text:
    Harvey Cecil POE v. STATE of Arkansas
    CR 85-166
    698 S.W.2d 297
    Supreme Court of Arkansas
    Opinion delivered November 4, 1985

      A. James Linder, for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner, Harvey Cecil Poe, was convicted as a habitual criminal of aggravated robbery and was sentenced by the Ashley Circuit Court to life imprisonment. His conviction was affirmed on June 27, 1984, by the Court of Appeals in an unpublished opinion in Case No. CACR84-30. Poe, represented by counsel, now seeks permission to file a Rule 37 petition in the trial court for a new trial because of ineffective assistance of counsel. We grant the petition only with respect to the allegation that the appointed trial counsel, Bing Colvin, failed to interview and subpoena two alibi witnesses for the defense, Mr. and Mrs. Andrew Yon III.

The trial record discloses that the State’s only substantial evidence connecting Poe with the robbery was the testimony of an accomplice, David Reeme, and his wife. The robbery occurred at about 10:50 p.m. Reeme testified that he committed the robbery while Poe stood behind the store and acted as a lookout. Both Reemes testified that Poe had come to their house at about 8:00 p.m. and had eventually spent the night. The Court of Appeals affirmed on the ground that Mrs. Reeme was not an accomplice as a matter of law and had sufficiently corroborated her husband’s testimony.

Attached as exhibits to the Rule 37 petition are affidavits of the Yons, taken by counsel in question-and-answer form. They both stated, with supporting reasons and documentary corroboration, that Poe spent the night in question in their home in Crossett and that they were living there when the case was tried (May 26, 1983). Their affidavits contradict the Reemes’ testimony in so many particulars that it is impossible for both accounts to be true. A jury would be compelled to accept one and reject the other.

Poe’s affidavit in support of his petition states that before the trial he discussed the matter with the Yons, who verified his recollection that he was at their house that night. Poe states that he explained the circumstances to Mr. Colvin, who said he would interview the Yons and have them subpoenaed. Before the trial Mr. Colvin allegedly said he had not been able to locate the Yons, but he would have a subpoena issued to see if the sheriff could find them. Poe says that when he learned that the Yons were not to be at the trial he asked Mr. Colvin to seek a continuance, but Mr. Colvin neither obtained a subpoena nor asked for a continuance.

We do not imply that Mr. Colvin was actually at fault, as he has apparently not had an opportunity to respond to Poe’s assertions. The three affidavits attached to the petition are uncontradicted, however, and present a sufficient prima facie showing of ineffectiveness of counsel to justify a hearing on that issue.

Poe’s petition also alleges that his sentence is excessive, that Mr. Colvin failed to object to the voir dire of the jury in chambers and to the court’s instructing the jury about Poe’s previous convictions, and that Mr. Colvin was remiss in other minor particulars. These points do not appear to have merit and are presented without argument or citation of authority by counsel; so we need not consider them. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

The cause is remanded for a hearing as indicated; in other respects the petition is denied.

Purtle, J., not participating.


source: Caselaw Access Project

author:
Jack Holt, Jr., Chief Justice.
      Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Mary Belle HUTH, in her own behalf, Anthony Wayne PAUL and Mary Ellen HUTH, minors, by and through their mother and next friend, Mary Bell HUTH v. DIV. OF SOCIAL SERVICES OF THE DEPARTMENT OF HUMAN SERVICES, and Curtis IVEY, Commissioner of Social Services
    85-158
    698 S.W.2d 789 700 S.W.2d 367

      Supreme Court of Arkansas
    Opinion delivered November 12, 1985
    [Supplemental Opinion on Denial of Rehearing December 16, 1985.]

      James R. Cromwell, UALR Legal Clinic, by: Ricky Ruffin, for appellants.

      Ivan II. Smith, for appellees.

       Purtle, J., not participating.

   Jack Holt, Jr., Chief Justice.

At issue in this case are the requirements for claimants seeking assistance through Aid to Families with Dependent Children (AFDC). As we are being asked to interpret the regulations of an administrative agency, our jurisdiction is pursuant to Sup. Ct. Rule 29(l)(c).

Appellant, Mary Belle Huth, applied for AFDC benefits on November 28,1983 for herself and her two dependent children. In her application for assistance, she asserted that the father of her children, from whom she is estranged, was providing child support. She was unable, however, to obtain a statement from the father stating the amount of child support he proposed to pay. Her application for financial assistance was denied on February 8, 1984, since her income could not be ascertained without some statement as to the amount of support being provided by the father.

Mrs. Huth requested a fair hearing before the Arkansas Social Services, who subsequently affirmed the caseworker’s decision. The agency’s decision was affirmed on appeal by the Pulaski Circuit Court, third division. While the administrative appeal was pending, Mrs. Huth reapplied for AFDC assistance, this time asserting that the father of the children was providing no support. This application was approved on April 11, 1984, with benefits dating back to March 16, 1984.

Mrs. Huth brings this appeal from the denial of her first AFDC application. Although she is currently receiving assistance, Mrs. Huth claims she lost approximately two and one-half months of AFDC benefits during the interim between claims.

For her first allegation of error, Mrs. Huth maintains that an undue burden was placed on her by state policy to provide the information about the amount of child support being paid by the children’s father.

Throughout the pendency of her first application for benefits, Mrs. Huth consistently advised Arkansas Social Services that the father of the children was providing support. To determine need and the amount of assistance for all applicants for AFDC, state plans must provide that “all types of income will be taken into consideration.” 45 C.F.R. § 233.20(a)(l)(i). Arkansas Social Services Financial Assistance Regulation 2302 states:

The eligibility requirement of need is established by:
1. Determining the value of resources available to persons in the AFDC assistance unit and determining whether these resources fall within allowable limits;
2. Determining the income available to persons in the AFDC assistance unit and comparing this income to the standard of need, as established by the Division.

The agency was operating within the federal and state regulations by requiring Mrs. Huth to furnish information on child support. Its decision to deny the benefits for failure to furnish the requested information was not “arbitrary, capricious, or characterized by abuse of discretion.” Ark. Stat. Ann. § 5-713(h) (Supp. 1985).

The appellant next contends that her claim should be allowed inasmuch as the agency failed to follow its own regulation requiring the approval, denial or withdrawal of all applications within 45 days. Arkansas Social Services Financial Assistance Regulation 2140. Here, 71 days passed between the application for benefits on November 28, 1983, and the denial of those benefits on February 7, 1984. The record reflects that on December 8, 1983, Mrs. Huth provided a statement which indicated that child support would be paid, but stated that a signed verification could not be obtained. On January 10, 1984, the county office wrote Mr. Huth seeking the support information. On February 2,1984, Mr. Huth contacted the county office and said he was paying child support and would provide a written statement. He never did. At her request, the county office gave Mrs. Huth until February 3, 1984, to obtain the statement. On February 3, Mrs. Huth again requested more time. The time was extended until February 6 and the application was denied the next day.

December 16, 1985

The delay in the agency’s denial of the application was caused by Mrs. Huth’s requests for additional time to provide the required verification of income. As such, the agency acted with reasonable promptness. See Like v. Carter, 448 F.2d 798 (8th Cir. 1971). The appellant’s contention is therefore without merit. In summary, the state’s regulations are reasonable and were reasonably applied.

We affirm.

Purtle, J., not participating.

Supplemental Opinion on Denial of Rehearing

Jack Holt, Jr., Chief Justice.

In her petition for rehearing, filed pursuant to Sup. Ct. R. 20(g), appellant Mary Belle Huth, states that the court’s opinion, delivered November 12, 1985, contains specific errors of fact upon which the court relied iriits decision. Specifically, she states the court found that the appellant stated in her application, and consistently advised Social Services that the father of her children was providing child support. Mrs. Huth states that her ex-husband was not providing child support when she applied for AFDC assistance, but rather was proposing to pay child support. It was her inability to obtain verification from him of the amount of support he proposed to pay that led to the denial by social services of her application.

Appellant explains that these incorrect facts were contained in appellee’s brief and that she attempted to apprise this court of the incorrect assertions by filing a motion to strike on November 12, 1985.

In its response, appellee acknowledges the factual errors contained in the brief and abstract prepared “by appellee’s former counsel” and quoted in the opinion.

We deny appellant’s petition for rehearing because the rationale for our opinion is not changed by the difference between benefits currently being received by an applicant and prospective benefits. Nevertheless, we wish to make several observations.

It is the responsibility of the parties to factually present their appeals and this court, of necessity, relies on their representations. Supreme Ct. R. 9(b) provides that the statement of the case “should be sufficient to enable the Court to read the abstract with an understanding of the nature of the case, the general fact situation, and the action taken by the trial court.” Appellee’s allegation in its statement of the case that Mrs. Huth had consistently advised social services that her ex-husband was providing child support was incorrect and violated Rule 9(b). In the argument portion of its brief, appellee made the second statement complained of here, that Mrs. Huth stated in her application that her ex-husband was providing child support. The record of the proceedings conducted by the agency does not contain the erroneous material. Rather, the error was made in the appellate brief filed by the appellee agency’s attorney. This court cannot condone misleading statements in appellate briefs. We are particularly disappointed that a state agency would commit such an error. Although all parties must comply with the rules of appellate procedure, an agency representing the public carries additional responsibility to discharge its duty properly. The gravity of the situation is apparent. It is only because our opinion did not rely on the current receipt of benefits by the applicant, that we do not grant a rehearing.

