author: Webb Hubbell, Chief Justice.

text:
    Robert Bruce McQUEEN and Charles Edward KELLY v. STATE of Arkansas
    CR 84-48
    675 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Denny Hyslip, Public Defender, for appellant Kelly.

      Dale Varner, for appellant McQueen.

      Steve Clark, Atty. Gen., by: Jack Gillian, Asst. Atty. Gen., for appellee.
   Webb Hubbell, Chief Justice.

Appellants Robert Bruce McQueen and Charles Edward Kelly were each charged in the Washington County Circuit Court with several counts of aggravated robbery and theft of property. Following a motion for severance, appellants were tried separately. Appellant McQueen was convicted of four counts of aggravated robbery and four counts of theft of property and sentenced to sixty years imprisonment. Appellant Kelly was convicted of five counts of aggravated robbery and five counts of theft of property and was sentenced to two hundred years imprisonment. The convictions are consolidated for appeal.

On January 25, 1983, an employee of a Spee-Dee Mart was held up by a man wearing a red ski mask and a tan corduroy jacket and carrying a silver western-style gun. The man told the employee to take all the money, which totalled about $300.00 in cash, and put it in a sock. On February 10, 1983, the same clerk was held up again by a similar looking man wearing a blue coat and red ski mask and carrying the same type gun who took approximately $150.00 in cash from the store. On February 5, 1983, an employee of Wilco Food Mart was held up by a man wearing a red ski mask and a brown jacket and carrying a chrome-plated revolver. On February 25, 1983, an employee of a Conoco station was robbed by a man wearing a red ski mask, a beige corduroy jacket and carrying a silver-plated western-style pistol. Approximately $600.00 in cash was taken from the station. After the man left, the employee heard a car start and leave the area. On March 25, 1983, an employee of Economy Liquor Store was robbed by two men. The shorter man was wearing a blue jacket and ski mask and carried a chrome-plated revolver; the taller man was wearing a brown jacket and a ski mask and carried a .22 caliber rifle. The shorter man asked for money and took cash in the amount of about $2,600.00. After the man left, the employee observed a Cordoba automobile with a dark top and white body leaving the scene.

On appeal, appellant McQueen argues that his conviction should be reversed because the only evidence presented by the State to connect him to the crimes charged was his confession in which he admitted he was a partner in four of the armed robberies. McQueen contends that because there was no corroboration of his confession by independent evidence, he is entitled to reversal. A confession of a defendant must be accompanied by other proof that the offense was committed. Ark. Stat. Ann. § 43-2115 (Repl. 1977). The State need only prove, however, that the crime was committed by someone. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981); Deering v. State, 273 Ark. 347, 619 S.W.2d 644 (1981). The testimony of the employees of the four stores which were robbed provided ample proof that the crimes had been committed.

In addition, there was circumstantial evidence that pursuant to a valid search warrant officers seized from McQueen’s trailer a green backpack which contained a brown corduroy jacket and red ski mask which were identified as being exactly like those worn during the robberies. The police also obtained two coats and a .25 caliber gun from appellant’s brother. McQueen’s confession indicated that he took those items to his brother’s house after the last robbery. The two coats and the gun were identified as being identical to those involved in the robbery at Economy Liquor Store. McQueen also owned a 1976 Cordoba. A Cordoba was specifically identified as having been driven away from Economy Liquor just after the robbery.

Finally, McQueen’s stepson testified that McQueen and Kelly would take a knapsack containing a jacket, ski mask and gloves and leave together at night. The next day he would see an article in the newspaper about a robbery having taken place. The stepson also identified a .22 pistol that belonged to McQueen which was identified as having been used in some of the robberies. Evidence is no less substantial because it is circumstantial. Surridge v. State, 279 Ark. 183, 650 S.W.2d, 561 (1983). Appellant McQueen’s argument that there was no corroboration of his confession is without merit, and we affirm his conviction.

Appellant Kelly argues that the trial court erred in its refusal to suppress $640.00 cash seized at his residence pursuant to a legally valid search. The cash seized was not itemized on the warrant although the officer had knowledge that cash had been taken at the robberies and Kelly had been seen with a large roll of cash.

The plain view doctrine permits the admission of seized evidence if: (1) the initial intrusion was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent. A.R.Cr.P. Rule 14.4. Heard v. State, 272 Ark. 140, 144, 612 S.W.2d 312 (1981); Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). There was no argument made by the appellant that the search did not take place pursuant to a valid warrant or that the cash was not discovered inadvertently; thus, the only issue for the trial court’s consideration was whether the incriminating nature of the bundle of money was immediately apparent. The $640.00 was found in the upstairs portion of the house where appellant Kelly had a bedroom. The officers conducting the search knew that cash had been taken in the robberies of the Spee-Dee Mart, Wilco Food Mart, the Conoco station, and Economy Liquor Store. They had also received information before the search that one of the subjects had a large roll of cash in his pocket.

It was within the province of the trial court to weigh these facts in determining whether the incriminating nature of the roll of cash was apparent to the officers who discovered it. We must affirm the trial court’s determination of admissibility unless its decision is “clearly against the preponderance of the evidence.” State v. Osborne, 263 Ark. 554, 566 S.W.2d 139 (1978). The trial court is in the best position to weigh all the factors relating to admissibility, including the credibility of the testimony, the nature of the offense, the economic condition of the premises being searched, and other factors in determining whether an item seized is incriminating in nature.

In Gatlin v. State, 262 Ark. 485, 559 S.W.2d 12 (1977), a drug related search was conducted pursuant to a warrant. While on the premises officers seized a plastic bag containing $807.00 along with other items of stolen property. We reversed the conviction on the two counts of theft by receiving because there was no testimony that the discovery of stolen goods was inadvertent and there was no showing that the officers making the search had knowledge of any particular stolen items at appellant’s residence. Therefore, the incriminating nature of the articles seized was not immediately apparent.

In this case, there was testimony that the discovery of the $640.00 was inadvertent. The officer who discovered the cash knew that a large sum of cash had been stolen and also knew that appellant Kelly had been seen with a large roll of cash even though there is nothing in the record to suggest that the officers went to the residence to look for cash. However, once they were on the premises and came upon the roll of cash, the trial court’s determination that the incriminating nature of the $640.00 was immediately apparent is not clearly against the preponderance of the evidence. We also affirm appellant Kelly’s conviction.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Donnie Lynn LAIR v. STATE of Arkansas
    CR 84-51
    675 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      John W. Settle, by: /. Randolph Shock, for appellant.

      Steve Clark, Atty. Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Webb Hubbell, Chief Justice.

Appellant Donnie Lynn Lair was found guilty by a jury of burglary and attempted rape and sentenced to concurrent terms of imprisonment of 20 and 30 years. Appellant argues three points for reversal. We find no error and affirm the judgment.

In June, 1983, appellant did some yard work for a Ft. Smith resident. He returned to her home about midnight and forced his way into the house. Appellant beat the woman and knocked her onto the floor. As he was holding the victim down, she seized a gun from a coffee table and shot him once in the hand. Appellant took the gun away from the victim and threatened to shoot her. He asked her to have sex with him and removed her clothing and took down his pants, but she persuaded him to wait until she had bandaged his hand. The victim finally convinced appellant to leave by saying that her brother would arrive soon. A medical examination later indicated that the victim had suffered a broken jaw in the attack.

Appellant moved for a mistrial after the prosecutor said to a venireman during voir dire, “Right, and if he’s found guilty, he’ll be sentenced in accordance with what the judge says, and normally in a case this severe, it would be penitentiary time.” The motion was denied.

A mistrial is a drastic remedy to be used only where any possible prejudice cannot be cured, and we will not reverse a decision denying a motion for mistrial absent an abuse of discretion or a showing of manifest prejudice. Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983); Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). After the court refused to grant the mistrial, the prosecutor reiterated that sentencing in Arkansas was in the province of the jury, and that none of the questioning was directed at forcing the juror to determine the punishment before having all the evidence. Moreover, the appellant failed to move to excuse the juror for cause or to exercise a peremptory challenge. See Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981). Jurors are presumed unbiased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). There is nothing to indicate that appellant was prejudiced by the denial of his motion for mistrial.

