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

text:
    Adam Troy FORD and King David McNichols v. STATE of Arkansas
    CR 87-206
    753 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988
    [Rehearing denied July 5, 1988.]

      Charles E. Ellis, Deputy Public Defender, for appellants.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.

      PurtIe, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

Appellants Adam Troy Ford and King David McNichols were each charged with burglary and theft. They were represented by the same appointed counsel and tried jointly. Each was convicted of the offenses charged. McNichols was sentenced as an habitual offender to fifty years imprisonment while Ford was sentenced to thirty years.

Appellants argue that the court erred in: (1) refusing to grant a severance and appoint separate attorneys; (2) failing to grant a mistrial when, on cross-examination by the State, Ford alluded to McNichols’ prior imprisonment; (3) excluding extrinsic evidence of a prior inconsistent statement by a State’s witness; (4) allowing the testimony of a surprise “rebuttal” witness; (5) allowing the State’s improper exercise of peremptory challenges striking several potential jurors of appellants’ race; (6) allowing certain hearsay testimony; (7) refusing to instruct on the accomplice status of several of the State’s witnesses; and (8) failing to grant a directed verdict as there was insufficient evidence corroborating the accomplice testimony. We find no error and affirm.

At trial, McNichols’ sixteen-year-old nephew testified that on March 27,1987, he, his uncle, and Ford broke into the Cross Town Liquor Store in Blytheville, Arkansas. The nephew testified that the group took beer, cartons of cigarettes, and several boxes containing liquor. Other testimony indicated that a gun was also taken. Appellant McNichols had been staying at the residence of Jo Ann and Johnny Wyllis. Jo Ann testified on behalf of the State that on the morning following the burglary she awoke to find McNichols, appellant Ford and McNichols’ nephew, together with liquor and cigarettes, in her house. She stated that she did not know where the liquor came from, that she thought it may have been stolen, but she did not know. In any event, she asked the three parties to help her put it in the car so that she could take it away from the house. Jo Ann drove the appellants McNichols and Ford, McNichols’ nephew, Johnny Wyllis, and another party to a tavern, Fat Daddy’s, where McNichols sold portions of the stolen liquor to the tavern owner, William Harvey. Jo Ann’s testimony was corroborated to some extent by Johnny Wyllis.

On the morning following the burglary, officers were observing the activities surrounding the Wyllis vehicle and Fat Daddy’s tavern. They later stopped the Wyllis vehicle after it left the tavern with its six occupants. The officers were given consent to search the vehicle and recovered a gun, cartons of cigarettes, and bottles of liquor. Other bottles of liquor, empty beer bottles, and empty beer cartons were found at the Wyllis home.

At trial, the owner of the Cross Town Liquor Store identified several boxes of liquor seized from Fat Daddy’s tavern as those stolen from his store. He also identified other items of evidence that had been seized — including his gun. The owner of Fat Daddy’s testified that the boxes of liquor identified earlier were those purchased from McNichols.

Appellant Ford testified that he was at Fat Daddy’s when the others arrived and that he merely obtained a ride from them when they left. Ford claimed he had no knowledge of the burglary and had been with a friend, Betty Lark, at the time the burglary was to have taken place. Betty Lark agreed. Her testimony was corroborated by another witness. At some point in the trial, Sharon McNichols informed the prosecutor that she had listened to the testimony of Betty Lark and that it was a fabrication as she had been with Betty Lark at the time Lark claimed to have been with Ford. Sharon McNichols was allowed to testify to that effect as a rebuttal witness for the State over objection by appellants. Appellant McNichols did not testify.

I. SEVERANCE AND SEPARATE ATTORNEYS

Before trial, appellants’ court-appointed counsel filed a motion for severance based upon the possibility of a conflict of interest due to his inability to engage in meaningful communication with McNichols and because McNichols had a more extensive felony record than Ford. Appellants’ counsel also asked that separate attorneys be appointed because he felt that in his representation of one appellant he would be required to “point a finger at the other.” Additionally, appellant McNichols informed the court that he did not want counsel of record to represent him. On the other hand, both appellants informed the court that they did not want a separate trial. The court denied the motions to sever and for separate attorneys.

At trial, appellants’ counsel repeated his motion for a severance when, on cross-examination of Ford by the State, it was revealed that Ford and McNichols met while in the “joint.” Appellants argue this supported the motion to sever in that counsel was hampered in his protection of McNichols for fear of lessening Ford’s credibility as a witness. At the close of trial, Ford indicated that he wanted to call McNichols as a witness to testify that Ford had nothing to do with the burglary. Despite assurances from the court that the State would not be permitted to cross-examine as to prior convictions, McNichols would not testify. Appellants’ counsel indicated that this situation could have been avoided had separate attorneys been appointed, and he now had conflicting obligations in his advice to each appellant.

The trial court’s decision denying a motion to sever will not be disturbed unless this court finds that there has been an abuse of discretion. Holloway v. State, 293 Ark. 438, 738 S.W.2d 796 (1987); Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987); Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). In determining whether or not a severance should be granted, the factors to be considered include: (1) whether the defenses are antagonistic; (2) whether it is difficult to segregate the evidence; (3) whether there is a lack of substantial evidence implicating one defendant except for the accusation of the other; (4) whether one defendant deprived the other of peremptory challenges; (5) whether one defendant felt compelled to testify because the other chose to do so; (6) whether one defendant had a criminal record while the other did not; and (7) whether the evidence against one defendant was stronger than the evidence against the other. Wilkins, supra; Burnett, supra; McDaniel & Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983).

