author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Boyce MARTIN, Raymond MORRIS, Kenneth CLARK, and Douglas MUSE v. Debbie FRAZIER, Gail THOMAS, Evonne SHARP, Bobby RHEW, Charles SAMPLE, Larry CRAWFORD, and Grayling WHEELER, as board members of the MIDLAND SCHOOL DISTRICT #19
    86-206
    722 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987
    [Rehearing denied March 2, 1987.]

      Murphy, Post, Thompson & Arnold, by: A.F. “Tom” Thompson and Blair Arnold, for appellants.

      G. Ross Smith & Associates, P.A., for appellees.

      Hickman, Hays, and Glaze, JJ., would grant rehearing.

   David Newbern, Justice.

This appeal results from a dispute over closing a school. The Pleasant Plains and Floral School District consolidated by agreement, thus forming the Midland School District. The appellants, residents of the former Pleasant Plains district, sought a declaratory judgment and injunction to prohibit the Midland board of directors from closing the Pleasant Plains elementary school. They contended the consolidation agreement prohibited the closing and that the interim Midland board which voted to close the school, was illegally constituted, thus making the decision void. They also contended that the board which replaced the interim board was illegally constituted and thus subsequent decisions effecting the closure were also illegal. The chancellor held that the closing of the school did not violate the consolidation agreement and that the constitution of the Midland board did not violate the governing statutes. We affirm with one modification.

1. The agreement

There was no factual dispute. The parties stipulated the terms of the consolidation agreement and that it was binding upon them. Each side argued the provision of the agreement governing the prospect of closing the Pleasant Plains elementary school was clear and unambiguous and favored its position, thus no parol evidence was presented. The governing clause in the argument was:

It is the intent of the Floral School District and the Pleasant Plains School District that the consolidated district shall operate an elementary school facility, serving grades kindergarten through sixth, in the area now comprising the Pleasant Plains School District and the Floral School District. It is agreed that an attendance zone will be drawn for the new consolidated district, so that attendance at each elementary school will be approximately equal. It is further agreed that the consolidated district shall maintain ownership and control of all existing school buildings. Said buildings and campuses shall be maintained consistent with past practices and future educational needs. Buildings, other real property, equipment, supplies or other property deemed by the board of directors not to be needed may be disposed of.

In holding that this language permitted the closing at Pleasant Plains, the chancellor’s memorandum opinion said he agreed that the board of the new consolidated district was required to maintain two elementary schools at the outset. However, he said, the lack of a time limit combined with the language permitting maintenance of “buildings and campuses consistent with past practices and future educational needs” gave the board the authority to close the school.

The appellants argue that the lack of a time limit on the requirement that two elementary schools be maintained should be interpreted as meaning the parties to the agreement meant two elementary schools would be maintained “indefinitely.” Yet they argue, citing Dunn v. Forrester, 181 Ark. 696, 27 S.W.2d 1005 (1930), that the lack of a specified time limit implies a “reasonable” time limit.

The agreement was entered between the two school districts May 14,1985. It was approved at an election held June 18,1985, to become effective July 1, 1985. The interim board of the new Midland district, on January 5, 1986, voted to close the Pleasant Plains elementary school effective in the fall term, 1986. As the appellants put on no evidence or stipulation with respect to the reasonableness of the board’s action, we are hardly in a position to rule on whether the one year the school remained open after the new district was formed was reasonable or not. Moreover, we agree with the chancellor’s reference to the language of the agreement permitting closing of “buildings and campuses” in accordance not only with past practices but with “future educational needs” as permitting the board of the new district to close the school.

2. The statutes

The statutes governing the composition of the board of directors of a newly consolidated school district are Ark. Stat. Ann. §§ 80-449 and 80-450 (Repl. 1980). They are, in pertinent parts, as follows:

80-449. Ballot — Results.
If a majority of the qualified electors voting on this issue in each district shall vote for the consolidation of the named districts under this Act, such vote shall be so certified to the County Board of Education of each affected county. The new district shall be in existence on the date specified in the Agreement referred to in Section 5(e) [§ 80-450(e)] of this Act, as amended, provided if there is no such agreement the effective date shall be the first day of the fiscal year immediately following the date of the election. The members of the Board of Directors of the district consolidated shall serve as and constitute the Board of Directors of the new district until the next regular school election.
80-450. Board of directors — Election—Term. At the next regular school election following the creation of a new district under this Act [§§ 80-446 — 80-453] the qualified electors of the new district shall elect a Board of Directors for the new district.
(a) If the new district was created by the consolidation of two (2) former districts the Board shall be composed of eight (8) members, four (4) of whom shall be residents of each of the former districts. At the first meeting of the Board the four (4) members who reside in each of the former districts shall determine by lot the term to be served by each. One (1) of the four (4) members from each former district shall serve for a term of one (1) year, one (1) shall serve for a term of two (2) years, one (1) shall serve for a term of three (3) years, and one (1) shall serve for a term of four (4) years. Each year thereafter at the annual school election, the qualified electors of the new district shall elect one (1) successor member from each of the former districts for a term of four (4) years.
(e) Anything contained in this Section 5 [80-450] to the contrary notwithstanding, the Board of Directors of the former districts are expressly authorized to enter into an agreement, executed by the president and secretary of each district, prescribing the date the new district shall come into existence and/or defining the composition of the Board of Directors of the new district and prescribing the number of directors of the new district who shall reside in each of the former districts. Thereafter, the qualified electors of the new district shall elect successor members from each of the former districts as prescribed by the agreement. An executed copy of the agreement shall be filed with the County Clerk of each county which contains territory or a portion of the territory of each district proposed to be consolidated at least ten (10) days prior to the election provided for by this Act. . . .

After July 1, 1985, the Midland board was constituted in accordance with paragraph 4 of the consolidation agreement which is as follows:

4. Board of Directors. The board of directors of the consolidated district shall be comprised of all members of the boards of both the Floral School District and the Pleasant Plains School District until the school election of 1986, at which time the board shall be composed of seven members, four of those members shall be from the former Pleasant Plains School District, and three shall be from the former Floral School District, each member to be elected by his respective board by a majority vote. Following the formation of the seven-member board, the seven directors shall continue to serve until the expiration of their currently existing pre-consolidation terms as directors of the consolidated district after which their positions . . . shall be open for election as such terms respectively expire. The qualified electors of the consolidated district shall elect successor directors whose terms have expired pursuant to this agreement and the terms of such directors shall be for five years. . . .

The appellants argue (a) that the interim board composed of the ten persons who had been members of the Pleasant Plains and Floral district boards (five each) violated § 80-450(e), (b) that the seven-member board which followed was unlawfully constituted because its members were not elected in the March, 1986, election, as required by § 80-449, and (c) that the seven-member board was unlawfully constituted because its members held five-year rather than the four-year terms required by § 80-450(a).

a. The interim, ten-member board

The chancellor held that the limitation to eight board members found in the third paragraph of § 80-450(e) applied to the creation of the permanent rather than the interim board of the new district. The reason was that otherwise § 80-449, presumably the part stating that the interim board is to be composed of the members of the old boards, without limitation as to numbers, would become meaningless. He perceived his obligation to interpret both sections so that both would have meaning.

The chancellor was right. It would be wrong to construe §§ 80-449 and 80-450(e) in such a way as to make one of them ineffective if another construction is plausible. Woodcock v. First Commercial Bank, 284 Ark. 490, 683 S.W.2d 605 (1985); Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). Not only that, but we believe these statutes, read together, show the general assembly intended to give consolidating school districts as much leeway as possible, when they consolidate by agreement, to reach mutually satisfactory terms.

We have no difficulty harmonizing these statutes. Section 80-450(e) deals specifically with the new board to be elected. It says an agreement may prescribe the “number of directors of the new district who shall reside in each of the former districts” and says they may be elected as prescribed in the agreement. When it then provides that nothing contained in that subsection will allow creation of a board of more than eight members, that limitation applies only to the board to be elected. Section 80-449, on the other hand, deals with the interim board and places no limit, rather it says clearly the interim board will be composed of the members of the old boards. That is precisely what occurred.

b. Lack of election

The chancellor held, we believe correctly, that once the two old school districts agreed on the manner of composing the new district’s board, in accordance with § 80-450(e), the only requirements were that it be composed of eight or fewer members and that the terms of office be staggered. Thus he concluded that the procedure provided by the agreement, and followed by the new board, whereby the interim ten-member board would be pared to seven on the date of the first school election was proper.

