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

text:
    Clay Anthony FORD v. STATE of Arkansas
    CR 81-104
    633 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982
    [Rehearing denied June 7, 1982.]

      Ken Cook, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of the crime of capital felony murder in Mississippi County Circuit Court, on a change of venue from Crittenden County. Punishment was set at death by electrocution. Appellant argues twelve points for reversal, which will be set out and discussed separately. However, we do not find reversible error in any of them and affirm the action of the trial court.

The facts in this case reveal that Sergeant Glen Bailey of the Arkansas State Police encountered the appellant driving at a highly excessive rate of speed. The officer crossed over the highway median in order to give chase and radioed for assistance. Appellant was stopped at a blockade on the exit ramp from Interstate Highway 55 into the city of Marion, Arkansas. Two police cars were in front of him and he stopped a short distance before reaching the first car. A uniformed trooper started walking toward the appellant who began to back up but discovered the original officer had blocked him in from behind and was approaching him on foot. Appellant stopped his car, got out and fired point blank into Sergeant Bailey’s chest critically wounding him. The officer died soon thereafter as a result of this wound. The appellant attempted to escape on foot but was apprehended a short time later in a nearby house. At the scene the officers determined that the vehicle appellant had been driving was stolen. They found a number of stolen articles in the vehicle. They further learned that appellant was an escapee from the Tennessee Department of Correction where he had been serving time for a number of felony convictions.

The incident was given wide publicity resulting in the court granting appellant’s motion for a change of venue from Crittenden County to Mississippi County.

Over the objections of the appellant the fact that he was an escapee and serving time on the other sentences was allowed to be introduced. Also, it was shown that the automobile was stolen and that various items found in the car belonged to other people. The owners were allowed to identify their property during the course of the trial. The information was also challenged and the more standard defenses normally presented in capital felony trials were argued.

We will separately discuss the arguments on appeal.

I.

THE TRIAL COURT ERRED IN DENYING APPEL, LANT’S MOTION TO QUASH THE INFORMATION.

The motion to strike the indictment was based upon the Eighth Amendment prohibiting cruel and unusual punishment. This argument has been presented to the court in many cases, and we have consistently ruled that our death penalty statute is constitutional. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979); Ruiz and Van Denton v. State, 265 Ark. 875, 582 S.W.2d 915 (1979); Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978); and Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Appellant contended that ’ the overlapping provisions of Ark. Stat. Ann. § 41-1501 (Repl. 1977) with Ark. Stat. Ann. §§ 41-1502 and 41-1503 (Repl. 1977) were arbitrary and discriminatory. We have also held constitutional these particular statute sections in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), and in Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980), where it was stated "... we find no constitutional infirmity in the overlapping of the two sections, because there is no impermissible uncertainty in the definition of the offenses.”

II.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION CHALLENGING THE DEATH QUALIFICATION VOIR DIRE OF PROSPECTIVE JURORS.

The “death qualified” jury was approved by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510 (1968). Since Witherspoon we have approved this procedure in many cases. See Ruiz and Van Denton v. State, supra; Collins v. State, supra; and Westbrook v. State, supra.

III.

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S MOTION TO QUASH THE JURY PANEL.

The jury panel was selected by the jury wheel through a random selection process. The selection was by computer process from the list of registered voters of a voting district within Mississippi County. Additionally, prior to this trial, 300 names were again selected using the same process of jury wheel random selection. The court requested that 150 of the j urors report on the first day. Only 54 appeared. Five or six of these were black. The trial court excused a considerable number of jurors prior to the trial date. Eighteen were excused because they were 65 or older and did not wish to serve; 16 stated they were in bad health; and 12 others listed various hardships which caused the court to excuse them prior to the trial date. Several had moved from the district and a few of them were dead. There was nothing about this process which indicated an intent not to have a fair cross-section of the population of the district represented by the panel. Appellant’s attorney made the statement that the state had a habit of excusing black jurors peremptorily. The panel as selected was all white. Although this could give the impression of discrimination, a closer examination reveals the selection was not in violation of the rule set out in Swain v. Alabama, 380 U.S. 202 (1965), and followed by us in Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973). Appellant did not use the process utilized in Waters & Adams v. State, 271 Ark. 33, 607 S.W.2d 336 (1980), wherein we held the system used therein was discriminatory. There is no proof in the record that there was a conscious effort to exclude black jurors. Statistics concerning the number of blacks in Mississippi county were not presented until the appeal brief was filed. The random selection process used in this case does not guarantee that a proportionate cross-section of the community will serve on the jury nor is there a guarantee that any proportionate number of appellant’s race will be seated on the jury. Swain v. Alabama, supra; and Williams v. State, supra. If it had been shown that it was the practice of the state to automatically exclude black jurors the result may well have been different, however there was no proof as to this point.

IV.

THE TRIAL COURT ERRED BY REQUIRING DEFENDANT TO VOIR DIRE THE PROSPECTIVE JURORS BEFORE THE STATE WAS REQUIRED TO ACCEPT OR STRIKE.

Appellant sought to have the prospective jurors voir dired separately. However, the court found that there was not enough room in the courthouse to utilize this process. Although appellant thought the library in the courthouse would be adequate for this purpose, the court exercised its discretion in rejecting this suggestion.

In Clark v. State, 258 Ark. 490, 527 S.W.2d 619 (1975), we held it reversible error to require a defendant to examine all of the jurors drawn from the panel each time before the state was required to either accept or reject a juror, it being felt that this process would afford an unfair advantage to the state. However, it appears that the appellant waived the requirements of Ark. Stat. Ann. § 43-1903 (Repl. 1977) by making the suggestion that this process would be satisfactory. It may be noted that this process was utilized at the request of defense counsel after consultation with appellant. We do not overlook the fact that appellant stated he still did not waive his objection to questioning the jurors other than individually. However, the agreement to use this method was made only after consulting with the appellant, and we do not find it to be reversible error. Also, only ten of the twelve authorized peremptory challenges were exercised by appellant. See Crutchfield v. State, 251 Ark. 137, 471 S.W.2d 361 (1971); and Stroud v. State, 169 Ark. 348, 275 S.W. 669 (1925).

V.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO PROHIBIT JURY DISPERSAL.

It is hard to understand why this argument is presented when the appellant admits that such matters were within the discretion of the trial court. Although it may be preferable to sequester the jury, it is a matter upon which the trial court must decide. The burden of proof to show that the appellant did not receive an impartial trial because of failure to sequester the jury is upon the appellant. This burden was not met. Ark. Stat. Ann. § 43-2137 (Repl. 1979); Nail v. State, 231 Ark. 70, 328 S.W.2d 836 (1959); Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977).

VI.

THE TRIAL COURT ERRED BY ALLOWING THE MENTION OF APPELLANT’S PRIOR FELONY CONVICTIONS DURING THE STATE’S OPENING STATEMENT.

The statement made by the state was:

Officer Brackin further continuing his investigation determined that at the time this occurred the defendant, Clay Anthony Ford, was wanted for an escape from the Memphis Community Service Center where he was serving a sentence of — completing a sentence of three years on convictions of burglary in the third degree, grand larceny and burglary in the second degree.

The court had taken into consideration the appellant’s motion in limine prior to the commencement of the trial and had ruled that the state would be permitted in its case in chief to show that appellant was a prior convicted felon in regard to those convictions which he was serving at the time of his escape. Additionally, the court later held that these convictions were allowable for the purpose of showing intent. The court had made it clear that the motion in limine was granted as to any other convictions which the appellant may have had. Since' the proof showed that the appellant was serving time for these particular convictions prior to his escape, it is proper to refer to them in order to show motive or intent pursuant to Arkansas Uniform Rules of Evidence, Rule 404 (b). Relevancy of evidence is within the trial court’s discretion and absent a .showing of abuse of that discretion its decision will be affirmed. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). The admissibility of evidence must necessarily be decided on a case by case basis. Intent can seldom, if ever, be shown by direct evidence and may be proven only from circumstantial evidence. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979). We do not interpret these offenses to be excluded under the theory set forth in Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). We still adhere to the principle that prior convictions cannot be introduced for the purpose of showing that the accused was a bad person. We hold to the rule that evidence of other crimes may not be introduced merely for the purpose of showing the accused to be a man of bad character likely to commit the crime charged. Umbaugh v. Hutto, 486 F.2d 904, cert. denied 94 S. Ct. (1978), 416 U.S. 690 (8th Cir. Ark. 1973). Since evidence of appellant’s other crimes was introduced for a proper purpose, there was no prejudicial error in allowing this material to be introduced.

