author: Per Curiam.

text:
    Wilburn A. HENDERSON v. STATE of Arkansas
    CR 82-107
    664 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered February 13, 1984

      Lessenberry & Carpenter, by: Tom Carpenter, for petitioner.

      Steve Clark, Atty. Gen., by: Marci Talbot and Leslie Powell, Asst. Attys. Gen., for, respondent.
   Per Curiam.

The petitioner Wilburn A. Henderson was convicted of murdering a Fort Smith furniture store owner during a robbery. He was sentenced to death. We affirmed. Henderson v. State, 279 Ark. 414, 652 S.W.2d 26 (1983). Petitioner now requests permission to proceed in circuit court under A.R.Cr.P. Rule 37 for an evidentiary hearing on whether he had ineffective assistance of counsel at trial. The petition, however, does not show by clear and convincing evidence that some prejudice resulted from counsel’s representation to the degree that he was denied a fair trial; hence, the petition is denied.

I.

Petitioner first alleges that counsel was ineffective in that he failed to request a jury instruction on first degree murder as a lesser included offense to capital murder. The record indicates that the state requested instructions on first and second degree murder. Defense counsel objected and the state withdrew its request on first degree murder but the court allowed the instruction on second degree murder. On appeal, petitioner argued that it was error for the instruction on second degree murder to be given over his objection. We found no prejudice since there was evidence sufficient to convict him of capital murder. Petitioner now argues that counsel should have requested an instruction on first degree murder once it became evident that the jury would be instructed on second degree murder. He contends that an evidentiary hearing is needed to determine if there was a legitimate trial tactic on which counsel was relying when the decision was made not to ask for an instruction on first degree murder.

As a matter of trial strategy, competent counsel may elect not to request an instruction on lesser included offenses. Riley v. State, 251 Ark. 712, 474 S.W.2d 410 (1971). The rationale behind the strategy is based on the idea that the jury will be more likely to find an accused not guilty if there are only two choices open to it. Petitioner asserts that this “all or nothing” strategy was defeated when the trial court ruled that there would be an instruction on second degree murder, but we do not agree that counsel was* necessarily ineffective in not abandoning the strategy. Petitioner testified that he was not in Fort Smith on the day of the murder. He also sought to establish through other evidence that he did not commit the crime. Counsel stressed, both before and during closing argument, that the jury could disregard the instruction on second degree murder. If the jury had found petitioner’s testimony and that of the witnesses for the defense to be the more credible evidence, it could have found petitioner not guilty. The verdict indicates that the jury concluded that the defense evidence was not persuasive, but this in itself does not mean counsel was ineffective. The success or failure of a particular trial strategy is not a measure of an attorney’s competence. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Mere errors, omissions or improvident strategy will not suffice to require an evidentiary hearing. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983); Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

II.

Petitioner next alleges that counsel failed to adequately challenge two 1963 robbery convictions introduced during the penalty phase as proof of an aggravating circumstance. As support for the allegation he contends that he was mentally ill when the convictions were entered and that the robbery convictions do not meet the test for an aggravating circumstance under Arkansas law.

The judgments for the 1963 convictions indicate that petitioner waived his right to counsel and pleaded guilty. The judgments also indicate that petitioner was afforded an opportunity to speak in his own behalf to present information in mitigation of punishment. Petitioner contends that he was suffering from paranoia, schizophrenic type, at the time and could not have intelligently waived his right to counsel.

The two robbery judgments in question note that petitioner had waived his right to counsel. There was nothing on the face of either judgment to open it to attack. When a judgment appears valid, the trial court is not required to reopen proceedings on the voluntariness of a guilty plea. Moreover, the state produced proof of four additional felony convictions from 1958 which petitioner does not claim were invalid. These convictions were for rape, assault with a deadly weapon, assault by force likely to produce great bodily injury and robbery in the first degree. Petitioner concedes that these four convictions would suffice to permit the jury to find the aggravating circumstance but argues that the consideration of the 1963 convictions would influence the jury unfairly to favor the death penalty because they were more recent than the 1958 convictions.

We do not find that counsel was ineffective in failing to raise the issue of petitioner’s mental state in 1963. Even if the two robbery convictions were obtained while petitioner was suffering from psychosis, the failure of an aggravating circumstance does not invalidate a death sentence that is otherwise adequately supported by other proof of aggravating circumstances. See Zant v. Stephens, _ U.S._, 103 S.Ct. 2733 (1983). Here, the four convictions from 1958 were sufficient to support the jury’s finding that petitioner had previously committed another felony, an element of which was the use or threat of violence to another person or which created a substantial risk of death or serious physical injury. Ark. Stat. Ann. § 41-1303(3) (Repl. 1977).

Petitioner also contends that the two robbery convictions, if found to be the result of voluntary guilty pleas, were nevertheless insufficient as proof of an aggravating circumstance because there was no proof that the crimes did not involve the risk of threat of violence to another person or involve creating a substantial risk of death or serious physical injury. Petitioner states that he would show at an evidentiary hearing that the victims only thought he was armed when he was not and “only intimidation was used.” Counsel objected to proof of the robbery convictions as aggravating circumstances on the ground that it could not be determined from the judgments whether violence or the threat of violence was a factor. The objection was overruled. Since the threat of violence is inherent in the definition of robbery, Hill, supra, counsel cannot be faulted for not pursuing the matter further after his objection was overruled.

III.

Petitioner alleges that counsel was remiss in not investigating, preparing and presenting evidence in the penalty phase to show that petitioner was suffering from a long standing mental illness at the time the crime was committed. Petitioner states that evidence could have been introduced to show that petitioner was diagnosed in 1959 and 1961 as being schizophrenic and declared legally insane in 1966, presumably by a Colorado doctor. Petitioner further alleges that his mother could have testified to his history of mental disorders had she been questioned about it.

The jury at petitioner’s trial found that no mitigating circumstance existed at the time the crime was committed. Although petitioner alleges that he was mentally ill in 1959, 1961 and 1966 and that his mother could have testified to the duration of his mental illness, he offers no support for a finding that his mental illness affected his behavior at the time the crime was committed. Before trial, counsel requested a psychiatric examination for petitioner which was performed by the Arkansas Department of Human Services. The psychiatric report concluded that petitioner was without psychosis and probably not suffering from mental disease at the time the crime was committed to the degree that he was unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Petitioner has not demonstrated that counsel could have presented any evidence to negate that finding.

IV.

Petitioner’s final allegation concerns objections which counsel failed to make at trial. He concedes that no one of the objections may have been so crucial that counsel was ineffective for failing to object, but he argues that when taken together there was ineffective assistance. This Court has not recognized cumulative error and we find no one of the instances cited by petitioner to be sufficient to find counsel ineffective. Counsel is presumed effective. Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980). To prevail on the allegation that counsel was ineffective for failure to object, petitioner would have to demonstrate that petitioner was prejudiced by the failure to object to the degree that he was denied a fair trial. See Hill, supra; Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner’s allegations do not establish that he was denied a fair trial.

He first raises counsel’s failure to object to cross-examination during the testimony of Melvin Arnold, a witness for the defense in the penalty phase. Arnold was allowed to testify that he had never counseled with the victims of crimes. Petitioner alleges that the questioning was improper because the penalty phase is supposed to focus on the accused and the sentence to be imposed. Petitioner does not explain how the testimony was prejudicial. Allegations with no showing of prejudice do not merit relief under Rule 37. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

The State asked witness Arnold and another witness if they knew that the petitioner referred to himself as “reverend.” Petitioner asserts that this was an attempt to challenge his character and that the state had no proof he had not been ordained. When petitioner testified in the penalty phase, he was asked if he was Reverend Henderson. He responded affirmatively and counsel objected that it was irrelevant. The court held that the question was proper. Since petitioner admitted that he was referred to as “reverend” and he has not explained why the reference in later questioning of the witnesses was prejudicial, there is no basis for an evidentiary hearing.

During rebuttal argument in the penalty phase, the state mentioned that sentences totaling eighteen years had been imposed for the 1963 convictions. Petitioner contends that this amounted to an improper response to the defense comment that petitioner had not been in trouble for nineteen years, i.e. since 1963. He argues that the state implied that he had been in prison for the entire nineteen years which was not true, and thus argued false information.

When petitioner was convicted in 1963 two concurrent sentences of not less than five nor more than nine years were imposed. Even if it was not correct that a total sentence of eighteen years had been imposed because the terms were ordered served concurrently, the state did not link the eighteen year sentence to any statement by the defense. The prosecutor said:

Ladies and Gentlemen, first of all, if you’ll look at those ’63 convictions you’ll see the total sentence was 18 years was the maximum assessed. Please keep that in mind.