The appellants’ argument is that § 80-449, when combined with § 80-450 clearly shows that the board which comes into office after the interim board must be elected by the electorate. Although § 80-449 says the interim board will serve until the first school election date, it does not say that the ensuing board members will be popularly elected. That comes in the first sentence of § 80-450 which is subject to the proviso of § 80-450(e) which says that, notwithstanding anything in § 80-450 to the contrary, the electors shall elect successor members “as prescribed by the agreement.” The agreement provided that the first successors to the interim board would be elected by and from the interim board’s members. That is the way it was done. There was thus no violation of either § 80-449 or § 80-450.

c. Terms of office

The agreement provided for the interim or ten-member board to serve until the school election date. It provided that the seven board members then elected from among the original ten would continue to serve until their original respective terms expired. It further provided that those elected thereafter as successors would have five-year terms. The appellants argue that the trial court erred in holding that “the appellees” could serve five-year terms. Assuming the appellees are all members of the seven-member board which came into being in March, 1986, they would not be the board members upon whom the five-year terms were bestowed by the agreement. According to the agreement, it is the successors of the seven-member board whose terms are to be five years.

The chancellor held that the five-year terms were permissible, again because § 80-450(e) supersedes the rest of § 80-450 when there is an agreement. A careful analysis of § 80-450(e), however, leaves us with the opposite conclusion. Section 80-450(a), after setting forth the staggered terms of board members to be elected, absent agreement to the contrary, says:

Each year thereafter at the annual school election, the qualified electors of the new district shall elect one (1) successor member from each of the former districts for a term of four (4) years.

After the “anything ... to the contrary notwithstanding” clause, § 80-450(e) says an agreement may provide the date the new district comes into existence, the number of new directors to reside in each district, and the means of electing successor members. It does not provide that an agreement may set the terms of the successor directors. Therefore, we hold that § 80-450(a) controls, and the terms of the successors to the members of the board shall be four years, and the chancellor’s judgment is modified to declare that their terms shall be four years.

Affirmed as modified.

Hickman, Hays, and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. Í respectfully take exception to the majority decision regarding its approval of the appellees’ action that permits them to extend their terms in office without being elected by the voters of the newly-created Midland School District. The majority court, I submit, has gravely misinterpreted the relevant law thát sets forth the election procedure which becomes operative after electors vote for the consolidation of their school districts.

The case is controlled by Ark. Stat. Ann. §§ 80-449 and -450(e), particularly as those sections were amended by Act 294 of 1969. These provisions contain the pertinent procedures to follow once consolidation is approved by the voters. The General Assembly specified the purposes and need for Act 294 in its emergency clause, viz, (1) to authorize the selection of a date upon which the proposed consolidation of school districts should take effect and (2) to authorize the new districts to establish the composition of the board of directors. Those provisions of Act 294 relevant to the situation before us are:

Section 1. [§ 80-449]

If a majority of the qualified electors voting on this issue in each district shall vote for the consolidation of the named districts under this Act, such vote shall be so certified to the County Board of Education of each affected county. The new district shall be in existence on the date specified in the Agreement referred to in Section 5(e) of this Act, as amended, provided if there is no such agreement the effective date shall be the first day of the fiscal year immediately following the date of the election. The members of the Board of Directors of the district consolidated shall serve as and constitute the Board of Directors of the new district until the next regular school election.
(Emphasis added.)
Section 2. [§ 80-450(e)]
(e) Anything contained in this Section 5 to the contrary notwithstanding, the Boards of Directors of the former districts are expressly authorized to enter into an agreement, executed by the president and secretary of each district, prescribing the date the new district shall come into existence and/or defining the composition of the Board of Directors of the new district and prescribing the number of directors of the new district who shall reside in each of the former districts. Thereafter, the qualified electors of the new district shall elect successor members from each of the former districts as prescribed by the agreement. An executed copy of the agreement shall be filed with the County Clerk of each county which contains territory or a portion of the territory of each district proposed to be consolidated at least ten (10) days prior to the election provided for by this Act.
Any agreement entered into pursuant to the provisions of this Section 5(e) shall provide for staggered terms for the members of the Board of Directors of the new district.
Nothing contained in this Section 5(e) however shall authorize the creation of a Board of Directors composed of more than eight (8) members. (Emphasis added.)

The former board members of the Pleasant Plains and Floral school districts met, as authorized by the foregoing provisions, in an apparent effort to enter into a valid consolidation agreement. In that agreement, they properly named the new district Midland School District #19 (Midland) of Independence County, and provided it would be in existence on July 1,198 5. They also, quite correctly, prescribed the composition and number of directors to serve on the new school district board. In this respect, they provided for seven members, four from Pleasant Plains and three from Floral. At this point, the former board members took action that not only varied from, but far exceeded the dictates of the law.

As I mentioned earlier, the expressed purpose or intent of Act 294 — contained in the body of the law and in its emergency clause — was to allow the former board members (1) to select when the new district commenced and (2) to establish the composition of the new district. The former board members did that, but additionally they erroneously prescribed in their agreement that all former board members from both districts would continue on the board of the new Midland district “until the school election of 1986”, at which time the Board shall be composed of seven members, four of those members shall be from the former Pleasant Plains School District and three shall be from the former Floral School District, each member to be elected by his respective Board by a majority vote.” Pursuant to this agreement, the former board members met and elected their successor to serve on the next board of Midland. Neither § 80-449 nor § 80-450(e) countenance a self-perpetuating board. Section 450(e) clearly provides that the qualified electors of the new district shall elect successor members. Section 449, accordingly, provides that these board members, serving on the new consolidated board, shall serve until the next regular school election— again, when the qualified electors would elect their successors.

The majority court appears to be misled by that part of § 450(e) that provides “the qualified electors of the new district shall elect successor members from each of the former districts as prescribed by the agreement.” The court surmises this language allows the former members, serving on the newly consolidated board, the broad authority to elect their own successors. As I have pointed out, the law emphatically demands those successors be elected by the voters in the new district. If the law were otherwise, or especially as is suggested by the court, little certainty would exist concerning when or how these former or interim successors would be elected. Under the majority decision, for example, the former board members could enter an agreement that they could continue until the school election of 1999. Of course, I do not suggest this would happen, but the majority holding, I submit, permits such continuation in office without voter approval. Given only the direction that such interim board members can select their successors as however they may “prescribe by agreement”, the manner of selection, or election if you will, is left to the whim or politics of each situation.

Maybe more importantly and to the point, I believe to give former board members such broad authority to choose their successors far exceeds those expressed purposes for which the General Assembly passed Act 294. Act 294 provided for a board agreement to designate when the new district begins and how it will be composed, including the number of members who will serve. I agree with the majority that §§ 80-449 and -450(e), as amended by Act 294, give the former board members some leeway — in time at least — in establishing the new school district. Act 125 of 1961 was the original version of §§ 449 and 450, and that Act required the new district to commence immediately upon the certification of the election at which the voters approved consolidation. Act 294 permitted the former board members, by agreement, to extend when the new district must be in existence, but if no agreement was reached, the new district must be in existence by the first day of the fiscal year immediately following the date of the election. It becomes all too obvious to me that under each of the situations contemplated under Acts 125 or 294, the General Assembly intended the new district to be in existence before the regular annual school election following the consolidation election so the voters in the new school district can choose the interim board’s successors.

Because I would reverse on the court’s failure to require the interim board members’ successors be elected by the voters, I need not discuss the other points treated in the majority opinion. Suffice it to say, that I believe the former board members’ agreement also exceeded the law when it established the terms of office for successor board members.

Hickman and Hays, JJ., join in this dissent.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Thomas DUNN v. STATE of Arkansas
    CR 86-146
    722 S.W.2d 595
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Henry C. Morris, for appellant.

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

In this criminal case, appellant, an indigent, was convicted of burglary, theft of property, and being a felon in possession of firearms. He was sentenced as a habitual offender, receiving a total of fifty years imprisonment. He urges one point for reversal: the trial court erred in failing to order the State to provide him with an independent psychiatrist. To support his argument, appellant cites Ake v. Oklahoma, 470 U.S. 68 (1985). We disagree and, therefore, affirm.

The majority Court in Ake held that, when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue, if the defendant cannot otherwise afford one. We have considered the rule in Ake in two recent cases, White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986) and Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986), and in each, we affirmed the trial court’s finding that the appellant failed to make an ex parte showing that his sanity would be a serious issue at trial.