The victim told the police that appellant said during the attack, “One good thing about it, you didn’t scream — you didn’t scream and holler like the others did.” Appellant made a motion in limine seeking to exclude from evidence any reference to the appellant’s comment. The motion was denied and the victim was allowed to testify to what the appellant said to her.

Appellant contends that the introduction of this evidence fails to meet our two part test for admissiblity of evidence of prior acts as set forth in Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Although statements by the accused during the criminal episode arguably may not need to conform to the requirements for admissibility under Ark. Unif. R. Evid. Rules 403 and 404 (b), we do not have to reach this issue because the evidence is admissible under the test set forth in Price.

In Price we said that the evidence in question must first have independent relevance to the main issue or a material point. Second, the relevance of the evidence must be balanced against the danger of undue prejudice to the defendant. Here, we find that the evidence had independent relevance to show appellant’s state of mind and intent with regard to both the burglary and the attempted rape.

Appellant’s statement to the victim was part of the res gestae; as such, it was presumptively relevant and admissible. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983). Moreover, the State is entitled to introduce evidence showing all circumstances which explain the act, show a motive for acting, or illustrate the accused’s state of mind even if other criminal offenses are brought to light. Love v. State, 281 Ark. 379, 664 S.W.2d 457 (1984); Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); See also Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984).

The trial court has the discretion to balance evidence of prior bad acts with the possibility of undue prejudice to the appellant. Absent an abuse of the discretion, which we do not find in this case, the trial court’s conclusion regarding the admissibility of the evidence must stand. Price v. State.

Appellant’s third point for reversal is that the trial court erred in refusing to give his proposed jury instructions and verdict forms. Appellant’s proffered instructions and verdict forms offered the j ury the option of sentencing the appellant to imprisonment for not less than six (6) years nor more than thirty (30) years; probation for a period not to exceed five (5) years; payment of a fine not to exceed fifteen thousand dollars ($15,000); restitution; or imprisonment and a fine. After hearing arguments of counsel and reviewing the standard AMCI instructions and verdict forms, the trial court overruled appellant’s objection and refused the offer. The Court gave the standard instructions and forms but permitted counsel to argue probation or a suspended sentence to the jury.

Ark. Stat. Ann. § 41-802 (Repl. 1977) provides in pertinent part:

Role of Court and jury in sentencing. — (1) If a defendant is found guilty of an offense by the jury, the jury shall fix punishment as authorized by this Article [§§ 41-[ XXX-XX-XXXX ]]. (2) Except as provided in Chapter 13 [J 41-1301 — 41-1309], the Court shall fix punishment in any case where: . . .

In Gardner v. State, 263 Ark. 739, 761, 569 S.W.2d 74 (1978), we held that “[o]bviously the word ‘court’ in the context in these sections refers to the j udge, and not the j udge and j ury, just as it does in the context of our previous decisions on the subject.” The significance of the Gardner decision is not altered by the addition of new sentencing options made available to the court by recent amendments to Ark. Stat. Ann. § 41-803 (Supp. 1983).

The jury has no authority to grant probation. See Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982); Ark. Stat. Ann. § 41-1201 et seq. (Repl. 1977). In Killman v. State, 274 Ark. 422, 425, 625 S.W.2d 489 (1981), we noted that “[s]ection 41-1201 sets out the criteria for the court in making a determination as to suspension or probation.. . .Therefore, questions of mitigation are properly presented to the court which has the responsibility of sentencing after the maximum punishment is fixed by the jury.” See also Heard v. State, 272 Ark. 140, 147, 612 S.W.2d 312 (1981).

We have consistently held that non-model instructions are to be given only when the trial court finds that the AMCI instruction does not accurately state the law or is inapplicable. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The instruction given by the court here correctly set out the law and the range of sentencing upon conviction for burglary and attempted rape. Arguments for probation are properly addressed to the trial court after the jury has reached its verdict in accordance with the applicable instructions.

Affirmed.


author: George Rose Smith, Justice.

text:
    Clif TURNAGE v. STATE of Arkansas
    CR 84-49
    675 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984
    [Rehearing denied October 22, 1984.]

      John F. Gibson, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This appeal, brought to iis under Rule 29 (1) (c), must be dismissed for want of a final order.

Clif Turnage was arrested and charged in the Monti - cello municipal court with contributing to the delinquency of four different minors. After having been convicted and fined $109 on each charge, Turnage appealed to the circuit court, where he argued that the clerk’s fee for filing the record should be only $15 for a single appeal and not $60 for four appeals, as the clerk insisted. Turnage’s motion to require the clerk to file the record for a $15 fee was overruled by the circuit judge, who held that Turnage must pay $15 for each of four appeals. Turnage appeals from that order, the charges not yet having been tried in the circuit court.

The trial judge’s order is clearly not a final judgment, for the case is still awaiting trial on the merits in the circuit court. A judgment, to be final and appealable, must dismiss the parties from the court and conclude the controversy. McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Alexander v. State, 260 Ark. 785, 261 Ark. 26, 545 S.W.2d 606 (1976). This order is merely interlocutory. Turnage’s remedy is to pay the costs as demanded, seek to have them retaxed under the statute, Ark. Stat. Ann. § 27-2320 (Repl. 1979), and take an appeal if desired after the case has proceeded to a final judgment.

Appeal dismissed.


author: Darrell Hickman, Justice.

text:
    James C. WALTERS v. STATE of Arkansas
    CR 84-72
    675 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Dale Varner, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Walters was convicted of kidnapping and sentenced to 60 years imprisonment. On appeal he assigns two errors: a prior conviction was improperly used to enhance his punishment (he had four prior convictions), and the court improperly refused to instruct the jury on the lesser included offense of attempted aggravated robbery.

The appellant virtually concedes that our decisions in Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981), and Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981), preclude his first argument on appeal, because they make it plain that a prior conviction can be used for enhancement regardless of when the crime is committed or the conviction obtained, prior to or after the charge in question, so long as the conviction was had before the conviction for the offense in question. However, we cannot consider the argument of the appellant. The question was not raised to the trial judge, and the record does not reflect when the offense in question occurred. This court does not consider arguments raised for the first time on appeal. Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).

The second argument has no merit for two reasons. The appellant did not ask for the jury to be instructed on what may have been the lesser included offense of aggravated robbery, but attempted aggravated robbery. The jury could not have, on the evidence before it, returned a verdict of guilty for attempted aggravated robbery, only kidnapping. The appellant got into the automobile of Ms. Marlene Thomas at a gasoline filling station ostensibly for a ride to his damaged motorcycle, located somewhere on the highway. Once in the car, the appellant pulled a knife and held it at Ms. Thomas’ stomach while holding the back of her neck with the other hand. He made her drive the vehicle for a distance and told her that he needed her car to get out of town. She eventually managed to open her door and fall out of the car. She flagged down a car behind her, and the appellant ran away.

Appellant’s argument focuses on the provision in the kidnapping law, Ark. Stat. Ann. § 41-1702 (Repl. 1977), which states:

(1) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of: ... .
(c) facilitating the commission of any felony or flight thereafter; ....

In this case, the State charged the kidnapping occurred in one of two ways: for the purpose of terrorizing Ms. Thomas or facilitating the commission of a felony. The jury did not have to find the kidnapping occurred in connection with a felony. The appellant cites, as analogous, cases involving capital murder where we have said the proof of capital murder necessarily involves proof of the underlying felony; therefore, the felony is a lesser included offense of capital murder, and the. appellant cannot be convicted of both. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). However, appellant did not seek an instruction on what may have been the underlying felony of aggravated robbery, but rather an instruction on attempted aggravated robbery. The evidence was that appellant stuck a knife to the victim’s stomach, held the back of her neck and ordered her where to drive. At that point his conduct went beyond any attempt to “employ or threaten to employ physical force upon another” for the purpose of committing theft, Ark. Stat. Ann. § 41-2103 (Repl.. 1977). The jury could not have returned a verdict convicting appellant of attempted aggravated robbery. His conduct constituted the offense itself, if anything. Therefore, the appellant’s argument must fall.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    James R. COOK v. STATE of Arkansas
    CR 84-63
    675 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984
    [Rehearing denied October 22, 1984.]

      William R. Simpson, Jr., Public Defender, by: Carolyn P. Baker, Deputy Public Defender.