VII.

THE TRIAL COURT ERRED WHEN IT COMMENTED UPON THE EVIDENCE.

At the beginning of the trial the court stated to the jury, “Ladies and gentlemen, I feel that a word of caution might be in order at this time in regard to that type and nature of evidence which has been admitted.” “ . . . any prior convictions or escape from the State of Tennessee, of course, has no bearing upon the question of whether or not this defendant did in truth and fact shoot and kill Sgt. Glen Bailey.” Appellant objected to the trial court’s comment and at his request the trial court struck its previous remark. Even if the words of caution uttered by the judge had been improper, it is apparent that the court’s prompt striking of the statement cured any impropriety. We do not find this to be a violation of Art. 7 § 23 of the Constitution of Arkansas prohibiting judges from commenting upon the evidence. There is no doubt that a trial judge is in a position of great stature in the eyes of the jury and should be extremely cautious in both conversation and candor throughout the course of a trial. Without having any intention whatsoever and perhaps unconsciously the trial court could prejudice the right of an accused by making comments upon the evidence or appearing to act in a manner favoring one side or the other. However, we do not find that such is the case here.

VIII.

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED A SERIES OF STATE’S WITNESSES TO IDENTIFY STOLEN PROPERTY TAKEN IN THE COMMISSION OF OTHER CRIMES UNRELATED TO THIS CHARGE AND FOR WHICH THE APPELLANT HAD NOT BEEN CHARGED.

Exercising its discretion, the trial court, over the appellant’s objection, permitted evidence of stolen credit cards and other articles found at the scene of the slaying, including the vehicle, to be introduced as evidence. As we stated earlier, Rule 404 (b), Arkansas Uniform Rules of Evidence, allows the judge to admit evidence that goes to show motive or intent. It is obvious the appellant would not have wanted to be apprehended with stolen articles in his possession. Therefore, we cannot say the trial court abused its discretion in allowing the introduction of this evidence for the purpose of shedding light upon the intent of the accused. Perhaps it is unfortunate that as a side effect of the introduction of this evidence the jury could imply that appellant had committed these other crimes. However, the trial court obviously ruled that its probative value outweighed the danger of unfair prejudice. Martin v. State, 258 Ark. 529, 527 S.W.2d 903 (1975); and Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275 (1976).

IX.

THE EVIDENCE REGARDING PREMEDITATION AND DELIBERATION WAS INSUFFICIENT AS A MATTER OF LAW AND THE TRIAL COURT ERRED BY DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT.

The jury was properly instructed by the court that in order to find the appellant guilty of capital felony murder they must find that he acted with a premeditated and deliberated purpose; that he had a conscious object to cause the death; that he formed that intention before acting; and, that he must have weighed in his mind the consequences of a course of conduct as distinguished from acting upon sudden impulse without the exercise of reasoning power. The matter of premeditation and deliberation, absent a confession, can only be proven by circumstantial evidence. This state of mind may be formed on the spur of a moment. The fact that appellant alighted from his car with his pistol in his hand and fired point blank into the approaching officer’s chest is rather strong evidence of his intent. We stated in Westbrook v. State, supra, “premeditation and deliberation are not required to exist for any particular length of time and may be formed almost on the spur of a moment.”

X.

THAT DEFENDANT WAS PREJUDICED BY THE STATE’S IMPROPER CLOSING ARGUMENT AND THE TRIAL COURT’S DENIAL OF DEFENDANT’S MOTION FOR A MISTRIAL.

During the state’s closing arguments reference was made concerning the motive for killing the officer and in that connection the state made the statement that appellant was trying to avoid apprehension for “other crimes, the escape, the burglary, the theft and possession of stolen property.” Appellant timely objected to the mention of these crimes but the court denied his motion for a mistrial. The court did instruct the state not to dwell at length upon this aspect of the case. All of these items had been mentioned both at the beginning of the case and further along in the proof in chief. Therefore, they were not prejudicial as mentioned in the closing argument. Closing argument should be confined to the questions in issue, the evidence introduced and all reasonable inferences and deductions that may be drawn therefrom. Brewer v. State, 271 Ark. 254, 608 S.W.2d 363 (1980). We have previously stated that these particular crimes were admissible under Rule 404 (b). Therefore, it was not error to mention them in the closing argument.

Appellant contends that the trial court abused its discretion when, after admitting that the court had not heard a certain portion of the argument, the court refused to listen to the reporter’s transcript in order to determine what had occurred. The court also denied a motion for a mistrial at this point. A review of the transcript shows that the judge inquired as to what was said and it turned out to be the remark of the prosecuting attorney relating to the other crimes. Neither side disputed that that was the portion of the proceeding which the court did not hear. Consequently it was not prejudicial error to refuse to listen to the tape.

XI.

THE TRIAL COURT ERRED BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF APPELLANT’S PRIOR CONVICTIONS DURING THE PENALTY PHASE OF THE TRIAL.

The prior convictions admitted during the penalty phase were convictions for larceny, burglary and receiving and concealing stolen property. These are not the same crimes that were mentioned earlier but are convictions for which the appellant had been paroled or released. We agree with the appellant that as stated in Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), the trial court should not submit to a jury a defendant’s conviction for burglary during the penalty phase of a trial. We held that in order for an offense to be admissible as an aggravating circumstance pursuant to Ark. Stat. Ann. § 41-1303 (Repl. 1977) the felony committed must include the use or threat of violence to another person, or the creation of substantial risk of death or serious physical injury to another person. Sometimes a burglary could include this risk. We still adhere to the rule. It was error for the court to allow evidence of prior crimes which did not involve the use or threat of violence or create substantial risk of death or serious physical injury to another person as an aggravating circumstance. Neither were these prior felonies proper for the purpose of anticipating a showing of lack of prior convictions as a mitigating circumstance. We faced a similar situation in the case of Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), wherein we stated:

We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. If there is any evidence of the aggravating or mitigating circumstances, however slight, the matter should be submitted to the jury. Of course, counsel may object to the determination of the trial court the same as they may object to any other form of verdict.

Therefore, it was the duty of the trial court to omit the mitigating circumstance relating to appellant’s lack of prior criminal history. The jury could not have found it to exist and the appellant would not have these prior felonies presented before the jury. The fact that it was shown that appellant was an escapee from the Tennessee prison where he was serving time for felony convictions had already foreclosed the possibility of the jury finding no significant history of prior criminal activity. However, in the present case the jury did not find appellant had committed the aggravating circumstance of having a prior felony involving the use of or threat of violence to another person or involving the creation of substantial risk of death or serious physical injury to another person. Neither did the jury find the mitigating circumstance that appellant had no significant history of prior criminal activity. Under the circumstances of this case we do not find the error to have been prejudicial.

XII.

THE TRIAL COURT ERRED BY DENYING WITHOUT A HEARING APPELLANT’S MOTION FOR NEW TRIAL AND SUBPOENA DUCES TECUM AS A RESULT OF MEDIA COVERAGE OF TRIAL PROCEEDINGS IN THE COURTROOM WITHOUT CONSENT OF APPELLANT AND APPELLANT’S COUNSEL.

Appellant filed a motion for new trial based on a number of grounds. Most of the grounds were matters which were previously raised and ruled upon during the course of the trial. One other ground emphasized was that the trial court allowed TV and media coverage at the sentencing stage of the trial without the consent of appellant or appellant’s counsel. In reviewing the record it is unclear how much media coverage this trial was given. Appellant’s objection was made at the sentencing phase of the trial and thus it is with that point which we deal.

