author: Donald L. Corbin, Justice.

text:
    James Wesley JOHNSON v. STATE of Arkansas
    CR 91-41
    814 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered September 9, 1991

      James P. Massie, for appellant.

      Winston Bryant, Att’y Gen., by; Jeff Vining, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, James Wesley Johnson, was tried and convicted by a Pulaski County jury for possession of a controlled substance with intent to deliver. He was sentenced as an habitual offender to serve sixty years imprisonment in the Arkansas Department of Correction. Johnson appeals contending that the evidence adduced at trial was insufficient to support the possession conviction. We affirm.

In considering appellant’s sufficiency of the evidence argument, we consider only the evidence that is favorable to the state and supports the appellant’s conviction. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). On December 29, 1989, the police went to the area of Thirteenth and Wolfe Streets in Little Rock to investigate an informant’s tip about possible narcotic activity in the area. During the investigation, the police learned that a brown van parked in the alley behind Wolfe Street was a source of drug activity.

After locating the van, the police shined flashlights into the van’s window, and observed a male and a female trying to hide themselves under a pile of clothes on the van’s rear bench seat. Appellant was lying across the floorboard behind the van’s front seats. The police observed the appellant pull a pistol out of his belt, wave it, and stick it under a seat cushion. After removing the van’s occupants, the police recovered a folded piece of paper from the floorboard behind the front seats. The paper contained 2.562 grams of cocaine.

Two officers testified regarding appellant’s position in relation to the spot where they found the paper. One officer testified that appellant was sitting on the paper. Another officer testified that appellant was lying across the paper. The officers also recovered two guns, “crack” pipes, and a pill bottle of Valium. Upon searching the appellant, the officers found a loaded gun clip in appellant’s back pocket. The search did not reveal any drugs on the appellant’s person.

At the close of the state’s evidence appellant moved for a directed verdict of acquittal, claiming that the state’s circumstantial evidence was not sufficient for the jury to conclude that he had committed the crime of possession. The motion was denied.

In determining whether there is sufficient evidence to support a jury verdict, we will affirm if there is substantial evidence to support the conviction. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). It must force or induce the mind beyond suspicion or conjecture, and a verdict should only have been directed where there was no evidence from which the jury could have found the defendant guilty without resorting to surmise and conjecture. Id. In order for circumstantial evidence to be sufficient to support a finding of guilty in a criminal case, it must exclude every other reasonable hypothesis consistent with innocence. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). However, whether the evidence excludes every other reasonable hypothesis is for the finder of fact to determine. Id.

In the instant case, appellant argues that the state failed to prove possession because there was no direct evidence that the contraband belonged to appellant. He relies on the undisputed fact that the police did not find any drugs on his person at the time of his arrest.

Possession means “to exercise actual dominion, control, or management over a tangible object.” Turner v. State, 24 Ark. App. 102, 103, 749 S.W.2d 339, 340 (1988). At appellant’s trial, two officers testified that appellant was covering the contraband with his body immediately prior to his arrest. Viewing the evidence in the light most favorable to the state, the officers’ testimonies are sufficient to establish that appellant exercised dominion or control over the contraband.

Accordingly, we hold that there is substantial evidence to support appellant’s conviction.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jimmy Lane WICOFF v. STATE of Arkansas
    RC 91-44
    814 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered September 9, 1991

      Christopher O’Hara Carter, for appellant.

      No response.
   Per Curiam.

Appellant, Jimmy Lane Wicoff, by his áttor-

ney, Christopher Carter has filed a motion for rule on the clerk. His attorney admits that the record was tendered late because the ninety-day limit for filing the record in this Court, see Ark. R. App. P. 5(a), was not extended by a new trial motion with respect to which no record was made. See Ark. R. App. P. 4(c).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1919, In re: Belated Appeals in Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

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


author: Robert H. Dudley, Justice.

text:
    STATE of Arkansas v. Ranger Thomas THORNTON
    CR 91-58
    815 S.W.2d 386
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellant.

      Gibson & Deen, by: Thomas D. Deen, for appellee.
   Robert H. Dudley, Justice.

On May 2,1990, the appellee, Ranger Thomas Thornton, was involved in a car wreck which killed one person. That same day, he was charged by police citation in municipal court with the misdemeanors of speeding, reckless driving, drinking on the highway, running a red light, destruction of public and private property, and the class C felony of manslaughter. On May 16, 1990, he pleaded guilty to speeding, reckless driving, and drinking on the highway and pleaded not guilty to running a red light and destruction of public and private property. He was found guilty of those two additional misdemeanors. The State dismissed the felony manslaughter count filed in municipal court.

On November 20, 1990, about six (6) months after the municipal court proceedings, the State, by information filed in circuit court, charged the accused with the felony manslaughter. The information is cryptic; the charging part alleges only that the accused “on May 2, 1990, in Chicot County did unlawfully, recklessly cause the death of another person, to wit: Cheryl Kniss.” A bill of particulars was not provided. On December 10, 1990, twenty (20) days after the.manslaughter charge was filed, the appellee, Thornton, moved to dismiss the charge under the Double Jeopardy Clause of the Fifth Amendment. Two days later, on December 12, 1990, the trial court, without having a response from the State and without holding an evidentiary hearing, dismissed the charge. The State appeals pursuant to A.R.Cr.P. Rule 36.10. We reverse and remand.

I.

The accused seeks to bar the State from appealing on two (2) procedural grounds. First, he argues that the State did not object to the entry of the dismissal order, and, accordingly, we should not consider the dismissal. The requirement for a contemporaneous objection has long been our general rule, and remains so, but we also have long recognized that an exception to the rule exists when a litigant did not have the opportunity to object. Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988) ; Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). Here, the State did not have the opportunity to object and, as a result, the contemporaneous objection rule does not bar appeal of the dismissal.

Secondly, the accused contends that the State is asking for the reversal of a factual determination and cites us to our case law which provides that we will not accept an appeal from the State after a final dismissal for the purpose of determination of a question of fact. See State v. Dixon, 209 Ark. 155, 189 S.W.2d 787, (1945); State v. Harvest, 26 Ark. App. 241, 762 S.W.2d 806 (1989) . We have not changed our position; we still will not accept a State appeal of a final order solely to determine a question of fact. However, that rule is not applicable to this appeal. As can be seen from the remainder of this opinion, this appeal involves the uniform and correct administration of the criminal law, and we have traditionally accepted such appeals. See A.R.Cr.P. Rule 36.10 and citations thereunder.

II.

The case of Grady v. Corbin,_U.S_, 110 S. Ct. 2084 (1990) governs the case before us. There, Thomas Corbin, was involved in a car wreck which killed one person. After the wreck he was given uniform traffic tickets for driving while intoxicated and for failure to keep right of the median. Both tickets directed him to appear at a Town Justice Court. He appeared as directed and pleaded guilty. The presiding judge was informed neither of the fatality nor of a pending homicide investigation. The judge subsequently assessed the penalty. About two (2) months later, the grand jury indicted Corbin, charging him in county court with, among other things, negligent homicide, criminally negligent homicide, and reckless assault. The prosecution filed a bill of particulars stating that in order to prove the homicide and assault charges it would prove that the defendant (1) was operating his vehicle in an intoxicated condition, (2) failed to keep to the right of the median, and (3) was driving 45 to 50 miles per hour, which was too fast for the prevailing conditions. Corbin moved to dismiss because of double jeopardy. Ultimately, the case reached the Supreme Court of the United States which held the homicide and assault charges were barred by the Double Jeopardy Clause.

The Court formulated a two (2) part inquiry to determine whether double jeopardy bars a prosecution. First, the Blockburger test should be applied. If it reveals that the offenses have identical statutory elements or that one offense is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred. Id. at 2090. If the subsequent prosecution is not barred under the first inquiry, it should be subjected to the second inquiry, the “proof of the same conduct” analysis. The holding of the case concisely sets out this second inquiry as follows: “We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 2087.

III.

The key to the second inquiry is determining on what conduct the State will rely to prove the subsequent prosecution. In Grady the State had filed a bill of particulars which set out its anticipated proof. Because of that bill of particulars, the Court wrote:

By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which Corbin was convicted—driving while intoxicated and failing to keep right of the median—to establish essential elements of the homicide and assault offenses. Therefore, the Double Jeopardy Clause bars this successive prosecution, and the New York Court of Appeals properly granted respondent’s petition for a writ of prohibition. This holding would not bar a subsequent prosecution on the homicide and assault charges if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted (i.e., if the State relied solely on Corbin’s driving too fast in heavy rain to establish recklessness or negligence).

Id. at 2094. In the case before us there is no bill of particulars; instead, there is only the cryptic information which does not fully disclose the conduct on which the State will rely. The issue becomes: which party has the burden of proving the prior conduct the State will use?

In Grady, the majority answered the burden of proof issue for federal courts in footnote fourteen (14) of the opinion. There the Court provided a procedural mechanism for implementation of the test by relying on the procedure followed in previous double jeopardy cases and quoting a passage summarizing that procedure as follows: “ ‘[W]hen a defendant puts double jeopardy in issue with a non-frivolous showing that an indictment charges him with an offense for which he was formerly placed in jeopardy, the burden shifts to the government to establish that there were in fact two separate offenses.’ ” Id. at 2094, n.14 (quoting United States v. Ragins, 840 F.2d 1184, 1192 (4th Cir. 1988)). The court in Ragins stated that this was the approach taken by all of the federal circuits. See also Note, The Burden of Proof in Double Jeopardy Claims, 82 Mich. L. Rev. 365 (1983).

