author: David Newbern, Justice. Tom Glaze, Justice, Cathleen Compton, Special Justice,

text:
    Pamela F. SKOKOS v. Honorable Alice S. GRAY
    94-952
    886 S.W.2d 618
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994
    [Rehearing denied December 5, 1994.]

      Henry Hodges and Robert L. Robinson, Jr., for petitioner.

      Dodds, Kidd, Ryan & Moore, by: Judson C. Kidd', and Hollingsworth Law Firm, by: P.A. Hollingsworth, for Theodore Skokos.

      Winston Bryant, Att’y Gen., by: Melissa K. Rust, Asst. Att’y Gen., for respondent.

      Special Justice Eddie Walker, joins. Special Justice Cathleen Compton, would grant rehearing. Hays and Brown, JJ„ not participating.

   David Newbern, Justice.

Pamela F. Skokos seeks a writ of certiorari to disqualify the respondent, Chancellor Alice S. Gray, from presiding in divorce proceedings instituted by Ms. Skokos. Judge Gray denied three motions by Ms. Skokos that she recuse. We deny the writ because the decision by a judge whether or not to recuse lies within the judge’s discretion, and certiorari does not lie to control a judge’s discretion. Ms. Skokos also asks that we disqualify an attorney representing Mr. Skokos as well as an attorney ad litem appointed to represent the interest of a minor child of the Skokoses. We decline to do so.

Certiorari

1. The Chancellor

In Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988), we discussed the writ of certiorari and quoted the following from State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969):

Certiorari lies to correct proceedings erroneous upon the face of the record when there is no other adequate remedy. It is available in the exercise of superintending control over a tribunal which is proceeding illegally where no other mode of review has been provided. Certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. It is not available to look beyond the face of the record to ascertain the actual merits of a controversy, to control discretion, to review a finding upon facts or review the exercise of a court’s discretionary authority.

Ms. Skokos does not contend that the Chancellor is acting illegally or without or in excess of her jurisdiction. Rather, she contends we should disqualify the Chancellor pursuant to our superintending authority found in Ark. Const, art. 7, § 4. No case is cited in which we have used the writ of certiorari to disqualify a judge. Nor is any case cited from any other jurisdiction in which certiorari has been employed to remove a judge in the midst of proceedings being conducted by him or her.

A voluminous record of the divorce proceedings has been presented to us, and Ms. Skokos has cited numerous incidents she contends amount to demonstrations of bias against her by the Chancellor. They include decisions with respect to temporary possession of the marital home, custody of a child, support for Ms. Skokos and the child, and “suit money.” They also include instances in which the Chancellor has held one of Ms. Skokos’s lawyers in contempt of court for his conduct in her presence. In addition, there is an allegation that the Chancellor erred in declining to disqualify one lawyer representing Ms. Skokos’s husband due to his alleged professional relationship with an attorney ad litem appointed to represent the minor child of the parties.

Another allegation is that a lawyer for Ms. Skokos informed the Chancellor that he had filed a complaint against her with the Judicial Discipline and Disability Commission having to do with an unrelated case and the Chancellor erroneously overruled a motion to recuse on that ground.

The cases cited by Ms. Skokos in support of her contention that the Chancellor should have recused, e.g., City of Jacksonville v. Venhaus, 302 Ark. 204, 788 S.W.2d 478 (1990); Patterson v. R.T., 301 Ark. 400, 748 S.W.2d 777 (1990); Rosenzweig v. Lofton, 295 Ark. 573, 751 S.W.2d 729 (1988); Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975), were decisions made on appeal.

The only case cited in which we have invoked Ark. Const. art. 7, § 4, is Robinson v. Robinson, 218 Ark. 526, 237 S.W.2d 20 (1951). In that case we decided an appeal which required us to remand a case to a chancery court. We stated that, pursuant to our constitutional authority, we were remanding it to a different division from the one which had handled it originally. We said, “. . . we have concluded from an examination of the entire record that in fairness to the chancellor of the Second Division as well as to the parties, the cause should be transferred to the First Division for further proceedings.” Although we used the authority of art. 7, § 4, we did so as a part of our appellate review as opposed to using certiorari to oust a judge in the midst of proceedings.

Perhaps the closest we have come to using the writ of certiorari in the manner suggested by Ms. Skokos is the case of Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994). We issued the writ to require a judge to reconsider the setting of an appearance bond. The record demonstrated that no consideration had been given to matters required to be considered by the Trial Court in making that decision. That case is distinguishable from this one in that the appellate remedy there would have been useless because the petitioner would have had to remain incarcerated until tried without proper consideration of his request for release on bond. It was a case in which there was no other remedy or effective means of review.

We have said often and recently that certiorari will not be used to “control discretion.” See, e.g., Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993); Gran v. Hale, supra. That flat statement was made in Arkansas State Highway Comm. v. Light, 235 Ark. 808, 363 S.W.2d 134 (1962). We varied from it in Brown v. Wood, 257 Ark. 252, 516 S.W.2d 98 (1974), in which we stated, “. . . the law is well settled that upon review by certiorari it is essential that there be demonstrated a plain, manifest, clear, great or gross abuse of discretion by a trial court before an appellate court is justified in granting the relief sought.” For that statement we cited general authority from encyclopedias and a learned treatise and invited the reader to compare our decisions in Arkansas State Highway Comm. v. Light, supra, and State v. Nelson, supra. We repeated the quoted language in Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

In neither the Brown case nor the Shorey case did we grant the writ. It is apparent that, with the addition of the language about “plain, manifest, clear, great, or gross” abuse, we were stressing the very heavy burden a petitioner for certiorari must bear.

Before concluding our discussion of certiorari with respect to the Chancellor’s decisions overruling the motions to recuse we should mention a case in which mandamus was issued to disqualify a circuit judge. Copeland v. Huff, 222 Ark. 420, 261 S.W.2d 2 (1953). There we held that a judge had no choice but to recuse when he was a party to the litigation over which he proposed to preside. We said that mandamus was appropriate because in that circumstance the act of recusal was ministerial only in view of the clear constitutional disqualification of the judge. That, of course, is a far cry from the kind of discretionary ruling of which Ms. Skokos complains.

There are good reasons for the limitations on the writ of certiorari. A party could, for example, use a complaint to the Judicial Discipline and Disability Commission as a tactic to force a recusal. Complaints of “patently biased and insupportable rulings” such as we have here could, if we were to allow them to become routine subjects of certiorari, cause interminable delays in trials.

Our consideration of Ms. Skokos’s allegations in response to her petition for certiorari will preclude us from considering them again, should there be a later appeal. Henderson Methodist Church v. Sewer Improvement Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987); Bertig Bros. v. Independent Gin Co., 147 Ark. 581 228 S.W. 392 (1921); Note, 17 Ark. L. Rev. 163 (1963). We will not be precluded, however, from considering in a later appeal matters which transpire in the trial henceforth should the Chancellor persist in her decision not to recuse and should the proceedings continue in the atmosphere which has developed thus far. Without making any direct comment about the Chancellor or counsel or any specific ruling, we offer some observations.

The record before us demonstrates obvious ill will between the Chancellor and counsel which has impeded deciding the case. The parties are still pursuing “temporary” custody of a minor child despite 15 months of hearings, and the case is at a standstill as a result of the certiorari petition.

It is clear to us that there is a contest of wills between the Chancellor and counsel. Should it continue, and cause actions which become the subject of a later appeal, perhaps necessitating a reversal and retrial, justice for the parties will to a degree be thwarted and the judicial system will be subjected to unnecessary but justified criticism.

Canon 1 of the Arkansas Code of Judicial Conduct makes it clear that a judge should maintain high standards of conduct to preserve the integrity of the judiciary. Canon 2 requires a judge to avoid the appearance of impropriety, and Canon 3 requires strict impartiality. The preamble to the Model Rules of Professional Conduct points out that a lawyer is a representative of clients, an officer of the legal system, and a public citizen “having special responsibility for the quality of justice.” It also provides “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges. . . . While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” Model Rule 3.5 deals with decorum and provides in subsection (c) that a lawyer shall not “engage in conduct intended to disrupt a tribunal.”