The court, after the case had been submitted to the jury and a verdict returned fixing appellant’s penalty at death by electrocution, asked the appellant, “Do you have any legal cause to show at this time why sentence should not be passed?” At this point counsel for appellant requested that the court be closed “. . . insofar as the press is concerned.” The trial court denied the request. In the case of Shiras and Arkansas Gazette Co. v. Britt, 267 Ark. 97, 589 S.W.2d 18 (1979), we held that public trials are guaranteed by law, therefore the request that the court be closed to the press was properly denied. However, assuming that the appellant’s counsel was referring to TV coverage, the record does not reveal the extent to which the proceeding was videotaped or covered by the television media. Canon 3 (A) (7) of the Code of Judicial Conduct prevents cameras in the courtroom without the consent of the accused. See 271 Ark. 358 (1980). Our rule has been somewhat relaxed since the date of this trial. The rule was not placed into effect to be ignored by the courts. It is possible that the rights of an accused could be prejudiced by intrusion by members of the media. Therefore, safeguards have been adopted by Canoh 3 (A) (7) of the Code. A willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court. Since the trial of the appellant had been completed and the only thing left to do was to sentence him and only one sentence was to be imposed, we cannot hold that there was any prejudice to the appellant as a result of coverage by the media without prior approval.

The trial court considered appellant’s motion for a new trial and denied it on the grounds (1) that some of the matters had been previously considered and ruled upon, (2) that there was no timely objection in regard to media coverage of the trial, and (3) that appellant’s motion for new trial failed to comply with Rule 36.22 of the Ark. R. Crim. Pro. which states that a motion for new trial “ . . . should include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay.” In light of the previous discussion and considering the trial court’s reasoning, we cannot find that the trial court abused its discretion in failing to grant appellant a new trial.

XIII.

SEARCH FOR OTHER ERRORS.

In accordance with Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (f) of our rules we have reviewed the record in this case regarding all objections upon which the trial court ruled adversely to the appellant but which were not included in the brief herein. We have found no overruled objections which amount to reversible error.

We would call appellant’s attention to the fact that in a brief to this court the abstract should be done in first person and is not to be copied verbatim from the transcript. Rule 9 (d), Rules of the Supreme Court. This seems to have added to appellant’s own, as well as our difficulty in coming to a full understanding of the case; however, we have proceeded with due diligence and find that the trial court should be affirmed.

Affirmed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. The outcome of this trial was never seriously in doubt. Two eyewitnesses saw Clay Anthony Ford kill an Arkansas State Policeman in broad daylight, and the State had an abundance of other evidence which would justify any jury imposing the ultimate penalty. About all the defense could hope for in this case was to see that Ford obtained a fair trial. But the State, for some reason, had to go further and press its advantage. In my opinion it went too far. The jury was permitted to consider two items of evidence that were unnecessary, inadmissible and could only prejudice the jury.

First, it was unnecessary for the State to show what convictions Ford had that resulted in his imprisonment. These convictions were totally irrelevant to this case and inadmissible for any reason. Only the fact that he was an escapee who had been serving a sentence for a felony conviction was relevant. Evidently the trial court felt that such evidence went to motive. Weinstein defines motive as it applies in such instances as follows:

Motive has been defined as ‘supplying] the reason that nudges the will and prods the mind to indulge the criminal intent.’ Two evidentiary steps are involved. Evidence of other crimes is admitted to show that defendant has a reason for having the requisite state of mind to do the act charged, and from this mental state it is inferred that he did commit the act. Evidence of another crime has been admitted to show the likelihood of defendant having committed the charged crime because he needed money, sex, goods to sell, was filled with hostility, sought to conceal a previous crime, or to escape after its commission.
2 WEINSTEIN’S EVIDENCE par. 404[4].

In no way can it be said evidence of what crimes the convictions were for provided Ford any motive for this crime. Only the fact that he was an escapee would be relevant to motive and that was admitted.

The State was also permitted to offer other prior convictions of Ford during the sentencing stage of the trial. These convictions were offered so the defense could not say in mitigation that Ford had no prior criminal record. These convictions were in addition to those mentioned in the opening statement by the prosecuting attorney that I addressed first. This was also prejudicial error in my judgment.

These prior convictions were not admissible as an aggravating circumstance authorized by Ark. Stat. Ann. § 41-1303 (3) (Repl. 1977) because none of them involved an element of which was the use or threat of violence, the risk of death or serious injury to another. The trial judge allowed the convictions so the jury would not find as a mitigating circumstance that the defendant had no significant history of prior criminal activity. Ark. Stat. Ann. § 41-1304 (6). In my judgment this was prejudicial error because the trial judge, when he learned of this prior criminal record, simply should not have submitted that mitigating circumstance to the jury. We held in Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980) that the trial judge should omit any aggravating or mitigating circumstance that is completely unsupported by any evidence. We said:

The aggravating and mitigating circumstances to be considered by the jury in all applicable cases are set out in the statute, and are therefore not worded or tailored to fit the particular facts of the case just tried. As the statute does not indicate otherwise, the circuit judges of the state have been submitting to the jury in capital murder cases all seven of the enumerated aggravating circumstances and all six of the enumerated mitigating circumstances, regardless of the inapplicability of some of them. Ark. Stat. Ann. § 41-1303 (Repl. 1977). The practice was perhaps also bolstered by our Committee on Criminal Jury Instructions, because none of the aggravating or mitigating circumstances are bracketed in the model instruction, to indicate they might be omitted. We think it a better practice, and less confusing to the jury, for the circuit judge to omit from submission any aggravating or mitigating circumstances that are completely unsupported by any evidence, and we take this opportunity to direct the circuit judges of Arkansas to hereafter allow this alternate procedure. [Emphasis added.]

The trial judge simply should not have permitted that particular mitigating circumstance to be considered by the jury. It amounts to allowing the State to show evidence of aggravation by these prior convictions; evidence that was not admissible as an aggravating circumstance.

The majority has approved by two new methods, heretofore unknown, the injection of a defendant’s previous criminal record into his trial for a separate offense. Laymen often wonder why such evidence is excluded but lawyers and judges know very well why such evidence is traditionally excluded. Because it is their role to preserve our system of justice. In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we said:

No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.

That is exactly what the State was able to do in this case.

Ford should pay for the crime he committed, but our system cannot allow him to pay a price that is not fairly set by an impartial jury considering only relevant evidence in an atmosphere devoid of passion and prejudice.

I am also disturbed by the fact that the trial court did not comply with our rule on cameras in the courtroom. There is no evidence presented to us that the defendant was prejudiced because the trial court prohibited the defendant’s attorney from obtaining the video tapes in question. Since I would reverse for other reasons, I do not reach this issue.


source: Caselaw Access Project

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

license: Public Domain

text:
    Michael Dewayne JONES v. STATE of Arkansas
    CR 82-44
    632 S.W.2d 414
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      James Michael Hankins, for appellant.

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

Appellant was convicted of a violation of Ark. Stat. Ann. § 41-2206 (5) (i) (Repl. 1977), receiving stolen property having a value of more than $100 but less than $2500. As a habitual offender he was sentenced to 20 years in prison. For reversal, he argues there was insufficient evidence to justify a finding the property had a value in excess of $100; that the trial court should have granted his motion for a directed verdict and should have declared a mistrial. We find no error and affirm the judgment.

Around 4 p.m. on October 29, 1980, Mr. Harold Walls discovered that his home at 2627 Louisiana Street, Little Rock, had been burglarized. A number of articles were missing, including three pieces of CB equipment: a Royce Base Station, a TGAD-104 microphone and a power supply. At about 5 p.m. Officer J. E. Chandler of the Little Rock Police Department stopped a Ford station wagon on West 10th Street for an expired license tag. The vehicle was occupied by appellant and his brother. Appellant was arrested on a warrant for another charge and the station wagon was impounded. Among its contents were the three articles of CB equipment; they were inventoried and stored in the property room at the police department. Appellant was subsequently charged with theft by receiving.

At trial appellant stoutly denied knowing the equipment was in the car and relied in defense on the testimony of Christopher Pickens that Pickens had won the CB equipment earlier that day in a dice game on the corner of 29th and Cumberland. Pickens explained that he had put the articles in the station wagon after winning them but had forgotten to take them when appellant dropped him at his house. The j ury verdict resolved these disputed facts in favor of the State.

First, appellant contends the evidence was not sufficient to establish a value in excess of $100. The argument cannot be sustained. The owner testified the equipment had a total value of $240; that he had bought the items new some two years earlier, paying $149 for the Royce Base Station, which was on sale, $50 for the TGAD-104 microphone and $20 for the power supply. This evidence stands unchallenged except for the unsupported argument that CB equipment has recently depreciated. However that may be, there was no evidence except that of the owner and we find it more than sufficient to establish a value in excess of $100. Our law recognizes the original cost of property as one factor the jury may consider in determining value, if not too remote in time and relevance. Williams v. State, 252 Ark. 1289, 482 S.W.2d 810 (1972); Cowan v. State, 171 Ark. 1018, 287 S.W. 201 (1926).