No further comment was made, and we cannot say that there was clear and convincing evidence that petitioner suffered any prejudice from the prosecutor’s remark.

The state also said in its closing argument, “We cannot take a chance of letting this person back out,” and “the community cannot afford to let these people who commit violent crimes go on and on and on.” Without citing any authority, petitioner states that such argument is improper under Arkansas law. We do not find that the petitioner was denied a fair trial by the remarks. See Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983).

There are no perfect trials. Due process demands only that the accused receive a fair trial. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982). Petitioner has alleged error, but mere error does not equate with ineffective assistance of counsel and the denial of a fair trial. Hayes, supra.

Petition denied.

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


source: Caselaw Access Project

author:
Richard B. Adkisson, Chief Justice.
      John I. Purtle, Justice,

license: Public Domain

text:
    Ernest Ray BENNETT and Theodora V. BENNETT v. Robert Bruce McGOUGH and Vera Joyce McGOUGH
    83-237
    664 S.W.2d 476
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984

      Reed 4r Irwin, P.A., for appellants.

      Olmstead & Choate, Ltd., by: Stephen Choate, for appellees.
   Richard B. Adkisson, Chief Justice.

On September 12, 1982, the Parker family was involved in an automobile accident. Both parents died as a result of injuries sustained in the accident. The children, Marsha and Melanie, were injured but eventually recovered. Appellees, Robert and Vera McGough, friends of the family, were appointed temporary guardians of the minor children.

On March 10, 1983, appellees petitioned the court for appointment as permanent guardians. On March 21, 1983, appellants, Ernest and Theodora Bennett, the children’s maternal grandparents by consanguinity and affinity respectively, responded to appellees’ petition and asked that they be appointed permanent guardians of the children. On May 23, 1983, the probate court appointed the McGoughs as permanent guardians of the persons and estates of the children and found:

. . . That there is no statutory preference given to either of the petitioning parties to this action. That, after giving due regard to Ark. Stat. Ann. § 57-608 (Repl. 1971), the Court finds that it would be in the best interest of the minor children to remain with the McGoughs as they have demonstrated to the Court’s satisfaction that they have the best interest of the children in mind and that they have in the past demonstrated their ability to care for the children.

Appellants argue for reversal that Ark. Stat. Ann. § 57-608 (Repl. 1971) grants a preference to relationships by blood or marriage and that the trial court erred by not giving proper effect to this statute which provides:

Preference in granting letters. — The parents of an unmarried minor, or either of them if qualified and in the opinion of the court suitable, shall be preferred over all others for appointment as guardian of the person. Subject to this rule, the court shall appoint as guardian of an incompetent the one most suitable who is willing to serve, having due regard to: a) any request contained in a will or other written instrument executed by the parent for the appointment of a person as guardian of his minor child; b) any request for the appointment of a person as his guardian made by a minor of the age of fourteen [14] years or over; c) any request for the appointment of a person made by the spouse of an incompetent; d) the relationship by blood or marriage to the person for whom guardianship is sought.

Although courts generally appoint relatives on the theory that they will be more solicitous of the ward’s welfare, this is not mandatory. The quoted statute is couched in such terms as to allow the court to exercise its sound discretion and only grants a preference to the parents of a minor. Any inclination to appoint a relative must necessarily become subservient to the principle that the child’s interest is of paramount consideration. The lower court need only give “due regard’’ to those factors listed in Ark. Stat. Ann. § 57-608.

Appellants next argue that there was insufficient evidence to support the finding of the trial judge that it was in the best interest of the children to be placed in the custody of the appellees. On appeal this court does not weigh the evidence or pass on the credibility of the witnesses. Kirk v. City of Little Rock, 275 Ark. 128, 628 S.W.2d 21 (1982). But in reviewing the evidence we will not reverse unless we can say that the findings of the trial judge were clearly against the preponderance of the evidence.

The record reflects that after the accident the appellees took the children into their home and cared for them continuously after their release from the hospital in September 1982 and that, before the accident, appellees had taken good care of the children for extended lengths of time when the parents were financially unable to provide for them. Furthermore, other witnesses’ testimony indicated that on numerous occasions the parents of the minor children had expressed a desire for the McGoughs to have custody of the children if anything ever happened to them. Appellants, on the other hand, did not visit the children after the accident or check to see if.their needs were being provided until just before the time of the hearing below. Under the circumstances of this case we are unable to say that the probate court erred in its ruling.

Appellants further argue that the trial court erred in failing to make specific findings of fact as to why it did not give custody of the children to the grandparents, and in so arguing, appellants utilize an analogy between Ark. Stat. Ann. §§ 34-1214 (Supp. 1983) and 57-608. Section 34-1214 requires a court to enter specific findings of fact upon making other than a one-half distribution of property to each of the parties in a divorce. This requirement for specific findings was placed upon the courts by the General Assembly. No such requirement has been placed upon a probate judge when he is dealing with a guardianship under § 57-608.

Finally, appellants argue that the trial court erred in failing to order the appellees to post bond in accordance with Ark. Stat. Ann. §§ 57-616 and 57-617 (Repl. 1971). The purpose of a guardian’s bond is to preserve the estate of the ward. The legislature provided alternative measures for preservation of the ward’s estate in § 57-617. This section provides that no bond is necessary where the ward’s estate consists entirely of cash and where the guardian deposits the funds in a federally insured lending institution which has previously agreed not to permit any withdrawal except on approval of the probate court. The lower court utilized this statute in the present situation, therefore, we do not find an error in not requiring the appellees to post a bond.

The probate court is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion goes too far to uphold a chancellor (serving as probate judge here) in my opinion. I agree we should uphold them unless they are clearly erroneous. In this case the chancellor and the majority of this court are clearly erroneous, in my opinion. The majority state: “The lower court need only give ‘due regard’ to those factors listed in Ark. Stat. Ann. § 57-608 . . .” The trial court held:

That there is no statutory preference given to either of the petitioning parties to this action. That, after giving due regard to Ark. Stat. Ann. § 57-608 (Repl. 1971), the court finds that it would be in the best interest of the minor children to remain with the McGoughs . . .”

Both courts give “due regard” to the statute. The best I can figure is that “due regard” in this case means to ignore it. The statute is correctly stated in the majority opinion. The effect of the opinion is to ignore all of the statute except the first sentence. The courts are mandated by the statute to select a guardian who is suitable and willing to serve, but in addition they are required to give due regard to “the relationship by blood or marriage to the person for whom guardianship is sought.” I do not think this charge is meaningless.

In addition to the statute requiring preference to the appellants in this case I have even a much stronger reason to prefer them: the appellants are the grandparents of these minor children. I believe public policy demands that grandparents and other close relatives be given priority in this type guardianship. In Lee v. Grubbs, 269 Ark. 205, 599 S.W.2d 715 (1980) we approved the natural father of an illegitimate child as guardian with these words: “If a guardian is to be appointed, the natural father should have some preference over others, unless he is unfit.”

The majority rely upon McCartney v. Merchants and Planters Bank, 227 Ark. 80, 296 S.W.2d 407 (1956). There the court awarded guardianship to a bank because feuding relatives created an unfortunate situation. In citing Ark. Stat. Ann. § 57-608 the court stated: “It will be observed that the quoted statute does not make an ironclad order of priority in a situation like the one here.” This language clearly implies that relatives should be given priority. No one would argue that there are not circumstances when certain relatives would not be suitable and willing. Generally speaking, relatives of minors care for and are genuinely interested in their welfare.

The grandfather, age 52, and his wife, age 43, own a three bedroom brick home in Tucson where most of these children’s relatives also live. He earns take home pay of $1,600 per month and these children would become covered under his insurance and would qualify for other benefits. The grandparents did visit. Susie, these children’s mother, lived in Tucson with her parents prior to moving to Arkansas. When she was released from the Fayetteville hospital after the accident she was taken back home to Tucson where she died. These children were there with the grandparents at that time. The guardians in this case filed papers while the children’s mother was still in the Fayetteville hospital. Mrs. McGough told one of the blood relatives that she never wanted to hear the voice of any member of the children’s family again. Of course the McGoughs filed papers to receive the insurance money which was to be paid to the children on account of their parents’ deaths. Also, they are receiving the social security checks for the little girls. The grandparents had visited with the children in February, 1983, and again in May, 1983, at which time the girls inquired whether all the family in Tucson were “drunks” or “crooks.” The McGoughs, who have no children of their own, were married for a second time in 1981. This was for appearance sake as they were already living together. He changes jobs frequently and moves his mobile home from place to place. He has taken bankruptcy. There was testimony to the effect that the McGoughs drank a lot and smoked pot. After the $300,000 was paid into the registry of the court these guardians started talking about adopting these children. Now they will do so and the grandparents’ rights will forever be lost as to these two granddaughters.

