author: Steele Hays, Justice.

text:
    Craig RHODES v. STATE of Arkansas
    CR 83-28
    655 S.W.2d 421
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Eddie Spitzer, for appellant.

      Steve Clark, Atty. Gen., by: VictraL. Fewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant Craig Rhodes, along with Kathy York, was charged with capital murder. The jury found both guilty of first degree murder with York sentenced to life imprisonment and Rhodes to a term of forty years. Rhodes appeals that conviction, alleging four errors for reversal.

The facts given by York and Rhodes agree in some respects and differ primarily as to the commission of the crime. Each said that on the night of the murder they had been at a bar drinking with acquaintances. They left the bar with a third person, Cecile Nelson, in a car that belonged to Liz Farrell. Because there was talk of robbery, Nelson asked to be let out of the car. York and Rhodes went to the trailer of the victim, Hubert Gibson. York knew the victim, though appellant did not, and York says she intended to borrow money from him. At this point, the two accounts differ. York testified that the appellant entered the trailer first, and she followed, finding Gibson lying in bed; that Gibson yelled and appellant began hitting him and then put a pillow over his face and asked York to bring him a knife. York said she brought a knife and that appellant pressed the dull side of the knife against Gibson’s throat, that she then took the knife and stabbed the victim in the chest. According to the coroner’s testimony Gibson died of knife wounds and strangulation from a blunt object. Appellant’s version varies in that he testified that he only stepped into the trailer for a moment and then waited outside until York came out a few minutes later.

Appellant first charges error in the court’s refusal to sever his trial from the co-defendant. He argues that under our ruling in McDaniel and Gookin v. State, 278 Ark. 631, 648 S.W.2d 57 (1983) his motion should have been granted. We find the argument to be without merit.

We stated in McDaniel that ordinarily the question of severance is a matter of discretion with the trial court, but there are a number of elements that must be considered to determine if there has been an abuse of discretion. The issue of severance is to be determined on a case by case basis considering the totality of their circumstances. With regard to antagonistic defenses, which is the thrust of appellant’s argument, we stated that:

We do not suggest that simply because defenses are antagonistic the trial court must grant severance or risk reversal, merely that where the defenses are antagonistic, particularly in capital cases, careful consideration should be given to all the factors which weigh for or against achieving substantial justice in the trial process, and where it can be seen that either defendant is unduly jeopardized by a joint trial, severance should be granted. McDaniel at 639.

Of the seven factors listed in McDaniel (at 638) there appear to be only two that give us pause for consideration: 1) where the defenses are antagonistic; 2) where one defendant chooses to testify, the other is compelled to do so. Although we did not set out any specific definition of what constituted antagonistic defenses, the facts in McDaniel present a materially different conflict than arises here. In McDaniel, and other cases cited therein, an irreconcilable situation presented itself when each defendant denied involvement in the crime and put the blame on the other. Here, the co-defendant readily admitted her participation in the murder and Rhodes did not even argue antagonistic defenses to the trial court. There was no attempt by York to absolve herself by accusing Rhodes. York’s testimony against him was simply part of cumulative evidence of his participation in the crime. The jury was not put in the same predicament as it was in McDaniel of resolving mutually exclusive defenses, with the potential for putting the entire blame on the wrong individual. Nor did the findings of the jury here reflect the obvious quandry the McDaniel jury was in when it returned a verdict of life without parole for both defendants, but the verdict forms as to mitigating circumstances for each defendant indicated that “the capital murder was committed by another person and [McDaniel/ Gookin] was an accomplice and his participation was relatively minor”. We do not find the defenses here antagonistic.

The other element mentioned does not, standing alone, compel us to find that under the totality of the circumstances, severance was necessary in this case to achieve substantial justice.

Another contention is that it was error to refuse to allow twelve peremptory challenges to both defendants. We have only recently considered this argument and found it wanting. Clines, et al v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), decided July 5, 1983.

Appellant next contends that the court erred in refusing to grant a mistrial because witnesses were permitted to testify to out-of-court statements by York which referred to appellant and were inadmissible against him. Although both statements were potentially inadmissible, we find that any error was harmless and produced no prejudice to the appellant. One statement was made by Liz Farrell that York told her that after she had stabbed Gibson, she and Rhodes ran from the trailer and Rhodes picked up the knife. This statement implicates appellant no more than he already admits, other than the fact that he picked up the knife. But the statement in fact supports his version of the case and tends to exonerate him by York’s admission of the crime. The other statement was made by a Texas police officer who testified to a statement made by York while en route to the city jail, that she knew about a murder, that she was there and knew who did it, a black male companion. York had initially given a statement to police indicating that the appellant had murdered the victim, but she gave a later statement to police that she had stabbed Gibson and admitted on the stand, after the officer testified, that she had lied in her initial statement to the police. We can see no clearer removal of prejudice than the declarant herself admitting her initial statement blaming the appellant was false.

Appellant’s last argument raises the issue that there was insufficient testimony to corroborate the accomplice testimony as required by Ark. Stat. Ann. § 43-2116 (Repl. 1977), requiring that accomplice testimony must be corroborated by other evidence which tends to connect the accused with the commission of the crime. We have held that it is unnecessary that the evidence be sufficient to sustain the conviction, but it must, independent of that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). We stated in Henderson that the test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. In both Henderson and Rhodes, the independent evidence connected the defendant with the crime at the time and place the crime was committed, and in Henderson, circumstances supported a connection between the defendant and the murder weapon. In this case, the evidence is undisputed that the appellant was at the scene of the crime, by his own admission. The j ury had that admitted fact to consider, whereas in Henderson and Rhodes there was sufficient corroboration when there was only direct and circumstantial evidence or testimony of others to connect the defendant with the crime. The jury also had before it the testimony of the coroner as evidence which connected appellant to the victim, and the fact that the appellant was able to lead the police to the place where the murder weapon was disposed of. Applying the standards set out in Henderson and Rhodes and comparing the quantum and quality of evidence in those cases to the case before us, we cannot say as a matter of law there was insufficient evidence to corroborate the accomplice’s testimony.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Arthur Lee GRAIN v. STATE of Arkansas
    655 S.W.2d 425
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Pro Se Motion for Belated Appeal; motion denied.
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

The Circuit Court of Pulaski County denied the appellant Arthur Lee Grain’s pro se petition for postconviction relief on March 25, 1983. Appellant did not file a notice of appeal, and he now asks this Court to allow him a belated appeal.

Appellant states that he mailed a notice of appeal to the circuit judge “on time.” He accuses the circuit court of failing to act properly, by which he apparently means that the circuit judge was obligated to see that his notice was properly filed. He does not say when it was mailed, merely that it was timely; he does not say when it was received.

Just as a convicted defendant may waive his right to appeal by failure without good cause to file a notice of appeal, a petitioner whose Rule 37 petition for postconviction relief is denied may also waive his right to appeal. Barton v. State, 278 Ark. 159, 644 S.W.2d 272 (1983). Appellant clearly knew of his appeal right. He gives no good cause for failing to exercise that right by filing a timely notice of appeal with the circuit clerk. If merely stating in conclusory fashion that the notice of appeal was sent to the wrong place were a ground for granting a belated appeal, an appellant would feel little obligation to comply with the rules of appellate procedure. Ignorance of proper procedure alone is not good cause to permit a belated appeal.

Motion denied.


text:
    Rahn THOMPSON v. STATE of Arkansas
    655 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983
    Pro Se Motion for Belated Appeal; motion denied.
    Appellant, pro se.