These considerations are very important to the judicial process. As officers of the court, lawyers must vigorously pursue their clients’ interests, but they must do so with respect for the court. On the other hand, when others lose their composure and depart from professional demeanor, we expect a judge to keep his or hers intact and to assure that the proceedings are conducted in the most dignified manner possible.

2. The lawyers

Although Ms. Skokos asks us to disqualify one of the lawyers representing Mr. Skokos as well as an attorney ad litem appointed to represent a minor child of the parties, the only argument presented with respect to the two lawyers appears as part of her brief contending that the Chancellor should have recused.

Ms. Skokos’s contention is that the attorney ad litem is a member of a law firm, one of whose partners is a partner with a lawyer for Mr. Skokos in another firm, and thus there is a disqualifying conflict. The response made to the Chancellor and to us is that the two law firms in question are separate entities and that the attorney ad litem thus has no relationship with Mr. Skokos’s lawyer.

We find no independent argument devoted to the authority we may or may not have to declare a lawyer disqualified during proceedings before a trial court. Again, no cases are cited in which an appellate court has done such a thing.

Our own research reveals that we have held on appeal that a lawyer and law firm were disqualified, Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990), but absent convincing argument or citation of authority we decline to address the matter in response to a petition for certiorari.

In response to a motion by Ms. Skokos, on September 9, 1994, we stayed all proceedings in this matter other than a hearing to be held by the Chancellor on whether she should recuse. Now that the hearing has been held, and we decline to change the result by granting certiorari, the stay is lifted.

Writ denied.

Hays and Brown, JJ., not participating.

Special Justice Eddie H. Walker, Jr., joins in the majority opinion.

Glaze, J., concurs.

Special Justice Cathleen V. Compton dissents.

Tom Glaze, Justice,

concurring. I concur with the majority opinion. Certiorari does not lie to disqualify a judge from hearing a proceeding unless the judge is proceeding illegally, or in want, or in excess, of his or her jurisdiction. No legal authority is cited in support of employing certiorari to remove a judge in the midst of a proceeding and good reasons for rejecting the use of this extraordinary remedy for such purposes are set out in the majority opinion.

Having said the above, I am concerned over the obvious ill will that has arisen between counsel and the chancellor, and how it has obviously impeded reaching a final decision in this case. After fifteen months from the filing of this case, the parties were still hearing “temporary” custody matters. Their bad feelings have apparently existed through most of this case and are now the cause for this case coming to a standstill — at least until this court’s ruling on the certiorari-recusal issue.

In listening to the audio tape of an August 25, 1994 hearing, it is clear that this case has become a contest of wills of the chancellor and counsel, and seems less to do with resolving the parties’ differences in the divorce suit. This court, at this stage of the parties’ case, has decided procedurally that it is unable to resolve the recusal issue. Nonetheless, if issues like the ones that have occurred in the past continue to occur in future proceedings, the recusal issue could well be the basis of a future appeal. If reversal based upon a failure to recuse should occur on appeal, the parties’ case would then require retrial of all issues.

At this point, fault has not been discussed in specific detail or placed solely with either counsel or the trial judge. A brief period of calm for reflection now exists, and recusal might be seriously considered by the judge, considering the special circumstances and history of this case. The parties’ interests and resolving their differences should be paramount. Canon 1 of the Arkansas Code of Judicial Conduct is especially noteworthy to any member of the judiciary, since that canon makes it the judge’s duty to establish and maintain high standards of conduct and to observe those standards so as to preserve the integrity and independence of the judiciary. In other words, when others lose their composure, demeanor or even their professionalism, judges must keep theirs intact even when tested or provoked. On occasion, being right or vindicated of an alleged wrong does little towards establishing a high standard of conduct. The parties in this case are entitled to have their divorce case heard and decided free of personal diatribe between members of the bench and bar.

Cathleen Compton, Special Justice,

dissenting. The majority refuses to issue a writ of certiorari to disqualify Chancellor Alice S. Gray from presiding in divorce proceedings between Pamela Skokos and Theodore Skokos. The refusal is based on the contention that the writ of certiorari does not lie to control a trial judge’s discretion. The majority also maintains that Ms. Skokos has another adequate remedy: the remedy of appeal at the close of this case. Because appeal is a woefully inadequate, not to mention, inequitable, remedy in this case, I respectfully dissent.

The transcript and briefs in this case indicate very clearly that there is acrimony between Chancellor Gray and the attorneys for Ms. Skokos. In fact, Chancellor Gray has made comments on the evidence which indicate her displeasure with Ms. Skokos as well. She challenged Ms. Skokos’ credibility and she advised Ms. Skokos that she felt Mr. Skokos was “more conciliatory.” She commented that it appeared that Ms. Skokos “wanted everything” — specifically, custody of the parties’ minor child, possession of the marital home, and money. It is not mentioned by the Court .that Mr. Skokos also wants those same things. In fact, in the majority of divorce cases, these are the common bones of contention, and the reasons for litigation. They hardly were revolutionary requests. Chancellor Gray has a duty to be “fair and impartial” to all litigants in her court, and her commentary is unnecessary.

The animosity between Chancellor Gray and Ms. Skokos’ counsel is evident. This is most unfortunate. Perhaps Ms. Skokos’ attorneys “goaded” her into her actions. It does not matter. Everybody in that courtroom who holds a license to practice law or a judgeship is duty bound, honor bound, and ethically bound to be professional to one another and to the litigants.

The Chancellor on more than one occasion refused to allow attorneys for Ms. Skokos to make a record. She interrupted during their questions and their arguments. She routinely reminded them of the time constraints being imposed by the Court. She engaged in a running commentary about their demeanor. She also testified from the bench during a recusal hearing.

Yet the majority believes that appeal will be an adequate remedy, distinguishing this case from Foreman v. State, 317 Ark. 146, 875 S.W. 2d 853 (1994) in which we granted a writ of certiorari. In Foreman, we granted the writ because Mr. Foreman would otherwise have been incarcerated until tried. While it is not argued that a contested divorce case is as difficult to live through as an incarceration, the similarities should not be overlooked. If Ms. Skokos is required to wait until an appeal occurs, she is subject to the continuing lack of dignity she has experienced to date. Her husband has control of the marital assets, her attorneys cannot finish their sentences without being interrupted by the Court or held in contempt, and it is doubtful whether a compíete record can be properly made. If Ms. Skokos has not already lost all respect she had for our justice system, she will. In addition to those problems, this Court’s majority has sanctioned an appeal which can only be costly to both litigants, as well as to their minor daughter. It is mystifying to see the majority invite an appeal to this Court, while holding that an appeal based on the facts of this case is an adequate remedy.

This Court has supervisory powers over lower courts through Article 7, Section 4, which states:

The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus, and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.

Those powers although historically used at the appellate level, are not limited by the constitutional language, by statute, or by case law, to appeals. See Foreman v. State, supra. Because we are constitutionally mandated to be “conservators of the peace” throughout the State, we should exercise those powers for the benefits of Mr. Skokos, Ms. Skokos, Mandy Skokos, Chancellor Gray and each attorney involved. This case has deteriorated to a level that causes the need for drastic intervention and the earliest possible resolution. Further, we have held that, in order for the writ of certiorari to lie, we must be presented with “.. . plain, manifest, clear and gross abuse of discretion.” Shorey v. Thompson, 295 Ark. 664, 750 S.W. 2d 955 (1988). We have been so presented in the instant case, and the writ should have been issued.

The other matters raised by Ms. Skokos concern the disqualification of Mr. Les Hollingsworth, one of the attorneys for Mr. Skokos and of Arkie Byrd, the attorney ad litem for Mandy Skokos. Since the writ is denied, it is unnecessary to reach these issues. Parenthetically, however, it is noted that if every attorney who contributes to the campaign of a state court judge is automatically suspect and should be disqualified, both the bench and the bar of this great little state' are in serious trouble.

