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

text:
    Robert HOFFMAN v. STATE of Arkansas
    86-14
    711 S.W.2d 151
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Evans & Evans, by: James E. Evans, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On February 24, 1984, the appellant offered a plea of guilty to theft by deception which was taken under advisement by the trial court for a period of seven years conditioned upon the following: good behavior, payment of court costs and restitution in the amount of $57,040.03 payable in $1,000.00 monthly installments. On April 1,1985, the state filed a motion for revocation of the advisory sentence because of the appellant’s failure to make all of the scheduled restitution payments. On July 9, 1985, the court conducted a hearing at which time it found the appellant had violated the terms and conditions of the court judgment of February 24th. The court ordered that five and one-half years of the seven year sentence to the Arkansas Department of Correction, theretofore deferred, be pronounced upon the appellant. It is from that decision that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29 (l)(c), as we are being asked to interpret an act of the General Assembly.

The appellant claims that the trial court’s finding that he failed to pay restitution as ordered by the court, and that said failure was willful and without good cause, is clearly against the preponderance of the evidence, and that the revocation violated his right to equal protection.

The evidence demonstrates that when appellant entered his plea of guilty on February 24, he and his attorney set up a payment schedule for restitution of $1,000.00 per month, that figure coming from his calculations and that of his attorney. It was acknowledged by appellant that he wanted to pay at that rate. At the time of his plea, the appellant executed and tendered a plea questionnaire to the trial court in which he acknowledged that, upon his plea of guilty, the prosecuting attorney would recommend that the court take such plea “under advisement for seven years, paid at $1,000.00 a month then dismissed when paid off.” Thereupon, the trial court entered its judgment stating that the appellant “offered a plea of guilty, which plea was taken under advisement by the Court”. The court further:

ORDERED AND ADJUDGED that the plea of guilty of Theft by Deception be and is hereby taken under advisement by the Court for a period of (7) year(s), and upon recommendation of the Prosecuting Attorney and conditioned upon the following:
(1) That the defendant pay restitution in the amount of $57,040.03, with $1000.00 due 2-24-84, and the balance payable at $ 1000.00 per month, beginning 4-1-84.

On April 1,1985, the state filed its motion for revocation of the advisory sentence, stating that the defendant has willfully and knowingly failed to pay all the restitution ordered, thereby violating the terms of his advisory sentence. A hearing was held on said motion on July 9, 1985 at which time the state offered evidence that the payments made by the appellant were irregular and have resulted in a total paid of $6,711.92, which is $7,288.08 less than the amount due under the payment schedule.

Appellant offered evidence that his ability to make restitution payments was limited inasmuch as his income for 1984 from his job with National Home Improvement, Inc., as evidenced by a W-2 form, was $8,211.75, and of that amount, $5,811.92 was paid in restitution. The owner of National Home Improvement, Inc., testified that appellant was a good employee and worked for him in 1984 until April of 1985. According to the owner, appellant earned approximately $1,500.00 between January and April of 1985, and $900.00 of that was sent to the court in January for payment of restitution. He further explained that in 1985 the appellant had several sales fall through because the title loans used by the company were discontinued. After April, 1985, when appellant left National Home Improvement, Inc., the owner testified that appellant tried to find a job with two car dealerships but failed. National Home Improvement, Inc., has offered to let appellant come back to work. The owner testified appellant could earn $12,000.00 to $15,000.00 during 1985.

The appellant testified that he is married and lives in Rogers, Arkansas. He owns a 1984 Toronado and a 1981 pickup truck. Previously he had another truck and two Cadillacs and sold them to apply to the loan on the car and truck. The two Cadillacs were apparently owned prior to incurring the restitution debt. The Toronado was bought in June, 1984, during the period of restitution, for $17,000. Appellant testified his wife is now unemployed and has been for two months and that he lived on her income before she lost her job. Since April, he stated he has looked for jobs in the auto sales field at car dealerships in Arkansas and Missouri. Appellant, his wife, and stepson lived in a large, rented house with a pool for $475 per month. Appellant said his stepson paid $275 of the rent and, when he moved out, appellant and his wife moved to Rogers where they now rent a duplex for $300 a month.

Appellant asked that his sentence not be revoked and that he be allowed to pay $300 per month instead of $1,000.

In Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), this court specifically noted that all sentences are controlled by the provisions of Ark. Stat. Ann. § 41-803 (Repl. 1977), which provides in part that “[i]f a defendant pleads . . . guilty of an offense other than capital murder, the court may suspend imposition of sentence or place the defendant on probation, in accordance with . . . [Ark. Stat. Ann.] §§41-1201 — 41-1211.” Any provisions of the prior law that are inconsistent are repealed by implication. In this instance, the trial court ignored the specifics of Culpepper by substituting a form of court probation under the label of an “advisory sentence.” Court probation, apart from that authorized by statute, is no longer available as a sentencing alternative inasmuch as it was codified under the Arkansas Criminal Code (Act 280 of 1975) in Ark. Stat. Ann. §§ 41-[ XXX-XX-XXXX ] (Repl. 1977 & Supp. 1981). English v. State, 274 Ark. 304, 626 S.W.2d 191 (1982). The same is true of “advisory sentences”, and all other unauthorized forms of sentencing where the trial court takes the defendant’s plea under advisement subject to conditions, which are in essence, terms of probation or suspended sentences. The trial court was in error in its sentencing. However, the sentence was not objected to below or made a subject matter of this appeal. Since we do not have the plain error rule, we will not base our decision on the improper sentence. It is the proper subject matter for a petition for Rule 37.

Accordingly, we will view the court’s findings as though the court intended to sentence the appellant to seven years, which were suspended conditioned upon payment of restitution. This is a logical assumption in light of the fact the court, in its order of July 9th ordered and adjudged “that five and one half (5 ‘A) years of the seven (7) year sentence to the Arkansas Department of Correction heretofore deferred be pronounced upon the defendant.”

Arkansas Stat. Ann. § 41-1209 (Repl. 1977) provides in pertinent part:

(4) If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.

In a hearing to revoke the burden is upon the state to prove the violation of a condition by a preponderance of the evidence, and on appellate review the trial court’s findings are upheld unless they are clearly against a preponderance of the evidence. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony. In those areas we defer to the trial judge’s superior position. Cavin, supra.

The trial court’s decision is not clearly against a preponderance of the evidence. Appellant’s failure to make the ordered payments, in light of his standard of living, his purchase of a $17,000 car, and the fact that he did not search for a job outside the field of auto sales, can be construed as an inexcusable failure to comply with the conditions of his suspension.

Appellant’s equal protection argument is based on holdings by the U.S. Supreme Court that the state cannot “impos[e] a fine as a sentence and then automatically conver [t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Tate v. Short, 401 U.S. 395, 398 (1971); see also Williams v. Illinois, 399 U.S. 235 (1970). The Supreme Court has also held, however, that:

[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment. . . .

Bearden v. Georgia, 461 U.S. 660, 672 (1983). Here, the appellant, with the assistance of counsel, tendered his own schedule of payment for restitution in exchange for a suspended sentence and then made sporadic payments. The trial court found, in essence, that appellant “failed to make sufficient bona fide efforts legally to acquire the resources to pay.” Accordingly, there was no equal protection violation.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion clearly and correctly states that the original plea by appellant was taken under advisement on February 24,1984. The exact words of the trial court were, “ [T] he plea of guilty of theft by deception be and is hereby taken under advisement by the Court for the period of (7) year(s), and upon recommendation of the prosecuting attorney, and conditioned upon the following .... “One of the conditions was that the appellant pay restitution at the rate of $1,000 per month.”

The appellant did not pay the scheduled payments in full and the state filed a motion to revoke the advisory sentence. On July 9, 1985, a hearing was held and the court announced that “five and one half (5 Vi) years of the seven (7) year sentence to the Arkansas Department of Correction heretofore deferred be pronounced upon the defendant.”

Both this Court and the trial court have changed horses in the middle of the stream. The appellant was not sentenced to any term in the Department of Corrections. Sentence was unequivocally and unmistakably deferred — not pronounced. How can a court revoke a sentence which has not been imposed? The majority attempts to wade the illegal sentence issue on the grounds that it was not objected to below. There was no sentence to object to until the present sentence was pronounced. The appellant fought the revocation as hard as he could in the trial court then lodged this appeal. How could he object more?

The factual issues are not stated as fully as I would like. Therefore, I will enumerate additional facts which I think should be considered. From the date of the plea, February 24,1984, until the end of the year, the appellant earned (according to his Form 1099) $8,211.75 and paid $5,811.92 into the trial court as restitution. The balance of his wages, $2,399.83 as paid to other creditors. Appellant did not receive any of these funds. During 1985, up to the time of the hearing, the appellant earned $1,500.00 and $900.00 of it went directly to the restitution fund and the balance, except for $100, was garnished by another creditor. Between the time of the agreement to pay $1,000 per month and the date of the unauthorized revocation, the appellant earned $9,711.75 and all of it except $100 went to creditors, including the restitution fund.

It is true appellant was unemployed during part of 1985. However, his former employer supported appellant’s statement that the unemployment was due to lack of business and not by fault of the appellant. Appellant testified that he had been trying to find work in the automobile sales field but had been unsuccessful. He was reemployed by his previous employer at the time of the hearing and it was this employment which paid him $ 1,500 to 1985.