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

Appellant Rahn Thompson entered a negotiated plea of guilty in February, 1981. In January, 1983, he filed a petition for writ of error coram nobis which was denied on February 2, 1983. He contends that he mailed a notice of appeal to the Pulaski County Circuit Court. He does not say when it was mailed, but he mailed a copy of it to this Court which was received on February 22, 1983. Apparently, he mailed the notice to the circuit judge rather than the circuit clerk because he argues that the judge violated his rights by holding his notice until March 7 when the judge passed it on to the public defender. The public defender, who was not actually appointed to represent the appellant, suggested that he file the motion for belated appeal which is now before us.

To be entitled to a belated appeal, an appellant must show good cause for failure to file a timely notice of appeal. See A.R.Cr.P. Rule 36.9. Appellant here gives no reason for failing to forward his notice of appeal to the clerk of the circuit court, nor does he allege that the notice was received by the circuit court judge within the 30 days for filing a notice of appeal. Even if it were received by the circuit j udge, the rules of appellate procedure require that a notice of appeal be filed with the circuit clerk. Ark. R. App. P. 3 (a), Ark. Stat. Ann. Vol. 3A (Repl. 1979). Mere ignorance of appellate procedure alone is not good cause for granting a belated appeal.

Motion denied.


author: Per Curiam. John I. Purtle, Justice,

text:
    TUCKER ENTERPRISES, INC. d/b/a MR. MOBILE HOMES and CENTURION HOMES CORPORATION v. George F. HARTJE, Judge, et al
    82-191 & 192
    655 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered July 11, 1983

      Tom F. Lovett and John C. Gregg, for petitioners.

      Stephen E. James, for respondents.
   Per Curiam.

Respondent’s Petition to Correct Error is denied.

Holt and Purtle, JJ., would grant.

John I. Purtle, Justice,

dissenting. I do not think the Lovettes should be required to pay the costs in this petition for prohibition. They were incorrectly named as respondents and appeared only to try to extricate themselves from the proceeding. The petitioners were successful in prohibiting the judge from hearing the case on its merits. Since we do not require the trial court to pay the costs, although he lost the case, we should require the petitioners rather than innocent bystanders to pay the costs of this proceeding.

Holt, J., joins in the dissent.


author: George Rose Smith, Justice.

text:
    Lula Mae DIXON v. ARKANSAS STATE BANK
    83-154
    655 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Coffelt, Burrow ¿r Sawyer, by: Stephen P. Sawyer, for appellant.

      William R. Mayo, for appellee.
   George Rose Smith, Justice.

On January 15, 1981, the appellant’s late husband, Odell Dixon, executed a $26,000 promissory note to the appellee bank. To secure that note Odell assigned to the bank three certificates of deposit, issued by the bank to “Odell Dixon or Lula Mae Dixon or the survivor thereof’ ’ and payable to “either of them as joint tenants and not as tenants in common.” On the preceding day Odell had assigned a similar certificate of deposit to the bank to secure another note, for $16,000. Lula Mae did not sign either note. The four certificates totaled $30,000.

Odell died on March 22, 1981. The bank then applied the money represented by the certificates to Odell’s indebtedness. Lula Mae Dixon brought this action against the bank for conversion, on the theory that she and her husband owned the four certificates as tenants by the entirety and that upon his death she became the sole owner of the certificates, free of any lien created by Odell only. All the facts were stipulated. This appeal is from a judgment in favor of the bank.

The trial court correctly applied the statute governing such certificates of deposit. It first provides that when a certificate of deposit is payable in joint tenancy with right of survivorship, the issuing bank may pay the certificate to either of the persons during their lifetime. Ark. Stat. Ann. § 67-552 (a) (Repl. 1980). Subsection (d) then provides with respect to such a certificate that “a banking institution shall pay withdrawal requests, accept pledges of the same, and otherwise deal in any manner with the . . . certificate of deposit upon the direction of any one of the persons named therein, whether the other persons named in said . . . certificate of deposit be living or not.” § 67-552 (d). Hence during Odell’s lifetime he could have cashed the certificates under subsection (a) of the statute or have pledged them to the bank, as he did, under subsection (d). The legislature unquestionably has the power to modify the law with regard to tenancies by the entirety as far as subsequent transactions are concerned. Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957). Odell’s pledge of the certificates to the bank to secure his own debt was therefore valid and binding upon his widow.

Affirmed.


text:
    STATE of Arkansas v. Roy A. STONE
    CR 83-56
    655 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellant.

      R. Theodor Strieker, for appellee.
   George Rose Smith, Justice.

In this prosecution for four forgeries the trial judge sustained the defendant’s motion to suppress a confession as having been involuntary. The State has appealed from that interlocutory order, as it is permitted to do by Criminal Procedure Rule 36.10 as amended by our per curiam order of February 14, 1983.

When the defendant, Roy A. Stone, age 22, was arrested, he retained Theodor Strieker as his attorney. After conferring with his client, who was in custody, Strieker gave Deputy Sheriff Drake permission to take handwriting samples from Stone, but both Strieker and Stone told Sergeant Drake that no statements were to be taken. Strieker then left for lunch. The trial judge found from the stipulated facts and from defense counsel’s uncontradicted trial brief “that Mr. Strieker was assured that no statement would be taken; and that Mr. Strieker was assured that he would be called ‘if anything came up.’ ”

Shortly after Strieker had left, Sergeant Drake went to obtain the handwriting samples from Stone. On the way upstairs from his cell Stone told Drake that he had been thinking and thought he ought to talk to Drake. Drake reminded Stone that he just wanted handwriting samples and that Stone’s attorney had advised him not to make statements. Stone said he knew that but still thought he ought to talk to Drake. A taped statement was then taken, with Stone again being reminded of his attorney’s advice and again expressing his wish to make a statement. No effort appears to have been made by Sergeant Drake to call Strieker.

The State argues that the confession was admissible, despite Stone’s original refusal to make a statement, because Stone initiated his further conversation with Sergeant Drake. Edwards v. Arizona, 451 U.S. 477 (1981); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981), cert. denied 456 U.S. 1008 (1982). In Coble, however, we said: “The admissibility of statements obtained after a person in custody has decided to remain silent depends, under [Miranda v. Arizona, 384 U.S. 436 (1966)], on whether his right to cutoff questioning was scrupulously honored.” Here it cannot be said that Sergeant Drake scrupulously honored Stone’s rights, for Drake failed to call Stone’s attorney after he had assured the attorney that he would be called if anything came up. To uphold the admissibility of the confession in these circumstances might enable the police to obtain confessions by first assuring counsel that no statement would be taken without further notice and then disregarding that assurance. When we consider the totality of the circumstances, as is our practice, we cannot say that the trial judge was clearly wrong in suppressing the confession.

Affirmed, with the effect specified in Rule 36.10 (d).


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Diana DONIS et al
    83-90
    655 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Carolyn Parham, for appellant.

      Michael G. Pritchard, Ozark Legal Services, for appellees.
   Frank Holt, Justice.

Appellee Diana Donis is the mother of appellees Rashana Donis, age 9, and Londa Donis, age 7. The chidlren were awarded damages in a New Mexico court for the wrongful death of their father. That court ordered the proceeds divided equally, placed in savings accounts or certificates of deposit in a bank or savings and. loan association and not be removed without court approval. Their mother was appointed conservator of the property of these children. A portion of these funds has been removed, with court approval, to purchase a house in the names of Rashana Donis and Londa Donis. The present balance in each savings account is $4,800.