In the case at bar, only the sixth and seventh factors are implicated. Both Ford and McNichols had prior convictions. While McNichols’ record may have been more extensive, that fact does not by itself warrant our finding an abuse of discretion. In light of the testimony of Jo Ann Wyllis and McNichols’ nephew, the evidence against McNichols by no means so outweighed that against Ford as to warrant a severance; nor does the record reflect that either defendant ended up accusing the other. As to the statement on cross by Ford that he met McNichols in the “joint,” Ford had already testified to that effect on direct in response to defense counsel’s inquiry as to whether Ford knew McNichols. Neither appellant wanted to be tried separately, and McNichols’ failure to testify in Ford’s behalf would not necessarily have been remedied by a severance. Taken as a whole, we simply cannot conclude that the trial court erred in denying the motion to sever.

On the related point of separate attorneys, it is settled that requiring or permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475 (1978); Ingle v. State, 294 Ark. 353, 742 S.W.2d 939 (1988). Rather, appointing or permitting a single attorney to represent co-defendants creates only a “possible” conflict of interest that could prejudice either or both clients. Burger v. Kemp,_U.S._, 107 S. Ct. 3114 (1987); Ingle, supra. That possibility does not justify an inflexible rule that would presume prejudice in all cases. Id. Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that the conflict adversely affected defense counsel’s performance. Ingle, supra; Cuyler v. Sullivan, 446 U.S. 335 (1980).

A good example of active representation of conflicting interests which adversely affected counsel’s performance may be found in this court’s decision in Ingle. Here, however, appellants have failed to demonstrate evidence of record which rises to that level. Any disparity in the evidence of guilt as between appellants was minimal, and neither accused the other of committing the crime. Ford’s desire that McNichols testify coupled with McNichols’ refusal to do so, while perhaps indicative of a conflict between counsel’s obligation to protect McNichols’ right not to testify and Ford’s desire to present exculpatory evidence, did not have the adverse effect counsel would ascribe to it. For example, assurances were obtained from the court that cross-examination of McNichols would be limited should he decide to testify, while at the same time Ford was able to present evidence through other witnesses that he had nothing to do with the burglary (McNichols’ proffered testimony). Although it would have been more appropriate under the circumstances for the trial court to have provided separate counsel for the appellants, our review of the record does not convince us that defense counsel actively represented conflicting interests to the extent that his performance was adversely affected.

II. MISTRIAL

Appellants argue that because the State elicited statements from Ford on cross-examination to the effect that Ford first met McNichols in the “joint” and that joint meant the facility at Tucker, the trial court should have declared a mistrial. We will not dwell on this point because it is clear that counsel for the defense “opened up the line of questioning.” Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983). On direct examination of Ford, defense counsel inquired whether Ford knew McNichols. Ford explained that they first met in the “joint.” Counsel then asked, “Is that where you first met him?” Ford responded in the affirmative. Our decision in Berry is controlling, and we find no error on this point.

III. PRIOR INCONSISTENT STATEMENT

At trial, McNichols’ nephew testified that he, McNichols, and Ford committed the crimes charged. Defense counsel questioned the witness about a prior inconsistent statement in which the witness stated that Ford had not participated in the burglary. The witness admitted making the statement and tried to explain the inconsistency. Citing Rule 613(b) of the Arkansas Rules of Evidence and Lewis v. State, 288 Ark. 595, 709 S.W.2d 56 (1986), appellants challenge the trial court’s refusal to admit the written statement into evidence. The trial court was correct.

The issue before us presents the question: under what circumstances is extrinsic evidence of a prior inconsistent statement admissible at trial where the witness admits having made the prior inconsistent statement? Ostensibly, prior inconsistent statements of a witness may be used either for impeachment purposes or as substantive evidence — with limitations. In Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981), we cited Rule 801(d)(1) of the then Uniform Rules of Evidence and explained that our former rule that prior inconsistent statements were admissible only for impeachment purposes and not as substantive evidence had been abolished in civil cases and modified in criminal cases.

A. Substantive evidence

Rule 801 (d)(l)(i) makes clear that in criminal cases, if the witness testifies at trial and is subject to cross-examination concerning his prior statement, the statement is not hearsay if it is inconsistent with the trial testimony of the witness and if at the time the prior inconsistent statement was made, it was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. In the case before us, the statement by McNichols’ nephew was an out-of-court statement to someone within the sheriffs department and, while it was notarized, the statement clearly does not meet the requirements of Rule 801(d)(1) (i) that it must have been subj ect to the penalty of perjury. Accordingly, the statement would not have been admissible at trial as substantive evidence. Lewis, supra; Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983).

B. Impeachment

In relevant part, Rule 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the statement. Prior to the adoption of Rule 613(b), it was well established that when a witness admits making a prior inconsistent statement, extrinsic evidence of that statement was not admissible. Smith v. State, 258 Ark. 601, 528 S.W.2d 389 (1975), cert. denied, 425 U.S. 912 (1976). In Roberts, supra, which was decided after the adoption of Rule 613(b), we adhered to our rule and, recently, in Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987), we stated:

The ruling in the Roberts case that the prior statement itself could not be quoted into evidence as part of the impeachment process was consistent with prior Arkansas cases, and indicated that the adoption of A.R.E. 613 had not presaged any change in that respect.