The State argues in its brief that the burden should be on the defendant to demonstrate that the State will rely on conduct for which the defendant has already been convicted in proving the pending charge. The State cites one case so holding. See Commonwealth v. LaBelle, 397 Pa. Super. 179, 579 A.2d 1315 (1990). Other states have followed the Supreme Court’s direction and placed the burden on the state. See Scalf v. State, 573 So. 2d 202 (Fla. Dist. Ct. App. 1991).

It seems to us that the better procedure is to place the burden on the State since the State is in a better position, than is the defendant, to know what it is trying to prove and how it plans to do so. Accordingly, we adopt the standard recommended by the Supreme Court on the burden of proof.

The Supreme Court did not state that there must be a hearing on a pretrial double jeopardy issue. However, the very existence of the burden shifting procedure mandates that some response is necessary to a defendant’s motion to dismiss based on double jeopardy. No opportunity was given for such a response in this case. The trial court apparently assumed that the State would not be able to prove the elements of the crime of manslaughter without relying on the accused’s conduct for which he had previously been convicted—speeding, reckless driving, drinking on the highway, and running a red light. As a practical matter the trial court’s action ultimately may well prove to be the correct result, but the State should have been given an opportunity to demonstrate otherwise before the case was dismissed.

IV.

The error in prematurely dismissing the charge occurred before jeopardy attached. There never has been a determination that the State failed to prove the elements of the crime. Thus, the case may be remanded rather than dismissed. See Tibbs v. Florida, 457 U.S. 31 (1982).

Reversed and remanded for proceedings consistent with this opinion.


author: David Newbern, Justice.

text:
    Stanley PRESTON v. STATE of Arkansas
    CR 90-92
    815 S.W.2d 389
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991
    [Rehearing denied October 21, 1991.]

      Burbank, Dodson & McDonald, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Stanley Preston, was tried by jury and convicted of burglary on July 18,1989. In a bifurcated habitual felon proceeding the jury returned a sentence of 21 years. Preston filed a timely pro se motion pursuant to Ark. R. Crim. P. 36.4 raising approximately 13 allegations of ineffective assistance of counsel. Preston’s trial counsel moved to withdraw, and the motion was granted without a hearing. No new counsel was appointed, and no order denying a new trial was entered, although in the order permitting trial counsel to withdraw the Court stated that he did not find trial counsel to have been ineffective. Preston appealed this order. We remanded, Preston v. State, 303 Ark. 106, 792 S.W.2d 599 (1990), due to the lack of a final order, and we wrote:

[A] new lawyer should be appointed to represent the appellant. If the trial court finds the petition does not assert sufficient facts to raise an effectiveness issue, it may so rule. If the trial court finds the petition does state sufficient facts to raise such an issue, a hearing should be held. The hearing at that stage need not necessarily be a formal one, because if the pleadings, files and records of the case conclusively show that the petitioner is not entitled to relief, the court may so rule. If, however, the pleadings and records do not so show, a formal hearing must be held.

The trial court set a hearing and appointed new counsel on the morning of that hearing. The newly appointed attorney only had time to read the pro se petition and had no opportunity to review the record. He had not been at the trial or spoken with trial counsel prior to the hearing. At the hearing Preston was given an opportunity to read and expand on his ineffectiveness allegations and former counsel was given an opportunity to refute them. At the conclusion of the recitation the Trial Court stated he would review the transcript and files and determine whether the allegations merited a formal hearing. Following this review he decided the allegations did not warrant a hearing and issued an order with specific fact findings on each of the assertions denying the motion for a new trial.

Preston raises one point of appeal. He contends that the Court erred in denying the motion because his new counsel was not afforded a meaningful opportunity to obtain review of his ineffectiveness claims or amend the petition to assert additional claims because of his appointment on the morning of his informal hearing.

In his final order the Trial Court did precisely as we directed on remand, he reviewed the petition and found that it did not assert sufficient facts to raise an effectiveness issue. As we made clear in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), there is no requirement that the court grant an evidentiary hearing on an allegation other than one of specific facts from which it can be concluded that the petitioner suffered some actual prejudice. Furthermore, the supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Preston’s petition consisted of conclusory allegations, which were not borne out by the record, or bald assertions about the failure to call witnesses. Preston offered no details that a particular witness or witnesses could have testified to particular facts which would in reasonable probability have affected the outcome of the trial.

There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and the petitioner has the burden of overcoming that presumption. Strickland v. Washington, 466 U.S. 668 (1984). The strong presumption in favor of counsel’s effectiveness cannot be overcome by the mere claim that a petitioner has some witnesses who might have had some evidence to present. Neither Preston’s petition nor his testimony at the informal hearing presented facts which demonstrated that his trial counsel erred or that any error existed which had a prejudicial effect on the actual outcome of the proceedings. We cannot say the Trial Court was wrong in concluding that the petition did not warrant relief.

It was proper for the Trial Court to have appointed new counsel; however, given the Court’s subsequently reached conclusion that the allegations were unworthy of a formal hearing, there was nothing the new counsel could have done to further Preston’s motion. Thus, Preston’s allegation that his new counsel was given no opportunity to help him is not persuasive.

Affirmed.


author: Tom Glaze, Justice.

text:
    Nancy CROW v. STATE of Arkansas
    CR 91-3
    814 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991

      Craig Lambert, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted for the capital murder of her mother, Gladys Crow, and sentenced to life imprisonment without parole. On appeal, she raises four points for reversal.

As background information leading to appellant’s arguments, we first relate some of the pertinent evidence introduced at trial that supports appellant’s conviction. Appellant’s accomplice, Donald Bates, told the police about the murder, and testified against appellant in exchange for a reduction of the charge to first degree murder and sentence of life imprisonment. The state’s evidence showed Ms. Crow was murdered the morning of October 3, 1989, and on October 31, 1989, her body was found partially submerged in a pond located on property owned by Sollie Sutliff. On November 1, Bates confessed to the police, and implicated the appellant as the one who actually killed Ms. Crow. Bates lived on property which he with another person purchased from Ms. Crow and her husband. They were in arrears on the property which was located adjacent to appellant’s. He said that appellant expressed concern that she believed her mother planned to disinherit her; therefore, she asked Bates to assist in a plan to murder her mother.

Ms. Crow was expected to arrive at appellant’s home on the morning of October 3, and appellant and Bates designed a plan so the appellant could use a crossbow to shoot an arrow through the window of her mobile home as her mother walked towards the home through a small gate. While various means had been discussed to achieve this objective, Bates testified that he was actually present that morning at appellant’s premises and, when Ms. Crow arrived and departed from her car, he suggested she walk through the small gate entrance. As Ms. Crow walked through the gate, the appellant shot her, but her wound was not fatal. Ms. Crow managed to return to her car and attempted to get away. However, by this time, appellant had run to the scene, and with Bates’s assistance, they were able to stop Ms. Crow’s car. Ms. Crow then passed out, and after Bates and appellant dragged her out of her car, appellant proceeded to shoot Ms. Crow with the crossbow two additional times at close range. Bates related how he and appellant disposed of Ms. Crow’s body, clothing, car and the arrows. Prior to Bates’s confession, the police had already found Ms. Crow’s car, which Bates had burned soon after the murder in order to get rid of the blood stains. After confessing, Bates took the police to where he and appellant had disposed of clothing and also the arrows used to shoot Ms. Crow. The officers were able to retrieve the clothing and two arrows from a creek.

Based upon Bates’s confession, the police obtained an arrest warrant for the appellant. As a result of two searches of appellant’s home, the officers found two diary sheets. These sheets of paper contained references to the murder and further implicated appellant. At the time of appellant’s arrest, she was a patient in a Texas hospital. With this background, we now turn to appellant’s first argument on appeal.

Upon the request of Johnson County Sheriff Eddie King, local Texas law enforcement officers effected appellant’s arrest at the Texas hospital. Appellant was on oxygen and attached to an I. V. The officers did a search incident to appellant’s arrest looking for possible weapons and removed a kitchen knife. While an officer remained in appellant’s room, another called Sheriff King who asked if a diary had been found during the search. Upon returning to appellant’s room, the Texas officer saw the diary, a brown three-ring notebook covered in foil, situated on a tray table about five to six feet from her bed. The officer seized the diary. Appellant argued at trial, and now on appeal, that the officers had unlawfully seized the diary, and the trial court erred in failing to suppress its introduction into evidence. We disagree.

Even though the officers did not have a search warrant to search appellant’s room, the law permits a search of the area within the immediate control of the person arrested. A.R.Cr.P. Rule 12.2. In State v. Risinger, 297 Ark. 405, 762 S.W.2d 787 (1989), we set out the following relevant Supreme Court’s discussion in Chimel v. California, 395 U.S. 752 (1969), of the “search incident to arrest” principle as follows:

[W]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. (Emphasis added.)