The appellant, a state agency, is responsible for the regulation of medicaid and food stamp monies in Arkansas. It upheld the county office and the Fair Hearing Committee’s determination that Rashana and Londa were ineligible for these benefits as defined by federal and state regulations. The appellees took a timely appeal to the circuit court pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1981). The court granted the appellees’ motion for summary judgment asking for a reversal, finding as a matter of law that the trust funds were inaccessible assets with respect to determining eligibility for the Food Stamp Program and the funds were inaccessible resources with respect to determining eligibility for the Medicaid Program. Therefore, there was no substantial evidence to support appellant’s determination that the trust funds were accessible assets or resources pursuant to either the Food Stamp or Medicaid regulations. The appellant contends that these savings accounts are properly counted as assets available to the appellees as beneficiaries of the trusts. However, appellees argue these accounts are unavailable to them, and under the applicable regulations, cannot be properly counted as assets.

With respect to food stamp eligibility, the critical regulation is 7 CFR § 273 (e) (8), which states in pertinent part:

... Any funds in a trust or transferred to a trust, and the income produced by that trust to the extent it is not available to the household, shall be considered inaccessible to the household if: ....
(ii) The trustee administering the funds is either: (A) A court, or an institution, corporation or organization which is not under the direction or ownership of any household member or (B) an individual appointed by the court who has court imposed limitations placed on his/her use of the funds which meet the requirements of this paragraph. . . .

The dispute really focuses upon the application or interpretation of the cited subsection of the regulation. It is appellant’s position that this subsection concerning trustees has not been met by the terms of the trust and, therefore, the trust funds are accessible. Appellees contend to the contrary. According to N.M. Stat. Ann. § 45-5-420 (1978), the appointment of Diana Donis as conservator vests the title in her as trustee to all the property of the protected persons. Hence, Diana Donis is the trustee of the funds in the savings accounts in the names of Rashana and Londa Donis. No court imposed limitations have been placed on her use of those funds, other than that she must obtain court permission to remove them from the savings accounts. She has not sought the court’s permission. The burden is upon her, the applicant, to demonstrate these funds are inaccessible. She has not met the burden of showing that the trust funds are inaccessible within the meaning of subsection ii, 7 CFR § 273 (e) (8), supra.

With respect to the eligibility for medicaid, the critical regulation is § 3332.2 (13) of the appellant’s Medical Services Manual, which supplements 42 CFR § 436.840. It states in pertinent part: “Whether the principal of a trust is resource depends on its availability to the applicant.” As we have stated, the New Mexico court order makes the savings accounts available to the appellees upon approval of a petition for the removal from the accounts. Furthermore, a beneficiary’s interest in a trust can be properly counted for the purposes of determining medicaid eligibility. See McNiff v. Olmsted County Welfare Department, 176 N.W.2d 888 (Minn. 1970). In the circumstances, it follows that the trial court erred in holding that the savings accounts are not available to the appellees.

Reversed and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion correctly states the law and is accurate in its statement of facts. However, I disagree with the results. To be specific, I think the provisions of 7 CFR § 273 (e) (8) conclusively establish that if a guardian or trustee is appointed by the court, with limitations attached, such funds are inaccessible to the applicant for food stamp eligibility. The mother of these children, Diana Donis, appellee, is not free to withdraw any portion of these funds for the ongoing expense involved in caring for the children. The New Mexico Probate Court specifically stated, under paragraph five of the decree appointing conservators, “That the Conservators are not to remove the moneys from the savings accounts or certificates of deposit without prior approval by Order of the Court.” I would assume that the New Mexico court would require a hearing, proof, and some type of showing before an order would be issued. If this is not a “court imposed limitation” on the use of these funds, then I do not know what is.

In a similar case it was held that a beneficiary of a trust fund created from the proceeds of a personal injury claim is not required to apply to the court in order to be eligible for medical assistance. To require an application to the court in such circumstances is arbitrary and capricious. Buie v. Blum, 435 N.Y.S.2d 550 (1980). The trial court was absolutely correct in holding these trust funds to be inaccessible to the appellees. Therefore, I would affirm.


author: Frank Holt, Justice.

text:
    Leslie Edwards NICHOLS v. STATE of Arkansas
    CR 83-16
    655 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

This appeal is from convictions of murder in the first degree and aggravated robbery for which the jury fixed appellant’s punishment at 37 years and 16 years imprisonment, respectively. Two of the state’s principal witnesses refused to testify at the end of the state’s case. The appellant moved for a directed verdict, which the court denied. The appellant then declined to offer any evidence. Appellant argues, through court appointed counsel, that the trial court erred in denying his motion inasmuch as the evidence is insufficient to support a conviction on either charge. The theory of the state’s case is that, although appellant did not kill the victim, he was an accomplice, and the jury was so instructed. AMCI 401. Viewing the evidence most favorable to the appellee, as we must do on appeal, we must agree that the motion for a directed verdict should have been granted.

The deceased, Shelia Bishop, a/k/a Shelia Ann Ward, was a federally protected witness. She was moved to Little Rock from Maryland by the federal authorities. In June 1980 approximately two weeks before the date she was last seen alive, she and her eight year old son moved in with Larry Lewis, her boyfriend, and Larry’s mother. On June 13 or on Friday morning of the date the victim disappeared, Larry Lewis came in from attending nightclubs at approximately 4 a.m. Present when he arrived were Billy Gene Stephenson (Larry’s brother), Charles Moorman and appellant. It appears that, because of her status as a federally protected witness, a decision was made by Larry and Billy Gene, after a private discussion, to move the victim to a motel. The four men and the victim got into a 1968 station wagon to go to a motel. Moorman drove the car with the appellant in the front seat. Larry, Shelia and Billy Gene occupied the rear seat. After they had driven about a half mile, Larry got out of the car at Billy Gene’s request. Billy Gene stated he would take Shelia to a motel and Larry trusted his brother to do so. Shelia was never seen again alive by Larry. Her decomposed body was found at a gravel pit on July 19,1980. She had been shot in the back of the head with a large caliber weapon. The state medical examiner testified that she had been killed about five weeks earlier.

A cab driver, Thomas Higgins, testified that he received a call on Friday morning, June 13, 1980, at approximately 4:45 a.m. No one came out of the house where he was directed to pick up his passenger, but an unmasked black man got in the front seat on the passenger side. When the door was opened, this individual was momentarily visible from the dome light until the door was closed. He also observed him when they passed through two street lights. The passenger pulled a large caliber pistol and took possession of Higgins’ cab and made him get in the cab trunk. A few minutes later, the driver stopped the cab and Higgins heard two men and a woman get in it. After a few more minutes of driving, the cab was stopped again and the three men and the woman got out of it. They were arguing inaúdibly, except he heard the woman say, “I’m going home anyway.” Their voices faded as they walked away. One person later returned to the cab and drove it to a location in Little Rock before abandoning it. Higgins had heard another vehicle drive away from the point where the three men and the woman had gotten out of his cab. He said this vehicle sounded like “an old rattletrap.” Later, Higgins picked the appellant’s picture out of a stack or spread of six photographs as the person he thought abducted him and took his cab. However, he could not be certain about the identity. At trial he testified that the appellant appeared to be the culprit. “That’s all I can say. It looks like him.”

On appellate review of the sufficiency of the evidence, we seek to determine whether the verdict is supported by substantial evidence. We reiterated in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that substantial evidence, whether direct or circumstantial, must be of “sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture .... [T]he test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.” Evidence is not substantial whenever the factfinders are left “only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion.” Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). A directed verdict should be granted where there is no evidence from which the jury could have found, without resorting to surmise and conjecture, the guilt of the defendant. Fortner & Holcombe v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). In Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), we said: “Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are.’’

Here, there is no evidence upon which the jury could base its convictions except upon surmise and conjecture. When the evidence is found insubstantial on appeal, the double jeopardy clause of our federal constitution requires a dismissal of the action. Roleson v. State, 277 Ark. 148, 614 S.W.2d 656 (1981); Polland v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Burks v. U.S., 437 U.S. 1 (1978); and Greene v. Massey, 437 U.S. 19 (1978). Consequently, it becomes unnecessary to discuss other contentions appellant urges for reversal.