For all the foregoing reasons, and because of the importance of the preservation of the integrity and dignity of the justice system, I respectfully dissent from the majority opinion, and would grant the writ.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Frankie WEBB v. STATE of Arkansas
    94-332
    886 S.W.2d 624
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      Bill Luppen, for petitioner.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for respondent.
   Donald L. Corbin, Justice.

This is a petition for writ of prohibition filed by Frankie Webb, a juvenile defendant charged with one count of first degree battery in the Pulaski County Circuit Court, seeking to prevent the continuance of that proceeding. Petitioner argues jurisdiction of this case properly lies in the Pulaski County Chancery Court, Juvenile Division (“juvenile court”), not in circuit court. Jurisdiction of this petition is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(3). We grant the writ.

On June 14, 1993, petitioner, then aged fourteen years, allegedly committed certain acts which were the basis for the state charging him, by information filed in circuit court on September 7, 1993, with four counts of terroristic act. Petitioner moved the circuit court to transfer his case to juvenile court for lack of jurisdiction. On December 7, 1993, the state filed an amended information charging petitioner with one count of first degree battery in addition to four counts of terroristic act. After a hearing, the circuit court granted the motion to transfer on January 11, 1994.

Also on January 11, 1994, the state filed a delinquency petition in juvenile court charging petitioner with three counts of terroristic act; the other two counts (the fourth count of terroristic act and the single count of first degree battery) charged in the December 1993 amended information were not included in the delinquency petition. On January 13, 1994, the state made a motion for nolle prosequi with respect to the three counts included in the delinquency petition, at which time the juvenile court indicated, in open court, that it was going to grant the motion, entering its written order on January 24, 1994. No other action was taken by the state in juvenile court. Petitioner has filed a direct appeal from the order granting the motion for nolle prosequi, which appeal is pending with the court of appeals.

Also on January 13, 1994, the state again charged petitioner by a new information filed in circuit court with the single count of first degree battery which is at issue. No other offenses were charged. Petitioner unsuccessfully moved the circuit court to dismiss the case for lack of jurisdiction. Petitioner then filed this petition for a writ of prohibition.

The jurisdiction of the juvenile court is exclusive and original with respect to all offenses charged against a juvenile who is aged fourteen years at the time of the commission of those offenses, with the exception of those offenses enumerated at Ark. Code Ann. § 9-27-318(b)(1) (Repl. 1993). Banks v. State, 306 Ark. 273, 813 S.W.2d 257 (1991). Those enumerated offenses include first degree battery, but do not include terroristic act. With respect to any enumerated offense, the state has discretion to file its charges either by delinquency petition in the juvenile court or by information in the circuit court. In the event an enumerated offense is charged in the circuit court, that court is then required to proceed as follows:

(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.

Ark. Code Ann. § 9-27-318(b)(2) (Repl. 1993) (emphasis added). In this case, the December 1993 amended information added the enumerated offense of first degree battery. At that point, the circuit court acquired jurisdiction of the case as to the battery count. Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992). In the express language of the statute, the circuit court’s subsequent transfer order then effectuated the court’s determination “to waive jurisdiction and transfer the case to juvenile court.” Section 9-27-318(b)(2).

Focusing on the waiver element of the transfer order, we construe the term “jurisdiction,” as used in section 9-27-318(b)(2), to denote jurisdiction of the person of the juvenile, based on our reading of the entirety of the quoted statutory language. The term “waiver” is defined to mean “the renunciation, repudiation, abandonment, or surrender of some claim, right, privilege, or of the opportunity to take advantage of some defect, irregularity, or wrong.” Black’s Law Dictionary (6th ed. 1990). The plain meaning of the statute is that the circuit court deliberately relinquished or lost its jurisdiction of petitioner by virtue of the operation of the waiver element of the transfer order. It is equally evident that petitioner has not chosen to reconfer jurisdiction of him in this matter to the circuit court by his consent. Further, we are aware of no authority, and are cited to none, which holds that the circuit court’s in personam jurisdiction of the juvenile, once surrendered pursuant to a valid hearing on the motion to transfer, may be reconferred upon the transferor court simply by the state’s unilateral action of there refiling its charges against that juvenile. See, e.g., Kent v. United States, 383 U.S. 541 (1966); Charles A. Buss, Waiver of Jurisdiction in Wisconsin Juvenile Courts, 1968 Wis. L. Rev. 551 (1968).

Focusing on the transfer element of the transfer order, we hold that the “case” transferred, within the meaning of section 9-27-318(b)(2), in this instance, consisted of a direct transfer of the first degree battery charge to the juvenile court. See, e.g., Walker, 309 Ark. 23, 827 S.W.2d 637; Banks, 306 Ark. 273, 813 S.W.2d 257. In so holding, we are aware of no statutory authority requiring the state to refile its charge in the transferee court to complete the transfer of the case. In fact, we note that the statutes of our juvenile court clearly support our conclusion that a direct transfer of the case is effected by the transfer order in that the transfer of the case, viewed from the perspective of the transferor court, in the language of section 9-27-318(b)(2) (“transfer the case to juvenile court”), is mirrored in the language of Ark. Code Ann. § 9-27-310(a) (Repl. 1993) which provides, from the perspective of the transferee court, that proceedings in juvenile court “shall be commenced by filing a petition with the clerk of the chancery court or by transfer by another court.” (Emphasis added.) Finally, we note that the concept of the transfer of cases between the criminal and the juvenile courts has been central to our jurisprudence with respect to juvenile proceedings for many years, and that at least one earlier statute, Ark. Stat. Ann. § 45-241 (Repl. 1964) (Acts of 1953, No. 263, Section 1), clearly delineated the consequence of an order transferring a juvenile’s case from circuit court to juvenile court, reading in pertinent part, as follows:

When any child under fifteen (15) years of age is charged in the Circuit Courts of this State with any felony, the Circuit Court or the Judge thereof where such charge is pending, may, at his discretion order and direct that the criminal charge and the file and record thereof be transferred to the Juvenile Court of the County where the charge is pending, for such disposition as the Juvenile Court may adjudge and determine. [Emphasis added.]

In its responsive brief, the state argues the transfer order does not automatically transfer the first degree battery charge from circuit court to juvenile court because that construction of section 9-27-318 would invalidate the statute on constitutional grounds by impermissibly intruding upon the state’s prosecutorial discretion to control the filing of criminal charges, thus violating the separation of powers guarantee. The state contends, instead, that the transfer order merely transfers the judicial forum in which the state will exercise its prosecutorial discretion regarding what accusations shall be made. We reject the state’s argument, noting initially that it would have been made more appropriately by a direct appeal from the circuit court’s transfer order. Although such orders are interlocutory in nature, they are appeal-able by statute. State v. Hatton, 315 Ark. 583, 868 S.W.2d 492 (1994); see also Ark. Code Ann. § 9-27-318(h) (Repl. 1993). The state, however, did not choose to appeal the transfer order, opting instead to attempt to prosecute this case in its chosen forum by the circuitous path it has followed back to circuit court.

In support of its constitutional attack, the state cites us to three cases: State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993) (case remanded for resentencing where trial judge dismissed prior felony charges, on its own motion and over state’s objection, for purposes of sentencing); Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992) (no error committed where trial judge refused to order prosecutor to amend information to charge a lesser felony); and Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992) (trial judge committed error in amending cause of death as charged in the information without being requested to do so by the state). These cases are neither persuasive authority for the state’s argument nor relevant to the instant case for the reason that no charge filed here by the state was amended by either court involved.