Appellant’s option upon receipt of a copy of appellee’s brief was to file a reply brief correcting the misstatement. Instead, she filed a motion to strike on the day the opinion was handed down by this court. Although appellant states she did not receive a copy of the appellee’s brief until November 7, the Supreme Court Clerk’s records reflect service by appellee upon appellant on August 26.

This court’s opinion repeats the two incorrect statements made by appellee. This supplemental opinion is being written to make appropriate corrections. Elsewhere in the opinion, however, the situation was correctly depicted where the court stated: “She [Mrs. Huth] was unable, however, to obtain a statement from the father stating the amount of child support he proposed to pay” (emphasis added) and “The record reflects that on December 8, 1983, Mrs. Huth provided a statement which indicated that child support would be paid, but stated that a signed verification could not be obtained.” (emphasis added) Furthermore, the record reflects, and the opinion accurately reported, that Mr. Huth contacted the county social services office and said he “was paying child support.”

Arkansas Social Services Financial Assistance Regulation 2302 provides that the eligibility requirement of need is established by:

1. Determining the value of resources available to persons in the AFDC assistance unit and determining whether these resources fall within allowable limits;
2. Determining the income available to persons in the AFDC assistance unit and comparing this income to the standard of need, as established by the Division.

To determine need, state plans must provide that “all types of income will be taken into consideration.” 45 C.F.R. § 233.20(a)(l)(i).

The agency was not acting arbitrarily, capriciously, nor abusing its discretion when it found that proposed child support payments should be considered in a determination of income available to an applicant for assistance.

Petition denied.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Robert Joseph BARNES v. STATE of Arkansas
    CR 85-115
    698 S.W.2d 504
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Harold W. Madden, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

After midnight on November 9,1983, the appellant, Robert Barnes, shot and killed his former wife, Loretta Barnes. The jury found him guilty of first-degree murder and sentenced him to life imprisonment. There is no merit in either of his two arguments for reversal.

Robert and Loretta were married in 1980, but after about a year they were divorced. At first they continued to live together, but later they had separate residences. They kept seeing each other and took trips together to places as distant as Florida and California.

On the night of the murder Robert Barnes tried to telephone Loretta at about 11:00 p.m., but there was no answer. He got in his truck and drove to Melvin Shirley’s house where, as he apparently expected, he saw Loretta’s car outside. He had a set of keys to that car. Knowing that Loretta kept a pistol in the trunk to protect herself when she worked late, he opened the trunk, got the pistol, and put it in his pocket before going to the door. After some conversation among the three of them, Loretta and Robert went outside and got into an argument. He testified that she started hitting him. He professed not to remember the shooting, but immediately after Loretta was shot he told Shirley that he had shot Loretta and was going to kill himself. According to the medical examiner, the autopsy indicated that Loretta had first been shot while she was holding her arm in front of her neck in a defensive position. That bullet passed through her arm and into her neck. She was then fatally shot in the top of the head from a distance of less than a foot. Ballistics tests showed that the shots had been fired from Loretta’s pistol.

It is argued that the State failed to prove that the accused acted with premeditation and deliberation. The court properly instructed the jury on those matters, giving AMCI1507 (1982 Supp.). The jury could readily find both premeditation and deliberation from proof that Barnes armed himself with a pistol before confronting his former wife and that he actually shot her twice, the second time in the top of the head from a distance of only a few inches. The evidence of premeditation and deliberation was substantial, even convincing.

The second contention is that the court should have granted a motion for a mistrial because the State had introduced hearsay evidence. What happened at the trial was this: On cross examination by the prosecutor, Barnes admitted that he was familiar with guns. In response to a specific question he then said he did not know whether Loretta’s pistol was single action or double action; he didn’t know the difference. That distinction was plainly a collateral matter, in the accepted sense that the prosecution, which had asked the question, would not have been entitled to prove Barnes’ knowledge of the distinction as part of its case. Randall v. State, 239 Ark. 312, 389 S.W.2d 229 (1965). Since the matter was collateral, the prosecution was bound by Barnes’ response, that he did not know the difference between single action and double action. Spence v. State, 184 Ark. 139, 40 S.W.2d 986 (1931).

The State, without objection by the defense, nevertheless tried to prove on rebuttal that Barnes did know the difference. Needless to say, such collateral excursions should be avoided. A police officer testified on direct examination, as a rebuttal witness, that Barnes had had training in firearms that would enable him to know the difference, but on cross examination the officer admitted that he had no personal knowledge that Barnes had been so instructed. Defense counsel then moved for a mistrial, because the officer’s first statement had been hearsay. The trial judge denied the motion. There was no request that the jury be told to disregard the objectionable statement.

Appellate counsel now insists that a mistrial should have been granted because the hearsay statement was “highly prejudicial.” Calling it so does not make it so. To the contrary, we do not see that the statement was prejudicial at all. Barnes had testified that he did not know the difference between a single action and a double action pistol. The officer testified at first that Barnes had been instructed in the difference, but he later admitted that he had no personal knowledge about such instruction. The issue had no substantive relevance, for whether Barnes was aware of the distinction had no bearing whatever on whether he had shot his former wife. If it had any possible bearing on his credibility, an admonition to the jury would have been sufficient. The proof of guilt was overwhelming. The declaration of a mistrial over such inconsequential incident would have been a miscarriage of justice.

We find no prejudicial error in any other ruling that has been brought to our attention.

Affirmed.

Holt, C.J., disqualified and not participating. Purtle, J., not participating.


text:
    Jimmy McKINNEY v. Isaac Joe IVEY and Josanna Rene IVEY, His Wife
    85-164
    698 S.W.2d 506
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Burrow & Harlan, for appellant.

      Gardner & Steinsiek, by: Charles J. Gardner, for appellees.
   George Rose Smith, Justice.

The Revised Uniform Adoption Act provides that upon the expiration of one year after an adoption decree is issued, the decree cannot be questioned by any person upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties. Ark. Stat. Ann. § 56-216(b) (Supp. 1985). The Commissioners’ Note to this subsection of the Uniform Act explains that it is designed to impose a very short statute of limitation. “The policy of stability in a family relationship, particularly when a young minor is involved, outweighs the possible loss to a person whose rights are cut off through fraud and ignorance.” 9 ULA 48 (master ed., 1979).

In this case the appellant had no notice of the adoption of his daughter, then aged two, by the appellees until about 18 months after the decree was issued. The appellant then asked to have the decree set aside, but the probate court held that he was barred by the one-year statute. The appeal comes to this court under Rule 29(l)(a) and (c).

We accept as true the allegations in the appellant’s petition to set aside the adoption decree, because the matter was heard below on that petition and the appellees’ motion to dismiss, without the introduction of any evidence. The petition states that the child was born in 1980. The parents were not married. In May, 1982, the mother filed a petition for support in the probate court, asserting that the appellant was the father of the child. The appellant entered his appearance, acknowledged that he was the father, recognized his duty to support the child, and paid the specified amount as long as it was required. The judgment finding the appellant to be the father and directing him to pay support was entered in July, 1982. At about that time the mother of the child married and left the state. The appellant was unable to locate her or the child.

The petition for adoption was filed in August, 1982, by the appellees, who are the brother and sister-in-law of the child’s mother. The mother had signed a consent to the adoption. The adoption decree, entered in September, 1982, found that the mother had consented to the adoption and that the consent of “all persons . . . required by law” to consent had been secured. Neither the appellant nor any other such person was named. The interlocutory decree recited that it was to become final in six months.

The appellant’s petition to set aside the adoption decree alleges that he was given no notice of the pending adoption although the appellees knew that he was the father, knew where the paternity proceeding had been brought, and knew the appellant’s whereabouts in the Chickasawba District of Mississippi County, where the adoption proceeding was brought. The appellant asserts that the appellees fraudulently concealed his name from the probate court and made fraudulent statements regarding his status as the father of the child. The appellant learned about the adoption decree in March, 1984, and filed his present petition in February of this year.

On the basis of the facts as they have been disclosed to this point, it would be a denial of due process of law for the courts to hold that the adoption decree is absolutely protected from challenge. The landmark case is Armstrong v. Manzo, 380 U.S. 545(1965). There the mother of the child remarried and joined in her husband’s petition for adoption. It was falsely stated that the child’s father had failed to contribute to its support for more than two years. On that allegation no notice of the adoption proceeding was given to the father, although the petitioners knew his whereabouts. The Texas court refused to vacate the adoption, but the Supreme Court reversed, saying:

It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. . . .“Anelementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . .” Questions frequently arise as to the adequacy of a particular form of notice in a particular case. . . .But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies.

In a later case the court held that the protection afforded an unwed father under the due process clause is linked to the measure of responsibility he has accepted in rearing the child. It was said that an unwed father who demonstrates a full commitment to the responsibilities of parenthood acquires substantial protection under the due process clause. Lehr v. Robertson, 463 U.S. 248 (1983). In the case at bar the appellant acknowledged his parenthood and contributed to the child’s support to the extent that he was directed by the court to do so. We do not discount the importance of the considerations that led to the creation of a short period of limitations in the applicable statute, but on the facts of this appeal the statute must give way to the requirements of due process.