In the present case, the record reflects that appellant’s diary was only five or six feet from her bed, and although she was on oxygen and attached to an I.V., she was able, on her own, to leave her bed and to walk. Thus, appellant undoubtedly had the capability to destroy the diary. The accessibility issue aside, the Chimel rule defines the area which may be searched, and is not constrained because the arrestee is unlikely at the time of the arrest to actually reach into that area. United States v. Palumbo, 735 F.2d 1095 (8th Cir. 1984).

Gruesome photographs are the subject of appellant’s second issue on appeal. In all, eight photographs of the victim’s body were introduced into evidence. The victim’s body was partially decomposed, because the body had been submerged in the pond for almost a month. At the trial below, the appellant’s attorney only objected to two photographs, exhibits nine and ten. While on appeal, the appellant’s argument includes all the photographs, we can only address her arguments on exhibits nine and ten, since she did not properly object to the other photographs. As we have stated countless times, we will not consider arguments raised for the first time on appeal. See, e.g., Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

We have held that admissibility of photographs rests within the sound discretion of the trial court, and its decision will not be reversed without a showing of clear abuse of discretion. Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). Even inflammatory photographs are admissible if they tend to shed light on an issue, if they are useful to enable a witness to better describe the objects portrayed, or if they better enable the jury to understand the testimony. Id. In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), this courtwarned trial judges against the “carte blanche” acceptance of gruesome photographs. In Berry, the court found that six, mostly repetitious, gory, color photographs of the victim’s face were of little probative value and could do nothing but inflame the jury. This court has also held that a defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Cotton v. State, 276 Ark. 282, 634 S.W.2d 127 (1982).

Applying this law to the present case, exhibits nine and ten were three by five color photographs of the victim’s body after it had been removed from the pond. The body is partially enclosed in a yellow body bag. The pictures show the rope tied around the victim’s body which was used with the concrete blocks pictured in exhibit eight to weigh the body down in the pond. These are the only pictures that show the rope still tied around the body.

This court has upheld the admittance into evidence of photographs of a body removed from a pond. See Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). Here, the state had to corroborate Bates’s account of the murder and hiding of the victim’s body, and, in order to do so, it was necessary for the state to show the ropes attached to her body. Not only are these photographs mild compared to the others not objected to, there is nothing to suggest that the trial judge accepted the state’s photographs “carte blanche.” In sum, the challenged photographs were necessary for the state to prove its case, and the trial court was correct in admitting them into evidence.

Appellant next argues that the trial court erred in allowing Officer Jerry Dorney to read and explain an entry the appellant had made in her diary. In sum, appellant contends Dorney’s testimony was not admissible under Ark. R. Evid. 701 as lay opinion testimony, nor was he qualified to testify as an expert on the subject.

First, we mention the appellant’s argument on appeal touches on fourteen entries in appellant’s diary, but she only interposed an objection to the first diary entry read by Donrey. The diary entries related to topics other than the mere mention of crossbows and arrows. Only the objections raised at trial level are deemed properly before this court; all others are considered waived. Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990).

The entry as read by Donrey, and to which appellant objected, is as follows:

[T]he first entry is on Thursday, February 9th, 1989. It’s some notations at the bottom of the page. It has Fox Fire, Sport Fire and Spit Fire listed and by the side of each of those is the number, the dollar amount, two hundred sixty-two. There’s a notation that says, most energy effect. Thirty, thirty-five, forty, sixty yards deadly; a hundred fifty pound pull; forty dollars for cocking device. Arrows, four dollars each ....

After overruling appellant’s objection, the prosecutor asked Dorney to tell the jury what, in view of his investigation, was the above entry referring to, and Dorney answered as follows:

Okay. It shows that she was comparing cross bows, their pound pull, distance in which they are effective, price of the arrows. She was looking for the best buy on a cross bow.

Dorney’s response was based at least in part from his investigation and acquired knowledge of crossbows and their brand names. Obviously, a juror without experience or knowledge of crossbows would not know what Fox Fire, Sport Fire and Spit Fire referred to. Under Ark. R. Evid. 701, when a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and are helpful to a clear understanding of his or her testimony or the determination of a fact in issue. We have stated that Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). On these facts, we cannot say the trial court abused its discretion in allowing Dorney’s testimony. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991).

We cannot address the appellant’s fourth argument challenging the sufficiency of the evidence corroborating Bates’s testimony, because appellant failed to renew her motion for directed verdict at the close of the case as is required by A.R.Cr .P. Rule 36.21(b). See Ferrell, 305 Ark. 511, 810 S.W.2d 29; Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991). This rule is applicable in life cases, as well. Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

Under Rule 11(f) of the Rules of the Supreme Court and Court of Appeals, an examination has been made of all other rulings adverse to appellant, and none of them constitute prejudicial error. For the reasons stated above, we affirm.


author: Robert L. Brown, Justice.

text:
    Marvin NICHOLS v. STATE of Arkansas
    CR 91-56
    815 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991
    [Rehearing denied October 21, 1991.]

      John L. Kearney, for appellant.

      Winston Bryant, Att’y Gen., by: Elizabeth A. Vines, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Marvin Nichols, was convicted of possession of cocaine with intent to deliver and possession of marijuana with intent to deliver and was sentenced as an habitual offender to sixty years on the cocaine count and twenty years on the marijuana count, with the two sentences to run consecutively. He raises numerous issues on appeal.

The facts, though somewhat in dispute, are these. On March 3,1990, several police officers of the City of Pine Bluff executed a search warrant and made a surprise visit to the appellant’s residence. The time was described as sometime after 8:30 in the evening. According to a policeman involved in the search, Officer Alexander, the search warrant had been obtained as a result of a confidential informant’s purchase of a controlled substance from the appellant three days earlier. Officer Alexander testified that he entered the kitchen of the appellant’s residence and found the appellant and three more people sitting around a table where contraband — crack cocaine in a salt shaker, a large cocaine rock in a plastic container, and marijuana in plastic bags — was in plain view. Witnesses for the appellant disputed this testimony at trial. Other people were standing around the kitchen area, and one person was smoking a crack pipe. No cocaine or marijuana was found on the appellant’s person. He was arrested and charged with possession with intent to deliver the controlled substances that were on the table.

I.

SUFFICIENCY OF THE EVIDENCE

We first review the appellant’s challenge to the sufficiency of the evidence relating to his possession of controlled substances. Motions for a directed verdict on grounds of insufficient evidence were appropriately made by the appellant at the end of the state’s case and at the close of all the evidence. Thus, in conducting this review we must look to whether substantial evidence exists to support the verdict. Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990). Evidence is substantial if it is of sufficient force to compel reasonable minds to reach a conclusion and pass beyond mere suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Cerda v. State. When there is no evidence from which a jury could find the defendant guilty without resorting to speculation and conjecture, the judge should grant a directed verdict. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). In considering the appellant’s argument, this court may only consider the evidence that is favorable to the state and supports the appellant’s convictions. Summers v. State, 300 Ark. 525, 780 S.W.2d 541 (1989).

The proven facts in this case are more than enough to qualify as substantial evidence. The premises involved here were described by the police officers as the appellant’s residence. According to Officer Alexander, the appellant was seated at the kitchen table at the time of the raid with the contraband in plain view on the table in front of him. Though this testimony was disputed by defense witnesses, the jury clearly chose to believe Officer Alexander. Since others joined the appellant around the table, we cannot conclude that the contraband was exclusively within his possession. But we have held that constructive possession exists where joint occupancy of the premises occurs and where there are additional factors linking the accused to the contraband. See Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990) . Those additional factors include a) whether the accused exercised care, control, and management over the contraband, and b) whether the accused knew the material was contraband. Id; see also Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991) . This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988). We have little hesitancy in holding that substantial evidence of constructive possession exists where the abundant contraband lay in front of the appellant in plain view on the table in his house.

II.

MOTION TO STRIKE

The appellant next contends that it was highly prejudicial for the prosecutor to bring out in the testimony of Officer Alexander that the appellant had sold controlled substances three days before the raid on his house, when no charges had been brought against the appellant in connection with that sale. More specifically, the appellant argues that the trial judge erred in failing to strike this testimony and admonish the jury to disregard it. In resolving this issue the chronology of the appellant’s motion to strike is important. The motion was first made by counsel after Alexander described the drug sale. Yet, after initially moving to strike the drug-sale testimony, counsel told the judge that he would “wait” on his objection.

At the conclusion of officer Alexander’s direct testimony, counsel for the appellant approached the bench, and this colloquy ensued:

Defense Counsel: We would, at this time, move to strike testimony as being unduly inflammatory, and I can do that, and not relevant, and not raise the objection or whatever to the search warrant. I can do that at another time.
The Court: Okay.
Defense Counsel: I assume that the Court is going to deny —
The Court: I can’t until I hear the motion. Do you want to do it now, or I can reserve you the right to do it?
Defense Counsel: I’ll wait.
The Court: Okay.

It was not, however, until both the prosecutor and the defense had rested that counsel moved the trial judge to strike the drug sale testimony as prejudicial and to admonish the jury to disregard it. The prosecutor opposed the motion on grounds of waiver due to the delay in making it and, further, on the basis that the drug sale formed the underlying basis for the search warrant. The trial judge agreed that a waiver had occurred and denied the motion.