During part of the appellant’s unemployment he lived in a house, which had a swimming pool. His wife paid part of the $475 monthly rent and a relative, who also lived in the house, paid the balance of the rent. Appellant had two Cadillacs when he pled guilty but has since disposed of them for the balance owed on them. His wife purchased another automobile in 1984, but it was on credit and she used it in her business. The majority opinion erroneously indicates that the vehicle was transferred to the appellant.

On page four of the slip opinion the court correctly sets forth the controlling Arkansas Statute relevant to revocation of suspension, which did not occur in this case. The Statutory requirement is that there be an inexcusable failure by the defendant to pay what he has agreed to pay. Otherwise such revocation would amount to imprisonment for debt. Bearden v. Georgia, 461 U.S. 660 (1983). Also, see Tate v. Short, 401 U.S. 395 (1971). The appellant herein may have entered into the agreement voluntarily but the prosecuting attorney and the court were parties to the agreement.

The remarks and finding of the court clearly reveal this revocation was not based upon the facts and the law. The trial court stated in part as follows:

All right, gentlemen, let me start by saying this Court is not in the collection business, the civil debt collection business. It never has been; I do not intend to ever put it in that position at this time.
Now, as you gentlemen know, it has been the position of this court that nonpayment of restitution is looked at very seriously and very critically by this court ....
[I] guess what I am trying to say is, it is apparent to me, at this juncture of the case, Mr. Hoffman overstated his position or ability when he entered his plea. He had a job and he has not incurred more debts, he says.
I think it is simply a case of perhaps attempting to bore with too big of an auger, continuing to live in a lifestyle he has enjoyed, and perhaps it was just too high for his present situation, and he continued in this manner until the wheels just fell off. It is just as simple as that.
[T]here was no way under the sun that he was going to be able to make $1,000 restitution payments back when he entered the plea in ’84, and I think he knew it or should have known it.

The court went on to say that appellant was unemployed and had been unable to find a job in the car sales business but that there must be other jobs out there he could get. The court further allowed that it was a hopeless statement from the beginning and restitution was like spitting in the wind.

It is my opinion the court should have allowed the appellant an opportunity to make payments within his range of ability. If the court knew from the beginning that the payment schedule could not be kept another one should have been approved. In my opinion there has been absolutely no showing that appellant willfully refused to pay his obligation under the agreement. Now, nobody will receive anything and the state will be out much time and expense in keeping the appellant. There are no winners in this case — everyone, including the taxpayers, loses.

I would reverse and remand to the trial court for consideration of alternatives to the imprisonment of the appellant.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Timmy TARRY v. STATE of Arkansas
    CR 86-18
    710 S.W.2d 202
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986
    [Rehearing denied July 14, 1986.]

      L. Gene Worsham, for appellant.

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

       Holt, C.J., not participating.

   George Rose Smith, Justice.

The amended information in this case charged the appellant, Timmy Tarry, with burglary, robbery, and two counts of rape. The jury returned four separate verdicts, finding Tarry guilty of burglary, robbery, rape by deviate sexual activity, and rape by sexual intercourse. The jury fixed the sentences at 20 years each for the burglary and robbery and forty years each for the two rapes. The judge allowed the two 20-year sentences to run concurrently, but otherwise the sentences are to run consecutively.

For reversal it is argued that there should have been only one conviction for the crime of rape and that the judge committed reversible error in communicating with the jury outside the presence of the accused. We agree with the appellant’s argument on the second point, but we must discuss the first point to the extent that the same issues will arise at a new trial.

Each side called several witnesses, but the testimony relevant to the first issue is that of the prosecutrix. She testified that she awoke at about 2:00 a.m. to find Tarry standing nude beside her bed. She recognized him, having known him for several years. When she screamed, he put his hand over her mouth and started slapping her. He got in bed with her and began feeling her body. She fought him, but he raised her gown and tore off her underwear. He tried to rape her, but could not get an erection. He sat there for awhile and then raped her with his finger, putting it in her vagina.

The prosecutrix said that Tarry then went into the bathroom. She thought about trying to get away, but she would have had to get past him and then open three locks to get out the front door. Tarry came back and lay on top of her. She said that this time he got an erection. “He penetrated me. He raped me.” He returned to the bathroom and put on his shirt and pants. After that he twisted her arm and tried to make her give him money. Eventually she managed to escape through a door into the garage and ran next door and called the police. The State introduced a statement in which Tarry admitted that he had entered the house through an ash box connected with the fireplace, but he denied the rape. At the trial he denied having been in the house at all. The jury evidently accepted the State’s version of what happened.

It is argued that since there was only one continuous episode there was only one offense of rape, not two. We do not agree. The Criminal Code provides that when the “same conduct” of the defendant may establish the commission of more than one offense, the defendant may be prosecuted for each offense. Ark. Stat. Ann. § 41-105(l)(e) (Repl. 1977). The Commentary explains that the same conduct is intended to connote the same criminal transaction. The defendant may not be convicted of more than one offense if the conduct constitutes an offense defined as a continuing course of conduct. The Commentary explains that a continuing offense is one such as nonsupport or promoting prostitution.

Rape is not defined as a continuing offense. It may consist of engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. § 41-1803. Rape is a single crime that may be committed in either of two ways. Cokeley v. State, 288 Ark. 349, 705 S.W.2d 425 (1985). Here the prosecutrix testified that she had been raped in two different ways, and the jury so found by separate verdicts. There was not a continuing offense, for the two acts of rape were of a different nature and were separated in point of time. A separate impulse was necessary for the commission of each offense. There were two offenses. See Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980), cert. denied, 450 U.S. 1043 (1981).

It is argued that the State did not prove that the second rape was accomplished by force. Additional details may be developed at a second trial. It is also argued that the information was defective in that each of the two counts of rape charged the offense as having been committed by sexual intercourse or by deviate sexual activity. The defendant did not ask for a bill of particulars, as he could have done, and he now knows what the State’s proof will be at a second trial.

The remaining issue arises from the judge’s having entered the jury room. The trial was bifurcated, Tarry being charged,as an habitual offender. The record shows that the jury retired for the second time, to fix the penalties. While the jury was out, the judge overruled an oral motion, not pertinent here, and then the record shifts abruptly to the subject at issue, as follows:

The Court: With the agreement of counsel, after the jury had indicated that they had a question for the Court, the Court entered the jury room and received two questions from the foreman. The first being, the jury wants to know whether or not the sentences were to run concurrently or consecutively. Secondly, they want to know about parole eligibility of this defendant. What says the State?

For the next five pages of the record the court reporter sets out a long colloquy in which the two lawyers expressed their offhand views about what the judge should tell the jury. Both lawyers thought no information about parole could be given. The State wanted the judge to tell the jury that he would decide whether the sentences were to be concurrent or consecutive. Defense counsel thought that no information should be given. At that point the report of the incident ends as abruptly as it began. The reporter next notes that the jury returned from its deliberations with the verdicts fixing the penalties, which were handed to the judge and read into the record.

We think the implication given by the incomplete record is that the reporter recorded the colloquy in its entirety as long as the lawyers and the judge were speaking, but there is no indication of what happened when the colloquy ended. Since the whole interchange had to do with how the judge should answer the jury’s two questions, we must infer that the judge went back into the jury room and answered the questions in some fashion; we do not know exactly how.

The procedure was improper and must be deemed prejudicial to the defendant. For more than a century we have had a statute which reads:

After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties. [Ark. Stat. Ann. § 43-2139 (Repl. 1977).]

For some years our decisions about how the trial courts should comply with the statutes were to some extent in conflict. Finally, in a unanimous opinion by Chief Justice Harris, we reviewed some of our earlier cases and declared that thenceforth the statute would be regarded as mandatory and should be strictly followed. When additional instructions are to be given, all the jurors must be called to the courtroom, with counsel being present or having been notified. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971). That warning was repeated in more detail in Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974):

Although we have not held, and do not intend to hold, that this right of defendant cannot be waived, we take this means of giving notice that we will carefully scrutinize every case tried after the date of our decision in Martin (July 23, 1973) to determine whether there has been a waiver of defendant’s right to have such proceedings held only in open court, and that all reasonable doubts will be resolved by us against waiver.

Soon after the Andrews case we held that strict compliance with the statute was waived where the attorneys went with the judge to the jury room, everything that happened was reported in the record, and there was no possibility of prejudice. Martin v. State, 254 Ark. 1065, 497 S.W.2d 268 (1973). On the other hand, we have held that non-compliance with the statute gives rise to a presumption of prejudice and have recognized that the State has the burden of overcoming that presumption. Williams v. State, 264 Ark. 77, 568 S.W.2d 30 (1978). .

In the case at bar the judge should not have gone into the jury room, even by agreement of counsel. After his first such visit he put into the record an account of what had happened, which we have copied above. If the record stopped there, it might be possible for the error to be considered harmless, for the jury’s questions had not been answered. But, as we have shown, the necessary inference from the incomplete record is that there was a second visit, during which the jury’s questions were answered in some manner. Since the State has not met its burden of showing what occurred, the trial judge’s violation of the statute must be deemed to have been prejudicial to the defendant.

Reversed and remanded.


text:
    WASHINGTON REGIONAL MEDICAL CENTER and Its Board of Governors v. MEDICAL CARE INTERNATIONAL, INC., d/b/a SURGICARE CORPORATION, et al.
    85-305
    711 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Gill, Skokos, Simpson, Buford & Graham, P.A., by: Harold H. Simpson, II, and John W. Fink; and Burke & Eldridge, by: Thomas B. Burke, for appellant.

