author: Lavenski R. Smith, Justice. W. H.“Dub” Arnold, Chief Justice,

text:
    Bill J. FORD, Bank Commissioner of Arkansas v. A.M. KEITH
    99-136
    996 S.W.2d 20
    Supreme Court of Arkansas
    Opinion delivered July 22, 1999

      Mark Pryor, Att’y Gen., by: Annamary Dougherty, Ass’t Att’y Gen., for appellant.

      Williams & Anderson LLP, by: James E. Hathaway III, Timothy W. Grooms, and Patrick Burrow, for amicus curiae Arkansas Bankers Association and Arkansas Community Bankers Association, in support of appellant.

      Eichenbaum, Liles & Heister, P.A., by: James H. Penick III and Christopher O. Parker, for appellee.
   Lavenski R. Smith, Justice.

Appellant Bill J. Ford (“Ford”), Bank Commissioner of Arkansas, appeals an adverse decision from the Pulaski County Circuit Court in which the court determined that the Bank Commissioner’s decision to uphold a bank reorganization was ultra vires of the governing statute, Ark. Code Ann. §23-48-601 et seq. (Supp. 1997), entitled “Reorganization Through Plan of Exchange.” The trial court reversed and remanded the matter to the Commissioner for further consideration. On appeal, Ford argues that the Commissioner’s decision was not ultra vires of the statute and that the banks should have been made parties to this action. In response, Appellee A.M. Keith (“Keith”) argues that the circuit court did not err in finding that the plan of exchange was ultra vires of the statute, that the banks were not required to be made parties to the action pursuant to Ark. R. Civ. P. 81(a) and the Administrative Procedure Act, and that Ford’s failure to rebut the circuit court’s order for remand now renders that decision res judicata and this court cannot change that decision. We reverse the Commissioner.

Facts

This case arises out of the conversion and merger of a state savings and loan into a state bank, and the ultimate freeze-out of the minority stockholders in the bank. For many years, the Benton Savings and Loan Association operated out of Benton, Arkansas, as a state savings and loan association operating under authority of the Arkansas Savings and Loan Board. Keith, a minority shareholder, maintained 66,001 shares out of 658,912 shares issued by the savings and loan, or approximately 10.02% of the shares. Union Bancshares of Benton, Inc. (“Bancshares”), an Arkansas holding company, owned 567,575 of the shares, or approximately 87% of the shares. The other shares were owned by various minority stockholders.

In April, 1997, Benton Savings and Loan filed an application with the Savings and Loan Board to move the home office of the Savings and Loan from Benton to Bryant, Arkansas. Mac Dodson, Arkansas Savings and Loan Supervisor, approved this move on May 13, 1997. Shortly thereafter, on July 15, 1997, Benton Savings and Loan’s board of directors passed a resolution to convert the Savings and Loan from a state-chartered savings and loan to a state-chartered bank. On July 28, 1997, a majority of the shareholders voted to pass this resolution for conversion, and the Arkansas Bank Commission and State Banking Board approved it on October 16, 1997. The new name of the bank was The Union Bank of Bryant (“Union Bank”).

Approximately one month later, Union Bank’s board of directors notified all of the shareholders that the directors had adopted an Agreement and Plan of Exchange proposing a cash payment of $18.50 per share by Bancshares for all of the minority stock in the bank, with the goal being that the bank would be wholly owned by Bancshares. Notice of the adopted Agreement also included notice that a special meeting of the shareholders would be held on December 16, 1997. The purpose of the special meeting would be to vote on the Agreement and, if approved by a majority of the shareholders, a hearing would be held the same day with the Arkansas Bank Commissioner to approve the plan.

The bank’s directors held the meeting on December 16, 1997. At the meeting, Bancshares, holding the vast majority of the shares in the bank, voted to approve the Agreement. Keith voted against the agreement. In addition, prior to the meeting, Keith gave notice to the bank that he would dissent from the vote in accordance with Ark. Code Ann. § 23-48-603. After the shareholder vote approving the Agreement, Arkansas Bank Commissioner Ford held a hearing that afternoon for the approval of the plan. At the hearing, Keith announced his dissent against the Agreement, specifically arguing that the Agreement was invalid and should not be enforced. Bancshares did not produce any supporting documentation at the hearing in support of approval of the Agreement. Keith, however, produced pleadings and a brief in support of his dissent. At the conclusion of the hearing, Commissioner Ford approved the shareholder vote and the ratification of the Agreement. Ford read his decision into the record from a pre-prepared order. In his decision, Ford determined that the Agreement was not contrary to law, was not inequitable to the stockholders of the bank, provided satisfactory means of disposing of shares of the bank resulting from the dissenting shareholders, and that the merger would not substantially reduce the security of or service to be rendered to the depositors or other customers of the bank. Ford filed his formal order with findings of fact and conclusions of law on January 16, 1998. On December 23, 1997, Keith filed an appeal from Ford’s decision in the Pulaski County Circuit Court, arguing, in part, for a stay of the enforcement of Ford’s December 16, 1997, order. The circuit court held a hearing on January 6, 1998, and in an order dated January 8, 1998, stayed the Commissioner’s December 16, 1997, order. The court determined that the order did not comply with Ark. Code Ann. § 23-48-601 (b) because it failed to “provide a concise and explicit statement of the underlying facts supporting his findings of fact, and simply states in conclusary (sic) form the statutory requirements. . . .” The circuit court gave Ford until January 20, 1998, to enter an order in compliance with the statute, and reset a hearing in the circuit court for February 9, 1998, for further adjudication of the matter. As noted above, Ford subsequently filed his formal order on January 16, 1998.