      Steve Clark, Atty. Gen., by: Jack Gillian, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of the aggravated robbery and kidnapping of Colleen Butler in Little Rock on July 10, 1983. Appellant was sentenced as an habitual offender to life imprisonment for the aggravated robbery and thirty years for the kidnapping. We affirm. Jurisdiction is in this court under Rule 29 (l)(b).

Appellant’s first contention is that the identification procedures violated the Due Process Clause of the Fourteenth Amendment. There is no merit in the argument. There were two procedural steps involved in the ruling on the identification evidence. First, prior to trial, the judge examined the out-of-court identification to see if there were suggestive elements which made it all but inevitable that the victim would identify appellant as the perpetrator of the crime. This preliminary ruling is a ruling on a mixed question of law and fact and consequently we do not reverse the ruling unless it is clearly erroneous. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982). The second procedural step is the in-court identification.

The out-of-court identification at issue in this case was a lineup identification. The lineup consisted of six white males dressed in orange jumpsuits. The four in the middle were of a similar height and weight while the two on the end were taller and heavier. Counsel for appellant was present and, after objecting to the two taller men, noted that the lineup was physically fair.

Factors to be considered in testing the reliability of a lineup identification are set out in both federal and state law. See Manson v. Braithwaite, 432 U.S. 98 (1977); Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981); and Glover v. State, supra, at 256, 633 S.W.2d at 708. These factors include the opportunity of the victim to observe the crime and its perpetrator; the lapse of time between the crime and the lineup; discrepancies between descriptions given the police and the defendant’s true physical characteristics; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; and the totality of the facts and circumstances regarding the identification. Glover v. State; supra.

The lineup in this case was conducted only three days after the crimes. The crimes occurred in broad daylight. The victim had ample opportunity to observe the perpetrator. As she started the engine of her parked car, a man stuck a gun in her face and told her if she screamed he would kill her. He forced her to drive him from Adams Field to downtown Little Rock. She observed his face in the rear view mirror for the fifteen to twenty minutes it took for the trip. The victim described the perpetrator as a dark complected Caucasian, six feet tall, slender, with gray hair. She said that he wore glasses and a gray suit with a red plaid. The victim identified the appellant in a non-suggestive lineup, then identified him at the suppression hearing and later again identified him in court.

Although the victim described the perpetrator of the crimes as being six feet tall and appellant is only five and one-half feet tall, the description in other respects fits the appellant. The fact that she misjudged his height is easily understood. She was already seated in her car when he put the pistol to her face and he subsequently was seated behind her for the entire trip. When he got out of the car he told her not to look back. Under these circumstances, we cannot find that the trial judge’s ruling was clearly erroneous in allowing the identification evidence, even though the victim was mistaken in appellant’s height.

Appellant’s second point of appeal is that the trial court unduly restrained his closing argument. A trial court has wide discretion in controlling the arguments of counsel. Rulings on argument will not be reversed except in cases of clear abuse of that wide discretion. McCroskey v. State, 271 Ark. 207, 213, 608 S.W.2d 7, 11 (1980). We find no abuse of discretion in this case. The appellant was initially charged with two counts of kidnapping and one count of aggravated robbery. The court granted appellant’s motion to sever the second kidnapping charge and ruled that the state could not use evidence of the second kidnapping in this case. However, as a practical matter, the police had investigated both cases together and probable cause for the arrest was based on both cases. The appellant, in this case, had initially argued there was a lack of probable cause. At closing argument, appellant began to argue that the state had no evidence, other than the victim in this case, linking appellant to the charges in this case. The trial judge sustained the state’s objection and, out of the hearing of the jury, commented that there was other evidence but, since the state could not bring it up, the appellant could not comment on it. Under these circumstances, we cannot say that the trial judge clearly abused his discretion to control closing argument.

Affirmed.

Purtle, Hays and Hollingsworth, JJ., concur.

John I. Purtle, Justice,

concurring. I concur in the result but wish to point out a nonprejudicial error by the trial court which the majority fails to discuss. Appellant’s counsel was proceeding to argue lack of evidence when the state objected on grounds he was trying to árgue facts in a separate case which had been severed by agreement of the parties. I see nothing wrong with the argument because I see it as relating to the charge then being tried. The court may have correctly determined counsel was leading into improper argument but it was wrong to state to defense counsel, “If you proceed and you move for a mistrial, that’s going to be in contempt of court. You know what the evidence is . . . well, from here on'out, you’re at your own peril.” Such threat no doubt tended to chill defense counsel’s action and could possibly have reduced his effectiveness. No prejudice was actually shown in this case.

Hays and Hollingsworth, JJ., join in this concurrence.


author: Steele Hays, Justice.

text:
    Larry Jack NATION v. STATE of Arkansas
    CR 84-28
    674 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Darrell E. Baker, Jr., for appellant.

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

The appellant, Larry Jack Nation, brings this appeal from the revocation of three suspended sentences. He argues two points for reversal, neither of which has merit.

Nation, in two separate appearances in the Cross County Circuit Court, entered guilty pleas to a total of three counts of theft and burglary before Judge Henry Wilkinson. On both occasions, Judge Wilkinson suspended imposition of the sentences, informing appellant of the possible range of sentences he could receive should he violate the conditions of probation. On October 13, 1983, the state filed a motion to revoke the suspensions, alleging a breach of the written conditions of probation in that appellant had committed the offense of theft of property. Judge Harvey Yates of the Cross County Circuit Court presided at the revocation hearing, found that appellant had violated the conditions of his probation and imposed a sentence of forty years.

Appellant first argues that Judge Yates was without jurisdiction to hear the revocation proceeding, citing Ark. Stat. Ann. § 41-1209 (2), which provides in pertinent part:

(2) A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time not to exceed 60 days after the defendant’s arrest. . . .

Appellant argues that “court” in the italicized portion means “judge,” and therefore, Judge Yates, although in the same circuit court as the judge who suspended imposition of the sentences, was without jurisdiction to revoke the suspensions granted by the judge of another division. Appellant argues that knowledge of the circumstances of the underlying offense is important as the offender is punished on revocation not for the instant misconduct but for the original act. Hence, the requirement that the hearing be conducted by the same court would logically imply that it be by the same judge. This point was not raised below, and unless it is a question of subject matter jurisdiction, cannot be raised on appeal. The appellant is mistaken in his implication that it is such a question.

Appellant cites no authority for the rationale of his interpretation of § 41-1209, and the argument is not convincing. There is ample authority that jurisdiction is granted to a particular position and not to the individual who fills it and that judges of different divisions within a circuit have commutable authority. Arkansas Constitution Article 7 § 21 (election by attorneys of special judges for circuit courts when for various reasons the sitting judge is not available); Ark. Stats. Ann. § 22-322.11, 12, § 22-324.2, 4, § 22-333.25 (power of circuit judges to try cases in either or any division of the circuit court and to reassign cases from one division to another); Gardner v. State, 252 Ark. 828, 481 S.W.2d 342 (1972) (recognition of Ark. Stat. Ann. § 22-322.12 as permitting trial judges to transfer cases either civil or criminal from one division to another). As this is not a question of subject matter jurisdiction and was not raised below, the appellant has waived his right to raise it at this time. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).

On his second point for reversal appellant argues that A.R.Cr.P. Rule 24.6, requiring inquiry by the judge into the factual basis of the plea, was not complied with when appellant entered the guilty pleas to his prior charges. The state maintains that such an objection cannot be properly raised at a revocation hearing, but we need not address that argument for as the state correctly points out the objection was not raised below in any case, and appellant therefore has waived his right to present it on appeal. McGee, Id.

Affirmed.


author: P. A. Hollingsworth, Justice.

text:
    IN THE MATTER OF THE ARKANSAS BAR ASSOCIATION, PETITION TO AUTHORIZE A PROGRAM GOVERNING INTEREST ON LAWYERS’ TRUST ACCOUNTS
    84-90
    675 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Interest on Lawyers’ Trust Accounts Committee, by: Herman L. Hamilton, Chairman, and William D. Haught of Wright, Lindsey & Jennings, for petitioner.
   P. A. Hollingsworth, Justice.

The Arkansas Bar Association through its Interest on Lawyers’ Trust Accounts Committee petitioned this Court to establish a program permitting the collection of interest on lawyers’ trust accounts and the disbursement of such interest by the depository institutions involved to an Arkansas nonprofit corporation. The recipient corporation would then apply these funds to such tax exempt purposes which serve the public interest.