The operation of section 9-27-318 did not violate the state’s constitutionally-protected duties or the separation of powers doctrine because it did not interfere with the state’s choice of which charges to file against petitioner. Indeed, the operation of this statute underscores the importance of the prosecutor’s choice in charging because, as we have stated, “our General Assembly has not based court assignment in juvenile cases upon the nature of the offense ‘committed’ but upon what the prosecutor chooses to charge.” Walker, 309 Ark. 23, 28, 827 S.W.2d. 637, 640. However, as we have stated, what the prosecutor chooses to charge in the circuit court with respect to a juvenile is not necessarily determinative of the forum for trial. As we have stated, that decision rests with the circuit court, and, indeed, if the court merely defers to the prosecutor’s judgment in the matter:

Such action on the part of the trial court defeats the purpose of the Arkansas Juvenile Code which recognizes the need for careful, case-by-case evaluation when juveniles are charged with criminal offenses. Section 9-27-318 clearly delegates the responsibility for determining which court is most appropriate to the court in which the charges were brought, and the abdication of this responsibility to the prosecutor . . . was an abuse of the court’s discretion.

Pennington v. State, 305 Ark. 312, 315, 807 S.W.2d 660, 662 (1991).

We find that, in consequence of its order to transfer this case to juvenile court, the circuit court is now without jurisdiction as to this juvenile and this charge. It further appearing that there are no disputed facts or other adequate remedy in this case, the writ of prohibition is clearly warranted. State v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994). The writ is granted.

       With respect to the terroristic act counts, the juvenile court had exclusive original jurisdiction. Ark. Code Ann. § 9-27-306 (Repl. 1993); Section 9-27-318. Thus the state had no discretion to file those counts in the circuit court and that court should have dismissed them. Banks, 306 Ark. 273, 813 S.W.2d 257.


author: Robert L. Brown, Justice.

text:
    IN THE MATTER OF the ESTATE of Nora MAYBERRY, Deceased v. Helen MAYBERRY
    94-256
    886 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994

      William H. McKimm, for appellant.

      Gunner Delay, for appellee.
   Robert L. Brown, Justice.

This appeal is taken by the Estate of Nora Mayberry which urges that the probate court erred in finding that no ademption of Nora Mayberry’s specific bequest to her daughter, appellee Helen Mayberry, occurred. At issue here was a bequest of a savings account at “Arkansas Trust Bank” in Hot Springs, held jointly by Nora Mayberry and Helen May-berry, which was bequeathed so that Helen Mayberry could have free access to the account for her life. The joint savings account was closed by Nora Mayberry prior to her death, and three certificates of deposit were purchased by her in her name at Arkansas Bank & Trust Company with money from that savings account and with her individual funds. We conclude that the original bequest in the will to Helen Mayberry was adeemed, and we reverse the probate court’s decision and remand the case.

On January 25, 1982, Nora Mayberry executed her will which contained this pertinent language:

I give, devise and bequeath to Helen Bernice May-berry the following: said Helen Bernice Mayberry is to have a life estate in all my real property; she also is to have and enjoy a life estate in all my personal property other than my banking accounts, Certificates of Deposit, and bonds. As for the savings accounts which I presently have at the Bank of Montgomery County and at the Arkansas Trust Bank in Hot Springs, AR, Helen Bernice Mayberry is to have free access to both of said accounts for any purpose for her life.

After Helen Mayberry’s death, the will provided for an additional life estate in the bank savings accounts in Ernestine Donlon Scarlett and then the grant of a remainder interest in the accounts and other personal property to certain individuals following the deaths of the two life tenants.

On October 27, 1986, Nora Mayberry died. Helen Mayberry took the joint savings account at Bank of Montgomery County by right of survivorship. At the time of her death, Nora May-berry had no savings account at Arkansas Bank & Trust Company, though she owned three certificates of deposit at that bank purchased in her own name. Those C.D.’s and the funds used to purchase them are described as follows:

Certificate of Deposit No. 23614

This C.D. was purchased on February 20, 1986, for an amount of $15,000. Of that amount, $5,000 came from the joint Arkansas Bank & Trust Company savings account. Of the remaining purchase price, $9,000 came from the sale of Nora Mayberry’s Series E government bonds, and an additional $1,000 was derived from a cashiers check in the joint names of Nora and Helen Mayberry. The cashiers check was drawn on the joint savings account at Arkansas-Bank & Trust Company. As of March 25, 1992, a new C.D. No. 50370 had been purchased with the funds from C.D. No. 23614 and accrued interest. Its value as of that date was $21,476.18.

Certificate of Deposit No. 19587

This C.D. was purchased on February 25, 1985, for an amount of $5,000. A prior C.D. in the same face amount had been used to purchase it, and the funds to purchase that C.D. were $2,900 from the Arkansas Bank & Trust Company joint savings account and $2,100 from Nora Mayberry’s individual funds. As of March 25, 1992, a new C.D. No. 50371 had been purchased in the amount of $7,587.60, using the face amount of C.D. No. 19587 and its accrued interest.

Certificate of Deposit No. 19605

This C.D. was purchased on February 28, 1985, for $10,000. The entire purchase price came from Nora Mayberry’s individual funds. As of March 25, 1992, a new C.D. No. 50372 had been purchased in an amount of $15,209.77, using the face value of the prior C.D. and accrued interest.

Following the death of Nora Mayberry, Helen Mayberry moved for possession of the three C.D.’s. After a hearing before the probate court, the court found that an ademption of the specific bequest of the Arkansas Bank & Trust Company savings account had not occurred. The court further found:

It was the intent of the Decedent to leave these funds to the Petitioner [appellee Helen Mayberry] and the purchase of the Certificates of Deposit constituted only a change in form and not substance.

The court then ordered delivery of the C.D.’s to Helen Mayberry plus accrued interest for her use and enjoyment for life.

The issue that lies at the heart of this appeal is whether an ademption of the specific bequest to Helen Mayberry of the Arkansas Bank & Trust Company savings account occurred, or whether the three C.D.’s which existed at Nora Mayberry’s death constituted a mere change in form, as the probate court found. We stated the general law of ademption in the case of Mee v. Cusineau, 213 Ark. 61, 64, 209 S.W.2d 445, 447 (1948):

The distinctive characteristic of a specific legacy is its liability to ademption. If the identical thing bequeathed is not in existence, or has been disposed of so that it does not form a part of the testator’s estate, at the time of his death, the legacy is extinguished or adeemed, and the legatee’s rights are gone. The rule is universal that in order to make a specific legacy effective the property bequeathed must be in existence and owned by the testator at the time of his death, and the nonexistence of property at the time of the death of a testator which has been specifically bequeathed by will is the familiar and almost typical form of ademption.

We further said in that case:

Generally speaking, a change in the form of a security bequeathed does not of itself work an ademption. It must be shown that the testator intended to give specific securities of the form or nature mentioned in the will.

Mee, 213 Ark. at 67, 209 S.W.2d at 448; quoting from Mitchell v. Mitchell, 208 Ark. 478, 187 S.W.2d 163 (1945). In both the Mee case and the Mitchell case we looked not to a mere change in form to decide the issue but rather to the intent of the testator.

In 1964, we reiterated that in considering ademption we should not defeat the “evident intent” of the testatrix. Worthen Bank & Trust Co. v. Green, 237 Ark. 785, 376 S.W.2d 275 (1964). In Green, the testatrix devised her “home place” at 1311 Izard Street, Little Rock, to a bank, as trustee, for the benefit of two nephews. Following execution of the will, she sold the Izard Street property, bought a house at 2200 Rice Street, and moved into it. We affirmed the probate court and held that an ademption of the specific devise had occurred. The Rice Street property passed under the residuary clause.

The next case of significance which discusses ademption is Williamson v. Merritt, 257 Ark. 489, 519 S.W.2d 767 (1975). In Merritt, we said again that we look to the intent of the testator in ademption matters. We also stated that generally courts look with disfavor on the ademption of a specific legacy. In this case the testatrix had bequeathed her savings and loan account to two grandnephews. She then withdrew $3,000 from that account. In a letter to her savings and loan for the purpose of withdrawing the money, the testatrix stated that the money would be used for her medical expenses. The $3,000 was commingled in a checking account with the testatrix’s other funds, a fact this court noted in particular. At the time of the death of the testatrix, more than $3,000 remained in the checking account. We held that the $3,000 withdrawn from the savings account and deposited in her checking account was adeemed and that the checking account passed through the residuary clause.