We also cited a Law Review case note at 37 Ark. L. Rev. 688 (1983), which points out that there is a split among the jurisdictions on the issue of whether extrinsic evidence of a prior inconsistent statement is admissible for impeachment purposes once the witness has admitted making the statement.

While we are cognizant of the policy considerations in favor of allowing extrinsic evidence as part of the impeachment process, we adhere to the position taken in our former cases. As was so aptly stated by the court of appeals in Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983), “[a]n admitted liar need not be proved to be one.” In light of the foregoing, we find no error in the trial court’s refusal to allow introduction of extrinsic evidence of the prior inconsistent statement made by McNichols’ nephew once the witness had admitted making the statement.

IV. REBUTTAL WITNESS

At the beginning of trial all witnesses were removed from the courtroom so that no witness would be able to hear the testimony of another. See Rule 615 of the Arkansas Rules of Evidence. At some point in the trial, Sharon McNichols, whom neither the State nor the defense had planned on calling, came forward and informed the prosecutor that she had listened to the testimony of Ford’s alibi witness and that the testimony was a fabrication. The court allowed the State to use Sharon McNichols as a rebuttal witness over objection by appellants.

Appellants cite McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980), and Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977), and concede that in those cases this court affirmed the trial court’s decision to allow the testimony of the rebuttal witness but argue that the cases should not be controlling. We disagree.

The discretion of the trial court in refusing the testimony of a rebuttal witness who has violated the sequestration rule is narrow. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). That discretion is more readily abused by excluding the testimony than by admitting it. McCorkle, supra. Furthermore, violation of the sequestration rule through no fault of the party calling the witness is a matter which goes to the credibility of the witness — rather than competency to testify — and the power to exclude the testimony of a witness who has violated the rule should be “rarely exercised.” Woodard, supra.

Our general rule is that the trial court’s narrow discretion on this issue can be exercised to exclude the witness only “when the noncompliance is had with the consent, connivance, or procurement of a party or his attorney.” Blaylock, supra. There being no evidence in the case before us that the State had any prior knowledge of the existence of the witness, whether she was in the courtroom, her potential as a rebuttal witness, or to what she might testify, we find no error in the trial court’s decision to permit the testimony.

V. PEREMPTORY CHALLENGES

Citing Batson v. Kentucky, 476 U.S. 79 (1986), and Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), appellants argue that the State’s use of its peremptory challenges demonstrated a pattern of strikes sufficient to establish a prima facie case of discriminatory purpose which shifted the burden to the prosecution to give a sufficiently neutral explanation for the strikes in the context of a “sensitive inquiry” by the court. According to appellants, the prosecution did not meet its burden as concerns two of the excluded jurors. We conclude that appellants failed to establish a prima facie case of discriminatory purpose and that we therefore need not concern ourselves with the requirements of a sensitive inquiry.

Both Ford and McNichols are black. Of the potential jurors on the jury panel, the initial group of six which were examined contained three members of the appellants’ minority race. Two of the three minority veniremen were struck — the third was seated.

Exercise of the prosecution’s peremptory challenges in a manner which does not result in an “all-white” jury, while by no means determinative of the question of whether there is evidence of discriminatory purpose, is of some significance. We said in Ward, “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.” On a related question, this court recently stated:

[W]here the use of a peremptory challenge results in exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus invoke the “sensitive inquiry” requirement.

Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988).

This does not necessarily mean that where more than one minority juror of the same race as the defendant is excluded by a peremptory challenge, we automatically have a prima facie case of discriminatory purpose; rather, we look to the record to see if the prosecution’s exercise of its peremptory challenges evidences a pattern of strikes. In the case before us, we do not find at that point in the proceedings when the first group of veniremen had been examined that there was evidence of a pattern of strikes. The prosecution still had peremptory challenges remaining and had not exercised its challenges in a manner so as to exclude all veniremen of appellants’ race.

Later in the jury selection process, a second group of prospective jurors was examined in which there was one black. The State exercised two peremptory challenges to members of this group, which resulted in the strike of the black and a venireman not of appellants’ race. In regards to the strike of the black, the evidence is overwhelming that the strike was not racially motivated. The record clearly reflects that the excluded juror had a daughter who was charged by the State with second degree murder and had a deceased son who had been prosecuted on several occasions. Again, as to this second group, we find no pattern of strikes.

This court’s concern over the possibility that peremptory challenges might be used to exclude potential jurors solely on account of their race is evidenced by our decisions in Ward and Mitchell. However, the record before us reveals that after the jury was seated — including the one juror of appellants’ race — the State had peremptory challenges remaining. Further, the State did not exercise all of its peremptory challenges to exclude just members of appellants’ race — a fact not present in Ward. Based upon our review of the record, we simply cannot conclude that taken as a whole appellants established a prima facie case of discriminatory purpose in the State’s exercise of its peremptory challenges.

VI. HEARSAY

Ford and McNichols argue that the court erred in allowing the hearsay testimony of Officer Barbara Morris in which she testified as to communications received from her department which caused her to observe the Wyllis vehicle while it was parked in front of Fat Daddy’s tavern. Not only do appellants fail to cite any authority or make convincing argument on this point, Garrett v. State, 294 Ark. 556, 744 S.W.2d 731 (1988), but also we fail to see that hearsay was in fact introduced.