Reversed and remanded for further proceedings.

Purtle, J., not participating.


author: George Rose Smith, Justice. David Newbern, Justice,

text:
    TXO PRODUCTION CORP. v. PAGE FARMS, INC., et al.
    85-224
    698 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Hardin, Jesson & Dawson, by: Rex M. Terry, for appellant.

      Gardner, Gardner & Hardin, by: Stephen C. Gardner, for appellees.
   George Rose Smith, Justice.

This action was brought by the principal plaintiff, Page Farms, Inc., under Act 269 of 1981, to recover unpaid royalties due upon gas being produced from a gas well drilled and being operated by the defendant TXO Production Corp. Ark. Stat. Ann. § 53-525 (Supp. 1985). The well was drilled on a unitized tract in which Page Farms’ predecessors in title had leased their interest. The trial judge, sitting without a jury, found for the plaintiff and entered a judgment for $5,917.20, plus the statutory penalty, interest, and attorney’s fee. The Court of Appeals transferred the case to us, as coming within Rule 29(l)(n). We affirm.

The facts are not materially in dispute, the issues being essentially questions of law. Tate C. and Wanda Page executed an oil and gas lease on their property in 1964. They later conveyed their interest to a family corporation, Page Farms, Inc. The leasehold interest was eventually transferred to TXO, which completed a gas well in February, 1982. Under Section 53-525, supra, the payment of royalties should have begun not later than six months after TXO’s first sale of gas. That did not occur. In September, 1982, TXO received a title opinion from its attorney, finding that Page Farms was the true owner of its tract within the unitized area. In March, 1983, TXO sent a division order to Page Farms which correctly recited its interest. Page Farms, however, did not promptly sign and return the division order. Apparently in part for that reason, TXO still did not begin paying royalties to Page Farms, which filed this action in July, 1983. Judgment, as we have said, was in favor of Page Farms.

TXO lists and argues four points for reversal or modification of the judgment, but there are so many subordinate supporting reasons presented that we can hardly discuss them all. We confine our opinion to what we regard as the controlling questions.

First, it is argued that TXO was entitled to delay payment because Page Farms’ title was not marketable. The marketability of a title is to be determined by the public record. There is no indication that Page Farms did not have a clear record title while TXO was delaying its payments. In fact, TXO’s own examining attorney had approved the title. TXO argues, however, that this action was filed not only by Page Farms, Inc., but also by Page Farms, a limited partnership, and TXO did not know which one to pay. The title, however, was in the corporation during nearly all the critical time. Apparently a deed from the corporation to the partnership was executed for tax purposes and recorded a few weeks before the trial, but TXO’s own house counsel testified, quite correctly, that the land description in that instrument was void on its face. Payment to Page Farms, Inc., would have been justified.

TXO also argues that the title was somehow rendered unmarketable by Page Farms’ failure to sign the requested division order. To begin with, the oil and gas lease did not require the lessors to sign such an order. TXO submitted testimony that division orders are recognized by custom and usage as being required in the oil and gas industry, but there is no proof that Mr. and Mrs. Page were so familiar with the oil and gas business that their knowledge and acceptance of the particular usage must be presumed. Absent such proof, they were not bound by any such custom or usage. Sharpensteen v. Pearce, 219 Ark. 916, 245 S.W.2d 385 (1952); Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W.2d 762 (1949). Additionally, the proposed division order contained provisions, unfavorable to the lessors, that were not authorized by the lease. Page Farms was not at fault in failing to sign the division order, nor is its title shown to be unmarketable.

Second, the lease contained a provision commonly inserted in such leases, reciting that no change in ownership of the leased premises would be binding upon the lessee until 30 days after evidence of the change had been furnished to the lessee. This lease was executed by the Pages in 1964, but no notice of changed ownership was given to the lessee when the Pages conveyed the property to Page Farms, Inc., in 1975. That was some seven years before TXO drilled the well and TXO’s attorney informed TXO that Page Farms owned its fractional interest as a lessor.

It is now argued that the lessor’s failure to notify TXO of the change in ownership prevents Page Farms from recovering the penalty, costs, and attorney’s fee under the statute penalizing the late payment of royalties.

This argument arises from a situation of frequent occurrence, in which a plaintiff sues for breach of contract and the defendant asserts as a defense an earlier breach by the plaintiff. If the plaintiff’s breach is material and sufficiently serious, the defendant’s obligation to perform may be discharged. Restatement, Contracts, § 397 (1932). Not so, however, if the plaintiffs breach is comparatively minor. Corbin states the basic rule: “If one party to a bilateral contract commits a partial breach of his duty, one that is not so material as to discharge the other party’s duty of performance, the latter’s only remedy is damages for the partial breach.” Corbin, Contracts, § 1253 (1962).

We have applied the rule in situations too numerous to mention. For example, in Henslee v. Mobley, 148 Ark. 181, 230 S.W. 17 (1921), a subcontractor sued the contractor for the agreed contract price of the subcontractor’s work. The contractor contended that he owed nothing, because the work was not properly done. It was found that the subcontractor had substantially performed the work, though there were minor defects. We held that the contractor had a right to insist on the correction of the defects, but “he could not rightfully demand anything more, and. . .can not claim a forfeiture by reason of appellant’s failure to correct the minor defects.”

The trial judge in the case at bar recognized the problem and supplied the correct answer in his conclusions of law:

That the failure of the plaintiffs or their predecessors in interest to notify the lessee or lessee’s successor in interest of a change in ownership is not [such] a material or consequential breach of the original lease as to bar the plaintiffs from recovery. Had the facts in the instant case showed that the defendant had no notice in a change in ownership of the mineral interest, then defendant’s contention would have merit. The facts presented show that the defendant had notice of the change in ownership from the title opinion dated September 9,1982, and was aware that Page Farms, Inc., was the current owner.
That the withholding of royalty payments by defendant under the circumstances as shown by the evidence in this case was improper.

We wholly agree with the trial court’s decision. The Restatement of Contracts declares that an influential circumstance in the determination of the materiality of a failure fully to perform a contract is the extent to which the injured party, here TXO, will obtain the substantial benefit that he reasonably anticipated. § 275; rule repeated in Restatement, Contracts 2d, § 241 (1981). Here TXO obtained the expected benefits in their entirety. It took possession of the well site, drilled the gas well, and presumably is selling the gas. It cannot fairly be said that the lessor’s failure to notify TXO of the changed ownership contributed to its long delay in paying royalties that were due. In fact, this defense was evidently an afterthought, for TXO had enumerated the following seven other defenses in its pleadings before the change-of-ownership defense was mentioned, almost a year after the complaint was filed: Plaintiffs failure to give notice before filing suit, estoppel, laches, waiver, limitations, TXO’s freedom from fraud, and plaintiffs failure to execute a division order. In the circumstances the plaintiffs breach of contract was not material and is to be disregarded.

TXO’s third point is that Page Farms did not comply with a provision in the lease requiring the lessor to give written notice of any claim that the lessee had breached the contract and exempting the lessee from liability for any breach that occurred more than 60 days before the lessee’s receipt of the written notice. We agree with the decision of the Texas Supreme Court, that this provision applies only to an action to cancel the lease and cannot have been intended to bar the lessor forever from recovering damages sustained prior to the giving of the notice. Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866 (Tex., 1968).

Finally, TXO insists that the trial judge’s allowance of a $2,000 attorney’s fee is excessive. The plaintiiFs total recovery was $6,500.07. Its attorney submitted an itemized statement based on a $75 hourly charge, totaling $2,977.25. The trial judge was in a position to evaluate the worth of counsel’s services in the case. The allowance is not excessive.

Affirmed.

Holt, C.J., and Newbern, J., dissent.

Purtle, J., not participating.

David Newbern, Justice,

dissenting.

I disagree with that part of the majority opinion which characterizes as “minor” the failure of Tait C. and Wanda Page to give notice of the change in ownership as required by the lease. I have no quarrel with the authority cited in the majority opinion. In the context of a suit in which the reason asserted for not paying proceeds is confusion as to the identity of the lessor, failure to give the notice of change in ownership should not be regarded as minor.

The majority opinion, in my view, does not take sufficient cognizance of the relationship between the failure to give the required notice and the refusal to execute a division order or a stipulation of interest as well as the conveyance to yet a third party. Not only did the Pages convey their lessor’s interest to the corporation without notice, but they caused the corporation to convey the lessor’s interest to a limited partnership “for tax purposes,” again without notice.

I agree the lessee cannot require the lessor to execute a division order, but I cannot agree to take lightly the apparent assertion of the majority that the lessee had a duty to pay the mineral proceeds to the corporation because of the lessee’s knowledge of the title obtained from its attorney. Execution of the required notice of change in ownership would have eliminated at least the question of whether Tait C. and Wanda Page or Page Farms, Inc. was to be the recipient of the lease proceeds. A title opinion is no more than that. TXO had no duty to ascertain the title or to rely on its attorney’s opinion.

Apparently the title opinion did not reflect the transfer to Page Farms, Ltd. If the payment had been made to Page Farms, Inc., while title was in the limited partnership, TXO would have been subjected to a claim by the partnership, because it held title, as well as a claim by the Pages as individual lessors.