      Steve Clark, Att’y Gen., by: George A. Harper, Spec. Asst. Att’y Gen., for appellee Arkansas Dept, of Human Services and Arkansas Health Planning and Development Agency.

      Hilburn, Bethune, Calhoon, Forster, Harper & Pruniski, Ltd., by: Sam Hilburn and Dorcy Kyle Corbin, for appellee Medical Care Int’l, Inc., d/b/a Surgicare Corp.
   George Rose Smith, Justice.

For the past few years there has been in progress a national effort to limit the construction of new hospitals. The movement was initiated by Congress and has been supported by legislation enacted in Arkansas and in other states, all of which participate in the program and receive federal funds for health care. In the present case we need not review the statutes, which we considered in some detail in an earlier case. Statewide Health Coordinating Council v. General Hospitals of Humana, 280 Ark. 443, 660 S.W.2d 906 (1983), cert. denied, 104 S.Ct. 2386 (1984).

The case at bar began in 1983 when the appellee, Surgicare Corporation, applied to the West Arkansas Health Planning and Development Agency for a Certificate of Need to construct an outpatient surgical center in Fayetteville. Surgicare’s proposed center is to consist of three operating rooms and such recovery rooms and allied facilities as would be necessary for outpatient surgery, which means surgery that does not require the patient to spend the night at a hospital. Outpatient surgery is also referred to as ambulatory or one-day surgery.

Surgicare’s application for authority to build the proposed outpatient center was opposed by the appellant, Washington Regional Medical Center, which operates a hospital in Fayetteville. That hospital has several operating rooms, in all of which both inpatient and outpatient surgery is performed. None of Washington Regional’s operating rooms is dedicated solely to outpatient surgery. Consequently scheduling problems may arise, with an outpatient being “bumped” to make way for emergency surgery. Most outpatient surgery is elective and not life threatening.

Washington Regional opposed Surgicare’s application on the ground that under the governing law and regulations there are already a sufficient number of operating rooms in the service area, consisting of Washington and Benton counties. Washington Regional submitted proof, which is not disputed, of the total number of operations performed during the base year in its operating rooms and of the number of those operations that it classifies as outpatient surgery. On that basis a certain percentage of Washington Regional’s operating rooms is said to be used for outpatient surgery.

Surgicare’s application was disapproved by the West Arkansas Health Systems Agency, the lowest administrative level. On appeal, however, the Arkansas Health Planning and Development Agency, after a public hearing, granted the application. That action was upheld by an independent reviewing agency selected by the Governor and was affirmed on appeal to the circuit court of Washington county. Washington Regional’s appeal comes to this court under Rule 29(l)(c).

Washington Regional’s principal argument, presenting an issue of law, is that the administrative agency misinterpreted its own regulations in determining the existing number of “outpatient surgery operating rooms.” The agency held that the only existing operating rooms to be counted are those dedicated solely to outpatient surgery. There being no such operating rooms in the area, the three operating rooms in Surgicare’s proposed center will not exceed the total that is permissible for the area. Washington Regional argues that a fractional part of its multipurpose operating rooms should be counted, which would result in the new center’s exceeding the permissible limit.

The controlling question is simply whether the agency’s interpretation of its regulations is a reasonable one, bearing in mind that the courts concededly attach much weight to an administrative agency’s interpretation of its own regulations.

The governing regulations were adopted in 1980 by the State Health Planning and Development Agency, in consultation with the Statewide Health Coordinating Council. We quote the pertinent regulations in full, down to the mathematical computation by which the basic determination is made, there being no dispute about those figures.

CRITERIA AND STANDARDS FOR OUTPATIENT SURGERY CENTERS

1. Proposed Criteria and Standards for estimating a community’s need and requirements for outpatient surgery centers.

2. Proposed Criteria and Standards for reviewing proposals for changes in outpatient surgery centers.

DEFINITION:

Outpatient surgery is defined as the provision of surgical services, other than minor dental surgery, which requires the use of general or intravenous anesthetics or a period of postoperative observation, or both, and where in the opinion of the attending physician, hospitalization is not necessary.

An OUTPATIENT SURGICAL CENTER (OSC) is any facility, or part of a facility, dedicated solely to the provision of outpatient surgical services. An OSC may be either freestanding, that is, independently-operated, or hospital-operated.

A FREESTANDING, INDEPENDENTLY-OPERATED OUTPATIENT SURGICAL CENTER (FREESTANDING) is one which is physically and organizationally separated from a hospital.

A HOSPITAL-OPERATED OUTPATIENT SURGICAL CENTER is one which is organizationally controlled by a hospital. Two general types of hospital-operated OSC’s are as follows:

1) HOSPITAL-OPERATED SATELLITE (SATELLITE) which is separate from the inpatient program and contained in a satellite facility located some distance from the hospital, and

2) HOSPITAL-OPERATED (HOSPITAL) which is located on hospital grounds. This type need not be physically remote from other operating rooms, but to be constructed as an outpatient surgery center it must be dedicated solely to ambulatory surgery and the facility or institution should have an organized program for the provision of outpatient surgery service in that (those) unit(s).

1. Planning

A. Determination of Need

In keeping with the requirements of P.L. 93-641, as amended by P.L. 96-79, Section 1523 (a) (1) (B) the State Agency, in consultation with the Statewide Health Coordinating Council, has determined that there is a statewide need for dedicated outpatient surgery facilities in locations throughout the State where there are sufficient number of surgical procedures to justify the existence of one or more dedicated outpatient surgery units.

Next there is a detailed methodology for an 8-step computation by which the need for outpatient surgery centers is to be determined. We emphasize that the purpose of the calculation is to determine the need for outpatient surgical centers, not for multipurpose operating rooms such as those at Washington Regional’s hospital. The computation is to begin with the best obtainable information as to the population of the service area and the total number of all surgical operations performed in the selected base year. Except for those two basic facts all the computations amount to theoretical predictions for the future. The percentage of total operations that could be on an ambulatory basis is supplied by the regulations and increases by one percent a year from 1980 through 1990. The first seven steps in the computation accomplish a determination of the “estimated number of outpatient surgery operating rooms needed.” There follows the eighth step, upon which the present appeal centers:

8. The number of outpatient surgery operating rooms existing is subtracted from the number shown as needed in any given year to arrive at the number of additional units needed.

When the computation is completed through step seven as to the service area now in question, the estimated number of outpatient surgery operating rooms needed is approximately four. The parties differ as to the precise figure, but the variance is immaterial. Surgicare insists that no outpatient surgery operating rooms now exist in the area; so the need exceeds the three it seeks to construct. Washington Regional argues that its proportionate use of its multipurpose operating rooms must be determined and subtracted, leaving a remainder of less than three. Washington Regional cites a recognized study of the problem, which is listed in the bibliography at the end of the regulations. That study cautions that ignoring such multipurpose facilities may inappropriately falsify the estimate of available resources. The regulations, however, do not include that factor in the computation of need.

Upon the principal question at issue we are firmly of the opinion that the agency’s construction of the regulations is the only reasonable interpretation. We regard Washington Regional’s argument as being without merit.

The national program for limiting the construction of hospitals had been in force for some years before lawmakers turned to outpatient surgery as a means of promoting competition and presumably reducing the overall cost of surgical operations. The regulations now in question have nothing to do with the need for multipurpose operating rooms. The regulations mention outpatient surgical centers again and again; their thrust is directed solely toward determining the need for centers of that nature, and in later sections of the regulations not pertinent here, toward making it certain that the centers will be adequately financed and properly operated. The appellant’s entire approach, that the hospital is adequately providing outpatient surgical facilities, is outside the perimeters of the real problem.

We should mention that existing hospitals are apparently free to create their own outpatient surgical centers within their own buildings. The last of the definitions at the beginning of the Criteria and Standards defines a hospital-operated outpatient surgical center as one that need not be physically remote from other operating rooms but which must be dedicated solely to ambulatory surgery. The regulations were adopted in 1980; so Washington Regional during the ensuing three years before Surgicare filed its application might have taken steps to create its own outpatient surgical center. It did not see fit to do so.

The appellant also complains that the record does not contain a transcript of two public hearings that were held in the course of the administrative proceedings. An agency rule requires that the agency “maintain” a verbatim record of the hearing. The hearings were recorded on tape, but the tapes have not been transcribed. The independent reviewing agency decided that the record, without the transcriptions, contained sufficient information for the issue to be determined. The appellant asks that the case be remanded for the inclusion in the record of a transcription.

There is no real merit in the appellant’s contention. The tapes were maintained, but the appellant does not appear either to have requested their transcription or to have tried to obtain the tapes themselves. No question of fact is presented by the appeal. There has been not even a suggestion that a transcription would provide anything material to the issue presented. This application has already been in progress for three years. We see no reason to delay it further by a useless remand.

Affirmed.


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

text:
    Hal O. LEE, et al. v. CITY OF PINE BLUFF
    85-312
    710 S.W.2d 205
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Henry & Duckett, by: David P. Henry, for appellant.

      Robert Tolson, Jr., for appellee.
   Darrell Hickman, Justice.

This is an annexation case involving the City of Pine Bluff. Pine Bluff sought to extend its boundaries to conform to the actual growth of the city beyond its legal limits and to encompass land needed for municipal purposes. The proposal, by way of an ordinance, included eight separate tracts of contiguous land spaced around the existing city limits. The area encompasses 9,147 acres and includes over 6,000 people. The annexation was approved at an election and a map was duly filed reflecting the new city limits. Several landowners from some of the annexed tracts filed suit protesting the annexation.