I think the reasoning in McLain v. Short, 144 Ark. 600, 224 S.W. 428 (1920) is still sound law. A grandfather and a stranger were seeking appointment as guardian and the stranger won. In reversing the court stated: (p. 603)

So far as the record discloses, both appellant and appellee are proper and suitable persons to be appointed guardian over said minors. Appellant is of blood kin, — their own grandfather; appellee is of no blood kin, and, save the distant relationship of affinity, is what the law terms a stranger. All other things being equal, the general rule of law is that the next of kin, rather than strangers, are preferred as guardians over children.

In my opinion the advent of the probate code had no effect upon this established rule of law. Had there been a showing that the grandparents were unfit, my opinion would have been that of the majority. If there is now no statutory preference for grandparents, does that indeed not place us in the same position the court was in when McLain was decided?

I would reverse and remand for the purpose of awarding guardianship to the grandparents in the absence of some factor tending to show the grandparents are not suitable.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Archie SHIELDS v. STATE of Arkansas
    CR 83-139
    664 S.W.2d 866
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984
    [Rehearing denied March 19, 1984.]

      Dale Varner, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

In a trial by jury in Washington County Circuit Court, appellant was convicted of two charges of deviate sexual activity involving his 8!^ year old stepdaughter and 6 year old stepson, and was sentenced to the maximum punishment of forty years for each charge. The trial court ordered the sentences to run consecutively. From this conviction appellant appeals arguing that (1) the evidence was insufficient to support the jury verdict; (2) the trial court erred in failing to give a limiting instruction on the testimony of an expert witness; and (3) the consecutive sentence was excessive.

The little girl testified that one day while her mother was at a Parent Teacher Conference appellant “laid me down on the bed” and put “his privacy” into her body and then “wiped some white stuff” onto her panties. She said it hurt and she cried, and, although she didn’t tell her mother, her mother found out about it. She further stated appellant put his finger up her. The little boy testified that when he and appellant were in the shower together appellant stuck “his private part inside me” into “my behind.”

The mother of the two children testified that a few days later she found the little girl’s panties with stains on them as she was doing the laundry. She took them to her mother-in-law’s house to tell her mother-in-law that she now had the evidence. She further testified that one day she came home and heard appellant and the little boy in the shower and heard the little boy say “Don’t Daddy, that hurts.” She then heard appellant say “Loosen up and it won’t.”

The medical doctor who examined the children testified he found no physical evidence of penetration in either child. He did not conduct his examination until about ten days after the occurrence. Further, the doctor stated at trial that there could have been no more than slight penetration because there was no physical evidence of that penetration.

A psychologist testified as to what the children told her had happened to their bodies and stated that in her opinion she thought the children had been molested. On appeal we view the evidece in the light most favorable to the non-moving party. If there is substantial evidence to support the jury’s conclusion, we must affirm the verdict. Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1983). We find substantial evidence to sustain the jury’s verdict.

Appellant argues that the trial court erred in failing to give the jury an instruction limiting the testimony of an expert witness. The trial court had admitted the testimony under the hearsay exception allowing admission of statements made for the purposes of diagnosis or treatment. After its ruling, the trial court stated, “I’ll let you proceed on that basis but at the end of this line of questioning, if you request it, I will ask the jury to consider it for that purpose only.” The record reflects that appellant never asked for the cautionary instruction. We are not persuaded that the trial court properly admitted the testimony, but that issue is not raised on appeal. The admissibility of the expert’s testimony is, therefore, not preserved for our consideration. The issue raised on appeal is that the trial court erred in its failure to give a limiting jury instruction. Appellant’s failure to offer his instruction precludes a consideration of that issue. Williams v. State, 276 Ark. 399, 635 S.W.2d 265; Osborne v. State, 278 Ark. 45, 643 S.W.2d 251 (1982).

Appellant further argues that the imposition of consecutive sentences of 40 years each is excessive. It is well-settled Arkansas law that we will not reduce or compare sentences which are imposed within the statutory limits. Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983); Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). The jury found appellant guilty and sentenced him to the maximum punishment on each charge. The trial court then exercised its discretion and ordered the sentences to run consecutively. The imposition of consecutive sentences is well within the trial court’s discretion. We will not reverse the trial court absent a manifest abuse of that discretion. Ark. Stat. Ann. §§ 43-2311 and 43-2312. See also Noland v. State, 265 Ark. 764, 580 S.W.2d 953 (1979).

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur because the majority holds that the issue of admitting the psychologist’s testimony is not reached on appeal. When we face the issue I will insist that neither a psychologist nor anyone else may testify as to whether any particular person is telling the truth or not. It would take clairvoyant power to make such a determination. The statements of the psychologist were admitted pursuant to Unif. R. Evid. 803 (4) which is an exception to the hearsay rule. This rule expressly provides that statements for the purpose of medical treatment or diagnosis are admissible. The testimony in this case cannot possibly be attributed to such purposes. If such testimony were allowed a doctor could describe to the jury how an accident occurred, if a patient first told him how it happened.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Louis O’RIORDAN v. STATE of Arkansas
    CR 84-8
    665 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984
    [Rehearing denied March 26, 1984.]

      Sherry J. Alexander, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Dep. Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   George Rose Smith, Justice.

The appellant was charged with theft, a class C felony, in that by deception he obtained from Bill W. Willis a trailer worth over $100, with the purpose of depriving Willis of his property. The jury found the defendant guilty of the lesser included misdemeanor of theft of property and imposed a sentence of one year in jail. Ark. Stat. Ann. §§ 41-2203 and 41-901 (1977).] The Court of Appeals, citing Rule 29 (1) (c), transferred the case to this court. _

Chief among O’Riordan’s four arguments for reversal is his contention that the State failed to prove that O’Riordan had a present intent to deprive Willis of his trailer when O’Riordan obtained possession of the trailer. That question of subjective intent is often not susceptible of direct proof, but in this case there is substantial circumstantial evidence to support the jury’s verdict.

When the evidence is viewed most favorably to the verdict, as our rule requires, we conclude that the j ury could have found the events to have occurred in this manner:

O’Riordan had a flashing-sign business in Turón, Kansas. In January, 1980, he had an order to pick up 28 signs in Houston, Texas, and deliver them in Missouri. When he received that order he was returning from Illinois with a truck and a 6-foot trailer, too small to carry the 28 signs. On January 11 O’Riordan stopped in Springfield, Missouri, at Guy Peck’s combined service station and trailer rental business. O’Riordan signed a rental contract by which he obtained a 14-foot flatbed trailer from Peck, the rent to be $50 and the trailer to be returned on January 18. Peck testified that the rent was never paid and he did not even hear from O’Riordan until Mrs. O’Riordan telephoned Peck four or five mnths later. Peck did not get his trailer back and still did not know where it was when the case was tried more than three years later.

On January 14, three days after O’Riordan had rented Peck’s trailer for a week, O’Riordan stopped at Willis’s welding shop in Wickes, Arkansas. O’Riordan falsely told Willis that O’Riordan (or his brother-in-law) owned the 14-foot trailer. O’Riordan promised to pay Willis $900 for the 16-foot trailer that he is charged with having stolen and to return with the money in three days. He left the 14-foot trailer as security with Willis, from whom it was later recovered by a police officer. Willis testified that two or three days later O’Riordan called to say that he was having trouble with his truck and would be a couple of days late. After that Willis did not hear from O’Riordan again, though Willis tried for several months to reach him by phone. At the time of the trial, three years later, Willis had never seen his trailer again and did not know where it was.

O’Riordan testified at length, detailing the alleged mechanical problems, adverse weather conditions, and financial difficulties that had prevented him from returning Willis’s trailer or paying for it. He said that he had the trailer in Joplin before Christmas, 1980, but it was stolen while he was at home in Turón. Thus according to O’Riordan’s own testimony, he had the trailer for almost a year without making any payment on it or returning it to Willis. The issue was simply one of fact, with the jury accepting the testimony of the State’s witnesses. That finding, based upon substantial evidence, concludes our inquiry.