At a bench conference, the prosecutor stated that he wanted to introduce testimony through Officer Morris that she had been told by her captain that the Blytheville force contacted the police department and told them that individuals were selling stolen liquor and cigarettes at the tavern. However, that testimony was never introduced. The officer’s only statements at trial in this regard were that she was watching the vehicle at a particular time and that she did so in response to communications she had received. There was no elaboration as to the contents of those communications. As such, we find appellants’ arguments on this point to be without merit.

VII. ACCOMPLICE STATUS OF WITNESSES:

VIII. FAILURE TO DIRECT VERDICT

As to their two final points on appeal, appellants first argue that because the accomplice status of Jo Ann Wyllis, Johnny Wyllis, and William Harvey was in dispute, resulting in a question of fact for the jury, it was error to refuse appellants’ proffered AMCI instruction (AMCI 403 — Accomplice Status in Dispute — Corroboration). Appellants also claim that the court erred in not directing a verdict in appellants’ favor as there was insufficient evidence to corroborate the accomplice testimony of these witnesses.

One’s status as an accomplice is a mixed question of law and fact, and the issue should be submitted to the jury where there is evidence to support a jury’s finding that the witness was an accomplice. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981); Powell v. State, 231 Ark. 737, 332 S.W.2d 483 (1960). It is the defendant’s burden to prove that a witness is an accomplice whose testimony must be corroborated. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). An accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either advises, encourages or aids another in the planning or commission of the offense, or fails to make a proper effort to prevent the commission of the offense provided he has a legal duty to prevent it. Scherrer, supra. Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice. Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983).

Ford and McNichols were charged with burglary and theft in connection with the items taken from the Cross Town Liquor Store. Our review of the record discloses no evidence by which a jury could conclude that either Jo Ann Wyllis, Johnny Wyllis, or William Harvey could be considered as having advised, aided or encouraged Ford and McNichols in the planning or commission of the burglary and subsequent theft which occurred at the liquor store. In short, they were not accomplices, and appellants were not entitled to AMCI instruction 403.

Appellants’ second point is also without merit. Generally, a conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Scherrer, supra. Corroborating evidence is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Id. Here, the evidence goes much further.

Gary Edwards, the owner of the liquor store, corroborated the testimony of McNichols’ nephew, who was an accomplice, as to the mode of entry by which the store was broken into and the kinds of items taken. Edwards further identified his gun found in the car in which appellants were riding as stolen from the store. Other stolen items seized both from the car and from the residence where Ford and McNichols spent the night were identified by Edwards. He also identified the liquor seized from Fat Daddy’s as his stolen property. That same liquor was identified by the owner of Fat Daddy’s as the liquor purchased from McNichols. Officers Morris and Tunson identified several of the items introduced at trial, such as cartons of cigarettes and liquor, as items taken from the car and the residence occupied by Ford and McNichols. Officer Morris placed appellant Ford not only in the car but also at the tavern.

We have already determined that Jo Ann Wyllis was not an accomplice. Her testimony, in addition to that set out above, that she found the appellants in her residence shortly after the burglary with liquor and cigarettes (later identified as stolen) which they transported to Fat Daddy’s, where some of the liquor was sold, directly connects both appellants to the crimes charged. In addition, such evidence further corroborates the testimony of the accomplice, McNichols’ nephew. For these reasons, we find no error in the trial court’s failure to direct a verdict in appellants’ favor for lack of corroborating evidence.

Affirmed.

Purtle, J., dissents in part and concurs in part.

John I. Purtle, Justice,

concurring in part; dissenting in part. The majority opinion is correct in concluding the evidence was sufficient to sustain the conviction of McNichols. It is incorrect in finding sufficient evidence to support the conviction of Ford. Therefore, I respectfully dissent in part.

The statute on accomplice testimony, Ark. Code Ann. § 16-89-111(e)(1) (1987), provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

We have amplified the statute by saying: “When the corroboration is weighed, the testimony of the accomplice must be completely disregarded. The independent testimony may be circumstantial, but it must be substantial evidence and must do more than raise a suspicion of guilt.” Combs v. State, 286 Ark. 74, 76, 690 S.W.2d 712, 712-713 (1985), citing Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976).

Excluding the testimony of McNichols’ nephew, who clearly was an accomplice, the majority opinion notes only testimony placing Ford at the tavern when the liquor was sold, in the car departing from the tavern with McNichols, and in the place where McNichols spent the night. While a witness disputed the alibi testimony given by Ford and Betty Lark, that does not tend to connect Ford with the commission of the offense.

In its conclusion, the majority opinion emphasizes that the testimony of Jo Ann Wyllis connects Ford with the crime. She testified that she awoke to find McNichols, McNichols’ nephew, and Ford in her house along with the liquor and cigarettes. I know of no case holding that being in the presence of the fruits of a crime sufficiently tends to connect an accused to the crime’s commission to corroborate the testimony of an accomplice. Such a connection could only result if the circumstances were such that the accused’s presence could have hardly any other explanation, e.g., being in possession of the fruits of a crime, such as a stolen automobile. There is no substantial evidence tending to connect Ford with the crime other than the testimony of an accomplice. Without the testimony of McNichols’ nephew, Ford’s conviction can rest upon nothing other than guilt by association. I would reverse and dismiss Ford’s conviction. Combs v. State, supra.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Robert E. SAUNDERS, and Gloria L. Saunders, d/b/a Royal Coach Car Wash v. George O. KLEIER, Tom Tucker, Irene Tucker, and Mark Tucker, d/b/a Mark Tucker Enterprises
    88-20
    751 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988

      Phillip J. Taylor, for appellants.