The breach of the lease agreement resulting from failure to give notice to the lessee of sale of the lessor’s interest did not excuse TXO from payment, but in my opinion it did excuse the delay for which TXO is being unfairly penalized in this case. Therefore, I respectfully dissent.

Holt, C.J., joins in this dissent.


author: Darrell Hickman, Justice.

text:
    Gordon L. SULLIVAN v. EMPLOYERS EQUITABLE LIFE INSURANCE COMPANY
    85-231
    698 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Jim O’Hara, for appellant.

      Davidson, Horne & Hollingsworth, A Professional Association, for appellee.
   Darrell Hickman, Justice.

Gordon L. Sullivan was at one time president of Employers Equitable Life Insurance Company. He sued the company on a contract for monthly 5% overwrite commissions due him for developing a marketing program to increase company sales. It was alleged that the contract was orally agreed to by Lester Banfield, the majority stockholder and chairman of the board of directors, and executed at Sullivan’s direction by two company officers, Vice-President Dewey Sims, and Secretary Marsha Stewart. The jury returned a verdict for Sullivan for $ 125,000. The trial court set the verdict aside on the company’s motion, finding that the contract was in no way authorized by the board of directors.

On appeal Sullivan argues that both an oral and written contract for the 5% overwrite existed, and that the written contract was authorized by the board of directors. We affirm the trial court, finding that his reasoning is justified by the record.

The case was submitted to the jury specifically on the question of whether the written contract was properly executed. There was no submitted issue of whether there was an oral contract. The pertinent paragraph of the jury instruction reads:

If you find that Marsha Stewart and Dewey Sims did not have the authority to execute the overwrite contract you are instructed that the contract is not enforceable against Employer’s Equitable and there is no contract between Employer’s Equitable and Gordon Sullivan.

The trial court stated in its findings of fact:

The contract was executed on behalf of the company by two of its officers at the direction of the plaintiff. Neither of those two officers contended that they had any authority to so do, beyond direction of the plaintiff who was president of the company. None of the three officers involved had any apparent or expressed authority to execute the contract or agree to the terms found in the undertakings of the ‘formal agreement’ upon which this suit was brought. The Court is of the opinion that the burden of proof on that issue was on the plaintiff; therefore, the jury’s determination was without support in the record.
One of those who undertook to sign the contract on behalf of the company was the secretary and apparently did rely on a provision in the by-laws of the company wherein it was stated that secretary should execute the contract of the company; however, the provision in the bylaws refers to those contracts properly adopted by the company and is not intended as a grant of authority to the secretary to negotiate or otherwise strike an agreement for the company. Her signature on ‘this’ agreement at the oral direction of Mr. Sullivan was not a corporate act.
It is contended now that the Board Chairman who initially agreed to see that the contract was struck did have the authority by reason of his dominate position with the company; however, that issue was not the issue in dispute and was not submitted to the jury.
Finally, the second signature to the contract was secured by Mr. Sullivan and with no real contention that somehow the corporate authority was invoked.
The Court must therefore agree that the judgment should be set aside and the matter dismissed on the premise, the proof submitted by the plaintiff failed to prove the agreement which was the subject of this litigation

While a general instruction was given by the court stating the jury had to find a valid agreement existed in order to find for the appellant, the above quoted paragraph of the instruction focused the jury on the specific finding that must be made for the appellant to recover: whether the officers were authorized by the board of directors to execute the contract.

The law governing a judgment notwithstanding a verdict permits a trial court to enter such a judgment only if there is no substantial evidence to support the jury verdict. Crail v. Northwestern National Insurance Co., 282 Ark. 175, 666 S.W.2d 706 (1984). On appeal we review the evidence with all reasonable inferences deducible therefrom in favor of the party obtaining the original judgment which was set aside. Crail v. Northwestern National Insurance Co., supra.

According to the trial court’s findings, and that finding is supported by the record, there is no evidence that the execution of the contract by the two officers was authorized by the board. Neither is there any evidence that the board approved the contract. Therefore, the contract did not bind the company and the trial court was correct.

Affirmed.

Purtle, J., not participating.


text:
    Charles Ray THOMAS v. FARM BUREAU INSURANCE COMPANY OF ARKANSAS, INC.
    85-128
    698 S.W.2d 508
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      House, Wallace, Nelson & Jewell, P.A., by: Janice M. Wegener and David A. Couch, for appellant.

      Hardin, Jesson & Dawson, for appellee.
   Darrell Hickman, Justice.

Charles Ray Thomas insured his 1970 John Deere combine with Farm Bureau on October 2, 1981. It was destroyed by fire the next day. After Farm Bureau refused Thomas’ claim, Thomas sued the company for the loss of the combine and included a claim for the tort of bad faith. The two claims were presented to the jury separately. The jury awarded Thomas $15,000 for the combine but found in Farm Bureau’s favor on the bad faith claim. We reverse because during the bad faith phase of the trial, the court refused to allow evidence that Farm Bureau violated the Arson Reporting-Immunity Act. Ark. Stat. Ann. § 66-5601 et seq. (Supp. 1985).

After Thomas’ loss was reported, Farm Bureau’s mechanical engineer investigated the fire. It was his opinion that Thomas had not been truthful about the circumstances of the fire. About a month later Farm Bureau offered Thomas $11,000 in settlement, which Thomas refused. In November the insurance company sent State Trooper David Dillinger to investigate. He was given Thomas’ file. Dillinger testified that he was told by Farm Bureau’s agent “to go out there and scare the people so they would settle.” Dillinger stated in his deposition, which was read to the jury, that “it wasn’t so much an investigation as a mission of intimidation . . .” Dillinger found no evidence of arson. Thomas filed suit in December of 1981 to recover the cost of the combine. It was not until some months later that he amended his complaint to allege bad faith. In January of 1982 Thomas wrote to Diane Rail, an investigator with the Consumer Service Division of the Arkansas Insurance Department, complaining about Farm Bureau’s failure to pay his claim. It is Diane Rail’s testimony which was proffered but erroneously excluded at trial.

She testified that she wrote Farm Bureau three times and asked if they had complied with the Arson Reporting-Immunity Act. Farm Bureau responded each time but did not answer the question until their third reply on March 26,1982. They stated in that letter that they had complied with the statute. Farm Bureau did notify the state police in writing on that date.

Ark. Stat. Ann. § 66-5603(b) (1) requires that when an insurer has reason to believe that a fire loss may be of other than accidental causes, the insurer shall, in writing, notify an authorized agency. At the time of this action, § 66-5603(2) required any insurer that provided information to such agency to notify its insured in writing of such action within 30 days.

In violation of the above provisions, Farm Bureau orally contacted the state police, turned over their file on Thomas, and asked for investigation in November of 1981, without written notice to Thomas. We agree with Thomas’ contention that in this case Diane Rail should have been allowed to testify, and the jury should have been given the instructions that Thomas proffered which set out the requirements of the Arson Reporting-Immunity Act.

There was evidence that Farm Bureau considered this fire to be an act of arson and had a state trooper investigate. That evidence makes the violation of the Arson Reporting-Immunity Act relevant. If Farm Bureau had honestly believed Thomas guilty of arson, it should have complied with the statute. If it did not believe the circumstances of the fire were suspicious, then sending a policeman to investigate in violation of the statute is certainly relevant to whether it was acting in bad faith. To support a claim of bad faith there must be affirmative dishonest, malicious, or oppressive misconduct by the insurance company, without a good faith defense. Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1983). Farm Bureau’s violation of the statute is relevant to whether it was guilty of that sort of misconduct. Therefore, Diane Rail should have been allowed to testify and the proffered instructions should have been given.

Thomas’ other points are meritless. He argues that the state trooper should have been allowed to give his opinion as to why he was sent to investigate the fire. All the evidence Thomas sought to have admitted in that regard got before the jury as reflected by our synopsis of his testimony. Thomas also contends that it was error to refuse his instruction on missing evidence. At trial Thomas tried to establish that the insurance adjustor’s file on his case was lost. He argued that the jury should have been instructed that since Farm Bureau failed to produce the file, there was a presumption that information in the file would support his claim for bad faith. The rule of law he is referring to is as follows:

Failure of a party to produce a written instrument upon which he relies or which would tend to establish an issue of fact, when within his power to do so, creates a presumption that its production would disprove his contention. Corn v. Arkansas Warehouse Corp., 243 Ark. 130, 419 S.W.2d 316 (1967).

Here Farm Bureau is not the party relying on the file to prove an issue; therefore, the rule does not apply. The presumption only arises where the party relying on the instrument has possession of the instrument and fails to produce it.

Reversed and remanded.

Purtle, J., not participating.

       Section 66-5603 (2) was amended in 1983 so that the insurer has 90 days instead of 30 days to notify the insured of its action. Act 415 of 1983 §1.


author: Robert H. Dudley, Justice.

text:
    Clarence BORDEN and Pearl BORDEN v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY
    85-59
    698 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      McDaniel, Gott & Wells, P.A., by: Phillip Wells, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: J. C. Deacon, for appellee.
   Robert H. Dudley, Justice.

The issue on appeal is whether the trial court abused its discretion in granting a new trial. The trial court did not abuse its discretion.