The appellant’s other three arguments are plainly without merit. First, the asserted defects in the warrant for O’Riordan’s arrest are immaterial. An invalid arrest may call for the suppression of a confession or other evidence, but it does not entitle the defendant to be discharged from responsibility for the offense. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). Second, there was no denial of a speedy trial, for O’Riordan resisted extradition in Kansas and was tried with sufficient promptness after he was returned to Arkansas. A.R.Cr.P. Rule 28.3 (e). Third, the State’s asserted failure to prove the value of the trailer is immaterial. O’Riordan himself indicated by his testimony that it was worth $700; further, no minimum value is required for the jury’s finding of theft as a misdemeanor. Ark. Stat. Ann. § 41-2203; AMCI 2203-P.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent because I think the complaining witness, Bill W. Willis, used the criminal laws of this state, by and with the aid and consent of local townspeople, to try to collect a civil debt. According to the record Mr. Willis sold the appellant a 16 foot shop-made trailer for $900 on credit. In fact appellant executed a promissory note which was due on the 17th day of January, 1980. The seller also gave a bill of sale to the appellant. After the shop-made trailer was loaded for the first time, in Houston, Texas, it developed problems which necessitated repair. Appellant called Willis on January 17, 1980, and tried to get Willis to deduct the cost of repairs from the price of the trailer. Appellant called Willis again on January 19, 1980, from his home and advised him of the difficulties he was having with the trailer. I think the facts clearly reveal that appellant had financial problems and was unable to pay the promissory note when it was due. Within a few days after the note was due Willis caused criminal charges to be filed against the appellant.

I suppose the reason no cases are cited in the majority opinion is that this may be the first time the state of Arkansas has imprisoned a person for debt. I certainly hope the practice will not extend to other credit purchases such as automobiles. On two occasions the Arkansas Court of Appeals has construed Ark. Stat. Ann. § 41-2205 (1) (Repl. 1977). Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (1980) and Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (1979). In Wiley the accused had purchased building material from the prosecuting witness. Wiley promised to pay for the materials on a certain date but he failed to pay. The prosecuting witness went to the site where the materials were to be used and found a vacant lot. The Court of Appeals reversed and dismissed the conviction of theft by receiving. In Cates the defendant received money to pay off liens but instead converted the money to his own use. The Court of Appeals also reversed and dismissed that conviction.

Our own court has held that “A false representation as an inducement to pay money that something thereafter was to be or was not to be done is not a false pretense.” Bakri v. State, 261 Ark. 765, 551 S.W.2d 215 (1977). We also reversed and dismissed a conviction for false pretense in the case of Ross v. State, 244 Ark. 103, 424 S.W.2d 168 (1968). The defendant had borrowed money from a bank to purchase cattle. The bank was supposed to have a lien on the cattle. Ross never purchased the cattle but instead converted the money to his own use. Ross was cited with approval in Dean v. State, 258 Ark. 32, 522 S.W.2d 421 (1975) wherein Dean was convicted for falsely pretending that he would buy cattle with $2,500 he borrowed from the complaining witness. In Dean we held that any misrepresentation or assurance in relation to a future transaction may be a promise or covenant or warranty, but cannot amount to a statatory false pretense.

This court has many times held that a person may not be placed in jail for willful failure to pay a debt or judgment. Leonard v. State, 170 Ark. 41, 278 S.W. 654 (1926).

I am of the opinion that Mr. Willis sold his trailer on credit to a bad risk. Therefore, the state should not come to his aid by lending its overworked criminal justice system to collect a debt.

Hollingsworth, J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Lawrence Lee HUGHES v. STATE of Arkansas
    CR 83-141
    664 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984

      Peter O. Thomas, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The trial court denied appellant’s Rule 37 petition in which he sought to gain additional jail time credit on his six year sentence. On appeal it is argued that the trial court erred in denying additional jail time credit and thereby causing appellant’s sentence to exceed the maximum statutory six year sentence. We do not agree with appellant’s argument.

On March 13, 1978, appellant was sentenced to 17 years in the Arkansas Department of Correction (ADC) for kidnapping and first degree battery. He was paroled on May 3, 1982. He was arrested for felon in possession of a firearm and other charges on August 12, 1982. His parole was revoked on October 29, 1982, and he was returned to prison to serve additional time for the 1978 conviction. He was again paroled and returned to the Pulaski County Jail on March 26, 1983, to await trial on the charges for which he was arrested on August 12, 1982. He entered a guilty plea to the charge of felon in possession of a firearm on April 5, 1983, and the other charges were dismissed. The trial court sentenced him to six years and allowed credit for 10 days presentence jail time.

The record of the sentencing procedure reveals the appellant to have asked that “he be given credit for his jail time.” The court stated: “He will be given credit for jail time served.”

Although the abstract is lacking in some respects, we are able to readily understand the facts of the case. The appellant’s request for credit for jail time was sufficient to include all proper jail credit. The question before us is whether appellant should be given credit for the additional time he served in the ADC as a result of his parole being revoked. The reason his parole was revoked was because he violated the provisions of his parole by being in possession of a firearm. He served 227 days in the Cummins Unit of the ADC and was held an additional 10 days in the Pulaski County Jail awaiting trial on charges stemming from the same incident which caused his parole revocation.

Arkansas Stat. Ann. § 41-904 (Repl. 1977) requires the court to give credit to an accused for the time he is imprisoned if the conduct for which he is held results in a prison sentence. Walters v. State, 267 Ark. 155, 621 S.W.2d 468 (1979). If appellant had been held in jail, on this charge alone, because he was indigent then he would have been entitled to the full 237 days. Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974). He was not held in the ADC as punishment for being in possession of a firearm; he was held there because he violated his parole. The time served in the ADC after revocation of his parole was punishment for the 1978 crime. When he was again paroled he was returned to the Pulaski County Jail where he was held for 10 days before he pleaded guilty to being a felon in possession of a firearm. The trial court stated “he would be given credit for jail time served’’ and subsequently determined 10 days to be the proper credit. We agree with the trial court’s determination of credit time. He was entitled to credit for all the time he was held to answer for the conduct giving rise to the sentence he received. Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    BIBLER BROTHERS TIMBER CORPORATION v. TOJAC MINERALS, INC. et al
    83-247
    664 S.W.2d 472
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984

      Smith, Stroud, McClerkin, Dunn ir Nutter, by: Charles A. Morgan, for appellant.

      Martin, Vater & Karr, by: Robert W. Vater; and Keith, Clegg ir Eckert, by: Oliver M. Clegg, for appellee.
   Robert H. Dudley, Justice.

The appellant, the lessor of oil and gas rights, seeks to cancel part of the lease by asking a court of equity to vertically sever the lessees’ oil and gas rights in lands lying outside a producing unit from the lessees’ oil and gas rights in lands located within the producing unit. The Chancellor refused to cancel the lease of oil and gas rights in lands outside the producing unit. We affirm. Jurisdiction is in the Court under Rule 29(l)(n).

On March 14, 1972 the appellant leased the oil and gas rights in 1,766 acres of land to the Ferguson Oil Company and, through mesne conveyances, the appellee, along with others, became a lessee. The lease provides for a primary term of ten years at a rental of $1,766 the first year and delay rentals in the same amount each year until drilling is commenced. These rentals were paid each year and drilling was commenced on February 23, 1982, about three weeks before the primary term of the lease expired. A producing gas well was completed on March 28, 1982 and appellant has, since then, received royalties.

The 1,766 acres are in six different sections of land. The well is located in section one. In 1960 and 1964 the Arkansas Oil and Gas Commission integrated all royalty and similar interests in each drilling unit in the gas field as authorized by Ark. Stat. Ann. § 53-115 A-2 (Repl. 1971). In January, 1982, TXO Production Corp. filed a petition with the Commission asking that all owners of leasehold working interests be forced to contribute, either directly or through later royalties, to the cost of drilling, completing, and equipping a well to be located in section one. The Commission granted the compulsory pooling order. The TXO well in section one was then completed as a producing well and appellant has since drawn royalties.

