ford Credit’s ordinary interest tables. Therefore we do not find it necessary to decide whether a contract which calls for 10% to be computed by the banker’s interest method is usurious. See generally: Comment, Usury: Issues in Calculation, 34 Ark.L.J. 442 (1980).

Appellant Ford Credit next contends that there was no intent to charge excessive interest because Union Lincoln Mercury’s employees had no idea that a change in the first payment date would affect the finance charge. The fact that a clerk did not understand an interest formula does not mean that Ford Credit does not understand the formula.

We have held that the intent required is the intent to charge a certain amount and that if the amount exceeds 10%, there was an intent to charge a usurious rate of interest. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980). In cases involving manual precalculated interest tables we have stated that an honest error of fact in calculation is not sufficient intent to render a contract usurious. In Sammonds-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W.2d 487 (1966) the creditor looked to an expert for advice on the computation of interest. The expert used “Lake’s Monthly Installment and Interest Tables” but the interest was usurious. We held this to be a mistake of fact as there was no intent on the part of the creditor to charge any amount other than that he was told amounted to 10%. A similar mistake of fact occurred when the chart prepared by Financial Publishing Company of Boston, Massachusetts was in error. Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W.2d 68 (1973). However in cases such as the one before us, we have held that the creditor made a mistake of law in misapplying a formula. For example, in Holland v. Doan, 228 Ark. 340, 307 S.W.2d 538 (1957), the car dealer used a chart furnished by General Motors Acceptance Corporation and apparently charged interest on the basis of one year, or 52 weeks, when the payments were to be made over only 48 weeks. We held the mistake was one of law in applying the wrong formula because the creditor intended to receive a rate of interest that proved to be usurious. The case now before us is the same. The Chancellor held that in charging 10% interest for a 4-year period while the money was actually loaned for only 3.95 years the appellant intended to receive an amount of interest which proved to be usurious and this, in turn, constitutes intent to charge a usurious rate. We cannot state that the holding of the Chancellor was clearly in error.

Ford Credit next argues that the trial court erred in refusing to estop Hutcherson from asserting the defense of usury.

For eight years Hutcherson, a college graduate, had served as an assistant bank examiner. Only two months before he purchased the car he had attended a seminar on the subject of checking the accuracy of annual percentage rates on consumer loans. He was aware of the Arkansas usury law. A clerk for Union Lincoln Mercury testified that on July 17, she first prepared a non-usurious contract which was never executed. In it, she had a first payment period of 45 days. She then prepared a second contract, the one before us, at the direction of the Union Lincoln Mercury salesman. She did not know the reason for the change. The salesman had a stroke before the trial and was unable to testify. Hutcherson testified that he knew of only one contract. He testified that he did not see the automobile until July 16 and he purchased it on July 17, and signed the only contract he saw on that date. He said he wanted the contract to be payable on the 10th, but he had nothing to do with the interest rate or computing the amounts of the payments. Those items were computed by Union Lincoln Mercury’s title clerk who never talked to Hutcherson.

A debtor may be estopped from asserting the defense of usury when the debtor created the infirmity in the contract in order to take advantage of the creditor. Blanks v. American Southern Trust Co., 177 Ark. 832, 9 S.W.2d 310 (1928).

However, here the trial court did not find that estoppel should be applied. While the circumstances here are suspicious, we must consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. ARCP Rule 52. We cannot say the Chancellor was clearly in error.

We find no merit in Ford Credit’s final point that the trial court erred in refusing to reform the contract. Usurious written instruments are subject to reformation where there is mutual mistake, or where there has been a mistake on the part of the lender and fraud or other inequitable conduct on the part of the borrower. Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973). There was no mutual mistake in this case and the Chancellor did not find fraud or inequitable conduct on the part of Hutcherson and we cannot state that he was clearly in error. We affirm on this issue.

In his cross-appeal, appellee contends that the court erred in allowing Ford Credit to keep the three payments he made under protest. The Chancellor was correct. There are no statutes on the subject. See Ark. Stat. Ann. Title 68, Chapter 6 (Repl. 1979 and Supp. 1981). The common law rule which we adopted is that only excessive interest is recoverable while principal and lawful interest are not. The reasons are brilliantly set out by Justice Hemingway in Josey v. Davis, 55 Ark. 318, 18 S.W. 185 (1892). There is no showing in this case that any of the money actually paid went to excessive interest. Therefore cross-appellant Hutcherson has not shown he is entitled to a refund.

Affirmed on both appeal and cross-appeal.

Hickman, Purtle and Hays, JJ., dissent.

Steele Hays, Justice, dissenting.

I am unwilling to join in declaring this loan usurious. Like the trial court, the majority concentrates on mathematical considerations and methods of computing interest, ignoring other important aspects of the case: a) the opinion notes that Ford initially prepared the note with the first monthly installment due 45 days after the sale, admittedly not usurious, but fails to mention that the date was fixed at the request of the borrower, thereby becoming usurious by 6 days; b) the overcharge in this case was the result of an unintentional mistake in a single, isolated transaction induced by the borrower; c) the motivation of the lender was not to obtain a greater return of interest but simply to accommodate a borrower; d) the overcharge was in a miniscule amount — approximately $20.00 on an indebtedness of $12,700, which the lender tried to refund when the mistake was pointed out.

