text:
    Earnest VICKERY and HBC/AG CARRIERS, INC. v. John Paul BALLENTINE and Raymond BALLANTINE, as Personal Representatives of the Estate of Ralph B. BALLANTINE, Deceased
    87-64
    732 S.W.2d 160
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Davis, Cox & Wright, by: Constance G. Clark, for appellant.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, for appellee.
   Tom Glaze, Justice.

Appellant Earnest Vickery, an employee of appellant HBC/AG Carriers, Inc., was driving a tractor-trailer rig on August 29,1983, when his truck jackknifed on a wet Highway 71 in Washington County and collided with the automobile in which Ralph B. Ballentine was riding. Ballentine died as a result of injuries suffered in the accident, and appellees, representatives of Ballentine’s estate, filed suit against appellants for Ballentine’s wrongful death. Appellees sought damages for Ralph’s pain, suffering and mental anguish prior to his death, and his medical, funeral and related expenses in the amount of $1.5 million; $600,000 for the decedent’s heirs’ mental anguish; and $1 million for the reduction in pecuniary value of the decedent’s estate. They also requested punitive damages in the amount of $ 1 million.

Appellants admitted liability for compensatory damages, and after a two-day trial in October 1986, the jury returned a verdict in favor of the estate for $32,520.00 in compensatory damages and $50,000 in punitive damages. Appellants appeal the award of punitive damages.

For their first point, appellants argue that Arkansas’s wrongful death statute, Ark. Stat. Ann. § 27-906 (Repl. 1979), does not provide for the award of punitive damages. Section 27-906 and its companion law on damages, Ark. Stat. Ann. § 27-909 (Repl. 1979), provide in pertinent part as follows:

§ 27-906. Whenever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then,. . ., the person who, or company, or corporation which would have been liable if death had ensued shall be liable to an action for damages, notwithstanding the death of the person injured . . .
§ 27-909. The jury, or the Court in cases tried without a jury, may fix such damages as will be fair and just compensation for the pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and/or mental anguish resulting from such death, to the surviving spouse and next of kin of such deceased person.

Appellants argue that, because our wrongful death provisions are laws enacted in derogation of common law, those laws should not be construed to impose a liability that is not clearly expressed. While the argument and logic offered by appellants has met with some success in other jurisdictions, it has little basis for support in this state. See Comment, The Arkansas Wrongful Death Statute, 35 Ark. L. Rev. 294, 304 (1981); see also, G. Holthus, Punitive Damages in Wrongful Death, 20 Clev. St. L. R. 301 (1971).

While this court has not, until now, directly addressed the issue of whether punitive damages are recoverable in wrongful death actions, we have sub silentio approved such awards on a number of occasions. See Mode v. Barnett, 235 Ark. 641, 361 S.W.2d 525 (1962), Chicago Mill & Lumber Co. v. Bryeans, 137 Ark. 341, 209 S.W. 69 (1919), and St. Louis, Iron Mountain & Southern Railway v. Robertson, 103 Ark. 361, 146 S.W. 482 (1912). We note, too, with approval, the recent federal district court case of Fields v. Huff, 510 F. Supp. 238 (E. D. Ark. 1981), which supports the appellees’ argument here that punitive damages are recoverable. In Fields, Judge Woods ruled that Arkansas law would support punitive damages in wrongful death actions, and, in excellent fashion, he sets out the history of this state’s Survival and Wrongful Death Acts and correctly analyzes this court’s cases decided under those laws. See also Brown v. Missouri Pacific Railroad, 543 F. Supp. 348 (W. D. Ark. 1982).

In view of the language employed in this state’s wrongful death provisions and the treatment afforded them by this court’s case law, we have no hesitancy in holding that punitive damages are recoverable in such actions. Clearly, an injured party may recover punitive damages as a consequence of a wrongdoer’s willful and wanton, tortious conduct. The purpose of our wrongful death laws is to allow an injured person’s action and claim for damages to survive, notwithstanding the person’s death. A fortiori, the surviving beneficiaries of the decedent, killed as a result of such tortious conduct, are entitled to recover those punitive damages the decedent would have recovered had he or she lived. We would note further the purpose of punitive damages is not to compensate the injured party but to impose a monetary penalty on the defendant and to discourage others from similar behavior. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). That purpose is unquestionably the same whether the injured person lives or dies as a result of defendant’s willful or wanton conduct. In fact, in such situations where a death ensues, it may be argued plausibly that punitive damages, considering their deterrent effect, are more readily justified.

We now consider appellants’ other two points for reversal: (1) that there was insufficient evidence to submit the issue of damages to the jury and (2) that the trial court erred in admitting into evidence certain hospital records regarding appellant Vickery’s history of drug abuse. Appellants are correct on both points.

Appellees offered the hospital records concerning Vickery to establish he had a drug habit. Appellants raise several meritorious reasons why the records were inadmissible, but the most compelling one is that the proof of Vickery’s history of drug abuse, if any, was never shown to predate or to occur at the time of the accident. The hospital records, bearing no name of the author, were dated July 19, 1985, or two years after the accident. The statements contained in those records reflect that Vickery admitted to a continued and extensive use of amphetamine pills but never reveals when such abuse occurred. For this reason alone, we must conclude the hospital records are not relevant and material and fail to support appellees’ attempt to show Vickery suffered from a drug habit at the time of the accident; that being so, the records were unquestionably prejudicial upon their admission into evidence.

Regarding the appellants’ sufficiency-of-evidence argument, we most recently had the opportunity to review an award of punitive damages and the type or quantum of proof that is necessary to support such an award. See National By-Products, Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987). There, this court reviewed our settled law pertaining to punitive damages. We stated that such damages are justified only when it is shown the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences, from which malice may be inferred. Although the appellants were clearly negligent in the instant case, the evidence falls short of the proof to show the willfullness or conscious indifference necessary to support an award of punitive damages. We should first note that the state trooper, James P. Baker, who investigated the accident, requested a blood alcohol test of the people involved in the accident. Baker testified that the test results reflected .000 on all of the parties, including Vickery; he related the drug screen of Vickery was negative, as well. The trooper said that he observed nothing to indicate that either alcohol or drugs played any part in causing the accident. Vickery denied the use of drugs prior to the time of the accident except some over-the-counter caffeine pills.

Aside from the appellees’ failed attempt to show Vickery’s connection with and use of drugs at the time of the accident, the record reflects Vickery’s fault was a result of a substantial case of negligence. When viewing the relevant and admissible evidence in appellees’ favor, the record shows that Vickery was aware, prior to the accident, of the dangers and treacherousness of Highway 71 north of Alma. Only minutes prior to the collision, another trucker had warned Vickery about Highway 71, telling him to “be alert” as it is a “rough old highway.” When Vickery left Alma in his 18-wheeler, it was misting and the road was slick. He admitted having seen a warning sign with 20 miles per hour on it, and said he “backed her (the truck) down” to 20 or 21 miles per hour. Trooper Baker’s opinion was that Vickery’s truck was going at least 30 miles per hour at the time of impact and that the truck was going too fast for conditions. Baker said the truck was in the other or wrong lane when the impact occurred and the slide marks made by the truck measured 84 feet.

As previously stated, the evidence in this cause — even when viewed in the light most favorable to the appellees — cannot sustain an award of punitive damages. Therefore, the trial court’s judgment must be modified accordingly.

Affirmed as modified.

Hickman, J., concurs and would not decide the first issue.

       More recently, in Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978), we denied punitive damages in a wrongful death action, but did so only because no actual damages had been awarded as a necessary underpinning for an exemplary award.


source: Caselaw Access Project

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

license: Public Domain

text:
    Seth WARD II v. GERALD E. PRINCE CONSTRUCTION, INC.
    87-95
    732 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987
    [Rehearing denied September 14, 1987.]

      Rose Law Firm, by: David L. Williams, for appellant.

      Jimmy D. Taylor, for appellee.
   Tom Glaze, Justice.

Appellee, a general contractor, performed certain remodeling work on appellant’s house. Appellee subsequently filed an action on account to recover for labor, materials, overhead and profit. Appellant answered, denying the account, and counterclaimed, alleging damages for appellee’s failure to complete the work and his unworkmanlike performance. The trial court entered judgment for appellee in the sum of $8,318.15 and dismissed appellant’s counterclaim. For reversal, appellant contends the trial court erred by (1) admitting into evidence a summary of material and labor charges when appellee failed to produce the original documents as required by A.R.E. Rule 1006, and (2) finding for appellee when he failed to prove an action on account. We affirm.