Appellant next asserts the State failed to prove he had possession of the property or knew it to be stolen. We disagree. Appellant testified the articles were in a pillowcase in the back of the station wagon and he wasn’t even aware of their presence. Testimony by the State placed the articles in the front of the car on the floor board adjacent to the passenger side. Without more, neither location would seem conclusive as to possession; however, the trial court admitted as voluntary an oral statement by appellant that he had purchased the property from someone named Banks for $20 and that, we believe, provided the connection. It is not necessary that the State prove the accused had actual possession of stolen property, it is enough to prove he had constructive possession or the right to control. Parker v. State, 270 Ark. 3, 603 S.W.2d 393 (1980). Here, appellant’s claim of ownership of property recently stolen provided the necessary element of proof to sustain the charge, absent a credible explanation for its presence.

Finally, it is insisted that a mistrial should have been declared because the jury was told of another warrant for appellant’s arrest. But the argument does not stand up under scrutiny. Officer Chandler testified to having stopped the appellant for an expired license tag and stated simply, “he was subsequently arrested on a warrant and...” Appellant moved promptly for a mistrial which was denied, correctly we think, for the reason that the jury had no way of knowing what warrant the witness was referring to. It is clear from the proceedings in chambers, outside the presence of the jury, that Chandler was referring to a warrant for some offense other than the one being tried (the warrant in this case not having been issued until November 6). Appellant urges strenuously that because the trial judge commented that if subsequent testimony brought out the fact that Chandler was referring to a different offense then appellant would be entitled to a mistrial. Thus, he argues, when witnesses for the State later testified the warrant on the charge of possession of the stolen CB equipment was issued on November 6, the jury could have inferred the warrant Chandler spoke of was not the one for which appellant was being tried. The argument is untenable. The jury still did not know there were two warrants, as Chandler merely said the appellant “was subsequently arrested on a warrant,” which told the jury nothing of other warrants, even in the light of the later testimony. For all the jury could have known, the warrant Chandler spoke of was the warrant issued in this case. The fact that appellant’s motion for a mistrial was never renewed during the course of trial is an indication that the jury was never apprised by the testimony that more than one warrant existed.

The judgment on the sentence is affirmed.

Purtle, J„ dissents.

John I. Purtle, Justice,

dissenting. Appellant was convicted of theft by receiving stolen property having a value of more than $100.00. The items in question were a base CB transmitter, a microphone and power supply. The owner testified he paid $219.00 for the property several years earlier. The only evidence touching upon the value at the time of trial was a statement from the appellant or one of his friends that he paid $20.00 for the property.

Ark. Stat. Ann. § 41-2201 (11) (a) and (b) (Repl. 1977) states that the market value of property or services is to be established at the time of the offense or if the value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense should be used. The state made no effort to meet this burden of proof. It was clearly the state’s burden to show that the value of the property was in excess of $100.00. Lee v. State, 264 Ark. 384, 571 S.W.2d 603 (1978); Riley v. State, 267 Ark. 916, 593 S.W.2d 45 (Ark. App. 1979). Since the burden was upon the state to prove the present value of the property they should have at least had the owner testify as to its value. Of course, it is possible that the state knew that his testimony would be that the aggregate value was less than $100.00. The effect of the majority opinion will be that when property is stolen the only evidence needed as to value is the property’s initial purchase price, regardless of the remoteness in time of that purchase. Once again I am forced to dissent because I read our statutes as they are written. When a law has no ambiguities on its face, it is plain to me that it should be enforced as it is written. The statutes cannot be clearer in defining value and the law is clear in placing the burden on the state to prove all elements of an offense. This was simply not done in the present case.

It is also of some interest to me that the appellant was not the owner of the automobile where the property was recovered and nobody testified that the property had ever been in the physical possession of the appellant.


author: Per Curiam.

text:
    Winston M. HOLLOWAY v. STATE of Arkansas
    CR 79-186
    632 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      James DePriest, A tty., and Chris Biggs, Student Counsel, Kansas Defender Project, for petitioner.

      Steve Clark, Atty. Gen., for respondent.
   Per Curiam.

Petitioner Winston M. Holloway was convicted by a jury of two counts of rape, one count of robbery and three counts of employing a firearm in the commission of a felony. He was sentenced to life plus 116 years imprisonment in the Arkansas Department of Correction. We affirmed. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980). Petitioner has now filed a motion seeking permission to file an untimely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The motion is denied.

Rule 37.2 (c) provides in pertinent part:

A petition claiming relief under this rule must be filed . . . within three (3) years of the date of commitment, unless the ground for relief would render the judgment of conviction absolutely void.

A second year law student, who is part of the Kansas Defender Project at the University of Kansas School of Law, has attached an affidavit to the motion in which he states that the Rule 37 petition was not timely tendered because of his miscalculations. In effect, he asserts that he was acting as informal counsel to petitioner and that petitioner should not be deprived of an opportunity to present his grounds for relief under Rule 37 merely because his representation was inadequate. The law student’s advice may have been erroneous, but it does not amount to ineffective assistance of counsel within the purview of Rule 37. The student is not a licensed attorney. There is no evidence that petitioner retained the Kansas Defender Project as his counsel or that the defender project was appointed by a court to represent the petitioner. The petitioner cites no authority that the constitutional right to effective assistance of counsel attaches to postconviction proceedings. The law student’s miscalculation is therefore no different than if the miscalculation had been made by the petitioner acting pro se.

As provided in Rule 37.2 (c) supra, petitioner’s grounds for relief may be considered, however, even though the petition was not filed within three years if a ground for relief in the petition would render the judgment of conviction absolutely void. Petitioner asserts that (1) his right to due process of law was denied because he, received a more severe sentence on retrial and that his attorney was ineffective in not raising the issue on appeal; (2) his right to confront witnesses was denied when the testimony of Dr. Frueh from the petitioner’s first trial was introduced; and (3) his right to due process was denied by extensive pre-trial publicity. None of the allegations is sufficient to render the judgment of conviction void under Rule 37.2 (c). Moreover, with the exception of the claim of ineffective assistance of counsel, the grounds were ei ther raised on direct appeal or could ha ve been so raised. Rule 37 was not intended to permit the petitioner to again present questions raised on direct appeal or to permit questions which could have been raised on appeal to be presented for the first time. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980).

Judgments in criminal cases must have stability and finality. Questions exhausted according to the controlling rules of procedure cannot continue to be raised in proceeding after proceeding. Rose v. Lundy, _ U.S _, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Otherwise, judgments could never be carried into effect. See also, Hulsey v. State, supra.

Motions denied.


text:
    Odis Donnell THOMAS v. STATE of Arkansas
    632 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered May 10, 1982

      Robert B. Wellenberger, for appellant.

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

Appellant, Odis Donnell Thomas, by his attorney, has filed for a rule on the clerk.

His attorney, Robert B, Wellenberger, 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.

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


author: Richard B. Adkisson, Chief Justice.

text:
    Alphonso CLAYTON v. C. G. WAGNON
    82-28
    633 S.W.2d 19
    Supreme Court of Arkansas
    Opinion delivered May 17, 1982

      Laser, Sharp if Huckabay, P.A., for appellant.

      Brown, Compton if Prewett, by: Floyd M. Thomas, Jr., for appellee.
   Richard B. Adkisson, Chief Justice.

The Union County Circuit Court granted a motion by appellee, Wagnon, for a new trial after finding that the jury verdict for appellant, Clayton, was contrary to the preponderance of the evidence. On appeal, we affirm.

On the evening of April 17, 1980, appellee’s daughter, who was driving an MG, and appellant, who was driving a Mercury Marquis, collided at a four-way stop intersection in El Dorado. Wagnon was attempting to make a left turn when the accident occurred.

Wagnon testified that she stopped at the intersection and put on her turn signal; she saw the headlights of a car coming toward her, but since it was not very close and since she knew that the car would have to stop at the intersection, she proceeded into the intersection. She further testified that after the collision appellant admitted to her that he ran the stop sign and told her his brakes had failed.