We have said that a timely offer to remit by the lender is a significant fact. Holland v. Doan, 228 Ark. 340, 307 S.W.2d 538 (1957). And we have often ruled a contract may be over ten percent without being usurious. First American National Bank v. McClure Constr. Co., 265 Ark. 792, 581 S.W.2d 550 (1979); Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W.2d 68 (1973); Sammons-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W.2d 487 (1966). Exceeding the limit, with nothing more, is not enough to transform a contract into a usurious instrument. As we stated in Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980):

When usury is alleged, the test is whether the borrower promised to pay a greater rate of interest than the law permits and the lender knowingly entered into a usurious contract intending to profit by the methods employed.

and in Davidson, supra:

A lender who makes an excessive charge through a mistake or ignorance of the fact it was excessive has no intent to unlawfully charge interest.

The critical factor in determining whether a contract is usurious is not the mathematical result alone, but whether, after looking at all the circumstances, it can be said there was intent:

It appears that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. When this is done, we think it is plain that the overcharge in the instant litigation was the result of an error, made in good faith, rather than being based on an intent to violate the usury law.
Sammons-Pennington, supra.

Yet neither the trial court nor the majority give any consideration to these factors. The plain import of the majority opinion is that all a lender has to do is to intend to charge a certain rate and if that rate is in excess of 10%, the intent to charge usuriously is present. The majority opinion relies wholly on the assertion that Ford made a mistake of law in misapplying a formula, and that is enough to constitute intent. The case the majority points to as exemplifying this reasoning is Holland v. Doan, 228 Ark. 340, 307 S.W.2d 538 (1957). I disagree with their interpretation of that case. In Holland, a used car dealer had charged interest on a basis of one year (52 weeks) instead of 48 weeks as provided in the contract. The first point the court in Holland makes is that there were other cases where usurious charges had been exacted by mistake, but the lender offered to credit the borrower’s account: “Here, no offer was made until after both sides had rested, and the case had been reopened . . . though the contribution was very clearly brought to his attention, no offer of remittance was made, nor defense interposed that said charges were the result of unintentional error. This to us is a most significant fact in the litigation.” Holland at 342. I do not read that decision as saying the lender made a mistake of law, and the court goes on to say:

One of two conclusions must be reached; either appellee did not know how to figure the interest, or else he carelessly figured same. In neither instance could the excessive charge be legally justified or excused. If the former were true, he should have had his calculations checked by one who was familiar with figuring interest, If the latter, appellee should have been even more careful in this instance, for he was dealing with a man who could neither read nor write. Holland at pg. 345. (my emphasis).

The differences between the case before us and Holland are striking and to say that Holland turned solely on the point of misapplying a formula is fallacious. In any event, if misapplying the formula or using the wrong formula is the problem, how do we reconcile First American, supra, where an experienced financing institution used the wrong formula but we still held the contract not to be usurious? I emphasize the point from Sammons-Pennington, supra, that all attendant circumstances must be considered.

The majority opinion does mention that there are exceptions to the rule and notes two of them: honest error of fact in calculation and interest attempted by a person not skilled in computation of interest who looked to an expert for advice. The second exception was drawn from SammonsPennington, supra, but in that case the person who drew up the contract was not inexperienced in computing interest, as the majority states. To the contrary, he was the president of the company and evidently experienced in computing interest. He had drawn up the terms for other loans within that case without any problem. His only area of inexperience was in preparing documents for a loan for a longer duration than he was accustomed to. The expert’s advice he relied on was the finance company which eventually bought Sammons-Pennington’s paper. I find that situation to be analogous to Ford’s position. And in First American, supra, an error was made by an experienced lending institution, yet the contract was not found to be usurious. I am hard pressed to find the exceptions to be as narrow and limiting as the majority opinion suggests.

Considering all the attendant circumstances of this case in light of what we have found in the past not to be usurious, I cannot find Ford to have the requisite intent to charge a usurious rate. Ford had originally drawn up a contract with the first payment due at 45 days, which would not have been usurious. It was the borrower who proposed the earlier due date — which resulted in the usurious excess. As the majority notes, the borrower here was an experienced bank examiner especially knowledgeable in interest computation and trained in the detection of usury. Contrast this to the consumer in Holland, who could neither read nor write. Too, when Ford discovered the possible excess it immediately attempted to remit it to the borrower, who just as quickly refused it. A similar tender was conspicuously absent in Holland. True, Ford is an experienced lender, but what of the allowances made in First American and Sammons-Pennington? Even experts are allowed some tolerance for honest mistakes. I fail to see enough evidence to constitute intent and I see the exceptions as broad enough to easily encompass this situation.