This proceeding has been before us previously when the Arkansas Bar Association in an earlier petition requested this Court to consider the establishment of an Interest on Lawyers’ Trust Accounts program (hereafter “IOLTA”). That petition was denied. In Re: The Matter of Interest on Lawyers’ Trust Accounts, 279 Ark. 84, 648 S.W.2d 480 (1983). At that time, we determined that the establishment of an IOLTA program, while a commendable and worthwhile objective, could not be approved, inasmuch as the element of client consent was not present. This comes before us as an original proceeding seeking to invoke the constitutional power of this Court to regulate the practice of law and professional conduct of attorneys in Arkansas. Ark. Const, amend. 28 (1938).

On April 9,1984, in response to the petition now before us, we issued a per curiam opinion inviting interested parties to comment in support of or in opposition to the petition. The principal responses in support have been from the original petitioners and one attorney. There was one response filed in opposition on April 18, 1984. We do not view this minimal response as a lack of interest in this subject but rather note that interested parties expressed their views in the prior proceeding.

We also note that at the present time, there are IOLTA programs in twenty-two states. Arizona, Minnesota and California have mandatory programs in which all lawyers with trust accounts are required to participate, but in the remaining nineteen states these programs are voluntary. Of these twenty-two states, there are eleven that have operational programs where interest income has been received and the figures range from a low of $1500 in Idaho (implementation date January 1, 1984) to a high of $4,900,000 in California (implementation date March 1, 1983). In three states, money has been distributed for legal services to the poor: Florida - $1,573,090; New Hampshire - $123,000; and Colorado - $28,500. While the results have been uneven due to such factors as population and implementation dates, the potential for generating funds for public service needs and projects is apparent.

The proposal before us is in essence patterned after the Florida program and provides for attorney participation on a voluntary basis.

The Internal Revenue Service, in Revenue Ruling 81,209, has determined that interest income earned on lawyers’ trust accounts under the Florida IOLTA program will not be taxable income to the clients. The key to the determination by the Internal Revenue Service is that the client cannot control by consent or veto whether his or her nominal or short-term funds may be placed by the attorney in an IOLTA account. If client consent were required, then under the long-standing doctrine of “assignment of income,” first articulated in Lucas v. Earl, 281 U.S. 111 (1930), the client would be taxed on the income. Further requirements are that the organizations receiving the IOLTA income must be tax exempt under Section 501(c)(3) of the Internal Revenue Code, and such must be used for approved charitable and public service purposes which must comport with applicable Treasury Regulations and Revenue Rulings.

With the authorization of “NOW” accounts, (interest-bearing checking accounts) there is now a viable vehicle for holding clients’ trust funds, in small amounts, or for relatively short periods of time, in an interest-bearing account which is payable on demand. The Board of Governors of the Federal Reserve System has specifically ruled in the case of the Florida IOLTA program that “NOW” accounts can be used by participants in the program.

The Code of Professional Responsibility of the American Bar Association mandates the treatment of clients’ trust funds through Disciplinary Rule 9-102 and was adopted by per curiam order of this Court on June 21, 1976, to become effective July 1, 1976. The rules mandate that clients’ funds held by an attorney must be segregated into a clearly labeled trust account unless they are fees and advances for costs and expenses. These trust account funds as to each individual client, are either nominal in amount or are to be held for only a short period of time. In those cases in which these funds are more than nominal in amount or are to be held for longer periods, the client may instruct the attorney to place the funds in an interest-bearing account for the credit of the client. Absent such instructions or a joint agreement with the client, and faced with the complex and expensive accounting problems inherent both in the investment of these funds and in the apportionment of their earnings among individual clients, attorneys have typically deposited clients’ funds in noninterest-bearing commercial bank checking accounts.

In our previous decision, we expressed concern about these funds being used to generate income for a purpose without the owner’s consent and indicated that participation in the program must be conditioned upon notice to and approval by the clients whose funds are so used. We now wish to modify that ruling for the following reasons.

At present, the earnings of funds held in trust accounts can benefit neither the attorney nor the client, but simply redound to the benefit of the depository institution. The underlying concept of the IOLTA program is that while the interest generated by each client’s trust account funds is too small to warrant payment to the client, the collective interest generated by the lawyer’s trust account as a whole may be substantial. The interest produced by the trust accounts of all practicing attorneys in Arkansas would be a very significant source of income for the benefit of public interest programs related to the legal profession. The funds in question are not now available to Individual clients, and for practical reasons cannot be made available to them. To the extent that funds do and can benefit individual clients, the proposed changes do not alter those practices.

Second, the IRS stated that the tax treatment being sought for the program would be approved so long as clients could in no way and to no degree control the creation or destiny of earnings generated on their attorney-held funds. The approval was conditioned upon the removal of all client control over the placement of funds and over any interest from which the client could never benefit either because the amounts on deposit were too small or were to be held for only a short duration.

Taking these factors into account we find that the public good will be advanced and many public benefits will flow from the adoption of a voluntary program designed to generate interest on lawyers’ trust accounts. We conclude, therefore, that the petitioner’s proposal should be adopted subject to modifications by intervening orders of this Court and subject to the following:

1. That interest be made available under the program only on a voluntary basis — that is, on the basis of willing participation by attorneys and law firms, whether proprietorships, partnerships, or professional corporations.
2. No earnings from the funds may be made available to the attorneys or firms.
3. Clients may specify that their funds are to be deposited in interest-bearing accounts for their benefit as long as these funds are neither nominal in amount nor to be held for a short period of time.
4. Client consent is not an element of the IOLTA program. However, attorneys and law firms participating in the program shall inform their clients of their participation by sending to each client a notice, in the form set out below, providing information concerning the new procedures and the uses of trust earnings.
5. Clients’ funds which are nominal in amount or to be held for a short period of time by attorneys and law firms not participating in the IOLTA program must be retained in noninterest-bearing, demand accounts.
6. The qualified recipient of interest earnings on lawyers’ trust accounts should be a newly created Arkansas nonprofit corporation to be governed by a Board of Directors comprised of the Chief Justice and two Associate Justices, five members of the lay public appointed by the Governor of Arkansas, three lawyers appointed by the President of the Arkansas Bar Association, and the President of the Arkansas Bar Association; twelve (12) in all. With the exception of the Chief Justice, the two Associate Justices and the President of the Arkansas Bar Association, terms of the directors should be on a staggered basis.
7. The qualified recipient, an Arkansas nonprofit corporation, should be required to obtain such Internal Revenue certificates of exemption from income taxes as necessary to insure that no participating lawyer or any affected client be charged with or taxed upon any interest paid on funds in a trust account which is used in participation with the program. The qualified recipient, an Arkansas nonprofit corporation, should allocate net income from this program to the following:
(a) For legal aid to the poor;
(b) For student loans and scholarships;
(c) For improvement of the administration of justice;
and
(d) For such other purposes as the Court may from time to time approve and as meet the qualifications hereinabove prescribed.
8. After a lawyer has notified the bank of intention to participate in the program in writing, the bank should transmit interest earnings directly to the authorized recipient, should make periodic reports of earnings and disbursements to the lawyer, and should be permitted to make reasonable charges for such services against the interest earnings of the respective accounts.
9. The determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests in the sound judgment of each attorney or law firm.
10. This Court, after the program has been implemented for a reasonable length of time, may impose guidelines upon what constitutes funds “held for a short period of time” or funds “nominal in amount.”
It is so ordered.

NOTICE

In conformity with the Arkansas Code of Professional Responsibility, this law firm maintains an interest bearing trust account where client funds, which are nominal in amount or to be held for a short time, are deposited.

If funds belonging to you are deposited in this firm’s trust account, any interest earned therefrom will be forwarded by the depository bank to a non-profit organization who will dispense the funds to provide legal aid to the poor, to provide funds for student loans and scholarships, to improve the administration of justice and for such other programs as may be specifically approved from time to time by the Supreme Court of Arkansas for exclusively public purposes.

This law firm will receive no part of such interest and no individual will benefit therefrom unless in connection with the above stated purposes as approved by the Arkansas Supreme Court.

