author: Tom Glaze, Justice.

text:
    William R. NOLAND v. Olivia L. NOLAND
    96-430
    932 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Montgomery & Wyatt, by: Orin Eddy Montgomery, for appellant.

      Mays & Crutcher, P.A., by: Arkie Byrd, for appellee.
   Tom Glaze, Justice.

This appeal is from a divorce case between appellant William Noland and appellee Olivia Noland, but the sole issue is whether the chancery judge erred in denying William’s motion for the chancellor to recuse. We affirm the chancery judge’s decision.

The Nolands had been married for twenty-six years, but had lived separately during most of their marriage. The parties agreed William would take the divorce as an uncontested matter, and their home would be sold, but William contested the award of any alimony and Olivia’s proposed division of marital debts and property, including his retirement pay.

Prior to trial, on October 16, 1995, William had learned that Olivia’s attorney, Arkie Byrd, had previously represented the chancellor involving a personal injury claim in 1992. He stated Byrd’s representation reflected an actual conflict of interest and an appearance of impropriety which required the chancellor’s recusal. A telephone-conference hearing was conducted on William’s motion, and immediately following that hearing, the chancery judge denied William’s request. On October 25, 1995, the parties tried the remaining alimony and property issues and the chancellor entered her decree on all matters on December 4, 1995. In William’s appeal from that December 4, 1995 decree, William raises no points for reversal regarding the divorce decree, but instead only argues the chancellor erred in faffing to recuse.

Arkansas law is clear that a chancellor shall not sit on the determination of any cause or proceeding in which he or she is interested, or related to either party within the fourth degree of consanguinity or affinity, or shall have been of counsel. See Ark. Code Ann. § 16-13-312 (1987); Ark. Const, art. 7, § 20. The interest which is disqualifying under these provisions is a personal proprietary or pecuniary interest or one affecting the individual rights of the judge. The liability, gain, or relief to the judge must turn on the outcome of the suit. Mears, Co. Judge v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1987). None of these statutory or constitutional grounds are applicable to the present case.

Nonetheless, William contends the chancellor’s prior business relationship with Ms. Byrd runs afoul of Canons 2 and 3 of the Arkansas Code of Judicial Conduct which generally provide a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s duties, and shall perform his or her duties impartially and diligendy. William particularly mentions Canon 3E(l)(a) which requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party or a party’s lawyer.

In considering Canon 3, this court has stated that, where a judge exhibits bias or the appearance of bias, it will reverse. City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990). This court has also held that the proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearances of unfairness. Id. When it comes to applying or implementing these principles, the court has said that the fact a judge may have, or develop during the trial, an opinion, or a bias or prejudice, does not make the trial judge so biased and prejudiced as to require his or her disqualification. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). The Matthews court further ruled that, whether a judge has become biased to the point that he or she should disqualify is a matter to be confined to the conscience of the judge, since bias is a subjective matter peculiarly within the knowledge of the trial judge. The Matthews court concluded that, absent some objective demonstration of prejudice, it is a communication of bias which will cause us to reverse a judge’s decision on disqualification. Matthews, 279 Ark. at 331, 651 S.W.2d at 455.

As mentioned earlier, the chancellor explained the circumstances surrounding Ms. Byrd’s having represented her on her personal injury claim and that the claim had been settled three years ago. She said she had paid Ms. Byrd a fee at the time of settlement, and that Ms. Byrd’s prior representation of her would not prevent her from rendering a fair decision in the Nolands’ case. On these facts, we believe the chancellor absolved herself of any actual or statutory bias that would mandate recusal.

Because William has failed to show any actual bias that mandated the chancellor’s recusal, it was his burden to show some objective demonstration of prejudice which compelled disqualification. Matthews, 279 Ark. 328, 651 S.W.2d 453 (1983); Venhaus, 302 Ark. 204, 788 S.W.2d 478. In this respect, William argued the chancellor demonstrated such prejudice when she questioned Olivia Noland during the trial.

Olivia testified on direct examination concerning her income and expenses, and among other things, she related William had been paying the mortgage and utility payments. When asked about her need for support, Olivia said that she would like for William to pay her $300 per month. After Olivia was cross-examined by William’s attorney, the chancellor said she was uncertain as to the amount of Olivia’s income and whether the $300 Olivia was requesting was support in addition to the mortgage and utility payments already being paid by William. Olivia responded, “I want — he won’t be making my utility bill when this is settled, when I have to move out of the house, the house has been sold. I’m asking $300 a month until I can finish school to help me be able to pay my bills.” The chancellor then asked, “Until the house is sold are you asking that he pay the house note . . . and utilities?” Olivia said, “No, ma’am. I’m not asking him to pay the house note or utilities because we have agreed to sell the house.” Olivia then left the witness stand, but the chancellor recalled her because the judge believed Olivia did not understand the judge’s earlier questions. Olivia expressed confusion, and over William’s objection, she retook the stand and stated she would like for William to continue paying the house note and utilities until the house sold, but that she did not need the $300 per month support until after the house was sold.

William claims the foregoing reflects the chancellor’s prejudice when she improperly recalled Olivia to the stand and permitted Olivia to clarify her request for support. Citing to Olivia’s added testimony, William argues the chancellor wrongly awarded Olivia more support than she had previously requested. The chancellor’s decree actually provided that William should make the mortgage ($677.50) and utility payment through November 1995, and if the house had not sold by then, he would pay $600.00 towards the mortgage payment, but Olivia would pay the balance of the payment and all the utility bills. The chancellor further ordered if the house was not sold before October 31, 1996, William would pay only $300 on the mortgage payment for six more months and afterwards Olivia would pay all mortgage and utility payments until the house sold. Commencing in November 1996, William was ordered to pay Olivia temporary spousal support of $300 per month for a period of one year.

In carefully reviewing the record, we believe either the chancellor or Olivia was confused when discussing the mortgage payments, utility bills, and need for spousal support. William had been paying the mortgage and utility payments at the time of trial, but Olivia was requesting temporary alimony to allow her time to finish school. The question arose during Olivia’s examination as to when such support would be needed, and it was clearly appropriate for the chancellor to ask questions that touched on that issue. See Rule 614(a) of the Arkansas Rules of Evidence.

William also complains that he does not have the income to satisfy the chancellor’s awards, but as noted earlier, he fails to argue reversal on those grounds or contend the awards were clearly erroneous. Instead, he generally discusses the parties’ affidavits of financial means, and concludes he is unable to make the payments directed and the awards exhibit actual bias on the part of the chancellor. In reviewing the parties’ affidavits and testimony, one could argue that neither party could meet his or her expenses under the decree. Nonetheless, in her decree, the chancellor’s award actually favored William by reducing his monthly payments and responsibility for the marital house as time passes and no sale occurs. The announced intention by the chancellor was to force Olivia to do her part to sell the house so both parties could benefit from the sale.

Contrary to William’s argument, we hold the chancellor’s award did not demonstrate any prejudice or reason for her recusal. For the reasons above, we affirm.


source: Caselaw Access Project

license: Public Domain

text:
    James F. PROPST v. Dan McNEILL, in His Official Capacity as Airport Commission Chairman, Walnut Ridge Airport, and City of Walnut Ridge, d/b/a Bertco, Inc.
    95-1290
    932 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Banks, Dodson, & Spades, by: Mark S. Carter, for appellant.

      Robert H. Crank and Barrett & Deacon, by: Paul D. Waddell, D.P. Marshall, Jr., and Kevin W. Cole, for appellees.
   Tom Glaze, Justice.

This case involves an issue concerning landlord-tenant liability. Appellant James F. Propst entered into a lease with appellee Walnut Ridge Airport Commission and that lease set out the terms under which Propst stored his plane, a 1972 Cessna 182, in hangar space at the Walnut Budge Airport. After-wards, a wind storm damaged the hangar and Propst’s plane. Propst subsequently brought suit against the Commission, alleging the Commission had negligently failed to (1) secure the hangar to its foundation, (2) replace defective structural supports, or (3) warn him of the hangar’s defective condition. The Commission answered, denying the allegations and raising a number of affirmative defenses. Eventually, the Commission moved for summary judgment, claiming any obligation it might have as a landlord was a matter of contract and the parties’ lease controlled the litigation. The Commission, without admitting its hangar building was in disrepair, argued that, under Arkansas’s landlord-tenant law, it was not responsible for damages to Propst’s plane because of the Commission’s failure to repair the leased building. The trial court agreed and granted the Commission’s motion. Propst appeals from that summary judgment.