The appellant now seeks to cancel the lease on the other five sections of land, comprising 1,406 acres, which are not included in the producing unit. Paragraph 6 of the lease gives the lessee the right to pool or unitize its estate in order to create a drilling or production Unit:

Lessee is hereby given the power and right, as to all or any part of the land described above and as to any one or more of the formations thereunder and the oil and gas produced therefrom, at its option and without Lessor’s joinder or future consent, to at any time, either before or after production, pool and unitize the leasehold estate and the Lessor’s royalty estate created hereby with the rights of any third parties, if any, in all or any part of the land described herein and with any other land, lands, lease, leases, mineral and royalty rights, or any of them adjacent, adjoining or located within the immediate vicinity of the above described lands, whether owned by Lessee or some other person, firm or corporation, so as to create by such pooling and unitization one or more drilling or production units.

Paragraph 6 also includes the standard provision that production from a well on the drilling unit would have the same effect as if the well were drilled on the land embraced by the lease. The paragraph concludes with the following statement:

In the event however that only a part of the lands embraced by this lease are included in a unit created hereunder, then the remainng portion of the lands embraced by this lease shall be subject to delay rental payments as provided in Paragraph 4.

Appellant contends the last sentence created a vertical severance of the lease. It argues “that only a part of the lands embraced by this lease” were included in a pooling agreement, that is, 360 of the 1,766 acres: Thus, the remaining portion of lands embraced by the lease was still subject to the delay rental payments and since no delay rental payments were required to be paid after the primary term of the lease, the lease could only be extended to unitized or pooled areas that were actively drilling for oil or gas.

The short answer to appellant’s argument is that there was no “unit created hereunder.” There simply was no voluntary pooling by the lessee. Instead, the unit was created by a compulsory pooling order of the Oil and Gas Commission after a petition by TXO Production Corp., a third party.

The in-depth answer requires an analysis of the differing effect of compulsory pooling and voluntary pooling on a clause purporting to sever an oil and gas leasehold. We have no Arkansas case in point but a Louisiana case thoroughly considered the issue. Bennett, et al v. Sinclair Oil and Gas Co., 275 F.Supp. 886 (W.D. La. 1967). The clause in Bennett granted to the Lessee the power to pool and unitize “if at any time while this lease is in force and effect lessee in its option deems it advisable and expedient” to do so. The language, similar to the discretionary power given to lessee in the present case, indicates the clause refers to voluntary rather than compulsory pooling. Bennett states:

In other words, voluntary pooling by the lessee would be within the contemplation of the parties, being expressly provided for in the lease. Conversely, a forced unitization and pooling order by the Commissioner would not be within the ambit of the intention of the parties under Clause 6 because no provision for such action existed in the lease. . . Admittedly, there is little jurisprudence on this particular point, but the decisions which have been rendered by the Louisiana courts clearly indicate that the Pugh Clause is inoperative where there is a compulsory unit established by the Commissioner of Conservation. One plausible explanation for this reasoning might be the strong mandate found in Hunter v. Shell Oil Co. [211 La. 893, 31 So.2d 10 (1947)] and similar cases which stand for the proposition that the oil and gas lease is an indivisible obligation in the absence of express provision to the contrary.

The provision in this case relates to units formed voluntarily, at the discretion of the lessee, and not to compulsory units. The general rule is that an oil, gas and mineral lease is indivisible. Production in any part of the lease keeps the lease in effect for as long as oil, gas and other minerals are being produced on any of the lands described in the instrument. The standard lease with a pooling clause provides that the entire lease will be considered held by production, whether that production is on the pooled area or some area of the tract that has not been unitized.

In 1947, Lawrence G. Pugh, a lawyer in Crowley, Louisiana, recognized that a lease was normally held to be indivisible. He drafted a clause calculated to prevent the holding of non-pooled acreage in his clients’ leases while other portions were being held under pooled arrangements. These clauses were termed "Pugh” clauses.

Appellant contends the Paragraph 6 language constitutes a Pugh clause. Williams and Meyers’ Oil and Gas Terms, p. 602, defines a Pugh clause as "a type of pooling clause which provides that drilling operations on or production from a pooled unit or units shall maintain the lease in force only as to lands included within such unit or units.”

The clause in Bennett, supra, which is characterized as a Pugh clause is as follows:

6. . . .If operations be conducted on or production be secured from land in such pooled unit other than land covered by this lease, it shall have the same effect as to maintaining lessee’s rights in force hereunder as if such operations were on or such production from land covered hereby, except that its effect shall be limited to the land covered hereby which is included in such pooled unit.
(Emphasis added with Pugh Clause in italics.)

The definition and the example contrasts with the language in this case. The lease before us does not state the lease will be in effect only as to unitized lands. Instead, it states that the lands outside the unit are subject to delay rentals under Paragraph 4 of the lease. Since, according to Paragraph 4, delay rentals are not owing after lessee commences drilling or after the primary term of the lease, the language fails as a Pugh clause and also fails to impose delay rentals on appellees.

Appellant’s final point for reversal is that the trial court erred in granting judgment on the pleadings because material issues of fact were unresolved. Specifically, appellant alleges the issue in dispute is whether the lease was subject to forfeiture due to appellees’ failure to drill and develop the non-unitized acreage. However, the failure to drill and develop was waived when the appellant asserted positively in its Motion for Summary Judgment:

“That there is no genuine issue as to any material fact and that Plaintiff [appellant] is entitled to a judgment as a matter of law.”

Affirmed.


author: Per Curiam. John I. Purtle, Justice,

text:
    George Amos SCOTT v. STATE of Arkansas
    664 S.W.2d 475
    Supreme Court of Arkansas
    Opinion delivered February 21, 1984

      Petitioner, Pro Se.

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

Petitioner George Amos Scott pleaded guilty in 1982 and subsequently filed a pro se petition to vacate that plea pursuant to A.R.Cr.P. Rule 37. The petition was denied on December 7, 1982, and no appeal was taken. In June, 1983, petitioner sought to file a petition for writ of mandamus with this Court asking that the trial court be directed to act on his Rule 37 petition. He was informed that the trial court had denied the petition on December 7, 1982. Now some six months later petitioner seeks a belated appeal of the circuit court order on the grounds that his petition was denied without a hearing and that he was not notified of the court’s action.

Petitioner is not entitled to a belated appeal because his Rule 37 petition was denied without a hearing. The circuit court may deny a petition for postconviction relief without a hearing if the petition and files and records of the case conclusively show that the prisoner is entitled to no relief. Rule 37.3(a).

Petitioner is also not entitled to a belated appeal based on an unsubstantiated allegation that he received no notice of the court’s ruling. A petitioner has the right to appeal an •adverse ruling on a petition for postconviction relief. Rule 37.3(b). With that right, however, goes the responsibility to file a timely notice of appeal. Petitioner makes the bare allegation that he was not notified of the trial court’s order, but we note that petitioner waited six months from the time he sought to file a mandamus action and was told that his petition had been denied before filing his motion for belated appeal. He gives no support for the allegation that he was not notified of the denial of his petition, but more importantly, he offers no good cause for the further delay of six months before the motion for belated appeal was filed. At some point in time the opportunity to pursue remedies must end. As petitioner has not demonstrated that there was any reasonable basis for his failure to act, the motion for belated appeal is denied.

Although petitioner did not establish his right to a belated appeal under the facts of this case, his motion points up the need to revise the Rules of Criminal Procedure to provide for prompt, consistent notice to petitioners when a ruling is made on a petition for postconviction relief. Accordingly, Rule 37.3 is amended this date to require that a copy of the court’s order be promptly mailed to the petitioner.

Motion denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I agree with the action taken to amend the rule; however, I strongly disagree with the majority opinion denying petitioner the right of a belated appeal. The majority rely on the particular facts of this case to deny the petition. The fact of this case, it seems to me, is that petitioner waited too long before asking for the appeal.

Petitioner had no way of knowing his request had been denied. No notice was sent to him. I have no trouble at all in understanding that an inmate in the department of corrections does not have an opportunity to inspect the courthouse records to find out if his petition has been ruled upon. The workload of our trial courts is so heavy that this type of motion often goes many months before being ruled upon. Whether petitioner is right or wrong he is entitled to have us hear his appeal.


author: Richard B. Adkisson, Chief Justice.

text:
    COMMERCIAL BANK AT ALMA v. James A. HALES d/b/a JOHNSON-HALES LIVESTOCK COMMISSION
    83-248
    665 S.W.2d 857
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984
    [Rehearing denied April 9, 1984.]

      Shaw ir Ledbetter, for appellant.

      Daily, West, Core, Coffman ir Canfield, by: Thomas A. Daily, for appellee.
   Richard B. Adkisson, Chief Justice.