Here, appellant argues he met his ex parte-threshold showing that sanity would be an issue, entitling him to the assistance of an independent psychiatrist, by his (1) personal letter to the trial judge reflecting he had been treated for mental illness which caused his illegal behavior; (2) notice of intent to raise mental disease or defect as a defense; and (3) motion to invoke the constitutional right enunciated in Ake.

First, we note that appellant was given a psychiatric examination-by the State Hospital; however, he still perceives under Ake that he is entitled to the assistance of a psychiatrist who is unaffiliated with the state or county. We believe he misinterprets Ake. As we pointed out in Wall v. State, supra, the Supreme Court in Ake emphasized the risk of error, absent a psychiatric examination, “when the defendant’s mental condition is seriously in question.” Here, as was the situation in Wall, the trial court ordered, upon appellant’s raising the defense of mental disease or defect, the State Hospital to evaluate appellant’s capacity to assist in his defense and to determine the state of his sanity on the date the alleged offense occurred. That evaluation, under Arkansas law, is required by a defendant merely filing a notice that he intends to rely upon the defense of mental disease or defect or that he will put in issue his fitness to proceed. See Ark. Stat. Ann. § 41-605 (Repl. 1977). We recounted in Wall that, under our prior cases, Wall’s rights were adequately protected by the examination at the State Hospital, an institution which has no part in the prosecution of criminals. Wall, supra, at 289. See also Ark. Stat. Ann. § 43-1301 (Supp. 1985).

The Oklahoma law challenged in Ake simply fell short of safeguards assured a defendant under Arkansas law. The trial court here, acting pursuant to § 41-605, ordered the appellant evaluated by the State Hospital which diagnosed the appellant as suffering from episodic-alcohol abuse and an antisocial personality disorder. The hospital further reported that, at the time of the commission of the alleged offense, appellant possessed the capacity to appreciate the criminality of his conduct.

We hold the appellant’s constitutional rights were duly protected in accordance with the dictates of Ake.

Accordingly, we affirm.

       A concurring opinion expressed the Court’s holding should not be read to reach noncapital cases, and a dissent was entered indicating one Justice’s view that he would limit the rule to capital cases.

       His letter related numerous instances when he was arrested, charged with crimes, examined and declared mentally ill, but the trial courts, he claimed, refused in each case to give him psychiatric help.


text:
    Leo Morris HENDRIX v. STATE of Arkansas
    CR 86-164
    722 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Hankins & Childers, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On May 6, 1983, in Clark County Circuit Court, appellant pled guilty to and was sentenced on two charges: theft of property and burglary. For theft of property, he received a six-year term of imprisonment; for burglary, he received another six-year term to run consecutively to the theft. The court then ordered that execution of the sentence of the burglary term be suspended, and it then placed appellant on probation for six years.

Appellant was paroled in February 1985 after serving approximately twenty-one months of his sentence for theft, and eleven months later, on January 20, 1986, his probation on the burglary conviction was revoked. He was sentenced to serve a six-year term of imprisonment.

Appellant filed a Rule 37 petition in April 1986, contending that it was illegal, under Ark. Stat. Ann. § 41-1206(2) (Repl. 1977), to run his probation on the burglary charge consecutively to the term of imprisonment he received on the theft charge. Appellant also argued that he should be given credit for the eleven months between when he was released on parole and when his probation was revoked. While the trial court rejected appellant’s first point, it did give appellant credit for the eleven months, reducing his six-year burglary sentence to five years and one month.

On appeal, appellant renews his argument that his probation term for burglary was illegal because it was made to run consecutively to the term of imprisonment on the theft conviction. The State responds that the appellant failed to object to his sentence at the sentence hearing or on direct appeal, but we have held that such an issue is the proper subject matter for a Rule 37 petition. Hoffman v. State, 289 Ark. 184, 188, 711 S.W.2d 151, 153 (1986).

We agree with appellant that the court erred in running his probation consecutively to his term of imprisonment. The pertinent statute, Ark. Stat. Ann. § 41-1206(2) (Repl. 1977) provides:

Multiple periods of suspension or probation, whether imposed at the same or different times, shall run concurrently. The period of a suspension or probation shall also run concurrently with any federal or state term of imprisonment or parole to which the defendant is or becomes subject during the period.

The commentary states that § 41-1206(2) prevents the stacking of periods of suspension or probation: “The second sentence provides that a person subject to suspension or probation and imprisonment satisfies both by serving the imprisonment.” It goes on to say that

occasionally a court will suspend or probate a defendant who has other charges pending against him or who has already been sentenced to imprisonment for another offense. In either case, subsection (2) runs the suspension or probation concurrently with the imprisonment.

The language of the statute read with the commentary is clear: appellant’s two sentences, imposed contemporaneously, should have been made to run concurrently. If they had been, appellant, in addition to the eleven-month credit he was given by the trial court on his Rule 37 petition below, would have received credit for the twenty-one months he spent in prison, from May 1983 to February 1985.

In keeping with the requirements of § 41-1206(2), we are compelled to modify appellant’s original six-year term by reducing it to three years, four months, rather than the five years, one month fixed by the trial court. See Rawlings v. State, 284 Ark. 446, 683 S.W.2d 223 (1985).

In conclusion, we note appellant argues the trial court erred in the manner by which it entered appellant’s two sentences. He concedes this issue was not raised below in his original petition. As we said in Blair v. State, 290 Ark. 22, 716 S.W.2d 197 (1986), issues not raised below in his petition for post-conviction relief are considered waived on appeal.

Affirmed as modified.


author: Per Curiam.

text:
    Jeff BROWN v. STATE of Arkansas
    CR 86-29
    722 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Per Curiam.

Jeff Brown has appealed from an order denying relief under a Rule 37 petition. The petition contains an allegation that his plea of guilty to a charge of first degree murder was not knowingly and intelligently made and his testimony at a hearing on the petition supports that assertion. However, the record does not contain the transcript of the hearing wherein appellant’s guilty plea was taken.

Pursuant to Rule 6(e) of the Arkansas Rules of Appellate Procedure we direct the issuance of a writ of certiorari to the Court Reporter of the Clark County Circuit Court to send up the transcript of those proceedings within thirty days.

It is so ordered.

Hickman, J., not participating.


text:
    Robert HADDIX v. STATE of Arkansas
    722 S.W.2d 600
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Riffel, King, & Smith, by: Kirby Riffel, for appellant.
    No response.
   Per Curiam.

Appellant, Robert Haddix, by his attorney, Kirby Riffel, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our per curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Darrell Hickman, Justice.

text:
    Harold HENDERSON v. STATE of Arkansas
    CR 86-140
    722 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987
    [Rehearing denied February 23, 1987.]

      John Bradley, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Harold Henderson was convicted of first degree murder and first degree battery and sentenced to life and 20 years respectively. The state offered proof that Henderson, while attempting to kill or at least seriously injure his former girl friend, Brenda Taylor, shot and killed Mary Davis. Brenda Taylor was shot twice in the legs. Henderson confessed to a shooting at a service station and that he killed Mary Davis and shot Brenda Taylor later at Mary Davis’ home. Henderson’s appeal raises four procedural questions which are all meritless.

First, he argues that five photographs of the victims were introduced only to inflame the jury. Three were of Mary Davis showing the bullet wound under her left arm. The other two photographs were of Brenda Taylor’s legs, showing she was shot once in the right knee and once in the left foot. We have upheld the admission of photographs of victims to show the nature and location of wounds and to assist the jury in understanding the testimony. Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). The trial court has the discretion to admit photographs and will not be reversed absent an abuse of that discretion. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986). We find no abuse of discretion in this case.

Second, Henderson argues that the trial court incorrectly instructed the jury on first degree murder. The trial judge used AMCI1502, which follows the language of Ark. Stat. Ann. § 41-1502 (Repl. 1977). The instruction to the jury read in pertinent part:

To sustain this charge, the State must prove the following things beyond a reasonable doubt; that with the premeditated and deliberated purpose of causing the death of another person, Harold Henderson caused the death of Mary Davis.

Henderson argued at trial that there was no evidence that he attempted to kill anyone other than Mary Davis; therefore, the reference to another person in the instruction should have been deleted and Mary Davis inserted.

There was substantial evidence that Henderson intended to kill Brenda Taylor. Taylor testified that she talked to Henderson approximately one week before this incident, and Henderson told her that he would get her before he left town. She also testified that Henderson, carrying a gun, approached her at a service station, and fired shots at her as she drove away. An hour later he followed her to the Davis home and chased her through the house; Mary Davis entered the room and told Henderson to stop; Henderson then shot her, and Taylor ran out of the house; he followed her to a neighbor’s house; and when he caught up with her, he fired four shots, two striking her in the legs. He quit firing because he ran out of bullets. The testimony offered by the state created a factual basis for the instruction. Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985).