In his first argument, Propst acknowledges that Arkansas has recognized the caveat lessee doctrine for almost a century, Haizlip v. Rozenberg, 63 Ark. 430, 39 S.W. 60 (1897), and under that rule, unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs. Stalter v. Akers, 303 Ark. 603, 798 S.W.2d 428 (1990); see also Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987); Terry v. Cities of Helena & W. Helena, 256 Ark. 226, 506 S.W.2d 573 (1974); Hurst v. Field, 281 Ark. 106, 661 S.W.2d 393 (1983). Consistent with this doctrine, the trial court here determined that, under the parties’ lease, the Commission never agreed to repair or maintain its hangar, so the Commission was not obligated to pay for any plane damage Propst may have sustained, resulting from defects found in the hangar building. However, Propst, citing Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), opines the caveat lessee rule of law is outdated and asserts landlords should be compelled to exercise reasonable care not to subject others to an unreasonable risk of harm. See also Stephens v. Stearns, 678 P.2d 41 (Idaho 1984) (adopted rule that a landlord is under a duty to exercise reasonable care in light of all circumstances); Asper v. Heffley, 458 A.2d 1364 (Pa. Super. 1983) (negligence of the landlord is a matter for determination by the factfinder); Faureau v. Miller, 591 A.2d 68 (Vt. 1991) (landlords may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises). To further support his contention that Arkansas’s adherence to the caveat lessee rule should end, Propst submits that Arkansas has become less rural, and consequently tenants have become less informed and too ill-equipped to judge the structural integrity of buildings with which they are unfamiliar. See Thomas M. Quinn and Earl Phillips, The Law of Landlord-Tenant: A. Critical Evaluation of the Past with Guidelines for the Future, 38 Ford. L. Rev. 225 (1969). He adds that landlords, on the other hand, are generally familiar with their properties either through firsthand knowledge of the condition of the properties or through knowledge imputed to them by persons hired to manage their properties.

The Commission acknowledges that a majority of states no longer apply caveat lessee; nonetheless, it submits Arkansas courts should continue to follow that doctrine, or at the very least, leave it up to the General Assembly to decide whether the state’s landlord-tenant law should be changed in this respect. First, the Commission cites the case of Dapkunar v. Cagle, 356 N.E.2d 575 (Ill. 1976), where the appellate court rejected a party-tenant’s invitation to depart from the well-established caveat doctrine as applied to leases. The Illinois Court reasoned in part as follows:

In the landlord-tenant law, on the other hand, the landlord, although having the benefit of a limited immunity through the rule of caveat emptor, is not totally insulated from recovery for injuries sustained by the tenant or third persons as a result of defects in the premises. As we have already pointed out, there are several exceptions which can allow for recovery from the landlord; and these exceptions cover many injuries. Additionally, building codes in force in many localities today have the effect of protecting tenants, to a certain extent, by requiring landlords to keep their buildings within applicable standards. At the time of the early product liability law developments away from privity notions, purchasers of manufactured products did not have the benefit of anything comparable to a building code to control manufacturers. It can hardly be said, therefore, that a present-day tenant injured by a defect in the leased premises is in the same reme-diless position with respect to the landlord as the injured purchaser once was with respect to the product manufacturer.

Expanding further on why this court should refuse to overturn its earlier case law on the subject, the Commission argues the caveat lessee rule serves Arkansas’s constitutionally declared public policy of respecting its citizens’ right to contract. It suggests that eliminating caveat lessee will not result in more protections, but instead in fewer options for the tenant. In other words, the Commission argues the law should not be changed to eliminate the productive and beneficial use of marginal structures, absent landlord repair and insurance against possible liability.

In arguing that it should be the legislature’s province to change this state’s landlord-tenant law, the Commission points out it generally has been that governing body in other states that has abandoned the doctrine by adopting the Uniform Residential Landlord and Tenant Act. See Watson v. Sellers, 385 S.E.2d 369 (S.C. App. 1989). Because of the policy considerations and possible impact that would ensue in enlarging a landlord’s liability, there is merit in the argument that such matters might be dealt with better in the legislative arena. In any event, this court has steadfasdy adhered to the caveat lessee rule for one hundred years without a hint it might consider abandoning it. This court has held that it is a matter of public policy to uphold prior decisions unless great injury or injustice would result. Independence Federal Bank v. Paine Webber, 302 Ark. 324, 789 S.W.2d 725 (1990). As the Commission properly mentions, the present case is one involving a businessman who owns a plane and was not shown to be someone who could not appreciate the risk of storing his plane in an old hangar. Although this court does not foreclose its possible review of the caveat lessee rule and the efficacy in abandoning that rule in the future, we conclude that this is not the type of situation or facts that warrant our departure from the well-established law of this state. That being so, we reject the invitation to do so in this case.

Propst also argues on appeal that, even if this court declines to overturn the caveat lessee doctrine, that doctrine still provides that landlords are liable in tort for injuries and damages resulting from defective and dangerous conditions if the injury is attributable to (1) a hidden danger in the premises of which the landlord, but not the tenant, was aware; (2) premises leased for public use; (3) premises retained under the landlord’s control; or (4) premises negligently repaired by the landlord. See Restatement (Second) of Torts, §§ 358-362 (1965). In this respect, Propst first contends a material issue of fact was raised in this cause as to whether a hidden or latent defect existed concerning the leased hangar and to what extent the Commission knew about that defect and possible danger. The Commission counters by simply stating that Arkansas has never recognized the latent-defect exception to caveat lessee and that, even if Arkansas had, Propst’s proof was insufficient to prove defect existed.

Propst bases his latent-defect argument on his affidavit wherein he averred that, after the windstorm tore away the hangar in question, he observed the two other hangars on the premises and repairs had previously been undertaken to reattach one of the buildings to its foundation. This fact, Propst argues, indicated the Commission was aware Propst’s leased hangar had also been inadequately attached to its foundation. Without the need of discussing whether the latent-defect exception has ever been recognized by Arkansas courts, we believe that, even if it had, Propst’s evidence on this issue is sorely lacking. He offered no proof that his leased hangar was defective or caused his damages, and the undisputed proof showed many other structures had been damaged by the windstorm — this included a third hangar which, too, was located on the premises.

In his final argument, Propst suggests a jury question exists as to whether the Commission had retained sufficient control of the leased building so as to impose a duty to keep the premises in a reasonably safe condition. He points out that, under the parties’ lease, the airport manager had a key and right to enter the hangar and to make any required improvements. Propst also states that the lease prohibited him from making his own repairs.

We first note that Propst fails to cite any Arkansas law where the retention-of-control exception has been recognized. In fact, this court has repeatedly stated that only an express agreement or assumption of duty by conduct can remove a landlord from the general rule of nonliability. Hall v. Rental Management, Inc., 323 Ark. 43, 913 S.W.2d 293 (1996); Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994); Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993); Glasgow v. Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969); Joseph v. Riffke, 186 Ark. 418, 53 S.W.2d 987 (1932). Thus, we conclude by holding that the Commission here was not shown to have agreed or to have undertaken any duty to repair or maintain the leased hangar in question. As a consequence, we agree with the trial court that no issue of material fact existed to be tried on this issue.

We affirm.

       There are other appellees, but for clarity and convenience, we refer only to the Commission.


author: DONALD L. Corbin, Justice.

text:
    ARKANSAS APPRAISER LICENSING AND CERTIFICATION BOARD v. W.F. FLETCHER
    96-660
    933 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Winston Bryant, Att’y Gen., by: Virginia H. Castleberry, Asst. Att’y Gen., for appellant.

      Mike Bearden Law Firm, by: Mike Bearden, for appellee.
   DONALD L. Corbin, Justice.

Appellant, Arkansas Appraiser Licensing and Certification Board, appeals the order of the Mississippi County Circuit Court reversing the Board’s decision to suspend the license of Appellee, W.F. Fletcher. The circuit court’s decision was based on an alleged ex parte communication between two Board members. Resolution of this appeal requires an interpretation of Ark. Code Ann. § 25-15-209 (Repl. 1996); our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(17)(vi) (as amended by per curiam order July 15, 1996). We find merit to the first of the Board’s three arguments and therefore reverse.

Appellee is a licensed real-estate appraiser who prepared an appraisal report of certain duplex apartments located in Osceola, Arkansas, for Tommy Neal to use in obtaining a loan on the subject real estate. The Board held an administrative hearing and then entered an order in which it found that Appellee’s appraisal report failed to comply with Uniform Standards of Professional Appraisal Practice l-4(b) and 2-l(a). The Board concluded that such failure to comply with those standards resulted in violations of Ark. Code Ann. § 17-14-206(1), (4) (Repl. 1995), Ark. Code Ann. § 17-14-305(a) (Repl. 1995), and Board Regulation 1(0). The Board fined Appellee $250.00 and suspended his license for nine months to be followed by a probationary period of six months. The Board also required Appellee to complete a course in the Uniform Standards of Professional Appraisal Practice (USPAP) before the end of his probationary period.

Appellee sought judicial review of the Board’s decision in circuit court pursuant to Ark. Code Ann. § 25-15-212 (Repl. 1996) and Ark. Code Ann. § 17-14-205 (Repl. 1995). The circuit court conducted a hearing and entered an order reversing the Board’s decision because there had been an ex parte communication between Board members in violation of section 25-15-209 that created an appearance of impropriety, if not actual impropriety, and because the Board’s decision was not supported by substantial evidence, but was arbitrary, capricious, and an abuse of discretion. This appeal followed.

The Board’s first point on appeal is a challenge to the trial court’s finding that section 25-15-209(a) was violated. The Board contends there was no evidence of an ex parte communication in the record and, therefore, the trial court had no evidence from which to conclude that section 25-15-209(a) had been violated. We agree that the record is void of any evidence that section 25-15-209 was violated.