Ford had not been preparing its contracts in this fashion regularly. Where intent is lacking and it is clear that no systematic pattern is being practiced to circumvent our usury laws, I believe it is wrong to impose the highly punitive result that enables a borrower to drive away in a $12,700 automobile when the only reason the contract was usurious is because he asked that the due date of the first installment be changed. Whether his motive was innocent or ulterior, the trial court did not address. That issue was especially relevant here. But even assuming good faith, it was still done purely at the borrower’s behest and he ought to be estopped from claiming the harsh remedy our law affords.

Judges Hickman and Purtle join in this dissent.


text:
    Thomas D. STEPHENS v. STATE of Arkansas
    CR 82-74
    640 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered October 4, 1982
    [Rehearing denied November 8, 1982.]

      Smith, Smith ¿r Hubbell, by: Billy Jay Hubbell, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty by a jury of kidnapping for the purpose of engaging in sexual intercourse or deviate sexual activity and of engaging in sexual intercourse and deviate sexual activity with a female person by forceable compulsion, a violation of Ark. Stat. Ann. §§ 41-1702 and 41-1803 (Repl. 1977). The evidence at trial overwhelmingly established appellant’s guilt. The victim was beaten, cut, strangled and burned before her escape and rescue. The appellant does not question the sufficiency of the evidence, but contends that he did not receive a fair trial because of error in the selection of the jury. We affirm the conviction. Jurisdiction is in this court pursuant to Rule 29 (1) (b).

Appellant first argues that the trial court committed error by failing to excuse for cause a venireman who was a security guard and a former police officer. However, appellant peremptorily excused this venireman and the record reflects that no objectionable juror was forced upon appellant without his having the privilege of exercising a peremptory challenge. Thus, appellant has failed to show any prejudice on this point and it is not a ground for reversal. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).

Next, appellant contends that the trial court erred in allowing the State to question veniremen regarding their willingness to impose the maximum sentence. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), we reversed a conviction because the prosecutor repeatedly attempted to commit the veniremen to the maximum sentence if they found the defendant guilty of the charge. The case before us is distinguished from Haynes because here, after stating the minimum and maximum penalties for the crimes charged, the prosecutor asked the prospective jurors whether they would consider the maximum penalty. Unlike the situation in Haynes, no juror in this case was asked to commit to a possible penalty or to express an opinion on whether such a penalty would be suitable. The jurors were asked only whether they would consider all the penalties provided by law. This is a proper inquiry on voir dire. See, A.R.Cr.P. Rule 32.2; Ark. Stat. Ann. §§ 43-1918 — 1919 (Repl. 1977).

Appellant also contends that the trial court erred in excusing for cause a venireman who indicated he would not favor imposing the maximum sentence for rape. This venireman stated at one point during voir dire, “I wouldn’t send him for life and I wouldn’t send him for forty years....” This juror was irrevocably committed to voting against the possible penalties, regardless of the facts and circumstances that might have ensued in the course of the trial. If he had been seated the State would have been denied the fair and impartial jury to which it is entitled. Haynes, supra. We affirm the trial court in excusing this juror for cause.

Appellant’s final argument is that the trial court committed error by denying his motion for a continuance. The facts surrounding the motion are as follows: On the date set for trial 35 members of the jury panel had been summoned to appear. However, only 21 members of the panel responded to the summons by appearing in court. Six of the absent 14 previously had been excused by the court for good cause. Appellant admitted that the full panel represented a fair cross-section of the community, but objected to proceeding with only 21 members, stating that number was too few and that small number did not represent the community at large. He asked for a continuance until the remainder of the panel was in attendance.

The prosecuting attorney stated that he believed a jury could be selected from the panel and the trial court denied the appellant’s motion, stating that the panel did represent a fair cross-section of the community. Eleven jurors were seated from the 21 persons present at the beginning of the voir dire proceedings. Two other members of the jury panel who were originally summoned but who were not initially present were then called. One of those two panel members was then seated without objection as the twelfth juror.

A motion for a continuance is addressed to the sound discretion of the trial court. Its action will not be reversed absent a clear abuse of that discretion amounting to a denial of justice and the burden is on the appellant to demonstrate such abuse. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). In considering whether the court’s discretion has been abused in a particular case, the circumstances of the case must be examined with emphasis on the reasons presented to the judge at the time. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979).

There is no abuse of discretion in this case because there was no showing that the panel was not fairly representative of the community. In this context, the random selection process does not guarantee a proportionately accurate cross-section of the community to match the demographics of an area, and a defendant is not entitled to a jury, a venire, or jury roll with proportionate numbers. Swain v. Alabama, 380 U.S. 202 (1965). Here, appellant contends that most of those who failed to respond to the summons to jury duty were men. However, there is no proof that men were purposely excluded from serving. See Taylor v. Louisiana, 419 U.S. 522 (1974). In fact, the final composition of the jury was seven men and five women. No prejudice is shown from either the size or the composition of the panel. The trial court acted within its discretion in denying the motion.

We have reviewed the record for all errors prejudicial to the appellant pursuant to Rule 11 (f) and have found none. Therefore, we affirm.