A full hearing was held on February 9, 1998, at which the parties argued their positions on the matter. On July 6, 1998, Pulaski County Circuit Judge Bogard entered judgment against the Commissioner finding that the Plan of Exchange and Agreement approved by Ford was ultra vires of Ark. Code Ann. § 23-48-601 to 605. The court ruled that the Commissioner cannot treat shareholders differently in a Plan of Exchange under the statute. The court found that Ford’s order left Keith with no option but to accept cash for his stock without adequate opportunity to present evidence or testimony on a fair price for his shares. Based upon the court’s construction of the statute, it ruled that Ford’s decision was ultra vires of the statute, and therefore arbitrary, capricious and an abuse of discretion. The court then reversed the decision for further proceedings before the Commission. It is from this order that Ford timely appealed on July 15, 1998. This case was originally filed in the Court of Appeals, but certified to this court under Rule 1-2 of the Rules of the Supreme Court.

Standard of Review

Decisions of the Banking Board and Commissioner are subject to the Arkansas Administrative Procedure Act, Ark. Code Ann. § 25-15-201 et seq., under Ark. Code Ann. § 23-46-207. The Arkansas A.P.A. allows this court to review the decision of the administrative agency notwithstanding the decision rendered by the circuit court. In an appeal from an administrative order, our review is directed to the agency’s decision, not the circuit court’s. Hankins v. Department of Finance and Administration, 330 Ark. 492, 954 S.W.2d 259 (1997). When reviewing administrative decisions, we will review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. Wright v. Arkansas State Plant Board, 311 Ark. 125, 130, 842 S.W.2d 42 (1992). We recognize that

administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting their agencies, and this recognition accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

Wright, 311 Ark. at 130.

Evidence is given its strongest probative force in favor of the agency’s ruling, and we will not reverse an agency decision when there is substantial evidence to support it. Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 885 S.W.2d 863 (1994). To determine whether a decision is supported by substantial evidence, we review the entire record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wright, supra (citing Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361 (1986); Partlow v. Arkansas State Police Comm’n, 271 Ark. 351, 609 S.W.2d 23 (1980)).

Statutory Construction and Interpretation

This case involves a first-impression interpretation of a banking statute. The basic rule of statutory construction is to give effect to the intent of the legislature. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 338-339, 969 S.W.2d 190, 191-192 (1998) (internal citations omitted). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. The first rule in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The statute should be construed so that no word is left void, superfluous, or insignificant; and meaning and effect must be giving to every word in the statute if possible. Id. The construction of a state statute by an administrative agency is not overturned unless it is clearly wrong. Thomas v. Arkansas Department of Human Services, 319 Ark. 782, 894 S.W.2d 584 (1995) (citing Douglass, supra.) Ordinarily, agency interpretations of statutes are afforded great deference, even though they are not binding. Arkansas State Medical Bd. v. Bolding, 324 Ark. 238, 244, 920 S.W.2d 825 (1996). Flowever, although an agency’s interpretation is highly persuasive, where the statute is not ambiguous, we will not interpret it to mean anything other than what it says. Kildow, 333 Ark. at 339. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997).

The first and principal issue Keith argued before the Commissioner was that the proposed Plan of Exchange exceeded the authority and scope of Ark. Code Ann. § 23-48-601 et seq. Before the Commission, in his written motion, brief and oral argument, Keith asserted that the Plan of Exchange constituted a forced sale, or “freeze-out,” of the non-favored minority shareholders’ property to the control group, or the majority shareholder, Bancshares. Keith contended that the statute requires that in such a Plan of Exchange where the majority votes to sell the stock, “all” of the stock must be sold and each shareholder must receive the same compensation for his stock. Keith further argued that the statute contemplates “setting up” a holding company, instead of allowing an already existing, majority shareholder holding company, to buy out the minority shareholders. In essence, Keith argues that this statute is only valid if effectuated with a “straw-man” as the buyer of the stock. A contrary reading of the statute, Keith argues, would mean that the Commissioner can use his authority to force the minority shareholders to sell their shares to the majority shareholders of the same class of stock with a simple majority vote. As such, this would be a “taking” implicating the due process and just compensation clauses of the federal and state constitutions. Representatives from Bancshares and Union Bank did not comment on the Plan of Exchange, and did not present any evidence of the validity of the Plan, other than the petition previously filed with the Commissioner seeking approval of the Plan, to dispute Keith’s contentions.