The trial court found that each tract of land in one respect or another was proper land for annexation according to Ark. Stat. Ann. § 19-307.1 (Repl. 1980). That statute provides:

Any municipality may by vote of two-thirds of the total number of members making up its governing body adopt an ordinance to annex lands contiguous to said municipality, provided the lands are either (1) platted and held for sale or use as municipal lots; (2) whether platted or not, if the lands are held to be sold as suburban property; (3) when the lands furnish the abode for a densely settled community, or represent the actual growth of the municipality beyond its legal boundary; (4) when the lands are needed for any proper municipal purposes such as for the extension of needed police regulation; or (5) when they are valuable by reason of their adaptability for prospective municipal uses.
Provided, however, that contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture or horticulture purposes and the highest and best use of said lands is for agriculture or horticulture purposes; or (2) are lands upon which a new community is to be constructed with funds guaranteed in whole or in part by the federal government. . . . Provided, further, that if any lands are annexed which are being used exclusively for agricultural purposes, such lands may continue to be used for such purposes so long as the owner desires and shall be assessed as agricultural lands.

Land that satisfies any one of the statutory criteron may be annexed. Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985).

Some lands used exclusively for agricultural purposes and some lands located in flood plains were included. Expert witnesses and landowners, who testified for the appellants, pointed out tracts of land or parts of tracts that were not properly annexed in their opinion. Primarily the witnesses focused on land south of the city limits. Opinions were offered that this area was too sparsely populated, did not need city services, or was a flood plain, and agricultural land not subject to annexation. Witnesses supporting the city’s annexation testified at length about the characteristics of the land, its suitability, and the need for attachment to the city. A comprehensive land use plan prepared by the City Planning Commission was introduced. Testimony was given concerning the city officials’ consideration of the annexation prior to its approval. In a detailed judgment, the trial judge found that the landowners failed to prove the lands were not subject to annexation. A question regarding the legal description of the land to be annexed was resolved in favor of the city.

This appeal raises three contentions: (1) not all lands comply with the criteria of Ark. Stat. Ann. § 19-307.1; (2) agricultural lands were improperly included in violation of Ark. Stat. Ann. §19-307.1; and (3) the legal description of the annexed lands failed to comply with Ark. Stat. Ann. § 19-307.2. We find no merit to appellants’ arguments.

It is perhaps significant that the appellants rely in part on Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977). This case reviewed the proposed annexation of 55 square miles to the City of Little Rock. We rejected the proposed annexation on the narrow ground that the inclusion of mining lands voided the entire proposal. Our decision in Saunders was sharply limited in Holmes v. City of Little Rock, supra, and expressly overruled in Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986). (In Chappell, we incorrectly cited Saunders v. City of Little Rock, 257 Ark. 195, 515 S.W.2d 663 (1974) [Saunders /] as being overruled; it should have read Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977) [Saunders //]. When we overruled Saunders II, we also abandoned the strict approach taken by us toward annexation. No longer do cities seeking annexation carry an undue legal burden. Our rules for review are clearly stated in Holmes v. City of Little Rock, supra:

The rules controlling appellate review of annexation cases in Arkansas are well settled. A majority of electors voting in favor of annexation makes a prima facie case for annexation, and the burden rests on those objecting to produce sufficient evidence to defeat the prima facie case. (Cites omitted). By the very nature of this type of litigation, there is a wide latitude for divergence of opinion and consequently, a high degree of reliance must be placed upon the findings of the trial judge (Cite omitted). This court’s task is not to decide where the preponderance of the evidence lies, but solely and simply to ascertain whether the trial court’s findings of fact are clearly erroneous. ARCP Rule 52.

Our decisions since reflect a consistent application of these standards. Chappell v. City of Russellville, supra; Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985). With the standard set forth in Holmes in mind, we review the trial court’s findings regarding each tract. They deserve verbatim recitation, for it is the appellants’ burden to prove them clearly wrong; those findings of fact are included as an addendum to this opinion.

The appellants mainly attack the annexation of tracts which include flood plains and agricultural lands. They are tracts 2A, 2B, 2C, 4 and 6. These tracts are south, southwest and southeast of the city limits of Pine Bluff. All include some residential property, some more than others; some include small farms of 2 Vi to 20 or 30 acres. Tract 6, which straddles the main traffic arteries southwest of the city and the intersection of Highway 65 and 65 B, includes several trailer parks and a 750 acre farm. That land is directly in the path of city growth toward the airport and is adjacent to a new industrial mall. Some of the appellants’ witnesses conceded the mall will make all adjoining property more valuable for development including part of the farm. Even the owner of the farm conceded the farm and along the highway next to the mall would be enhanced in value. No one proposed a line where that increased value would begin or end on the farm. Thirty-eighth Street cuts through this farm. The fact that the land is agricultural and the owner does not want it developed does not determine its fate as to annexation. Planque v. City of Eureka Springs, 243 Ark. 361, 419 S.W.2d 788 (1967). The owner will not have to abandon its use and its assessment for taxation shall be as agricultural land. Ark. Stat. Ann. § 19-307.1 (Repl. 1980).

In Holmes, when we approved annexation of land that included a pecan orchard, we said:

. . . .While a pecan orchard exists on a part of the tract, it is permissible to annex a tract of land if that tract is more valuable for city purposes than for agriculture, even if the one tract is more valuable for farming purposes than for city purposes.

Simply because land is in a flood plain does not exclude it from consideration for annexation. Holmes v. City of Little Rock, supra. In this case the flood plain generally separates the existing city limits from a growing residential area beyond the flood plain. If a city could not encompass a flood plain, it would mean its legal boundary could not be extended beyond a low lying area, creek or swampland, although the growth of the urban area continued on the other side; or it would mean the city limits would somehow have to jump or go around the flood plain. The trial court found the proposal in this respect in compliance with the statute. The court listened to the testimony, observed the witnesses, saw the exhibits, and determined the flood plain did not prevent annexation.

Altogether, the city’s proposed annexation proves to be an honest effort by Pine Bluff to extend its boundaries to encompass the actual growth of the city and land needed for municipal purposes as defined by law. That does not mean we will recognize annexation proposals that are essentially land grabs beyond the actual growth of the city with no serious goal of responsible land use planning. Gay v. City of Springdale, supra.

We find that the appellants have failed to meet their burden of demonstrating that the trial judge was clearly wrong. There is ample evidence to support all his findings.

The argument regarding the legal description of the land is a question of law. Ark. Stat. Ann. § 19-307.2 provides “[t]he annexation ordinance shall (1) contain an accurate description of the lands desired to be annexed.” Rather than specify each tract separately with a legal description encompassing the proposed land, the city described all the land by metes and bounds as “the area included in the following description not currently in the City of Pine Bluff.” The description encompassed the existing city limits and the eight tracts to be annexed. One expert witness testified for the appellants that the description could not be drawn to satisfy the statutory requirements; one expert for the city said that while it was not the best description, he could, with the aid of the map referred to in the ordinance, plat the new city limits. In Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973), we held that a legal description, which described merely a line, did not comply with statutory requirements. That case is distinguishable. Here a map was referred to in the ordinance, undoubtedly one of the exhibits at the trial, and was duly filed with the circuit clerk after the election. The trial court found that “. . . although the method of description used herein may not be the most desirable it does properly and sufficiently describe the property sought to be annexed.” That conclusion is not clearly wrong.

Affirmed.

Purtle, J., dissents.

ADDENDUM

The plaintiffs own land or live in one of the following areas being annexed, viz, Area 1, 2, 6 or 8. Areas 1 and 2 extend from the northeast part of Pine Bluff to the southwest part of Pine Bluff. Northwest, west and southwest represents the direction of city growth for residential, considerable commercial and some major industrial growth. There is no question that these areas sought to be annexed are largely platted and held for sale or use as municipal lots; and/or whether platted or not, are held to be sold as suburban property. They furnish the abode, in much of the area, for densely settled communities, or represent the actual growth of the municipality beyond its legal boundaries. The flood plain area which divides the city is needed for proper municipal purposes such as proper development regulation, police and fire protection and flood control. The lands’ highest and best use is for something other than agriculture or horticulture.

No one who owned land or lived in areas #3, #4, or #5 has opposed the annexation. Areas §3 and #5 are almost solely residential and clearly lands held to be sold as suburban property and do represent the actual growth of the municipality beyond its legal boundaries. Both are fast growth areas for residential development. Area §3 is located in close proximity to the Rosswood Country Club and many new residential developments. Area 5, on the south end of Ohio Street is relatively small with several new dwellings and is an extension of the city beyond the city limits.

Area #4 encompasses land on either side of Highway 15 South with the west boundary thereof being the present city limits and the east boundary running, more or less, parallel with Highway 15 South. On the north end of this area we find a rather wide flood plain and from there south several commercial businesses and many homes. There are some residential developments on and off Highway 15 South in this area. Highway 15 South constitutes the only reasonable route for access to the extreme southern part of Pine Bluff which is immediately west of Area #4. Emergency vehicles must go outside the city limits to serve the southernmost part of Pine Bluff. This southernmost area of Pine Bluff (between area #3 and area #4 sought to be annexed) is well developed subdivisions of family dwellings. This area #4 definitely represents the actual growth of the city beyond its legal boundaries and is needed for proper municipal purposes as for the extension of police and fire protection, flood control and proper land management and planning in this area.