Concerning appellant’s first point, we turn to Rule 1006 of the Arkansas Rules of Evidence, which controls the admissibility of summaries. That rule provides:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

In the instant case, appellee introduced into evidence only the original invoices involving the major purchases that went into the remodeling of appellant’s house. Otherwise, the trial court permitted appellee to introduce a summary of all the expenditures for labor, materials and subcontracting he had incurred on appellant’s job. Appellee testified the summary was done on a per job basis, and kept weekly, showing the date of invoice, the amount due for material and the number of the check used to pay for the material or labor used on the job.

Appellant argues that while no Arkansas case has addressed Rule 1006 as yet, other jurisdictions and Arkansas decisions rendered prior to the adoption of the rule support the conclusion that the original underlying documents of a summary must be (1) shown to be admissible and (2) made available in court in order to assure the accuracy of the summary and to allow for effective cross-examination. He further urges this court to adopt the procedure of our sister state, Missouri, which requires that, in order to introduce a summary of records, a party must give notice of such intention within a reasonable time prior to actual use of the summary. See Union Electric Co. v. Mansion House Redevelopment Co., 494 S.W.2d 309 (Mo. 1973).

Rule 1006 does not require that a party notify an opposing party that he intends to introduce a summary. Instead, it merely mandates the originals, or duplicates, which are underlying documents of a summary, be made available for examination or copying or both, by other parties at a reasonable time and place. See Square Liner 360°, Inc. v. Chisum, 691 F.2d 362 (8th Cir. 1982). In addition, the rule allows the trial court discretion to order those documents be produced in court. Our court ordered production of such documents in Mhoon v. State, 277 Ark. 341, 642 S.W.2d 292 (1982). There, the trial court directed the state, during trial, to produce documents located in the Washington County collector’s office, after permitting an auditor to testify concerning his summary of findings extracted from those documents. Although the trial court offered defendant’s counsel a continuance to afford him an opportunity to examine the documents, counsel declined the offer. This court volunteered approval of the manner in which the trial court handled the matter.

Here, appellant objected to appellee’s summary evidence; he never requested the trial court to order the appellee to produce the original or duplicate documents in court. Although appellant’s failure to make such a request at trial would not, in itself, alleviate appellee’s responsibility to make the documents

available, the appellee did, more than two weeks prior to trial, inform the appellant that he could view and copy any and all documents at the appellee’s Little Rock office. In sum, the record reflects that certain documents, including itemizations of the materials and labor used on the job, were given appellant, and those underlying invoices not provided had also been made available to appellant if he had desired to review or copy them. Appellee’s action here was one on account, yet appellant, after receiving appellee’s itemized summary of materials and labor costs, through discovery, made no efforts to review the original underlying invoices; nor did he request their production at trial. At this point, we note appellant cites Square Liner 360° v. Chisum, supra, in support of his position that his right to examine underlying documentation and to prepare necessary challenges is not limited by his failure to request such documents during discovery. The court’s basic holding, however, was that there was a denial of effective cross-examination when, two hours before Chisum testified, opposing counsel was presented with fifty-five pages of Chisum’s handwritten summary, and documentation was not produced prior to his testimony. Further, opposing counsel was not notified Chisum would be called to testify until the day before he took the stand. The situation here is unlike that which occurred in Chisum. We are unable to hold, considering the circumstances here, that the trial court was clearly wrong in allowing the appellee to introduce his summary evidence.

As a part of his first argument, appellant also contends the appellee’s summary was not admissible as a business record. We find this contention without merit. Rule 803(6) of the Arkansas Rules of Evidence allows certain business records into evidence if they are made at or near the time of the acts or events by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record, all as shown by the custodian or other qualified witness. The requirements of Rule 803(6) were clearly met here. Appellee’s bookkeeper, Linda Thorpe, testified that her daily responsibility was to keep up with material and labor expenses for each job. She kept the respective invoices in the job folder and listed (summarized) the invoices as well as the checks used to pay those invoices. Thorpe’s testimony unquestionably identified the summary document she prepared as a business record, and we believe the trial court was correct in admitting it into evidence.

Finally, appellant argues the trial court erred in finding that the appellee proved his action on account. He cites Griffin v. Young, 225 Ark. 813, 286 S.W.2d 486 (1956), wherein this court, quoting from 1 C.J. Accounts and Accounting § 1 (1914), said, “To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty.” Because appellee’s complaint failed to detail the nature of his account, appellant urges appellee’s complaint was insufficient to state a cause of action on account. Appellant concedes that appellee’s failure to attach an itemization to his complaint could have been harmless except for his failure to present sufficient proof of damages. Again, appellant suggests appellee’s proof was deficient since he relied solely on his summary evidence to prove his account.

As noted in Burns v. Hall, 234 Ark. 943, 356 S.W.2d 235 (1962), the Griffin case did not suggest that the plaintiffs complaint was demurrable for failing to state a cause of action. Instead, the Griffin court reversed because the trial court erred in failing to grant the defendant’s motion to make the complaint more definite and certain. See also Everett v. Parts, Inc., 4 Ark. App. 213, 628 S.W.2d 875 (1982). No such motion was made here. Also, as we have already fully discussed, we believe the appellee’s proof, both itemized and summarized, was both admissible and, therefore, supportive of the judgment rendered by the trial court.

Accordingly, we affirm the trial court on all points.

Purtle and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I dissent because I do not approve of the tactics which are authorized by the precedent of the majority opinion.

Here, the creditor-plaintiff prepared a summary of its original records, but did not give the debtor-defendant notice of its intent to offer the summary in evidence at trial. The debtor went to trial apparently expecting the creditor to introduce the original records. The debtor had planned his cross-examination on questions about the original records. At trial the creditor did not bring the original records to court and was allowed to introduce a summary of the records. The debtor could not test the accuracy of the summary without the original records, and was therefore, denied effective cross-examination. In my opinion the authorization of such tactics is bad law.

The remedy would be for the majority to hold that A.R.E. Rule 1006 tacitly assumes that reasonable notice must be given of the intent to offer a summary. Such a holding would be in accordance with case law in other jurisdictions and a learned treatise.

E. Cleary, McCormick on Evidence § 233 (3d ed. 1984) provides:

It has long been held that records too voluminous to be conveniently produced and examined in court may be summarized and their import testified to by a witness, usually an expert, who has reviewed the entirety. The Federal and Revised Uniform Rules of Evidence (1974) recognize and clarify this helpful practice, and also provide appropriate safeguards by requiring that the originals be made available for examination and copying by other parties. These requirements, of course, tacitly assume that reasonable notice be given of the intent to offer summaries.

(Emphasis supplied.)

See also Annot., Requirement of Notice As Condition For Admission In Evidence of Summary of Voluminous Records, 80 A.L.R. 3d 405 (1977).

I do not find any authority to the contrary. The case cited in the majority opinion as authority for not requiring notice, Square Liner 360°, Inc. v. Chisum, 691 F.2d 362 at 376 (8th Cir. 1982) simply does not so provide.

In my opinion the majority, by failing to require notice of intent to introduce a summary, is unintentionally authorizing a type of trial by ambush.

Purtle, J., joins in this dissent.

       On June 11,1985, appellee filed his response to appellant’s request for admission and production of documents; appellee attached a number of documents and summaries, but also advised appellant or his representative could view and copy any or all the documents and other records during normal business hours.

       Appellee’s bookkeeper testified that appellant had called her requesting copies of the job invoices, and she sent him copies of all of them, but did not give appellant copies of appellee’s cancelled checks.


author: John Robert Graves, Special Justice.

text:
    Anthony Paul FREE v. STATE of Arkansas
    CR 86-188
    732 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Darrell E. Baker, Jr., Deputy Public Defender, and Francis D. Crumpler, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Connie C. Griffin, Asst. Att’y Gen., for appellee.
   John Robert Graves, Special Justice.

Certiorari was granted by this Court pursuant to Rule 29 (6) (c) as a result of a tie vote in the Court of Appeals, CA CR 85-205, opinion delivered October 8, 1986.

The appellant, Anthony Paul Free, was accused of unlawfully and feloniously engaging in deviate sexual activity with a person under the age of eleven (11) and was charged with five counts of rape. The jury returned a verdict of guilty on three counts sentencing him to ten (10) years on each count with two of the charges to run consecutively for a total of twenty (20) years. The appellant argues four points for reversal.