With this chronology before us, it is not necessary to reach the issue of any, prejudice that may have resulted from the drug sale testimony. Defense counsel simply waited too long to raise the issue. Our case law is clear that in order to preserve an issue for appeal, an objection to evidence must be made at the first opportunity to do so. See Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991); Munnerlyn v. State, 293 Ark. 209, 736 S.W.2d 282 (1987); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). Even if the objection and motion were deemed to have been made during Alexander’s testimony, they were clearly withdrawn. An objection and motion pertaining to the testimony of the state’s first witness are not timely made when they are renewed after numerous state and defense witnesses have testified and after both sides have rested. This issue was not preserved for appeal.

III.

SEARCH WARRANT

The appellant’s third issue relates to the second. He contends that the prosecutor brandished the search warrant around the courtroom, used it in testimony, and referred to the circumstances leading up to its issuance. The appellant further argues that the search warrant itself was not introduced into evidence, and its validity was not proven, all of which prejudiced the defense. The appellant, however, failed to make any objection concerning the search warrant’s validity at trial, and we have been consistent in holding that such a lapse forecloses our review of the matter on appeal. See Ferrell v. State, supra; Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967).

IV.

INSTRUCTION ON CONSTRUCTIVE POSSESSION

The appellant also argues that the instruction given to the jury on constructive possession did not correctly state the law. The record, however, does not reflect that the defense counsel objected to the instruction in controversy offered by the prosecutor. Failure to raise an objection to a specific instruction is fatal to an appellant’s right to have the issue reviewed on appeal. See Garrison v. State, 13 Ark. App. 245, 682 S.W.2d 772 (1985). Because no objection was made, this argument must fail.

V.

MODIFICATION OF SENTENCE

The appellant was sentenced as an habitual offender to sixty years for possession with intent to deliver cocaine. This crime is an unclassified felony, and the appellant contends, with the concurrence of the Attorney General, that the appropriate term of years for sentencing is not more than fifty years. See Ark. Code Ann. § 5-4-501 (a)(7) (1987). We have authority to modify sentences in excess of statutory limits. See Ark. Code Ann. § 16-91-113(c)(3); see also Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980). We, therefore, reduce the sentence for possession with intent to deliver cocaine from a term of sixty years to fifty years, the maximum term of years under § 5-4-501 (a)(7). In all other respects the sentence shall remain the same.

Along these same lines the appellant argues that because this is a circumstantial case, his sentence was excessive. The argument is without merit. As modified, the sentence is within the statutory limits. We do not review the severity of a sentence which is within the lawful maximum, except in capital cases. See Andrews v. State, 283 Ark. 297, 675 S.W.2d 636 (1984). The convictions and sentences are affirmed as modified.


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    Bobby JOHNSON v. STATE of Arkansas
    RC 91-51
    814 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991

      James P. Massie, for appellant.
    No response.
   Per Curiam.

Appellant, Bobby Johnson, by his attorney, has filed for a rule on the clerk.

His attorney, James P. Massie, 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.dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    Ernest Dewayne LEMONS v. STATE of Arkansas
    CR 91-108
    814 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered September 16, 1991

      Daniel D. Becker, for appellant.

      Winston Bryant, Att’y Gen., by: Pamela Rumpz, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, who was already on probation, was charged with the murder of Mr. Stephens. Appellant’s probation was revoked, and appellant appealed. The parties have submitted their briefs, and the case awaits submission.

After appellant’s probation was revoked, he was tried on the murder charge, and at the close of the state’s case, the state moved for dismissal, which was granted. The state’s request for dismissal was prompted by its witness’s (Dr. Fahmy Malak’s) testimony that Stephens had died from a gun shot close to the head. Other state witnesses presented conflicting testimony to the effect that Stephens had been shot from a distance.

After dismissal of the murder charges, appellant seeks to supplement the record in his revocation appeal with Dr. Fahmy Malak’s trial testimony even though such testimony was given nearly six months after the revocation hearing. The state objects to such supplementation, but alternatively requests that it, too, should be allowed to supplement the record with pathology expert reports that conflict with Malak’s testimony.

Because this court’s role is not one of factfinding, we are in no position to determine what effect any of the proffered testimony might have had on the trial court when it revoked appellant’s probation. The trial court did not have benefit of what has transpired since its revocation decision and because we have not, as yet, decided this matter on the original record, we remand this cause to the trial court for a rehearing or reexamination and reevaluation of all relevant evidence. See Johnson v. State, 248 Ark. 184, 450 S.W.2d 564 (1970); Mitchell v. Bishop, 245 Ark. 899, 435 S.W.2d 91 (1968); see also, 24B C.J.S. Criminal Law § 1943 (1962).


text:
    ARKANSAS-OKLAHOMA GAS CORP. v. LUKIS STEWART PRICE FORBES & CO. LTD., Ebasco Risk Management Consultants Inc.; et al.
    90-344
    816 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Wilson, Engstrom, Corum & Dudley, by: Timothy O. Dudley, for appellant.

      Warner & Smith, by: Joel D. Johnson, for appellee Instituto Nacional de Seguros.

      J. Michael Shaw and P.H. Hardin, for appellees-insurers.
   Robert H. Dudley, Justice.

A group of insurance companies, the appellees, provided surplus lines of liability insurance to appellant Arkansas Oklahoma Gas Corporation. A gas explosion resulted in judgments of $8,000,000 against AOG and it, in turn, looked to the insurers for coverage. By that time, five (5) of the surplus lines insurers had become insolvent. The solvent ones paid their proportionate, or several, shares of the loss, but refused to pay the insolvent insurers’ shares. Eventually, AOG filed suit and alleged that each insurer was jointly liable for the whole loss. In a summary judgment proceeding, the trial court held that the appellee insurance carriers were severally liable only. AOG appeals. We affirm.

For many years AOG had purchased its liability insurance thorough Rebsamen Insurance, Inc. of Little Rock. Charles Campbell, the Executive Vice President of Rebsamen Insurance and a licensed surplus lines insurance broker in Arkansas, handled the AOG account. In 1976, both Campbell and AOG knew that AOG’s liability insurance would expire in 1977. Before the policies expired,.Campbell sought to obtain new ones. He obtained $500,000 in primary liability insurance coverage from the USF&G companies. He obtained $1,000,000 in excess liability coverage from Gas, Ltd., later known as AEGIS. Finally, he sought to obtain $9,000,000 in excess liability coverage. At that time, it would have been extremely difficult, if not impossible, to obtain that much excess liability coverage from companies authorized to do business in Arkansas, and it was no easy task to obtain that much excess liability coverage, even looking to alien and foreign unauthorized companies.

Campbell contacted Ebasco Risk Management Consultants in New York. He knew that Ebasco had provided risk management insurance services for utilities for over forty (40) years. A sketch of its program is as follows: Various utilities would contact Ebasco about excess liability insurance. Ebasco would contact Lukis Stewart Price Forbes & Co., a Toronto, Canada broker. Lukis Stewart would then contact its parent company in London, England, “The Sedgwick Group.” The Sedgwick Group would put together an excess liability insurance program by procuring insurance from various syndicates and underwriters at Lloyd’s and from other insurance companies located in London and from still others around the world. The policy would be in the form of a master policy for the Ebasco group excess liability program and would be known as the “Ebasco slip.” Lloyd’s syndicate insurers and other insurers would provide in the master policies that each insurer’s liability was several. The master policies would be delivered to Lukis Stewart and then to Ebasco. The master policy would authorize Lukis Stewart to issue a memorandum of excess liability insurance to Ebasco, and Ebasco would then send the memorandum to the local agent for each utility. Each utility was separately rated for the purpose of computing premiums. In summary, Ebasco held the master policy for each of the separately rated utilities in the group of insured utilities.

At the time relevant to this case, Lloyd’s syndicates were on the “Ebasco slip” for a total of 25.75 percent of the excess liability insurance and other combined companies were on the slip for a total of 74.25 percent. The two master policies provided that the insurers are severally liable only. The master policy by the underwriters at Lloyd’s provides:

Now know Ye that We the Underwriters, Members of the Syndicates whose definitive numbers in this after-mentioned List of Underwriting Members of Lloyd’s are set out in the attached Table, hereby bind ourselves each for his own part and not one for another, our Heirs, Executors and Administrators and in respect of his due proportion only, to pay or make good to the Assured or to the Assured’s Executors or Administrators or to indemnify him or them against all such loss, damage or liability as herein provided, after such loss, damage or liability is proved and the due proportion for which each of Us, the Underwriters, is liable shall be ascertained by reference to his share, as shown in the said List, of the Amount, Percentage or Proportion of the total sum insured hereunder which is in the Table set opposite the definitive number of the Syndicate of which such Underwriter is a Member AND FURTHER THAT the List of Underwriting members of Lloyd’s referred to above shows their respective Syndicates and Shares therein, is deemed to be incorporated in and to form part of this Policy, bears the number specified in the attached Table and is available for inspection at Lloyd’s Policy Signing Office by the Assured or his or their representatives and a true copy of the material parts of the said List certified by the General Manager of Lloyd’s Policy Signing Office will be furnished to the Assured on application.