Henderson makes other arguments as to why the instruction was wrong, but we do not consider arguments raised for the first time on appeal. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986).

Henderson argues that since there was no evidence that Brenda Taylor was seriously injured, the first degree battery conviction must fail. To sustain a conviction for first degree battery, there must be a severe injury in connection with a wanton or purposeful culpable mental state. Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980). Ark. Stat. Ann. § 41-115(19) (Repl. 1977) defines serious physical injury as one that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Brenda Taylor was shot twice in the legs, once in the right knee and once in the left foot with a .22 caliber pistol. She was hospitalized for one night and one day for treatment, and she remained home from work for approximately one month. We find substantial evidence to support the conviction.

Henderson’s final argument concerns the admission of three matters into evidence: references to a kidnapping charge, the shooting at the service station, and a statement by Mary Davis just before she died.

Evidently, Henderson had been charged at one time with kidnapping Brenda Taylor, and he said in his confession that the reason he approached Brenda Taylor at the service station and followed her to Mary Davis’ home was to talk to her about the kidnapping charge. The prosecuting attorney referred to the kidnapping charge in his closing argument. Henderson argues that the references to the kidnapping charge and the shooting at the service station are other crimes which are not admissible in this case. The appellant argues that Ark. Rules Evid. 404 (b) precluded this evidence. It provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

This rule permits the admissibility of other criminal activity if it is independently relevant to a material point in the case and not just to prove the defendant is of bad character. White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). We cannot say here that the trial judge abused his discretion in admitting the evidence. These incidents involved Brenda Taylor whom the state sought to prove was the intended murder victim and were evidence of that intent. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985).

Mary Davis said to her husband just before she died “I’m shot.” Henderson argues that since it was not disputed that Mary Davis was shot, the evidence was merely inflammatory and should have been excluded. Henderson cannot prevent the introduction of relevant evidence simply by stipulating to a fact. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985). The trial judge did not abuse his discretion in admitting the statement.

Since this is a life imprisonment case, we have considered all other possible errors and find none. See Ark. Stat. Ann. § 43-2725 (Repl. 1977); Rule 11(f) of the Rules of the Arkansas Supreme Court.

Affirmed.


author: John I. Purtle, Justice.

text:
    Harlis Angelo BROWN v. STATE of Arkansas
    CR 86-94
    722 S.W.2d 845
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987
    [Rehearing denied March 16, 1987.]

      Gregory E. Bryant, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied appellant’s petition for Rule 37 relief without a hearing. The court made written findings of fact and conclusions of law which stated that the court had examined the docket entries and found no indication that petitioner’s guilty plea was not voluntarily and intelligently made. The court also found that the petitioner had alleged no facts which would support his motion that he was entitled to a transcript at public expense. Proceeding under Arkansas Rules of Criminal Procedure Rule 37.3(a), the court held that the petitioner was not entitled to any relief.

The appellant contends the trial court erred in refusing to hold an evidentiary hearing on his Rule 37 petition, which alleged that he was denied effective assistance of counsel and that his guilty plea was coerced by his appointed counsel threatening to “walk out on him” if the plea was not entered. For the reasons stated below we hold that the appellant is not entitled to a hearing on his Rule 37 petition, even though the trial court’s ruling denying the petition was erroneous at the time it was issued.

The original sentences were the result of acts of burglary and theft of property growing out of the same incident. A guilty plea to both charges was entered on October 29, 1984, and the appellant received sentences of 15 years and 10 years, respectively, the terms to run concurrently. The petition for post-conviction relief under Rule 37 was filed on November 7, 1985. The petition contained several conclusory allegations which were obviously groundless. The specific allegation of lack of effective assistance of counsel stated: “Petitioner’s attorney was ineffective to assist him because he threaten [ed] to walk out on petitioner if he didn’t plead guilty.”

We first consider the findings of fact and conclusions of law entered by the trial court at the time the petition was denied without an evidentiary hearing. The trial court apparently considered only the docket sheet in making its decision to deny the petition. The only two docket entries recited in the order were:

3-12-84 Defendant withdrew plea of not guilty — entered plea of guilty. Presentence report ordered.
10-8-85 Defendant sentenced to 15 years, Arkansas Department of Correction, Count 1 and 10 years, Arkansas Department of Correction, Count 2 — concurrent—credit for jail time. Act 378 denied.

The order of the court denying the petition, after setting out the docket entries, went on to state: “The Court has examined the docket entries in this case, and finds no indication that the guilty plea entered by the defendant was not voluntarily and intelligently made.” The order was entered February 3, 1986.

Obviously the recitation of two docket entries showing only that a guilty plea was entered and the length of the sentences imposed is insufficient to satisfy the requirements of A.R.Cr.P. Rule 37.3. Where a petition for Rule 37 relief is filed the court must either: (1) grant a hearing on the petition, or (2) make a determination from the files and records if they conclusively show that the petitioner is entitled to no relief. If the petition is summarily denied without an evidentiary hearing the court must make written findings specifying the parts of the files and records relied upon in denying the petition.

On June 19,1986, present counsel was appointed and he filed the appellate brief in this Court on August 18,1986. The state of the record at that time would have demanded reversal because the trial court’s order was not in compliance with the requirements of Rule 37.3. However, on October 13, 1986, we granted the Attorney General’s motion to supplement the record with the transcript of the pleas and sentencing. The appellant’s brief had been filed in this Court for almost two months when we granted the motion to supplement the record.

The record as supplemented was filed in this Court on October 23,1986. From the entire record before this Court we are able to determine that it conclusively shows that the petition should have been denied. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311(1979). However, absent some compelling reason, we will not hereafter grant a motion to supplement the record unless the proposed supplement was considered by the trial court in denying the Rule 37 petition.

In fairness to the appellant we will consider the allegation of ineffective assistance of counsel. The two-part test for challenging the effectiveness of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984). In Hill v. Lockhart, 474 U.S. _, 88 L.Ed. 2d 203 (1985), the United States Supreme Court held that the Strickland test applies to challenges to guilty pleas. The first part of the test requires the petitioner to show that counsel’s representation was not within the range of competence demanded of attorneys in criminal cases. The second part of the test requires the petitioner to show such prejudice resulting from counsel’s errors that there is a reasonable probability that the petitioner would not have pleaded guilty and would have insisted on going to trial.

We recognize that an inmate is at a disadvantage in properly framing a petition alleging ineffective assistance of counsel and in an even more difficult position in proving the allegations. Thus it is incumbent on the trial court to look at the entire record and files before making a determination to deny a petition without a hearing. We have closely examined the record of the proceedings at the original sentencing and find that it unequivocally reveals that the appellant is not entitled to relief in this case.

A new trial is not automatically mandated by a prima facie showing in the petition that counsel was ineffective. In order to warrant a new trial the allegations and proof must also establish that were it not for counsel’s ineffectiveness, the petitioner would not have pleaded guilty. Strickland v. Washing ton, supra; Hill v. Lockhart, supra; Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986); and Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). If the ineffective performance did not affect the outcome of the plea process, or the sentence imposed, the petitioner has not been prejudiced. Hill v. Lockhart, supra.

The petitioner failed to allege any factual basis demonstrating a reasonable probability that the alleged unprofessional conduct caused the result of the proceedings to be different from what it would have been otherwise. Neither did it allege that he was in fact not guilty of the crimes for which he pled guilty. Clearly the second prong of the Strickland test was not met. Therefore, on the basis of the record presently before us, the petition should have been denied.

Affirmed.

Hickman, J., concurs.


text:
    James DEMPSEY, et al. v. Pat H. McGOWAN, et al.
    86-127
    722 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987
    [Rehearing denied March 2, 1987.]

      Phillip J. Taylor, for appellant.

      Gean, Gean & Gean, by; Lawrence W. Fitting, for appellee.
   John I. Purtle, Justice.

This case involves a priority dispute of liens on real property. The trial court held that the construction money mortgage in question was superior to the materialmen’s liens which were perfected after the mortgage was filed.

For reversal the appellant argues that the court erred in granting priority to the advances made after the construction commenced. Also, the appellant argues that the court erred in awarding attorneys’ fees to one of the materialmen, National Lumber Company, and in giving this award equal status with the mechanics’ liens. We agree with the trial court on the first argument, but we hold it was error to place the materialmen’s lien and the attorneys’ fees for the materialmen on the same level of priority. We, therefore, modify the decision of the lower court and affirm.