Section 25-15-209 provides that members or employees of an agency assigned to render a decision or to make proposed findings of fact or conclusions of law in any adjudication shall not communicate with any person or party in connection with any issue of fact, or with any party or his representative in connection with any issue of law. There is absolutely no evidence in this record whatsoever to support the trial court’s finding that section 25-15-209 was violated. For the sake of clarity in understanding our decision, we recite the circuit court’s findings in their entirety:

1. This Court has jurisdiction over the parties and the subject matter, and this appeal is properly before the Court.
2. The complaint made against the Petitioner [Appel-lee] was originated by another appraiser from Blytheville, Arkansas, who was not a party to the appraisal in question, to Mike Pyron, a member of the Board. That based on the complaint made to Mike Pyron, an investigation was initiated by the Board on its own motion, and another Board member, namely, Larry Clark, was chosen to review the appraisal in question and act as a witness at the Board hearing. That Respondent [Appellant] has admitted in its Brief that Mr. Pyron and Mr. Clark, at the time of the investigation and hearing, had a business relationship, although Mr. Pyron worked in Little Rock, and Mr. Clark worked in Jonesboro.
3. The Court finds that the communications between the Board members mentioned above is a violation of the Administrative Procedure Act and constitutes ex parte communications, in violation of ACA § 25-15-209.
4. The ex parte communications between the Board members named hereinabove tainted the entire proceeding against the Petitioner [Appellee], and there is an appearance of impropriety, if not actual impropriety, as a result of said ex parte communications.
5. The actions of the Board members as set forth here-inabove constitutes an abuse of discretion, and the decision made by the Board was not supported by substantial evidence of record, and was arbitrary and capricious.
6. The decision by the Arkansas Appraiser Licensing and Certification Board, which was entered on July 21, 1994, should be reversed, and the Complaint filed against the Petitioner [Appellee] should be dismissed with prejudice, in that the substantial rights of Petitioner [Appellee] were prejudiced because the administrative findings, inferences, conclusions, and decisions are not supported by substantial evidence of record, and, further, are arbitrary, capricious, and characterized by an abuse of discretion.
7. The Petitioner [Appellee] should be awarded his costs in filing this action.

IT IS SO ORDERED.

Based on the trial court’s order, it is clear that the trial court thought a business relationship between two Board members amounted to an ex parte communication prohibited by section 25-15-209. There is nothing in that statute that prohibits business relationships between agency members. To the contrary, it prohibits communications about issues of fact or law relating to a particular adjudication proceeding. Moreover, section 25-15-209(b) specifically provides that agency members may communicate with each other. Thus, while there is evidence that a business relationship did indeed exist between Board members Pyron and Clark, there is no evidence whatsoever that the two members ever discussed issues of fact or law in Appellee’s case with other persons as is required by section 25-15-209.

Our review of the record indicates that Board member Larry Clark testified at the hearing before the Board. He stated that the Board asked him to review the appraisal report at issue to see if it complied with industry standards, and he concluded that it did not comply with industry standards in numerous respects. When asked if he knew how the report came to the Board’s attention, he stated that he did not have direct knowledge, but he understood it was called to the attention of Board member Mike Pyron by another appraiser in Northeast Arkansas, Ron Cardwell. Board member Mike Pyron did not testify at the Board’s hearing, although he was present in his capacity as a Board member. Appellee testified at the Board’s hearing, but did not offer anything on the subject of the business relationship or ex parte communications between Pyron and Clark.

Our review of the record indicates further that, at the hearing in circuit court, Appellee was allowed to present additional evidence on the alleged ex parte communication. This additional evidence consisted of testimony from Appellee and Jim Martin, Executive Director of the Board. Appellee testified that subsequent to the hearing before the Board, he asked Ron Cardwell why he had complained to the Board, and that Cardwell responded that if Appellee had not done the appraisal in question, Cardwell would have been able to do it, and it therefore cost Cardwell money for Appellee to be in the appraisal business. Appellee did not, however, offer any further testimony as to any ex parte communications between Pryon and Clark. Executive Director Martin testified that Clark and Pyron had a business relationship at one time in the Jonesboro area, but that he had no knowledge of any discussions between Board members without Appellee being present. Martin testified that Cardwell’s name did not come to his attention until the hearing before the Board. Martin testified further that this action began when the Board filed its own complaint against Appel-lee and sent him notice of the complaint and upcoming hearing. Martin stated that the Board’s complaint was the result of both Pyron’s letter to him asking for an investigation of the appraisal report and his own investigation that revealed that the comparable sales listed in the appraisal did not exist. Finally, Martin testified that Clark participated in the Board’s hearing as a witness, but did not take part in the decision-making process.

On appeal, appellee relies heavily on Clark’s testimony at the Board’s hearing that, although he did not have direct knowledge of who the appraiser was that called this to the Board’s attention, he understood it to be Cardwell. Appellee argues that from this testimony one can infer Pyron and Clark communicated about his case. Appellee relies further on the fact that Cardwell’s identity was not made known to Appellee until the Board’s hearing. He uses this fact to promote the inference that Pyron knew Cardwell’s motivation and adopted that motivation in pursuing the investigation.

Appellee’s argument is mistaken in two respects. First, Arkansas case law clearly contemplates that violations of section 25-15-209(a) be established by proof of the existence and content of the alleged ex parte communication. Arkansas Alcoholic Beverage Control Div. v. Cox, 306 Ark. 82, 811 S.W.2d 305 (1991); Madden v. U.S. Associates, 40 Ark. App. 143, 844 S.W.2d 374 (1992). In both of the cited cases, there was evidence of the existence and content of ex parte communications. In Cox, there was testimony by the agency members themselves as to the existence and content of the ex parte communications. See Cox, 306 Ark. at 84, 811 S.W.2d at 306-07. In Madden, a transcript of the tape-recorded ex parte discussion was introduced into the record. See Madden, 40 Ark. App. at 145-48, 844 S.W.2d at 375-77. Here, there is no evidence of the existence-and content of any ex parte communication, and Appellee essentially acknowledges as much when he argues that the existence and content of the alleged ex parte communication can be inferred from the testimony in this case. Second, even assuming without deciding that inferences of communications rather than evidence of their existence and content are sufficient to establish violations of section 25-15-209(a), this record is not sufficient to establish the two inferences Appellee suggests. Section 25-15-209(b) expressly allows communications between agency members. Thus, even assuming the first inference Appellee asks us to draw is true, that Clark and Pyron communicated about Cardwell’s oral complaint to Pyron, such a communication is not prohibited by section 25-15-209(a) because it is a communication between agency members. As regards the second inference Appellee asks us to draw, that Pyron adopted the alleged “eliminate-the-competition” motivation of Cardwell, Pyron’s letter to Martin expressly negates such an inference. Pyron stated in his letter to the Board that:

As a member of our Licensing Board and in the interest of protection of the public and our assurance to the financial community that licensees recognized by our Board are of the highest integrity possible and operate in a totally ethical manner. I feel the concerns expressed warrant further investigation.

In summary, we conclude that based on this record the trial court’s finding that a business relationship between Clark and Pyron violated section 25-15-209(a) was clearly erroneous. There is simply no evidence of the existence or content of an ex parte communication from which the trial court could have found a violation of section 25-15-209(a). Moreover, communications between agency members are not prohibited pursuant to section 25-15-209 (b).

Because we have concluded that no ex parte communication occurred in this case, and consequently that no violation of section 25-15-209(a) occurred, we need not address the Board’s second point for reversal concerning whether a violation of section 25-15-209(a) alone requires reversal or whether Appellee is required to demonstrate prejudice.

The Board’s third point for reversal is a request to reinstate its decision because it was supported by substantial evidence. Appellee does not address this argument in his brief; rather, he claims it is unnecessary to do so because there is sufficient evidence of the alleged ex parte communication.

The Board’s order states that Appellee’s appraisal report fails to comply with USPAP l-4(b) and 2-1 (a) and that such failure to comply constitutes a violation of section 17-14-206(1), (4), section 17-14-305(a), and Board Regulation 1(0). We review agency decisions to determine if there is substantial evidence to support them. Arkansas Appraiser Licensing and Certification Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995). We conclude there is substantial evidence to support the Board’s decision that Appellee’s appraisal report violated section 17-14-206.

We cannot address the issue of whether the USPAP and section 17-14-305, which refers to the USPAP, were violated because of a deficiency in the abstract. The abstract does not contain a summary of USPAP l-4(b) and 2-1 (a), although the abstract does contain a summary of Regulation 1(0), which provides that the Board adopts by reference the USPAP. Although the argument portion of the Board’s brief contains the missing Standards, the record cannot be contradicted or supplemented by statements made in the brief. Bice v. Hartford Accident & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989).

Courts can take judicial notice of state agency regulations that are duly published. Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) (citing Seubold v. Fort Smith Special Sch. Dist., 218 Ark. 560, 237 S.W.2d 884 (1951)). The Board’s regulations are duly published, and as already mentioned, provide in Section 1(0) that “the ‘Uniform Standards of Professional Appraisal Practice’ (USPAP) as published and amended by the Appraisal Foundation from time to time” are adopted by reference. However, the Board’s regulations as published do not contain the USPAP. Because the Appraisal Foundation is not a state agency, we cannot take judicial notice of those Standards. Thus, our appellate review is impeded by the abstract’s failure to include a summary of USPAP l-4(b) and 2-l(a). Furthermore, because section 17-14-305 refers to USPAP, we can only review that part of the Board’s order finding that section 17-14-206 was violated.