Area #6, a part of which is platted, is located on both sides of Highway 65 South and a small strip east of the Martha Mitchell Expressway. Thirty-eighth Street from the present city limits intersects Highway 65 near the middle of this area. These transportation arteries, which are major ones in the City of Pine Bluff merge near the center of area #6. Approximately 600 people live in this area. There are quite a few residential type homes, four rather large mobile home parks and several commercial businesses. The municipal airport is located just south of this area. There has been rapid development of residences and commercial business in the immediate area, and in the vicinity of area #6, an industrial mall costing millions is being constructed at this time adjoining this area immediately between Highway 65B and Highway 65. The present city limits move back and forth across Highway 65 in this area. Emergency vehicles move in and out of the city limits when going from northeast Pine Bluff to southeast Pine Bluff or vice versa. This area #6 furnishes the abode for an area that is partially a densely settled community, and the whole area represents the actual growth of the city beyond its legal boundaries. Also the strip of land on the east and north of Highway 65 are lands needed for proper municipal purposes such as for the extension of needed police and fire regulation and protection, proper land use planning, sewage and drainage.

Area #7, a part of which is platted, is land between Lake Langhoffer (Slackwater Harbor) and Cotton Belt Shops which is already in the city limits. This area includes the Pine Bluff Industrial Park on the Slackwater Harbor. There are eleven or more industrial businesses within the park and others near the southern end of the area. There is a densely settled community at the southernmost end of this area. This whole area distinctly, in part, furnishes the abode for a densely settled community and all of it represents the actual growth of the city beyond its legal boundaries.

Area #8 includes Lake Pine Bluff (which is presently surrounded on three sides by the city limits) and lands along both sides of Highway 79 North extending north of the city limits. Highway 79 and University Street are one and the same within the city limits. The present city limits weave back and forth across Highway 79 North (University Street) in this area and there are many residences and numerous commercial establishments included in the area sought to be annexed. This area represents, without doubt, the actual growth of the city beyond its legal boundaries and also the lands along University, Oliver, and Spruce Streets are needed for proper municipal purposes such as the extension of needed police and fire protection in these and adjoining areas. This would alleviate the necessity of emergency vehicles going outside the city limits to gain access to certain areas which are fairly densely populated.

The city has complied with Ark. Stat. Ann. §19-307.1, and all the lands sought to be annexed were adequately described and meet at least one of the criteria required for annexation.

John I. Purtle, Justice,

dissenting. In Arkansas, cities are creatures of the General Assembly and exercise only those rights and privileges conferred upon them by law. Likewise their responsibilities are generally defined by statute. The legislature has granted cities the right to annex contiguous territory under certain circumstances. The majority opinion correctly identifies the appropriate statutory authority as Ark. Stat. Ann. § 19-307 et seq. This statute specifies the five conditions for annexation. Any one of the five grounds qualifies the area for possible annexation. However, Ark. Stat. Ann. § 19-307.1 states:

[Contiguous lands shall not be annexed when they either: (1) have a fair market value at the time of the adoption of the ordinance of lands used only for agriculture [agricultural] or horticulture [horticultural] purposes and the highest and best use of said lands is for agricultural or horticulture [horticultural] purposes; or (2) ... .

The other statute pertinent to this dissent is Ark. Stat. Ann. §19-307.2 (1) which requires the municipality to enact an ordinance containing an accurate description of the lands proposed to be annexed. It is my opinion that much of the nine thousand acres to be annexed were agricultural and that there was no accurate description of the annexed area contained in the ordinance of annexation.

One of the exceptions to contiguous lands which may be annexed is lands which have a fair market value of lands used only for agricultural or horticultural purposes, and their highest and best use is for such purposes. See Ark. Stat. Ann. § 19-307.1. Annexation of excluded lands is void. Saunders v. City of Little Rock, 262 Ark. 256, 556 S.W.2d 874 (1977). I realize this Court trampled on Saunders to some extent in Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985). However, the law has not changed. We clearly stated the law in Chappell v. City of Russellville, 288 Ark. 261, 704 S.W.2d 166 (1986), when we stated, “If a part of the proposed area does not meet one of the requirements, then the entire area is voided in toto.” In Holmes we stated, “There was an abundance of testimony in this case that all the land being annexed was best suited for residential and commercial purposes rather than for agricultural purposes. Before 1975, lands used for agricultural purposes could not be annexed.” Also, in Gay v. City of Springdale, 287 Ark. 55, 696 S.W.2d 723 (1985), we held, as in Holmes, that farmlands may be annexed if their highest and best use is for a purpose other than agricultural.

The area annexed in the present case contains one dwelling unit per 5 acres of land. Mr. Ben Pierce testified he had a sod farm containing more than 100 acres. This farm land was located in the floodway where there was no potential other than for agricultural purposes. Mr. Dean Parker testified that there was a 160 acre farm adjacent to his residence. In addition, Robert W. Phillips testified that he and his family had owned 750 acres of land since 1814 and it had always been used as farm land. This farm was also located in the flood plains. His testimony was that the highest and best use of the land was for agricultural purposes and that it had no fair market value for any other use. This testimony was not disputed except by generalization and inference of employees of the City. The law has not changed since Chappell, Holmes, Gay and Saunders. In none of these cases have we held that farmlands, which are used as such, and such use is the highest and best use, are subject to involuntary annexation. Nor does the law permit it. There is no basis in the record to support the finding by the trial court that the highest and best use of these farm lands was for some other purpose. The vote in the areas of annexation in the present case was 9 to 1 against the proposal. The ratio of population in the annexed area and the existing City is about 65 to 1. In my opinion the majority is granting unlimited power to municipalities to annex any and all lands so long as they are contiguous to the municipality or contiguous to contiguous land even if the highest and best use is for agricultural purposes. I submit such was not the intent of the legislature when it enacted the annexation statutes.

The description of the annexed lands was contested in the trial court. I believe the description of the lands proposed for annexation is not accurate. Basically the description commenced at a point on the existing city boundary and encircled all the areas proposed for annexation, including the already incorporated area of the City, and purportedly returned to the point of beginning. None of the tracts proposed for annexation were described to the extent one could identify the individual tract. In Parrish v. City of Russellville, 253 Ark. 1000, 490 S.W.2d 126 (1973), this court held that a description was inaccurate when it commenced at a point on the existing city boundary and terminated at another point on the city boundary. The description in Parrish was exactly as it is in the present case as it relates to each of the ten areas proposed for annexation. No single area is encircled by the proposed boundary. As to each tract the description is incomplete and inaccurate. We had a similar situation in City of NLR v. Garner, 256 Ark. 1025, 511 S.W.2d 656 (1974), wherein we held the description to be inaccurate. In Garner the description started at a point on the existing city boundary and ended at the Arkansas River. Clearly, as in Parrish, a geographical area was identified but we nevertheless held such description to be inaccurate. The annexing ordinance did not at any time describe the geographic boundary of any area to be annexed. I have searched the record and find no evidence that a map of the area proposed for annexation was filed until after the election. It would not have been possible for the average citizen to have determined the areas included in the proposal by looking at the ordinance. The metes and bounds description was defective in my opinion. A “land grab” of this magnitude should not be allowed without full compliance with the law. A city cannot annex another city and certainly common sense and the law tells me it cannot annex itself. The finding that the description properly and sufficiently described the lands to be annexed did not rise to the legal requirement that the area be “accurately” described.

I would reverse and dismiss.


author: John I. Purtle, Justice.

text:
    IN THE MATTER OF THE ESTATE OF Florence S. CAISSON, Deceased Carlos HOUSTON, Kenneth HARP and Nancy CLARK, et al., Natural Heirs of Florence S. CAISSON v. Charles E. MOORE and Mary J. HALL, et al., Adoptive Heirs of Florence S. CAISSON
    86-29
    710 S.W.2d 211
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Laws & Swain, P.A., by: Ike Allen Laws, Jr., and Timothy W. Murdoch, for appellants.

      Gardner, Gardner & Hardin, by: Robert W. Hardin, for appellee.
   John I. Purtle, Justice.

The only question presented in this appeal is whether the adoptive or blood heirs of an intestate decedent inherit the estate of an adopted child. The trial court held that the law pertaining to descent and distribution at the time of decedent’s death controlled. We agree with the trial court.

Decedent was adopted in 1918. The adoption is not challenged in this proceeding. The intestate did not have issue and her adoptive parents predeceased' her. There is no factual dispute to be decided.

The current adoption statute, Ark. Stat. Ann. § 56-215 (a)(l)(Supp. 1985) states in part as follows:

A final decree of adoption. . . terminate all legal relationships between the adopted individual and his relatives, including his natural parents, so that the adopted individual thereafter is a stranger to his former relatives for all purposes including inheritance. . . .

Appellants rely on Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950), and Dean v. Smith, 195 Ark. 614, 113 S.W.2d 485 (1938), to support the contention that the law in force at the time of the adoption is controlling on matters of inheritance. Both of the above cases dealt with the right of inheritance by an adopted child. Neither treated the matter of the inheritance from the estate of an adopted child. It does not appear that we have decided this issue previously. We do not hesitate to hold that the law in effect at the time of the death of the adopted child is controlling on matters of inheritance. To hold otherwise would create a myriad of problems and confuse the law.