The central issues at the trial of this truck-train collision case were whether the train whistle had been blown at the proper time and whether the truck driver’s view of the train was obstructed. Late in the afternoon of the second day of trial, after both sides had rested, the judge instructed the jury, and then adjourned court until the following morning, when the case was to be submitted to the jury. Included in the instructions was an admonition not to make an independent inquiry or investigation into the facts of the case. Contrary to that admonition, two of the jurors later went to the scene of the accident. The next morning the case was submitted to the jury, and verdicts were returned for the appellants, the truck driver and his wife. After the verdicts, the bailiff gave an affidavit which, in part, provides:

After the jury returned its verdict, and while I was standing near the door by the jury box, Virgil Adkins, the foreman of the jury, said something to me about not wanting to serve on another case like this, and I replied “Yes, they can be confusing.” Mr. Adkins then went on to say that he was down there, or went down there, I’m not sure which, and he watched a train approach the crossing and that it didn’t blow its whistle until it was about 200 feet from the crossing and then only one time. (Emphasis added.)

Judy Beeson, a trial juror, gave an affidavit which, in part, provides:

About 20 minutes into the jury deliberations, after we had gotten some coffee, etc., we decided to go from juror to juror to get from each their preliminary opinion as to fault. At that time Virgil Adkins and Laura Perkins said they had been out to the scene to satisfy themselves about the view. I got the impression they went separately. I remember Mr. Adkins saying that he pulled up there and tried to see and couldn’t. (Emphasis added.)

Janice Cranford, another trial juror, gave an affidavit which provides, in part:

During the deliberations, Virgil Adkins, who served as foreman, and Laura Perkins, one of the jurors, told the jury that they had been to the scene of the crossing accident after court adjourned the day before and made observations. So much was being said, and so many people were talking, I cannot remember everything that they said but I do remember Mr. Adkins saying that the railroad photographs were not representative of the view that Borden had and that the railroad switchbox did block the view of a motorist. (Emphasis supplied.)

Juror Beeson, juror Crawford, and the other eight jurors who did not make an independent investigation of the scene, also gave affidavits stating that the two jurors who visited the scene did not state any facts which were different from the evidence introduced at the trial.

Jurors Adkins and Perkins gave affidavits admitting that they made independent investigations and stating that the extraneous information did not influence their deliberations. After considering all of the affidavits the trial court granted a new trial.

The appellants first contend that the trial court used the wrong standard in granting the new trial. A trial judge is vested with great discretion in acting on a motion for a new trial and will not be reversed on appeal unless there is a manifest abuse of that discretion. In addition, a showing of abuse of that considerable discretion is even more difficult when a new trial has been granted, rather than refused, because the beneficiary of the verdict which was set aside has less basis for a claim of prejudice than does one who has unsuccessfully moved for a new trial. Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982).

The method of inquiry into the validity of a jury verdict is governed by Rule 606(b), Unif. R. Evid. The rule attempts to balance the freedom of secret jury deliberations on one hand with the ability to correct an irregularity in those deliberations on the other. It provides that an irregularity in the jury room which is an internal occurrence may not be investigated, but that an irregularity due to some external event may be investigated. It provides:

Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberation or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

The trial court properly refused to consider those parts of the affidavits which referred to the internal deliberations of the jury, and properly did consider those parts of the affidavits which referred to external influences. Even so, the appellants contend that the appellee did not prove any actual prejudice from the external evidence. The short answer to that argument is that it is not necessary to prove actual prejudice. Once a juror has contaminated the jury’s deliberations with extrinsic evidence, a new trial will be warranted if there is a reasonable possibility of resulting prejudice. See United States v. Castello, 526 F. Supp. 847 (W.D.Tex. 1981). To require the losing party to prove actual prejudice would place an impossible burden upon him. The trial judge applied the correct standard.

The appellants next contend that the trial judge, while orally stating his findings of fact, erroneously stated the amount of the damages asked in the amended complaint. The error was harmless. In addition, since granting a new trial was the correct action to take, that action does not become error simply because the trial court gave the wrong reason for it. Martin v. Blackmon, 277 Ark. 190, 640 S.W.2d 435 (1982).

The appellants contend that the trial judge improperly weighed the evidence by giving too much credence to the affidavit of the bailiff. On appeal, we do not simply reweigh the evidence. We affirm unless the trial judge was clearly erroneous. Rule 52(a), ARCP. In commenting on the deference which an appellate court gives to a trial court on direct appeal from a bench judgment, the New York Court of Appeals perceptively wrote:

Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . .How can we say the judge is wrong? We never saw the witnesses. ... To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.

Boyd v. Boyd, 252 N.Y. 422, 169 N.E. 632 (1930).

The appellants next contend that this case must be reversed in accordance with B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S. W.2d 258 (1984). The argument is without merit as that case is easily distinguishable from this one. Both cases involve motions for new trials and, as we have already pointed out, that is a matter over which the trial judge has great discretion. In Byers a new trial was denied. We affirmed. Here, one was granted. We affirm. In Byers one juror went on a public highway to the place where the accident had occurred. He may have already been familiar with the scene and he had received no instructions forbidding him to conduct a private investigation. We held that under those circumstances there was no possibility of prejudice. Here, one of the critical issues was whether the train whistle was sounded. From the affidavit of the bailiff, the trial judge could have found that juror Adkins may have been influenced by the external information that he gained on the day he visited the scene. That is, the train whistle was not blown until the train was 200 feet from the crossing. In addition, the affidavits of jurors Beeson and Crawford could have caused the trial judge to find that the external information possibly influenced the jurors on the issue of visibility. Here, there was a clear possibility of prejudice.

Appellants last argue that all twelve jurors joined in the verdict and, since ten of those twelve did not conduct an independent investigation, the verdict by those ten should stand. The argument is without merit. The appellee is entitled to a trial by twelve, not ten, impartial and unprejudiced jurors who base their judgment on the evidence presented at trial. See Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940).

Affirmed.

Purtle, J., not participating.


author: Steele Hays, Justice.

text:
    James R. SHELTON v. STATE of Arkansas
    CR 85-77
    699 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Hubbard. Patton, Peek, Haltom & Roberts, by: Michael D. Peek, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Just after midnight,on April 1,1984 the body of Deputy Sheriff Charles Barnes was found beside his patrol car on Holly Springs Road in Miller County, Arkansas. The headlights and spotlight were on and the motor was running. Officer Barnes had been shot through the back of the head.

Appellant James Shelton was convicted of the capital murder of Officer Barnes and sentenced to life without párole. On appeal, several instances of reversible error are alleged, two of which have merit.

James Shelton, age 17, and Gene Emfinger, Jr., age 14, worked together at Joe Singletary’s dairy farm, where they lived in a bunkhouse. On the evening of March 31, 1984 Emfinger’s cousin, Roger Dale Porier, picked the boys up to ride around in Porier’s car. Porier was thirty-two years old and had a long criminal record. He had recently been released from a Texas prison. Shelton had known him only a few days.

During the evening, the three burglarized the Macedonia Baptist Church, Porier carrying a .30-.30 rifle. They took some articles of little value — paper towels, pencils and crayons and left. Porier then said he was going to ambush a passing motorist and stopped on the side of the road. Shelton and Emfinger stayed in the car as Porier hid with the rifle. Deputy Charles Barnes, patrolling in the area, stopped to investigate and as he spoke with the boys, Porier came up without the rifle, evidently to size up the situation. On a pretext of needing to relieve himself, Porier retrieved the rifle, held it on Officer Barnes and ordered him to lie face down in the ditch. Porier then shot him through the back of the head. A few hours later Roger Porier was killed in a shootout with police officers. He had Deputy Barnes’ pistol.

I

We first address the argument that the trial court erred in denying a defense motion to suppress two statements made by Shelton to police officers. After the murder, Porier took Shelton and Emfinger back to the bunkhouse. They say he told them he would kill them if they told anyone what they had seen and that he parked outside the bunkhouse for an hour or so before leaving.

At about 2:30 a.m. Officers Phillips, Casteel and Liles came to the bunkhouse looking for Porier and another suspect named Hendrix. It took the officers ten or fifteen minutes and the use of a P.A. system to get James Shelton to open the door to the bunkhouse. The boys later explained that they were frightened and had hidden in a closet. The officers told them a deputy had been killed and asked if they knew Hendrix and Porier. They said they had not seen Hendrix for some time and denied knowing Porier. The officers asked the boys to show them where their parents lived. In the car the two were told that Roger Dale Porier was suspected of a very serious crime, killing a police officer. At the Shelton residence, Lt. Phillips, Officer Casteel and Emfinger got out and Officer Liles was instructed by Lt. Phillips to stay in the car with Shelton. Officer Liles stressed the seriousness of the crime and told James if he knew anything about it or if he could help locate either suspect, he’d better go ahead and do it. At this point, according to Liles’ testimony at the trial, tears came to Shelton’s eyes and he said, “We did it. We did it. We were there. We were there.” Liles called to the other two officers, “We have a witness,” and at that point the Miranda warnings were given. Shelton and Emfinger were handcuffed and taken to the sheriffs office where detailed statements were given after the Miranda warnings.