Reversed and dismissed.

Adkisson, C.J., dissents.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    CITY OF WARD, Arkansas and CITY COUNCIL OF WARD, Arkansas v. WARD WATER AND SEWER SYSTEM, Ward, Arkansas, by Nicholas PEHOSH, John COX, Inez E. YARBROUGH, Virgil D. TEMPLE and Billy J. BAILEY, Commissioners
    83-19
    655 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983
    [Rehearing denied September 12, 1983.]

      William G. Fleming, for appellants.

      James B. Gannoway and Bert N. Darrow, for appellees.
   Steele Hays, Justice.

The single issue presented is whether the city council of an Arkansas municipal corporation, having adopted an ordinance creating a water and sewer commission, may abolish the commission by a majority vote.

On August 16, 1982 the Ward City Council passed Ordinance No. W2-82, providing for the abolishment of the Ward Water and Sewer Commission, created some fifteen years earlier, and for the operation of the system under the supervision of the Mayor and City Council. The ordinance was adopted by separate votes of four to three, the Mayor voting for passage of the resolution.

Appellees, who are the current appointees to the commission, brought suit against Ward and the City Council, appellants, to declare that the water and sewer system cannot be abolished, nor any commissioner removed, except by a two-thirds vote in accordance with the provisions of Ark. Stat. Ann. § 19-4201, et seq. (Repl. 1980).

The issues were submitted upon a stipulation of facts, from which the trial court held that the commission had not been legally abolished by the council. On appeal, the holding must be reversed.

It is the appellees’ position that because the ordinance abolishing the commission was adopted by a majority vote and because Ark. Stat. Ann. § 19-4222 requires a two-thirds vote for the removal of a commissioner for cause, the attempted abolishment is of no effect. We disagree. The removal of one or more commissioners for cause cannot be equated with the abolishment of the commission itself, although it has the obvious effect of separating the commissioner from the office he holds. But he has not been removed, the office itself has been terminated. See Ellis v. Allen, 202 Ark. 1007, 154 S.W.2d 815 (1941) and Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937). The requirement of § 19-4222 that a commissioner can be removed only for cause by a two-thirds vote is doubtless intended to promote the autonomy of the commission and to insure its independence, but the provision cannot be construed by implication to curtail the power of a legislative body to undo by majority vote what it is empowered to do by majority vote.

Certainly, if the council by a majority vote attempted to abolish the commission simply as a pretext for the removal of one set of commissioners to be replaced by another, such a move would clearly be proscribed by § 19-4222. But that is not at issue here, as there is no contention that the council is bent on a replacement of the commissioners. The ordinance itself states that the operation of the system will be under the Mayor and City Council.

Appellees argue that nothing in our statutes (Ark. Stat. Ann. § 19-4201 through § 19-4276) permits the abolishment of the water commission and, in fact, several sections imply that the commission is a continuing entity. The trial court relied on § 19-4223 and § 19-4227 in finding that the commission has continuing authority and, therefore, could not be abolished. The first speaks of the unlimited authority of the commissioners to manage, operate, improve and maintain the system and the second of the duty of the Mayor and City Council to execute such instruments and enact such measures as may be necessary to vest complete charge of the system in the commissioners, subject to mandamus if need be.

We do not question the legislative purpose behind the several acts comprising Title 19 of our code as intending to invest absolute authority in the commission for the management and operation of the water and sewer systems. Nonetheless, in the absence of any provision, either express or rationally implied, that a water and sewer commission, once established, can never be abolished by the governing body that created it, we are bound to recognize the settled rule of law that whatever a municipal government may do by a majority vote, it may undo by majority vote, absent constitutional or statutory restrictions. 62 C.J.S. Municipal Corporations, § 558 (e), p. 1040 (1949) and 56 Am.Jur.2d Municipal Corporations, § 239, p. 298 (1971). It is a firm rule that the power to make legislation includes the power to repeal. J. Dillon, Municipal Corporations, § 584, vol. 2, p. 919 (5th ed. 1911).

The general rule is stated clearly in E. McQuillin, Municipal Corporations, § 21.10, vol. 6, p. 193 (3rd ed. rev. 1980):

Quite commonly by express provision of charter or statute a municipal corporation may repeal as well as make and amend ordinances. Specific grant of power to repeal ordinances, however, ordinarily is not necessary since it is the general rule that power to enact ordinances implies power, unless otherwise provided in the grant, to repeal them. It is patently obvious that the effectiveness of any legislative body would be entirely destroyed if the power to amend or repeal its legislative acts were taken away from it. [Footnotes omitted.] (our italics.)

As we have said, a search of our pertinent statutes yields nothing restricting the power of a city to abolish a water commission, including the sections appellees rely on, and we cannot read into those the interpretation appellees would have us make. Whether the repealing ordinance will prove to be in the best interest of the City of Ward is not for us to judge, but it is clear under the law that our statutes cannot by implication deprive the Ward City Council of the power to abolish its water and sewer commission. Accordingly, the judgment is reversed.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I simply cannot understand why a water works commission can be abolished by a majority vote of a city council when it takes a two-thirds vote to remove a single commissioner. Act 215 of 1937 is codified in Ark. Stat. Ann. § 19-4219, et seq. (Repl. 1980). It does not require any city to establish a water works commission. However, if such a commission is established it shall have complete authority to manage, operate, improve, extend and maintain the distribution system, and shall have complete power over its property and employees. Ark. Stat. Ann. § 19-4223. The General Assembly granted cities the right to create water works commissions but did not see fit to grant authority to abolish a commission. If the commission owns the system what becomes of it when the city council usurps the office and powers of the commission? When the City of Ward entered into an agreement with the Farmers Home Administration in 1967, partially in exchange for a $153,000 grant, it undertook to abide by the terms of the agreement for a period of 40 years.

Will the city council now act as the Municipal Water Works Commissioners or assume these duties in addition to their obligations as members of the city council? Certainly the people of Ward and the entity holding the obligation due from the city have a right to expect continuity in the operation of the Municipal Water Works Commission. To allow the city council to remove the commissioners, under the pretext of abolishing the commission, only creates havoc and uncertainty. The people are entitled to more than this. Responsible people can hardly be blamed for refusing to serve on the commission or as its employees because the city council may unexpectedly and arbitrarily eliminate the positions and jobs held by the personnel and commission. A water works commission is charged by Ark. Stat. Ann. § 19-4226 with proper operation and management of municipal water works and is required to submit monthly reports and annual audits of its operations to the mayor and city council. The commission is also required to furnish such additional reports, data, and information as may be requested by the mayor or city council.

We have many times held that cities possess only such powers as are granted them by the Arkansas General Assembly. The power to abolish water works commissions is not granted by any statute which I have read. To say the least, the majority opinion will allow a city to utilize a very slipshod method in operating a business which handles peoples’ money and has an important bearing on their health. I am of the opinion that the trial court was correct and should be affirmed.


text:
    BURLINGTON NORTHERN RAILROAD COMPANY and KANSAS CITY SOUTHERN RAILWAY COMPANY v. Charles D. RAGLAND, Commissioner of Revenues of the Department of Finance and Administration of the State of Arkansas
    83-48
    655 S.W.2d 437
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Warner ir Smith; Hardin, Jesson ir Dawson; and Rowland ér Templeton, for appellants.

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, Wayne Zakrzewski, John H. Theis, Ann Fuchs, and Michael D. Munns, by: Joe Morphew, for appellee.
   Steele Hays, Justice.