      Taylor & Vandergriff, by: David B. Vandergriff, for appellee George O. Kleier.

      Matthew Horan, for appellee Tom Tucker.
   Jack Holt, Jr., Chief Justice.

The appellants, Robert and Gloria Saunders, garnishees below, bring this appeal from an order of the circuit court dismissing with prejudice their petition to interplead funds and their related request for attorney’s fees. The Saunderses contend that the court abused its discretion in denying attorney’s fees and that the interpleader action should not have been dismissed without a hearing. It is also argued that the default judgment entered against the debtor was improper, as was the clerk’s disbursement of the garnished monies without written order of the court. We find no error and affirm.

Separate appellee George O. Kleier filed suit against appellees Tom and Irene Tucker for failure to pay the final month’s rent on a lease. Irene Tucker answered and defended; Tom Tucker did not. Kleier filed a motion for summary judgment against Irene Tucker which also alleged that Tom Tucker was in default. Irene Tucker responded by filing an affidavit asserting that the final month’s rent had been paid in full. The court denied the summary judgment motion, but entered a default judgment against defendant Tom Tucker.

Kleier then obtained a writ of garnishment against the Saunderses. Their response to the writ admitted that they were indebted to Tom Tucker in the amount of $26,420.00. The court entered an order directing that the Saunderses pay Kleier (by deposit with the court) the amount of the default judgment against Tom Tucker.

The Saunderses made the first payment and notified Tom Tucker of that fact. Tucker responded that he had assigned the debt to Mark Tucker d/b/a Mark Tucker Enterprises, but nonetheless claimed a right to the monies deposited with the court as he had not received notice of the garnishment and suggested that the Saunderses not pay additional monies into the registry of the court unless served with a second writ of garnishment. Tucker also filed a motion to quash the garnishment.

As a result of these entanglements, the Saunderses filed an interpleader action asking the court for a determination as to whom the Saunderses should pay and that they be awarded attorney’s fees. Without holding a hearing, the court dismissed the Saunders’s interpleader action without prejudice and denied the motion for attorney’s fees and Tucker’s motion to quash. Thereafter, the garnishor, Kleier, informed the court that the judgment had been satisfied and that he wanted to dismiss with prejudice his suit against Irene Tucker. The court entered an order simultaneously dismissing with prejudice Kleier’s suit and the Saunders’s interpleader action and request for attorney’s fees. From that order comes this appeal.

As authority for their position that it was an abuse of discretion to deny attorney’s fees, the Saunderses rely upon the reporter’s note to Rule 22 of the Arkansas Rules of Civil Procedure. Rule 22 governs interpleader actions. The reporter’s note points out that our rule is identical to the federal rule and cites Gulf Oil Corporation v. Oliver, 412 F.2d 938 (5th Cir. 1969), for the proposition that the grant or denial of attorney’s fees in interpleader actions is within the sound discretion of the court — which the Saunderses contend was not properly exercised under the facts of this case.

Our general rule relating to attorney’s fees is well established; attorney’s fees are not allowed except when “expressly” provided for by statute. Damron v. University Estates, 295 Ark. 533, 750 S.W.2d 402 (1988); Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982). While we recognize that our former statute governing interpleader actions, Ark. Stat. Ann. § 27-816 (Repl. 1962), provided for the recovery of attorney’s fees, that statute was specifically superseded by Rule 22, which does not provide or even mention recovery of legal expenses. In light of our general rule, we find no error in the court’s denial of appellants’ request for attorney’s fees.

We do not find it necessary to reach the merits of the remaining arguments because they have been rendered moot. The sole objective of the Saunders’s interpleader action was to have the court determine whether monies owed by the Saunderses should be paid to Tucker by virtue of the debt, to Kleier by way of the garnishment, or to Mark Tucker d/b/a Mark Tucker Enterprises pursuant to the assignment from Tom Tucker. Subsequent to the filing of the interpleader action, the garnishor informed the court that the monies deposited into the court registry by the Saunderses had satisfied the judgment, which resulted in dismissal with prejudice of his cause of action against the other defendant. Accordingly, the Saunderses have been discharged from liability as to either party in the amount of the judgment entered against Tom Tucker. See generally Ark. Code Ann. § 16-110-129 (1987). The purpose of the interpleader action has been accomplished.

It is the duty of this court to decide actual controversies by a judgment which can be carried into effect and not to give opinions upon abstract propositions or to declare principles of law which cannot affect the matter in issue in the case at bar. Kays v. Boyd, 145 Ark. 303, 224 S.W. 617 (1920). Because we find that appellants’ remaining complaints of error have been rendered moot by payment and satisfaction of the judgment in question, we affirm the trial court in all respects.

Affirmed.

Glaze, J., concurs.


author: Darrell Hickman, Justice.

text:
    FIRST NATIONAL BANK of Fayetteville, Arkansas v. MASSACHUSETTS GENERAL LIFE INSURANCE COMPANY
    88-52
    752 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988

      Mark Lindsay, P.A., for appellant.