The combined companies’ master policy provides:

Now know ye that we the Assurers do hereby bind ourselves, each COMPANY for itself only and not one for another and in respect only of the due proportion of each Company, to pay to the Assured or the Assured’s Executors or Administrators, all such loss, damage or liability as herein provided that the Assured may sustain during the stated period, not exceeding in all the sum insured, as properly apportioned to the sums, or to the percentages or proportions of the sum insured, subscribed against our names respectively.

The policies further provide “that Lukis Stewart Price Forbes & Co. Ltd. may issue evidence of coverage to each Assured.” Lukis Stewart issued two “memoranda of excess liability insurance,” one representing the group of Lloyd’s syndicates participating in 25.75 percent of the risk and the other representing the combined companies’ 74.25 percent of the risk. Neither memorandum provided whether liability was joint or several. The memoranda were sent to Ebasco in New York and then forwarded to Charles Campbell of Rebsamen Insurance in Little Rock and finally to AOG.

On June 21,1978, while the policies were in force, a natural gas explosion caused personal injuries that resulted in judgments against AOG totaling $8,000,000.

The primary carrier, USF&G, paid the $500,000 limit of its policy. AEGIS paid the $1,000,000 limit of its excess liability coverage. All of the Lloyd’s underwriters paid their several amounts in full. This amounted to 25.75 percent of the loss. Most of the “other companies” paid their percent of the loss, but five of the “other companies,” representing $543,514.49 of the loss, were insolvent and did not pay.

AOG demanded indemnity from the solvent insurers. They refused to pay more than their several shares. AOG then filed suit against Rebsamen Insurance, Ebasco, Lukis Stewart, and the excess liability insurers. In its complaint, it pleaded that Rebsamen, Ebasco, and Lukis Stewart were its agents and, as such, were negligent in their selection of the insurance companies. That part of AOG’s suit has not been decided and is not before us in this appeal. AOG additionally pleaded that the Lloyd’s syndicates and the other companies are jointly liable under three theories: (1) operation of law, (2) breach of contract, and (3) negligence. AOG and the insurance companies both filed motions for summary judgment. Four volumes of record, consisting of interrogatories, requests for admissions, answers to interrogatories and admissions, affidavits, exhibits, and depositions were filed along with the motions. After reviewing them, the trial court ruled in favor of the insurance companies and issued an ARCP Rule 54(b) certification that allows us to accept the appeal of the partial summary judgment.

As a preliminary matter, all parties agree that Arkansas law is applicable to this case, and it is appropriate to cite today’s Arkansas Code Annotated, rather than 1977’s Arkansas Statutes Annotated, since none of the statutes involved have been amended.

AOG first argues that the insurance companies are jointly and severally liable as a matter of law. Its argument is based on Ark. Code Ann. § 23-79-117(b) (1987) which provides:

(b) Two (2) or more insurers may, with the approval of the commissioner, issue a combination policy which shall contain provisions substantially as follows:
(1) That the insurers executing the policy shall be severally liable for the full amount of any loss or damage according to the terms of the policy, or for specified percentages or amounts thereof aggregating the full amount of insurance under the policy; and
(2) That service of process or of any notice or proof of loss required by the policy upon any of the insurers executing the policy shall constitute service upon all the insurers.

AOG argues that the statute plainly means that in order to limit liability under a policy to several liability, the insurers must have obtained the approval of the Arkansas Insurance Commissioner. The appellee insurance companies did not have the approval of the Commissioner to issue these policies, and, for that reason, AOG contends they are jointly liable as a matter of law. AOG’s argument would have merit if the cited statue were the controlling statute.

The cited statute, Ark. Code Ann. § 23-79-117(b), is part of the general insurance code. Another section of the insurance code deals with “surplus lines insurance,” the particular kind of insurance at issue in this case.

Ark. Code Ann. § 23-60-105 (1987) provides:

Provisions of this code relative to a particular kind of insurance or a particular type of insurer or to a particular matter shall prevail over provisions relating to insurance in general or insurers in general or to such matters in general.

Consequently, the specific provisions of the Arkansas Surplus Lines Insurance Law control over the general statute cited by AOG.

Our statutory scheme for surplus lines insurance is based upon the premise that Arkansas insurance brokers at times will be required to look to foreign or alien unauthorized insurers for surplus lines insurance. Accordingly, it regulates Arkansas insurance brokers, not the unauthorized companies with whom they are conditionally authorized to do business. See Ark. Code Ann. §§ 23-65-302 and 303 (1987) concerning placing of surplus lines insurance with unauthorized or non-admitted insurers.

In addition, Ark. Code Ann. § 23-65-305 (1987) provides:

If certain insurance coverages cannot be procured from authorized insurers, coverages, hereinafter designated “surplus lines” may be procured from unauthorized insurers subject to the following conditions:
(1) The insurance • must be procured through a licensed surplus lines broker;
(2) The full amount of insurance required must not be procurable, after diligent effort has been made to do so, from among authorized insurers who are actually marketing that kind or class of insurance in this state, and the amount of insurance placed in an unauthorized insurer is only the balance over the amount procurable from authorized insurers.

Ark. Code Ann. § 23-65-310 (1987) provides that a broker may place surplus lines insurance with unauthorized foreign and alien insurers that are approved by the Commissioner. The first few lines of the statute, which are representative of its full content, provide:

(a) A surplus lines broker shall place surplus lines insurance only with insurers which have been approved by the commissioner. The commissioner may maintain a list of approved foreign and alien surplus lines insurers in addition to those alien insurers maintaining status on the current National Association of Insurance Commissioners’ nonadmitted insurers’ quarterly listing. The approved list shall not contain:
(1) Any insurer which is not licensed in at least one (1) state of the United States for the kind of insurance involved;
(2) Any stock insurer having capital and surplus amounting to less than three million dollars ($3,000,000);

Ark. Code Ann. § 23-65-311 (1987), places the duty upon the broker to issue and deliver evidence of the insurance to the insured. Of equal importance, it expressly provides that insurers may assume only a proportion of the policy, or several liability. It provides:

(a) Upon placing a surplus lines coverage, the broker shall promptly issue and deliver to the insured evidence of the insurance, consisting either of the policy as issued by the insurer or, if the policy is not then available, the surplus lines broker’s certificate. The certificate shall be executed by the broker and show the subject, coverage, conditions, and terms of the insurance, the premium charged and taxes collected from the insured, and the name and address of the insurer. If the direct risk is assumed by more than one (1) insurer, the certificate shall state the name and address and proportion of the entire direct risk assumed by each such insurer.
(b) If, after the issuance and delivery of the certificate, there is any change as to the identity of the insurers, or the proportion of the direct risk assumed by the insurers as stated in the broker’s original certificate, or in any other material respect as to the insurance coverage evidenced by the certificate, the broker shall promptly issue and deliver to the insured a substitute certificate accurately showing the current status of the coverages and the insurers responsible thereunder.
(c) If a policy issued by the insurer is not available upon placement of the insurance and the broker has issued and delivered his certificate as provided in subsection (a) of this section, upon request therefor by the insured, the broker shall, as soon as reasonably possible, procure from the insurer its policy evidencing such insurance and deliver such policy to the insured in replacement of the broker’s certificate theretofore issued.
(d) Any surplus lines broker who knowingly or negligently issues a false certificate of insurance, or who fails promptly to notify the insured of any material change with respect to the insurance by delivery to the insured of a substitute certificate as provided in subsection (b) of this section, upon conviction, shall be subject to the penalties provided by § 23-60-108 of this code or to any greater applicable penalty otherwise provided by law. [Emphasis added.]

From the foregoing, it is manifest that the statutory scheme for surplus lines insurance is designed to regulate the registered broker and to authorize the broker, by his certificate, to advise the insured of the names, addresses, and proportion of the risk assumed by each insurer. It provides for several liability of the insurers and does not specify that the surplus lines insurer must comply with the general insurance code provisions.

The Seventh Circuit Court of Appeals addressed a comparable case in Corday’s Dept. Store, Inc. v. New York F.&M. Under., Inc., 442. F.2d 100 (7th Cir. 1971). The issue in that case was whether a surplus lines insurer could provide exclusions in its policy which deviated from the statutory required standard form of fire insurance. In Illinois, as in Arkansas, surplus lines insurance is exempt from the statutory requirement of a certificate of authority. The Court of Appeals, in reviewing the object and purposes of surplus lines insurance, stated:

The District Court, recognizing that the object and purpose of surplus line insurance provisions, as elucidated by the Illinois courts, is to make it possible to secure protection against a risk when authorized companies will not provide that protection, concluded that the regulatory scheme embodied in the Illinois Insurance Code is used to achieve that objective which embraces, as well, the implicit common sense judgment that it is better that a citizen of Illinois be able to insure a risk at less than standard coverage, than that he not be able to secure any protection at all.

Id. at 104. The court held that the Illinois statutes setting out the forms of policies were applicable only to authorized companies transacting business in the state but were not applicable to a policy issued by a surplus lines insurer. Likewise, we hold that the statute cited by AOG is a part of the general insurance code and does not govern surplus lines insurance.