On April 27, 1984, the First American Federal Savings Bank loaned Pat H. McGowan and his wife, Charlotte C. McGowan, the sum of $105,200.00 for the purchase of a lot and the construction of a house. A mortgage and promissory note were executed in conjunction with the loan. On the same date, $30,150.00 of the loan proceeds were applied as payment for the lot. The balance of the loan proceeds was placed in a trust fund which was to be used for the purpose of the construction. The mortgage contained a typed-in provision which stated:

That the purpose of this loan is to pay $30,150.00 on the purchase price of said property and the lender is unequivocally obligated and committed to advance the balance to the borrower for the purpose of erecting improvements on the mortgaged property, and lender’s lien shall extend to, and include, all improvements erected upon said property and be prior to any lien for labor or material furnished to such improvements.
Subject also to the terms and conditions of a construction loan agreement entered into this date which is made a part hereof by reference.

The mortgage was recorded on April 27,1984, and construction commenced on May 2, 1984.

It is stipulated by the parties that the mortgage lien and the materialmen’s liens are valid. The questions presented are the priority of liens between the construction mortgage and the materialmen’s liens, and to what extent, if any, attorneys’ fees are included in determining the priority of liens.

The mortgage and the accompanying note included a provision for the collection of reasonable attorneys’ fees. The judgment by the trial court in favor of the mortgagee included a sum for the attorneys’ fees. This fee award was given the same priority as the underlying debt. Also, the judgment included an award for attorneys’ fee for one of the materialmen’s liens. This supplier and the mortgagors had a contract providing for the indemnification of attorneys’ fees in the event that the materialman was forced to foreclose its lien. The appellant does not challenge the attorneys’ fee award which was entered as part of the mortgagee’s construction mortgage foreclosure judgment. The appellant however, does argue that the attorneys’ fee award for the co-lienor should not have been placed on parity with the materialmen’s liens.

Ark. Stat. Ann. § 51-605 (Repl. 1977) states:

The lien for the things aforesaid, or work, shall attach to the buildings, erections or other improvements, for which they were furnished or work was done, in preference to any prior lien or encumbrance or mortgage existing upon said land before said buildings, erections, improvements or machinery were erected or put thereon, and any person enforcing such lien may have such building, erection or improvement sold under execution, and the purchaser may remove the same within a reasonable time thereafter; Provided, however, That in all cases where said prior lien or encumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or buildings, then said lien shall be prior to the lien given by this act.

The first argument of the appellant is that the mortgagee was not unequivocally obligated and committed to advance the balance of the loan funds to the borrower. All of the advances from the trust fund, except for the cost of the lot, were advanced to the mortgagor after construction had commenced. Neither the mortgagee, nor the trustee, required proof of payment to the materialmen before advancing additional money. There is no evidence that the subsequently released funds were released with actual knowledge on the part of the mortgagee that the material-men had furnished supplies and labor for which they had not been paid. Nor is there any provision in the mortgage which would inure to the benefit of the materialmen.

Even though a mortgage has a provision stating that it will cover future construction advances on the loan, such future advances will not always have priority over subsequent material-men’s liens. If future advances are optional with the mortgagee, such subsequent payments do not have priority if they are made after notice that subsequent encumbrances, such as material-men’s liens, have attached. Superior Lumber Company v. National Bank of Commerce, 176 Ark. 300, 2 S.W.2d 1093 (1928).

In order to establish a construction money mortgagee’s priority over materialmen’s liens, the following conditions must be satisfied: (1) the mortgage must be executed and recorded before commencement of the building; (2) the mortgagee must be unequivocally bound to advance money for construction; and (3) the recorded mortgage must show that the mortgagee is unequivocally bound. Planters Lumber Company v. Jack Collier East Company, 234 Ark. 1091, 356 S.W.2d 631 (1962). The appellant argues the mortgagee was not unconditionally bound because there were a number of conditions and options contained in the mortgage and construction trust agreement. The appellant argues that these provisions rendered the future advances optional with the mortgagee. One of the stated conditions relied upon by the appellant is that the lender could make future advances “upon authorization of the borrower and his furnishing current lien releases, and approval of the lender.” Other conditions in the mortgage included provisions for insurance, compliance with construction plans and specifications, payment of monthly installments on the note, and prohibition against diversion of the funds for other purposes. We think these provisions in the mortgage agreement are reasonably objective standards necessary to insure the performance of the provisions and purpose of the contract.

The requirement that a lender be unequivocally bound to advance the construction money in order to have priority over other lien holders means that the construction money lender must have no discretion in advancing construction funds if the borrower satisfies the standard requirements included in their contract. A literal requirement that a lender can have absolutely no discretion or any conditions relating to future advances in a mortgage would defeat the purpose of the loan and probably bring an end to construction money loans.

From the language in the present mortgage, it is apparent that the mortgagee was unequivocally obligated to advance the balance of the funds for construction purposes even though some restraints and conditions were included in the agreement. Some of the funds released by the mortgagee were used by the mortgagor for purposes other than construction; however, when determining priority of liens we consider the purpose for which the funds were supplied rather than the use which was made of the money. Sebastian Building and Loan Association v. Minten, 181 Ark. 700, 27 S.W.2d 1011 (1930).

We next consider the appellant’s argument relating to attorneys’ fees. The attorneys’ fee provision in the filed mortgage and accompanying promissory note are not contested. These attorneys’ fees are a part of the security bargained for in the construction money mortgage. House, Trustee v. Scott, 244 Ark. 1075, 429 S.W.2d 108 (1968). However, the attorneys’fee award to the lumber company is in a different category. The contract between the mortgagor and National Lumber Company was not filed of record; therefore, the materialmen had no notice of this agreement. There is no statutory provision making the attorneys’ fees for a supplier of materials or labor a part of their lien. Although not on a par with the materialmen’s liens we approve the judgment in favor of the materialmen’s attorney on the basis of the contract between the supplier and the mortgagor. Therefore, the attorneys’ fee in favor of the supplier should not have been included as a part of the materialmen’s lien judgment. The judgment for attorneys’ fees in the amount of $2,941.36 to National Lumber Company is not of the same priority as the materialmen’s liens.

Under the circumstances of this case we hold that the mortgagee was unequivocally obligated and committed to advance the balance of the trust fund to the borrower for the purpose of erecting improvements on the mortgaged property. The liens and judgments of the materialmen share secondary priority except for the amount of the attorneys’ fee granted to National Lumber Company. This award is determined to be inferior to the materialmen’s liens. The judgment is modified to the extent above stated and affirmed.

Affirmed as modified.


author: Robert H. Dudley, Justice.

text:
    IN THE MATTER OF Loren EVATT, An Incapacitated Person
    86-262
    722 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Griffin J. Stockley, Central Arkansas Legal Services, for appellant.

      Steve Clark, Att’y Gen., by: David S. Mitchell, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This appeal tests the constitutionality of the temporary guardianship statute, Ark. Stat. Ann. § 57-840 (Supp. 1985). We hold that the statute violates the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.

We only need to set out a few of the facts in order to discuss the due process issue. The probate court, acting pursuant to a provision in the statute, signed a ninety-day ex-parte order of temporary guardianship of the person. The statute required no notice before the ex-parte hearing, and none was given. After the hearing the Sheriff picked up the ward and detained him in the local jail, as ordered. The statute does not require an immediate hearing after the ward’s detention, and no such hearing was held. After two days in jail an involuntary civil proceeding was held and the ward was committed to the Arkansas State Hospital. The procedure involving the civil commitment proceeding is not questioned.

On appeal the ward contends that the temporary guardianship statute denied him procedural due process because it authorized the granting of the guardianship without notice, and, after guardianship was granted and after his detention, it did not authorize a review hearing, or safeguard hearing, with the right to have counsel and the right to cross-examine witnesses. The latter part of the argument is meritorious.

In Matthews v. Eldridge, 424 U.S. 319, 335 (1976),the Supreme Court of the United States identified the components of procedural due process and mandated a balancing of the following considerations:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The private interest affected by official action in a temporary guardianship of the person is the right to control the ward’s person for up to ninety days. In a temporary guardianship of the estate it is the right to control the ward’s property for up to ninety days. In essence, the interests affected are the freedom and property of the ward. To place a guardian in control of these interests is to deprive a ward of basic rights. Manifestly, the interests affected are sufficient to require procedural due process.