This case involves the attempted imposition of a use tax by the State of Arkansas on eighty-six railroad freight cars newly acquired by lease or purchase by the Burlington Northern and Kansas City Southern Railway Companies, and loaded for the first time in Arkansas with cargo destined for delivery outside the state. The court below found the tax valid and appellants challenge that holding as a violation of the commerce clause of the United States Constitution. On appeal, we reverse.

The Arkansas Compensating Tax Act of 1949 was enacted to compensate for sales taxes lost on out-of-state purchases of articles to be used or consumed in Arkansas. It imposes an equivalent three percent tax on the purchase price of such articles. The taxing authorization is found in Ark. Stat. Ann. § 84-3105 (a):

“There is hereby levied and there shall be collected from every person in this State a tax or excise for the privilege of storing, using or consuming, within the State, any article of tangible personal property, after the passage and approval of this Act [§§ 84-3105 — 84-3128], purchased for storage, use or consumption in this State at the rate of three per centum (3%) of the sales price of such .property. This tax will not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this State until the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State. This tax shall apply to the use, storage or consumption of every article of tangible personal property, except as hereinafter provided, irrespective of whether the article or similar articles are manufactured within the State of Arkansas or are available for purchase within the State of Arkansas, and irrespective of any other condition.

Appellants were audited by the Arkansas Commissioner of Revenues and a use tax was imposed on the eighty-six freight cars. Appellants paid the tax under protest and after administrative procedures were concluded, each railroad company filed separate taxpayer suits under Ark. Stat. Ann. § 84-4721 (Repl. 1980). Because of the similarity of the disputes, it was agreed that the suits would be consolidated. The facts were stipulated. As to Burlington, the state assessed a tax on fifty-six railroad cars. At the time of the assessment, the executive offices were in St. Louis, Missouri and principal operating offices in Springfield. Railroad facilities were operated and maintained in Arkansas as well as in eight other states. Of the fifty-six cars, it was stipulated that two cars were characteristic of the movement of all fifty-six. The first car arrived in Jonesboro, Arkansas on July 7, 1977 to be delivered to the Cotton Belt Railroad for loading. On July 13, the car was moved to Memphis. On August 14, 1977, the car returned to Jonesboro. It was loaded and left Jonesboro on August 23. The movement of the second car was similar except its stops in Arkansas were longer by several days. In all instances the cars were unloaded at destinations outside of Arkansas.

As to Kansas City Southern, the assessed tax was imposed on thirty boxcars. KCS operates in six states including Arkansas, with thirteen percent of its trackage in Arkansas. It was stipulated that three cars were representative of the movement of all thirty cars. KCS, however, states simply that the cars were delivered to Ashdown for loading, spent only a short time in Arkansas and the movement of the cars reflects that all the cars spent only brief and isolated periods of time within the state since leaving Ashdown. That is all we know of the length or purpose of their stay in Arkansas.

In urging that the Arkansas use tax is not applicable to these facts, appellants rely largely on cases decided prior to 1977, which turned on whether interstate commerce was involved; if so, the imposition of a state tax was generally held invalid. But if the property had ceased to be in the stream of interstate commerce and had become a part of the common mass of property within a state, then a “taxable moment” had occurred and state taxation would be upheld. See Southern Pacific Co. v. Gallagher, 306 U.S. 167, 59 S.Ct. 389 (1939); Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524 (1937).

But in 1977 there was an abrupt change of course. The case of Complete Auto Transit v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977) was decided, and a wholly different approach to state taxing jurisdiction resulted. In Brady, the Supreme Court expressly overruled the much maligned Spector Motor Service v. O’Connor, 340 U.S. 602, 71 S.Ct. 508 (1951), the leading case limiting state taxation on the privilege of doing business in a state, as a violation of the commerce clause. The court abandoned, as formalistic and impractical, prior standards applicable to challenges to state taxation on interstate commerce and laid down new guidelines for making an appropriate evaluation. In cases decided since Brady, it is clear whenever there is a challenge to any state tax on interstate commerce, the tax will be subjected to the Brady test. It has also become clear that the test will be applied to a broader spectrum of commerce, and the older concepts of “purely local activities,” “goods not yet in the stream of commerce,” “taxable moments” etc., are no longer relevant criteria in determining whether or not an activity is within interstate commerce and, therefore, subject to the Brady test. If the tax may substantially affect interstate commerce, then it is subject to commerce clause scrutiny under Brady. See specifically Commonwealth Edison v. State of Montana, 453 U.S. 609 (1981), (severance tax); see also Mobil Oil Corp. v. Comm’r of Taxes of Vermont, 445 U.S. 425 (1980), (income tax); Japan Line Ltd. v. Co. of Los Angeles, 441 U.S. 434 (1979), (ad valorem property tax); Dept. of Rev. of State of Washington v. Stevedoring Co., 435 U.S. 734 (1978), (business and occupation tax); National Geographic Society v. California Bd. of Equalization, 430 U.S. 551 (1977), (use tax); Brady, supra, (sales tax).

The procedure set out in Brady emphasizes the importance of looking at the practical effects of the taxation and moves away from labels and a form-over-substance approach. The Brady test permits taxation on interstate commerce if it meets four requirements: 1) the activity has a substantial nexus with the state; 2) the tax is fairly apportioned; 3) the tax does not discriminate against interstate commerce; 4) the tax is fairly related to the services provided by the state.

Appellants argue that the substantial nexus requirement is lacking, in this instance, but we need not settle that in this case. For one thing, if the issue were simply whether the first loading of new boxcars in Arkansas provides a substantial nexus, it might not be difficult to agree with appellants. But we are unwilling to provide what might be construed as precedent under Brady that new railroad cars are beyond our use tax jurisdiction when they enter the system on trackage in Arkansas, irrespective of where the initial loading occurs, assuming, of course, that all four prongs of the Brady testare satisfied. For another, a review of the Supreme Court decisions following Brady, of the treatment of those decisions in other jurisdictions, and of numerous analyses of these cases, makes it apparent that what constitutes substantial nexus has not been clearly established. In National Geographic, supra, decided soon after Brady, a use tax was upheld on a foreign corporation vendor which had magazine subscriptions sent to California residents. The only in-state activity in California was two advertising offices of National Geographic which had no relationship to the business being carried on by this District of Columbia corporation. The court found this nexus sufficient to satisfy Brady. The court said the relevant question was not whether the use tax related to the seller’s activities carried on within the state, but,

... Simply whether the facts demonstrate some definite link, some minimum connection between the state and the person it seeks to tax.

In Commonwealth Edison v. Montana, supra, the court gave further elaboration to the meaning of the nexus requirement. There, a severance tax on coal mining was being imposed by Montana and the taxpayers were challenging its validity under the fourth prong of the Brady test —arguing that the amount collected was not fairly related to the additional costs the states incurred because of coal mining. The court rejected the argument:

. . . There is no requirement under the Due Process Clause that the amount of general revenue taxes collected from a particular activity must be particularly related to the value of the services of the activity... The only benefit to which the taxpayer is entitled is that derived from his enjoyment of the privileges of living in an organized society . . . any other view would preclude the levying of taxes except as they are used to compensate for the burden of those who pay them and would involve abandonment of the most fundamental principle of government — that it exists primarily to provide for the common good . . .
... It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of the tax burden even though it increases the cost of doing business . . . The just share of state tax burden includes sharing in the cost of providing police and fire protection, the benefit of a trained work force and the advantages of a civilized society____Montana at 622-624.

The court went on to say that the first and fourth prongs of the Brady test were closely related. Once the first requirement is met, the fourth prong requires only that the measure of the tax be reasonably related to the extent of the contact. Quoting from Wisconsin v. J. C. Penney, 311 U.S. 435 (1940), the court concluded:

... The incidence of the tax as well as its measure must be tied to the earnings which the state had made possible insofar as government is the prerequisite for the fruits of civilization.