The right to inherit property does not vest until the death of the owner and the devolution of property is controlled either by common law or statute. The state has sovereign political power to regulate succession to intestate property. Irving Trust Company v. Day, 314 U.S. 556 (1942); Couch v. Couch, 248 S.W.2d 327 and Moody v. Hagen, 162 N.W. 704, Aff. 245 U.S. 633 (1917). The Arkansas General Assembly has enacted Ark. Stat. Ann. § 56-215(a)(l) which clearly states that a decree of adoption terminates all legal relationships between the child and his relatives to the extent that the former (blood) relatives become strangers even for the purpose of inheritance.

We therefore hold the law in effect at the time of the death of an adopted child controls the distribution of his estate. Under our statutes in force at the time of the death of the intestate, the heirs of the adoptive parents inherit to the exclusion of the blood relatives.

Affirmed.


author: Steele Hays, Justice.

text:
    COOPER, INC. v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, et al. and Vernon BLOCK v. FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, et al.
    85-248
    711 S.W.2d 155
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Charles R. Easterling, for appellants.

      Barrett, Wheatley, Smith & Deacon, for appellee Farm Bureau Mutual Insurance Company of Arkansas, Inc.

      Friday, Eldredge & Clark, by: Michael G. Smith, for appellees Continental Grain Company, Pillsbury Company, Cargill, Inc. and Archer-Daniels-Midland Company.
   Steele Hays, Justice.

Appellants Vernon Block and Cooper, Inc. are farmers. Appellee Harrisburg Elevators, Inc. is a licensed, public grain warehouseman. During October and November, 1982, Cooper delivered a total of 24,648 bushels of soybeans to Harrisburg and Block delivered 2,179 bushels. After the beans were stored and commingled Cooper and Block entered into contracts with Harrisburg which gave the “sellers” the right to conclude the sale at some future date of their choosing by receiving a final price based on the market value of the soybeans as of that day. After the contracts were signed Cooper and Block received an advance payment of $4.50 per bushel.

The soybeans were eventually sold by Harrisburg to four grain companies, appellees Continental Grain Company, The Pillsbury Company, Cargill, Inc. and Archer-Daniels-Midland Company. In March, 1983 Harrisburg’s license was suspended following an audit by the Arkansas State Plant Board and the warehouse filed in bankruptcy.

In separate actions, Cooper and Block brought suit against Harrisburg Elevators, Arkansas Farm Bureau Insurance Company, surety on Harrisburg’s bond, and against the four grain companies. The complaints alleged that because of deficiencies in the written contract, title to the soybeans remained in Cooper and Block until the final price was determined and since that had not occurred the sales by Harrisburg to the grain companies were conversions. Cooper and Block contend the soybeans had a market price of $6.63 per bushel and Harrisburg’s inability to perform its contract has damaged them accordingly.

The defendants filed motions for summary judgment based on the pleadings, exhibits, affidavits and responses to interrogatories, contending there were no genuine issues of material fact. The defendant grain companies also pled estoppel and alleged any damage Cooper and Block may have sustained was the proximate result of their own negligence in delivering their soybeans to Harrisburg under an appearance of title. The trial court sustained the motions for summary judgment upon a finding that by entering into the contracts and receiving a $4.50 per bushel advance, Cooper and Block conveyed title to their soybeans and, hence, no action in conversion exists as a matter of law. Summary judgment on behalf of Farm Bureau was granted on the admitted fact that Cooper and Block held no warehouse receipts, a necessary condition under Farm Bureau’s bond. Cooper and Block have appealed and the two cases were consolidated for purposes of appeal. We affirm as to Farm Bureau and reverse as to the remaining appellees.

The issue of liability under the bond of Farm Bureau can be quickly disposed of. The trial judge held correctly that the bond was intended only for the protection of holders of warehouse receipts. Ark. Stat. Ann. § 77-1315(a) (Repl. 1981); Farm Bureau Mutual Ins. Co. v. Wright, 285 Ark. 228, 686 S.W.2d 778 (1985). Since Cooper and Block admittedly hold only unpriced scale tickets and not warehouse receipts, there could be no recovery under the bond and, hence, no cause of action against Farm Bureau. Appellants’ argument that Act 264 of 1983 amends Section 2 of The Public Grain Warehouse Law (Ark. Stat. Ann. § 77-1301 through 1342), by including an “unpriced scale ticket” within the definition of a warehouse receipt can be answered by noting that these transactions occurred in October and November 1982, well before the February 25,1983 effective date of Act 264. Appellants do not contend the amendment should be given retroactive effect. Accordingly, the summary judgment and order with respect to Farm Bureau Mutual Insurance Company of Arkansas, Inc., is affirmed.

We begin our consideration of the propriety of granting summary judgment to the remaining defendants, the appellees, by noting that summary judgment is an extraordinary remedy. Windham, Inc. v. Reynolds Insurance Agency, 279 Ark. 317, 651 S.W.2d 74 (1983); Talley v. MFA Mutual Insurance Co., 273 Ark. 269, 620 S.W.2d 260 (1981). It is, by definition, difficult to sustain. “Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable men might differ.” Clemens v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985).

Both sides cite us to Act 401 of 1981 (Ark. Stat. Ann. § 77-1340):

Ownership of grain shall not change by reason of an owner delivering grain to a public grain warehouseman, and no public grain warehouseman shall sell or encumber any grain within his possession unless the owner of the grain has by written document transferred title of the grain to the warehouseman. Notwithstanding any provision of the Uniform Commercial Code (Act 185 of 1961 (§ 85-1-101 et seq.), as amended) to the contrary, or any other law to the contrary, all sales and encumbrances of grain by public grain warehousemen are void and convey no title unless such sales and encumbrances are supported by a written document executed by the owner specifically conveying title to the grain to the public grain warehouseman. (Our italics.)

Appellants point out that the contracts signed by Cooper and Block fail to contain a provision specifically conveying title to the soybeans, which the enactment plainly requires. Appellees concede the absence of such language, but urge that the words “We (referring to Harrisburg Elevators) confirm purchase from you of:”, followed by a description of the soybeans, suffices. We disagree. The contract is a printed form bearing the letterhead of Harrisburg Elevators and is entitled “Deferred Price Purchase Contract.” It is composed of a single page and includes printed general terms and typed special terms reading as follows:

Seller understands the grain may or may not be physically stored at buyer’s warehouse. Seller must price grain on or before open at buyer’s daily price.

Harrisburg is identified as the buyer and Block (or Cooper) as the seller in several places.

In Farm Bureau Mutual Insurance Company v. Wright, 285 Ark. 228, 686 S.W.2d 778 (1985) we examined this statute and recognized its purpose — to protect farmers who have stored their grain in public warehouses. That case differs from the one before us in that Wright had admittedly made a “spot sale” at his farm to the warehouse, and the issue was whether Act 401 applied to grain that was sold outright and never stored or commingled with other grain. Thus Wright has only general relevance to this case.

The case more nearly resembles Tucker v. Durham, 285 Ark. 264, 686 S.W.2d 402 (1985), where the appellant urged we should not be guided by Act 401 because its only purpose was to limit the warehouseman in selling stored grain to third parties and voiding such sales when title has not been specifically conferred in writing by the producer upon the warehouseman. We said:

The Warehouse Law, however, makes it clear that unless transfer of title from the producer to the warehouseman has occurred, the grain is to be regarded as stored rather than sold, so the giving and taking of an advance payment does not remove the storer from the bond’s protection.

Appellees argue that the words “we confirm purchase from you ...” constitute sufficient compliance with Act 401, since they tell the owner in common parlance that he is selling his grain. In the context of routine transactions we might agree, but the legislature has seen fit by the enactment of Act 401 to leave nothing to doubt, and has declared that no title shall be transferred unless title is specifically conveyed to the warehouseman by a written document signed by the owner. We think that language must be taken literally, to do less would be to disregard the plain intent and purpose of the statute. Some analogy can be found in the Freedom of Information Act, Ark. Stat. Ann. § 12-2801 et seq., wherein the legislature has declared that all public records are subject to inspection, “[e]xcept as otherwise specifically provided by laws now in effect, or laws hereafter specifically enacted to provide otherwise” (our italics). We have held that such imperatives require literal compliance. Ragland v. Yeargin, 288 Ark. 81, 702 S.W.2d 23 (1986); Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981).

Other factors support this view: appellants offered proof that in October of 1981 the Arkansas State Plant Board notified Harrisburg that its contracts for deferred pricing should include a statement that the farmer understands he is transferring title to the buyer. The Plant Board spelled out the requirements of Act 401 in the following language:

The undersigned seller of grain indicated on this deferred pricing contract fully understands that he is transferring title of said grain to the buyer and is relinquishing all control of the grain to the buyer. The seller further understands that the buyer can sell and move the grain at any time before the seller receives actual payment for the grain. (Our italics.)

Despite this, the contracts between Harrisburg and Cooper and Block, prepared nearly a year later, failed to contain the crucial language. Had Harrisburg followed the Plant Board’s directive, there would be little basis for any misunderstanding between the parties.