The appellant’s first point questions the voluntariness of his confession. The victim, age 9, was the nephew of the appellant, who had on occasion been entrusted with the child’s care, and had for a time lived with the boy and his parents. Subsequently, the victim reported to the police that he had been raped by the appellant. In response to the reported rape, Detective Sergeant Floyd Hancock went to the appellant’s residence and requested that he come to the Springdale police station to answer some questions concerning the alleged rape, but because of a job interview the appellant had previously scheduled, it was agreed that he would come to the station later that day. Upon his arrival, the appellant was properly informed of his Miranda rights, and for approximately one hour thereafter maintained his innocence. Sergeant Hancock then related to the appellant some information which he had learned at a seminar on sexual abuse. The officer told the appellant that adult males who have a preference for young males are extremely difficult to treat, and the first step is to admit the existence of the problem. He also stated that the Court could order counseling and there might be counseling available at the penitentiary. It was shortly after this discussion that appellant confessed to having had oral sex with the victim on five separate occasions.

The appellant argues that the tactics of promise and reward of counseling used by Sergeant Hancock elicited an involuntary statement which should have been excluded. The State has the burden of proving the voluntariness of all in-custody confessions and the trial judge’s decision will not be set aside unless it is against the preponderance of the evidence. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). It is well established that in deciding whether a statement was involuntarily made, we will make an independent determination of the evidence based on the totality of the circumstances and all doubts will be resolved in favor of individual rights and safeguards. Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974).

In Davis v. State, supra, we pointed out two factors which should be taken into consideration in examining the totality of the circumstances. First, it is necessary to look at the statements made by the interrogating officer. The appellant contends that Sergeant Hancock promised him that if he admitted he had a problem, the trial court could order counseling in lieu of a prison sentence. However, the record indicates that Sergeant Hancock never promised anything, but indicated there was only a possibility of receiving counseling if appellant admitted he had a problem.

Another way in which Sergeant Hancock’s statements could render the confession involuntary is if it was calculated to deceive the appellant. The appellant argues that Sergeant Hancock’s testimony indicates that his intent was to obtain a confession, and not to help the appellant get counseling. Nevertheless, we find no fault with an interrogator trying to persuade an accused to tell the truth or to answer questions, even though there may be misrepresentations of fact made by the interrogator, so long as the means employed are not calculated to procure an untrue statement and the confession is otherwise voluntarily made. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978) . A misrepresentation will not invalidate a confession by the defendant as long as it does not constitute an improper influence. Rouw v. State, 265 Ark. 797, 581 S.W.2d 313 (1979). In the case at bar, although Sergeant Hancock’s statements may have been intended to influence the appellant, we are unable to say that it was improper or contrary to basic notions of fairness, or that it procured untrue statements.

The second factor pointed out in Davis v. State, supra is the vulnerability of the defendant. Often it is extremely difficult to determine by an officer’s statement whether it is a promise of reward or leniency or merely an admonishment to tell the truth. For example, in Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979) , we allowed a statement by an interrogating officer that “things would go easier if you told the truth”, but “I’ll help you any way that I can” was not allowed in Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Whether or not these statements are improper in any particular situation turns on the vulnerability of the defendant more than on the wording of the officer’s statements, and in determining that vulnerability, it is proper to take into consideration such things as age of the defendant, lack of education, low intelligence, repeated or prolonged nature of questioning, and the delay between the reading of the Miranda rights and the confession. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Watson v. State, 255 Ark. 631, 501 S.W.2d 609 (1973).

The appellant was 22 years old. He was permitted to come to the police station on his own accord. The record indicates that Sergeant Hancock read each of the six rights on the form to the appellant and he acknowledged that he understood them. Sergeant Hancock had him read question two aloud in order to ascertain his ability to read. He also testified that the appellant did not appear to be under the influence of alcohol or drugs at the time of the questioning. In view of the totality of the circumstances, we find the trial court was correct in admitting the confession as voluntary.

The appellant next contends that the court erred in unduly restricting the examination of a witness, Tomlinson, and of the victim concerning prior statements made by the victim. The appellant attempted to question Tomlinson about a disagreement that he had had with the victim. The prosecution objected and the Court sustained. The proffered testimony indicated that if appellant’s witness had been permitted to testify, he would have said that he and the victim had had a disagreement during which the victim threatened to tell the police that Tomlinson was going to rape him.

Testimony regarding this issue was not relevant as to whether or not the appellant raped the victim. The appellant was attempting to introduce this testimony in an effort to show the similar circumstances surrounding the victim’s report of rape by the appellant and his threat of reporting Tomlinson. Not only was this irrelevant, but it was also inadmissible character evidence under A.R.E. 404.

The proffered testimony also may not be used to impeach under Rule 608 (b). This rule prohibits attacking the credibility of a witness by extrinsic evidence of specific instances of conduct other than the conviction of a crime.

The trial court also sustained an objection to the testimony concerning the same incident when the appellant recalled the victim to the stand after he had already given direct testimony and was cross-examined by the defense. In this instance, Rule 608(b) would normally allow questions regarding the specific incident involving the victim and Tomlinson, but the record indicates that the appellant’s only purpose for questioning the victim about the incident was to lay a foundation for Tomlinson’s testimony which had already been ruled inadmissible. We find no error in the trial court’s ruling on appellant’s true objection, and the appellant may not change his grounds on appeal. Reed v. State, 282 Ark. 492, 669 S.W.2d 192 (1984).

The appellant’s third point for reversal is that the trial court erred in refusing to exclude testimony of the victim regarding other crimes, wrongs, or acts allegedly committed by the appellant. During direct examination by the prosecution the victim testified that in addition to forcing him to perform oral sex, the appellant also subjected him to anal sex. The appellant objected to the testimony, but the court allowed it to stand.

Had this case not pertained to child abuse or incest, the evidence would have been inadmissible character evidence under Rule 404(b).

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.

However, we will allow such testimony to show similar acts with the same child or other children in the same household when it is helpful in showing “a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). In Williams v. State, 103 Ark. 70, 146 S.W. 471 (1912), testimony of prior carnal abuse was allowed, not for the purpose of proving a substantive crime, but in order to show the relation and familiarity of the parties, disposition, and antecedent conduct towards one another, and to corroborate the testimony of the victim. Such evidence helps in proving the depraved sexual instinct of the accused. Collins v. State, 11 Ark. App. 282, 669 S.W.2d 505 (1984).

The appellant also argues that the testimony should have been excluded because its prejudicial effect was greater than its probative value under Rule 403. We are of the opinion that any prejudice against the appellant was outweighed by the probative value of the testimony, and the court was not in error in allowing it to stand.

Finally, the appellant contends that the trial court erred in refusing to grant a mistrial following improper questioning of the appellant by the prosecution regarding prior acts. During the prosecutor’s cross-examination of the appellant, the following exchange occurred:

Q. Have you ever had a chance for therapy before, Mr. Free?
A. No.
Q. Have you ever done anything like this before?
A. No.
Q. Are you positive about that?
A. I am positive.
Q. Wasn’t there a time, three years ago, when something like this happened and you had a chance to get some therapy?
A. I was accused of it yes, but . . .

The question was objected to by the appellant and sustained by the court. The trial court did not grant appellant’s request for a mistrial, but instructed the jury to disregard the question by the following admonishment:

Ladies and Gentlemen, you are told to disregard in total any reference to any offer of therapy being extended in the past to this particular gentleman. That should be totally disregarded by you and not considered in any way.

In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we set forth the fundamental exclusionary rule which prohibits the introduction of evidence of other offenses for the purpose of persuading the jury that the defendant is a criminal and is likely to be guilty of the crime at issue. Basically, this rule rests upon the spirit of fair play. The accused, if convicted, should be convicted by evidence of the crime with which he is charged and not by throwing into the jury box other accusations of misconduct.

The case before us is similar to the circumstances found in Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), where the appellant, who was being tried for murder, was asked the question:

Mr. Maxwell, I believe you acknowledged to Mr. Mobley that in 1968 you pled guilty and were convicted of raping an eleven-year-old girl, and received a thirty-year . . .?

The defense then objected and requested a mistrial, but the trial court refused to grant the request opting to admonish the jury to disregard the question. We reversed the conviction on grounds that the use of deliberately unfair tactics such as the prosecutor’s question warrants nothing less than a reprimand in the presence of the jury or a mistrial.

Declaring a mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612(1979).The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 259 Ark. 464, 534 S.W.2d 207 (1976).

We do not find any evidentiary reason for permitting the question asked by the prosecutor. Even if a legitimate argument could be made for its appropriateness, we feel the danger of the unfair prejudice would absolutely require its exclusion. A.R.E. 403. We think it significant that the prosecuting attorney did not even argue that the question was proper. The prosecutor was aware that there had not been a conviction of the appellant “for something like this three years ago” and that the charges had been dropped. The question was asked appellant for no other reason than to obviously prejudice the jury. We find the admonishing statement of the trial court was not sufficient to remove the prejudicial error and the appellant’s request for a mistrial should have been granted. See Dean v. State, 272 Ark. 448, 615 S.W.2d 354 (1981).