The primary issue is whether or not the statement given to Liles in the police car was a result of custodial interrogation. If so, the statement should not have been admitted, as no Miranda warnings were given. If this can be classified as a voluntary, spontaneous statement, whether or not in custody, the warnings would not be required. Hays v. State, 274 Ark. 440, 625 S.W.2d 498 (1981); Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). Nor are warnings required if the questioning by police is simply investigatory. Parker v. State, 258 Ark. 880, 529 S.W.2d 860 (1975); Dickson v. State, 254 Ark. 250, 492 S.W.2d 895 (1973). Police inquiry is purely investigatory and proper until the suspect is restrained in some significant way. Once in custody however, no interrogation is allowed absent the Miranda warning and a knowing, voluntary waiver. Parker v. State, supra; Miranda v. Arizona, 384 U.S. 436 (1965). Here, appellant’s remarks were not volunteered and spontaneous but the result of questioning, so the issue becomes whether under the circumstances the questioning would be deemed custodial interrogation. See Parker, supra; Dickson, supra; Reeves v. State, 258 Ark. 788, 528 S.W.2d 924 (1975).

In Reeves v. State, supra, we said, “Custodial interrogation means not only actual arrest but also any conduct that deprives a person of his freedom of action in any way. Furthermore, the test is an objective one.” See also Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1972); Parker, supra. In Reeves the police came to defendant’s home to inquire about a crime. They refused to obey the defendant’s command and would not let defendant out of their sight. We found from an objective viewpoint that the defendant was in custody.

In Berkemer v. McCarty, 104 S.Ct. 3138(1984) the U.S. Supreme Court recently announced the test for determining custodial interrogations, a test similar to that in Reeves. “It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with formal arrest.” A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”

In People v. P., 27 N.Y.2d, 286 N.Y.S.2d 225, 233 N.E.2d 255 (1967), cited with approval in Berkemer, the court points out that the purpose of the Miranda warning is to protect the individual’s freedom of choice — to answer or not answer — in situations that are inherently coercive. The court went on to say:

The vice of the custodial interrogation * * * [lies] in the psychological coercion implicit in interrogation in the isolated chamber from which the suspect may reasonably believe he cannot leave. In such circumstances the person detained or arrested finds himself completely and suddenly cut off from a freedom of movement. An involuntary immobilization by law enforcement officers dramatizes the fact that the individual stands suspected or accused of crime. Lacking knowledge of his constitutional rights, he may feel that he can extricate himself from the situation only by submitting to interrogation. He may reasonably believe that if he attempts to leave the interrogation chamber the authorities will impose immediate detention. * * *
* * * We hold that custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe, as a reasonable person, that he is so deprived.” This is the test which we hold to be the most reasonable. It gives effect to the purpose of the Miranda rules; it is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does it place upon the police the burden of anticipating the frailties or idiosyncrasies of every person whom they question.

In considering the application of this rule, we find two elements that heavily influence our conclusion — appellant’s age and the place of interrogation. Although age is not an overriding consideration, when reviewing the circumstances of a defendant’s statement, Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), age has been seen as an important element in determining volition. Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). The deference accorded adolescents has been recognized by the United States Supreme Court. In Matter of Gault, 387 U.S. 1 (1966), the court said:

If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, ignorance or despair.

And in a pre-Gault decision, the court in holding the confession of a fifteen year old involuntary said that juveniles, “. . .cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overcome and overwhelm a lad in his early teens.” Haley v. Ohio, 332 U.S. 596 (1948). In Matter of Hector G., 393 N.Y.S.2d 519, 89 Misc.2d 1081 (1977), the New York court stated, “Adolescents are more likely to succumb to the inherently coercive nature of police interrogation and the police should apply extra caution when dealing with juveniles.”

Second, we note that interrogation in a police car has been considered a significant factor in finding an individual under custodial interrogation. 31 A.L.R.3d 365, Custodial Interrogation.

Although nearly eighteen chronologically, Shelton was of marginal intelligence and maturity. One of the officers thought he was younger than Emfinger, who was fourteen. They were awakened at 2:30 in the morning and summoned out of the bunkhouse by three officers using a P.A. system. Shelton had never been arrested or been in jail. The officers told them they were looking for the killer of Charles Barnes and expressed their concern for potential problems when they arrived at the parents’ house. Shelton was then ordered by the senior officer to stay in the police car with another officer. It was in the police car that Shelton was interrogated, making the inculpatory remark after being told by Officer Liles to tell what he knew.

After viewing the evidence as a whole, we conclude the statement made to Liles in response to the officer’s direct inquiry was not properly admitted. We are influenced in part by the reaction of the trial judge, who recognized the uncertainty of the statements. At a hearing on Shelton’s motion for a new trial, he said:

I want to make one other comment. At the first of this trial I overruled a motion to quash the statements given by Mr. Shelton. I’m not changing my mind on it, but since I’ve had a chance to read this transcript and read the statements fully, I really wonder about whether I made the right ruling at that time or not. It may have been that I should have quashed these statements because, at the time of this statement to Officer Liles, Mr. Shelton had not been advised of his rights. With the credibility being such as it is now there is some serious question as to whether I erred in allowing that statement to come in to start with. The Supreme Court can review this transcript and they can determine whether I did err or whether I didn’t err at that point. They also can review this testimony and determine what they think ought to be done, if anything.

Because of our conclusion as to the nature of the first statement, we must find the subsequent statement given at police headquarters should also have been excluded. When the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown. Woodward v. State, 261 Ark. 895, 553 S.W.2d 259 (1977); Matthews v. State, 261 Ark. 532, 549 S.W.2d 492 (1977); Payne v. State, 231 Ark. 727, 332 S.W.2d 233 (1960). We added in Matthews, “The effect of earlier abuse may be so clear as to forbid any inference other than that the later confession is involuntary. On the other hand, one making a confession which is involuntary is not perpetually disabled from a making a voluntary confession after the conditions of abuse have been removed. Lapse of time is an important consideration.”

In Payne, the appellant had been denied almost all basic procedural rights culminating with a threat by one of the officers that a mob would arrive in a few minutes that wanted to “get him.” We found the confession that followed involuntary as we did a subsequent re-enactment of the crime by appellant for the officers two hours later. In Matthews, appellant alleged physical abuse by police officers for which there was some corroboration by another witness. Appellant confessed to the crime but was never charged. Eleven months later, appellant was arrested on another charge and confessed. On appeal he argued the confession was involuntary as he was still under the coercive effects of the interrogation eleven months earlier. We found the previous incident was too remote to consider in connection with an interrogation about a wholly unrelated crime.

In this case, although prior to the second statement, appellant was carefully given his Miranda warnings and executed the appropriate waivers, we do not find sufficient dissipation of the coercive elements of the first confession was clearly shown. To the contrary, appellant was immediately handcuffed and driven to police headquarters where his formal statement was taken at about four o’clock in the morning. There was no lapse of time between the two statements and given the circumstances of appellant’s original remarks, there was no substantial change in the environment where the second statement was given, nor events to interrupt or alter the effects of the conditions of the first statement.

We note that even under the more relaxed standard recently announced in Oregon v. Elstad,_U.S_, 105 S.Ct. 1285 (1985), we must still exclude the second confession. In Elstad, the Supreme Court considered the admissibility of confessions subsequent to statements given without Miranda warnings. The court changed its focus from an examination of attenuation, Wong Sun v. U.S., 371 U.S. 471 (1963) and “letting the cat out of the bag,” United States v. Bayer, 331 U.S. 532 (1947) to the nature of the first confession. In essence, Elstad holds that a first confession obtained without the Miranda warning will not exclude any subsequent confessions if the first confession was voluntary. “We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Elstad at 1296.

In Elstad, the police had gone to the defendant’s home and asked his mother if they could talk to him. They had a warrant for his arrest and the state had conceded the defendant was in custody. She let the officers in and they spoke with the defendant in the living room. He was asked if he was involved in a certain robbery and he said, “Yes, I was there.” He was then arrested and taken to police headquarters where a formal statement was taken. The court reasoned that the purpose of the Miranda rule is to avoid statements in inherently coercive situations and although the court agreed the first statement could not be used, it found the second formal statement was not tainted as it was not the product of a coerced statement.

In applying its rule to the facts in the case the court said: “It is . . . beyond dispute that respondent’s earlier remark was voluntary within the meaning of the Fifth amendment. Neither the environment nor the manner of either interrogation was coercive. The initial conversation took place at mid-day, in the living room area of respondent’s own home, with his mother in the kitchen area a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed he was under arrest.”

The facts in the case before us are in contrast to those in Elstad which led the Court to conclude the first statement voluntary. As in Elstad, the first statement given by appellant to police was in custodial interrogation, but in Elstad, the Court found none of the coercive elements of custodial interrogation were present. Here, as discussed earlier, it was the inherently coercive nature of this situation which created the custodial setting and without the Miranda warning removed appellant’s freedom of choice and action. We cannot say under these circumstances that the first statement was knowingly and voluntarily made.

II

The other point which warrants reversal concerns the exclusion of character evidence. The defense attempted to elicit from Joe Singletary evidence of James Shelton’s character in the form of opinion testimony and by specific instances of conduct. The trial court would allow neither and instructed the defense that character could be established only by proof of reputation in the community. Rules 404 and 405, Arkansas Uniform Rules of Evidence, provide that evidence of a person’s character is not admissible to show he acted in conformity therewith, except that the accused may offer proof of a pertinent character trait and the prosecution may rebut that proof. Where admissible, the proof may be made by testimony as to reputation and, on cross-examination, into specific instances of conduct.