Finding that the tax was measured as a percentage of the coal taken, the court held the tax was in proper proportion to the taxpayers’ activities within the state and their consequent enjoyment of the opportunities and protections the state had afforded.

Appellants argue that the boxcars had not “finally come to rest within this state,” that none of the boxcars are to be used exclusively in Arkansas, but will be used throughout the railway systems of both companies and doubtless even beyond those on frequent occasion, given the easy interchange of railway freight cars among American railroads.

The Commissioner counters with the argument that an article may finally come to rest without a concommitant requirement that the property remain permanently at rest within the state. He relies on Skelton v. Federal Express Corp., 259 Ark. 127, 531 S.W.2d 941, decided in January, 1976, where we reversed a holding by the trial court that eighteen unfinished Falcon jets transported from points outside of Arkansas and the United States to Memphis, Tennessee, had not finally come to rest in Arkansas because of stopovers at Little Rock, lasting up to fifty days, for necessary modifications to the body and structure of the aircraft. The Chancellor held the use tax assessment was unlawful and, relying on Calvert v. Zanes-Ewalt Warehouse, Inc., 502 S.W.2d 689 (Tex. 1973), we reversed, though not without a division within the court. But the Arkansas legislature promptly repudiated that interpretation as wholly unintended by the Arkansas Compensating Tax Act (Act 487 of 1949), with the passage of Act 1237 of 1976, approved with an emergency clause on February 16, 1976, stating:

The General Assembly hereby determines that it was not the intent of Act 487 of 1949 ... to impose the compensating use tax upon aircraft . . . and railroad parts, cars and equipment... and any claim the State of Arkansas now has for collection of compensating use taxes upon any such [property] brought into Arkansas solely and exclusively for refurbishing, conversion or modification, shall not be collected . . .

We come to the conclusion that our use tax statute as drafted was not intended to apply in the situation here presented, the isolated act of loading a boxcar in Arkansas with cargo consigned to points outside the state, a taxing concept built on the fact that such is a first use of the boxcar. Nothing about initial loading suggests the boxcar has finally come to rest, quite the opposite. Furthermore, it is clear that the state of the law applicable to state taxing jurisdiction in force at the time (1949) was such that only by carefully restricting its attempts at imposing a tax on interstate transactions, could Arkansas avoid running afoul of the commerce clause. Thus, we believe the compensating tax act was not intended to reach as far as appellee would have us go, and apply simply to the first use of new railroad boxcars designed for usage throughout an interstate system.

Granted, all of that was changed by Complete Auto Transit v. Brady, supra, but our statute is not self-effectuating simply because of Brady. What we have said here is not to be construed as holding that Arkansas could not lawfully impose a fairly apportioned use tax on newly acquired railroad equipment to be used regularly over its lifetime in systems which include Arkansas, provided the Brady criteria are met.

The decree is reversed.

       See, State Taxation on the Privilege of Doing Interstate Business, 1978 Boston College Law Review 312; State Use Taxes After National Geographic Society v. Cal. Bd. of Equal., 64 Virginia Law Review 145 (1978); Recent Developments in State Taxation of Interstate Commerce, 7 Capital Law Review 143 (1977); State Taxation of Interstate Commerce, 91 Harvard Law Review 72 (1977).


author:
Per Curiam.
      Darrell Hickman, Justice.

text:
    Paul RUIZ & Earl Van DENTON v. STATE of Arkansas
    CR 80-147
    655 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Kaplan, Hollingsworth & Brewer, P.A., by: Ron Heller, for appellants.

      Steve Clark, Atty. Gen., by: Michael Wheeler and Victra L. Fewell, Asst. Attys. Gen., for appellee.
   Per Curiam.

Petitioners Paul Ruiz and Earl Van Denton were first convicted in the Circuit Court of Logan County of capital murder in the June 29, 1977, robbery, kidnapping and shooting deaths of Marvin Ritchie and Opal James. The jury returned death sentences. On appeal, we reversed and remanded for a new trial in another part of the district. Ruiz & Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979). The two men were again tried and again death sentences were imposed. We affirmed on appeal. Ruiz & Denton v. State, 275 Ark. 94, 617 S.W.2d 6 (1981). Petitioners then sought postconviction relief pursuant to Criminal Procedure Rule 37. The petition was denied on its merits. Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44, cert. denied, 103 S.Ct. 181 (1982). They have now filed a second petition under Rule 37.

This Court will not entertain a subsequent petition under Rule 37 unless the original petition was specifically denied without prejudice to filing a second petition. Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). Since petitioners’ original petition was denied with prejudice, they are not entitled to a second petition even though theirs is a capital case.

Petitioners were prompted to file this petition by an Order of the United States District Court instructing them to raise the issue of whether a comparative review of petitioners’ case with other death penalty cases had been conducted by this Court. Although the words “comparative review” may not appear in our opinion, such a review has been afforded in every capital case since the practice was made a part of our appellate review process in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1975), cert. denied, 434 U.S. 878 (1977). See Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983). We have modified the death sentence in cases where it was not appropriate. See Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977). In petitioners’ case the death sentences were carefully and deliberately compared to sentences in other capital cases and it was found that the death penalty was fully justified by the heinous murders of the two victims. We have not seen, and we are not likely to see, a more callous murder than those perpetrated by the petitioners. Marvin Ritchie and another man, David Small, were handcuffed together and forced into the trunk of a vehicle. Petitioners took Small’s watch from his wrist and then shot both men at point-blank range. Small survived despite a critical wound and provided crucial testimony against petitioners. Opal James, who was apparently kept alive to guide petitioners out of rural Logan County, was found dead two days later of a single bullet through the head. The evidence of petitioners’ guilt was overwhelming. At trial the jury found aggravating circumstances which were clearly sufficient to warrant the death penalty but no mitigating circumstances. This Court reviewed the facts of the case and the imposition of the death penalty on two appeals and in a petition for postconviction relief. We did not find the death sentences to have been arbitrarily or capriciously imposed in those examinations, and we will not grant petitioners yet another opportunity for review.

Petition dismissed.

Hickman, J., concurs.

Darrell Hickman, Justice.

I concur only to point out some of the history of the death penalty in Arkansas. In 1977 I was a member of the court that reviewed for the second time the capital murder conviction of Carl Albert Collins. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977). I dissented in that decision for three legal reasons. When the United States Supreme Court denied certiorari, I concluded that the questions that I had regarding the Arkansas death penalty statute were answered. Since the Collins case, and including it, this court has not approved the death penalty in a single case where the appellant or appellants did not deserve the ultimate legal penalty for the conduct for which they were found guilty. We have not mentioned in every opinion that we compared the death panelty with cases with similar facts to meet the requirement of comparative review, and perhaps we should have. But, quite frankly, it has never occured to us when we have approved the death penalty that the appellant did not deserve the sentence that the jury imposed. Some of us have had other questions, but not that one. When the sentence obviously deserved comparison, we have done so and usually have reduced the sentence.

In three cases, on first review, we reserved and remanded for a new trial, and on a second review approved the re-imposition of the death penalty. One of those cases was Earl Van Denton and Paul Ruiz’s. Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981). The others were: Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057 (1980), petition for post-conviction relief denied, 272 Ark. 340, 617 S.W.2d 1 (1981); Hayes v. State, 278 Ark. 211, 645 S.W.2d 662 (1983).

In two cases we reversed involving the death penalty, the appellants received lesser sentences on retrial. We affirmed both lesser sentences. Westbrook v. State, 274 Ark. 309, 624 S.W.2d 433 (1981); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1981).

We have reversed three cases that have not come back to us on appeal. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982); Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982); Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).