Too, Cooper and Block tendered affidavits in opposition to the motions for summary judgment, asserting that they were never told they were relinquishing title to the soybeans, but were told by representatives of Harrisburg that when the final price was determined Cooper and Block would be charged $.03 per bushel per month for storage. This arrangement, if true, weighs in favor of the premise that Cooper and Block were still the owners of the soybeans until the final price was determined, for if Harrisburg were the owner, why would Cooper and Block be answerable for storage? Nor do we think these contracts were so complete and unambiguous in their terms as to withstand parol evidence to determine the intent of the parties. Peevy v. Bell, 255 Ark. 663, 501 S.W.2d 767 (1973); Kyser v. T. M. Bragg & Sons, 228 Ark. 578, 309 S.W.2d 198 (1958). These contracts leave a good deal to speculation. There is no stated formula for determining future price, and the special terms, set out above, state merely the “Seller” must price the grain on or before a date referred to only as “open.” In short, we think it would be difficult indeed to enforce these contracts without reference to parol evidence. Jefferson Square, Inc. v. Hart Shoes, 239 Ark. 129, 388 S.W.2d 902 (1965); Smock v. Corpier, 226 Ark. 701, 292 S.W.2d 260 (1956).

We conclude that since the contracts failed to comply with Act 401, the appellees cannot argue successfully that the title was transferred.

Affirmed as to Farm Bureau Mutual Insurance Company, reversed and remanded as to the remaining appellees for trial on the remaining issues.

Affirmed in part, reversed and remanded in part.

Purtle, J., not participating.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Jimmie WILBURN v. STATE of Arkansas
    CR 86-7
    711 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      William R. Simpson, Jr., Public Defender, Arthur L. Allen, Deputy Public Defender, and Jerry Sailings, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Connie Griffin, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of first degree murder and sentenced to life imprisonment. He alleges three errors: (1) that he was improperly denied the opportunity to present certain expert testimony; (2) that evidence of a juvenile conviction was improperly admitted;, and (3) that the prosecutor was allowed to make an improper and prejudicial remark on closing argument. W'e find no merit in these contentions, and thus we affirm.

The appellant confessed to having killed his former employer. The killing occurred in April, 1984. The decedent had discharged the appellant from his job in 1981, and the evidence showed the appellant had harbored a grudge through ensuing marital and financial hard times. He went to his former place of employment with a pistol and shot the victim five times. In his statement, he admitted to having gone to the scene to do some bodily harm to the victim, and ultimately the appellant said he guessed he wanted to kill the victim.

1. Expert Testimony

As he admitted having done the killing, the appellant’s evidence was aimed at convincing the jury he should be convicted of an offense other than the capital murder with which he was charged. He hoped to show he should be convicted only of manslaughter because he had caused the death “under circumstances that would [have been murder but for]. . . the influence of extreme emotional disturbance for which there is a reasonable excuse.” See Ark. Stat. Ann. § 41-1504(1 )(a) (Repl. 1977). To demonstrate his mental condition the appellant proffered the testimony of Dwight Merritt, director of the Little Rock V eterans Counseling Service. Merritt was prepared to testify as to the symptoms of post-traumatic stress syndrome. While Merritt had not counseled the appellant, the appellant wanted Merritt to be allowed to give his opinion about the effects the appellant’s combat experiences in Vietnam could have produced on his mental state. Merritt’s opinion was to have been based on records of counseling the appellant received from 1981-1983 at the counseling center operated by Merritt.

When the evidence was proffered, a long discussion among the court and counsel, out of the jury’s presence, occurred. Ultimately, the court suggested the appellant’s counsel place Merritt’s proffered testimony on the record. Appellant’s counsel asked Merritt if, on the basis of the veterans center records, he could say if the appellant was under the influence of extreme emotional disturbance during the time he was being counseled. Merritt said the appellant was under such influence and that it was not the sort of disturbance likely to disappear rapidly. The court ruled that, although Merritt could testify as to the literal contents of the center’s records, he would not be allowed to give such a diagnostic opinion. He said (1) the records upon which Merritt’s opinion was based were too remote in time from the offense, and (2) while Merritt had demonstrated his qualifications as a social worker, he was not a doctor qualified to make a medical diagnosis on the basis of the records.

When the trial resumed, the appellant did not put Merritt on the witness stand but called Ken Stout, a readjustment counselor assistant at the center. Stout testified as to the contents of the records pertaining to the counseling of the appellant at the center. He was allowed to testify about the code markings placed on the records by the counselor who worked with the appellant, but while they showed areas of concern, such as alcohol and drug abuse, they showed nothing about the appellant’s contention of extreme emotional disturbance at the time the counseling occurred.

The test as to whether a witness qualifies as an expert is whether, on the basis of his qualifications, he has knowledge of the subject at hand which is beyond that of ordinary persons. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984). We will not reverse the trial court’s determination absent a showing of an abuse of discretion. Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980).

The question here is simply whether Merritt, who was concededly an expert in the field of social work, was qualified to diagnose the appellant’s mental condition. The appellant cites us to the legislative definition of the “practice of social work.” Ark. Stat. Ann. § 71-2803(b) (Supp. 1985). It says, in its most relevant part, that social work is “a professional service which effects change in social conditions, human behavior and emotional responses of individuals.” The statute cited says nothing about diagnosis.

In Robinson v. State, 274 Ark. 312, 624 S.W.2d 312 (1981), we held the court did not err in refusing to allow a psychological examiner to give an expert opinion as to the mental condition of an accused. We cited the statutes defining the roles and responsibilities of variously qualified psychologists and noted that nothing in the statutes clearly said that a psychological examiner was qualified to offer his own opinion on mental illness absent supervision by a consulting or clinical psychologist. We held there, as we do here, that the trial court did not abuse his discretion in refusing the evidence proffered.

2. The Juvenile Record

The wife of the appellant testified first for the state and was then called as a defense witness, whereupon she was asked if she were aware of the appellant’s “ever having been convicted of a crime.” She answered “no.” Before cross examination, counsel approached the bench, and the prosecutor told the court he planned to ask whether the witness knew the appellant had been sent to the training school for burglary when he was fourteen or fifteen years of age. The appellant’s counsel objected, contending he had not opened the character of the appellant to cross examination and that juvenile offenses are “off limits.” The court ruled that the defense had inquired as to the appellant’s character and that a general question about the incident would be proper. The prosecutor asked if the witness knew that as a juvenile the appellant was convicted and sent to Boys’ Training School. She replied “yes.”

Uniform Rule of Evidence 609(d) precludes use of a juvenile adjudication to attack the credibility of a witness. The appellant concedes that rule does not apply here, as it applies only when the witness is being examined about his own prior convictions rather than those of the accused. Uniform Rule of Evidence 609(a); Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986).

Rule 405(a) deals with methods of proving character. It says that on cross examination a character witness may be asked about relevant specific instances of conduct. We pointed out in Reel v. State, supra, that if a witness does not know about a specific instance her credibility suffers. If she knows but disregards it, that may go to the weight to be given the character witness’s opinion of the accused. We also noted we would not, by analogy, import a limitation appearing in Rule 609 into Rule 405. We held that by producing a character witness the appellant had opened the door to evidence which might otherwise have been inadmissible.

While the facts before us now are different, the principle we enunciated in Reel v. State, supra, applies. The witness gave no opinion as to the character of the appellant, but she was asked if she knew of his having ever been convicted of a crime. The only purpose that question could have had was to show the appellant was a person not disposed to commit crimes. She was thus a character witness. The door was open. The appellant’s argument is essentially that with respect to juvenile adjudications the door is never open because of Ark. Stat. Ann. § 45-444 (Repl. 1977) which provides:

Evidence not admissible in other courts—
No evidence adduced against a juvenile in any proceeding under this Act [§§ 45-401 — 45-449], nor the fact of adjudication or disposition, shall be admissible evidence against such juvenile in any civil, criminal, or other proceeding. Provided: such evidence shall be admissible, where proper, in subsequent proceedings against the same juvenile under this Act.

We can ascertain from the record that the incident with respect to which the witness was questioned occurred long before 1975, the year Act 451 containing the above quoted section was passed. Even if the statute applies to the “conviction” to which the cross examination was directed, it does no more than make it inadmissible. Certainly the state coiild not have elicited the testimony on direct examination. Our point here, however, is that by asking a question going to the appellant’s character, the appellant’s counsel made admissible that which would not otherwise have been admissible.

We applied the same principle in Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), a civil case in which damages were awarded as the result of a shooting incident. The appellant testified on direct examination that he had never shot at anybody and had never had any problem in his life other than a speeding ticket. The arresting officer then was allowed to testify that the appellant had a reputation for violence when he was drinking. Had that evidence been offered by the state before the appellant gave character testimony, it would clearly have been inadmissible. See Rule 404(a)(1). However, we said, “[w]hen a proponent opens the door to a line of questioning, the opposing party may fight fire with fire by introducing rebuttal testimony on that issue.” 283 Ark. at 33, 670 S.W.2d at 449.

3. Closing Argument

In his closing argument the prosecutor said this to the jury:

. . . In opening statement, the defense attorney also told you that no one knows what happened out there that night, not us, not him, not his client, not you, not the court, not the police department, nobody. There’s people that do. Von Andrews did and he’s been killed to keep him from telling what he knows about it. The defendant does. He’s told part of it but he’s not going to tell us the rest. Common sense tells you, ladies and gentlemen, that actions speak louder than words. In fact, in Arkansas, I think it was a former politician that made the phrase, “Just because I said it doesn’t necessarily make it so.” And, ladies and gentlemen, just because the defendant said he didn’t remember or didn’t plan doesn’t necessarily make it so. Intent in a criminal case is always circumstantial. You compare and contrast his actions with his statements. Let us remember, too, that in his statement, he finally does admit, “Well, I guess I went out there with the intent to do some bodily harm.”
I can say I don’t mean to come over here and pick up this pen, but a person is presumed to know the consequences of their action. It’s a purposeful act to pick that up, to pick up the copy, to pick up the paper. It’s a purposeful act to go to the pawn shop and get your .44 caliber Magnum . . .