Section 17-14-206(4) provides that the Board may, upon its own motion and after notice and hearing, suspend or revoke a license and impose a fine for “[a]ny actions demonstrating untrustworthiness, incompetence, dishonesty, gross negligence, material misrepresentation, fraud, or unethical conduct in any dealings subject to this chapter or these regulations [.]” The following testimonies from Board member Clark and Appellee at the Board’s hearing provide substantial evidence to support the Board’s finding that section 17-14-206 was violated.

At the hearing before the Board, Board member Clark testified that he found numerous problems with the subject appraisal: the appraisal did not reveal how the land value was determined; the comparable units had square footages that were smaller than the appraised property and that there was no statement in the report as to how Appellee arrived at the square footages; there was no statement as to how the estimated rent for the appraised unit was determined; there were post improvements that were not reviewed; the ownership history of the appraised property was not included; the purpose of the report was not included; there was no analysis of why a higher Gross Rent Multiplier was used on the appraised unit than was used on the comparable units; the client’s objective and function of the report was not included; and the report needed additional addendums explaining the aforementioned problems. Clark stated that one of the most serious violations was that the report listed comparable sales that were not in fact sales at all.

At the hearing before the Board, Appellant stipulated that the three comparable sales listed in the appraisal report were not sales at all. Appellee testified and admitted that, based on the standards adopted in Arkansas, he should not have done this appraisal the way he did. In his defense, Appellee stated that his report was not misleading because he verbally disclosed the fictitious sales to his client and his client’s lender.

Clark’s testimony and Appellee’s testimony reveal that Appellee’s actions demonstrated untrustworthiness, dishonesty, material misrepresentation, and unethical conduct when preparing his appraisal report. Accordingly, we conclude there is substantial evidence to support the Board’s decision that section 17-14-206 was violated, and we reinstate the Board’s decision fining Appellee and suspending his appraiser’s license, as those penalties are authorized in section 17-14-206.

The order of the circuit court is reversed, and the order of the Board is reinstated.


author: Donald L. CORBIN, Justice.

text:
    Johnny Paul DODSON v. STATE of Arkansas
    CR 96-700
    934 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Etoch Law Firm, by: Louis A. Etoch, for appellant.

      Winston Bryant, Att’y Gen., by: O. Milton Fine, II, Asst. Att’y Gen., for appellee.
   Donald L. CORBIN, Justice.

Appellant Johnny Paul Dodson appeals the judgment of conviction of the Monroe County Circuit Court sentencing him to a term of fifty years in the Arkansas Department of Correction for the offenses of possession of a controlled substance (methamphetamine) with intent to deliver and possession of a controlled substance (marijuana). Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). In support of his appeal, Appellant asserts that the trial court erred as follows: (1) In denying his motion for new trial on the grounds that trial counsel was ineffective; (2) in allowing the prosecution to enter into evidence a copy of the State Crime Laboratory report concerning the drug analysis; and (3) in sentencing Appellant to a term of ten years for simple possession of marijuana. We affirm.

Appellant was arrested during a traffic stop in Brinkley, Arkansas, driving a car that belonged to his girlfriend. Appellant was accompanied by two other passengers: James Martin and Ricky Bennett. During a search of the car and its occupants, officers recovered a 10 mm gun and a bag containing what was believed to be crystal methamphetamine and marijuana. In addition, the officers recovered $6,000.00 cash from Appellant’s person.

Appellant was charged by information with three felony offenses, namely possession of methamphetamine with the intent to deliver the substance, Class Y felony; possession of marijuana, Class C felony; and being a felon in possession of a firearm, Class D felony. Appellant was also charged with two traffic violations. Appellant was tried before a jury and was convicted on all counts with the exception of the firearm charge. Judgment was entered by the trial court, sentencing Appellant to a term of imprisonment for fifty years. It is from that judgment appeal is taken.

I. Ineffective Assistance of Counsel

Appellant argues that his trial counsel was ineffective due to a material conflict of interest involving his representation of all three of the men arrested during the traffic stop and due to his failure to move to sever the offense of felon in possession of a firearm. We do not reach the merits of his arguments on appeal, as the facts surrounding each allegation of ineffectiveness were not fully developed in the trial court.

It is evident from the abstract of the record that subsequent to the trial court’s entry of the judgment and commitment order on November 8, 1995, Appellant retained new counsel and filed a motion for new trial on December 7, 1995, alleging that he had been denied effective assistance of counsel. In that motion, Appellant submitted eight grounds upon which his trial counsel was ineffective; Appellant argues only two of those grounds on appeal. The trial court did not conduct a hearing on the motion for new trial, nor did the court actually rule on the motion. Appellant asserts that the motion for new trial was “deemed denied” pursuant to Rule 4(c) of the Arkansas Rules of Appellate Procedure.

We are thus presented with two distinct but related issues: (1) Whether we may properly consider on direct appeal Appellant’s claim of trial counsel’s ineffectiveness, which amounts to a collateral attack on the judgment pursuant to A.R.Cr.P. Rule 37, and (2) whether it is sufficient for purposes of our review of such a claim that the motion for new trial was “deemed denied” by the trial court.

This court has recognized that, although Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, the issue may be raised by a defendant on direct appeal provided it is first raised during trial or in a motion for new trial. See A.R.Cr.P. Rule 37; Johnson v. State, 325 Ark. 44, 924 S.W.2d 233 (1996); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976). Evidence of the allegation must, however, be contained in the record and the trial court must have been given the opportunity to rule on the issue. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). Additionally, this court has indicated that it will not consider a claim of counsel’s ineffectiveness unless the facts surrounding the claim were fully developed either during the trial or during other hearings conducted by the trial court. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). The rationale behind this rule of law is that an evidentiary hearing and finding as to the competency of an appellant’s counsel by the trial court better enables the appellate court on review to examine in detail the sufficiency of the representation. Reed v. State, 323 Ark. 28, 912 S.W.2d 929 (1996); Hilliard, 259 Ark. 81, 531 S.W.2d 463. The trial court is in a better position to assess the quality of legal representation than we are on appeal. Id.

In Missildine, 314 Ark. 500, 863 S.W.2d 813, this court observed that the reason we do not ordinarily review on direct appeal a charge of ineffectiveness is because the facts relevant to that issue have not been developed below. This court held that “when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues.” Missildine, 314 Ark. at 507, 863 S.W.2d at 818 (emphasis added) (citing Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986)). In other words, in the interest of judicial economy, this court will review claims of counsel’s ineffectiveness on direct appeal provided that the allegation is raised before the trial court (i.e., in a motion for new trial) and that the facts and circumstances surrounding the claim have been fully developed.

Given the aforementioned specific requirements established by our prior decisions concerning direct appellate review of claims of ineffectiveness, we must now assess whether the “deemed” denial of Appellant’s motion for new trial is an appealable order sufficient for our review of his claim. Rule 4(c) of the Rules of Appellate Procedure — Civil provides:

If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion mil be deemed denied as of the 30th day. [Emphasis added.]

This court has previously held that Rule 4(c) applies in criminal cases. Giacona v. State, 311 Ark. 664, 846 S.W.2d 185 (1993). However, the decisions in which we have addressed the rule’s application in criminal cases have thus far dealt only with the issue of timeliness of appeal. See, e.g., Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); Giacona, 311 Ark. 664, 846 S.W.2d 185.

In 1996 we adopted the separate Rules of Appellate Procedure — Criminal, which include a provision that certain posttrial motions may be “deemed denied” pursuant to Rule 4(c) for purposes of filing a timely notice of appeal. In re: In the Matter of the Adoption of Revised Rules of Appellate Procedure, 321 Ark. 663, 900 S.W.2d 560 (1995) (per curiam). Specifically, Ark. R. App. P.— Crim. 2(a)(3), which addresses the time and method of taking an appeal, provides that a notice of appeal shall be filed within thirty days from the date a posttrial motion under A.R.Cr.P. Rule 33.3, including a motion for new trial, is “deemed denied” pursuant to Ark. R. App. P. — Civ. 4(c). Since the adoption of that rule, we have yet to address the issue of whether such a “deemed denied” ruling is a sufficient order from which to appeal the denial of a motion for new trial based upon a claim of ineffectiveness.

A plain reading of Rule 2 demonstrates that the purpose of recognizing such “deemed denied” rulings on posttrial motions is to enable an appellant to know when he must file his notice of appeal of the judgment of conviction. We must therefore distinguish a ruling which is “deemed denied” for purposes of filing a timely notice of appeal from an appealable order of a posttrial claim of ineffectiveness. As the Reporter’s Notes to Rule 2 indicate, this rule applies in Rule 37 cases only as to appeals from the actual denial of the petition; the “deemed denied” provision of Rule 4(c) does not apply to Rule 37 petitions. Although this case does not involve a Rule 37 petition, it does involve a claim of trial counsel’s ineffectiveness. The reasons for the necessity of an actual ruling and fully developed facts are the same in both instances. It matters not what we call it; Appellant’s claim on appeal amounts to nothing more than a collateral attack on the judgment based on allegations of counsel’s ineffectiveness.