In six cases we have reduced the death penalty for various reasons. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977); Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972). In Henry v. State, supra, I pointed out that that was the first case where comparative review had been a serious consideration. That question came up again in Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). We concluded that if the four appellants in that case could be tried jointly, they could be sentenced together since none could disclaim his complicity simply because only one actually murdered the victim. Two justices disagreed.

Arkansas’s history in reviewing death penalty spans more than seven years. Since Collins, according to my information, the death penalty has been sought in at least 61 cases that have been appealed to us, and has been obtained in 34 cases. That is an indication that the juries in Arkansas treat their duties with sobriety and reserve the death penalty for only the most serious and extreme cases. And we have taken the review of death cases as a most serious matter, giving these cases extra attention and consideration, being certain that a defendant has received a fair trial. In only one instance have I felt that not to be the case. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, 103 S. Ct. 389 (1982).

Of those 20 men who have had their sentences approved by this court, 13 are white, six are black, and one is Hispanic. All are over 21 years of age. In those cases we have approved on direct appeal and on petition for Rule 37 relief, the crimes, without question, deserved the law’s most severe punishment, if any crimes deserve punishment by death. Not a single case we have approved can it be suggested that the sentence was freakish or capricious —which is what comparison is supposed to prevent.

We have reviewed the case before us three times and the United States Supreme Court has denied review. We reviewed Carl Albert Collins’ case twice on direct appeal; the United States Supreme Court has examined it twice, and we have reviewed it once pursuant to a petition for postconviction relief. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), vacated and rem’d, Collins v. Arkansas 429 U.S. 808 (1976), aff’d on remand, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977), post-conviction relief denied, 271 Ark. 825, 611 S.W.2d 182 (1981). We are also being asked to review Collins’ case one more time.

A review of the record of the second trial of Paul Ruiz and Earl Van Denton leaves little room for argument that they did not receive a fair trial by any reasonable standard and that the punishment imposed according to law should not be executed. We have examined in detail their arguments on appeal and when we considered their petition for post-conviction relief, we were satisfied then that the demands of the law had been met. The present petition can only be characterized as one for purposes of delay or to seek some reason, however insignificant, to avoid what this court and the United Sates Supreme Court, in effect, have ordered.

ADDENDUM

In the following cases we have affirmed the appellant’s death sentence:

Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), vacated and rem’d, Collins v. Arkansas, 429 U.S. 808 (1976), aff’d on remand, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977), petition for post-conviction relief denied, 271 Ark. 825, 611 S.W.2d 182 (1981). (Shot and robbed an elderly couple he had been working for, killing the man.)
Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977), cert. denied, 439 U.S. 882 (1978), petition for post-conviction relief denied, 268 Ark. 312, 595 S.W.2d 934 (1981). (His death sentence was vacated by oral order, Hulsey v. Sargeant, No. PB-C-81-2. [E.D. Ark. July 6, 1981.]) (Shot a service station attendant seven times during a robbery.)
Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977), cert. denied, 435 U.S. 909 (1978). (Pickens shot 7 people during the robbery of a grocery store and raped a female clerk; several died.)
Woodard v. State, 261 Ark. 895, 553 S.W.2d 259 (1977), cert. denied, 439 U.S. 1122 (1979), petition for post-conviction relief denied, 273 Ark. 235, 617 S.W.2d 861 (1981). (Shot and killed a man while robbing him.)
Swindler v. State, rev’d, 264 Ark. 107, 569 S.W.2d 120 (1978), aff'd, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied, 449 U.S. 1057 (1980), petition for post-conviction relief denied, 272 Ark. 340, 617 S.W.2d 1 (1981). (Shot and killed a policeman who was checking his car registration.)
Clark v. State, 264 Ark. 630, 573 S.W.2d 622 (1979). (Clark participated in a grocery store robbery where several people were killed; he was extradited to Michigan and is serving a life sentence there.)
Van Denton and Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979), aff'd, 273 Ark. 94, 617 S.W.2d 6 (1981), cert. denied, 454 U.S. 1093 (1982), petition for post-conviction relief denied, 275 Ark. 410, 630 S.W.2d 44 (1982). (Kidnapped, shot, and robbed an Arkansas marshal and two corps of engineers’ employees; the marshal and one of the other two shot, died.)
Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), cert. denied, 450 U.S. 1035 (1981), petition for post-conviction relief denied, 273 Ark. 508, 621 S.W.2d 482 (1981). (Robbed and killed a storekeeper.)
Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981), cert. denied, 102 S. Ct. 1996 (1982). (Robbedandstabbed a storekeeper, killing her.)
Hayes v. State, rev’d, 274 Ark. 440, 625 S.W.2d 498 (1981), aff’d, 278 Ark. 211, 645 S.W.2d 662 (1983). (Murdered his girlfriend and a cab driver.)
Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, 103 S. Ct. 180 (1982), petition for post-conviction relief denied, 278 Ark. 194, 644 S.W.2d 282 (1983). (Robbed gas station, kidnapped and shot repeatedly the owner and game and fish officer; the officer died.)
Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), cert. denied, 103 S. Ct. 389 (1982). (Shot and killed Arkansas State Policeman who was pursuing him for a traffic violation.)
Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982), petition for post-conviction relief denied, 279 Ark. 213, 650 S.W.2d 241 (1983). (He shot and killed theownerof a jewelry store and his daughter with a silenced pistol while robbing the store.)
Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983). (Shot and killed four persons, one of them a police officer, in the course of a rape, robbery, and kidnapping.)
Clines, Holmes, Richley, and Orndorff v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). (The four appellants participated in the robbery of a husband, wife and daughter in their home which resulted in the shooting death of the man.
Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). (Shot and killed a storekeeper during a robbery.)

In the following cases we have reversed the case and the appellants received the death sentence again: Swindler v. State, supra; Van Denton v. State, supra; and Hayes v. State, supra. Each time we affirmed the re-imposition of the sentence.

We reduced the sentence from death to life without parole in these cases: Neal v. State, 259 Ark. 27, 531 S.W.2d 17 (1975), rem’d, 429 U.S. 808 (1976), aff’d on remand, 261 Ark. 336, 548 S.W.2d 135 (1977), petition for post-conviction relief granted in part, 270 Ark. 442, 605 S.W.2d 421 (1980), sentence reduced, 274 Ark. 217, 623 S.W.2d 191 (1981), (diminished mental capacity made death an excessive punishment); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977), (diminished mental capacity made death an excessive punishment); Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972), (sentence reduced because existing Arkansas death penalty statute was found to be unconstitutional in light of Furman v. Georgia, 408 U.S. 238 [1972]); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), (reduced pursuant to comparative review with cases with similar facts where life without parole sentences were imposed); Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), (jury improperly allowed to consider aggravating circumstance); Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983), (pursuant to comparative review).

In the following cases where the appellant received a death sentence we reversed and remanded, and, on retrial, the appellant received a life without parole sentence: Westbrook v. State, rev’d, 265 Ark. 736, 580 S.W.2d 702 (1979), aff’d, 274 Ark. 309, 624 S.W.2d 433 (1981); Hobbs v. State, rev’d, 273 Ark. 125, 617 S.W.2d 347 (1981), aff’d, 277 Ark. 271, 641 S.W.2d 9 (1982).

We have reversed the following death penalty cases but they have not yet reached us on appeal: Rhodes v. State, 276 Ark. 203, 643 S.W.2d 107 (1982); Penelton v. State, 277 Ark. 225, 640 S.W.2d 795 (1982); Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982).