Reversed.

Purtle, J., concurs in the result.

Glaze, J., not participating.


author: Per Curiam.

text:
    Rodney D. WILLIAMS v. STATE of Arkansas
    CR 87-117
    732 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered July 13, 1987

      Appellant, pro se.

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

Appellant Rodney D. Williams pleaded guilty to burglary and theft by receiving in 1981. Concurrent suspended sentences of three years were imposed. In 1983 the suspended sentences were revoked and petitioner was committed to prison. More than three years after the date of commitment, appellant filed a petition pursuant to Criminal Procedure Rule 37 seeking to vacate the 1981 guilty pleas. The trial court concluded that the petition was not timely and denied relief. Appellant filed a notice of appeal from that order and has now lodged the record in this court. He requests appointment of an attorney to represent him.

Rule 37.2(c) provides that a petition under the rule is timely only if filed within three years of the date of commitment. Grounds for relief in a petition filed after three years will be considered only if sufficient to void absolutely the judgment of conviction. See Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). A ground sufficient to void a conviction must be one so basic that the judgment is a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). This court will not appoint counsel to pursue the appeal of an untimely Rule 37 petition unless the petition states a ground sufficient to void the judgment. See Baker v. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986).

Appellant alleged in his Rule 37 petition that the burglary and theft by receiving charges to which he pleaded guilty in 1981 had been nol prossed and not refiled within one year. He further contended that his attorney was ineffective for not obtaining dismissal of the charges.

The trial court correctly concluded that the allegations in the petition were not sufficient to void a judgment. As there was clearly no merit to the petition filed in the trial court, it would be pointless to continue with an appeal of the lower court’s order dismissing it. The motion for counsel is denied and the appeal dismissed.

Motion denied and appeal dismissed.


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

text:
    Wayne DEAN v. STATE of Arkansas
    CR 87-31
    732 S.W.2d 855
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Attaway & Shumaker, by: Rick C. Shumaker, for appellant.

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

The appellant, Wayne Dean, was convicted of the “sale” of a controlled substance. He contends on appeal that he was convicted of a crime that does not exist because “delivery” of a controlled substance is what is prohibited by statute. We affirm his conviction.

On July 1, 1986, Dean was charged with the sale of a controlled substance (amphetamine), in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985). The information was amended to charge him with the sale of cocaine. The trial was held September 8,1986, and at the close of the state’s evidence, Dean moved for a directed verdict on the grounds that sale of a controlled substance is not a violation of § 82-2617. The trial court denied this motion. After the jury’s verdict of guilty was returned, Dean filed a motion for new trial based on the same grounds. This motion was also denied.

On appeal, Dean argues it was error for the trial court to deny his motions for directed verdict and new trial. Dean also objects to a jury instruction and the verdict form; to the sufficiency of the evidence against him; and to the admission into evidence of what he contends was hearsay testimony by an undercover agent.

Section 82-2617 provides:

(a) Except as authorized by this Act it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.

Arkansas Stat. Ann. § 82-2601 (Supp. 1985) defines “deliver” as follows:

(f) “Deliver” or “Delivery” means the actual, constructive or attempted transfer from one person to another of a controlled substance or counterfeit substance in exchange for money or anything of value, whether or not there is an agency relationship.

The information charged Dean with “sale” of a controlled substance in violation of § 82-2617. Likewise, the verdict form stated Dean was guilty of “sale” of a controlled substance, and the judgment and commitment form reflected that he had been convicted of “sale” of a controlled substance. In addition, at the arraignment, the trial judge explained to Dean that he was charged with the “sale” of a controlled substance and Dean stated that he understood the charges against him. During opening and closing arguments, however, the prosecutor referred to Dean’s having “delivered” the drugs and the jury was instructed using the statutory language of “delivery.”

In arguing that he was charged with a crime that does not exist, Dean relies on Fant v. State, 258 Ark. 1015, 530 S.W.2d 364 (1975). In that case, Doris Fant and James Gadd were charged with delivery of a controlled substance. They argued that the evidence did not support the verdict because their actions did not constitute the offense charged. Fant and Gadd argued the “procuring agent” defense, stating that delivery was made by them only as an agent for the purchaser or seller. This court rejected that argument explaining that the definition of “delivery” includes the actual delivery of a controlled substance in exchange for money, whether or not there is an agency relationship. We then stated: “The Arkansas statute does not prohibit sale. It prohibits ‘delivery’ as defined by the statute. . .” It is this latter language that Dean relies on in his argument that “selling” controlled substances is not a crime in Arkansas. We disagree.

In Fant, the appellants were arguing that, since they were merely the agents for the purchaser and the seller, they were not guilty of selling the controlled substance themselves. This court rejected that argument, pointing out that the “sale” of the controlled substance is not the crime, the delivery is, as defined in the statute, and they had delivered the controlled substance. Here, the reverse argument is being made and it must fail for the same reasons. Dean is arguing that there was no proof he delivered the controlled substances and there is no prohibition in the statute against selling. As stated in Fant, what is prohibited by § 82-2617 is “delivery” which is the actual or constructive transfer of a controlled substance in exchange for money or anything of value. § 82-2601. A “sale” is defined in Webster’s Third New International Dictionary as “a contract transferring the absolute or general ownership of property from one person . . . to another for a price.” It is readily apparent that the definition of “sale” is included in the definition of “delivery” as both involve a transfer of an item in exchange for money. While the information should have stated “delivery,” we fail to see how Dean could be prejudiced by the use of the different term. Our statement in Fant, that the Arkansas statute does not prohibit sale, was offered in a different context, but was nevertheless too broad, and obviously misleading.

Although the word “sale” was erroneously used, the information stated that Dean had violated § 82-2617, which is the correct statute. We have explained that it is enough if the information sufficiently informs the defendant of the charge or charges so that a defense can be prepared. Mayer v. State, 285 Ark. 73, 685 S.W.2d 143 (1985). In Mayer, thecourtfound there was never any doubt what charge the appellant faced and so the accused was not misled or her defense impaired. The same can be said in this case. The information sufficiently informed Dean that he was charged with transferring a controlled substance in exchange for money. He was not misled by the information, nor was his defense impaired.

For the foregoing reasons, we hold that the information charging Dean was sufficient and affirm the trial court’s denial of his motions for directed verdict and new trial. As Dean’s arguments about the jury instruction and verdict form are based on the same premise, these points are also without merit.

Dean next challenges the sufficiency of the evidence to show that he delivered a controlled substance. This argument was not raised by Dean before the trial court and accordingly we will not consider it on appeal. Johnson v. State, 290 Ark. 46, 716 S.W.2d 202 (1986).

Dean also contends that the trial court erroneously permitted an undercover agent to testify as to hearsay. The agent, Investigator Lambert, testified that he and another investigator were working in an undercover apartment when they received a telephone call from co-defendant, Tammy Stevens. Shortly after the call, Dean and Stevens came to the apartment. The investigators talked to Dean about buying some amphetamine or “crystal”. Dean said he could get the drugs and then, after making a phone call in their presence, accepted $280 from the investigator. Dean and Stevens left to purchase the drugs. About two hours later, Stevens returned alone and delivered cocaine. Lambert testified during the trial as follows:

Q: At the time that the narcotics was delivered to you, you didn’t see Mr. Dean, is that right?
A: That is correct.
Q: Okay. Did you ascertain his whereabouts?
A: Yes, sir.
Q: And who from?
A: Tammy Stevens.
Q: And where was he at?
A: She advised he was down in the car.

The state argues this statement was not hearsay, but rather was an admission by a party-opponent, defined by A.R.E. 801(d) (2) (v) as a statement offered against a party made by a co-conspirator during the course and in furtherance of the conspiracy.