In the case at hand, we have not been provided with anything other than the bare allegations set out in Appellant’s motion for new trial. We have no evidence as to why trial counsel made the particular decisions which are challenged in this appeal. There has been no testimony from either Appellant or his trial counsel indicating whether there were discussions between them as to the way Appellant’s defense should or would proceed. Such information is necessary for us to conduct a meaningful review of the allegations. This is especially true in this case as there was discussion on the record below indicating that Appellant was aware that his trial counsel was not fully prepared to go to trial, but that Appellant nonetheless chose to proceed with the trial so that he could be released as soon as possible.

Based upon the above-recited case law, including our decisions interpreting Rule 4(c), and the plain meaning of Rule 2, we conclude that a “deemed denied” ruling on a posttrial motion for new trial is an insufficient order from which to raise on direct appeal a claim of ineffectiveness. Such a deemed ruling necessarily precludes any consideration by the trial court of the relevant facts pertaining to the claim. As the trial court is in the best position to evaluate trial counsel’s performance and competency, an order reciting its findings is necessary to enable us to conduct a meaningful review of the claim. Because we have not been presented with any evidence on the allegation or any actual ruling of the trial court, we affirm as to Appellant’s first point.

We point out that nothing in this opinion should be construed as prohibiting Appellant from filing a proper petition for postcon-viction relief pursuant to A.R.Cr.P. Rule 37.

II. State Crime Laboratory Report

For his second point, Appellant argues that it was error for the trial court to allow the prosecution to introduce into evidence a copy of the forensic chemist’s report containing the analysis of the drugs recovered in this case. Appellant’s argument is twofold: (1) He was denied his constitutional right to confront and cross-examine the chemist who conducted the analysis, and (2) the report was not properly attested as provided in Ark. Code Ann. § 12-12-313 (Repl. 1995). We find no merit to either of Appellant’s arguments.

Section 12-12-313 provides:

(a) The records and reports of autopsies, evidence analysis, drug analysis, and any investigations made by the State Crime Laboratory under the authority of this subchapter shall be received as competent evidence as to the matters contained therein in the courts of this state subject to the applicable rules of criminal procedure when duly attested to by the executive director or his assistants, associates, or deputies.
(b) Nothing in this section shall be deemed to abrogate a defendant’s right of cross-examination if notice of intention to cross-examination is given prior to the date of hearing or trial pursuant to the applicable rules of criminal procedure.
(c) The testimony of the appropriate analyst may be compelled by the issuance of a proper subpoena, in which case the records and reports shall be admissible through the analyst who shall be subject to cross-examination by the defendant or his counsel.
(d)(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
(2) The defendant shall give at least ten (10) days notice prior to the proceedings that he requests the presence of the employee of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examination.

The purpose of this statute is to remove these reports from exclusion under the hearsay rule and make them admissible when certain requirements designed to establish their trustworthiness have been satisfied. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990).

Appellant’s abstract reflects that the charges against Appellant were filed on September 29, 1995, and that the trial was conducted on November 7-8, 1995. Appellant asserts that his trial counsel was not aware of the charges filed against him until the day before the trial. Appellant further asserts that his trial counsel was not notified of the prosecution’s intention to introduce the analysis report until the prosecution moved for its introduction at trial. It is Appellant’s contention on appeal that he did not waive his right to cross-examine the chemist, and that he should not have been held to the ten-day-notice requirement in section 12-12-313 because he was not aware that the prosecution would not call the chemist as a witness until that point during the trial when the prosecution offered the analysis report as evidence. Appellant does not assert that he had indicated this desire to cross-examine the chemist at anytime prior to his trial.

Appellant’s argument that he did not have time to comply with the ten-day-notice requirement is unpersuasive as we believe he knew or should have known that the prosecution would attempt to use the evidence against him either through the chemist’s testimony or through the report itself. We further find the argument unpersuasive as it is clear from the abstract of the record that Appellant was fully aware that his counsel had not had adequate opportunity to compile discovery or to attempt to negotiate a plea bargain. In fact, Appellant’s trial counsel made the court aware of his client’s desire to get on with the trial as soon as possible during a pretrial hearing. Appellant’s trial counsel stated:

We have no discovery in this case. That is not the fault of the State because the case was just filed. My client insists on going to trial, and believes that the faster he goes to trial, the faster he can be released. He has maintained his innocence and it is his belief and desire to go ahead and have a trial so that he may be acquitted and discharged. Even with the risk of his attorney being ignorant of what the State has in this matter and what their level of proof and preparedness is.

It is clear from counsel’s remarks that it was Appellant’s conscious desire to proceed to trial even though his attorney may not have been fully prepared to defend him. Appellant cannot now assert that he was not prepared to defend against the admission of the chemist’s report without being allowed to cross-examine the chemist when it was Appellant’s own decision to rush through with the trial.

This court has previously concluded that it is the state’s burden to produce the chemist or to obtain a continuance when the state has caused the defendant to be unable to comply with the statute’s ten-day-notice prerequisite. Lockhart v. State, 314 Ark. 394, 862 S.W.2d 265 (1993). Nonetheless, the defendant is at least required to inform the state that he desires to have the chemist present at trial so the state would realize that it must fulfill its burden to produce the witness. Id. Moreover, an appellant must also demonstrate that he has been prejudiced, beyond the bare assertion of the constitutional right to confront witnesses, by the denial of cross-examination or that such a request would have availed him anything. Id.

Appellant relies heavily on the decision in Hendrix v. State, 40 Ark. App. 52, 842 S.W.2d 443 (1992), in which the court of appeals concluded that “[w]hile the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply.” Id. at 57, 842 S.W.2d at 446. Appellant’s reliance on that holding is misplaced, however, as the facts of that case were such that the state attempted to admit a drug-analysis report involving a previous arrest of the defendant without any prior notice to the defendant, for the purposes of impeaching his testimony. Such a situation is readily distinguishable from the facts present in this case.

Appellant was charged with two controlled substance offenses and, thus, he knew or should have known that the prosecution would necessarily introduce evidence establishing that the substances were illegal drugs. Had Appellant truly desired to cross-examine the chemist, he should have informed the prosecution of this desire as soon as possible prior to commencement of the trial. As to the specific allegation that his trial attorney was not aware of the prosecution’s intention to introduce the report, Appellant has no one but himself to blame for counsel’s lack of preparation, as he chose to roll the dice and proceed with the trial knowing that his attorney had not had the opportunity to conduct proper discovery. Furthermore, Appellant has not demonstrated in any way that he has been prejudiced by being denied cross-examination of the chemist. See Lockhart, 314 Ark. 394, 862 S.W.2d 265.

For the second prong of this contention, Appellant argues that the chemist’s report was not properly attested as provided in section 12-12-313. The attestation contained on the face of the chemist’s analysis report reads:

I do hereby attest and confirm as specified by A.C.A. 12-12-313, that the information listed below is a true and accurate report of the results of analysis performed by me of evidence received in a sealed condition at the Arkansas State Crime Laboratory.

The report displays a laboratory case number 95-13118 and lists the Appellant’s name along with James Martin and Ricky Glenn Bennett as suspects. The report is signed by the forensic chemist, Kathy S. Shanks, and is notarized.

We rely on this court’s previous holding in Willis v. State, 309 Ark. 328, 829 S.W.2d 417 (1992), in which the appellant likewise challenged the sufficiency of the attestation of a drug analysis report. The report in that case stated:

I, Keith Kerr, Chemist, do hereby certify and attest that I personally performed the laboratory tests and prepared the laboratory analysis report in Laboratory Case No. 90-02473.

Id. at 330, 829 S.W.2d at 419. This court concluded that the attestation contained in the report was sufficient under section 12-12-313, in that it provided certain indicia of truthfulness. This court concluded further that there is no notarization requirement in section 12-12-313. We thus hold that the attestation of the analysis report in this case was sufficient and proper under the requirements of section 12-12-313.

III. Improper Sentence

Appellant argues for his third point that he was sentenced improperly to a term of ten years imprisonment for simple possession of marijuana. The State contends that Appellant was convicted of a Class C felony for marijuana possession and, as such, Appellant’s sentence of ten years was not improper nor illegal as it is within the permissible range of years for a Class C felony. We do not, however, reach the merits of Appellant’s claim as it was not properly preserved for our review below. Nowhere in Appellant’s abstract of the record is it demonstrated that this argument was ever made to the trial court — either before the bench or in his motion for new trial. We have repeatedly held that we will not consider alleged errors that were not brought to the attention of the trial court. See, e.g., Childress v. State, 322 Ark. 127, 907 S.W.2d 718 (1995); Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992). We thus affirm the trial court’s sentence.


author: Robert L. Brown, Justice.

text:
    Ronnie HACKLETON v. Johnny LARKAN
    96-638
    933 S.W.2d 380
    Supreme Court of Arkansas
    Opinion delivered November 18, 1996

      Laser, Wilson, Bufford & Watts, P.A., by: Brian Allen Broum and Keith McPherson, for appellant.

      Dover & Dixon, P.A., by: Gary B. Rogers, for appellee.
   Robert L. Brown, Justice.

Appellant Ronnie Hackleton appeals and asserts trial court error in its assessment of double damages against him for fire damage to appellee Johnny Larkan’s trees. We agree that error was committed, and we modify the judgment amount to correspond with the jury verdict of single damages.