The Court of Appeals next discussed the ademption question in Jennings v. National Bank of Commerce, 270 Ark. 735, 606 S.W.2d 130 (1980). There, the testatrix made a specific bequest of her interest in Lester Land Company, Inc. to Medora Jennings. This interest was sold during the testatrix’s lifetime for cash. The cash proceeds were then commingled with the testatrix’s other funds for the purchase of a certificate of deposit. The Court of Appeals endorsed what it termed the “Modem Rule” for considering ademptions which is to look at whether a mere change in form regarding the specific devise or bequest has occurred or a change in substance, which would constitute an ademption. The suggestion is made in Jennings that focusing on the intent of the testatrix is the more traditional view, and the Court of Appeals cites Williamson v. Merritt, supra, for that view. Though the Court of Appeals admitted that the sale proceeds from the Lester Land Company interest could be traced to the C.D., it concluded that the testatrix had done nothing subsequently to show that she wanted to pass the cash proceeds of the Lester Land Company interest or the C.D. to Jennings. The Court of Appeals held that the change from land to money worked an ademption.

Finally, in Kidd v. Sparks, 276 Ark. 85, 633 S.W.2d 13 (1982), this court held that an ademption occurred under facts similar to the case at bar. In Kidd, the testator willed to his son and daughter the proceeds from two real estate escrow accounts funded by periodic mortgage payments by third parties. Nine months before the testator’s death, the note secured by one mortgage (the Gardner note) was paid off in the amount of $12,405.65. The testator took that amount and supplemented it with his own personal funds to buy a certificate of deposit in the amount of $15,000. In holding that an ademption had occurred, we made the following comment:

Common logic says that the Gardner note had been adeemed prior to the testator’s death. Obviously, the testator could have placed his childrens’ (sic) names on the CD if he had wanted them to receive it. The trial court seems to have looked to the intent of the testator in making its ruling. Absent obvious error we will not reverse the trial court in its holding. The paramount aim in the construction of a will is to determine and give effect to the testator’s intention. We hold the Gardner property was adeemed in accordance with the reasoning and holding in Mee v. Cusineau, supra.

276 Ark. at 89, 633 S.W.2d at 15-16.

The Kidd case, which is our most recent pronouncement on the ademption issue, differs from the case before us in that the probate court here did not find that an ademption had occurred. We disagree with the probate court, however, and hold to the contrary. The probate court in this case used the form/substance test referred to in Jennings v. National Bank of Commerce, supra, in concluding that no ademption occurred. The court said: “It was the intent of the decedent to leave these funds to [Helen Mayberry] and the purchase of the Certificates of Deposit constituted only a change in form and not substance.” Surely the original intent was to leave the bank savings account at Arkansas Bank & Trust Company to Helen Mayberry, but we cannot agree that what occurred afterwards amounted only to a change in form. The savings account bequeathed was terminated and certificates of deposit were purchased using several sources of funds, including the savings account in issue. In addition, the value of the purchased C.D.’s is appreciably more than the value of the original savings account — more than $44,000 — because considerable personal funds of Nora Mayberry were used to purchase the C.D.’s and considerable interest has accrued. Commingling of funds was a factor we considered to be important in Kidd v. Sparks, supra, in deciding that ademption had occurred, and it is equally important here. Finally, Helen Mayberry’s name was not included on the C.D.’s, which Nora Mayberry easily could have done. Under these circumstances, we conclude that what transpired was a substantive change in what had been bequeathed to Helen Mayberry and not merely a change in form.

To eliminate any confusion between our caselaw and that of the Court of Appeals, we reiterate what we stated in Kidd v. Sparks, supra, that in ademption cases our primary aim is to determine and give effect to the testator’s intention. However, in most instances a determination of whether a change in the gift’s form or substance occurred will decide the issue of what the testator intended. Here, there was a change in substance. Also, there is the fact that Nora Mayberry’s will specifically excluded gifts of C.D.’s to Helen Mayberry except as specifically devised and bequeathed, which is further evidence of her intent not to have the C.D.’s go to her daughter.

We hold that an ademption of the gift of the savings account at Arkansas Bank & Trust Company occurred, and that the probate court clearly erred in finding that only a change in form took place so as not to work an ademption. We reverse the probate court’s order and remand the matter for entry of an order in accordance with this opinion.

Reversed and remanded.

Hays, J., dissents.

       Both parties concede that this is the bank known as Arkansas Bank and Trust Company in Hot Springs.


author: Don R. Elliott, Jr., Special Justice.

text:
    Scott A. SCHERZ and Connie A. Scherz, His Wife v. MUNDACA INVESTMENT CORPORATION; J. Phillip Pounders and Jane E. Pounders, His Wife; Dale Davis and Vicki Davis, His Wife; and Estate of Don Baker a/k/a Dan Baker, Deceased
    93-1217
    886 S.W.2d 631
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994
    [Rehearing denied December 12, 1994.]

      Homer Tanner, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoon, Ltd., by: Dorcy Kyle Corbin and John E. Pruniski II, for appellees.

      Special Justices Don R. Elliott, Jr., and Robert L. Depper, Jr., join. Corbin and Brown, JJ., not participating.

   Don R. Elliott, Jr., Special Justice.

This action involves the foreclosure of a four-plex located in Little Rock, Arkansas. The case was tried on its merits on October 9, 1991. At the conclusion of the trial, the Court instructed the appellee’s counsel to prepare a foreclosure decree, and advised that the Court would sort out the various interests. On February 19, 1992, a decree was signed and entered of record by the trial judge as a final judgment. Subsequently, appellant’s counsel wrote a letter to the trial judge objecting to the provisions of the decree, requested a hearing, and asked that the decree be set aside. No action was taken by the trial court. The Commissioner then sold the property pursuant to the decree, and the first sale was set aside. On February 11, 1993, a second Commissioner’s sale was held. After the appellant filed a motion to vacate, a hearing was held on May 12, 1993, denying the appellant’s motion to vacate, and as a result, an order of confirmation was filed on July 27, 1993. On August 6, 1993, the separate party, Allison, filed a motion for reconsideration, and on August 17, 1993, appellants filed their notice of appeal. This Court lacks jurisdiction, and the appeal is dismissed.

The first issue is whether the original decree of February 19, 1992, is a final judgment, and therefore, appealable. The chancellor declared that the decree was a final judgment and there was no just reason for delay. The decree set an attorney’s fee and appointed a commissioner to sell the property if judgment was not paid within ten (10) days. Alberty v. Wideman, 312 Ark. 434, 850 S.W.2d 314 (1993) reaffirms this court’s long standing principle that a decree foreclosing a mortgage and a later decree confirming the foreclosure sale were both final and appealable orders.

Thus, a decree that orders a judicial sale of property and places the court’s directive into execution is a final order and appealable under Ark. R. App. P. 2(a)(1). When there is such an order, a certification under Rule 54(b), is not necessary. . . If it were otherwise, and there were questions about the validity of sale, prospective bidders might not bid a reasonable amount because there would be a cloud over the matter, and no one wants to buy a lawsuit. Those issues can be finally determined under our procedure. As a separate matter, any questions concerning the validity and adequacy of the bids might be heard on a later appeal from the order confirming title.

Id. at 437, 850 S.W.2d at 316.

In Alberty, the chancellor only determined that the property shall be sold by a commissioner appointed by the Court within sixty days from the date of the order. This court held that such an order did not place the court’s directive into execution. Here, however, the court appointed a commissioner, established that if the judgment was not paid within ten days the commissioner should sell the property by auction, and set attorneys fees.

Therefore, this court finds that the February 19, 1992, decree was final since it placed the court’s directive into execution and no additional orders were required prior to the sale. Therefore, we hold that the notice of appeal, which was filed on August 17, 1993, is untimely for the purposes of reviewing the foreclosure decree of February 19, 1992.