We disagree with the state’s argument. Stevens’ statement was not an admission by a party-opponent. In Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983) we discussed the admissibility of statements made by appellants Spears and Cassell. We explained that because neither appellant implicated the other in these statements, they were each admissible as their own admissions. Here, the opposite is true. Stevens’ statement that Dean was in the car was not her own admission of involvement, but rather was a statement implicating Dean in the delivery. Since it does not fit within this definition of statements which are not hearsay, and since it was offered to prove the truth of the matter asserted — that Dean was in the car — it was inadmissible. We do not reverse for this error, however, because it was not prejudicial to Dean in light of the other evidence against him. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984). As we recounted earlier, there was testimony from the investigators that Dean came to the undercover apartment with Stevens, agreed to sell drugs to the undercover agents, made a telephone call in their presence, accepted money for the drugs from the agents, and left with Stevens to procure the drugs, promising to return to the apartment with the controlled substances. The fact that only Stevens returned does not affect the sufficiency of the evidence to convict Dean. In Foxworth v. State, 263 Ark. 549, 566 S.W.2d 151 (1978), we found the following evidence sufficient:

The State’s proof was to the effect that on both the occasions that were involved an undercover agent of the police telephoned Foxworth and arranged for the purchase of heroin at a specified washateria. On the first occasion Foxworth and Janelle Hamilton drove up to the washateria together, and Ms. Hamilton made the actual sale. On the second occasion, only Ms. Hamilton came to the washateria and made the sale. It is immaterial that Foxworth did not take part in the actual sales, for the jury could readily infer that he and Ms. Hamilton were acting together.

Here, the jury could also readily infer that Dean and Stevens were acting together. All that is required is that the evidence tends in some degree to connect Dean with the delivery and rises above a mere suspicion of guilt. Henderson v. State, 255 Ark. 870, 503 S.W.2d 889 (1974). The evidence was sufficient to support Dean’s conviction without the statement by Investigator Lambert.

Accordingly, Dean’s conviction is affirmed.

Purtle and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. The majority commits grave error by holding that the hearsay statement is harmless error. It is the only evidence which supports this conviction.

David Newbern, Justice,

dissenting. The majority quotes a

definition of “sale” as being a “contract” for transfer. It then quotes Ark. Stat. Ann. § 82-2601 (f) to define “delivery” as actual, constructive, or attempted transfer. They are not the same, therefore, I dissent.


author:
Jack Holt, Jr., Chief Justice. David Newbern, Justice, Jack Holt, Jr., Chief Justice.
      Tom Glaze, Justice,

text:
    Johnnie MYERS v. FIRST STATE BANK OF SHERWOOD
    87-31
    732 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987
    [Supplemental Opinion on Rehearing November 16, 1987.]

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

      Gruber Law Office, by: Rita W. Gruber, for appellee.

      Hays and Glaze, JJ., dissent.

   Jack Holt, Jr., Chief Justice.

Johnnie Myers, appellant, argues that he should have been discharged from liability as a guarantor of notes held by First State Bank of Sherwood, appellee, to the extent that First State Bank unjustifiably impaired the collateral securing those notes. We disagree and affirm.

First State Bank (FSB), made several loans, evidence by promissory notes, to Mary Myers and Commercial Insurance Specialists, Inc. (CISI). Mary was the president of CISI, and Johnnie Myers, her father, was chairman of its board of directors. Johnnie was originally the sole incorporator of CISI. The articles of incorporation were later amended to include other incorporators, however, Johnnie retained shares of stock which were later transferred to Mary.

One of the promissory notes given by CISI provided FSB with a security interest in the furniture, fixtures and equipment of CISI. This note, as well as the other notes, contained provisions to the effect that the security interest given in the note will also secure all other obligations between the parties. Therefore, the security interest in the furniture, fixtures and equipment applied to all notes.

Johnnie was not a party to the individual notes, but he executed two continuing general guaranty agreements with FSB obligating him to pay “if they were not paid at maturity.” When Mary was unable to continue making payments on the notes, FSB brought suit against Mary and CISI for the balance owing on the notes. FSB also named Commercial American Insurance, Inc. as a defendant, alleging that Mary had sold CISI, and some or all of the collateral, to Commercial American and that FSB had the right to possession of the collateral.

Later, FSB amended its complaint to add as defendants Dorothy Myers, Johnnie Myers, Louise Abbott, James Levander, Marjorie Levander, and Anne Turner, stating Mary and CISI had sold some of the collateral subject to the security agreements between CISI and FSB to these parties, and claiming its right to immediate possession of the transferred collateral. In addition, FSB sued Johnnie Myers for the unpaid balance of the notes under the continuing guaranty agreements he executed in its favor. Johnnie in turn filed a cross-complaint against the Levanders, Turner and Commercial American, alleging fraud in the acquisition of the assets of CISI, which caused CISI and Mary to default on the notes, and resulted in his potential liability as a guarantor. Prior to trial, the court, upon oral motion by FSB, entered orders dismissing with prejudice FSB’s claims against the third parties allegedly in possession of the collateral. Johnnie subsequently dropped his cross-complaint against these parties.

Johnnie contends FSB’s action in causing the dismissal of these claims unjustifiably impaired the collateral and thereby released him from liability as guarantor, to the extent that it precluded his right of recourse against the collateral. If FSB had not released the parties in possession of the collateral, Johnnie claims he would have been subrogated to the right of FSB to recover the collateral after he paid the balance owed on the notes.

Johnnie and FSB argue this case under the Uniform Commercial Code, in particular Ark. Stat. Ann. § 85-3-606(1) (Add. 1961), which provides:

Impairment of recourse or of collateral. (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; or
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse. [Emphasis added]

We do not consider this provision controlling, because it only applies to “any party to the instrument,” and does not encompass a person who has signed a separate guaranty agreement. In 5 W. Hawkland, Uniform Commercial Code Series, § 3-606:01 (1984), the author states:

Although intended to codify general suretyship defenses, section 3-606 is limited neither to parties generally regarded as sureties nor to parties who are “secondarily liable.” Rather it applies to any person who as a party to the instrument is injured by the impairment of either his right of recourse against another person or the collateral. Section 3-606 does not provide a discharge to persons who have signed a separate guaranty or other nonnegotiable instrument and not the instrument itself. To determine the rights of these parties, reference must be made to the general suretyship law of the jurisdiction, [footnotes omitted]

See also Ishak v. Elgin Nat’l Bank, 48 Ill. App. 3d 614, 363 N.E.2d 159 (1977); National Bank of Detroit v. Alford, 65 Mich. App. 634, 237 N.W.2d 592 (1976) and Fewox v. Tallahassee Bank & Trust Co., 249 So. 2d 55 (Fla. App. 1971).

Under our general suretyship law, a creditor has an obligation to preserve a surety’s right of recourse in the collateral. In First Nat’l Bank v. Waddell, 74 Ark. 241, 85 S.W. 417 (1905), this court stated:

The creditor who has effects of the principal in his hand or under his control for the security of the debt is a trustee for all parties concerned; and if such effects are lost through the negligence or want of ordinary diligence of the creditor, the surety is discharged, to the extent that he is injured, the same as if the effects had been lost by the positive act of the creditor.
In such case he is bound to be diligent in preserving such effects, to the same extent that any other trustee, similarly situated, is bound to use diligence. The kind of diligence required will be governed by the circumstances of each particular case.

72 C.J.S. Principal and Surety, § 150 (1987), provides substantially the same rule:

An obligee, who has securities or funds in his possession or control applicable to the payment of the secured debt, is under the obligation to the surety to use ordinary care and prudence to preserve them for the surety’s benefit, and the surety is discharged from liability if the creditor relinquishes or loses them, or consents to a material alteration of the security to the prejudice of the surety, or by any act deprives the surety of the right of subrogation.

Although § 85-3-606 is not applicable, it appears to have its genesis in the common law. For this reason, the court of appeals’ analysis in Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981) of the elements necessary to prove impairment of collateral under that section is helpful in assessing a creditor’s obligation to preserve a surety’s right of recourse in the collateral. In Van Balen, the court of appeals stated that the surety must prove two elements in order to be entitled to discharge — “that the holder of the note was responsible for the loss or impairment of the collateral, and the extent to which that impairment results in loss.” We apply the same test.

We disagree with Johnnie’s contention that it was FSB which was “responsible for the loss or impairment of collateral.” Or, in the language of First Nat’l Bank, supra, that the collateral was “lost through the negligence or want of ordinary diligence of the creditor.” Instead, it was the disbursement of the collateral by CISI, of which Johnnie was the chairman of the board of directors, and by Mary, Johnnie’s daughter, which caused the impairment and led to the dismissal of FSB’s claims for possession of the collateral.

Although the extent of Johnnie’s involvement in the operations of the business of CISI is not totally clear, the record reflects that Johnnie was the sole incorporator of CISI. Johnnie later transferred his stock to Mary, but remained deeply involved in the various loans to Mary and to the corporation. These loans were initiated upon his letter of credit to the bank and were secured by his guaranty agreements. In addition, he continued to help Mary “with things,” including negotiating with FSB for the best rates of interest on renewal of CISI’s certificates of deposit, and maintained his position as chairman of the board of the corporation. When the corporation was on the verge of collapse, and the notes became unpayable, Mary sold the assets of CISI, including the collateral, to Johnnie’s wife, brother- and sister-in-law, and to his ex-wife. Though a party to the litigation, Johnnie did not interpose any objections to the trial court’s order dismissing with prejudice FSB’s claim for possession of the collateral from the other parties to the suit, nor did he take issue with the trial court, sitting as the trier of fact when it determined that FSB was entitled to a judgment against him, Mary and CISI, jointly and severally. It was only prior to the entry of judgment that Johnnie filed a counterclaim alleging that, as a guarantor of the notes, he had a right to assert any rights enuring to the benefits of the principal. The trial court, by amended judgment dismissed the counterclaim and entered judgment against Johnnie.