      Florida, California, Idaho, Kansas, Maryland, Colorado, New Hampshire, Minnesota, Oregon, Nevada, Virginia, Illinois, Oklahoma, Delaware, North Carolina, New York, Hawaii, Utah, Vermont, Georgia, South Dakota, and Arizona.

      Act 477 of 1977 as amended by Act 558 of 1983 identifies community action organizations serving the low income citizens of Arkansas. Three of the five lay members appointed by the Governor shall be representatives of low income persons from a list recommended to the Governor by the nineteen (19) existing community action organizations.

      Proposed Notice To Client-Arkansas-8/1984


author: Per Curiam. P. A. Hollingsworth, Justice,

text:
    Barbara Annette LITTLES v. Honorable Lee MUNSON, Pulaski County Probate Judge
    84-148
    675 S.W.2d 626
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Judith C. Lansky, UALRLaw School Legal Clinic, for petitioner.

      Steve Clark, Atty. Gen., by: E. Jeffery Story, Asst. Atty. Gen., for respondent.
   Per Curiam.

The petitioner’s request for reconsideration of the Petition for Writ of Prohibition is denied.

Purtle, Dudley and Hollingsworth, JJ., would grant.

P. A. Hollingsworth, Justice,

dissenting. I dissent from the Court’s denial of this motion. The probate court does not have jurisdiction over visitation rights pending the decision on a petition for guardianship. The probate court’s jurisdiction is established by the Arkansas Constitution and by statute. Ark. Const, art. 7, § 34 and amend. 24, § 1 grant the probate court jurisdiction over guardianships and designate the chancellor as the probate judge.

We have held that the probate court has only such jurisdiction and powers that are expressly conferred by statute or the Constitution, or those necessarily incident to the exercise of the jurisdiction and powers granted. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976). Neither the Constitution nor the statutes state that the probate court has the authority to determine visitation rights. Therefore, it is not an express power.

The question then becomes whether the granting of visitation rights is necessarily incident to the probate court’s power to appoint guardians. In Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978), we held that the probate court’s granting of visitation rights to a natural grandparent as an incident to an adoption was without authority, rendering the decree void.

Guardianships and adoptions are statutory creatures. Since we determine that visitation rights are not incidental to an adoption proceeding, then the same would hold true for guardianships. The authority and jurisdiction of probate courts are to be strictly construed. In Re: Petition of Committee on Professional Ethics of Arkansas Bar Association for Establishment of Trustee Proceedings, 273 Ark. 496, 621 S.W.2d 223 (1981).

I also disagree with the Court as to the petitioner’s proper remedy. A writ of prohibition is her only remedy in this instance. There are three conditions which must be satisfied before this Court will issue the writ, and the petitioner has satisfied all three. First, the court against which it is sought must be totally without jurisdiction. First Arkansas Leasing Corp. v. Munson, 282 Ark. 359, 668 S.W.2d 543 (1984). The writ is not used when the inferior court erroneously exercises its jurisdiction. Tucker Enterprises, Inc. v. Hartje, 278 Ark. 320, 650 S.W.2d 559 (1983). The probate court does not have jurisdiction over visitation rights in a guardianship proceeding. The court is wholly without jurisdiction in this instance.

Secondly, a writ of prohibition can be issued only in a case where there are no disputed facts. Miller v. Lofton, 279 Ark. 461, 652 S.W.2d 627 (1983). There are no disputed facts in this case.

Lastly, the writ is issued when there is no other adequate remedy available. Arkansas Nursing Home, Inc. v. Rogers, 279 Ark. 433, 652 S.W.2d 15 (1983); Porter Foods, Inc. v. Brown, 281 Ark. 148, 661 S.W.2d 388 (1983). If the probate court did not have jurisdiction over visitation rights, then the petitioner’s remedy would be an appeal. However, since the probate court does not have jurisdiction, the petitioner has no remedy available to her other than this writ. Thus, the conditions for the issuance of the writ have been satisfied. I would grant the petitioner’s motion for reconsideration.

Purtle and Dudley, JJ., join in this dissent.


author: Per Curiam.

text:
    Larry Gene SMITH v. STATE of Arkansas
    CR 82-89
    675 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Appellant, pro se.

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

Petitioner Larry Gene Smith was found guilty by a jury of two counts of aggravated robbery and sentenced to consecutive terms of 20 years imprisonment on each count. We affirmed. Smith v. State, 277 Ark. 403, 642 S.W.2d 299 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner first contends that he should not have been convicted of two aggravated robberies because both robberies grew out of one criminal episode. Although both crimes were committed in the same place and at nearly the same time, there were two victims, and, thus, two separate aggravated robberies. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981).

He next argues that the State improperly used its preemptory challenges to exclude all but one black person from the jury and that counsel was ineffective for failing to object to the composition of the jury. We have previously held that the mere fact that the State challenged prospective black jurors does not constitute a showing that the defendant’s constitutional rights were violated. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980); Rogers v. State, 257 Ark. 144, 515 S.W.2d 79 (1974). Petitioner’s conclusory allegation of prejudice arising from the jury selection process is not enough to demonstrate that he was denied his right to an impartial jury or that counsel was remiss in not objecting to the panel.

Kory Zuniga, one of the two men whom petitioner robbed, was not present at trial. The other victim, Mark Kessinger, and James Donaldson, an eyewitness to the crime, each gave an account of petitioner’s robbing Zuniga. Petitioner alleges that Kessinger’s testimony was hearsay and that he was denied the right to confront his accuser because Zuniga did not testify. There is no requirement that a criminal defendant be allowed to confront every witness to the crime. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980). Kessinger’s testimony that he watched the aggravated robbery of Zuniga was admissible and constituted sufficient evidence to support the jury’s verdict.

Petitioner was asked on cross-examination if he had been convicted of a felony. When he admitted to a prior felony conviction, the prosecutor inquired as to the number of counts. Petitioner alleges that the questioning was improper. He also argues that the State was not entitled to bring up the prior convictions without providing documentary proof of them. Neither allegation has merit. Once the petitioner took the stand, he was subject to cross-examination about his prior felony convictions. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Moreover, both issues could have been raised at trial but were not and cannot now be raised in a petition for postconviction relief. Questions not raised in accordance with the controlling rules of procedure are waived, unless they present a matter of such fundamental nature that the judgment would be rendered void. Neil v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

James Donaldson, who was working at a nearby service station, observed petitioner take a wallet from one of the victims. He immediately went inside and telephoned the police. Petitioner contends that if counsel had investigated Donaldson’s version of the events he would have learned that the crime scene wasn’t visible from the service station office; but, as Donaldson testified to seeing the crime from the outside, the point would have no bearing on the case.

A police officer patrolling in the vicinity responded to Donaldson’s report and saw petitioner running from the scene of the robbery. He apprehended him after a short chase and retrieved Kessinger’s wallet. The officer returned petitioner to the service station where Donaldson identified him as the robber. Petitioner alleges that counsel should have objected on the ground that this pretrial identification tainted Donaldson’s in-court identification.

The criterion forjudging any claim of ineffectiveness is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, _U.S. _, 104 S. Ct. 2052 (1984). We find nothing to indicate that counsel’s conduct here denied petitioner a fair trial. It is the likelihood of misidentification that taints the out-of-court identification process. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982); James & Elliot v. State, 270 Ark. 596, 605 S.W.2d 448 (1980). A “show up” rather than a line up does not violate a defendant’s constitutional rights unless there are other circumstances rendering the identification unreliable. Neal v. Biggers, 409 U.S. 188 (1972); Harrison v. State. The victim Kessinger pointed out the petitioner to the police officer. The officer immediately gave chase. Shortly after petitioner was arrested, he was taken to Donaldson who identified him. Since there was no substantial likelihood of misidentification and there was independent evidence of petitioner’s identity, Donaldson’s in-court identification was not unreliable.

Petitioner asserts that counsel failed to call any defense witnesses. He does not, however, say what witnesses were available or what their testimony would have been. Allegations without factual support do not warrant an evidentiary hearing. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1983).

Petitioner alleges that counsel allowed too many leading questions without objecting. He cites several examples but none are sufficient to establish that he was denied a fair proceeding by counsel’s failure to object. Without a showing of some prejudice, there is no basis for granting postconviction relief. Strickland v. Washington.