The second issue in this case is whether the notice of appeal which was filed on August 17, 1993, allows this court to review the order which was entered on July 27, 1993. Obviously, the notice of appeal was filed within thirty days of the July 27, 1993, decree. However, on August 6, 1993, a motion to vacate judgment was filed by the separate party, Allison, who is not a party to this appeal. Pursuant to Ark. R. App. P. 4(c), if a timely motion listed in Section (b) of this rule is filed by any party, the time for appeal for all parties shall run from the entry of the order granting or denying the new trial.

In the motion to vacate, it is alleged that the decree is contrary to the proof offered at trial. This court has previously held in Jackson v. Arkansas Power and Light Co., 309 Ark. 572, 832 S.W.2d 224 (1992), that when a motion to vacate is couched in terms of a motion for new trial, it will be treated as such. Ark. R. App. P. 4(b) states that upon the timely filing of a motion for new trial, the time for filing of a notice of appeal shall be extended. The trial court in this case neither granted nor denied the motion to vacate, and therefore, Ark. R. App. P. 4(c) controls as follows:

Provided, that if the trial court neither grants nor denies the motion within thirty days of its filing, the motion will be deemed denied as of the thirtieth day. A notice of appeal filed before the disposition of any such motion, or if no order is entered, prior to the expiration of the thirty day period, shall have no effect.

(Emphasis added).

Therefore, the motion was deemed denied on September 5, 1993. To effectively appeal the July 27, 1993, order, a new notice of appeal should have been filed during the time period of September 5, 1993, through October 5, 1993. Since this was not done, the appeal is hereby dismissed.

Special Justice Robert L. Depper, Jr. joins in this opinion.

Corbin and Brown, JJ., not participating.


author: Per Curiam.

text:
    Harvey HARRIS v. STATE of Arkansas
    CR 94-634
    887 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered November 7, 1994
    Pro se.
    No response.
   Per Curiam.

In 1993 Harvey Harris was found guilty by a jury of two counts of delivery of a controlled substance. He was sentenced to two terms of twenty years imprisonment to be served consecutively. We affirmed. Harris v. State, 315 Ark. 398, 868 S.W.2d 58 (1993). On April 13, 1994, Harris filed in the trial court a pro se petition pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1991) claiming the sentences were illegal in that the trial court should not have ordered them served consecutively. The trial court denied the petition, and Harris has filed the record in this court on appeal. He now seeks appointment of counsel. The motion is denied as it is clear that appellant Harris could not prevail in the appeal because the petition to correct sentence was untimely. See Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Criminal Procedure Rule 37.2 (b) provides in pertinent part that all grounds for post-conviction relief, including claims that a sentence is illegal or illegally imposed, must be raised in a petition under Rule 37. Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994); Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994).

Arkansas Code Annotated § 16-90-111 (Supp. 1991) which permits the trial court to correct a sentence imposed in an illegal manner within 120 days after receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time is in conflict with Criminal Procedure Rule 37. Criminal Procedure Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within sixty days of issuance of the appellate court’s mandate affirming the judgment of conviction. The mandate in the instant case was issued on January 7, 1994, but the petition to correct the sentences imposed was not filed until April 13, 1994, which was more than sixty days from the date of the mandate. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on an untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As Rule 37 controls and appellant did not file his petition to correct the sentences imposed on him within the time limit set by Rule 37, the petition was untimely and he was not entitled to relief in circuit court.

Motion denied.


author: Robert H. Dudley, Justice.

text:
    Betty Sue GRAY v. STATE of Arkansas
    CR 94-803
    888 S.W.2d 302
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Robert N. Jeffrey, for appellant.

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

Betty Sue Gray appeals her conviction for delivery of a controlled substance and contends that it was not supported by substantial evidence. There was substantial evidence of her guilt, and we affirm the judgment of conviction.

At the trial in April of 1994, an undercover agent and a confidential informant both testified that appellant sold crack cocaine to the agent in January of 1993. The agent and the informant, in describing the details of their meeting with appellant and purchasing the cocaine, differed in one detail. The confidential informant testified that he was in the agent’s car when appellant sold the cocaine to the agent. The agent testified that this case was one of ten drug cases he was working in January 1993, but, according to his notes, the informant was not in the car at the time of the purchase. Appellant argues that the inconsistency in the testimony caused the evidence to be insufficient. She additionally argues that her identification was not sufficient because the police did not make a tape recording, photograph, or videotape of her selling the cocaine. Further, she contends the evidence is insufficient because the agent testified that he purchased the cocaine from someone named Sue Smith, not from appellant, Betty Sue Gray.

The trier of fact alone determines the weight to be given the evidence, and it may reject or accept any part of that evidence. Smith v. State, 308 Ark. 390, 824 S.W.2d 838 (1992). In determining the weight to be given the evidence, the trier of fact must resolve any inconsistencies in the testimony. McClure v. State, 314 Ark. 35, 868 S.W.2d 103 (1993). Even if the jury chose not to believe any of the informant’s testimony, the proof could have been sufficient because the uncorroborated testimony of one state’s witness is sufficient to sustain a conviction. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). The inconsistency in the testimony does not cause the proof to be insufficient as a matter of law.

The undercover agent testified unequivocally that appellant was the person who sold him-the cocaine and that he knew her as Sue Smith. We have held that unequivocal testimony identifying an accused as the offender is sufficient to sustain the jury’s conclusion that the person convicted was in fact the offender. Luckey v. State, 302 Ark. 116, 787 S.W.2d 244 (1990). Further, appellant admitted that her maiden name was Smith and that she uses Sue as her first name. From this the jury could have concluded that appellant used the name of Sue Smith in the drug transaction.

The direct evidence, and its reasonable inferences, were sufficient to sustain the judgment of conviction.

Affirmed.


author: Steele Hays, Justice.

text:
    Nelson WATSON, Jr. v. STATE of Arkansas
    CR 94-267
    887 S.W.2d 518
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Keil & Goodson, by: John C. Goodson, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Nelson Watson Jr. was charged with five counts of delivery of crack cocaine to an undercover agent during March and April, 1993, one count of maintaining a residence where controlled substances were stored and distributed, and one count of possession of a controlled substance. Watson was tried and convicted on all counts and, as an habitual offender, sentenced to life sentences on the six counts of possession and twelve years for maintaining a residence for purposes of distribution. Four of the life sentences were imposed to run concurrently.

On appeal Watson assigns three errors to the trial court: limiting his right to cross-examine a witness for the state; dismissing his Batson challenge to the state’s use of peremptory strikes; and admitting evidence of prior bad acts in violation of A.R.E. Rule 404(b). We find no reversible error in the rulings of the trial court.

Vicki Hendricks testified that she and her sister owned a house in Magnolia; that Nelson Watson began coming there in March, 1993, when they began a relationship. Watson would provide her with crack cocaine to which she was addicted. Watson also supplied cocaine which she sold to others, including an undercover police officer. Ordinarily she would act as go-between but sometimes Watson would sell directly. Sometimes the purchase would be in money, at other times in articles, including stolen goods. She estimated that during March and April Watson came to her house around fifty times. On April 30 Ms. Hendricks was arrested and charged with five counts of possession with intent to deliver and with maintaining a residence for the distribution of drugs. She testified that she entered into a negotiated plea, the terms of which included her agreement to testify truthfully at Watson’s trial. The length of the sentence imposed under her plea agreement was not disclosed to the jury but appellant’s brief asserts that it was ten years.