Secondly, AOG argues that the trial court erred in granting summary judgment against it on its breach of contract claim. The basis for the alleged breach of contract is the language in the memoranda issued by Lukis Stewart that provides the insurers will indemnify AOG for “any and all sums which they shall be legally obligated to pay ... to any person or persons as damages for personal injuries sustained. . ..” AOG argues that the insurers have failed to pay all such sums, and therefore, have breached their contract. Lukis Stewart issued the memoranda of insurance to its insured, AOG, as brokers are authorized to do. See Ark. Code Ann. § 23-65-311. AOG expressly pleaded in its complaint that Lukis Stewart was its agent and, in its brief to the trial court, admitted that the appellee insurance companies were not liable for the acts of its brokers. (AOG still has its claims pending against Lukis Stewart for its alleged wrongful acts as AOG’s agent.) In short, under the pleadings and argument of AOG, the memoranda were not contracts with the appellee insurance companies, but instead, are memoranda issued by its own broker. Since it is undisputed that the appellee insurance companies have each severally paid their proportionate amount due under the master policies there was no genuine issue as to any material fact involved in the breach of contract count, and the trial court correctly granted summary judgment on this claim.

In the oral argument of this case, AOG argued that Lukis Stewart was the agent of AOG in some of the matters and was the agent of the insurance companies in others, depending on which party requested it to do the particular act, and this set of facts raised a jury question. See 3 G.J. Couch, Couch Cyclopedia of Insurance Law § 25:94 (R.A. Anderson, ed., 2d rev. ed. 1983). However, we do not consider this dual agency as it was not raised below.

In its final point, AOG argues that the trial court erred in dismissing its negligence claim. In this claim, AOG asserted that its brokers and the appellee insurers negligently led AOG to believe that all of its coverage was placed with underwriters at Lloyd’s. However, there is no affidavit or other response which indicates that the appellee insurers made any such representation, and the ruling of the trial court correctly dismissed them from this part of the suit.

One of the appellee insurance companies, Instituto Nacional de Seguros, attempts to cross-appeal. This insurance company first asks us to affirm the trial court’s ruling that it is not jointly liable and that it has paid all that it severally owed, and that it was correctly dismissed from the lawsuit. It then asks, on cross-appeal, for this court to hold that “the trial court erred in not granting this appellee’s motion for summary judgment on the grounds that this appellee was not a participant in the subject insurance policy.” Institute’s designation of its procedure as a cross-appeal is in error. A cross-appeal is required only when the appellee seeks some affirmative relief which he failed to obtain in the trial court. A cross-appeal is not necessary when the appellee won the case below and merely asks that the judgment be affirmed on a different basis. Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560 (1982). However, when we affirm on direct appeal, as we have done in this case, we need not decide if there are additional reasons to affirm the case. Id. at 535-6, 637 S.W.2d at 565. Accordingly, we decline to decide if there are additional grounds on which to affirm the judgment in favor of Instituto.

Affirmed.


text:
    Dennis RUSSELL v. STATE of Arkansas
    CR 91-79
    815 S.W.2d 929
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      Randy Rainwater, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee. .
   Robert H. Dudley, Justice.

Appellant, Dennis Russell, tried to kill his daughter and mother and, as a result, was charged with two (2) counts of attempted first degree murder. The counts were tried together. He was convicted of attempted first degree murder for the attack on his daughter and attempted second degree murder for the attack on his mother. He appeals from both convictions in this one appeal. We affirm both convictions.

The evidence, when viewed most favorably to the appellee State, is as follows. On the evening of the attack, the appellant was driving his mother’s car from Benton to Mena. His mother, Mary Nelson, was in the front passenger’s seat. Two (2) children were in the rear seats; his eight-year-old niece, Kelly Russell, was in the right rear seat, and his two-year-old daughter, Christi Russell, was in the left rear seat. He drove slowly and made frequent stops to smoke cigarettes. His mother became agitated and asked him to speed up. He stopped the car, hit his mother in the face, and choked her. He then began stabbing her with a screwdriver. He started the car and began to drive. He steered with his left hand and continued to stab his mother with the screwdriver in his right hand. His mother finally grabbed the steering wheel and turned the car. He had to stop. She jumped out and fell down into a culvert. When she was found later, she had twenty-two (22) stab wounds, some of them being deep.

A state trooper saw her and stopped. She told him what had happened. He radioed for emergency medical help for the mother, left her with a motorist who had stopped, and started looking for appellant. He found him about half a mile away, near the mother’s parked car. Inside the parked car were the two (2) girls. His two year old daughter, Christi, had numerous stab wounds, one stab being so vicious that it had broken a bone in her chest.

Shortly thereafter, an ambulance driven by Scott Brakefield, arrived. Brakefield and the other emergency medical technician placed the mother, Mary Nelson, and the two-year-old, Christi, in the back of the ambulance and put the eight-year-old niece, Kelly, in the front passenger’s seat. Brakefield started driving the ambulance to the nearest hospital which was in Hot Springs.

At trial, Brakefield testified that Kelly was talking nervously and told him that she was scared. She was rambling and said, “He was stabbing her.” Brakefield asked, “Who was stabbing?” and Kelly replied, “Dennis.” Brakefield also stated that Kelly told him, “Dennis told Mary he was going to kill her.” Brakefield was at the scene for a total of twelve (12) minutes and the ambulance ride took forty-two (42) minutes.

Appellant objected to this testimony on the ground of hearsay and, more specifically, that the excited utterance exception did not apply because too much time had elapsed between the startling event and the girl’s statements. On appeal, Russell argues; (1) that the girl’s statements did not come within the excited utterance exception and (2) that there was no evidence that the girl possessed sufficient intelligence to render her statements reliable.

As for his first argument, A.R.E. Rule 803(2) provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * *
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The following are requirements for admissibility of hearsay under the excited utterance exception:

(a) Nature of the occasion. There must be some occurrence, startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting. . . . [I]n practically all of the instances — involving statements after corporal injury by violence — such conditions are in fact present, and this requirement is fulfilled. . . .
(b) Time of the utterance. The utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. This limitation is in practice the subject of most of the rulings.
It is to be observed that the statements need not be strictly contemporaneous with the exciting cause; they may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and to be dissipated. . . .
Furthermore, there can be no definite and fixed limit of time. Each case must depend upon its own circumstances: . . .
(c) Subject of the utterance. The utterance must relate to the circumstances of the occurrence preceding it. . . . (Emphasis in the original.)

6 J. H. Wigmore, Evidence § 1750 (Chadbourn rev. 1976)

Upon the ordinary principal applicable to all testimonial evidence, and therefore to hearsay statements offered under these exceptions, the declarant must appear to have had an opportunity to observe personally the matter of which he speaks. . . . (Emphasis in the original. Citations omitted.)

Id. at § 1751.

Here, the declarant was an eight-year-old girl who witnessed her uncle commit a violent attack upon her grandmother and two-year-old cousin. By the very nature of the occurrence, it was a startling event for her. Less than one hour elapsed between the event and Kelly’s statements to the ambulance driver. Her statements were made under the influence of the excitement of the startling event. She made them while riding in the ambulance with her profusely bleeding and seriously injured grandmother and cousin. Her speech was rambling, and she said she was still scared.The statements were obviously related to the preceding startling event. Thus, the trial court properly admitted Kelly’s statements under the hearsay exception for excited utterances.

In the second part of his argument on the excited utterance, appellant contends that the trial court erred in admitting the statement without a showing that Kelly was competent to testify. No such showing was necessary, as we explained in Bryan v. State, 288 Ark. 125, 702 S.W.2d 785 (1986). The reason is that, although the hearsay statement lacks the safeguard of being made under oath, the probability of truth in an excited utterance supplies a reliable safeguard.

Appellant next argues that the trial court erred in admitting the opinion testimony of a second emergency medical technician, Reith Stanley, concerning the instrument which caused Mary Nelson’s wounds. Stanley attended Nelson in the ambulance. During the State’s direct examination of him, he stated that he had previously observed wounds made by screwdrivers. He testified that Nelson’s wounds were square-shaped. He stated that it was his opinion that her wounds were caused by a square-headed or a Phillips head screwdriver. Appellant argues that Stanley should not have been allowed to testify concerning the cause of the wounds because this is a matter which requires specialized training and expertise.

A.R.E. Rule 701 states:

Opinion testimony by lay witnesses. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Lay witnesses are permitted to give their opinion as to the cause of death or other physical condition if the witness is qualified by experience and observation with regard to the subject matter. McAway v. Holland, 266 Ark. 878, 599 S.W.2d 387 (Ark. App. 1979).

We have written that the requirements of Rule 701 are as follows:

[I]n order to satisfy the first requirement of Rule 701, the testimony must initially pass the personal knowledge test of A.R.E. Rule 602. But, even if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connections test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’” Id. at 701-11. If however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. Id. at 701-12, -13.

Carton v. Missouri Pac. R.R., 303 Ark. 568, 571-2, 798 S.W.2d 674, 675 (1990) (quoting 3 Weinstein’s Evidence ¶ 701 [02], at 701-11, -12, -13 (1987)).

Here, Stanley’s testimony concerning the instrument with which Mrs. Nelson’s injuries were inflicted was based on his personal knowledge and the observation of her wounds. The opinion was one which a normal person who had previously seen puncture wounds made by screwdrivers would form. Finally, his opinion was helpful to the determination of a fact in issue, the cause of Mrs. Nelson’s wounds. The trial court did not abuse its discretion in admitting the testimony.