Petitioner chose to testify and now contends that he would not have done so if counsel had told him that his prior felony record could be brought out. Petitioner does not deny that he was in fact convicted of the prior felonies. When an accused takes the stand he may be asked as a means of attacking his credibility whether he has been convicted of a crime, unless the probative value of the testimony does not outweigh its prejudicial effect. Unif. R. Evid., Rule 609. The question of whether the accused should take the stand is a difficult one, particularly where the accused has been previously convicted of a crime. Counsel may advise, but the actual decision must be made by the accused. Watson v. State, 282 Ark. 246, 667 S.W.2d 953 (1984). Ordinarily, counsel’s advice is a matter of trial strategy and outside the purview of Rule 37, but in petitioner’s case he is alleging that counsel failed to fully advise him about the rules of evidence and thus caused him to testify to a fact that prejudiced him. As with all allegations of ineffective assistance of counsel, petitioner must demonstrate by clear and convincing evidence not only that counsel’s conduct prejudiced him but that it denied him a fair trial. This is a heavy burden which petitioner has not met. The purpose of Rule 609 is to allow the witness’s credibility to be impeached. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983). The rule does not permit proof of an earlier crime merely to bolster the prosecution’s case by showing that the accused is of bad character and likely to commit other crimes. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). Here, petitioner’s credibility may have been affected adversely by his testimony, but the effect was not so prejudicial that it tainted his entire trial to the degree that the proceeding was unfair. Even if petitioner would have been better off not taking the stand, mere mistakes on counsel’s part do not establish the denial of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

Petitioner’s final allegation concerns an agreement between counsel and the prosecutor that the jury would be instructed that the sentencing range for aggravated robbery was from six to forty years or life. The agreement came about because the aggravated robbery statute which set the range at five to fifty years or life conflicted with the provisions of Act 620 of 1981, which provides that aggravated robbery was punishable as a class Y felony by a sentence of ten to forty years or life. The law in effect at the time of the offense controls sentencing for the offense. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). When petitioner committed the two aggravated robberies on July 22, 1981, Act 620 was in effect. He could therefore have suffered no prejudice from the jury’s being instructed that the minimum sentence was less than the actual sentence under the applicable law. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). Moreover, petitioner received twenty-year sentences which were within the statutory range under either law.

Petition denied.


text:
    Terry CAMP, Hugh CAMP and John CAMP v. Mo TUCKER
    84-174
    674 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Crumpler, O’Conner ir Wynne, by: John W. Unger, Jr., for appellants.

      Thomason ¡¿r Thomason, by: Byron Thomason, for appellee.
   Per Curiam.

The judgment was filed for record on October 5, 1983. The motion to set aside the judgment had been filed the day before entry of the judgment. The motion was therefore timely. The order denying the motion was not filed until February 7, 1984. Appellants filed notice of appeal on March 1,1984. Arkansas R. App. P. 4 (d) provides that a party has ten days following denial of a post judgment motion to file notice of appeal from the original judgment provided the time cannot be reduced below the 30 days allowed to file notice of appeal. Additionally, Ark. R. App. P. 4 (c) requires the party filing the motion to present it to the court within 30 days. If the court cannot hear it within 30 days, the party must request the court to set it for a definite date. Unless the court sets a hearing date or takes it under advisement during the 30 days, the ten days for filing rioticé of appeal commences to run 30 days after the motion is filed. Therefore the motion to dismiss the appeal is granted.


text:
    Dennis Eugene WILLIFORD v. STATE of Arkansas
    674 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered September 17, 1984

      Charles E. Hanks, for appellant.
    No Response.
   Per Curiam.

Appellant, Dennis Eugene Williford, by his attorney, Charles E. Hanks, has filed a motion for rule on the clerk.

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

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re; Belated Appeals in Criminal Cases.

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


author: Webb Hubbell, Chief Justice. Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Edward ERXLEBEN, Director of Office of State Purchasing v. HORTON PRINTING COMPANY
    84-108
    675 S.W.2d 638
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984

      Steve Clark, Att’y Gen., by: Thomas S. Gay, Asst. Att’y Gen., for appellant.

      Givens & Buzbee, by: Art Givens, for appellee.
   Webb Hubbell, Chief Justice.

The Arkansas Office of State Purchasing sent to forty-three potential vendors, including Appellee, Horton Printing Company, an invitation to bid on certain printing for the General Assembly, including letterhead, envelopes, and memo pads. Appellee’s bid, the only qualified bid submitted, was then presented to the Legislative Printing Committee for consideration, but the bid was rejected because it was fifty percent higher than the cost of the previous year’s contract. The Committee then asked for and received a proposal to do the printing from the Arkansas Department of Correction Prison Industries. The Correction Department’s representatives quoted a price of $15,920.54 for the letterhead, envelopes, and memo pads, an amount forty-five percent less than Appellee’s bid for the same items. The Committee designated that the printing be obtained from the Correction PrintinguShop without rebidding, and the Office of State Purchasing notified Appellee that its bid was rejected.

Appellee then filed its complaint in Pulaski County Chancery Court seeking injunctive and declaratory relief. The printing was delivered by the Prison Industries and was paid by a transfer of funds. Because the printing had been delivered, the issues before the court were limited to a declaratory judgment and were tried on stipulated facts. Appellee claimed that pursuant to Amendment 54 of the Arkansas Constitution the Office of State Purchasing could not obtain printing for the General Assembly from another state agency without competitive bids. The chancellor found that Amendment 54 mandates that printing for the General Assembly can not be obtained from Prison Industries without a competitive bidding and award procedure. We reverse.

Prior to Amendment 54 the acquisition of printing used by the State of Arkansas was limited by Article 19, Section 15 of the Arkansas Constitution which required all printing contracts be awarded to the lowest responsible bidder.

This court has considered Article 19, Section 15 in several cases. In Ellison v. Oliver, 147 Ark. 252, 227 S.W.2d 586 (1921), the court considered a contract for reprinting of the Supreme Court Reports. The legislature had appropriated funds to continue to pay for printing under a two year contract rather than advertise for bids on a new contract at a higher cost. The court held a contract not approved by the auditor as required by Article 19, Section 15 was void, and the legislature had no power to pay for the work when no bids were taken.

We interpreted “printing” in Article 19, Section 15 to permit the state to use office duplicating machines in Parkin v. Day, 250 Ark. 15, 463 S.W.2d 656 (1971).

We construed Article 19, Section 15 and Act 452 of 1973 in Gray v. Gaddy, 256 Ark. 767, 510 S.W.2d 269 (1974). Act 452 sought to limit the scope of Article 19, Section 15 by narrowly defining “printing” and “stationery” to permit procurement of some items without bidding. We held Act 452 unconstitutional insofar as it restricted the definitions of “printing” and “stationery” because Article 19, Section 15 addressed “all stationery, printing . . . .”

Following the decision rendered in Gray v. Gaddy, supra, Amendment 54 was submitted by the legislature to the voters and was passed in the General Election of 1974. Amendment 54 changed the language in Article 19, Section 15 from “All . . . printing . . . for the use of . . .” to “The printing . . . purchased by the General Assembly . . . .”

The chancellor found that Amendment 54 requires all printing “purchased” from any source be based on competitive bids, even if that source is another state agency. This interpretation of Amendment 54 would not effect any change from Article 19, Section 15. If a change occurs in language, a change was intended in the result. 2A Sutherland, Statutory Construction, § 45.12 (4th Ed., 1972); Glover v. Henry, 231 Ark. 111, 115, 328 S.W.2d 382 (1959).

When the General Assembly received the printing it ordered, funds were transferred to the Prison Industries Fund Ark. Stat. Ann. § 13-2612 (Supp. 1983). Although the act which requires state agencies under specific circumstances to obtain goods from Prison Industries calls this transaction a purchase (Ark. Stat. Ann. § 46-237 (Repl. 1977), in fact what occurs is that the determined value of the goods is transferred from one state account to another account. A purchase is a transmission of property from one person to another by voluntary act and agreement on valuable consideration. Black’s Law Dictionary 1110 (5th ed. 1981). A purchase is not a bookkeeping entry transferring money from one state account to another.