The court was right to exclude proof of character through specific instances of conduct on direct examination, but should have admitted opinion evidence of a “pertinent trait.” A “pertinent trait” has been held to mean “relevant,” defined in Unif. R. Evid. 401 as any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. U.S. v. Staggs, 553 F.2d 1073 (7th Cir. 1977). The prevailing view limits pertinent traits to those involved in the offense charged — proof of honesty in a theft charge or peacefulness in a murder charge. McCormick on Evidence (3rd Ed. 1984). However, it is necessary to allow evidence of defendant’s character, as testimony that the general estimate of his character may be so favorable the jury could infer he would not be likely to commit the offense charged. This may be particularly valuable, since that testimony alone may be enough to raise a reasonable doubt of guilt in the minds of the jury. Weinstein’s Evidence, Vol. 2, § 404[02].

In this case, the defense proffered opinion evidence that Shelton was not a discipline problem and had an aversion to violence. Both of these traits — probative of a law abiding and non-violent nature — have been traditionally admissible in a murder case and should have been admitted. See McCormick, supra § 191; Finnie v. State, 267 Ark. 638, 593 S.W.2d 32 (1980). The defense also sought to introduce evidence of Shelton’s immaturity and limited intelligence. Both traits were relevant to a lack of intent — a crucial issue here, since the jury had to determine whether Shelton was simply an observer or an active participant in the crime. Although relevance of evidence is within the discretion of the trial judge, because of the critical nature of the evidence we think the probative value would not be outweighed by any danger of confusion or loss of time.

Ill

We find no error in other points argued but necessarily address them for purposes of remand.

A

Appellant argues the court erred in denying three motions for funds. He first submits that Ark. Stat. Ann. § 43-4219, which authorizes and limits the amount of funds for payment of defense counsel and investigation services for indigent defendants, is so inadequate as to be unconstitutional. We considered this issue in State v. Ruiz & Van Denton, 269 Ark. 331, 602 S.W.2d 625 (1980) and upheld its constitutionality. Although we expressed concern that the statute does not allow for adequate compensation in some cases, we said the remedy must remain in the province of the legislature.

B

Appellant also asked for deposition expenses. § 43-2011 permits the trial court to authorize a defendant to take depositions of material witnesses under certain circumstances and with certain procedures to be followed by the defendant. § 43-2011.1 allows for payment of the indigent’s attorney for expenses connected with any depositions taken. It is not clear from either appellant’s motion or his argument just what request he was making, but at the most it appears to be a generalized request for deposition funds for which there is no statutory authority. Nor did appellant follow the procedures for deposition requests set out in § 43-2011. “It is well settled that the right to take a deposition rests upon statutory authority and in no case can that right be exercised unless that authority exists.” Kelly v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983); Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980). Under these circumstances we find no error in the court’s refusal of the request.

C

Appellant’s third request was for funds for an independent psychological evaluation. Ark. Stat. Ann. § 41-605 provides for psychological evaluation when the defense involves mental disease or defect or the defendant’s fitness to proceed is in issue. We said in Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983) that the purpose of this statute is to prevent the trial of any person while incompetent to understand the nature of the procedures involved and to assist in the defense thereof, as well as to prevent the trial of a person who lacks the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law at the time of the offense. Appellant did not raise the defense of either mental disease or lack of fitness to proceed, but only wanted to present expert testimony on the issue of immaturity and intelligence level. There was no authority for the court to authorize such a request nor is the purpose one of constitutional proportions. Youthfulness, immaturity and intelligence are all matters that can properly be presented to the jury for consideration as mitigating circumstances, but are not constitutionally recognized defenses requiring state funding. Appellant, was not prejudiced in any case, as a psychologist was obtained by the defense and testified in appellant’s behalf.

D

Appellant maintains the trial court should have disqualified the prosecutor. He argues the prosecuting attorney was closely involved with the sheriffs department where the deceased officer worked. As the decision to try appellant as a juvenile was within the discretion of the prosecution, appellant argues the close working relationship between the two departments prevented the prosecution from making an unbiased determination on that issue. Appellant cites no authority or proof for this proposition and we are not persuaded it is the basis for compulsory disqualification. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

E

Appellant contends it was error, to deny his motion to transfer the case to juvenile court. The only support for his argument is that Gene Emfinger was tried as a juvenile and that appellant had a lower functioning maturity level. However, we have not looked to mental age to determine criminal culpability. Allen v. State, 253 Ark. 732, 488 S.W.2d 712 (1973). Appellant was seventeen at the time of the crime, had finished the ninth grade and held a job. Although the record reflects appellant’s immaturity, that in itself is not sufficient to show an abuse of discretion in charging appellant as an adult.

F

Appellant proposes that we reverse our holding on permitting death qualified juries. See Rector v. State, 280 Ark. 885, 659 S.W.2d 168 (1983). However, we have reaffirmed our position since the Eighth Circuit Court of Appeals affirmed Grigsby v. Mabry, 758 F.2d 226 (8th Cir., 1985), see Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), and we decline to change our position.

G

Appellant next claims error in the admission of evidence concerning the burglary that took place just prior to the shooting of the officer. A prior act is admissible if it tends to show intent, plan or motive under Unif. R. Evid. 404(b), or where acts are intermingled and contemporaneous with one another, the evidence with respect to any and all of them is admissible to show the circumstances surrounding the whole criminal episode. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Lair v. State, 283 Ark. 237, 675 S.W.2d 361 (1984). The evidence was properly admitted. Here the state was arguing the motive for killing Officer Barnes was to avoid discovery of the burglary, while appellant was contending he was only a witness to the shooting. Evidence of the burglary was admissible to show motive and intent. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). Additionally, the time of the burglary and the murder was probative of an ongoing, uninterrupted course of conduct. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Love v. State, supra; and see, Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983).

H

Appellant urges his motion for a directed verdict and a new trial should have been granted, there being no substantial evidence on which to base the verdict. When we view the evidence in the light most favorable to the appellee, we think it was sufficient. Appellant participated in a burglary shortly before the murder; he was at the scene of the murder when it occurred; there was testimony from the officer who took his fingerprints that appellant voluntarily relayed the events of the night and in describing the shooting said he and Emfinger removed the officer’s weapon from its holster before Porier shot him. In considering the sufficiency question we must also consider both statements given to the police, even though we have found them inadmissible. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In light of that, we cannot say as a matter of law the circumstantial evidence could not support a verdict. See Henry v. State, supra. One need not take an active part in a murder to be convicted if he accompanies another who actually commits the murder and assists in such commission. Henry v. State, supra. Hallman & Martin v. State, 264 Ark. 901, 575 S.W.2d 688 (1979).

I

. Another statement attributed to him which Shelton would have suppressed was provided by Ms. Judy Montani, the jailer who fingerprinted Shelton and Emfinger. She said Shelton told her “they” (evidently referring to Emfinger and himself) removed the pistol from the officer’s holster and handed it to Porier. She said they told her they got in the car and they yelled at Porier not to kill the deputy. It.was abundantly clear from Ms. Montani’s testimony that appellant’s remarks were not in any way solicited by her but were voluntary and spontaneous admissions. There was no error in their admission. Hays v. State, supra; Pace v. State, supra.

J

Appellant’s final argument is that it was error to exclude testimony of witnesses that Porier had an independent motive in the shooting — an avowed hatred of law enforcement officers. Appellant argues that contrary to the state’s theory that the motive for the shooting was related to the burglary, Porier had an independent motive. Of course, proving that Porier had a motive of his own would not necessarily negate any motive on the part of appellant. The court excluded the evidence and commented there was already sufficient evidence that would allow the jury to conclude Porier was a wholly undesirable character. We cannot say it was an abuse of discretion to exclude the evidence, particularly if it was simply cumulative of other proof. Unif. R. Evid. 401, 402; Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980).

The judgment is reversed and remanded.

Purtle, J., not participating.

       We note an ambiguity in Officer Liles’ account of the words themselves which casts a serious cloud of doubt over their accuracy. Officer Liles testified at the trial that Shelton said, “We did it. We did it. We were there, we were there.” But in his testimony at the suppression hearing he quoted Shelton as saying, “We were there. We were there. We know all about it.” When the issue was pressed by the state, he testified the words were, “We did it. We did it.” Officer Liles’ thorough, detailed report made a few hours after the arrests, contains this exact account, which further clouds the proof:
      Just after Lt. Phillips and Deputy Casteel got out of the vehicle, the subject James R. Shelton asked me what this was all about. At that point, I stated to the subject that there had been a deputy shot and we were trying to locate anyone who might know something about a subject named Roger Dale Porier. The subject Shelton then broke down crying and stated: quote We were with him. We were with him, we saw the whole thing unquote. (R. p. 929).


author: David Newbern, Justice.

text:
    Edward McNEELY, Jr., et al. v. Paul L. BONE and Faye S. BONE
    85-117
    698 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Simes & Associates, by: L.T. Simes, II, for appellant.

      Stripling & Morgan, by: Dan Stripling, for appellee.
   David Newbern, Justice.