The appellant objected contending this argument shifted the burden of proof on the issue of intent from the state to the appellant. We have no quarrel with the notion that the burden may not be shifted or with the cases saying that would be a violation of the appellant’s right to due process. See Francis v. Franklin, 471 U.S.__, 105 S. Ct. 1965 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979). However, we do not believe the statement by the prosecutor had any such effect. The cases cited by the appellant dealt with improper instructions. Here we are concerned only with argument.

The argument could have been perceived by the jurors as meaning that by going to the pawn shop to reclaim his pistol on the day of the killing the appellant exhibited forethought or a plan to kill the victim. The other inference, i.e., that the appellant killed the victim and therefore must have intended to do so was not necessitated by the prosecutor’s language.

Our court of appeals was faced squarely with this problem in Weddle v. State, 15 Ark. App. 402, 695 S.W.2d 840 (1985). It was held, correctly, that when the court has told the jury, as it did in the case before us now, that it must decide on the evidence, that the lawyers’ arguments are not evidence, and that the decision must be in accordance with the court’s instructions, the argument did not have the effect of an instruction on the burden of proof.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant argues the trial court erred in refusing to qualify Mr. Merritt, the Director of the Little Rock Veteran’s Counseling Service, as an expert. The appellant sought to introduce testimony from Merritt to explain the symptoms of post-traumatic stress disorder (PTSD). One theory for the defense was that the accused was suffering from severe stress since his service in Vietnam and, therefore, the homicide was committed “under circumstances that would be murder but for the influence of extreme emotional disturbance . . .”, i.e., manslaughter (Ark. Stat. Ann. § 41-1504(1) (a)).

The appellant has correctly stated that whether a witness qualifies as an expert is largely within the trial court’s discretion, citing Dixon v. State, 268 Ark. 471 (1980). The decision of the trial court will not be reversed in the absence of abuse of such discretion. The appellant has cited the case of Dildine v. Clark Equipment Co., 282 Ark. 130 (1984), for the proposition that a liberal interpretation should be given by the trial court in determining whether a witness qualifies as an expert. In Dildine the appellant brought a products liability suit to recover for personal injuries sustained when he was thrown from a front end grain loader. At the trial, the court refused to allow the appellant’s witness, Dr. Robert Mink, to testify as an expert. This Court held that this case required reversal under U.R.E. 702, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In reversing, we based our decision largely on the fact that Dr. Mink’s background showed that he possessed significant experience and training in the field of mechanical engineering. In Dildine, the witness had a Ph.D., a masters degree in machinery design, and was the Chairman of the Engineering Department of A.S.U. We noted that there was no evidence to the contrary to show that the witness was not qualified to testify as an expert.

In the instant appeal, the witness had a masters degree in social work, had extensive training in stress disorders and had five years experience in counseling with Vietnam Vets who experienced symptoms of PTSD. Therefore, I think the trial court erroneously denied the appellant’s request to qualify this witness as an expert. To hold otherwise would in fact render U.R.E. 702 meaningless and allow only educational achievement to qualify a witness as an expert. Without saying so it seems to me the majority opinion requires a witness in this field to possess a medical degree before he may testify as an expert.

It is my opinion that Mr. Merritt was qualified as an expert by knowledge, skill, experience, training and education. He should have been allowed to testify. The denial deprived the appellant of one of his best defenses, and amounted to an abuse of the trial judge’s discretion.

I also agree with appellant’s argument that any evidence that he was sent to a reform school as a juvenile should have been excluded. Arkansas Stat; Ann. § 45-444 specifically proscribes the introduction of a juvenile record in any civil or criminal proceeding, except other proceedings under the Act. Appellant’s wife was a factual witness on behalf of the State. The defense also called the wife as a witness. She was not called as a character witness. As a defense witness she stated that she had been married to appellant since 1971 and that she was not aware that the defendant had been convicted of any crime. During cross examination the State asked, “Are you aware of Jimmie ever having been convicted of a crime?” She replied, “No.” The state was then allowed to ask the witness if she knew the appellant had been sent to the Boys Training School twenty-five years ago, at the age of 15. The witness replied, “Yes.”

Arkansas Stat. Ann. § 45-444 (Repl. 1977), in pertinent part states, “No evidence adduced against a juvenile in any proceeding under this Act (45-401 — 45-449) nor the fact of adjudication or disposition, (emphasis added) shall be admissible against such juvenile in any civil, criminal, or other proceeding. . . .”

The state argues appellant invited the question by asking if the witness was aware of a prior conviction of the defendant. The state cites Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986), as authority. I think Reel is inapposite because it dealt with testimony of a character witness pursuant to U.R.E. 405(a). In the case before us the witness had not given an opinion about appellant’s reputation or truthfulness. We held in Kellingsworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), that the state cannot, under the guise of rebuttal evidence, impeach a witness on a collateral matter. The reason for the rule, we stated in Kellingsworth, is that to permit such tactic would only distract the jury from the main issue, waste time and prejudice a defendant. In my opinion the state asked the question solely to prejudice the appellant before the jury. Furthermore, there is no evidence that appellant was ever convicted of a “crime.” Twenty five years ago, when appellant was 15 years of age, juveniles were routinely sent to “training schools” upon request of a parent or other interested person.

The state is also in error in stating that U.R.E. 609(d) would allow the admissibility of the testimony in question. This rule states in part, “The Court may in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused . . . .” (Emphasis added). The evidence here was that the accused had been adjudicated as a juvenile. The appellant himself, in the absence of Ark. Stat. Ann. § 45-444 and U.R.E. 609(d) might have been properly subjected to cross-examination. Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Even then the probative value of such question must be weighed against the prejudical effect. Floyd v. State, 278 Ark. 432, 645 S.W.2d 690 (1983).

For the reasons above stated I would reverse the case and remand it for a proper trial.


author: Herbert C. Rule III, Special Justice.

text:
    STATE of Arkansas v. Scotty SCOTT
    CR 84-198
    710 S.W.2d 212
    Supreme Court of Arkansas
    Opinion delivered June 9, 1986

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellant.

      John Wesley Hall, Jr., for appellee.
   Herbert C. Rule III, Special Justice.

This case comes before us on appeal by the State of Arkansas under Arkansas Rules of Criminal Procedure 36.10(c) to review the decision of the trial court granting a new trial to Scotty Scott (“Scott”) based on newly discovered evidence. We affirm the grant of a new trial.

Scott was convicted of first degree murder and aggravated robbery in the death of Betty Thornton on November 6, 1981. While that judgment was on appeal to the Arkansas Court of Appeals, counsel for Scott discovered new evidence in the form of a confession by Henry Lucas (“Lucas”). The Court of Appeals remanded the case to the trial court to consider Scott’s petition for a writ of error coram nobis.

On remand, the trial court reviewed the transcripts of Scott’s two prior trials, heard the testimony of numerous witnesses, including Lucas, and concluded, under our holding in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), that, despite the presumed validity of the jury verdict against Scott and the heavy burden borne by him, the writ ought to be granted to prevent a miscarriage of justice.

The standard of review by this Court is whether the lower court abused its discretion in granting the writ and a new trial. The State argues that the trial judge applied an erroneous standard of proof to the evidence presented. From a review of the entire record, we believe that the trial court properly applied the legal standards announced in Penn v. State, supra, and did not abuse its discretion. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977).

Under our decisions, the writ of error coram nobis is a closely guarded remedy. In Penn v. State, supra, we said:

By granting the right to petition the trial court, we do not in any way enlarge the other restrictions attendant to granting the writ. The trial court has the discretion to grant or deny it. The petitioner has a heavy burden to meet, especially in a case like this which must be approached with some skepticism for confessions by others are not uncommon. A written confession by another would not, alone, be grounds for relief. . . .
We emphasize that we do not open the door to other petitions beyond those that would qualify under the facts in this case, especially the fact that it is presently between trial and appeal and can easily provide for an early hearing before the court that just heard the case. The petition was timely filed and if the confession is true, an injustice would obviously result if it were not granted.

The trial judge weighed the credibility of the witnesses and noted the internal conflicts in Lucas’ confession as well as the inconsistency between his testimony at the hearing and his earlier statements to the police. Lucas’ confession is obviously material to the guilt or innocence of Scott. It is the trial court’s proper function to review newly discovered evidence, evaluate it and, where its exclusion would cause a grave miscarriage of justice, grant a new trial.

Scott argues on cross appeal that the State wrongly withheld Lucas’ confession and, for that reason, we should grant sanctions against the State. Lucas’ confession, even with its inconsistencies, was clearly exculpatory of Scott, and the arguments for withholding it are not impressive. Although we do not believe sanctions are in order, we would caution prosecutors to comply fully with the letter and spirit of Rule 17, Arkansas Rules of Criminal Procedure in the future.

Finally, we deny Scott’s' request for affirmance for the State’s failure to abstract the record properly. Brace v. Busboon, 261 Ark. 556, 549 S.W.2d 802 (1977).

Affirmed.

Special Justice Kelvin Wyrick concurs.

Holt, C.J., and Purtle, J., not participating.