The Arkansas Constitution is a limitation upon and not a grant of power to the legislature. Wells v. Purcell, 267 Ark. 456, 464, 592 S.W.2d 100 (1979); Jones v. Mears, 256 Ark. 825, 510 S.W.2d 857 (1974). Absent the limitation contained in Amendment 54, the legislature would not be required to submit printing contracts for public bids. Amendment 54 limits only purchases by the General Assembly, not transfers of funds from one state agency to another.

After a review of the history of legislation and litigation involving Arkansas’ attempts to perform some of its own printing, and after consideration of the change in the language in Amendment 54 form “All . . . printing” to “The printing . . . purchased”, we conclude that Amendment 54 requires competitive bidding for printing purchased from commercial printers, but permits the state to produce its own duplicating and printing without submitting a bid.

Our construction of Amendment 54 gives effect to the change in the language from Article 19, § 15 to Amendment 54, and still maintains the safeguards necessary to insure economy of state funds. Our construction is also consistent with opinions from other states. Director of Department of Agriculture and Environment v. Prison Industries Association of Texas, 600 S.W.2d 264 (Tex. 1980); Associated Industries of Alabama, Inc. v. Britton, 371 So.2d 904 (Ala. 1979).

Reversed.

Hickman and Purtle, JJ. dissent.

Darrell Hickman, Justice.

Dissent. The issue in this case is not whether the Department of Corrections can print materials for other state agencies, nor is it whether that department can do it more economically than the private sector. We need not delve into the question of the real cost of printing at the Department of Corrections, whether it included the cost of the buildings, utilities and equipment, and whether indeed the Department of Corrections can do printing cheaper. That would be an interesting question. We need not question whether Amendment 54 is wise in requiring the General Assembly to purchase all its printing from a bidder. We only need to decide if we are going to allow a flagrant avoidance of the Constitution. I respectfully submit that we should not.

The only issue is whether the General Assembly violated Amendment 54 to the Arkansas Constitution when it bought certain printing from the Department of Corrections without complying with the bid process required by the Constitution. The answer is plainly and simply that the General Assembly did violate the Constitution as the trial court held.

Amendment 54 reads:

The printing, stationery, and supplies purchased by the General Assembly and other departments of government shall be under contracts given to the lowest responsible bidder, below such maximum price and under such regulations as shall be prescribed by law. No member or officer of any department of government shall in any way be interested in such contracts. (Italics supplied.)

The majority avoids the Constitution by holding a mere “bookkeeping entry” was made “transferring money” from one state account to another.

Did the General Assembly pay the Department of Corrections for the printing? It did. Did it buy the printing from the Department of Corrections? It did. There is no need to use euphemisms such as “transferring” and “bookkeeping entry” to hide what was done.

This decision simply means that it does not matter what the Constitution says — it can be circumvented. If the General Assembly wants to appropriate money to the Department of Corrections to do all the printing for Arkansas state agencies, that may well be within its prerogative. However, it cannot set up a printing shop to compete with private business in violation of the Constitution. It cannot “purchase” printing, nor can any other department in violation of the Constitution. This was not a “bookkeeping entry” but an appropriation; this was not a “transfer” but a purchase.

I respectfully dissent.

John I. Purtle, Justice,

dissenting. Amendment 54 was approved by the people of Arkansas at the General Election on November 5, 1974 by a vote of 259,639 for and 210,830 against. The pertinent part of Amendment 54 requires all printing, stationery, and supplies purchased by the state to “be under contracts given to the lowest responsible bidder . . . under such regulations as shall be prescribed by law.” This Amendment clearly and expressly repealed Section 15 of Article 19 of the Constitution of the State of Arkansas. Therefore, it is logical to assume the people were dissatisfied with the provisions of the repealed sections of the Constitution. Likewise it is logical they intended to change the result of prior lawsuits on the subject. For these reasons I feel our decisions prior to Amendment 54 are of little value as precedents.

So far as I am concerned we have started out with a new slate and the cardinal rule is to give the words their plain and accepted meaning. The clear and unambiguous language we are considering here needs no construction other than to determine the meaning of the phrase “contracts given to the lowest responsible bidder . . .” The Department of Corrections did not submit a bid. The appellant did. The state no doubt had a right to reject all bids as it did. The trial court held that Amendment 54 requires the submission of bids in this type situation. I am in full agreement with this construction of the Amendment. I express no opinion as to whether the Department of Corrections could qualify as a bidder or not because they did not even attempt to bid on the purchase here in question.

I would affirm.


text:
    Roberto A. TULIO and Erminda L. TULIO v. ARKANSAS BLUE CROSS & BLUE SHIELD, INC.
    84-138
    675 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984

      Huckabay, Munson, Rowlett & Tilley, P.A., and Laser, Sharp and Mays, P.A., for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Rose Smith, Justice.

This is an action by the appellants, husband and wife, against Arkansas Blue Cross & Blue Shield to recover damages partly for breach of contract and partly for the tort of outrage. In response to a motion by Blue Cross the trial judge entered a partial summary judgment dismissing the complaint as to all tort claims, on the ground that Blue Cross is a benevolent nonprofit corporation that is immune from tort liability. Blue Cross has asked us to dismiss the Tulios’ appeal from the partial summary judgment because it is not a final appealable judgment. We agree and dismiss the appeal.

The original complaint was against Blue Cross as the sole defendant and sought damages for breach of contract, alleging that Blue Cross had wrongfully canceled Tulio’s medical insurance policy and terminated his membership in Blue Cross. By amendment to the complaint the plaintiffs alleged that Blue Cross’s cancellation of the policy had been accomplished in such an outrageous manner as to subject Blue Cross to compensatory and punitive damages in tort. On the day after the entry of the partial summary judgment the plaintiffs again amended their complaint by bringing in Blue Cross’s liability insurers as additional defendants and also bringing in certain officers and employees of Blue Cross, who are alleged to be liable in tort.

Inasmuch as there are both multiple claims and multiple parties in the case, the partial summary judgment is not an appealable order because it does not satisfy the requirements of ARCP Rule 54 (b), which reads:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicatingall the claims and the rights and liabilities of all the parties.

The purpose of the above paragraph, as explained in the Reporter’s Notes, is “to prevent piecemeal appeals while portions of the litigation remain unsolved.” Such a corrective provision has been badly needed in Arkansas. It is not possible to harmonize our decisions about the appeal-ability of orders when only one of several issues has been decided in the trial court. The uncertainty in our former decisions is typified by the case of Independent Insurance Consultants v. First State Bank, 253 Ark. 779, 489 S.W.2d 757 (1973), where the majority opinion, the concurrence, and the dissent stated three different points of view, with supporting citations to our own cases.

Litigation involving multiple parties and multiple issues has become more and more common now that actions in contract and in tort may be joined in a single complaint, now that strict liability is recognized, and now that nonresident defendants may be brought in under the long-arm statutes. Partial summary judgments, as in this case, are also becoming more and more common as the trial courts and counsel seek to confine the actual triál of complex litigation to the really important, controverted issues. In the situation that has developed, Rule 54 (b) should eliminate doubts about what is or is not a final appealable order, so that, as the Reporter’s Notes state, “a party will always know whether a judgment in a Rule 54 (b) situation is ripe for appeal.”

The Rule, which applies only when there are multiple claims or multiple parties, requires two things: First, the trial court must direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. Whether the judgment is in fact final is apparently to be determined under Ark. R. App. P. 2. Second, the trial court must make an express determination that there is no just reason for delay, which has been construed to mean that there must be some danger of hardship or injustice which would be alleviated by an immediate appeal. Campbell v. Westmoreland Farm, 403 F.2d 939 (2d Cir. 1968). Should there be an uncertainty about the trial court’s intent, clarification may be sought during the 30 days allowed for the notice of appeal. Fundamentally, however, the policy of the rules is still to avoid piecemeal appeals, so that the discretionary power vested in the trial court is to be exercised infrequently, in harsh cases. Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2653. Here the discretionary power was not exercised, for the judgment that we are asked to review does not satisfy either of the two requirements essential to its appealability.

Dismissed.


text:
    Lawrence E. WELCH, Jr. v. STATE of Arkansas
    CR 84-41
    675 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984
    [Rehearing denied October 22, 1984.]