While we agree that in ordinary circumstances a creditor will discharge a guarantor when it releases parties in possession of collateral securing a note, this rule should not discharge a guarantor when he is found by the trial court to be a person who at least in part created the problem. Johnnie admits in his brief that the transfer made finding the collateral more difficult, but asserts that this did not justify releasing those parties. Under all of the circumstances, the trial court found otherwise, and we cannot say that he was clearly wrong in that determination.

FSB filed a motion in this court pursuant to Sup. Ct. R. 9(e), for costs in supplementing the abstract, alleging that Johnnie’s abstract was deficient in failing to adequately abstract the pleadings and testimony necessary for consideration of this appeal. We find that his abstract was not in violation of Rule 9 and that much, if not all, of FSB’s supplemental abstract was not necessary to the determination of the issue on appeal. The motion for costs is therefore denied. See Arkansas State Hwy. Comm ’n v. Taylor, 238 Ark. 278, 381 S.W.2d 438 (1964).

Affirmed.

Newbern and Purtle, JJ., dissent.

Glaze, J., concurs.

David Newbern, Justice,

dissenting. First State Bank lost its claim to collateral when it inexplicably dismissed with prejudice its claims against those in possession. It thus breached its duty to the surety. While we may try to classify this decision as ad hoc in the future, I believe the precedent will prove to be bad, therefore, I dissent.

Purtle, J., joins this dissent.

Supplemental Opinion on Rehearing

November 16, 1987

[Rehearing denied December 14, 1987.]

741 S.W.2d 624

Secured transactions — impairment of collateral — court ERRED IN ORIGINAL OPINION — APPELLANT WAS DISCHARGED AS guarantor as a matter of law. — The Supreme Court erred in the original opinion in this case in concluding that appellant was responsible for impairment of the collateral, as the court’s concern should have been limited to the activities of the appellee creditor, who failed to preserve appellant’s right of recourse in the collateral by discharging its claim against all parties in possession with prejudice; thus, regardless of appellant’s involvement in the movement of collateral, appellee, in dismissing the claim with prejudice, discharged appellant as guarantor as a matter of law.

Jack Holt, Jr., Chief Justice.

Under Arkansas Supreme Court and Court of Appeals Rule 20(g), we consider petitions for rehearing which call our attention to specific errors of law or fact which our opinion is thought to contain. In doing so, we find a mistake in law in our opinion because we considered the wrong issue; that is, we concentrated on Myers’ activity as surety, rather than on what First State Bank of Sherwood (“FSB”) as creditor did with respect to the collateral.

In our opinion, we noted that a creditor has an obligation to preserve a surety’s right of recourse in the collateral. First Nat’l Bank v. Waddell, 74 Ark. 241, 85 S.W. 417(1905). However,we qualified this proposition by stating:

While we agree that in ordinary circumstances a creditor will discharge a guarantor when it releases parties in possession of collateral securing a note, this rule should not discharge a guarantor when he is found by the trial court to be a person who at least in part created the problem.
We disagree with Johnnie’s contention that it was FSB which was “responsible for the loss or impairment of collateral.” Or, in the language of First Nat’l Bank, supra, that the collateral was “lost through the negligence or want of ordinary diligence of the creditor.” Instead, it was the disbursement of the collateral by CISI, of which Johnnie was the chairman of the board of directors, and by Mary, Johnnie’s daughter, which caused the impairment and led to the dismissal of FSB’s claims for possession of the collateral.

In doing so, we erred in concluding that Myers was responsible for impairment of the collateral as our concern should have been limited to the activities of FSB as creditor. FSB failed to preserve Myers’ right of recourse in the collateral by discharging its claim against all parties in possession with prejudice. Regardless of Myers’ involvement in the movement of collateral, the fact remains that FSB, in dismissing the claim with prejudice, discharged Myers as guarantor as a matter of law. First Nat’l Bank v. Waddell, supra.

Rehearing granted.

Hays and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. Recently, this court had occasion to change a long-standing rule in creditor-debtor cases by deciding a secured creditor’s right to a deficiency judgment under the Uniform Commercial Code is absolutely barred if the creditor failed to notice the debtor as required under the Code. First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1986). In my view, the majority, by granting appellant’s rehearing, is modifying Arkansas’s settled general surety law as it pertains to a creditor’s obligation to preserve a surety’s right of recourse in collateral. It does so by applying Arkansas’s surety law to protect a guarantor — appellant in this case — whose actions were never intended to be protected under that law.

This court in First National Bank v. Waddell, 74 Ark. 241, 85 S.W. 417 (1905) stated the applicable rule of law as follows:

The creditor who has effects of the principal in his hand or under his control for the security of the debt is a trustee for all parties concerned; and if such effects are lost through the negligence or want ofordinary diligence of the creditor, the surety is discharged, to the extent that he is injured, the same as if the effects had been lost by the positive act of the creditor.
In such case he is bound to be diligent in preserving such effects, to the same extent that any other trustee, similarly situated, is bound to use diligence. The kind of diligence required will be governed by the circumstances of each particular case. (Emphasis supplied.)

In the present case, the appellant — not the appellee — was responsible for any impairment to the collateral securing the CISI loan. As pointed out in our earlier opinion, appellant was the sole incorporator and is the chairman of the board of CISI. He was deeply involved in his daughter and CISI obtaining the loans in issue here from the appellee. At the least, appellant as an officer of CISI must be imputed with the knowledge of his daughter’s disposal of the loan collateral. At most, a strong inference exists that appellant had actual knowledge of the disposition of the collateral, since his own wife acquired some of the assets (collateral), not to mention the acquisitions made by his other relatives. The evidence supports the conclusion that it was appellant’s and CISI’s actions that were responsible for any collateral impairment, not the actions or negligence of appellee. The trial judge’s holding is consistent with such a finding.

The trial judge’s decision is in keeping with Arkansas’s general surety law when holding the appellant liable under his guarantee agreement with the appellee. This court should not (and I cannot) say the trial court was clearly erroneous — which is necessary to justify the reversal of this case. Of course, this court’s granting of appellant’s petition for rehearing in this case also reverses this case. In reversing, we permit the ones who caused the wrongful disposal and impairment of the collateral to benefit from their wrong.

Appellee’s only mistake (other than making the loan to appellee’s daughter and CISI in the first place) was its concerted, but unsuccessful, effort to locate the loan collateral. Appellee’s attempt in this respect accorded appellant a favor to which he was unentitled by law. For this, the majority court punishes appellee by cancelling appellant’s surety obligation even though appellant was a co-author of disposing of the collateral, in part, to some of his relatives. While Arkansas’s law favors guarantors so as to protect their right of recourse, such actions as those manifested here by appellant-guarantor were never intended to be covered under that law.

In conclusion, I would add that my major difference with our earlier opinion was that it appeared this court was holding that the Code did not apply, but the opinion then proceeded to discuss § 85-3-606 as if that Code provision did apply. In doing so, the opinion made reference to Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981), which involved that statute. After having applied our state general surety law, I believe we were in error for discussing the Code any further. Todo so served only to confuse any reader of the opinion, leaving them to wonder what law we actually used in reaching our decision. My opinion then, and now, is that the general surety law controls, and Code provisions §§ 85-9-606 and -9-311 have no application to the facts of this case.

I would deny the petition for rehearing.

Hays, J., joins in this dissent.


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

text:
    Ronald WARD v. STATE of Arkansas
    CR 86-59
    733 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Joseph B. Brown, Jr., and Samuel Turner, Jr., for appellant.

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

An all white Crittenden County jury convicted Ronald Ward, a 15 year old black male, of murdering three white people and sentenced him to death. All of the peremptory challenges exercised by the prosecuting attorney, eight in this case, were used to strike black people from the jury. We find the state’s use of the peremptory challenge violated the Equal Protection Clause of the United States Constitution and denied Ward a fair trial. Therefore, the judgment is reversed and the case remanded for a new trial. Numerous other errors are alleged, and we will address those questions which are likely to arise at the new trial.