I

Cross Examination of Vicki Hendricks

During voir dire, counsel for appellant asked the panel if they thought Watson and Vicki Hendricks should be treated equally. The state argued her sentence was irrelevant and the trial court agreed. In chambers counsel advised the trial court that he intended in opening statement to tell the jury Ms. Hendricks had received only ten years imprisonment for her part in this enterprise, yet the state proposed to punish Nelson Watson much more severely. The trial court directed counsel to refrain from stating what sentence she had received. At that point, counsel argued that he should be permitted to cross-examine Hendricks about her sentence in order to show bias, but again the purpose was to convince the jury that Watson’s sentence should not be greater than Vicki Hendricks’s. After some discussion the trial court ruled that there would be no restrictions on cross-examination except for the length of the sentence imposed on Ms. Hendricks.

On appeal, Watson cites a medley of cases attesting to the right of a defendant to show by cross-examination anything bearing on the possible bias of a material witness. Billett v. State, 317 Ark. 346, 877 S.W.2d 913 (1994); Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Davis v. Alaska, 415 U.S. 308 (1974). In the latter case the importance of cross-examination was succinctly highlighted by the Supreme Court:

Denial of cross-examination to show the possible bias or prejudice of a witness may constitute constitutional error of the first magnitude as violating the Sixth Amendment right of confrontation.

We have also held that the punishment of one accused is not admissible to prove what the punishment of another should be. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983). However, we need not decide whether the sentence of Ms. Hendricks was admissible to show bias because trial error, even involving the confrontation clause, is subject to a harmless error analysis, and we are persuaded that if error occurred, it was harmless beyond a reasonable doubt. Delaware v. Van Ausdall, 475 U.S. 67 (1986). Factors to be weighed in that determination are the importance of the witness’s testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the state’s case. Those factors have been held applicable to confrontation clause issues. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987); Delaware v. Van Ausdall, supra.

Applying those criteria to this case permits but one conclusion. Seven witnesses testified without serious challenge to numerous drug transactions by the appellant. Contradictions were virtually nonexistent. The defense introduced no testimony or proof except a letter from defense counsel to Watson advising him that in counsel’s opinion Watson was facing multiple life sentences and strongly recommending his acceptance of a plea bargain of ten years and a fine proposed by the state, which Watson had rejected. The state then offered a single life sentence and no fine and that, too, was rejected. In open court Watson acknowledged receipt of the letter and rejection of either proposal. Certainly Vicki Hendricks was a material witness for the state, but her testimony was not undermined in any fashion and the strength of the state’s case overall was irrefutable. We can say without hesitancy that if error occurred in this regard it was harmless beyond a reasonable doubt.

II

Batson Challenge

After the jury was seated and sworn in, appellant raised an objection under Batson v. Kentucky, 476 U.S. 79 (1986), to the state’s use of peremptory challenges against three prospective jurors: Melinda Colvin, Robert Henderson and Willie Jones. Before the trial court could rule on the objection, the state offered explanations which the trial court found to be racially neutral. On appeal, appellant withdraws any objection to the removal of Colvin and Henderson, but questions the explanation for the removal of Jones.

We note that three African-American jurors were seated and that the state still had unused peremptory challenges. As to venireman Jones, he admitted he knew Nelson Watson, that they had worked together at Can-Tex, and that he considered him a friend. Asked if Watson was still a friend, he answered, “Right.” The trial court accepted that as a racially neutral explanation for the state’s election to excuse Mr. Jones and we fully concur. See Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991).

III

A.R.E. Rule 404(h)

During the testimony of a witness for the state, Ms. Jeanette Standoak, the state offered as an exhibit a payroll check payable to Ms. Standoak which the appellant was believed to have cashed in exchange for cocaine. Appellant objected on the ground that the cocaine itself was not also offered in evidence. On appeal, appellant argues that the check was endorsed between February 18 and 23, 1993, whereas the five drug transactions of the information allegedly occurred in March and April. On that basis appellant argues the transaction involving the payroll check, if it occurred, would be inadmissible under A.R.E. rule 404(b), as proof of other crimes or bad acts. Appellant did not make that objection below and may not change on appeal the basis for an objection advanced in the trial court. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).

Affirmed.

       As to the timeliness of the challenge see Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991); Stanley v. State. 313 MD. 50, 542 A.2d 1267 (1988).


author: David Newbern, Justice.

text:
    Patricia DOUGHERTY v. Scott SULLIVAN
    94-360
    887 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994

      Brenda Horn Austin, for appellant.

      Roy & Lambert, by: James H. Bingaman, for appellee.
   David Newbern, Justice.

Patricia Dougherty and Scott Sullivan were involved in an automobile accident. Ms. Dougherty attempted to sue Mr. Sullivan for negligence. The Trial Court dismissed Ms. Dougherty’s claim due to the untimeliness of service of process. As it was the second dismissal, it was with prejudice. Ms. Dougherty argues the Trial Court erred because she served Mr. Sullivan once in accordance with Ark. Code Ann. § 16-58-120 (1987) and again in accordance with Ark. R. Civ. P. 4(i), both in a timely manner. We hold that neither attempt was proper, thus we affirm the dismissal with prejudice. Ms. Dougherty also cites Ark. Code Ann. §§ 16-56-120 and 16-56-126 (1987) in her argument that the complaint was timely served. Those statutes do not deal with the timing of service. They deal with extension of the statute of limitations. No issue is presented in this case with respect to that matter, so we do not discuss those statutes.

The accident occurred on April 12, 1986. On March 23, 1989, Ms. Dougherty filed a complaint. In March of 1991, Ms. Dougherty took a voluntary nonsuit. The complaint was refiled on March 25, 1992. On July 14, 1992, Ms. Dougherty requested an extension of time to obtain service. The time for service was extended to October 21, 1992.

On April 9, 1993, almost six months after the extended period for service had expired, Ms. Dougherty sought and received from the Trial Court another extension of time for service. Mr. Sullivan was personally served in April of 1993, which was within the time permitted in the second extension.

Mr. Sullivan moved to vacate the second order extending time for service and to dismiss the complaint with prejudice. The Trial Court granted the motion. In a very thorough and helpful letter opinion the Trial Court explained that the attempted service pursuant to § 16-58-120 was invalid because the service provisions in that statute were superseded by the Arkansas Rules of Civil Procedure. The Court also concluded that, whether or not the statutory service provisions were superseded, service was inadequate under the statute because there was no allegation in the original complaint that the defendant had left the State and was outside Arkansas. The Trial Court interpreted Rule 4(i) as precluding any extension of time for service unless sought by motion within the period of the previous extension. It was thus held that the second extension of time for service was invalid as was the service which ultimately occurred during that second extension.

1. The rule

Ms. Dougherty first argues that the plain language of Rule 4(i) requires only that “a motion to extend is made within 120 days of the filing of the suit.” (Emphasis supplied.) She contends the rule does not limit the number of extensions one may receive, nor does it require that a subsequent motion be made within any particular time so long as the initial motion was made within 120 days of the filing of the complaint.

Mr. Sullivan contends that, as Ms. Dougherty failed to obtain service of process prior to October 21, 1992, the date the original extension expired, the Trial Court had no choice but to dismiss the complaint.

Service of process must be accomplished within 120 days after the filing of the complaint absent a motion to extend. Rule 4(i). See Lawson v. Edmondson, 302 Ark. 46, 786 S.W.2d 823 (1990). If service is not obtained within 120 days of filing the complaint and no motion to extend is made, dismissal is required upon motion or upon the court’s own initiative. See Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990).

It would make no sense whatever to hold that, as long as one extension is obtained within the time set for service, subsequent ones need not be. If that were the case, a plaintiff could be granted extensions even years after the time for service set by the rule or by the court had expired, and that would be contrary to the spirit of the rule as we have interpreted it. We agree with the Trial Court’s conclusion that the second extension was invalid and thus service was not accomplished in accordance with Rule 4(i) because it was untimely.