A witness who was in a car behind Wagnon at the time of the accident testified that the MG stopped at the stop sign but that the other vehicle did not. This witness also stated that after the accident she heard appellant tell Wagnon he was sorry and that he tried his brakes but they did not work. Two other witnesses who came to the scene of the accident immediately after the collision also testified that appellant said his brakes had failed.

Appellant testified that he pulled up to the intersection and stopped. He stated that as he proceeded through the intersection, going no more than ten or 12 miles per hour, Wagnon turned left and they collided. He stated that nothing was wrong with his car, that the brakes were as good as new and that he did not tell anyone that his brakes had failed.

The policeman who investigated the accident testified that appellant said nothing to him about his brakes failing or about any other malfunction of his vehicle. He also testified that to his knowledge there were no eyewitnesses to the accident other than the drivers.

The trial judge, in acting on a motion for a new trial challenging the sufficiency of the evidence, is required by ARCP Rule 59 (a) (6), Ark. Stat. Ann., Vol. BA (Repl. 1979) to set aside the jury verdict if it is against the preponderance of the evidence. However, we are amending this rule, prospectively, by per curiam order of this date to set out the more stringent rule which favors the jury verdict unless it is found to be clearly against the preponderance of the evidence. We adopt the view that the trial court has some discretion in setting aside a jury verdict, but not the broad discretion that has been heretofore recognized. The trial court is not to substitute its view of the evidence for that of the jury’s.

The trial court is vested with discretion in acting on such a motion because the trial judge’s opportunities for passing upon the weight of the evidence are superior to those of this Court. On appeal, the trial court will not be reversed absent an abuse of discretion. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Freeman v. Morrilton Water Co., 274 Ark. 419, 625 S.W.2d 492 (1981). After considering the evidence in this case, we are unable to say, under our current Rule 59 (a) (6), that the trial judge exercised his discretion improvidently by granting a new trial.

Affirmed.


author: George Rose Smith, Justice.

text:
    John H. KELLENSWORTH, Jr. v. STATE of Arkansas
    CR 81-125
    633 S.W.2d 21
    Supreme Court of Arkansas
    Opinion delivered May 17, 1982

      L. Gene Worsham and Beth Gladden Coulson, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Kellensworth was found guilty of three felonies committed during a single criminal episode on June 16, 1979. The jury fixed the punishment at a 50-year term and a $10,000 fine for rape, a 5-year term for aggravated robbery, and a 5-year term for burglary. Four points for reversal are presented.

It is first argued that the court below had no jurisdiction to try the case, because a notice of appeal to this court had been filed after the trial judge denied a defense motion to dismiss on the ground of double jeopardy. The motion to dismiss was wholly without merit, as we indicated with respect to a similar motion filed by this same appellant in a different case. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982). In the case at bar the motion to dismiss was filed less than two weeks before the scheduled date of trial. When the motion was denied, counsel filed a notice of appeal, lodged a partial transcript in this court, and insisted in the trial court, without success, that the court no longer had jurisdiction to try the case as scheduled.

The trial judge correctly denied the motion to postpone the trial for want of jurisdiction. It is true that after a trial court enters a final judgment disposing of a case on its merits, the docketing of an appeal in this court terminates the trial court’s jurisdiction to reconsider the case. See Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968); Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805 (1958). But where, as here, there has been not a final judgment but only the denial of a motion to dismiss, the case is still pending in the court below and may proceed to trial unless this court issues a temporary writ of prohibition or takes some similar action. No such stay was issued in the present case.

Second, it is argued that the trial judge should have sustained the defendant’s challenges for cause with respect to eight prospective jurors. It appears that during some period of time preceding Kellensworth’s arrest about ten separate rapes had been committed in the southwest section of Little Rock. Before anyone had been identified as the perpetrator of any of the crimes, the police and the news media referred to the offender as the “southwest rapist.” The succession of crimes received wide publicity. Apparently when Kellensworth was taken into custody the police concluded he was the southwest rapist. Perhaps their conclusion was reported in the press. The record is not entirely clear about these matters.

During the individual voir dire of the veniremen it was brought out that eight of them had heard or read enough about the multiple rapes to suppose that Kellensworth was or might be the southwest rapist. None of those challenged for cause, however, were shown to have formed an opinion about Kellensworth’s possible guilt or to possess anything except more or less vague information about the series of crimes and about accusations that may have been made. All of the eight veniremen stated in substance that they could lay aside what they had heard and try the case upon the evidence heard in the courtroom. The defense used seven of its twelve peremptory challenges to excuse the first seven of the challenged veniremen, but the eighth one became a member of the jury after the defense had exhausted its challenges.

The trial judge was right in refusing to excuse the jurors for cause. The Supreme Court has recognized the difficulty encountered in the selection of a jury to try a case that has been the subject of much discussion in the press. The Court holds that there is no requirement that jurors be totally ignorant of the facts involved: “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented at court.” Irvin v. Dowd, 366 U.S. 717 (1961), which we followed in Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979), cert. denied 449 U.S. 1057 (1980). Here we find no violation of the principles announced in those cases. The appellant relies primarily on Glover v. State, 248 Ark. 1260, 455 S.W.2d 670 (1970), but there the trial judge’s error was in refusing to excuse veniremen who said they had formed an opinion that could be removed only by evidence. That is not the situation here.

Third, it is argued that police officers should not have been allowed to describe the prosecutrix’s identification of Kellensworth at a line-up. We recently examined our earlier decisions on this point and concluded that in circumstances like those presented in the case at bar the testimony is permitted by the Uniform Rules of Evidence. Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981).

Fourth, the prosecutrix testified that Kellensworth entered her home and raped and robbed her at about 4:30 a.m. on June 16. Kellensworth did not testify, but both his parents testified in his defense that someone brought him home at about 2:00 a.m. that morning. They said he was so drunk that he threw up on the rugs, that they spent the rest of the night cleaning up the mess, and that their son was at home until he left at noon. They understood that Mike Dean had driven him home, but that identification is not important.

Mike Dean was called by the State as a rebuttal witness. Over objections by defense counsel, Dean testified that at an earlier trial of this same case, which ended in a mistrial, he had appeared as a defense witness and had testified that he had been drinking beer with Kellensworth on the evening before the crimes in question, that around midnight they got a fifth of tequila, that Kellensworth got drunk, and that Dean took him home. Dean further testified at the trial below that his former testimony was false, that Kellensworth had asked him to tell the story, that they had made it up together, and that he had lied to help a friend. He conceded that he had committed perjury at the first trial, but had decided to tell the truth. He made no claim that Kellensworth’s parents knew that his earlier testimony was false.

It is now argued that Dean’s testimony was inadmissible as improperly putting Kellensworth’s character in issue, as constituting proof of a specific instance of misconduct, and as attacking the credibility of the elder Kellensworths upon a collateral issue. No authority is cited to support the argument that Dean’s testimony on rebuttal was inadmissible. The testimony was so clearly admissible that we doubt if any such authority could be found.

It is settled beyond question that a party’s attempt to fabricate evidence is admissible, not merely as an admission under Uniform Evidence Rule 801 (d) (2) but as proof relevant to show his own belief that his case is weak. As one court has said, in a case involving a fabricated alibi, “fabrication of evidence of innocence is cogent evidence of guilt.” Harvey v. United States, 215 F. 2d 330 (D.C. Cir., 1954). In a case similar to the present one, involving the recantation of previous testimony about a fabricated alibi, the court held that the testimony was admissible not merely in rebuttal but as part of the prosecution’s case in chief, a point we do not reach. State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (1946).

Wigmore states the principle as being based upon one of the simplest of inferences:

It has always been understood — the inference, indeed, is one of the simplest in human experience — that a party’s falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the 'cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.

Wigmore, Evidence, § 278 (Chadbourn Rev., 1979). With particular reference to what we have here — the fabrication or manufacture of evidence by subornation and the like — Wigmore cites supporting cases from 27 jurisdictions, and none to the contrary. Id., p. 137. The admissibility of Dean’s testimony is not open to dispute.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    UNION COUNTY, Arkansas v. UNION COUNTY FAIR ASSOCIATION
    82-53
    633 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered May 17, 1982

      William A. McLean, for appellant.