Last year, in the case of Batson v. Kentucky,_U.S. _, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the court overruled its decision in Swain v. Alabama, 380 U.S. 202 (1965), which allowed a defendant to challenge the exclusion of black people from juries. Swain was overruled because it “placed on defendants a crippling burden of proof.” Since Swain, prosecutors have continued the practice of excluding black people from juries through the use of the peremptory challenge. A peremptory challenge can be made for no reason at all; a challenge for cause is usually for actual or implied bias. Ark. Stat. Ann. §§ 43-1919,43-1920 (Repl. 1977). Challenges for cause by either party are unlimited. In a capital case the state has ten peremptory challenges, the defendant 12. Ark. Stat. Ann. §§ 43-1921, 43-1922 (Supp. 1985).

In Batson, the court held that a defendant who could make a prima facie case of purposeful discrimination shifts the burden to the state to prove the exclusion of jurors is not based on race. This prima facie case may be made by “showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Another way is to demonstrate ‘total or seriously disproportionate exclusion of Negroes from jury venires.’ Another example for making a prima facie case is by showing a “pattern” of strikes, or questions and statements by a prosecuting attorney during voir dire.

When a defendant makes a prima facie case, the state must adequately explain the racial expulsion. “Mere general assertions that its official did not discriminate or that they properly performed their official duties” are inadequate explanations. This does not mean black people cannot be struck from a jury. It means that if a defendant makes a prima facie case of intentional discrimination, the state must offer some explanation other than race. The United States Supreme Court ruled the state must “articulate a neutral explanation related to the particular case to be tried.” Batson v. Kentucky, supra. The trial judge must undertake a “sensitive inquiry” into the direct and circumstantial evidence available to decide if the state has made an adequate explanation. Batson v. Kentucky, supra.

In this case all of the state’s peremptory challenges were used to exclude black people. After about four black persons had been struck by the state, the state complained that the defense had injected race into the proceedings forcing “the state to strike some black jurors or a black juror that they otherwise would not be predisposed to strike. . .” The defense ceased those questions, yet the state used its remaining challenges to strike black people.

The trial judge was convinced that the state did not intentionally use its peremptory challenges to keep black people from the jury. But the trial judge did not conduct a “sensitive inquiry” into the matter. He did not require the state to explain why it had excluded the blacks when a motion for a mistrial was made earlier. A motion for a mistrial was repeated after the jury was selected and denied. The trial judge said that the state could or could not, as it saw fit, offer an explanation later.

The state did later explain, for the record, why each black person was excused. Some of the reasons were pretty thin. For example, one lady was excluded because she was unmarried, unemployed and lived on a large farm. The state said she appeared hostile. Henry Williams was struck because he had two children the age of the defendant. The state said the main reason he was struck was because he was “noncommittal.” The state said another juror was struck because an investigation uncovered the fact that her car had been used in cocaine trafficking. This information was not brought out during her voir dire examination. So this was not before the trial judge at the time of his ruling. Another prospective black juror was excused because he referred to Ward as a “child,” had read about the case, and heard rumors about it. We will not reiterate all the reasons given to exclude the eight black people, although one or two reasons given were acceptable. On the whole, the state clearly failed in its burden of proof. Actually, some explanations offered by the state were exactly the type of explanations the United States Supreme Court said were unsatisfactory.

Actions sometimes speak louder than words, and any prosecutor who uses all of his peremptory challenges to strike black people better have some good reasons available. We share Justice White’s concern that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread. Discrimination within the judicial system is of the worst sort. The United States Supreme Court spoke strongly on the matter in Batson v. Kentucky, supra:

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. (Cites omitted.) Discrimination within the judicial system is most pernicious because it is ‘a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.’

The best answer the state can have to a charge of discrimination is to be able to point to a jury which has some black members.

The murder victims in this case are two elderly ladies and a young boy. It was especially gruesome. Audrey Townsend, age 72, and Lois Townsend Jarvis, age 76, were found dead in their home in West Memphis, Arkansas, on the morning of April 12, 1985. Chris Simmons, age 12, a great-great nephew of the two ladies, was spending the night with them, which he usually did about once a month. The victims were stabbed many times. There was evidence that one of the women had been raped. A bloody butcher knife, evidently the murder weapon, was found in the kitchen sink. The house had been ransacked. A window had been broken to gain entry. The glass in a storm door was also broken as if entry was first sought through this door. A neighbor heard glass breaking sometime after 12:30 a.m. on April 12. The defendant was seen in the vicinity of the victims’ residence about 12:30 a.m. The police began their investigation by talking to neighbors and everyone who was in the locality about the time of the crime.

Ronald Ward was first interrogated on April 16. He was not a suspect, and he was not warned of his rights. His grandmother, Lena Ward, came to police headquarters during his interrogation. Ward made a statement that he saw a fight between a man and a woman at the victims’ house. He gave the police a description of the man. The police fingerprinted Ward at the conclusion of their questioning. Both Ward and his grandmother signed a consent to Ward’s being fingerprinted. Ward’s fingerprints were found on several objects in the house. In fact 21 separate prints of Ward’s were found. Ward was arrested on April 18 and questioned again. He admitted he had broken into the house, but he insisted that he was forced to do so by two men. Ward said he left before any of the victims were killed.

Ward testified at trial. This time he said two men, named Tony Boyd and Willie Reed, forced him to enter the house. He admitted he had lied several times in his statements to the police. He said the main person threatening him was Willie Reed. He said he was raped by one of these men and Willie held a gun on him while he had sexual intercourse with one of the women. Ward denied killing any of the victims or seeing them killed.

We will now address the various objections to evidentiary and procedural rulings by the trial court raised on appeal. No argument is made that there was not substantial evidence to support the conviction.

Prior to Ward’s bond hearing in municipal court, an attorney, Ken Cook, was appointed to represent him. Cook went into a hallway to talk to Ward and was accompanied by a police officer with a tape recorder. Cook told Ward that their conversation was being recorded. When Cook asked Ward if there was anything Ward wanted him to tell the judge, Ward said: “Umm, somethin’ came over me, it’s just like — I didn’t mean to, just somethin’ came over me, somethin’ just came over me, made me go in that house and stuff like that, I didn’t — I just wasn’t myself.” The trial judge admitted the statement.

Ward argues that the statement was inadmissible because Ward’s counsel was ineffective by not preventing him from speaking in front of the officer. This argument was not made to the trial court. At trial Ward argued the statement was inadmissible under the attorney/client privilege. A.R.E. Rule 502. The trial court ruled the statement was spontaneous and was not intended to be a privileged communication between attorney and client. We do not reach the argument of ineffective assistance of counsel because it was not raised below. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986).

After Ward was arrested on April 18,1986, he made a statement to the police. At the conclusion of the questioning, Ward asked the police if they wanted to know the location of the shotgun. They said yes and Ward told them it could be found in a culvert near the victims’ home. The trial judge ruled that during Ward’s interrogation he had asked for a lawyer at one point, and the officers did not cease their interrogation. All of Ward’s statement after that request was excluded from evidence by the trial judge. Ward argues that the shotgun should also be excluded, because this statement was made after Ward had asked for a lawyer. The trial court found the statement was spontaneous and Ward waived his rights. Edwards v. Arizona, 451 U.S. 477 (1981), does not prohibit the introduction of a statement if a defendant initiates a conversation after he has invoked his right to counsel and interrogation has ceased. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984). The officers testified they had concluded the interrogation, and as they were leaving the interrogation room, one said 35 minutes later, Ward asked them if they wanted to know where the gun was located. On appeal we consider the totality of the circumstances in such cases to determine if a defendant waives his right to counsel. Hickerson v. State, supra. In this case, we cannot say the trial judge abused his discretion in his determination.

Ward argues that the trial court should have granted a continuance so the defense could procure some witnesses who had been excused. This request was made late one night after the jury had found Ward guilty. The jury decided it wanted to finish the case. This circumstance will not likely recur at another trial. We do observe, however, that the trial judge should not just consider the desires of a jury in deciding whether to proceed into the night as opposed to reconvening the next day. The jury is not aware of a defendant’s rights. The sentencing stage in a capital case should be given every consideration, considering both the rights of the state and the defendant.

One theory, if not the main theory, of the defense was that the residence of the victims was used for drug trafficking. Two men, one named Ricky Smith, had planned to rob the place and kill three white people residing there. Ronald Ward’s name was mentioned as being “set up” to take the blame. The defense proffered the testimony of John Golden who testified he overheard Ricky Smith make these statements. Golden and his friend, Eddie Langford, drove Smith to Walls, Mississippi, for $20 the day before the murders. Smith was in a hurry, scared and shaking. Golden testified that Smith said “he did what he told him he was going to do,” and that Golden would hear about it in the news in a few days. Golden testified that on Monday, April 15, 1983, he told police officials about his conversation with Smith. Golden and a police officer drove to the house in Walls, Mississippi. He said they searched the house and found a brick of cocaine. Eddie Langford offered testimony to corroborate Golden’s version of the trip to Mississippi. The trial judge excluded the testimony as hearsay because it may concern another criminal episode.