Russell’s final argument is that the trial court erred in not granting his motion for a mistrial based upon Nelson’s testimony that she had to assist appellant with visitation of his daughter “[b]ecause he’d made so many threats against his ex-wife—.” Nelson gave this testimony during the State’s rebuttal. Appellant objected and asked for a cautionary instruction to the jury. The trial court sustained his objection and instructed the jury to disregard the testimony. Russell later moved for a mistrial after the direct rebuttal examination was completed. The court denied this motion.

The testimony to which appellant objected followed his own direct testimony in which he testified:

And, then we proceeded to go to Mena to pick up my baby, my little girl. And, she let me off at McDonald’s because they don’t want me to know where my ex-wife lives or nothing, you know, and they’ve got all kinds of judgments and things saying I can’t go see her or nothing so she can stay hid out from me.

Russell further testified that he could see his daughter only when he was accompanied by his mother. With this testimony, Russell “opened the door” to questions concerning why he was unable to see his ex-wife and, therefore, needed assistance with visitation of his daughter. “One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible.” Berry v. State, 278 Ark. 578, 583, 647 S.W.2d 453, 457 (1983).

More importantly, it is a settled rule of law that a mistrial is an extreme and drastic remedy which should be resorted to only when there has been an error so prejudicial that justice could not be served by continuing the trial. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). The granting or denial of a motion for mistrial lies within the sound discretion of the trial judge and the exercise of that discretion should not be disturbed on appeal unless an abuse of the discretion is shown. Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979).

Considering all the evidence in this case, Nelson’s statement was not so prejudicial as to warrant a mistrial. The court acted properly in admonishing the jury to disregard her statement and continuing the trial.

Affirmed.


author: Steele Hays, Justice.

text:
    Michael Montez PORCHIA v. STATE of Arkansas
    CR 91-63
    815 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991
    [Rehearing denied October 28, 1991.]

      Thomas J. O’Hern, for appellant.

      Winston Bryant, Att’y Gen., Catherine Templeton, Ass’t Att’y Gen., for appellee.
   Steele Hays, Justice.

On the evening of April 26, 1990, Art’s Liquor Store on Asher Avenue, Little Rock, was robbed. Two clerks were murdered. Appellant, Michael Porchia, was one of five persons charged with capital murder and aggravated robbery. Appellant moved to sever his trial from the co-defendants and the motion was granted. Appellant also moved to suppress a custodial statement. Following an omnibus hearing the motion to suppress was denied and the state waived the death penalty.

Appellant was tried by a jury on December 4, 1990, and convicted of aggravated robbery, theft of property and two counts of second degree murder. The court found appellant to be a habitual offender and the jury then sentenced appellant to twenty-five years on each count of second degree murder, forty-five years for the aggravated robbery and seventeen years for the theft of property.

Appellant now brings this appeal, making two arguments for reversal; first, that the trial court erred in denying his motion to suppress the custodial statement in which he implicated himself and his co-defendants, and, second, in refusing to instruct on a lesser included offense.

I

At the suppression hearing, appellant testified he did not make the statement to police, that he could not have given any statement voluntarily or knowingly due to heavy drinking prior to the time he spoke with the police, nor did he waive his Miranda rights. On appeal appellant argues that under the facts in his case, the trial court erred in denying suppression. There is no merit to appellant’s contention.

Custodial statements are presumed to be involuntary and the state has the burden of proving otherwise. This court makes an independent review of the totality of the circumstances and will reverse only if the trial court’s finding is clearly against the preponderance of the evidence. Shaw v. State, 299 Ark. 474, 733 S.W.2d 827 (1989). The credibility of the witnesses who testify to the circumstances surrounding the defendant’s custodial statement is for the trial court to determine. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

The factors to consider for both the voluntariness of the waiver and the statement are essentially the same. They include: age, education and intelligence of the accused, length of detention, repeated or prolonged questioning, the use of mental or physical punishment and the advice or lack of advice of constitutional rights. Shaw v. State, supra.

This case resembles McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988), where the appellant had also claimed he did not voluntarily or knowingly waive his rights as he was under the influence of drugs and alcohol at the time. We cited previous cases where we have stated that the fact that a defendant may have been under the influence of drugs or alcohol at the time of his statement will not of itself invalidate his confession, but will only go to the weight accorded it. And, whether an accused had sufficient capacity to waive his constitutional rights or was too incapacitated due to drugs or alcohol to make an intelligent waiver has remained a question of fact to be resolved by the trial court. See McDougald v. State, supra.

The essence of appellant’s proof, which included the testimony of a girlfriend and uncle of the appellant, was that appellant had consumed large quantities of alcohol and had smoked marijuana on the day he surrendered to police. Appellant’s witnesses testified to his drinking that day and further stated that his speech was affected, he smelled of alcohol and needed help to stand up. Appellant testified he was intoxicated at the time he surrendered himself to police, that he was threatened with the death penalty by officers and that he never gave a statement to the police. He also denied being told he had a right to have an attorney present and denied the initials on the rights waiver form were his.

The state presented evidence from Detective Vince Mayer and Sergeant Carl Beadle. Both testified that appellant was advised of his Miranda rights, that he waived them and made a statement incriminating himself. Both stated that appellant did not smell of alcohol or otherwise exhibit signs of intoxication. Mayer testified that neither he nor Sergeant Beadle offered any promises or inducements to obtain a statement, nor did they coerce or threaten appellant in any way. He further stated that appellant signed the statement three times in his presence, and that in his opinion appellant made the statement voluntarily. Beadle testified that in his opinion, appellant understood his rights.

Appellant told the officers he was seventeen years old, had attended school through the eleventh grade, and had a G.E.D. The officers testified that they did not see any sign that appellant had been drinking when he was advised of his rights and chose to give his statement.

The basic points of any contention in this case are matters of credibility which are left to the trial court. We cannot say under the totality of the circumstances that the findings were against the preponderance of the evidence.

II

As his second point for reversal appellant argues the trial court erred in refusing to instruct the jury on a lesser included offense. Appellant contends the jury was instructed on capital felony murder, first degree felony murder and second degree murder as well as aggravated robbery, theft of property and accomplice liability. Appellant also requested two instructions on manslaughter based on Ark. Code Ann. §§ 5-10-104(a)(3) and (4) (1987), but the court refused and appellant maintains this was error.

We decline to reach this question on the basis of Ark. Sup. Ct. R. 9. While appellant did abstract the two instructions he requested, none of the other instructions given were abstracted, and we have no way of knowing from the abstract what instructions were actually given. Obviously, when addressing a lesser included offense argument by appellant we must have the other instructions before us in order to make a proper review of the trial court’s action.

It is fundamental that the record on appeal is confined to that which is abstracted. Harris v. State, 303 Ark. 233, 795 S.W.2d 55 (1990). A failure to abstract a critical document precludes the court from considering issues concerning it. Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1991). Nor can the record be contradicted or supplemented by statements made in the briefs. Bice v. Hartford Acc. & Indem. Co., 300 Ark. 122, 777 S.W.2d 213 (1989); Bridger v. State, 264 Ark. 789, 575 S.W.2d 155 (1979).

Affirmed.


text:
    Keith COBBINS v. STATE of Arkansas
    CR 91-66
    816 S.W.2d 161
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      John H. Bradley, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This is an interlocutory appeal of a decision not to transfer two charges of rape and aggravated robbery from Circuit Court to Juvenile Court. The appellant, Keith Cobbins, was charged with burglary, aggravated robbery, rape, and aggravated assault. At the time of the incident, Cobbins was fifteen years old. The burglary and aggravated assault charges were transferred to Juvenile Court pursuant to Ark. Code Ann. § 9-27-318 (Repl. 1991). The Circuit Court retained the rape and aggravated robbery charges.

Cobbins raises two issues. He contends the trial judge should have transferred the rape and aggravated robbery charges to Juvenile Court because it had not been shown by clear and convincing evidence, required by § 9-27-318(f), that he should be tried in Circuit Court as an adult on these charges. He also asserts the Circuit Court lost jurisdiction because of failure to hold the hearing on the transfer within ninety days after the charges were filed as required by § 9-27-318(b)(2).

The Trial Court was correct in finding clear and convincing evidence that Cobbins should be tried as an adult on the aggravated robbery and rape charges. This finding is based on the violence involved in the commission of the offenses, the prior offenses committed by Cobbins, and the unsuccessfulness of past rehabilitation efforts. Nor can we find convincing authority leading us to conclude that the ninety-day hearing requirement is jurisdictional. The decision of the Trial Court will be affirmed.

During the motion to transfer hearing, the victim, Dorothy Brown, testified that upon returning home from work on October 5,1989, she found her door open. She stated that after she entered her home, Cobbins hit her in the head with a claw hammer three times and then raped her. Brown testified that Cobbins told her if she did not submit to him, he would kill her and her son James. Brown stated that after the rape Cobbins took two hundred dollars from her. Brown was later treated at Osceola Hospital.

Keith Cobbins was arrested based on information received by investigating officers from a friend of Dorothy Brown’s son. Beginning October 5, 1989, Cobbins was held in custody in the Mississippi County Detention Center, as he was unable to post bond. A hearing on transferring the case from Circuit Court to Juvenile Court was demanded on August 9,1990, well beyond the ninety-day period.