      Ian W. Vickery oí Ian W. Vickery & Associates, P.A., for appellee.
   Robert H. Dudley, Justice.

The issue in this case is whether the holder of the possibility of reverter after a determinable fee can maintain an action for waste. The Court of Appeals has certified the case to this court as a case of significant public interest and a case of major importance. Rule 29 (4) (b) Vol. 3A (Repl. 1979).

In early 1961, appellant Union County wanted to build a hospital on a tract of land owned and occupied by appellee Union County Fair Association. On November 15, 1961, after considerable negotiations, the parties entered into an agreement by which the county would pay $57,904.00 to the association for its land. The association would use $8,500.00 of the money to purchase 26 acres from the American Creosoting Corporation for a new fairgrounds. Title to the new fairgrounds would be in appellant Union County, but “it is hereby agreed and covenanted that the ... Association may use said property so long as a County Fair is held and the said property sights [rights] hereby created shall not forfeit unless no Fair is held for a period of at least two consecutive years.” The association agreed to spend “an additional sum of at least $20,000.00 of its money on new buildings for fair purposes.” The county agreed to open a street on the south line of the new fairgrounds, to place gravel on an area designated for parking and to provide a covered grandstand with a capacity for seating at least 500 persons.

Simultaneously, the association entered into a contract with T. R. Williamson for the construction of buildings on the soon-to-be acquired fairgrounds. The contracted cost of this construction was $69,404.00. Of this amount, $49,404.00 would come from the money the association would receive from the county for the old fairgrounds, and $20,000.00 would come from the association’s separate funds. The county, in an unspecified capacity, also executed the construction contract. In about a month, on December 18,1961, the American Creosoting Corporation conveyed the new fairgrounds land to Union County for the recited consideration of $8,500.00. The association, in addition to the $8,500.00 purchase price, has now expended $154,894.61 for permanent improvements to the property.

The county now objects to the association’s plans to remove the grandstand in order to expand the area for the showing of cattle and hogs. The association filed suit in chancery court asking a declaratory judgment defining the rights and interests of the parties in the fairgrounds. The county joined in asking that the rights and interests of the parties be declared and also asks that the association be enjoined from removing the grandstand.

The agreement between the county and the association, the agreement between the association and T. R. Williams which was also executed by the county and the deed from American Creosoting Corporation to the county were all executed for the same purpose and as a part of the same transaction. Instruments executed at approximately the same time, for the same purpose, in the same transaction are legally one instrument and will be construed together, in the absence of ánything to indicate a contrary intention. Gowen v. Sullins, 212 Ark. 824, 208 S.W.2d 450 (1948). All of the agreements, when considered as one, express the clear intent of the parties that the association use the property “so long as a (bounty Fair is held and the said property sights [rights] hereby created shall not forfeit unless no Fair is held for a period of at least two years,” at which time the property would revert to the county. The instruments vest the association with a determinable fee. A determinable fee is ordinarily created by a provision that the grantee’s estate is to continue “as long as” the property is used for a certain purpose or “until” a given event occurs, or by similar words limiting the duration of the estate. Davis v. St. Joe School District of Searcy County, 225 Ark. 700, 284 S.W.2d 635 (1955). If the limitation occurs, that is, if the association fails to conduct a county fair for two consecutive years, the determinable fee will automatically terminate and pass by reverter to the county. Williams v. Kirby School District No. 32, 207 Ark. 458, 181 S.W.2d 488 (1944). In the meantime the association’s possession of the property puts third persons on notice of its rights in the property. Clinton School District No. 1 v. Henley, 212 Ark. 643, 207 S.W.2d 713 (1948).

The issue then becomes whether the holder of a possibility of reverter may enjoin an act of waste which, in this case, is the proposed removal of the grandstand. In Watson v. Wolff-Goldman Realty Co., 95 Ark. 18, 128 S.W. 581 (1910), we held that a contingent remainderman may enjoin waste where the estate may become his at the termination of a life estate. However, the chancellor correctly noted in the present case there is no proof that the termination of the determinable fee is ever likely to occur. Instead, there is a possibility the determinable fee will endure forever, as distinguished from the remainder following the life estate in the Watson case, supra. The chancellor also found that the alleged waste could cause no serious damage to the property and denied the injunction. We affirm. The holder of a possibility of reverter can restrain an act of waste by the holder of a determinable fee only when it appears that there is a reasonable certainty that the fee will terminate and the waste would cause serious damage to the property. Dees, et al v. Cheuvronts, et al, 240 Ill. 486, 88 N.E. 1011 (1909). Thompson on Real Property, Vol. 4 p. 405 (Repl. 1979).

Affirmed.


author: Steele Hays, Justice.

text:
    Bessie LANDIS v. Bobby HASTINGS and Rodger P. HASTINGS
    82-59
    633 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered May 17, 1982

      Boyett, Morgan if Millar, P.A., by: Comer Boyett, Jr., for appellant.

      Pollard if Cavanaugh, by: Jerry Cavanaugh, for appellees.
   Steele Hays, Justice.

Appellant Bessie Landis brought suit for personal injuries allegedly sustained on May 28, 1979, when a vehicle she was driving was struck by a truck driven by appellee Rodger Hastings, fifteen year old son of appellee Bobby Hastings. The jury returned a verdict for the defendants, notwithstanding Rodger Hastings’ admission the collision was his fault and testimony on behalf of Mrs. Landis that she sustained permanent injuries as a result of the collision. Her motion for new trial was denied and she has appealed.

Four points are argued: the j ury disregarded undisputed evidence in reaching a contrary result; the verdict was not supported by substantial evidence; the trial judge’s refusal to grant a new trial was an abuse of discretion and it was error to allow the jury to consider a verdict for the defendant. We find the arguments to be without merit and we affirm.

The Landis proof was that Mrs. Landis, driving a borrowed vehicle, entered a protected intersection in Judsonia and was struck on the right rear side by the Hastings truck. The impact spun her around and into a deep ditch, knocked off her shoes, and caused damage to her vehicle in excess of $1,200. Not thinking she was injured, she drove another vehicle to Little Rock to meet her niece at the airport but by the time she arrived she was in pain and unable to drive home.

The next day Mrs. Landis consulted Dr. Sidney Tate for pain and tenderness in her neck and shoulders. Dr. Tate found motion limitation and muscle spasms; he made a diagnosis of cervical sprain and possible ligament damage. He prescribed conservative treatment of rest, muscle relaxors and later ultra sound treatments, physical therapy and use of a cervical collar. Mrs. Landis was still under Dr. Tate’s care at trial two years after the accident, and he estimated pain in some degree would continue the remainder of her life. In addition to Dr. Tate, Mrs. Landis was treated by Dr. L. S. Tensuan during a visit to Pennsylvania and examined by Dr. William Steel. Her x-rays on May 29 and July 6, 1979, were read by Dr. Robert Elliott, a radiologist. Her medical bills, admitted without objection, totaled $973 as of the trial on May 12, 1981.

In defense, Rodger Hastings testified the collision was his fault. He estimated his speed at less than 10 miles per hour at impact. He said his truck moved only a few feet after striking Mrs. Landis’s vehicle and sustained no damage at all. He went directly to Mrs. Landis and found her on her seat behind the wheel putting on high heel slippers. She told him she was not hurt and she walked around while waiting on the police. Hastings heard Mrs. Landis tell the police and by-standers that she was not hurt in any way. He described Mrs. Landis as upset but said he observed nothing to cause him to believe she suffered any injury. He told of having seen Mrs. Landis dancing at the Electric Cowboy some months prior to the trial. A passenger in the Hastings truck corroborated testimony that Mrs. Landis did not appear to have suffered any injury and told several people she was not hurt. Both witnesses said the area Mrs. Landis described as a "deep ditch” was a depression of about three inches.