Ward argues the testimony was admissible under an exception to the hearsay rule, A.R.E. Rule 804(b)(3), which provides:

Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.

The testimony of Golden and Langford is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. That may have been the basis for the trial court’s ruling, but it is not clear. On a retrial the trial judge should so determine before deciding if the proffered testimony is admissible. See 4 Weinstein, Evidence, ¶ 804(b)(3) [03] (1985); see also Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987).

The testimony of Ruth Jones was also proffered and refused by the trial judge. Jones stated that she lived across the street from the victims and that Chris Simmons told her two years before that Simmons’ mother, Belinda Simmons, was at home fixing “dope” with some other people. She also said a black man made a delivery to Belinda Simmons at the Simmonses’ house. The Simmonses had lived in the victims’ house about two years before the murders. The trial judge excluded this evidence as too remote to be relevant. We cannot say he abused his discretion in this regard. White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978).

A fourth witness, Deputy Sheriff Jim Robinson, was asked if he had tried to serve a subpoena on Ricky Smith, a/k/a James Brown and Harry Smith, at the Twentieth Century Motel. Robinson said he was told by the manager that Smith checked out the morning of April 12, 1985. This testimony was properly excluded as hearsay. A.R.E. Rule 802.

An argument is made that Ward was denied a complete record for appeal. There was a dispute over the record, and the case was remanded to settle the record, which the trial judge did but not to Ward’s satisfaction. This will not likely recur at retrial. However, the trial judge, as well as the bench in general, is reminded that there should not be “off the record” conferences. In Fountain v. State, 269 Ark. 454, 601 S.W.2d 862 (1980), we said:

All bench conferences and in chambers conferences should be ‘on the record’ unless they involve matters unrelated to the current trial, in which case, a note to that eifect may be made.

Such a practice will prevent disputes over the record which can result in the necessity for a new trial.

The appellant argues that subjecting a juvenile to the death penalty violates the constitution. We have held that the prosecuting attorney has the discretion to charge juveniles in any of three courts. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980). Arkansas does not expressly prohibit the death penalty for a juvenile. See Note, The Death Penalty for Juveniles: A Constitutional Alternative, 7 J. Juv. Law 54 (1983). We join the majority of those states presented with the question which have decided that the imposition of the death penalty on a juvenile is not a per se violation of the eighth amendment to the United States Constitution. State v. Valencia, 124 Ariz. 139, 602 P.2d 807 (1979); State v. Harris, 48 Ohio St.2d 351, 359 N.E.2d 67 (1976); Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984); High v.Zant, 250 Ga. 693, 300 S.E.2d 654 (1983); Thompson v. State, 724 P.2d 780 (Ok. 1986); Prejean v. Blackburn, 743 F.2d 1091 (5th Cir. 1984); Trimble v. State, 300 Md. 387, 478 A.2d 1143 (1984); State v. Battle, 661 S.W.2d 487 (Mo. 1983); Cannaday v. State, 455 So.2d 713 (Miss. 1984). We are aware that the United States Supreme Court has not ruled on the question but is expected to do so next term. Thompson v. State, 724 P.2d 780 (Okla. Crim. 1986), cert. granted, 107 S.Ct. 1284 (1987).

Ward argues that the trial judge should have excluded from evidence Ward’s fingerprints which were taken at his first interrogation. Ward makes two arguments. First, an Arkansas statute expressly prohibits fingerprinting of juveniles unless ihey are in custody for a violation of the law. Ark. Stat. Ann. § 45-419 (Supp. 1985). Second, the police conducted a “round-up” of individuals to gather evidence in violation of the constitution. See Davis v. Mississippi, 394 U.S. 721 (1969). We do not deem the action of the police in this case to be a round-up as in Davis. More importantly, both Ward and his grandmother, who was his guardian, signed a form expressly waiving any objection to Ward’s being fingerprinted.

The trial judge ruled there was a valid waiver of Ward’s right not to be fingerprinted. Ward argues that the statute plainly prohibits fingerprinting of a juvenile unless he is in custody for violation of the law. Undoubtedly, this law was passed to insure that juveniles would not have a criminal record unless they were charged. The existence of the statute does not mean such a right cannot be waived, because a constitutional right can be waived. The right to counsel can be waived in a juvenile proceeding. See Ark. Stat. Ann. § 45-413(2) (Supp. 1985). The trial judge inquired whether Ward knew what he was doing, whether his grandmother knew what she was doing, and whether they made a knowing waiver of Ward’s right. The judge found that they did. On appeal we determine if a defendant voluntarily and intelligently waived his rights based on the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1980). We find Ward waived his right not to be fingerprinted.

Ward was charged with capital murder pursuant to Ark. Stat. Ann. § 41-1501(l)(c) (Repl. 1977) in that he killed two or more people with premeditation and deliberation. After the trial commenced, the state offered evidence that a rape had occurred. Ward objected to the introduction of this evidence, and the judge ruled it was too late to make the objection; it should have been made before the trial began. The trial judge said the evidence of this felony was part of the “res gestae” of the crime and, therefore, relevant. We agree that the evidence was admissible regardless of the particular charge of capital murder. When other criminal acts are intermingled and contemporaneous with one another, they may be proved as part of the whole criminal scheme. Henderson v. State, 285 Ark. 493, 684 S.W.2d 231 (1985).

However, the trial judge was wrong when he changed the charge to the jury. He instructed the jury, not only on the offense described in the information, but also on the offense relating to murder during the commission of a felony, in this case rape. Ark. Stat. Ann. § 41-1501 (1)(a) (Repl. 1977). This was error. Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970). There are different elements of proof to these charges. According to the information, the state had to prove Ward acted with premeditation and deliberation and killed two or more people. As the jury was instructed, the state did not have to prove intent — it only had to prove that the murders occurred during the course of the felony. This is not like the case of Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), where there is no difference in the elements of the crime of rape when the question is how the rape was committed.

It is argued that the trial court was wrong in refusing to instruct the jury on Ark. Stat. Ann. § 41-1501(2) (Repl. 1977). We cannot find in the record where this instruction was requested and offered by the defense, where the trial judge ruled on it, or where an objection was preserved. Therefore, we do not reach the question. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986).

It is argued that the trial judge denied the defendant the right to surrebuttal evidence during the mitigation phase of the trial. We cannot say the trial judge did deny such a request because this was something that arose in an off-the-record conference. It should not recur upon retrial.

Finally, the argument is made that Batson v. Kentucky, supra, should be applied to the sentencing phase of this case as well as the case in chief. That case applies to any petit jury where the defendant is a member of a cognizable racial group. See also Roman v. Abrams, No. 85-2191, slip op. (2nd Cir. June 9, 1987).

We find the trial judge did not abuse his discretion in allowing the photographs of the victims into evidence. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).

Reversed and remanded.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The majority opinion is outstanding and will in time become a landmark decision. I do not write to distract from the opinion in any respect. I write instead to appeal to the state and the trial court to try the case in a straightforward manner with the facts and evidence properly presented. It is the responsibility of the trial judge to see that a full and complete record is preserved.

There are several specific errors which need highlighting. First, the defense attorney who interviewed the appellant while the sheriff recorded the statement was clearly ineffective and this statement should not have been admitted. One can not say with absolute certainty that the introduction of the statement did not affect the result of the trial. I doubt that it did, but there is ample other evidence and there is no need to risk the chance that the United States Supreme Court might reverse.

Secondly, some of the photographs tended to arouse prejudice and passion. These photographs were gruesome indeed. In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), we reversed because the photographs did not illuminate any issue which had not already been conclusively proved. I submit these extra gruesome photographs were not aimed at proof of any relevant matter.

I also feel it was error to exclude the testimony of Officer Robinson that he learned that the witness Smith had checked out of the motel when he went to serve a subpoena on him. He may state what he learned without giving hearsay testimony. Finally, the testimony of Jones and Golden should have been presented to the jury. Credibility of the witnesses is a matter for the jury. The trustworthiness of the testimony of witnesses is not a matter which has heretofore been considered within the discretion of the trial judge.

Any defendant is entitled to a fair and impartial trial before a properjury. Anything less is not acceptable. This trial was by no means the worst I have seen. However, upon retrial I hope the court will consider the above suggestions.