On April 13, 1994, Johnny Larkan filed a complaint seeking damages for his trees that were destroyed as a result of the alleged negligence of Ronnie Hackleton in starting, supervising, controlling, and extinguishing a fire on Hackleton’s property that spread to Larkan’s land. Larkan, asserting that Hackleton was stricdy liable for trespassing on his land, sought treble damages under Ark. Code Ann. § 18-60-102(a) (1987), for the destruction of 36 acres of saw timber. Hackleton admitted that he started the fire on his own land in his responses to requests for admission, and the action proceeded to trial by jury solely on the issue of damages.

Both parties prepared for trial with the belief that either Ark. Code Ann. § 18-60-102 (1987) or Ark. Code Ann. § 18-60-103 (1987) would govern the issue of damages. Treble damages for trespass on land and the destruction of timber was sought by Larkan under § 18-60-102(a). Hackleton proposed that only single damages were available under § 18-60-103 for fire set on a person’s property which spreads to and damages the property of a second person. As the parties were arguing over these two damage theories immediately prior to trial, the trial court raised on its own the issue of whether double damages should apply under a third statute — Ark. Code Ann. § 20-22-304 (Repl. 1991). The following colloquy occurred:

THE COURT: Now, neither one of you have talked about 20-22-304. Are you not interested in that, which calls for double damages?
LARKAN’S COUNSEL: I think if I’m out on treble, then yes, I would be interested in that, but I’m going stricdy on the theory that it is, but —
THE COURT: Under 20-22-304?
LARKAN’S COUNSEL: Yes.
THE COURT: You talked about the 102 and 103. I’m not sure how 20-22-304 relates to 103.
HACKLETON’S COUNSEL: If I remember that statute correcdy, that’s one that you can recover double damages if someone harvests timber off your property.
THE COURT: No, sir, if you don’t put out a fire. If you create a fire, it’s a fire penalty.
LARKAN’S COUNSEL: Strict liability.
HACKLETON’S COUNSEL: This is not something the defendant has considered at length, Judge, but I think the statute you cited us to regarding double damages would probably be overridden by 103, because the facts of the situation were specifically contained within 103, and as the plaintiff has pointed out earlier, you must read 102 and 103 together, sure, obviously.
THE COURT: The way I see it is that for 20-22-304 to apply, that there would be double damages for letting a fire get loose, and according to the cases in the annotations it does not have to be pled.
LARKAN’S COUNSEL: That’s correct. Again, I think that’s a matter of law.
THE COURT: So you are going to get at least double damages.
HACKLETON’S COUNSEL: I think it’s the defendant’s position 103 is totally applicable in this case, and obviously as the plaintiff pointed out, you have to read them together, 102 and 103. 102 specifically addresses trespass, because the legislature wanted trespass in there. If they wanted you to interpret trespass to be included in 103, would they not have written that in there? I think 103, it’s the defendant’s contention is 103 is unambiguous, clear on its face, and specifically addresses this particular instance, and that is our position.
LARKAN’S COUNSEL: It’s my understanding the double damages, again, that’s not something we would submit to the jury.
THE COURT: That will be up to me afterwards, and I will submit to them interrogatories and then make a decision on what kind of damages. . . .

After the jury heard evidence on the amount of damage suffered by Larkan, it returned from deliberations with a unanimous award of $3,000. The trial court then sent the jury back to decide whether Hackleton acted willfully or wantonly with respect to the fire’s spreading. The jury answered an interrogatory unanimously that Hackleton had not acted willfully or wantonly. Immediately following the jury’s second return, the following exchange occurred:

LARKAN’S COUNSEL: Under Arkansas law, we are automatically entitled to double damages based on the Statute, and we would ask the Court at this time to recognize that and include that.
THE COURT: Mr. McPherson (Hackleton’s counsel), you have any response?
HACKLETON’S COUNSEL: Yes, I do, Your Honor. The Complaint filed by the plaintiff was, cites the Court to Section 102, which was discussed earlier, regarding their seeking triple damages.
No trespass was found, no willful and wanton conduct found, in which case the single damage award that’s been submitted by the jury should be upheld.
THE COURT: My reading of the case law following annotations of the statutes, does not require, does not have to be pled, and the Court can grant it without pleadings, and therefore the Court does grant double damages.
LARKAN’S COUNSEL: And the judgment shall so reflect?
THE COURT: Yes, sir.
HACKLETON’S COUNSEL: Note my objection.

Double damages were included in the judgment against Hackleton in the amount of $6,000.

In contesting the trial court’s double-damages award on appeal, Hackleton argues (1) the double-damages statute, § 20-22-304, was not pled; and (2) it is inapplicable to this set of facts. We decide the matter in Hackleton’s favor on the first point. With respect to failure to plead, Larkan contends that argument was not preserved. As demonstrated above, however, Hackleton’s counsel argued before trial that § 20-22-304 was inapposite and that § I8-60 — 103 was the remedy for damages caused by fire spreading to another’s property. At the conclusion of the trial, Hackleton’s counsel noted his objection to the judgment amount. We deem the actions of Hackleton’s counsel to be sufficient to preserve the matter for our review.

The issue then is whether the double-damages statute had to be pled. The case of Cecil v. Headley, 237 Ark. 400, 373 S.W.2d 136 (1963), is directly on point. In that case, the appellees attempted to argue on appeal that the trial court erred in not applying the double-damages statute, as a matter of law, to the jury’s award. This court refused to hear the argument:

Upon a review of this record we do not find that the appel-lees specifically sought double damages in their pleadings. Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S.W.2d 328. This statute [the predecessor to § 20-22-304] providing for double damages, being penal in nature, must be strictly construed and no one can invoke its benefits who does not bring himself stricdy within its terms. Missouri Pacific R. Co. et al v. Lester, 219 Ark. 413, 242 S.W.2d 714; Lamb v. Hibbard, 228 Ark. 270, 306 S.W.2d 859.

Cecil, 234 Ark. at 406-07, 373 S.W.2d at 141 (emphasis added). See also Keathley v. Diversified Fastener & Tool, 2 Ark. App. 59, 616 S.W.2d 755 (1981).

This lapse in pleading is not a situation where Rule 15(b) of the Rules of Civil Procedure applies, as Larkan contends. The applicability of § 20-22-304 was not tried to the jury with the express or implied consent of the parties, and the trial court made it clear that the remedy would be applied as a matter of law. Moreover, this is not a case where evidence was objected to at trial, which might necessitate the objecting party’s moving for a continuance under Rule 15(b). On the contrary, double damages was a new remedy foisted upon Hackleton on the day of the trial.

The Cecil v. Headley requirement that the double-damages remedy be pled makes perfectly good sense. Larkan specifically pled treble damages under § 18-60-102 in his complaint. Hackleton, understandably, prepared to defend against treble damages for destruction of Larkan’s trees by trespass. He was not notified of the potential for double damages under § 20-22-304 until the trial court broached the matter immediately before trial. He, thus, had insufficient notice to allow him to mount a defense against an entirely different remedy under an entirely different statutory scheme. In short, Hackleton was blindsided by the new remedy.

The change in remedies is particularly noteworthy because § 20-22-304 is so totally different from the remedy pled by Larkan under § 18-60-102(a). The treble-damages remedy under § 18-60-102(a) requires a showing of intentional wrongdoing, even though this intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991). Its purpose, as the General Assembly noted in 1937, was to provide an adequate penalty against the intentional cutting and theft of timber. See 1937 Ark. Acts 29. Hackleton, accordingly, was prepared to defend against damages which require a showing of intent to destroy Larkan’s property.

Section 20-22-304, on the other hand, concerns causing fire and damage to another’s property and, under these facts, would have required something less than intentional misconduct for the penalty to be assessed. Because double damages are penal in nature, it could be argued that more than mere negligence is required and at least recklessness must be proved on the part of the offender. Ark. Code Ann. § 5-2-203(b) (Repl. 1993). See also Yocum v. State, 325 Ark. 180, 925 S.W.2d 385 (1996). Cf. Lamb v. Hibbard, 228 Ark. 270, 306 S.W.2d 859 (1957). But see Whiteside v. Tyner, 238 Ark. 985, 386 S.W.2d 239 (1965) (negligence alone suffices for an award of double damages); Thomas v. Raney, 233 Ark. 836, 349 S.W.2d 129 (1961). But whether negligence or recklessness, less than intentional conduct may support double damages under § 20-22-304.

To summarize, an effective defense waged in opposition to § 20-22-304 could be markedly different from one mounted against the treble-damages provision of § 18-60-102(a). It would have been vasdy easier from Hackleton’s perspective to prove that he was devoid of intentional misconduct under § 18-60-102(a) than to re&te an assertion of negligence, or even recklessness, under § 20-22-304. Thus, we conclude that it was imperative that the double-damages remedy under § 20-22-304 be pled in order to give Hackleton adequate notice of the remedy he would be confronting. The trial court’s decision to apply the new remedy on the day of the trial was an abuse of discretion. See McGee v. Wilson, 275 Ark. 466, 631 S.W.2d 292 (1982). We affirm the judgment against Hackleton but modify it to the amount of the jury verdict, $3,000.

Affirmed as modified.

Glaze, J., not participating.