The appellant, Commercial Bank at Alma, hereinafter bank, instituted this action against appellee, James A. Hales, hereinafter auctioneer, claiming that he had committed conversion by selling cattle which were the subject of a security agreement in favor of the bank. The trial court granted a summary judgment in favor of the auctioneer. The bank appeals.

The bank’s security interest in the cattle arose as collateral for a loan made to Don Tison, a rancher in Crawford County, Arkansas. The bank had perfected its security interest by filing the necessary papers with the Circuit Clerk of Crawford County.

Unbeknown to the bank, Mr. Tison delivered the cattle to the auctioneer in Oklahoma where they were sold. The net proceeds were then paid to Tison by the auctioneer. Tison then absconded. The bank was unaware of the sale and did not consent to it. Also, the bank did not refile its security agreement in Oklahoma.

Appellant bank argues that the trial court erred in granting summary judgment based on an exception to the common law rule of auctioneer liability. Under common law and in Arkansas, the general rule is that an agent (auctioneer) is liable for conversion when he sells property on behalf of his principal who holds the property subject to a lien with no right to sell the property. The overwhelming majority of jurisdictions are in accord with this rule. See 7 Am. Jur. 2d Auctions and Auctioneers, § 69 (1980); Annot., 96 A.L.R. 2d 208 (1964). Arkansas follows the majority view. In Eureka Springs Sales Company v. Ward, 226 Ark. 424, 290 S.W.2d 434 (1956), the auctioneer was sued by the true owner for selling the stolen cattle; this Court held that by selling the cattle at auction, the auctioneer became liable for conversion. The Court further held that knowledge was not a factor in deciding an auctioneer’s liability.

Appellee auctioneer claims an exception to this general rule arises because the Packers & Stockyards Act, 7 U.S.C. § 181 et seq. destroys the voluntariness on the part of the agent which is necessary to hold him liable. The auctioneer further argues that this Act so heavily regulates the area as to cause an auction house to become a utility. The Packers 8c Stockyards Act was passed to remedy abuses practiced by auction houses against its customers. From a close reading of the Act and its history, we see no indication of an intention to shield market agencies (auctioneers) from liability on account of wrongful sales. In a similar situation, the Court in U.S. v. Sommerville, 211 F.Supp. 843 (W.D. Pa. 1962), found that the Packers & Stockyards Act did not relieve auctioneers of liability for conversion for selling cattle which were covered by a security agreement. This position follows the greater weight of authority. Also see, Mason City Production Cr. Ass’n v. Sig Ellingson & Co., 205 Minn. 537, 286 N.W. 713 (1939); Birmingham v. Rice Bros., 238 Iowa 410, 26 N.W.2d 39 (1947); Allen Driver Inc. v. Mills, 199 Md. 420, 86 A.2d 724 (1952); U.S. v. Matthews, 244 F.2d 626 (9th Cir. 1957); Annot., 2 A.L.R. 2d 1124 (1948).

Even though the Act provides that auctioneers shall not refuse services on an unreasonable or unjustly discriminatory basis, it does not require the auctioneer to handle stolen livestock or livestock in which the title is defective. Furthermore, an auctioneer may make reasonable requirements that one proposing to deal with him establish identity, ownership, and title to the livestock involved. Therefore, it is our conclusion that the Packers & Stockyards Act does not absolve the appellee auctioneer from liability for wrongful conversion for selling cattle subject to a security interest.

Appellee auctioneer claims that he is a purchaser as defined under Ark. Stat. Ann. § 85-1-201(32), and that by virtue of being a purchaser under the Arkansas Commercial Code he is entitled to the priority granted under Ark. Stat. Ann. §§ 85-9-103( 1 )(d)(i) and 85-9-301(l)(c) (Supp. 1983). But, in order for the auctioneer to obtain the status of having priority over the bank, he must first qualify as a buyer of farm products in the ordinary course of business under Ark. Stat. Ann. § 85-9-301(l)(c) (Supp. 1983). Therefore, appellee auctioneer must first be a “buyer” which requires a “sale.” “Buying” does not include a transaction in which the person claiming to be a “buyer in the ordinary course of business” merely acts as an agent for another, such as an auctioneer. See Annot., 87 A.L.R. 3d 11 (1978). An auctioneer is merely a selling agent and cannot claim the protection given to buyers of farm products in the ordinary course of business.

Accordingly, we conclude the trial court erred in granting summary judgment for the appellee auctioneer. Therefore, we reverse.


author: George Rose Smith, Justice. Richard B. Adkisson, Chief Justice,

text:
    B. & J. BYERS TRUCKING, INC. v. F. Eugene ROBINSON
    83-262
    665 S.W.2d 258
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984
    [Rehearing denied March 26, 1984.]

      Butler, Hicky, Hicky & Routon, Ltd,., by: Preston G. Hicky, for appellant.

      Kinney, Easley & Kinney, by: B. Michael Easley, for appellee.

      Adkisson, C.J., would grant rehearing.

   George Rose Smith, Justice.

On a clear July afternoon in 1980 the plaintiff, Eugene Robinson, was injured when his car was struck from behind by a large tractor-trailer rig being driven by the defendant trucking company’s employee. The jury’s apportionment of 75% of the total negligence to the truck driver and 25% to the plaintiff settled the principal issue of fact: whether the collision was caused by the negligence of either or both of the drivers. The defendant, in appealing from the net judgment for $150,000 for the plaintiff, argues three points relating to the evidence and one to asserted misconduct by two jurors. None of the arguments has merit.

It is first argued that because the plaintiff’s attorney had signed but not sworn to a denial in answer to a defense request for an admission, the court should have instructed the jury that the plaintiff had admitted fault in the accident. The request, however, had asked not the plaintiff himself but B. Michael Easley, “Attorney for Plaintiff, F. Eugene Robinson,” to admit that Robinson was at fault in the accident. Even if we assume, without holding, that the request related to an issue of fact within ARCP Rule 36 (a), the rule nevertheless contemplates that the request be directed to the adverse party, to be answered by that party. The trial judge properly rejected the defendant’s attempt to require opposing counsel to respond to the request.

Second, a State police officer, Dennis Hensley, investigated the accident and was called as a witness by the plaintiff. On cross examination the officer was asked by defense counsel: “Did you tell me you thought they were about equally at fault?” After a detailed hearing in chambers the judge properly sustained the plaintiff’s objection to the question. Officer Henley admitted during that hearing that he had had no training in reconstructing accidents, that he had never attempted to reconstruct one, that he had talked only to the truck driver and not to Robinson, who had been taken away from the scene in an ambulance, and that he had not considered the weight of the vehicles, their speed, or the grade of the hill. The officer’s proffered conclusion of equal fault as between the drivers was essentially based only on his expressed belief that Robinson had a right to turn to his left and the truck driver had a right to try to pass a vehicle ahead of his own vehicle. There was no real basis for the witness to testify that the drivers were equally at fault, even assuming the admissibility of such an opinion.

Third, the plaintiff called Officer Kenneth Rogers to testify, as an expert, that the truck driver’s speed when he applied his brakes must have been 59 miles an hour or more. Counsel first qualified the officer as an expert, by eliciting his testimony that he had studied the investigation and reconstruction of accidents for over 800 hours at various specified schools and universities, that he had taught the subject for over four years and was then teaching it at Arkansas State University, that he had reconstructed more than 150 accidents and testified a number of times in courts, and that he had written extensively on the subject. After the witness had been so qualified, but before he proceeded with his actual testimony, defense counsel made his only objection, “to Trooper Rogers’s testimony in therecordas to reconstruction. Under the Arkansas case law, it is not permitted.” The objection was overruled and not renewed.

Officer Rogers testified that he had seen Officer Hensley’s acident report and diagram (which presumably showed the truck’s skid marks to have been continuous for 99 feet to the point of impact and 170 feet beyond that, as Hensley testified), had read the depositions of the two drivers, had visited the scene three times, had determined the grade of the hill, had examined the pavement, and had ascertained the weight of the tractor-trailer and its minimum legal braking requirements. The officer explained how he calculated the friction coefficient and finally estimated that the truck had been traveling at least 59 miles an hour rather than the truck driver’s own estimate of 40 to 45.

Counsel’s objection, that Arkansas case law does not permit any reconstruction of an accident, was not accurate. In Woodward v. Blythe, 249 Ark. 793. 462 S.W.2d 205 (1971), we adhered to our earlier position that attempts to reconstruct traffic accidents by means of expert testimony “are viewed with disfavor,” but we nevertheless held that expert testimony was necessary in that case for an understanding by the j urors of the physical dynamics and causal relationships involved in the accident. Again, in Wright v. Flagg, 256 Ark. 495, 508 S.W.2d 742 (1974), we sustained the trial judge’s exclusion of a witness’s faulty attempt to reconstruct the accident, but we recognized the existence of exceptions to the broad exclusion of such testimony.