This appeal results from an order to sell real estate and divide the proceeds. The appellants contend the land, of which they are part owners, could have been partitioned in kind, and they contend the partition statutes are unconstitutionally applied in this case. We find no merit in either point, and thus we affirm.

1. Constitutionality

The appellants, descendants of John B. Blanton, have inherited various undivided interests in 160 acres of land which Blanton obtained by patent in 1904. The appellees have purchased the undivided interests of twelve other Blanton descendants. Ark. Stat. Ann. § 34-1801 (Supp. 1985) permits any person owning an interest in land in common with others to seek a partition of the land. The appellees have obtained an order partitioning the land and for sale of it because the court found it could not be partitioned in kind.

For their argument that partition in this case should not be permitted because it is unconstitutional, harsh and unreasonable, the appellants have cited the Fifth and Fourteenth Amendments to the U. S. Constitution, a newspaper article, and, in their reply brief, C. Kelly, Stemming the Loss of Black Owned Farmland Through Partition Actions A Partial Solution, 1985 Arkansas Law Notes.

The appellants make no argument connecting any of the evidence abstracted to any particular allegation of violation of the Fifth or Fourteenth Amendments. The argument, rather, is that the Arkansas statutes permitting partition of land are being abused in a manner that is causing black persons to have to sell their inherited ancestral lands. No evidence to that effect was introduced at the trial. Nor was there any allegation or evidence produced that the appellants had not had sufficient notice or were discriminated against because of their race or otherwise.

The facts in this case may be close to the scenario addressed in the Arkansas Law Notes article, i.e., a white speculator buying black owned land for less than its value by using the partition device, but there is no evidence to show it. Even if there were, the cited article suggests legislative solutions which would permit persons desirous of holding on to ancestral land to fend off partition speculators. It does not suggest that § 34-1801 or the Arkansas partition statutes, generally, are unconstitutional.

2. Partition in Kind

The appellants contend it was error for the court to find that the land could not be partitioned in kind. The land consists of four forty-acre tracts. They contend that they were willing to accept one forty-acre tract (25%) even though they owned 28.6% of the land. The problem with that argument is that it ignores the disparity in value of the forty-acre tracts. In kind division must take account of the quality as well as the quantity of the land being divided. Ark. Stat. Ann. § 34-1818 (Repl. 1962).

The only testimony in the record on the question of the possibility of an in kind division came from an expert witness presented by the appellees. He testified he could not think of a way to achieve a fair in kind division. The appellants asked that the court divide the property in kind giving them either of two designated forty-acre tracts. The court refused to do it on the ground that the only evidence presented was that no such division could be fairly made. The fact that the appellants were willing to take a tract which was less than their 28.6% of the total acreage is not compelling, as there was no evidence presented to show that such a division would be fair in terms of the comparative values of the forty-acre tracts. The only evidence before the court was to the contrary.

Section 34-1801 provides a party seeking partition may ask for division of the land “. . . and for a sale thereof if it shall appear that partition cannot be made without great prejudice to the owners. . . .” Section 34-1815 provides that when partition has been adjudged the court may appoint commissioners to make the partition according to the interests of the owners. It further provides the court may order a sale without appointing commissioners “. . . if the court determines from the evidence presented that there is no necessity for the appointment of commissioners.” Considered together these statutes confer upon the chancellor the authority to decide whether partition in kind is feasible. That is a question of fact, the answer to which depends on evidence of the nature of the land and the nature of the interests of the owners. Factual determinations made by the court trying a case without a jury will not be overturned unless they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a); Holmes v. City of Little Rock, 285 Ark. 296, 686 S.W.2d 425 (1985); Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985).

Affirmed.

Purtle, J., not participating.


text:
    Lewis MAGRUDER v. ARKANSAS GAME AND FISH COMMISSION
    85-162
    698 S.W.2d 299
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Smith, Smith & Duke, by: Griffin Smith, for appellant.

      P. Douglas Mays, for appellee.
   David Newbern, Justice.

The appellant challenged an Arkansas Game and Fish Commission regulation. The chancellor did not rule on the merits of the regulation but held solely that the appellant, lacked standing to challenge the regulation. We conclude that the appellant had standing sufficient to mount the challenge, and thus we reverse and remand the case for a determination on the merits.

The commission imposed a regulation providing that black bass under fifteen inches long could not be taken from Lake Maumelle. The chancellor held the regulation was unconstitutional because Ark. Const, amend. 35, § 8, prohibits the commission from regulating less than a complete zone except in emergencies. Then the commission passed a regulation making every body of water in Arkansas a separate zone. The fifteen-inch minimum was thereafter reimposed on Lake Maumelle.

The appellant obtained from the chancellor an order reopening the case in which the original regulation was held unconstitutional. After reopening the case, the chancellor issued a memorandum of decision to counsel for both parties. The memorandum noted that Lake Maumelle is the property of the Little Rock Municipal Water Works and that the authority to manage the fish stock has been conferred by the water works on the commission by agreement. The memorandum further said that if the commission owned the lake its rule on the minimum length of black bass to be taken would be unconstitutional but that under the prevailing circumstances only the water works could have standing to challenge or “fault” the commission. Counsel for the commission was asked to draw an order based on the memorandum.

The order dismissed the appellant’s claim. It recited that zoning by the commission was not at issue and that Lake Maumelle was owned by the water works which had conferred authority to manage fishing on the lake.

While the chancellor’s memorandum said that the commission’s zoning scheme would be unconstitutional if it owned the lake, his order made it clear that the constitutionality of the zoning scheme was not decided. The very most we can make of the memorandum and the order based on it is that the chancellor’s decision was only that the appellant lacked standing. While the appellant would have us rule on the question of the constitutionality of the regulation in question, we are not in a position to overturn a ruling the chancellor did not make.

[I] Our holding is that the chancellor erred in concluding the appellant lacked standing to challenge the regulation. The appellant alleged he was a licensed fisherman who frequently fished Lake Maumelle. Nothing in the record showed the commission challenged that allegation. If the commission’s regulation is to be enforced it will have an effect on persons who fish Lake Maumelle regardless of who owns the lake. One whose rights are thus affected by a statute has standing to challenge it on constitutional grounds. Thompson v. Arkansas Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980). The same rule applies to official acts other than statutes, Rogers v. Paul, 382 U.S. 198 (1965), and thus it applies to the regulation in question here.

Reversed and remanded.

Purtle, J., not participating.


author: Per Curiam.

text:
    Jackie B. BLUE v. STATE of Arkansas
    CR 85-92
    698 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered November 12, 1985

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner, Jackie Blue, asks to be allowed to file a pro se brief to supplement his court-appointed attorney’s brief. The attorney filed what amounts to a “no merit” brief in petitioner’s behalf in his appeal from a denial of post-conviction relief.

In order to file a “no merit” brief, petitioner’s attorney must file a motion for permission to withdraw as counsel and further comply with Ark. Sup. Ct. Rule 11 (h). Petitioner will then be given 30 days in which to file a pro se supplemental brief pursuant to Rule 11 (h).

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Roy Chester HENDERSON v. STATE of Arkansas
    CR 85-84
    699 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered November 18, 1985

      Daniel R. Carter, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant was charged with five separate counts of aggravated robbery. A jury convicted him of one of the charges on May 4,1982. Thereafter, appellant confessed to all five robberies and entered into a plea agreement with the state whereby he was sentenced to a total of 40 years imprisonment for all counts. An appeal was not prosecuted. On May 16,1983, appellant filed a motion for belated appeal which was denied by this court without prejudice to allow the appellant to apply to the trial court for an evidentiary hearing on whether he was informed of his right to appeal and whether he waived that right. Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). The trial court found he was so informed and that he waived his right to appeal and denied appellant’s motion. We affirmed that decision on February 6,1984. Henderson v. State, 281 Ark. 306, 663 S.W.2d 734 (1984). Subsequently, the appellant filed a motion to obtain a transcript at public expense so he could pursue postconviction relief pursuant to Ark. R. Cr. P. 37. That motion was denied by the trial court on April 15, 1985. It is from the denial of the motion for a transcript that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29(1)(e).

The motion is without merit. In his request for a copy of the trial transcript, the appellant stated he wanted to search the record for:

harmful, and prejudicial error of the Court, competence of trial counsel and the following:
(1) The petitioner reviews the sufficiency of the evidence,
(2) The petitioner will review the accuracy of the witness testimony,
(3) The petitioner will review the Bill of Information, as to its compliance with Amend. 21,
(4) The petitioner will review the police reports taken on the date crime occurred.

The appellant has not established a compelling need for a copy of the record. At no point does appellant explain why the transcript is necessary for him to present his grounds for postconviction relief to this court. The mere fact of indigency does not entitle a petitioner to a free transcript for the purpose of searching the record in an attempt to find support for allegations in a petition under Rule 37. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980), citing Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971). Furthermore, the motion is not attached to nor incorporated into a petition for postconviction relief. See United States v. Losing, 601 F.2d 351 (8th Cir. 1979).

As to appellant’s specific allegations of error, they all could have been raised at trial and in the record on a direct appeal and, as such, are not grounds for postconviction relief pursuant to Rule 37. Accordingly, the decision of the trial court denying appellant’s motion for a transcript is affirmed.

Affirmed.

Purtle, J., not participating.