       The trial court apparently misread the annotation to § 20-22-304 regarding Cecil v. Headley, 237 Ark. 400, 373 S.W.2d 136 (1963), as discussed further in this opinion.


author: Bradley D. JESSON, Chief Justice.

text:
    Larry RAYFORD v. STATE of Arkansas
    CR 96-428
    934 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      John F. Gibson, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Joseph v. Svoboda, Asst. Att’y Gen., for appellee.
   Bradley D. JESSON, Chief Justice.

On October 31, 1992, the partially nude body of Christopher Lyle Bailey, a.k.a. Jay Smith, was found face down in a ditch just off Highway 189 in Ashley County. A piece of paper bearing the name and telephone number of one of appellant Larry Rayford’s former girlfriends was discovered in the pocket of the victim’s jeans, which were positioned around his ankles. Rayford was later arrested and convicted of capital murder and sentenced to life without parole. His sole argument for reversal is that the trial court erred in denying his motion for new trial on the basis that the State had failed to abide by the rules of discovery. We affirm.

Because Rayford does not challenge the sufficiency of the evidence, it is only necessary for us to recite the facts relevant to his motion for new trial. Rayford initially denied any involvement in the killing. He later admitted to causing the victim’s death, but gave several conflicting statements to police regarding how and where the shooting took place. He gave two, somewhat conflicting statements to Captain Charles Cater of the Monticello Police Department and Investigator Garland McAnally of the Arkansas State Police that he had shot the victim in Ashley County after the victim had made unwanted sexual advances toward him. He later changed his story, testifying at a pretrial hearing that he had accidentally shot the victim in Drew County after he and the victim had been “fumbling around” with guns.

On December 28, 1993, the trial judge informed defense counsel that he had received a letter from Huey Zane Brooks, a fellow inmate of Rayford’s at the Drew County Jail. The letter related that Rayford had been bragging about killing a man. The trial judge gave a copy of Brooks’s letter to Rayford’s attorney and cautioned him to be ready for Brooks’s testimony, which, if relevant and material, would not be limited to the contents of his letter. The following day and approximately two weeks prior to Rayford’s trial, the prosecutor informed Rayford’s counsel that he intended to call Brooks as a witness.

On the morning of Rayford’s January 18, 1994, trial, the prosecutor met with Brooks at the jail. According to Brooks, Rayford admitted that he and the victim had had words, that he had offered the victim some marijuana and a car ride, and that he had taken the victim out of Monticello, shot him, and dumped the body in some water. The prosecutor delivered a written summary of Brooks’s verbal statement to defense counsel’s office, which was located across the street from the jail. When the prosecutor referred to Brooks’s anticipated testimony during his opening statement, Rayford’s counsel objected on the basis that the State was proposing to offer a different account of Rayford’s statement to Brooks than that which was previously disclosed in Brooks’s letter. Following the trial judge’s overruling of the objection, defense counsel stated that “[N]o harm’s done.”

When the State called Brooks as a witness, Rayford renewed his objection made during the State’s opening statement, adding that he had not received the prosecutor’s note in time for him to adequately prepare for trial. While Rayford’s motion for new trial indicates to the contrary, defense counsel told the trial judge that he had spoken to Brooks, who had told him that Rayford’s statement was made in the presence of other inmates. Brooks was permitted to testify, and, after the State rested, the trial judge offered an early adjournment so that defense counsel could interview the other inmates. During his case-in-chief, Rayford presented the testimony of inmate Ricky Joe Gray, who disputed Brooks’s testimony.

Rule 17.1 (a) (ii) of the Arkansas Rules of Criminal Procedure mandates that the prosecutor disclose, upon timely request, “any written or recorded statements and the substance of any oral statements made by the defendant or a co-defendant.” Rule 19.2 imposes a continuing duty on the prosecutor to disclose this information. In the event of noncompliance, Rule 19.7 allows the trial judge to order the undisclosed evidence excluded, grant a continuance, or enter such an order as he or she deems proper under the circumstances. The key in determining whether a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose. Bray v. State, 322 Ark. 178, 908 S.W.2d 88 (1995).

When examining the facts in this case, we disagree with Rayford’s contention that they demonstrate a violation of the rules of discovery, as the trial judge went to great lengths to insure their compliance. The trial judge provided Rayford with a copy of Brooks’s letter and expressly warned defense counsel that he “needed to be ready” for Brooks’s testimony that Rayford had been bragging about killing a man. At this point, Rayford should have been prepared for the possibility that Brooks would testify. See Ferrell v. State, 325 Ark. 455, 929 S.W. 2d 697 (1996). The day after defense counsel received Brooks’s letter, the prosecutor announced that he would call Brooks as a witness. Once Rayford knew that Brooks would be a witness, his counsel had the right and duty, time permitting, to conduct his own investigation, interview Brooks, and perhaps discover what Brooks would say at trial. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), cert. denied, 464 U.S. 835 (1983). As to the verbal statement the prosecutor obtained from Brooks on the morning of trial, the record indicates that he delivered a written summary of Brooks’s statement to defense counsel’s office before trial. As the prosecutor and defense counsel found out about Brooks statement at approximately the same time, and there is no evidence that the prosecutor deliberately avoided obtaining this information in order to have it presented at trial, we must conclude that the prosecutor satisfied his continuing duty to disclose.

Even if we were to conclude that the State had improperly failed to provide Brooks’s statement to the defense, we would affirm due to Rayford’s failure to demonstrate prejudice. While appellant argues that the State had no proof of premeditation and deliberation in the absence of Brooks’s testimony, we disagree. Dr. Frank Peretti of the State Crime Lab performed the autopsy on the victim and testified at trial that the victim’s death was caused by a shotgun wound to the back and blunt-force head injuries. He observed at least six blunt-force head injuries and bruises and scrapes on the victim’s face, indicating that he had been in an altercation prior to his death. The victim had black eyes that were the probable results of a fist fight. Dr. Peretti further observed some bruises on the victim’s right arm and lower chest that were consistent with being hit with the stock of a gun. Thus, the jury could have inferred premeditated and deliberate murder from the act itself, as they heard Dr. Peretti’s testimony regarding the the nature and number of wounds to the victim’s body, and were able to view photographs of these injuries as well. In light of this evidence and Rayford’s conflicting accounts of how the shooting took place, the jury could have easily inferred, in the absence of Brooks’s testimony, that Rayford’s killing of the victim was a premeditated and deliberate act.

We also think it significant that Rayford’s counsel commented, after his objection during opening statements, that no harm was done by the State’s reference to Brooks’s anticipated testimony. Indeed, the record shows that the trial judge gave Rayford time to interview the other inmates and that Rayford was able to present the testimony of inmate Ricky Joe Gray during his case. As Gray disputed Brooks’s testimony, the similar testimony offered in the new-trial affidavits of inmates Dennis Caldwell, James Green, and Tommy Green, would be cumulative to Gray’s testimony. As such, Rayford is unable to demonstrate that he was prejudiced by the trial court’s denial of his motion for new trial.

We have reviewed the record pursuant to Ark. Sup. Ct. R. 4-3(h), and no prejudicial error has been found that would warrant reversal.

Affirmed.


author: Bradley D. Jesson, Chief Justice. ANDREE LAYTON Roaf, Justice.

text:
    STATE of Arkansas v. John Edward JOHNSON
    CR 96-359
    934 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered November 25, 1996

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., Sr. Appellate Advocate for appellant.

      Jack R. Kearney, for appellee.
   Bradley D. Jesson, Chief Justice.

This is an interlocutory appeal brought by the State, pursuant to Ark. R. Crim. P. 3(a)(2). The State contends that the trial court erred in granting the appel-lee’s motion to suppress his confession. We agree and reverse and remand.

On August 30, 1995, John Edward Johnson was charged with one count of rape, two counts of aggravated robbery, and two counts of theft of property. The charges were brought in connection with the June 25, 1995 robbery of the Purple Cow restaurant in Little Rock. The incident was the fourth in a string of robberies which had occurred at the Purple Cow. During the course of the June 25 incident, an employee of the restaurant allegedly was raped. On July 7, 1995, Johnson confessed to police that he had committed the June 25 robbery. According to Johnson’s statement, he went to the restaurant near closing time. While wearing a ski mask over his face and armed with a shotgun, he confronted an employee in the parking lot. He forced the employee back into the restaurant, demanded the night’s receipts, and told a female employee to undress. He then exited the building. It is this statement which Johnson moved to suppress. He claimed that the statement was obtained through coercion and that he was denied the ability to obtain counsel of his own choosing. The trial judge agreed that Johnson had been denied his right to choice of counsel, even though a public defender consulted with Johnson before he gave the statement and remained with Johnson while the statement was given.

At a hearing on the motion to suppress, the following evidence was adduced. Johnson, a former employee of the Purple Cow, first became a suspect on or about June 30, 1995. At the request of Little Rock Police Detective Todd Armstrong, Johnson came to the police station on the 30th and was questioned regarding the incident. He denied any knowledge of the robbery. The authorities took no action based on the interview, and Johnson was free to go. Apparently, though, he developed into a suspect shordy thereafter. On July 5, 1995, Detective Armstrong, along with Detective Charles Ray, visited Johnson’s home to serve a court order requesting Johnson to appear on July 7 and provide blood, hair, and urine samples for chemical testing. When Johnson did not show up at the appointed time, a warrant was issued for his arrest for contempt of court. He was arrested and brought to the police station on the afternoon of July 7. Shortly thereafter, he made the confession that is the subject of this case.