      Morgan E. Welch, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On June 1, 1982, after a hearing in open court, the trial judge accepted Welch’s negotiated plea of guilty to a charge of conspiring to commit capital murder and imposed the recommended sentence of 20 years. In July, 1983, Welch filed this petition for postconviction relief under A.R.Cr.P. Rule 37. The petition was denied after a hearing at which Welch was represented by retained counsel. Among eight grounds for relief alleged in the petition, three are now argued as points for reversal.

First, it is said that the petition should have been granted for ineffectiveness of counsel at the original hearing on the plea of guilty. At that hearing Welch stated that he was guilty. That must still be his position, for he has not testified or even alleged otherwise. At the post-conviction hearing he produced no evidence to show that his conviction is not reliable. It is therefore unnecessary for us to examine the alleged ineffectiveness of counsel, for Welch could not have been prejudiced. Crockett v. State, 282 Ark. 582, 669 S.W. 2d 896 (1984).

Second, it is argued that the trial judge accepted Welch’s guilty plea without fully explaining to him all the elements of the offense and the possible minimum and maximum sentences, as required by Rule 24.4. There is no substance to this argument. The judge explained to Welch that he was charged with having conspired with others to promote the commission of the capital murder of Wade K. Smith and that the range of punishment was not less than 5 nor more than 50 years or life and/or a fine not to exceed $15,000. Thus the record contained a prima facie showing of substantial compliance with the Rule. Welch was in jail for a year awaiting trial and consulted with his attorneys some 25 times before the plea of guilty and the sentence was negotiated. He has not testified or even alleged that he was misled by any misconception of the charge or of the range of punishment. Despite a trial judge’s failure to comply strictly with the Rule in accepting a plea of guilty, deficiencies may be supplied at the postconviction hearing. Deason v. State, 263 Ark. 56, 562 S.W.2d 79, cert. den. 439 U.S. 839 (1978). The key question is whether the plea of guilty was made intelligently and voluntarily. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). Here that question must, on the record, be answered in the affirmative.

Third, complaint is made of the trial judge’s denial of a motion to recuse himself at the Rule 37 hearing. No constitutional or statutory ground for disqualification is even suggested. Ark. Const., Art. 7, § 20 (1874); Ark. Stat. Ann. § 22-113 (Repl. 1962). Instead, the motion to recuse was based upon two circumstances supposedly indicating bias. (1) The trial judge had recently presided at the trial of the victim’s wife, who had allegedly employed two or more persons to commit the murder. The judge mentioned some facts brought out at that trial in questioning Welch to determine whether he was in fact guilty. Under Rule 24.6 it was the trial judge’s duty to make that determination. It is not shown that his having presided at the other trial was in any way a disqualification. Nor was the judge under any duty to take the witnss stand, as requested, and explain his mental processes in accepting the plea. (2) Complaint is made that after the original plea had been accepted at the hearing in open court, Welch was brought back to court the next day, sworn, and asked if his answers to the questions put to him the day before would still be the same. He said they would be. Since a plea of guilty need not be made under oath, the second proceeding was unnecessary and certainly does not indicate that the trial judge was so biased as to call for his recusal at the Rule 37 proceeding.

Affirmed.


text:
    Dewayne BANKS v. STATE of Arkansas
    CR 84-50
    676 S.W.2d 459
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Patricia E. Cherry, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The appellant was convicted of four counts of aggravated robbery and sentenced to thirty years on each count, the sentences to run consecutively. The only argument made on appeal is that the trial court was wrong in permitting the victims to make in-court identifications, because they were inherently unreliable. We find no merit in this argument, and Banks’ conviction and sentence are affirmed.

The four counts of aggravated robbery were made because Banks and another man robbed four women about 11:30p.m. on July 14, 1983, near the Excelsior Hotel, Little Rock, Arkansas. The women left the hotel and, as they were approaching their vehicle that was parked on a nearby street, they saw two men sitting on the curb in front of the car. As they reached the car, the men pulled bandanas over the lower part of their faces and one of the men grabbed one of the victims, pushed her into the car on top of another woman, who was in the driver’s seat, and demanded their purses at gun point. The women finally surrendered their purses and the men fled on foot. The matter was reported to the police and it was investigated. A man named Johnny Henderson reported to the police that he was an eyewitness to the incident and was acquainted with the defendant Banks and identified him as being one of the men. The next day the women went to the police station to make a statement and view photographs of possible suspects. The defendant’s picture was not among the photographic spread. One victim thought she could identify one of the men. The women could not give the police very accurate descriptions of the men who robbed them. Six days after the robbery the women were asked to view a lineup. Each woman viewed the lineup separately and three of them made positive identifications of Banks as being one of the men who robbed them. There was testimony that one of the police officers told one of the victims that she had identified a man who was also picked by an eyewitness. There is no evidence that the police prompted the victims in any way before they viewed the lineup.

Whether an in-court identification meets constitutional standards is essentially for the trial court to decide. We reverse the trial judge only if his decision is clearly erroneous. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983); Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). The question is whether or not the in-court identification has been tainted impermissibly by a previous suggestive lineup. We cannot say in this case that the court was clearly wrong in allowing the in-court identification to go to the jury. There is nothing in our judgment to suggest that the lineup was so unfair as to taint the later in-court identification nor that the trial court was wrong in ruling that the in-court identification was reliable. The complaint as to the lineup is largely to the officer’s remark to one of the women that she had identified the same man an eyewitness did. The testimony was conflicting as to whether or not this statement was made. We have held that such a comment, if it was in fact made, is improper but, when made after the selection, is not prejudicial. Perry v. State, supra. Furthermore, even when a pretrial procedure is improper, the in-court identification is improper only if, under the totality of the circumstances, the judge determines there is a likelihood of misidentificadon. Perry v. State, supra. Factors for determining reliability of the in-court identification include whether the victims had sufficient opportunity to view the defendant, the time lapse between the crime and the identification, the level of certainty of the identification, and the accuracy of the prior description of the criminal. Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983).

The main argument of the appellant as to reliability is that the women gave poor descriptions arid they were not in a position to view these defendants when they were robbed because most of them paid no attention to the men sitting on the curb until after they had raised the bandanas over a portion of their faces. Of course, people do not expect to be robbed and the descriptions by victims are often vague and indefinite. However, these victims were in a position to view their assailants; three of them said they could positively identify Banks and did so in a lineup and later in court. There is no reason to disturb the trial court’s ruling and the judgment is affirmed.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Janis M. WATSON and Ronald M. WATSON v. STATE of Arkansas DEPARTMENT OF FINANCE AND ADMINISTRATION
    84-106
    675 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered September 24, 1984

      Ronald W. Watson, and Janis M. Watson, for appellants.

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, John H. Theis, Ann L. Kell, Joe Morphrew, and Mike Munns, by: Wayne Zakrzewski, for appellee.
   Robert H. Dudley, Justice.

The appellants refused to submit to an audit of their tax records. The Commissioner of Revenues made estimated determinations of the sales tax and income tax due which appellants contested before the Board of Hearings and Appeals of the Revenue Division of the Department of Finance and Administration. The Board upheld the commissioner’s estimate and appellants did not appeal. The commissioner then filed Certificates of Indebtedness for the delinquent taxes with the circuit clerk. Writs of execution were issued and the sheriff levied upon appellants’ property. The appellants then filed this original suit in circuit court contending that they were entitled to schedule a five hundred dollar personal property exemption under Section 2 of Article 9 of the Constitution of Arkansas. The trial court found the argument to be without merit and refused to schedule an exemption. We affirm. Jurisdiction is in this court under Rule 29 (1) (a).

Section 1 of Article 9 provides a two hundred dollar personal property exemption for persons who are not the head of a family. Section 2 provides a five hundred dollar personal property exemption for persons who are the head of a family. The Section 1 exemption is from process issued by any court “for the collection of any debt by contract.” The similar Section 2 exemption is from process issued “from any court on debt by contract.”

Both exemptions apply to debts incurred as the result of a contract. State v. Williford, 36 Ark. 155 at 160 (1880). They do not apply to a liability created by statute. Buckley v. Williams, 84 Ark. 187, 105 S.W. 95 (1907). The appellants’ debt for delinquent taxes is a liability created by statute. Ark. Stat. Ann. Title 84, Chapters 19 and 20. The debt was not incurred as the result of a contract, either express or implied, thus appellants are not entitled to the claimed exemptions.

Affirmed.