In acting on a motion for a new trial the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP Rule 59 (a). But on review the test depends on whether the motion was granted, in which case we will affirm absent a manifest or clear abuse of discretion (General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602, 1974), whereas if the motion is denied, as here, we look only to see if the verdict is supported by substantial evidence and, if so, we do not disturb the trial court’s action. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981); Brady v. City of Springdale, 246 Ark. 1103, 441 S.W.2d 81 (1969). The rule is founded on the superior position of the trial court to hear and weigh the evidence. Ferrell, supra-

Appellant submits that the trial judge was confused as to the test to be applied in passing on her motion, arguing that an abuse of discretion resulted. But while there may have been some initial uncertainty as to the proper test, it is clear the opposing arguments at a hearing on the motion put the issue in proper perspective and as a result the trial court advised counsel he would reread the cases and review his “detailed notes on the case.” We believe his decision in the end was in accordance with the preponderance of the evidence standard. From his comments he evidently believed the evidence was such the jury could have reasonably concluded that Mrs. Landis did not sustain injuries as a result of the collision.

Next, appellant cites us to the dicta of a number of cases stating that testimony which is not substantially contradicted by other testimony, and does not seem unreasonable or improbable, may not be arbitrarily or capriciously disregarded by the jury. General Motors Corp. v. Tate, supra; Missouri-Pacific Rd. Co. v. Ross, 194 Ark. 877, 109 S.W.2d 1246 (1937); St. Louis-San Francisco Ry. Co. v. Pace, 193 Ark. 484, 101 S.W.2d 447 (1937); St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W.2d 611 (1929). These cases have a common feature, in each a verdict for the plaintiff was reversed and dismissed because of a lack of evidence to sustain it. The cases present a somewhat different evidentiary problem from the case before us and it is in that context that the cited dicta must be examined. In the Ross and Pace cases, wrongful death claims were brought against railroad companies resulting in verdicts for the plaintiff where plaintiffs’ decedents were found on or near the railroad track with no eyewitness accounts of how the accidents occurred. The plaintiffs’ theories of recovery were founded essentially on conjecture whereas testimony from witnesses for the railroad was uncontradicted. In Williams the plaintiff was injured while a trespasser on railroad property, and the court noted an absence of any fact or circumstance in evidence substantially contradicting the testimony of the engineer that because of cars on a siding he could not see the plaintiff until nearly upon her. Thus, it was said in rationalizing a basis for reversal that testimony of witnesses, if plausible, may not be arbitrarily disregarded. Of Tate it can be said that here, too, the court found an absence of substantial evidence of negligence in support of the jury’s verdict. The difference is to be found we think in the fact that in the cited cases the juries’ disregard of evidence was arbitrary, whereas here there was a genuine dispute.

Turning to the issue of substantial evidence, it should be noted the testimony of Mrs. Landis that her injuries were caused by the collision is, of course, controverted as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). And while her claim was generally supported by the testimony of the medical witnesses we do not find their testimony to have been so certain that the jury was required to attribute her complaints to the accident. From their testimony it is clear that Mrs. Landis demonstrated evidence of traumatic injury, but whether caused by the episode on May 28, 1979, they were not able to say. Dr. Elliott admitted the trauma could have been years earlier and acknowledged he could not say the conditions he observed were caused by the accident.

It is undisputed Mrs. Landis, who is 63, had had a previous injury and chronic, long-standing degenerative disc disease with spurring and lipping of the cervical vertebrae, a condition sufficiently severe of itself to cause periodic pain. The jury may have decided her complaints were attributable to pre-existing conditions rather than to the accident. There was testimony that she stated repeatedly she was not hurt and made no complaint during the 30 minutes or so she remained at the scene. Too, the jury may have been influenced by contradictions in her testimony and the opposing evidence: Mrs. Landis denied having danced at the Electric Cowboy in contrast to Rodger Hastings’s testimony he had seen her there dancing; she said her vehicle ended up in a “deep ditch,” in contrast to testimony the yards and roadway were level at the scene except for a swale no deeper than three inches and, finally, her denial that she was having pain or taking medication or tranquilizers prior to the accident was in direct conflict with the medical records of an earlier physician. Under the evidence the jury could have found for the defendant.

Appellant’s remaining argument is the court should not have submitted a verdict form for the defendant to the jury, because it was admitted by Rodger Hastings that the collision was his fault. But that would have been tantamount to a directed verdict for the plaintiff and for reasons already discussed we think whether Mrs. Landis sustained an injury as a result of the collision was a disputed issue and properly submitted to the jury.

The order denying the motion for a new trial is, accordingly, affirmed.


text:
    Larry Donnell WASHINGTON v. STATE of Arkansas
    CR 82-3
    633 S.W.2d 24
    Supreme Court of Arkansas
    Opinion delivered May 17, 1982

      Richard W. Byrd, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

This appeal is from a conviction of murder in the first degree. The jury rejected appellant’s plea of insanity and sentenced him to life in prison. For reversal, he argues the trial court should have declared a mistrial or directed a continuance because he was deprived of the opportunity to cross-examine the examining psychiatrist at the Arkansas State Hospital and because he was not furnished a copy of the admission diagnosis, both in violation of the court’s discovery order. The arguments cannot be sustained.

Appellant was accused of the deliberate homicide of his former girl friend on October 16,1980, by shooting her with a .22-caliber rifle. He raised the defense of mental disease or defect and was committed to the Arkansas State Hospital for examination and observation. The examining psychiatrists were instructed to file their report with the trial court with copies to defense counsel and the prosecuting attorney. Appellant filed a motion for discovery to inspect the results of any physical or mental examinations, any opinions concerning his mental condition, and all records of examination and observation made pursuant to the discovery order. Appellant was furnished a written report from the State Hospital stating that on the date of the offense he was able to appreciate the criminality of his conduct and to conform to the requirements of the law and had the capacity to assist in his own defense. The letter was signed by Dr. A. F. Rosendale as Examining Psychiatrist and by Dr. Robert B. Sheldon as Director of Forensic Psychiatry Services.

During Dr. Rosendale’s testimony, it developed that the report was incorrect in that Dr. Rosendale was Director of Forensic Psychiatry Services and Dr. Sheldon the Examining Psychiatrist, but each had signed the report, in the form of a letter to the trial judge, in the wrong place. Dr. Rosendale said Dr. Sheldon was no longer at the hospital and explained the procedures of the Forensic Psychiatry Services in examining and evaluating persons accused of crime: after the examining psychiatrist had arrived at an opinion the case was reviewed by another psychiatrist, a psychologist, and a social worker and a joint opinion rendered; that appellant’s admission diagnosis was “Atypical psychosis”; that the opinion appellant was without psychosis was unanimous; that Dr. Rosendale was present at the review and approved the opinion.

Appellant contends on appeal he should have been furnished a copy of the admission diagnosis as provided in the trial court’s order on discovery, and because the State Hospital report erroneously reflected Dr. Rosendale as Examining Psychiatrist rather than Dr. Sheldon, he was denied the opportunity to cross-examine Dr. Sheldon and hence, effectively deprived of the benefits of discovery intended by A.R.Cr.P. Rule 17. But neither of the arguments was presented to the trial court by motion or objection, and we have held too often for any doubt to exist that in order for questions of error to be considered on appeal, they must have been raised before the trial court by timely and proper objection. Moore v. State, 270 Ark. 592, 605 S.W.2d 445 (1980); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980); Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980).

Appellant claims these errors are so fundamental he was denied a fair trial and notwithstanding the absence of an objection the court should have declared a mistrial or directed a continuance on its own. We disagree. There is nothing to suggest appellant would have benefited by the availability of Dr. Sheldon, as the staff diagnosis was unanimous that appellant was without psychosis. As to whether appellant was given a copy of the admission diagnosis, this, too, fails to demonstrate fundamental error. The record does not show the admission diagnosis was not furnished, other than by implication in a question posed by defense counsel to Dr. Rosendale asking why a copy had not been given the defense. But in a subsequent dialogue, the prosecuting attorney stated categorically he had given the admission diagnosis to the defense on April 21, 1981, and this direct assertion was never challenged by defense counsel. We take this silence to indicate he received it.

We find no reversible error and, accordingly, the judgment is affirmed.


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    W. O. SLAYTON, Special Administrator for the Estate of Laura Lee SLAYTON, deceased v. Dr. John H. BRUNNER and Virginia DWIRE
    82-61
    633 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982

      Jerry D. Pruitt, for appellant.

      Phillip Malcom and Laura A. Hensley of Friday, Eldredge <b Clark, for appellee Brunner.

      McMillan, Turner ir McCorkle, by: Otis Turner, for appellee Dwire.
   Richard B. Adkisson, Chief Justice.