Prior to giving his statement, Johnson was advised of his Miranda rights. He signed a form containing those rights and also signed a rights-waiver form. At some point either during or just after signing the rights waiver, Johnson told Detective Armstrong that, before he gave a statement, he would like to talk with an attorney. Armstrong testified at the hearing that he responded to the request as follows:

I asked him did he have one in mind? I could give him a phone book if he didn’t. He didn’t have an attorney in mind. I proceeded to contact the public defender’s offices so they could send somebody down to represent him.

Armstrong also testified that Johnson did not object to his calling the public defender, nor did Johnson say that he wanted another attorney.

Attorney Tammy Harris from the public defender’s office was summoned by page, and she arrived at the police station shordy thereafter. She went over the rights form with Johnson and advised him not to give a statement. Johnson indicated he wanted to go ahead and make a statement. During the course of their conversation, Johnson also indicated to Ms. Harris that his family was going to try and hire a private attorney. Ms. Harris did not relay this information to the police. Shortly thereafter, with Ms. Harris present, Johnson gave his confession. It was tape recorded by the police. The transcript of the tape reflects that, at the beginning of the statement, Johnson was again advised of his Miranda rights. Ms. Harris then said the following to him:

Mr. Johnson, I told you of your right number one, you have the right to remain silent. I’ve advised you to exercise that right but you want to go ahead and give a statement to Detective Armstrong. Is that right?
[Johnson answers]: Yes.

The trial judge ruled that, under these circumstances, Johnson was denied his constitutional right to counsel. The State appeals from that ruling.

In this case we address, for the first time, whether an accused has a right to have an attorney of his own choosing present during an in-custody interrogation. The answer to that question is important not only in the sense that it involves the precious safeguards set forth in Miranda v. Arizona, 384 U.S. 436 (1966), but in the sense that it has far-reaching implications in the administration of criminal law as applied by police officers, prosecutors, and public defenders. Our review of this case is required for the correct and uniform administration of criminal law. Ark. R. App. Crim. 3(c). We therefore have jurisdiction of this appeal brought by the State. See generally State v. Spencer, 319 Ark. 454, 892 S.W.2d 484 (1995) (determining under what circumstances an officer is required to give Miranda warnings to the subject of his interrogation).

The “right to counsel” we speak of in this case is the right established by the United States Supreme Court in the landmark Miranda decision. The Court in Miranda was concerned with the environment of the interrogation process and designed a system of procedural safeguards to protect a citizen’s Fifth Amendment privilege against self-incrimination. Among those safeguards was the right to the presence of an attorney. The Court was particularly bothered by the “compelling atmosphere” of in-custody interrogation. Critical to the Court’s thinking was the idea that, in the absence of certain protective devices, interrogations conducted “incommunicado” or in “privacy” or “secrecy” run the risk of an accused incriminating himself without full awareness of his all-important Fifth Amendment rights.

Against this backdrop, we conclude that John Edward Johnson was not deprived of his right to counsel, as contemplated by Miranda. He consulted with an attorney prior to giving a statement. The attorney was present during the statement. There is no allegation that counsel was ineffective or acted contrary to Johnson’s interests. In fact, she advised him not to give a statement. The fact that counsel, at the interrogation stage of the process, may not have been Johnson’s choice, is of no consequence. See Seattle v. Sandholm, 65 Wash. App. 747, 829 P.2d 1133 (1992). What is of consequence is that the evils which Miranda sought to protect against were not present here. Johnson’s statement was not given in a secret or isolated atmosphere, nor was he kept in ignorance about his rights. He had been fully advised of his Miranda rights, he invoked his right to counsel, he consulted with an attorney, and he had the attorney present during questioning. His right to counsel, as envisioned by the Supreme Court in Miranda, was protected.

Reversed and remanded.

NEWBERN, J., not participating.

Dudley and Roaf, JJ., dissent.

ANDREE LAYTON Roaf, Justice.

I do not agree that the circumstances of this case sufficiendy implicate the correct and uniform administration of the criminal law so as to invoke the jurisdiction of this court pursuant to Ark. R. App. P. Crim. 3. I would dismiss the appeal.

Ark. R. App. P. Crim. 3(a) requires the State to certify that an appeal is not taken for the purposes of delay and that the trial court’s order substantially prejudices the prosecution of the case. However, the State may not appeal simply because it believes that the trial court made an erroneous ruling. The rule further requires the attorney general to inspect the record and certify that the correct and uniform administration of the criminal law requires review by this court. Ark. R. App. P. Crim. 3(c).

I agree with Johnson’s contention that the trial court’s ruling involved a question of fact or at least a mixed question of law and fact, and is therefore not appropriate for an interlocutory appeal. For example, determining whether the statute of limitations on a particular felony has run does not involve the correct and uniform administration of criminal law, and is therefore not appropriate for an interlocutory appeal. See State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993). Likewise, pure issues of statutory application, rather than interpretation, do not involve the correct and uniform administration of the criminal law. See State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995) (“As a matter of practice under [Ark. R. App. P. Crim. 3], we only take appeals that are narrow in scope and involve the interpretation of the law”)

In State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994), this court also considered whether it had jurisdiction to consider the State’s interlocutory appeal from the grant of a motion to suppress a confession. At issue was a statement made to a fraud investigator at the Department of Human Services, and whether the trial court correcdy concluded that the investigator was a “law enforcement officer” as contemplated by Ark. R. Crim. P. 2.3, requiring that he advise the defendant that she had no obligation to come to his office to make the statement.

In Harris, we construed Ark. R. Crim. P. 36.10 (currently codified at Ark. R. App. P. Crim. 3), and determined that the trial court acted within its discretion after making an evidentiary decision. The trial court’s ruling turned on the facts of the case to such an extent that the “correct and uniform administration of the law” was not at issue. This court further stated that:

In short, an interpretation of the Criminal Rules with widespread ramifications is simply not at issue in this case. . . [w]here the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 [currently codified at Ark. R. App. P. Crim. 3].

Id. (emphasis added) (quoting State v. Mazur, 312 Ark. 121, 847 S.W.2d 715 (1993)). Accordingly, we concluded that we did not have jurisdiction to hear the interlocutory appeal and dismissed it.

The present case is essentially indistinguishable from Harris. In ordering Johnson’s statement to be suppressed, the trial court determined that the police, as a matter of law, violated Johnson’s constitutional rights in two respects: the police should have allowed Johnson to make a telephone call as soon as he requested an attorney, and should not have been empowered to effectively “choose” an attorney for Johnson. However, in so doing, the trial court necessarily considered certain evidentiary matters: whether Johnson was under arrest, whether Johnson requested a private attorney, whether he was allowed to make a phone call, whether the public defender was representing Johnson at the time of the statement, whether the police “chose” an attorney for Johnson, and other circumstances attendant with the taking of Johnson’s statement, both before and after Johnson invoked his right to consult with an attorney. The trial court’s ruling thus turned on the facts of the case to a great extent and his decision was, at the least, based on a mixed question of law and fact.

As to the merits, the majority frames the issue to be addressed in this appeal as whether an accused has a right to have an attorney of his own choosing present during an in-custody interrogation. In this case, Johnson was a suspect at the time of his interrogation. Although he was under arrest for contempt of court in connection with his failure to show up for the taking of blood and other samples, he had not yet been charged with the crime. Thus, only his Fifth Amendment right against self-incrimination was implicated in this case, and his Sixth Amendment right to counsel had not yet attached. See Davis v. United States, 114 S. Ct. 2350 (1994); Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995); McClendon v. State, 295 Ark. 303, 718 S.W.2d 641 (1988).

In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that police must explain this right to him before questioning begins. As stated by the Court in Michigan v. Tucker, 417 U.S. 433 (1974), the right to counsel established in Miranda was one of a “series of recommended ‘procedural safeguards’. . . [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.”

Here, the public defender did not occupy an attorney-client relationship with Johnson when she advised him, nor, as a suspect, was he entitled to appointment of counsel. Rather, as the United States Supreme Court stated in Michigan v. Tucker, supra, the Fifth Amendment right to counsel is a procedural safeguard intended to insure that the right against compulsory self-incrimination is protected. The rule is designed to prevent police from badgering a defendant into waiving previously asserted Miranda rights. See Minnick v. Mississippi, 498 U.S. 146 (1990). I agree with the majority that under the particular circumstances of this case, the preponderance of the evidence adduced at the suppression hearing tends to show that the public defender fulfilled the function of protecting Johnson against compulsory self-incrimination. However, she was paged to return to the police station because she had been there earlier in the day pursuant to the policy of the police department to have a public defender present when physical samples are to be taken from a suspect.

Neither the taking of the samples from Johnson nor this stated “policy” of the police is at issue in this appeal. There is no suggestion that the Little Rock police department, or indeed any other police department in the state, has a policy of solicitously procuring counsel for suspects who invoke their Fifth Amendment rights during custodial interrogation. Instead, my review of numerous criminal appeal transcripts would suggest quite a contrary policy.

There are surely no “widespread ramifications” for the correct and uniform administration of justice present in this appeal, and it should be dismissed.

I respectfully dissent.

Dudley, J., joins in this dissent.