In the following cases, capital murder was charged and found, but no death penalty was imposed: Bush v. State, rev’d, 261 Ark. 577, 550 S.W.2d 175 (1977); Baysinger v. State, rev’d, 261 Ark. 605, 550 S.W.2d 445 (1977); Butler v. State, remanded, 261 Ark. 369, 549 S.W.2d 65 (1977), aff’d, 264 Ark. 243, 570 S.W.2d 272 (1978); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977); Scott v. State, rev’d, 263 Ark. 669, 566 S.W.2d 737 (1978); Hallman v. State, 264 Ark. 900, 575 S.W.2d 688 (1979); Martin v. State, 264 Ark. 900, 575 S.W.2d 688 (1979), petition for post-conviction relief granted in part, 277 Ark. 175, 639 S.W.2d 738 (1982); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979); Gruzen v. State, rev’d, 267 Ark. 380, 591 S.W.2d 342 (1979), aff’d, 276 Ark. 149, 634 S.W.2d 92 (1982); Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980); Robinson v. State, rev’d, 269 Ark. 90, 598 S.W.2d 421 (1980), aff’d, 274 Ark. 312, 624 S.W.2d 312 (1981); Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980); Divanovich v. State, rev’d, 271 Ark. 104, 607 S.W.2d 383 (1980); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981); Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981); Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981); Earl v. State, rev’d, 272 Ark. 5, 612 S.W.2d 98 (1981); Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981); Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981); Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Linder v. State, 273 Ark. 470, 620 S.W.2d 944 (1981); Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981); Renton v. State, 274 Ark. 87, 622 S.W.2d 171 (1981); Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Simpson v. State, rev’d, 274 Ark. 188, 623 S.W.2d 200 (1981), aff’d, 278 Ark. 334, 645 S.W.2d 688 (1983); Lasley v. State, 274 Ark. 352, 625 S.W.2d 466 (1981); Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982), petition for post-conviction relief denied, No. CR 81-130, unpublished per curiam (June 20, 1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982); Williams v. State, 278 Ark. 9, 642 S.W.2d 887 (1982); Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983); Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983); Smith v. State, rev’d, 279 Ark. 68, 648 S.W.2d 490 (1983); Henderson v. State, rev’d, 279 Ark. 435, 652 S.W.2d 16 (1983); McDaniel and Gookin v. State, rev’d, 278 Ark. 631, 648 S.W.2d 57 (1983); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983).


text:
    TRANSIT HOMES, INC. et al v. John H. BELLAMY, Jr. and Grace BELLAMY
    83-191
    655 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Rieves, Shelton ¿r Mayton, by: Connie Lewis Mayton, for appellants.
    No response by appellees.
   Per Curiam.

This per curiam arises out of a motion for an extension of time to file the record on appeal in this court. Judgment for appellees, John and Grace Bellamy, was entered on December 27, 1982, and a notice of appeal was filed in the Lee County Circuit Court on February 4, 1983. Appellants, Transit Homes, Inc. and Elgin W. Jones, timely ordered the transcript from the court reporter on February 4, 1983, and on April 29,1983, the trial court extended the time for filing the record until July 27, 1983. Appellants now ask this court to grant them an additional 30 days in which to file the record because the court reporter is unable to complete the transcript within the seven month maximum period allowable under our rules. Attached to appellants’ motion for an extension of time is an affidavit by the court reporter which states that she has been unable to complete the transcript because of her work with the circuit court cases in the First Judicial District. The affidavit also states that the failure to complete the transcript is in no way attributable to appellants or their counsel.

Appellants’ motion for an additional 30 days in which to file the record is granted, but we take this opportunity to state that prospectively, if it appears that a record cannot be timely filed, and this inability to timely file is attributable to the court reporter, the matter will be referred to the Board of Certified Court Reporter Examiners for appropriate action. This is in addition to any other sanctions this court may take. This Board was created by our per curiam, In Re: Arkansas Supreme Court Board of Certified Court Reporter Examiners, of July 5,1983, and its members were appointed in our per curiam of July 11, 1983.

Motion granted.


text:
    Samuel Jonathan WATSON v. STATE of Arkansas
    655 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Mathis ir Childers, by: Travis Mathis, for appellant.

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

Samuel Jonathan Watson’s motion for a belated appeal is granted because the trial court found that his attorney below, Wayne R. Williams, had failed to perfect his appeal as required. A copy of this per curiam is forwarded to the Committee on Professional Ethics in accordance with the practice we have heretofore established.


text:
    Lenes WISE and William WISE v. Edwin N. BARRON, Jr., M.D.
    655 S.W.2d 446
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Raymond Harrill, for appellants.

      Herby Branscum, Jr., for appellee.
   Per Curiam.

Judgment for appellee, Edwin W. Barron, Jr., was entered in this case in the Circuit Court of Perry County on January 28, 1983. On February 23, 1983, appellants, Lenes and William Wise, filed two separate pleadings, one entitled a “Notice of Appeal” and the other “Designation of the Record."

The notice of appeal provided:

Notice is hereby given that the defendants appeal to the Arkansas Court of Appeals or the Arkansas Supreme Court from the judgment herein, rendered on January 28, 1983 and entered of record January 31, 1983.

The designation of the record provided:

Comes the defendants by their attorney Herby Branscum, Jr., and designates the entire record for the appeal herein.

On March 28, 1983, appellee filed a motion to dismiss the appeal in the trial court. The trial court never ruled on the motion, the record was lodged with the clerk, and appellee filed a motion with the Court of Appeals to dismiss the appeal. The Court of Appeals certified the motion to this court pursuant to Rule 29 (4) (b), Rules of Supreme Court.

Appellee alleges that the appeal should be dismissed on the grounds that appellants had failed to comply with Rule 3 (e), Rules of Appellate Procedure. Rule 3 (e) provides:

Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal; shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript, or specific portions thereof, have been ordered by the appellant.

Appellee contends that since the notice of appeal did not contain a statement that the transcript had been ordered as provided in Rule 3 (e) the appeal should be dismissed, relying on Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982). However, appellee’s reliance on Hudson is misplaced. In Hudson appellant’s failure to timely order the transcript resulted in the court reporter having to request an extension of time to prepare the transcript pursuant to Rule 5 (b). Under those circumstances the entire purpose of Rule 3 (e) requiring the notice of appeal to state that the transcript had been ordered was frustrated, and we dismissed the appeal.

Here, although the notice of appeal did not state that the transcript had been ordered, it was in fact ordered. No extension of time was ever needed or requested, and the record was timely filed with the clerk of this court. The purpose of the requirement in Rule 3 (e) that the notice of appeal contain a statement that the transcript has been ordered was not frustrated and appellee has not been prejudiced in this regard.

Appellee also argues that the appeal should be dismissed because he was never served with the “Designation of the Record” which appellant filed along with the “Notice of Appeal.” Appellee states the record is incomplete because it does not reflect the pretrial discussions between the court and counsel and various motions and the rulings thereon, and that he is prejudiced by his inability to adequately supplement the record nine months later. However, even if appellee had received the “Designation of the Record,” he would not have known that the pretrial discussions were not included, because appellants’ designation of the record designated the entire record. Furthermore, Rule 3 (f), Rules of Appellate Procedure, provides:

Service of Notice of Appeal or Cross-Appeal. A copy of the notice of appeal or cross-appeal shall be served by counsel for appellant or cross-appellant upon counsel for all other parties by any form of mail which requires a signed receipt. If a party is not represented by counsel, notice shall be mailed to such party at his last known address. Failure to serve notice shall not affect the validity of the appeal. [Emphasis ours}

For the reasons discussed above, appellee’s motion to dismiss the appeal is denied.


text:
    Glenda YENT v. STATE of Arkansas
    655 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered July 18, 1983

      Law Office of W. B. Putman, by: E. E. Maglothin, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Glenda Yent’s motion for belated appeal is granted. E. E. Maglothin, Jr., her attorney of record, agrees to accept responsibility for failure to file the record timely. A copy of this per curiam is forwarded to the Committee on Professional Ethics in accordance with the practice we have heretofore established.