The determination of an expert witness’s qualifications is a matter lying within the trial judge’s discretion, to be upheld on appeal absent an abuse of that discretion. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). With regard to accident reconstruction, the important consideration is whether the situation is beyond the jurors’ ability to understand the facts and draw their own conclusions. Woodward and Wright, supra. Similarly, under Uniform Evidence Rule 702 the question is whether specialized knowledge will assist the jury to understand the evidence or determine a fact issue. Here Officer Rogers explained to the jury how the facts enabled him to make the computations necessary to his estimate of the truck’s speed. The jury could not have made such a computation. In view of our case law the trial judge correctly overruled an objection that was made before the testimony had been heard, and since the officer’s estimate proved to be admissible, it is understandable why the objection was not renewed.

Fourth, the appellant charges two jurors with misconduct. As the jury was being selected the judge asked if any of the panelists had ever been represented by the plaintiff’s lawyer, Michael Easley, or by Easley’s partners, Knox and Baird Kinney. No juror responded. After the trial the appellant moved for a new trial, attaching the following affidavit by an attorney to show that juror Peggy Joyce Duke had been represented by the plaintiff’s attorneys about two months before the trial:

I represented Mike Zuber in connection with the sale of his house. . . to Prince F. Duke and Peggy Joyce Duke. The sale was closed in late April of 1983. The Dukes were represented by Kinney, Easley and Kinney. Both Mr. and Mrs. Duke were present at closing.

There was also proof that Mrs. Duke’s husband was being represented by the Kinney firm in a pending matter in which Duke sought abatement of child support for two children by a former wife, because the children had reached their majority.

The appellant’s brief quotes from our opinion in Hot Springs St. Ry. Co. v. Adams, 216 Ark. 506, 226 S.W.2d 354 (1950), where a juror deliberately concealed the fact that he was then being represented by one of the plaintiff’s attorneys. On that basis we reversed the judgment, saying:

The appellant was entitled to the information sought, as a basis for a peremptory challenge if not as a ground for challenging for cause. In these circumstances the juror’s duty of candor extends well beyond a ready acquiescence in the supposition that counsel has decided not to pursue his inquiry. The very theory of an impartial jury demands that the juror take positive action to bring his possible disqualification out into the open w,hen the question is raised.

We adhere to that position, but the present case is significantly different from that one. There the juror was called to testify at the hearing on the motion for a new trial, and it was clearly shown that his concealment had been deliberate. Here the short affidavit gives no details and leaves open the possibilities that Mrs. Duke’s husband alone had dealt with the lawyers or that she did not understand that the judge’s inquiry about having been represented by the firm included such out-of-court matters as a real estate transaction. All such questions could easily have been cleared up if Mrs. Duke had been called to testify at the hearing, but the appellant, having the burden of proof on the motion, failed to call Mrs. Duke or account for the failure to do so. Easley stated at the new trial hearing that he had not represented Mrs. Duke and did not know that his firm had done so until he received the motion for a new trial. Absent any showing of deliberate concealment or fraud on the part of the juror or of counsel, we are unwilling to order a new trial in the face of appellant’s failure to call the one witness whose testimony might well have been decisive.

Also attached to the motion for a new trial was an affidavit signed by a member of the jury, stating that the foreman told the jury that he had gone out during the trial to see the scene of the accident for himself and that he told the jury “that the truck should have stopped in time, or something to that effect.” The affiant stated that in his opinion the foreman’s statement “influenced some of the jurors, especially the ladies.”

Most of the affidavit was inadmissible, for Uniform Evidence Rule 606 (b) provides that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions.” The rule does say that a juror may testify on the question whether “extraneous prejudicial information was improperly brought to the jury’s attention.” When Congress adopted the federal rules of evidence, after which the Uniform Rules were patterned, there was a House Judiciary Committee report referring to “extraneous prejudicial information” as being, for example, a radio broadcast or a newspaper account. Weinstein’s Evidence, Rule 606, Congressional Action (1982). When we lay aside the foreman’s expression of opinion and its possible effect as being inadmissible, all that remains is that a juror, who had not been cautioned against visiting the scene, went out to a place on the public highway that was open to inspection by everyone and with which he might have been familiar. There was no extraneous information in the sense that the juror talked to anyone else when he went to the scene. Upon this point the trial court was right in refusing a new trial.

Affirmed.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. This case should be reversed because the trial court erred (1) in not granting a new trial based upon juror Peggy Joyce Dukes’ untruthful response to a question from the court, and (2) in allowing a witness to give expert testimony as to the speed of one of the vehicles at the time of the accident based upon his reconstruction of the accident.

I.

On voir dire the trial court asked the j ury panel if any of them had ever been represented by the plaintiff’s lawyer, Michael Easley, or by Easley’s partners, Knox and Baird Kinney. No juror responded. On the motion for a new trial, the proof was undisputed that juror Peggy Joyce Dukes had just recently been represented by the law firm of Kinney, Easley and Kinney. It has long been settled law in Arkansas that a juror who is not candid with the Court is guilty of misconduct which gives rise to ground for a new trial. Zimmerman v. Ashcraft, 268 Ark. 835, 597 S.W.2d 99 (1980); Ark. State Hwy. Comm. v. Young, 241 Ark. 765, 410 S.W.2d 120 (1967); Anderson v. State, 200 Ark. 516, 139 S.W.2d 396 (1940).

The majority attempts to justify this sudden departure from our heretofore consistent list of cases by quoting from Hot Springs Street Railway Co. v. Adams, 216 Ark. 506, 226 S.W.2d 354 (1950) which supports a position they are refusing to follow in this case. Actually Hot Springs Street Railway Co. stands for the proposition that even the appearance of juror misconduct will be enough to warrant relief. Moreover, this court just recently reiterated its historic position, now being ignored, in Walton v. State, 279 Ark. 193, 650 S.W.2d 231 (1983) where it was held that an ambiguous question (whether a juror had personal knowledge as opposed to hearsay knowledge about the case) was sufficient to require the juror to volunteer that she had listened to a part of an earlier trial. This court reversed in Walton, holding that the juror had not only been less than candid with the court but had been untruthful. The holding of the majority represents inconsistency, a sharp departure from previous law, and a tendency to decide cases, not on the basis of an articulable standard of law, but on some intangible and unknown impulse.

The second point of the majority’s holding is that they are unwilling to take the undisputed testimony before the trial court in arriving at its conclusion. This seems to be contrary to all of our cases requiring the juror to respond and volunteer information merely on the suggestion that a response might be needed.

II.

Generally, automobile accident reconstruction is not an appropriate subject for expert testimony. As here, the opinion of an expert as to the speed of a vehicle depends on the supposition of too many variables. Further, the experience and mental attitude of the experimenter will substantially vary from that of the actual operator of the accident vehicle. See McCraney v. Kuechenberg, 144 Ind. App. 604, 248 N.E.2d 171 (1969). There is, therefore, too much uncertainty to allow this testimony, particularly in view of the great weight which is ordinarily accorded expert testimony by the jury.

Expert testimony in this field of law will make negligence actions involving automobiles a contest between expert witnesses which more likely will be decided for the party most able to afford the expert. In the great majority of the cases, this will give insurance companies an unnecessary but decided advantage. 2 Wigmore, Evidence 3rd Ed. § 563 and McCormick on Evidence 2nd Ed. § 17 pp. 37-41.


author: Darrell Hickman, Justice.

text:
    Barbara Sue HELMS et al v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    83-256
    664 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984

      Bill W. Bristow, P.A. and Mooney ir Boone, by: Joe C. Boone, for appellants.

      Barrett, Wheatley, Smith & Deacon and David Rees, for appellee.
   Darrell Hickman, Justice.

This case arises from the tragic school bus accident outside Uno, Arkansas, Poinsett County, which killed five faculty members, four students, the driver, and injured the remaining 29 passengers. It is undisputed that at the time of the accident the teachers and the driver were employees of the Jonesboro School District and acting within the scope of their employment. The school district’s insurance company, Southern Farm Bureau Casualty Insurance, interpleaded $500,000, which was the proceeds of the district’s policy. One of the injured teachers and representatives of two teachers who had been killed claimed part of the proceeds.