2. The statute

We need not decide whether the service of process provisions of § 16-58-120 have been superseded by Rule 4 because we agree with the Trial Court’s conclusion that the attempt to serve Mr. Sullivan in accordance with the statutory provisions was ineffective in any event. The statute was obviously intended to establish personal jurisdiction of one who leaves Arkansas after having committed an act in this State giving rise to liability. Pertinent parts of the statute are as follows:

(a) Any cause of action arising out of acts done in this state by an individual in this state . . . may be sued upon in this state, although the defendant has left this state, by process served upon or mailed to the individual or corporation outside the state.
(b) (1) Any resident or nonresident person who commits acts in this state sufficient to give an individual in this state a cause of action against the person committing the acts, shall be deemed to have appointed the Secretary of State as his agent for service of process on him in any suit arising out of the acts committed by said resident or nonresident.
(2) Service of the process shall be made by serving a copy of the process on the Secretary of State. Such service shall be sufficient service upon the nonresident person or any resident person, who has subsequently absented himself physically from the state ....
(4) The Secretary of State, upon receiving a copy of the service of summons shall also forthwith mail a copy of the summons together with a copy of the complaint to the last and best known address of the named defendant in the suit, notifying him of the filing of the suit.
***

Nothing stated in the complaint of March 25, 1992, indicated that Mr. Sullivan had left the State. It stated simply that Mr. Sullivan resided in Springdale. In an affidavit of service filed September 25, 1992, Ms. Dougherty’s counsel stated she had attempted service by mail which had been returned unclaimed. She also stated she had mailed the summons and complaint to the Secretary of State. In an amended affidavit of service filed October 8, 1992, counsel alluded to an unsuccessful attempt at personal service by a private investigation firm, and stated further that the Secretary of State’s attempted service by mail was returned unclaimed. In neither affidavit was there any statement that Mr. Sullivan had absented himself from the State.

Statutes providing a method of service in derogation of common law must be strictly construed, and compliance with such statutes must be exact. Wilburn v. Keenen Cos., Inc., 298 Ark. 461, 768 S.W.2d 531 (1989). The plain language of the statute requires that the person upon whom service is sought must be one “who has subsequently absented himself physically from this state.”

In Howard v. Craighead County Court, 278 Ark. 117, 644 S.W.2d 256 (1983), the plaintiff brought a paternity suit under § 16-58-120, then codified as Ark. Stat. Ann. § 27-339.1, against a person residing in Florida. She alleged that at the time of the child’s birth the defendant was a resident of Jonesboro. We held the complaint was fatally deficient because it failed to allege that the act of coition occurred in Arkansas, “such an allegation being essential to bring the proceeding within” the statute. As in the Howard case, there was nothing in the complaint which would bring this action within the terms of § 16-58-120 at the time service was attempted. In the complaint which was ultimately served upon Mr. Sullivan, Ms. Dougherty alleged that Mr. Sullivan had been in Kansas earlier. The allegation was irrelevant to the service of that complaint, and Ms. Dougherty does not suggest, nor could we agree, that it had any revival effect upon the complaint she attempted to serve through the Secretary of State.

Affirmed.


text:
    SCOTT-HUFF INSURANCE AGENCY v. Timothy SANDUSKY d/b/a Sandusky Company
    93-1219
    887 S.W.2d 516
    Supreme Court of Arkansas
    Opinion delivered November 14, 1994
    reversed and dismissed.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: David M. Donovan and Dement, Vandivort & Dement, by: Kenneth L. Dement and Reid, Burge, Prevallet & Coleman, by; Donald E. Prevallet, for appellant.

      Penix, Penix & Lusby, by; J. Robin Nix, III, for appellee.
   David Newbern, Justice.

Timothy Sandusky, the appellee, sued Scott-Huff Insurance Agency (the Agency), the appellant, for negligence alleged to have resulted in Mr. Sandusky not having insurance to cover injury to a crane Mr. Sandusky owned and operated. A judgment, based on a jury verdict, was entered in favor of Mr. Sandusky. We reverse and dismiss the case because Mr. Sandusky was charged with the duty to know the coverage of the insurance policy. The Trial Court should have granted the Agency’s motion for a directed verdict. .

The bank financing the purchase of the crane for Mr. San-dusky required that it be insured. Mr. Sandusky called Charles Scott of the Agency. Mr. Scott had done insurance business with Mr. Sandusky’s parents for seven or eight years but not with Mr. Sandusky. The testimony of Mr. Scott and that of Mr. Sandusky varied only a little as to what was said in their conversations, but the nub of their disagreement has more to do with what was understood by each of them.

Mr. Sandusky says he made it clear he wanted coverage for the operation of the crane. Mr. Scott says they discussed both an “all risks” policy which would cover operation of the crane and a more limited “named perils” policy. He said Mr. Sandusky’s main concern was satisfying the bank’s insurance requirement and paying a low premium which was to be financed by the Agency. Mr. Sandusky contends he did not vary from his desire to purchase insurance to cover his operation of the crane and he understood the difference between the two kinds of policies to be that the all risks version covered liability to third parties, which he did not want, and the named perils policy did not.

A named perils policy was issued and sent to Mr. Sandusky who acknowledges he received it and looked it over. Mr. Scott later called and gave an overview of the provisions of the policy.

Several months after the policy was issued, the crane was involved in an accident with overhead electrical wires. Although he did not submit a claim, Mr. Sandusky again discussed the policy coverage with Mr. Scott, and Mr. Scott mailed Mr. Sandusky a copy of the coverage portion of the policy with the coverage provisions highlighted.

The crane was then heavily damaged in an accident which occurred while it was being operated. Mr. Sandusky reported the loss to Mr. Scott who said to get an estimate of the damage and he would check the policy. The named perils policy did not cover the loss. Mr. Sandusky had an appraisal of the crane performed which cost $2,200.

There was some doubt evidenced in the record of trial, and there is some doubt in the briefs before us, whether we are dealing with an allegation of negligence in failure to advise or inform Mr. Sandusky of the terms of the policy or negligence in failure to supply the policy requested. The distinction is not important, however, as in either event, the duty on the part of the policy holder to know its contents prevails in the circumstances of this case.

In Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986), the dispute was over whether insurance should have covered cash value as opposed to replacement cost of items lost. The insured alleged the insurance agent had a duty, which she failed to perform, to inform them of the difference between the two coverages, and their acceptance of a policy providing for the lesser cash value coverage was the result. A directed verdict was entered in favor of the insurance agent.

We affirmed and held there was no merit to the claim that the agent had a duty to advise with respect to the different coverages. We adopted the rule announced in Nowell v. Dawn-Leavitt Agency, Inc., 127 Ariz. 48, 617 P.2d 1164 (1980), to the effect that an insurance agent has no duty to advise the prospective insured, and we subscribed to the tendency of courts generally to “adhere to the long established rule placing a responsibility on the insured to ‘educate himself concerning matters of insurance coverage.’ ” See also Bruner v. League General Ins. Co., 416 N.W.2d 318 (Mich. App. 1987).

In Howell v. Bullock, 297 Ark. 552, 764 S.W.2d 422 (1989), the claim of the insured was for negligence on the part of the insurance agent in failing to obtain the coverage for the insured which had been requested. The insured, Mr. and Mrs. Bullock, purchased a policy covering their operation of a motorcycle, and they insisted they had ordered coverage for any injury to a passenger. The policy covered only injury to a passenger when the driver of the motorcycle was at fault. The ensuing accident injured Mrs. Bullock while Mr. Bullock was driving and she was a passenger. The insurance company denied coverage. No evidence of fault was produced by the insured. A judgment was awarded, based on a jury verdict, in favor of the insured. We reversed and dismissed the case.

After stating there was insufficient evidence on the issue of fault, we noted that the insured had received precisely the type policy for which they had applied in writing and they had not read the policy. Although we did not say it directly, the clear implication of the opinion is a rejection of the possibility that the verdict could be upheld on the basis of the duty to procure a policy which would cover injury to a passenger regardless of fault. Citing Stokes v. Harrell, supra, we said, “It is the duty of a policy holder to educate himself concerning matters of insurance.”

The Agency has also raised an issue with respect to instructions given to the jury. The judgment must be reversed and dismissed regardless of the instructions, so we do not address the point.

Reversed and dismissed.

Glaze, J., not participating.