The risk of an erroneous deprivation of the ward’s freedom and property at the ex parte hearing is without meaningful statutory procedural safeguards.

The statute does not contain a meaningful notice provision. It simply provides: “If made without notice, the temporary guardian shall forthwith give to the incapacitated person notice of the appointment.”

Such a provision allows the notice to be given by the guardian, who may have interests adverse to the ward. It does not define “forthwith” in terms of hours or days. Most fundamentally, it only requires notice that one has already been declared incapacitated. Obviously, most wards will have been told this by the time the Sheriff incarcerates them. In effect, the notice is meaningless in terms of procedural due process. More importantly, the statute does not provide the ward with the right to be present at a subsequent hearing where he can have counsel and cross-examine those who caused him to lose his freedom or control over his property, or both.

The foregoing defects in procedural process must be weighed against the government’s interests, including the function involved and the fiscal and administrative burdens which safeguard procedures would require.

In temporary guardianship proceedings the State exercises its benevolent parens patriae power on behalf of incapacitated persons much as the police power could be used to pick up and temporarily shelter a lost infant. Clearly, the State has an important parens patriae interest in seeing that its incapacitated persons do not harm themselves or others, or do not waste their assets.

Situations may well occur when there is truly an imminent danger to the life or health of an incapacitated person or imminent danger of loss, damage or waste of that person’s property. In those emergency situations, advance notice could defeat the purpose of the statute because the incapacitated person, when given notice that a hearing was about to be held, might run away, or harm himself or others, or waste his property before the hearing could be held. Accordingly, under the balancing test, we hold that advance notice is not necessary to comply with procedural due process.

However, under the terms of the statute, as presently written, a person could be erroneously detained for as long as ninety days, and there are no procedural safeguards to prevent such a tragedy. Other comparable statutes have procedural safeguards which have proven administratively feasible. For example, the civil commitment statute, Ark. Stat. Ann. § 59-1406(a) (Supp. 1985), authorizes immediate confinement to avoid suicide or homicide, but then provides for a hearing within seventy-two hours at which time the detained person is given the full panoply of procedural due process, including the right to an attorney and cross-examination. Similarly, in cases of emergency protective custody, Ark. Stat. Ann. § 59-1308(1) (Supp. 1985) provides that the State, without notice, may take protective custody of an endangered adult, but a hearing with procedural process must be held within forty-eight hours. The lack of such a comparably feasible procedural safeguard in the statute at issue constitutes a denial of due process.

Even if the statute provided for a safeguard hearing to meet the due process requirements, the statute would fail because of the lack of meaningful notice of such a hearing.

The notice requirement in comparable legislation, such as the regular guardianship statute, Ark. Stat. Ann. § 57-835(e)(l) (Supp. 1985), provides that the incapacitated person must be served with notice of the hearing which informs the respondent that he has a right to be represented by counsel, to present evidence, to cross-examine adverse witnesses, to remain silent, to be present, and to require attendance of the professionals who prepared the required evaluation. In addition, the service must be had in the normal manner, and not as provided in the statute at bar in which service is made by the guardian, whose interests could be adverse to the ward. Again, such a statute is administratively feasible.

Accordingly, the temporary guardianship statute, as written, must be struck down as a denial of procedural due process.

Reversed and dismissed.


author: David Newbern, Justice.

text:
    Perry Leon BURRIS v. STATE of Arkansas
    CR 86-196
    722 S.W.2d 858
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Edward T. Barry, for appellant.

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

The appellant, Perry Leon Burris, was convicted of theft of property and sentenced to thirty years imprisonment as an habitual criminal. He was charged with both robbery and theft of property valued in excess of $2,500, but a mistrial was granted with respect to the robbery charge because the jury deadlocked. The appellant seeks reversal of the theft conviction on the basis of five alleged errors. He contends the victim of the crime, who was the first witness to testify, should not have been allowed to remain in the courtroom after her testimony, and that her identification of the appellant in the courtroom was unfair because the appellant was the only non-lawyer black person seated at the table with defense counsel. She had previously identified her assailant as a black person. We reject these points because of lack of objection or insufficient objection at the trial.

The appellant contends the jury should not have been instructed in accordance with A.M.C.I. 6002 that they were to consider guilt or innocence only and that the issue of punishment would be considered by them separately in the event of a verdict of guilty. We find no evidence that the appellant was prejudiced by the instruction. We also find no prejudice in the composition of photographs, to which the appellant objected, which showed rings, allegedly stolen by him, on the hands of the alleged victim of the crime. In his final arguments, the appellant contends the theft verdict was inconsistent with the jury’s inability to reach a verdict on the robbery charge and that the evidence was insufficient to convict him of theft. We cannot find the asserted inconsistency, and we consider the evidence to have been sufficient to sustain the jury’s verdict convicting the appellant of theft.

We affirm the conviction, as we find no prejudicial error.

Mrs. Pauline Sowards testified that on September 21,1985, she was knocked down in her yard by a black man who then ran off with her purse which contained a number of rings and a pair of earrings. She identified the appellant as the person who did it. She further testified that she had had no opportunity previous to the trial to identify the person who committed the crime. Her testimony was contradicted by a police officer who testified that Mrs. Sowards had been shown a series of seven photographs, one of which was of the appellant, but she was unable to identify him as her assailant. The same officer testified there had been no attempt to have Mrs. Sowards view a line-up.

Upon being recalled as a witness at the end of the trial, Mrs. Sowards said she remembered viewing the photographs. She said she picked the appellant’s photograph out and identified him in a line-up too. Then she said maybe she had not done so. She concluded her testimony by conceding she could not remember.

It is not disputed that Mrs. Sowards gave the police drawings she made of her jewelry. The drawings were distributed to pawn shops and jewelry stores. One of her rings turned up in a pawn shop, the proprietor of which had purchased it from Ronald Mothershed. Mothershed told the police he had won the ring in a dice game from the appellant who told him he had gotten it from “some lady.” Mothershed agreed to help recover the remainder of the jewelry. He and an undercover police officer, Ivan Whitfield, sought out the appellant, and on the pretense that Whitfield wanted to buy some rings, the appellant took them to various places and persons from whom more of Mrs. Sowards’ jewelry was obtained. Whitfield testified that the appellant offered to sell him one of the rings for $70 or two for $100.

1. Exclusion of the victim-witness

The rule of A.R.E. 615 was invoked by the appellant. With exceptions not applicable here that rule provides that at the request of either party, or on the motion of the court, witnesses will be excluded so that they cannot hear each other’s testimony. When Mrs. Sowards finished her testimony the first time she was on the stand, the deputy prosecutor suggested she be allowed to remain in the courtroom. The appellant’s attorney objected on the basis that the rule of A.R.E. 615 had been ordered. The court noted a new act of the general assembly had changed the law so that victims of alleged crimes could remain despite the provisions of A.R.E. 615. The appellant’s attorney said he wanted to look up the new act. A recess was taken for that purpose and the matter was not mentioned again in the record before us.

The argument the appellant now makes is that A.R.E. 616, which does permit the victim to be present in any hearing in any criminal prosecution, is unconstitutional. That argument, which we recently discussed in Stephens v. State, 290 Ark. 440, 720 S.W.2d 301 (1986), was not presented to the trial court, and for that reason we will not consider it. Pruett v. State, 287 Ark. 124, 697 S.W.2d 495 (1985); Cecil v. State, 283 Ark. 348, 676 S.W.2d 730 (1984).

2. The bifurcated trial instruction

The appellant contends that by instructing the jury that it was not to consider sentencing at first but that that question would be submitted to it later in the event of a verdict of guilty, the jurors were informed that the appellant was an habitual offender.

The appellant’s contention is nothing more than a surmise on his part. He presented no evidence that any juror was thus prejudiced or that jurors generally take the view that the reason for a bifurcated consideration is to keep from them evidence of an accused’s prior convictions during the guilt or innocence phase of their deliberation.

3. The photographs

The appellant’s argument is that because the recovered jewelry was photographed on the hands of Mrs. Sowards, the photographs were highly prejudicial to him. The essence of the argument is that the photographs were thus deliberately staged “to force the jury to take the victim along with them into the jury deliberation room.”

The appellant cites Harris v. Dameron, 267 Ark. 1141, 594 S.W.2d 256 (Ark. App. 1980), which held the trial court was correct in excluding gruesome photographs which had no probative value. He also cites Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), in which we held that the trial court improperly admitted photographs, for the purpose of impeaching a defendant’s testimony, because their prejudicial effect outweighed their probative value. A.R.E. 403.