Several of the students filed a motion for a declaratory judgment arguing that the teachers were not entitled to any part of the policy proceeds. The district court agreed with the students and found that the teachers’ remedy was either under workers’ compensation coverage or a claim against the driver’s personal estate; but that the driver was not an insured under the policy as against claims by the teachers or their representatives. On appeal the teachers argue that it is against public policy to foreclose their right to the insurance policy proceeds under Act 165 of 1969. That act grants political subdivisions, including school districts, tort immunity, but requires them to carry liability insurance on their motor vehicles. The appellants argue that either the driver of the bus should be considered an “insured” under the school district’s policy, or that they should be allowed to sue the school district itself.

Arkansas has granted school districts immunity from tort liability. Ark. Stat. Ann. § 12-2901 (Repl. 1979). We have said that that statute is a clear and unambiguous statement of public policy. Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W.2d 94 (1969). It is also required that school districts carry liability insurance on motor vehicles in the minimum amounts prescribed by the Motor Vehicle Safety Responsibility Act. Ark. Stat. Ann. § 12-2903 (Repl. 1979). See also Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973); Ark. Stat. Ann. § 75-1466 (Supp. 1983).

Because of the above requirements, the Jonesboro School District was obligated to be insured on its motor vehicles for at least $25,000 per person and $50,000 per occurrence. Jonesboro School District insured itself far in excess of the limits and obtained a policy for $300,000/$500,000. The policy has a standard section which provides:

The insurance with respect to any person or organization other than the named insured does not apply ... to any employee while engaged in the business of his employer, with respect to bodily injury to another employee of the same employer injured in the course of such employment. . . .

That provision clearly precludes suit against one employee by another for part of the policy proceeds. In the “Exclusions” portion of the policy is the following provision:

This policy does not apply: ... (1) to bodily injury to any employee of the insured. . . .

Ark. Stat. Ann. § 80-1237 (Repl. 1980) provides that officers and employees of public schools shall be covered by workers’ compensation. Ark. Stat. Ann. § 80-1238 (Repl. 1980) provides that the Workers’ Compensation Commission will have exclusive jurisdiction of claims by public school employees. In W. M. Bashlin v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), we stated that it is without question that, except in certain cases, workers’ compensation is the exclusive remedy between an employer and an employee. We also said that other statutes must yield to the Workers’ Compensation Act because it is in the interest of public policy to give that act priority as an exclusive remedy.

We see nothing in the insurance policy provisions that violates the legislative intent of Act 165. Act 165 obviously did not intend to make all victims whole; indeed, although the legislature provided for some means of redress in § 12-2903, the limitations put on those requirements are explicit. Those limits were recently approved in Thompson v. Sanford, 281 Ark. 365, 663 S.W. 2d 932 (1984), and clearly indicate that the legislature did not propose to give one hundred percent redress in every case. Act 165 merely strives to have political subdivisions bear some responsibility for injuries caused by negligence.

The teachers and their representatives have a remedy with workers’ compensation, and we see no violation of public policy in denying them the benefit of the proceeds of the school district’s insurance policy. See Medlar v. Aetna Insurance Co., 127 Vt. 337, 248 A.2d 740 (1968).

Affirmed.


text:
    Johnnie GLENN v. STATE of Arkansas
    CR 82-59
    664 S.W.2d 868
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984

      Sandra Tucker Partridge, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Johnnie Glenn was convicted of aggravated robbery by a jury and sentenced, as an habitual criminal, to fifty years. We find no merit to his five allegations of error and affirm his conviction.

Appellant, along with two others, Don Brown and Edward Brown, robbed the Majik Market in West Memphis, Arkansas, on December 4, 1980. Three teen-aged girls witnessed the crime. All of them recognized Don Brown, who used a pistol in the robbery. Don Brown was arrested on December 5, and based on his subsequent statement and photographic identification, Edward Brown and Glenn were arrested on December 8 when they were seen in municipal court. Glenn signed a statement that day admitting complicity in the robbery.

Glenn was first brought to trial in February of 1981. The trial judge granted a mistrial on the basis of statements made by the prosecuting attorney to the local press. Another trial was held during May of 1981, and it also resulted in a mistrial when counsel for Don Brown (all three defendants were tried together) pointed out to the jury that only Don Brown had testified. The trial from which this appeal is brought was held four months later. After the first mistrial, the state amended its information alleging that Glenn was an habitual criminal with two prior convictions. Glenn’s arguments on appeal are that his arrest was illegal and therefore his confession was inadmissible; his identification was improper because of impermissible suggestiveness by the officers; he was denied a speedy trial; he was improperly charged and found to be an habitual criminal; and there is no substantial evidence of his guilt.

There was probable cause for Glenn’s arrest based on Don Brown’s statement and Glenn’s identification as a participant in the robbery. The fact the warrant for his arrest was issued by the clerk, not the judge, and there was no affidavit, would not void his conviction. Allen v. State, 277 Ark. 380, 641 S.W.2d 710 (1982).

Whether Glenn’s confession was voluntary depends upon the credibility of the two officers who took his statement. Immediately after his arrest the morning of December 8, he signed a waiver of his rights and signed a statement within two hours thereafter. The officers denied any force or coercion was used or promises made. They directly disputed Glenn’s testimony that he was threatened and told a high bail would be set if he did not cooperate. On review, we examine the totality of the circumstances, but give due deference to the resolution of credibility of witnesses to the trial court’s findings. There is no reason in this case to find the judge’s ruling was clearly against the preponderance of the evidence. Brown v. State, 276 Ark. 20, 631 S.W.2d 829 (1982). (The record of the Denno hearing in Don Brown’s trial and appeal was consolidated with the record in this appeal.)

Glenn’s identification by the three teen-agers was first made in the residence of one of the girls. The officer testified that while all were present in the room, the witnesses were shown the pictures separately and no suggestions at all were made. The officers’ testimony was corroborated by all three witnesses. Two of the witnesses were positive about Glenn. The other witness was not certain and her identification was excluded as evidence. The fact that the witnesses were together when the photographs were laid out is not sufficient to void the identification. By no means is it the best and most desirable method, but neither is it fatal. See Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983).

From the time Glenn was charged until he was ultimately convicted was just over nine months. His argument that he was denied a speedy trial must fail because the time for bringing a person to trial does not begin to run until the date of a mistrial, if there is one. A.R.Cr.P. Rules 28.1 and 28.2. His last mistrial was declared in May, and his trial began four months later. Even so, Glenn argues Barker v. Wingo, 407 U.S. 514 (1972), mandates a finding that he was denied a speedy trial. His case was speedily processed from its inception, tried within three terms of court without any prejudice to Glenn, and we find no denial of his constitutional rights.

After Glenn’s first mistrial, the state amended the information to allege two prior convictions. It is argued this was prejudicial error. There is no indication at all that there was malice in the state’s decision as there may have been in the case of Hayes v. Cowan, 547 F.2d 42 (6th Cir. 1976), where the defendant had changed his plea from guilty to not guilty. Glenn makes no argument that he was surprised, nor did he request a continuance.

The prior convictions, one for breaking and entering and the other for breaking and entering and theft of property, were proved by the testimony of the circuit clerk, who testified from records. We held in Reeves v. State, 263 Ark. 227, 564 S.W.2d 503 (1978), that a prior conviction may be proved by “any evidence that satisfies the trier of fact beyond a reasonable doubt.” Ark. Stat. Ann. § 41-1003 (Repl. 1977). In Reeves we upheld proof of a prior conviction by a clerk based on docket entries. Glenn does not challenge the fact that he was convicted nor make any argument that would cause us to reject the clerk’s testimony and the jury’s finding.

One of Glenn’s convictions resulted in a suspended sentence for three years, and he argues that is not a “conviction” for the purposes of sentence enhancement. At the time of the offense, there was in effect § 41-1001 (Repl. 1977) which reads:

(a) A defendant who is convicted of a felony and who has previously been convicted of more than one (1) but less than four (4) felonies, or who has been found guilty of more than one (1) but less than four (4) felonies, may be sentenced to an extended term of imprisonment as follows: (Italics supplied.)

It is academic whether he received a suspended sentence since under this statute, there was sufficient proof of a finding of guilt to satisfy our requirement for a prior conviction. See Campbell v. State, 264 Ark. 575, 572 S.W.2d 845 (1978); Reeves v. State, supra. There was substantial evidence of his guilt and his conviction is affirmed.

Affirmed.

      See also § 41-1210 and commentary.