Keith Cobbins was no stranger to the juvenile justice system. Evidence presented at the transfer hearing indicated that Cob-bins had previously been sentenced to the Youth Services Facility four times for various offenses. On July 31, 1986, he was sent to the Facility for committing two counts of burglary and one count of criminal mischief. He was again sent to the Facility on June 24, 1987, for theft of property and unauthorized use of a vehicle. The third offense, for which he was sentenced on June 16, 1988, was theft of property. The last incident occurred on February 2,1989, when Cobbins violated his probation and committed harassment and assault.

Ray Rigsby, a Mississippi County juvenile officer, testified that to his knowledge there had been no success in rehabilitating Cobbins at the Facility and that he had not noticed any changes in Cobbins’ behavior. On every occasion Cobbins had gotten into trouble after leaving the Facility. The State also presented evidence from the Child Study Center at the University of Arkansas for Medical Sciences indicating that Cobbins’ behavior pattern was aggressive, dangerous, and disruptive. He had not been controllable in either the home or the youth services environment. A report by a staff psychologist at the Arkansas Department of Human Services indicated that Cobbins required placement in an institutional environment which would provide protection for himself and others. The report added that Cobbins was prone to recidivism. A report from the Youth Services Center did state that Cobbins’ behavior had improved since the incident, but he continued to be assaultive and an absent without leave risk.

1. Clear and convincing evidence

Section 9-27-318(e) sets out the guidelines for determining when an offense should be transfered from Circuit to Juvenile Court. It provides that:

in making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors: (1) the seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Subsection (f) requires a “finding by clear and convincing evidence that a juvenile should be tried as an adult.”

In the supplemental opinion on denial of rehearing in Walker v. State, 304 Ark. 402A, 805 S.W.2d 80 (1991), we held that the standard of review in juvenile transfer cases is whether the trial judge’s finding is clearly against the preponderance of the evidence. Findings of fact by a Trial Court will not be set aside unless clearly erroneous. Ark. R. Civ. P. 52(a) (1990). The Trial Court is not required to give every factor mentioned in the statute equal weight, and proof on every factor need not be introduced in order to warrant keeping a case in Circuit Court. Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991); Walker v. State, supra.

“Clear and convincing evidence” has been defined by this Court as “that degree of proof which will produce in the trier of fact a firm conviction as to the allegation sought to be established.” Kelly v. Kelly, 264Ark. 865, 870, 575 S.W.2d 672, 676 (1979). In the case now before us, the Trial Court found clear and convincing evidence on many of the factors enumerated in the statute. We cannot say the Circuit Court’s finding was clearly against the preponderance of the evidence.

2. The ninety-day requirement

The hearing on the motion to transfer was not held until almost fourteen months after the charges were filed. For nine months Cobbins was held in the Mississippi County Detention Center, unable to post bonds.

Section 9-27-318(b)(2) states that “the circuit court shall hold a hearing within ninety days of the filing of charges to determine whether to retain jurisdiction of the juvenile in Circuit Court.” Cobbins would have us hold that the Circuit Court loses jurisdiction of the charges upon failing to hold the transfer hearing within the ninety-day period.

Although the language of the statute is mandatory, it is silent on the effect of noncompliance. In making the decision on this issue, the Trial Court analogized to parole revocation hearings. A statute requires that a hearing be conducted on parole revocation within a reasonable time, not to exceed sixty days after the defendant’s arrest. Ark. Code Ann. § 5-4-301(b)(2) (1987). In Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), we held that this requirement was not intended by the General Assembly to be jurisdictional. The sixty-day limitation represented the period beyond which the hearing could not be delayed if the defendant objected. Failure to demand a hearing within the sixty-day period waived the right to insist on a timely hearing.

Here, the Trial Court relied on the Haskins case and determined that the ninety-day hearing requirement was not intended to be jurisdictional. We consider the analogy to be apt. Although the statute makes the ninety-day requirement mandatory, nothing in the statute indicates it is jurisdictional. Another factor to be considered is that Cobbins was represented by counsel during the ninety-day period. Motions were filed by counsel only twenty-four days after Cobbins was charged; however, no motion to transfer was made during the ninety-day period. Further analogy to the Haskins case leads us to the conclusion that counsel’s failure to demand a transfer hearing until well beyond the ninety-day period waived the right to insist on a timely hearing.

Affirmed.


text:
    Curtis Ray EASTER v. STATE of Arkansas
    CR 91-88
    815 S.W.2d 924
    Supreme Court of Arkansas
    Opinion delivered September 23, 1991

      J.G. Molleston, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of burglary, battery, and attempted rape and sentenced to twenty years, thirty years, and forty years imprisonment respectively. The judge ordered that the burglary and battery sentences run consecutively to each other and an outstanding sentence, leaving the appellant with a total of fifty years imprisonment. On appeal, the appellant challenges only his attempted rape conviction. In his appeal, the appellant raises the following two points of error: 1) the trial court erred in allowing the prosecutor’s redirect examination of the victim; and 2) there is insufficient evidence to support the appellant’s conviction for attempted rape. We find no merit in these arguments, and therefore affirm.

We address sufficiency of the evidence issues first on appeal. To preserve the issue of sufficiency of the evidence for appeal at a trial, the defendant must move for a directed verdict at the conclusion of the prosecution’s evidence and again at the close of the case. A.R.Cr.P. Rule 36.21(b). This court has strictly followed the requirements of Rule 36.21(b) and has refused to address sufficiency of the evidence questions unless both directed verdict motions were made. See Andrews v. State, 305 Ark. 262, 807 S.W.2d 917 (1991); Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991).

In this case, the appellant made a motion for a directed verdict on the attempted rape charge at the close of the state’s evidence, but failed to do so at the close of the case. But, two days after his conviction, the appellant filed a motion for a directed verdict or a judgment non-obstante verdicto on the attempted rape conviction. Since the appellant’s motion was made two days after the jury verdict, it was in fact a motion for a new trial. In Weaver, 305 Ark. 180, 806 S.W.2d 615, we refused to recognize the appellant’s motion for a new trial as meeting the requirement under Rule 36.21(b) for a second directed verdict motion at the end of the case. Thus, we must decline to address the appellant’s sufficiency of the evidence issue.

Appellant’s second issue concerns the state’s redirect examination of the eighty-eight-year-old victim. During the direct examination at the trial, the victim was very reluctant to describe the details of the attempted rape in court. However, the victim did recount that, after the appellant pushed his way into her house and threatened her with a pair of scissors, he threw her on the floor in the living room and tried to rape her. The victim stated that she kept her legs so tightly crossed that the appellant could not get them apart. Further, she testified that the appellant had his pants unbuttoned in the front and that he unbuttoned her blouse and fondled her breasts. Additional testimony showed that the appellant then forced the victim into the bedroom where he beat her with a plastic box lid and vacuum attachment. The victim passed out and when she came to she was naked and underneath the bed. The prosecutor asked the victim if the appellant did anything else to her clothing before she was forced into the bedroom, and the victim replied that she could not remember.

On cross-examination, appellant’s attorney did not ask any questions about the victim’s clothing or details of the attack. Instead, he had the victim admit that the appellant was in control of the situation, and if he wanted to do something, he probably could have done it. On redirect, the prosecutor again started asking the victim about what happened to her clothing before she was taken into the bedroom, and the appellant’s attorney objected, saying that the state was just rehashing testimony on direct and that the questions were completely outside the scope of his cross-examination. The prosecutor replied that there was a point that needed clarifying. The trial judge, expressly taking into account the age of the victim, allowed the prosecutor to quickly see if he could clarify the point. On redirect, the victim added that the appellant pulled down her pants in the living room.

This court has recognized that the scope and extent of redirect examination lie within the sound judicial discretion of the trial judge. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); see also A.R.E. Rule 611. In this matter, this court has recognized that the court’s discretion is very liberal. Allen v. State, 260 Ark. 466, 541 S.W.2d 675 (1976). The basic function of redirect examination is to enable the witness to explain and clarify any relevant matters in his or her testimony which have been weakened, confused or obscured by cross-examination and to rebut the discrediting effect of any damaging statements or admissions or to correct any wrong impression that may have been created. See Id., Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). In addition, a judge under his discretionary power may permit the party to bring out on redirect examination some matter which is relevant to his case or defense and which through oversight he has failed to elicit on direct. E. Cleary, McCormick on Evidence § 32, (3d ed. 1984).

It is clear from the record that the eighty-eight-year-old victim was understandably reluctant to discuss the details of the attempted rape on direct examination, and the prosecutor struggled to get the evidence of the attempted rape before the jury. After the cross-examination of the victim by appellant’s attorney, the impression was left with the jury that if the appellant had been intending to rape the elderly victim as charged, he could have easily done so. Such an impression necessitated that the victim give more details of the impermissible and unlawful actions appellant imposed upon her. In addition, there was some confusion created by the victim’s statements as to how the appellant could have attempted to rape the victim when her pants were still on. In sum, the trial judge did not abuse his discretion in allowing the prosecutor’s redirect.

For the reasons stated above, we affirm.