The problem here again is that the appellant has not explained to us how the sight of the rings on the hands of Mrs. Sowards prejudiced the jury. We have no doubt the pictures had probative value if for no other reason than that they tended to demonstrate that the rings had a value in excess of $2,500 as Mrs. Sowards testified. We are in no position to say that whatever prejudicial effect the photographs may have had outweighed their probative value.

4. The in-court identification

The appellant argues that the in-court identification of the appellant by Mrs. Sowards was analogous to the kind of suggestive pre-trial identification procedure condemned in Foster v. California, 394 U.S. 440 (1969), and discussed by us in Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982).

The appellant made no objection whatever when Mrs. Sowards identified him at the trial as her attacker. The trial judge was given no opportunity to consider the reliability of the identification except to the extent he might have considered it when the appellant moved for dismissal at the close of the evidence. Nothing was said about the suggestiveness of the situation in which Mrs. Sowards identified the appellant. The only argument presented to the court with the motion had to do with the insufficiency of the state’s evidence, given the extent to which Mrs. Sowards’ testimony had been uncertain and impeached.

5. Insufficiency of the evidence

The appellant argues that because the jury was unable to find him guilty of the robbery charge the jurors must have found that someone other than the appellant committed the crime, and thus the theft conviction must be reversed as inconsistent. We have no idea why the jury was unable to come to a conclusion with respect to the robbery charge. However, there is nothing in the record before us to support the appellant’s premise that the jury concluded that robbery and theft occurred simultaneously but that it was done by someone other than the appellant. If that had been their collective conclusion, surely the jury would have acquitted the appellant of the robbery. Some jurors may have concluded the force used by the appellant in committing the theft was simply not sufficient to have been that required for a conviction of robbery. The point is that we do not know.

To determine if there is sufficient evidence to support the theft conviction, we view the evidence in the light most favorable to the appellee and affirm if there is any evidence to support the verdict. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985); Yacono v. State, 285 Ark. 130, 685 S.W.2d 500 (1985). Theft of property is defined by Ark. Stat. Ann. § 41-2203 (Repl. 1977 and Supp. 1985) which, in pertinent part, is as follows:

Theft of property. — (1) A person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over ... the property of another person, with the purpose of depriving the owner thereof. . . .

Despite her uncertainty as to any pre-trial identification attempts and the contradictions in and of her testimony, Mrs. Sowards did not waiver from her identification of the appellant at the trial. A jury may accept or reject any part of a witness’s testimony, Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984), and we are bound by the jury’s conclusions as to a witness’s credibility. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). Mrs. Sowards’ testimony plus the obvious connection of the appellant with Mrs. Sowards’ stolen jewelry constituted sufficient evidence to sustain the conviction of theft.

Affirmed.


text:
    Monroe SMITH, Jr. v. STATE of Arkansas
    CR 86-160
    722 S.W.2d 853
    Supreme Court of Arkansas
    Opinion delivered February 2, 1987

      Chandler & Thomason, by: J.G. Molleston, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was convicted of delivering marijuana, and he was sentenced as an habitual offender to imprisonment for twenty-five years. He asserts two points for reversal. First, he contends evidence which could not have been admitted against him at the time the crime was committed was made admissible by legislation which became effective before he was tried. He argues the legislative act making the evidence admissible is ex post facto legislation as it was applied in his case and is thus prohibited. We conclude the legislation did not violate U. S. Const., art. 1, § 10, which provides that no state shall pass any ex post facto law. We also conclude -that the provision in Ark. Const, art. 2, § 17, that no ex post facto law shall be passed, was not violated.

The appellant’s second point is that the court erred in restricting his right to impeach through cross-examination one of the state’s witnesses. We find the appellant has not shown the court abused its discretion in limiting the cross-examination.

The facts bearing on the first point are not disputed. Sylvester Easter had been apprehended by police for stealing a video cassette recorder. Easter testified that as part of a “deal” with Detective Lancaster of the Magnolia Police Department he agreed to “make buys” of marijuana. Lancaster concealed a transmitter on Easter and then, from a distance, he observed Easter approach the appellant and two other persons at the appellant’s residence while listening to their voices on a receiver in a car. A tape recording of the conversation was produced at the trial, but it was virtually unintelligible. Lancaster testified, however, about what he heard Easter and the appellant saying to each other in the course of the drug transaction in which Easter purchased marijuana from the appellant.

The drug transaction, which both Easter and Lancaster described on the witness stand, occurred on January 18,1986. On that date there were in effect Acts 666 and 705 of 1985, codified as Ark. Stat. Ann. §§ 41-4501 through 41-4509 (Supp. 1985). Section 41-4502 provided that evidence derived from an intercepted oral communication was not admissible as evidence in a court unless the interception had been authorized by a circuit court upon application by the prosecutor, § 41-4503, and the application granted pursuant to the strict guidelines of § 41-4505. An “oral communication” was defined in § 41-4501(2) as one “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” It is clear that Lancaster did not comply with the statutes prior to intercepting the appellant’s conversation with Easter, and that § 41-4507 made his actions and failure to comply with the statutory requirements a felony.

On April 30, 1986, Act 1 of 1986 became effective. It repealed Acts 666 and 705 of 1985, and it purported to repeal them “ab initio.” The appellant was tried on May 9, 1986. Lancaster’s testimony was admitted over the appellant’s objection that the repeal of the law, which would have precluded its admissibility at the time of the crime, was ex post facto legislation.

1. Ex post facto legislation

The appellant urges that the change in the law affecting his case was substantive rather than procedural because the repealed law had made it a felony for anyone to receive “oral communications” in violation of the act. Thus he contends that because the act purported retroactively to relieve Lancaster from being accused of a felony the appellant’s substantive rights were affected. His explanation is that he has lost the protection he would have had from the law making Lancaster’s conduct feloneous. He cites no authority for this oblique rationale, and we know of none.

In support of his argument that the evidence of his conversation overheard by Lancaster is inadmissible, the appellant cites Kring v. Missouri, 107 U.S. 221 (1882). Missouri law at the time of the offense provided that a conviction of second degree murder constituted acquittal of first degree murder. The Missouri Constitution was thereafter altered to provide that if a conviction of second degree murder were lawfully set aside it would not bar conviction of a higher crime. The Supreme Court said, in finding the revision constituted ex post facto law, that a law may not lawfully be changed between the time of the offense and the time of the trial if it alters the situation of a party to his disadvantage. 107 U.S. at 235. The Supreme Court noted the state’s argument that the change was procedural only, but stated it affected the defendant’s substantive rights by, in essence, increasing the punishment after the fact and by removing a defense he would have had in his second trial.

The appellant also cites two cases from United States Circuit Courts of Appeals following Kring v. Missouri, supra. In United States v. Henson, 486 F.2d 1292 (D. C. Cir. 1973), the court considered a change in the law which required prior convictions be admitted to impeach a criminal defendant who chose to testify. At the time of the offense, the law permitted the trial judge to decide within his discretion whether the prior convictions would be admitted. It was held that the change was ex post facto law because the accused had, at the time of the offense, a significant and substantial right to have the court exercise its discretion. To the extent the new scheme deprived the accused of that right after the offense and before his trial, its application would be ex post facto law prohibited by Article I, Section 9, Clause 3, of the United States Constitution which says Congress shall pass no such law.

Government of the Virgin Islands v. Civil, 591 F.2d 255 (3rd Cir. 1979) was a case in which it was found that the statute requiring corroboration of accomplice testimony was repealed after the appellants’ trial but before consideration on appeal. The appellate court held that to allow the repeal to control the outcome on appeal would make ex post facto legislation of the repeal because it would have the effect of making the amount of proof necessary to sustain the conviction less than what was required at the time of the offense.

We find nothing in Kring v. Missouri, supra, or Government of the Virgin Islands v. Civil, supra, which would require reversal here. We do not have a defendant who has lost a defense or been subjected to a trial in which “less evidence” in any direct sense is required for conviction than would have been required at the time of the offense. (In part 1 .b. of this opinion we consider the relative nature of the term “less evidence.”) Nor are we persuaded by U.S. v. Henson, supra, for in that case, the law deemed ex post facto required the introduction against a testifying accused of certain facts which might not have been introduced had the law extant at the time of the offense been applied. That is not the situation before us now. Rather, we are faced with the question whether admission of certain evidence of clearly admissible facts violated the ex post facto prohibition.

a. The United States Constitution

In deciding whether Article 1, § 10, of the United States Constitution invalidates the law in question here, we are; of course, governed by the decisions of the United States Supreme Court. In Calder v. Bull, 3 U.S. 386 (1798), the Supreme Court stated that ex post facto law included “. . . every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.” 3 U.S. at 390. From that broad statement the Supreme Court has wandered several directions. One of the paths taken has resulted in the distinction between substantive and procedural changes. The Supreme Court has said a state has the right to change the procedural rules by which an accused is tried from those which would have governed had he been tried at the time the offense was committed. Thompson v. Utah, 170 U.S. 343 (1898) (disapproved on other grounds); Gibson v. Mississippi, 162 U.S. 565 (1896).