Appellant brought suit for medical malpractice against appellees, Dr. John Brunner and nurse Virginia Dwire, in connection with the death of Laura Lee Slayton. On appeal from an order of summary judgment in favor of appellees, we reverse and remand.

Slayton was first admitted to Ouachita Memorial Hospital in Hot Springs on August 7,1977, for delivery of a baby by Caesarean section. Complications developed which required further surgery. She was finally discharged on October 21, 1977, with a large abdominal wound in which marlex mesh was sewn to aid in healing. On April 14,1978, she underwent surgery to repair a ventral hernia and to remove the marlex mesh from her abdominal wall. Appellee Brunner performed the surgery and appellee Dwire administered the anesthesia. Almost immediately after the surgery was completed Slayton suffered a cardiac arrest, with resulting brain damage. She died on April 24, 1978.

Dr. John Brunner filed a motion for summary judgment alleging that he was not negligent in the care and treatment of Laura Lee Slayton, deceased. He attached several exhibits to his motion, including affidavits from Dr. Robert Hill and Dr. A. E. Pollard. Both concluded, based on the record, that Dr. Brunner was not guilty of any negligence.

Virginia Dwire, the nurse anesthetist, filed her motion for summary judgment attaching several exhibits to her motion including affidavits from Phyllis Braden, C.R.N.A., and Dr. A. E. Pollard. Both affidavits concluded that Virginia Dwire was not guilty of any negligence in her treatment of Laura Lee Slayton.

Appellant filed a response to appellees’ motion for summary judgment, attaching as an exhibit the affidavit of Dr. Robert King. Dr. King concluded in his affidavit that both Dr. Brunner and nurse Dwire were negligent in their care and treatment of Laura Lee Slayton and that this negligence was the proximate cause of her death.

Appellees argue Dr. King is incompetent to testify because his affidavit does not show that he is familiar with the standard of care of a surgeon or nurse anesthetist in Hot Springs or a similar locality on April 14,1978. This standard is commonly referred to as the same or similar locality rule and is set out in AMI 1501.

In his affidavit Dr. King stated that he is a licensed physician practicing in Lawton, Oklahoma; that he graduated from medical school in 1974; that in 1977 he completed his residency; and that he now specializes in the practice of anesthesiology in Lawton. His affidavit also states that he is aware of the degree of skill and learning ordinarily possessed by surgeons and nurse anesthetists in Hot Springs, Arkansas, in April, 1978.

Lawton, Oklahoma, has a population of 80,000; Hot Springs a population of about 25,000. The two hospitals in Lawton are accredited by the Joint Commission on Accreditation of Hospitals as is Ouachita Memorial Hospital. All three hospitals have board certified surgeons and nurse anesthetists. King stated that he has received patients on a referral basis from rural communities with populations of 5.000 or more and from cities of 150,000 and that he has consulted by phone with physicians practicing in cities of 5.000 to 400,000 in size.

We stated in Gambill v. Stroud, 258 Ark. 766, 551 S.W.2d 945 (1975) that an expert witness in a medical malpractice action does not need to be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert. In White v. Mitchell, 265 Ark. 787, 568 S.W.2d 216 (1978) an orthopedic surgeon, who practiced and taught in Phoenix, Arizona, but was a consultant at a hospital in a town with a population of 4,500 and received referral patients from rural communities, was allowed to testify as to the alleged negligence of a physician in Malvern, Arkansas. Accordingly, Dr. King is qualified to testify in this case.

Appellee Brunner argues that Dr. King, an anesthesiologist, is not qualified to testify as an expert in the specialty of surgery. However, both are medical school graduates licensed to practice in their respective states. Appellant does not allege that appellee was negligent in performing the actual surgical procedure used to repair the ventral hernia and remove the marlex mesh. Negligence is alleged in procedures performed or omitted before and after the actual surgery.

Appellees further argue that the trial court correctly granted summary judgment after finding that no issues of fact were raised because "the record did not disclose any evidence of negligence on the part of Mrs. Dwire or Dr. Brunner as the proximate cause of the death of Laura Lee Slayton.” ARCP Rule 56, Ark. Stat. Ann., Vol. 3A (Repl. 1979) provides for summary judgment if there is no genuine issue as to any material fact as shown by the pleadings and affidavits.

Although two doctors and one nurse who reviewed the record concluded in their affidavits that appellees were not negligent, the affidavit of Dr. King states that after reviewing the complaint, depositions, and records in this case, he found evidence that appellees were negligent. He specifically found evidence of negligence by the fact that appellees failed to make a complete preoperative evaluation of the patient before administering anesthesia and failed to adequately monitor Slayton prior to transferring her to the recovery room. He also found that appellees took improper steps to reverse the effects of the respiratory and cardiac arrest and that the nurse anesthetist failed to properly record the dosage of medication on the anesthesia record.

Based upon the same facts medical experts have arrived at opposite conclusions. Under such circumstances the entry of summary judgment under ARCP Rule 56 was error.

Reversed and remanded.

Holt, J., not participating.


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    Regana Ann MILLSAPS and Derrell E. MILLSAPS v. Ramsey RINEHART, Jr.
    82-62
    634 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered May 24, 1982
    [Rehearing denied June 28, 1982.]

      Guy H. Jones, Phil Stratton and Casey Jones, by: Guy H. Jones, for appellants.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.
   Richard B. Adkisson, Chief Justice.

A jury awarded appellants, Regana and Derrell Millsaps, $1,300 as damages arising out of an automobile collision in which appellee, Ramsey Rinehart, Jr., was found negligent. The Faulkner County Circuit Court denied appellant’s motion for a new trial, holding the jury verdict was supported by substantial evidence. On appeal, we affirm.

The accident occurred on August 9,1977, in Little Rock as Mr. Millsaps was taking Mrs. Millsaps to her first day of work at Timex Corporation. The Millsapses were stopped in a line of traffic; appellee made a right turn and struck the Millsaps vehicle a grazing blow. Later that day Mrs. Millsaps went to a doctor in Conway, complaining of pain in her back and right arm; she did not see this doctor again.

Several months later she saw two orthopedic surgeons because of pain in her shoulder, back, and neck. Both doctors encouraged Mrs. Millsaps to work and neither recommended surgery.

She first saw Dr. Dornenburg on October 4, 1977, who testified that he diagnosed her as having a possible fracture of her shoulder blade and recurring bicipital tendinitis. He also testified that he had treated Mrs. Millsaps in April, 1977, for pain in her shoulder and arm and an injury to her wrist which she had received while working for Baldwin Piano Company. She saw Dr. Dornenburg only this one time.

On October 28, 1977, she saw Dr. Lester, who testified that when he saw her she did not have bicipital tendinitis and that her shoulder X-ray was normal; however, he did find some degenerative changes and reversal of the curvature in her neck. He prescribed a mild tranquilizer, some pain medication, and certain exercises. Dr. Lester again treated Mrs. Millsaps on April 17,1981, and found her to have some continuing ligament problems in her neck and prescribed a muscle relaxant.

After hearing the above evidence as well as testimony from Mrs. Millsaps’s family and the Timex personnel director, the jury was instructed to consider the nature, extent, and duration of any injury; the pain, suffering, and mental anguish of appellant in the past and future; and the value of any salary lost. The jury then awarded Mrs. Millsaps no damages for anything except her medical expenses for which she received $1,000. Mr. Millsaps was awarded $300 for damage to his vehicle.

When a trial judge denies a motion for a new trial, the only issue on appeal is whether the verdict is supported by substantial evidence. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Here, although there was evidence which would have justified a larger award, there is substantial evidence to support the award that was given. Mrs. Millsaps’s actual medical expenses totaled $908.50. Much of the testimony concerning the duration and extent of Mrs. Millsaps’s injuries and her pain and suffering came from members of her family, whose credibility was for the jury to determine. Although Mrs. Millsaps did have a job at the time of the accident she had not actually started working. Both doctors who saw her in 1977 testified that she could work, but she did not go back to work until March 8, 1979. Under these circumstances the jury could have concluded that she had not lost any wages. When there has been more than a nominal award by the j ury, as here, a new trial should not be granted solely on the inadequacy of the verdict. McAdams v. Stephens, 240 Ark. 258, 399 S.W.2d 504 (1966).

Affirmed.