      Davidson, Horne & Hollingsworth, A Professional Association, by: Walter W. Davidson and Patrick E. Hollingsworth, for appellee.
   Darrell Hickman, Justice.

This is a Uniform Commercial Code case. The appellant, First National Bank of Fayetteville, claims that its security interest in the accounts receivable of Lifesavers Insurance Agency has priority over a claim of the appellee, Massachusetts General Life Insurance Company.

The trial judge granted summary judgment to Massachusetts General, finding its claim legally superior. The judge was correct and we affirm.

The facts were undisputed. Massachusetts General entered into a General Agent’s Compensation Agreement with Lifesavers Insurance Agency, under which Massachusetts General advanced commissions to the agency, with the understanding that commissions and bonuses earned by the agency would go to reduce the debt Lifesavers owed Massachusetts General for the advanced commissions.

Lifesavers borrowed $100,000 from the appellant bank, and the bank obtained an assignment from the agency of “All Accounts Receivable due the Borrower from Massachusetts General Life Insurance Company.” The bank filed a financing statement pursuant to Ark. Code Ann. § 4-9-302 (1987), and claimed a security interest in the commissions and bonuses due Lifesavers from Massachusetts General.

The bank argues that its security interest is superior to the Massachusetts General claim because of priority and cites Ark. Code Ann. § 4-9-312(5)(a) (1987) and Continental American Life Ins. v. Griffin, 251 Ga. 412, 306 S.E.2d 285 (1983), as controlling. The bank overlooks the fundamental fact and principle that the bank can not obtain a property right superior to that of its assignor, Lifesavers. See 6A C.J.S. Assignments § 88 (1975). The Uniform Commercial Code recognizes this principle in Ark. Code Ann. § 4-9-318(l)(a), which provides:

[T]he rights of an assignee are subject to:

(a) All the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; ....

Therefore, whatever interest the bank had in the commissions and bonuses is subject to Massachusetts General’s claim.

While not clearly on point, we said in Benton State Bank v. Warren, 263 Ark. 1, 562 S.W.2d 74 (1978), that “Section 85-9-318(l)(a) provides that the rights of an assignee [the bank] are subject to all the terms of the contract between the account debtor [Massachusetts General] and the assignor [Lifesavers] and to any defense or claim arising therefrom.”

We decline to follow Griffin, supra.

Affirmed.


author: David Newbern, Justice.

text:
    Robert MOORE v. STATE of Arkansas
    CR 87-181
    751 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988

      L. Gene Worsham, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

This is a first degree murder case in which the appellant, Robert Moore, was sentenced to life imprisonment after having been found guilty of shooting to death his estranged wife Brenda Moore. Lisa Johnson testified she was Moore’s accomplice. She said she participated in planning the crime and drove Robert Moore to Brenda Moore’s place of employment on the day the crime occurred.

The only question raised is whether there was evidence to corroborate Ms. Johnson’s testimony and thus satisfy the requirement of Ark. Code Ann. § 16-89-111(e)(1) (1987) that there be “other evidence tending to connect the defendant with the commission of the offense.” We agree with the trial court that the requirement was satisfied by testimony showing strong animosity between the Moores including evidence that Robert Moore threatened to kill Brenda Moore. We affirm the conviction.

Brenda Moore was shot to death on November 14, 1986. There were no eye witnesses to the crime, but several witnesses testified they saw a person leaving the scene of the crime about the time it was committed. Their descriptions varied, but all testified the person was wearing a ski mask and gloves. The fleeing person was clothed so as to cover all but the eyes so that one could not tell the color of the person’s skin or if the person was male or female.

Police were called to the crime scene at 1:15 p.m. At 2:00 p.m. Robert Moore called the office where his wife had worked and asked if his wife had been hurt. He was picked up by the police at the place from which he had called. In addition to other clothing, he was wearing two layers of trousers and a ski mask rolled up and made into a cap.

Robert Moore’s argument is devoted in large measure to demonstrating the weakness of the state’s evidence. He notes that Lisa Johnson gave several stories which would have exculpated him before she turned state’s evidence. He also notes that the state could not prove that he had shot a gun, as no powder residue was found on him or his clothing. There was no physical evidence to connect him with the crime. None of that is relevant to the point of the appeal. The jury apparently believed Lisa Johnson’s courtroom testimony that Moore committed the crime and she helped him. The only question we have to decide is the one of corroboration.

Robert and Brenda Moore were involved in marital litigation. The crime occurred on the day before Robert was to have turned over the marital home and the children to Brenda pursuant to a court order. Earl Smith, who had been a fellow employee of Robert Moore at an airline and knew him through their church, testified that Robert had told him on four or five occasions that if Brenda got the children he, Robert, would have to kill her. Darryl Lamms, who had lived with the Moores for a time, testified he went to see Robert the evening Brenda died to offer his condolences. Robert told him he loved Brenda but she should not have “dogged him out.”