In Hopt v. Utah, 110 U.S. 574 (1884), which is relied upon by the appellee before us, the Supreme Court held that a change in state law permitting the testimony of convicted felons who could not previously have testified against the accused was not ex post facto law. We followed obiter dictum from Hopt v. Utah, supra, in Huckaby v. State, 262 Ark. 413, 557 S.W.2d 875 (1977), in holding that a change in the rules of evidence permitting previously unpermitted testimony of a spouse against an accused was not ex post facto law. We quoted from Hopt v. Utah, supra, and held “. . . statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage.” 262 Ark. at 417, 557 S.W.2d at 878.

Huckaby v. State, supra, is not the same as the case before us. Here, we are not dealing with a mere expansion of a class of witnesses who may testify. The change in the law with which we are confronted had nothing to do with whether Lancaster could testify. Rather, it dealt with what he could say. Thus we turn back to the Supreme Court cases to determine how they have handled the particular question presented by statutes which purport to make admissible, evidence which would not have been admissible at the time the offense was committed. The prime example appears in Thompson v. Missouri, 171 U.S. 380 (1898). There the Missouri law was changed, by statute, to make admissible into evidence handwriting exemplars which the Missouri Supreme Court had previously held inadmissible in an appeal in which Thompson’s first conviction was reversed. On retrial, the exemplars were admitted over Thompson’s objection that the statute, which became law between his first and second trials, was ex post facto legislation. The Supreme Court held it was not, and said, speaking of Hopt v. Utah, supra, Kring v. Missouri, supra, and Thompson v. Utah, supra:

If persons excluded, upon grounds of public policy, at the time of the commission of an offence, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed. [171 U.S. at 387]

The Supreme Court has thus departed from the broad statement of Calder v. Bull, supra, that a law taking effect after the time of the offense and before the trial permitting testimony which would not previously have been admissible is ex post facto legislation.

We hold the United States Constitution does not invalidate the repealer in question here. Thompson v. Missouri, supra, interpreting Article 1, § 10 is squarely in point, and it has not been overruled.

b. The Arkansas Constitution

The precise question before us now has not been the subject of any previous decision interpreting Ark. Const. art. 2, § 17. In Potter v. State, 42 Ark. 29 (1883), which was perhaps the first case interpreting the prohibition of ex post facto laws in our current constitution, we recognized the standard distinction between laws affectiftg procedure and those affecting substance. At the time of the crime Craighead County was not divided into judicial districts. It was so divided before the trial, and the accused was tried in the Jonesboro district by a jury selected from that district rather than from the county at large. We held that the law dividing the county into judicial districts was not ex post facto as applied in the case because “. . . [i]t does not relate to the punishment of'the crime but to the procedure.” We applied the same distinction in Jennings v. State, 276 Ark. 217, 633 S.W.2d 373 (1982), cert. den. 459 U.S. 862 (1982).

We have held that when a change in the law between the time of the offense and the time of the trial affects the definition of the crime it is prohibited by our constitutional prohibition against ex post facto laws. See Ex parte Jackson, 45 Ark. 158 (1885). Cf. Herman v. State, 256 Ark. 840, 512 S.W.2d 1923 (1974), reh. den. 250 Ark. 845-A (1974), cert. den. 420 U.S. 953 (1975). We also have found punishment changes prohibited, Upton v. Graves, 255 Ark. 516, 509 S.W.2d 823 (1973), and have extended that holding to changes in parole laws. Bosnick v. Lockhart, 283 Ark. 206, 672 S.W.2d 52 (1984), reh. den. 283 Ark. 209, 677 S.W.2d 292 (1984). Perhaps all of these decisions could be said to relate to prohibiting substantive law changes ex post facto. Perhaps our decision in Huckaby v. State, supra, in which we did not say whether we were interpreting the Arkansas Constitution or the United States Constitution, or both, could be said to have allowed an ex post facto procedural change. The distinction between substance and procedure is, however, capable of blurring. Rather than label the change in question, we prefer to look to the reason behind the ex post facto provision in our constitution and apply it to the facts before us.

Certainly a person has the right to be guided in his actions by the law at the time he acts. Does he have the same right to be tried on the basis only of evidence admissible against him at that time? Although we are not required to follow it in our interpretation of the Arkansas Constitution, we are persuaded by the logic of Thompson v. Missouri, supra. The change in the law in this case did not make any fact admissible to prove the crime alleged which would not have been admissible at the time of the crime. Rather, it made admissible testimony which would not have been admissible at the time of the crime.

In Culbertson v. Virginia, 137 Va. 752, 119 S.E. 87 (1923), the Virginia Supreme Court made the distinction drawn in Thompson v. Missouri, supra, in interpreting the Virginia Constitution. At the time of the crime, evidence of general character of the accused was not admissible in prohibition cases. Before the trial, the law was changed to permit such evidence to be admitted. Five persons testified that the accused was of a character disposed to make and sell whiskey. The court held that, as opposed to the handwriting exemplars in Thompson v. Missouri, supra, the character evidence related a fact not previously admissible, thus the conviction was reversed.

In another often-cited, elderly case, Hart v. Alabama, 40 Ala. 32 (1866), the Alabama Supreme Court held an evidence rule was ex post facto law. There the law at the time of the offense required corroboration of the testimony of an accomplice in order for that testimony to be the basis of a conviction of any crime. Prior to the appellants’ misdemeanor conviction the requirement was removed as to misdemeanors. The court held that this meant less evidence was required for conviction and, following the broad language of Colder v. Bull, supra, reversal was required. If we were to follow the Alabama Supreme Court’s decision, we might say that because the change in the law before us permitted different testimony from that permitted at the time of the crime it could be said that less other testimony was thus required. Then again, we might say that no less testimony is required to convict but that, pursuant to the change, more testimony is permitted. We find that sort of angel dancing intolerable.

While we could not condone legislation criminalizing an act after its perpetration or retroactively increasing the punishment, we can find no reason to hold that a person who commits a crime has a right to rely on rules of evidence in effect at the time of the crime which govern not the facts which may be proven but the manner in which those facts are ascertained by a witness. Evidence rules must be judged on their own as to whether they are fairly designed to get at the truth. We are not dealing here with any privacy or due process argument. If the evidence admitted in this case was fair on the day of the trial, it was fair on the day the crime was committed, and from the perspective of ex post facto legislation the appellant had only the right to expect fair treatment beyond his right not to have the elements of the crime, or the provable facts, changed. The Arkansas Constitution does not prohibit the evidence admitted in this case.

2. Limited cross-examination

Easter had testified he participated in the drug buy because of the deal he made with the police. In cross-examination, the appellant’s counsel sought to go into detail with respect to the stolen video cassette recorder. The prosecutor objected on the basis that Easter had admitted the theft and the circumstances of his participation in his direct testimony and that cross-examination on the point would waste time.

The appellant contends he was entitled to let the jury know, for example, the value of the video cassette recorder so that the jury would know the degree of punishment Easter might face if he had failed to testify. The appellant did not make a proffer of what he might have shown by cross-examination. But even had he done so, the trial court did not abuse his discretion by limiting the cross-examination. The basic impeaching point had been admitted by the witness.

. . . [W]hen the main circumstances from which the bias proceeds have been proven, the trial judge has a discretion to determine how far the details, whether on cross-examination or by other witnesses, may be allowed to be brought out. After all, impeachment is not a central matter, and the trial judge, though he may not deny a reasonable opportunity to prove the bias of the witness, has a discretion to control the extent to which the proof may go. He has the responsibility for seeing that the sideshow does not take over the circus.

E. Cleary, McCormick’s Handbook of the Law of Evidence, pp. 88-89 (3d ed. 1984). The limits of cross-examination lie within the trial judge’s sound discretion, and we will not reverse absent an abuse of that discretion.

Affirmed.