In Roberts v. State, 96 Ark. 58, 131 S.W. 60 (1910), Taylor, who had been hired to do a killing, confessed and testified that Roberts was the one who hired him to do it. Another witness, Robinson, who may or may not have been found to be an accomplice by the jury, also implicated Roberts. We held that, whether or not Robinson was considered an accomplice, the evidence against the defendant was sufficient. A showing of “ill will and threats” resulting from a feud between Roberts and the victim, who were rival store owners, was sufficient corroboration of Taylor’s testimony whether or not Robinson was an accomplice. We followed the Roberts case in Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). We have also held that evidence of unsuccessful attempts by an accused to procure the commission of a crime were sufficient to corroborate accomplice testimony. Payne v. State, 246 Ark. 430, 438 S.W.2d 462 (1969). See also Larimore v. State, 84 Ark. 606, 107 S.W. 165 (1907), where we found sufficient corroboration in testimony of a witness who, some four months before the crime occurred, overheard a conversation in which the accused and an accomplice discussed committing the crime.

The state’s brief does not show compliance with Arkansas Supreme Court and Court of Appeals Rule 11 (f) requiring that all objections decided adversely to the appellant be abstracted and all points appearing to the Attorney General to involve prejudicial error be briefed. While we do not condone this apparent failure to comply with the rule, in the interest of preventing the delay which would be caused by returning the briefs for compliance, the record has been examined here, and it appears that no errors prejudicial to the appellant occurred at the trial.

Affirmed.


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

text:
    Glen ALLEN v. STATE of Arkansas
    CR 87-219
    751 S.W.2d 347
    Supreme Court of Arkansas
    Opinion delivered June 13, 1988

      Tim Bunch and Thomas E. Brown, for appellant.

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

Appellant was convicted of the capital murder of Earl Verser, Jr., and sentenced to life imprisonment without parole. He raises five points for reversal. Because we find no merit in any of them, we affirm.

We first address appellant’s argument that the trial court erred by not granting a mistrial. Appellant claims the prosecutor made improper comments which called the jury’s attention to his failure to testify, thereby violating his fifth amendment rights. See United States v. Hastings, 461 U.S. 499 (1983); Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978); Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974).

While such fifth amendment issues generally ensue from opening or closing remarks by the government, the prosecutor’s comments here resulted from his hearsay objection when the appellant called a deputy sheriff to testify concerning a confession previously made by the appellant. Actually, the appellant had given two confessions, one of which the state introduced. The confession in issue in this appeal was introduced by the appellant during his case-in-chief. Both confessions detailed the manner in which the appellant burglarized Verser’s home, beat him and stole his money, watch, credit cards, vehicle and guns. However, the confession introduced by appellant included remarks by him that, at the time of the crime, he had drunk a quart and a half of beer and had been smoking marijuana. Although the trial court allowed the appellant to introduce this second confession, he contends the prosecutor’s following remarks were prejudicial and required a mistrial:

Your Honor, I’m going to have to object to any further — he’s gotten off the issue. That is — he’s trying to get his witness, his client, to testify through two or three other people, and that denies me the right of cross-examination, and I object to this ....
* * *
He’s offering through witness statements against the interest, and now he’s getting into his defense and trying to prove an affirmative defense through intoxication or drug influence. That is self-serving. He cannot prove that through third people. That denies me my right of cross-examination. It’s improper ....

The state argues the prosecutor, by his remarks, was not referring to appellant’s failure to testify, but instead was complaining that the appellant was required to prove his intoxication or drug-influence defense by other people who knew of appellant’s alcohol and drug problems and who were subject to cross-examination on the subject. The prosecutor’s comments were, at best, convoluted, but even assuming them to be improper, as indirect references to the appellant’s decision not to testify, we fail to see how appellant was prejudiced.

As we said in Clark, before an error affecting constitutional rights can be declared harmless, the appellate court must determine that it is harmless beyond a reasonable doubt. 256 Ark. 658, 509 S.W.2d 812; see also Jarreau v. State, 291 Ark. 60, 722 S.W.2d 565 (1987). Here, the evidence of appellant’s guilt was so overwhelming that appellant resorted to offering his own confession to Verser’s murder in hope that the jury would mercifully consider, when determining guilt and punishment, appellant’s reference to his use of alcohol and drugs at the time he committed the crime. Appellant not only confessed to the crime on two separate occasions, he also, at the time of his arrest, possessed the victims’s vehicle, credit cards and guns. Although appellant raised intoxication as a defense, there was no hint of any evidence that showed the appellant in any way tried to deny that he killed Verser. Thus, even if we were to hold the prosecutor’s remarks improper, we can say without reasonable doubt that the error was harmless. Jarreau, 291 Ark. 60, 722 S.W.2d 565.

In his second point, appellant relies in part on his first argument and further asserts that the prejudice that resulted from the prosecutor’s improper remarks, concerning the appellant’s failure to testify, was later exacerbated by the following remarks made by the prosecutor during his closing argument:

You’re not to consider during the guilt phase of the trial whether or not he ought to suffer death or life in prison without parole. You’ve just got to come back and say, guilty of capital murder, then we’ll worry about that, the other. And I won’t even argue that at this time and I don’t want you to consider that at this time, because if you did, you’re liable to be out there until midnight. You haven’t heard everything on that point.

Appellant claims the prosecutor’s argument improperly suggested that there was additional evidence of guilt which existed but could not be introduced until the punishment phase of the trial. We disagree. The prosecutor’s remarks merely reflect the trial court’s instruction to the jury that, after a return of guilty, the jury would be submitted the matter of punishment. Even so, when the appellant objected to the prosecutor’s argument, the trial judge admonished the prosecutor to be careful, and the appellant requested no further admonition nor does the record reflect that one was needed. Appellant simply fails to show the closing remarks made by the prosecutor were improper, nor has he shown that the prosecutor’s remarks, as set out in point one and here, were prejudicial.

Appellant, in point three, argues the trial court erred in admitting the photographs of the victim because the photos were inflammatory and repetitious. This court has held that the admission of photographs is in the sound discretion of the trial court and will not be set aside absent a manifest abuse of discretion. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). However, in Berry v. State, 290 Ark. 233, 718 S.W.2d 447 (1986), we re-examined our position regarding the admissibility of inflammatory photographs and emphasized the need for the trial court to carefully weigh the probative value of the photographs against their prejudicial nature. Inflammatory photographs are admissible in the discretion of the trial court if they tend to shed light on any issue or enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987).

In the present case, the prosecutor offered ten photographs of the deceased into evidence; appellant objected to seven of nine photos introduced at the guilt stage of trial; and at the punishment segment, the trial court excluded one photograph, which was easily the most gruesome of the photos offered by the state. State witness Dr. Fahmy Malak used the seven different photographs in issue to illustrate his testimony about the nature and cause of death. Malak used the photographs to depict the several blows to Verser’s head, as well as to explain the amount of force used in cracking the skull. According to Malak, Verser did not die instantaneously, but was alive when he received all of the blows.

Appellant seeks to diminish the probative nature by relying on his counsel’s admission, during opening argument, that appellant caused the injuries to Verser. Even so, such an admission did not relieve the state of its burden of proof beyond a reasonable doubt that the appellant committed the murder. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92, cert. denied, 459 U.S. 1020 (1982). Furthermore, this court has held that a photograph is not inadmissible merely because it is cumulative, and that the defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). In viewing the photographs and related testimony, we are unable to say the trial judge abused his discretion in ruling the probative value of the photographs was sufficient to allow their introduction into evidence. Berry, 290 Ark. at 226-227, 718 S.W.2d at 449.

In his next argument, appellant urges the trial court erred in allowing the state, on the morning of the trial, to amend the information to delete the robbery charge. He first claims prejudice as a result of the amended information because by allowing the removal of the robbery charge, the state was permitted to use pecuniary gain as an aggravating circumstance at the penalty stage of the trial. The simple answer to appellant’s contention on this point is that because he received a sentence of life without parole, instead of the death penalty, he could not have been prejudiced by the submission of the aggravating circumstance. Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986). Appellant also claims prejudice because the late amended information changed his trial strategy, but he concedes it is speculative concerning what counsel would have done differently if the trial court had denied the amendment.

This court has allowed an amendment to be made to the information even after the trial started where the nature or degree of the crimes alleged had not changed and the accused was unable to show he was prejudiced. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977); see also Ark. Code Ann. § 16-85-407(b) (1987). Here, the state’s amendment was made before trial, and in deleting the robbery charge against appellant, the amendment aided, rather than prejudiced, appellant’s case.

Before leaving this point, we note our recent decision of Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988), wherein we cited Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), which held that one could not be convicted of capital murder where the underlying felony was burglary if the intent of the perpetrator, upon entering the dwelling, was to commit the murder. Quoting from Parker, we said:

For the phrase “in the course of and in furtherance of the felony” to have any meaning, the burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective. That objective, the intent to kill, is what makes the underlying act of entry into the home a burglary. The burglary was actually no more than one step toward the commission of the murder and was not to facilitate the murder.

In keeping with the Parker rule, we reversed in Sellers where Sellers was charged with capital murder and burglary with an underlying charge of assault and battery. We held that we could not say the murder facilitated the burglary if the underlying offense for the burglary was assault and battery.

In the instant case, the appellant, in his confessions, said that in order to steal Verser’s car, he entered Verser’s house to get the keys. He stated that he had not intended to kill Verser, but took a piece of angle iron with him in case Verser caught or tried to shoot the appellant. Clearly, the facts here support the state’s charges of theft being the underlying offense and object of the burglary, and unquestionably appellant’s murder of Verser resulted in facilitating his theft of property.

In his final point, the appellant argues that the cumulative effect of his first three points prejudiced the appellant by inflaming the passions of the jury. The appellant did not make such an objection at trial, and he cites no supporting authority for his argument in his brief. However, even if we reached the merits of his argument, the appellant failed, for the reasons stated under each of those points discussed above, to show any prejudice.

Having reviewed the points of error along with other objections decided against the appellant as required by A.R.Cr.P. Rule 36.24 and Ark. Sup. Ct. R. 11(f), we find no reason to reverse, and therefore affirm the appellant’s conviction.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because it is obvious the prosecutor deliberately failed to introduce the second confession in order to open the way for his prejudicial comments on the appellant’s silence. Both confessions had previously been held admissible by the trial court. Both were incriminating. About the only difference was that the one not introduced by the state contained information indicating that the appellant had been drinking beer and smoking pot. It seems to me the second confession was as damaging to the appellant as the first.

Had the prosecutor introduced both statements he would not have been in a position to comment concerning the appellant’s failure to testify. The prosecutor did not object simply on grounds of hearsay or relevance. Instead he made a speech to the jury about being unable to cross-examine the accused, who did not intend to testify. Whether planned or not the comments were improper and highly prejudicial.