Under Ark. Code Ann. § 23-48-601 et seq., the legislature set out the process for “Reorganization Through Plan of Exchange,” allowing a state bank to “adopt a plan of exchange of all of the outstanding capital stock held by the stockholders for the consideration designated in the section to be paid or provided by a bank holding company which acquires the stock.” Ark. Code Ann. § 23-48-601 (a)(1). As one form of compensation, the acquiring bank holding company may pay cash for the acquired stock. Ark. Code Ann. § 23-48-601 (a)(2)(C). The Plan of Exchange may not go into effect until filed with and approved by the State Bank Commissioner, and the Commissioner’s approval may not be given until made in writing after notice and a hearing on the matter. Ark. Code Ann. § 23-48-601 (b). The Commissioner’s approval must be made within a reasonable time after the hearing, unless he finds that the plan:

(1) Is contrary to law;
(2) Is inequitable to the stockholders of the state bank involved;
(3) Would not provide a satisfactory means for disposing of shares of the state bank resulting from dissenting stockholders; or
(4) Would substantially reduce the security of or service to be rendered to depositors or other customers of the state bank or any affiliate bank of the state bank or the bank holding company.

Ark. Code Ann. § 23-48-601 (b)(1) through (4).

However, a minority shareholder’s dissent from the Plan of Exchange, in and of itself, is not sufficient to disallow the Plan. Rather than permitting deadlock, the statute authorizes the majority to proceed with its plan but provides for dissenters’ appraisal rights. Under Ark. Code Ann. § 23-48-603, once the Plan has been approved by the majority stockholders and the Commissioner, the dissenters may go through a separate process to get a determination of the value of their stock. The statute allows the dissenters to ask for their own appraisal, require the bank holding company to get an appraisal, and, if neither group agrees on an appraisal amount, to get a third appraiser, agreed upon by the parties, to make an additional appraisal. If the dissenters and the holding company still disagree, the appraisal determination may then be made by the Commissioner, and this appraisal value is binding on both parties. Keith took the initial step under the dissenter’s rights provision in the statute by giving notice to the state bank at the stockholders’s meeting. Rather than pursue the remaining specific steps to perfect a dissent under Ark. Code Ann. § 23-48-603, Keith filed the instant action challenging the validity of the Commissioner’s actions.

The legislature enacted the subject statutory provisions in 1997 and, to date, they have not been interpreted by this court. However, reorganization plans have been used in other jurisdictions. In particular, the Eighth Circuit Court of Appeals determined that a “freeze-out” merger under the National Bank Act, codified at 12 U.S.C. § 215, was a valid action by the majority shareholders. See NoDak Bancorporation v. Clarke, 998 F.2d 1416 (8th Cir. 1993); But see Lewis v. Clark, 911 F.2d 1558 (11th Cir. 1990). In NoDak, the court held that a merger between two national banks, which ultimately resulted in the minority shareholders having to sell their shares to the new bank, was a valid interpretation of the National Bank Act. There, the stockholders in a national bank consisted of a 73% majority shareholder which was a holding company, and another minority shareholder holding company. The majority holding company created a “phantom bank,” and then the majority shareholders in the first bank voted to merge with the “phantom bank.” In the merger, the majority shareholders would get a stock exchange to gain the same interest in the “phantom bank,” and the minority shareholders would get money for their shares. It was a forced cash-out, which resulted in the disappearance of the original bank once the shares were sold and exchanged with the new “phantom bank.”

In contrast, the Eleventh Circuit Court of Appeals, three years before the NoDak decision, determined that “freeze-out” mergers were not valid, in part under the theory that “there is a longstanding equity tradition of protection of minority shareholders in American jurisprudence.” Lewis, 911 F.2d at 1561. In Lewis, the court determined that without express statutory authority, the Comptroller who was required to approve the merger plan had no authority to approve a merger which requires equally situated stockholders to take different forms of consideration.

The facts of the instant case differ from NoDak and Lewis. Here, the holding company did not create a “phantom bank” into which the stockholders could vote for Union Bank to merge. Instead, by a vote of the majority stockholder, Bancshares, it was decided under the Plan of Exchange that the minority stockholders must sell their stock to Bancshares, the holding company. On the other hand, Bancshares would not have to sell its shares. In fact, Bancshares would not even have to exchange its Union Bank shares with shares of some “phantom bank.” The practical effect of the process used is that the majority shareholders in Union Bank voted to make the minority shareholders in Union Bank sell their shares of stock to the majority.

The issue before us now is whether Ark. Code Ann. § 23-48-601 et seq. contemplates and permits the procedure approved by the Commissioner. Although there may be a perceived unfairness in the “freeze-out” nature of the procedure, if it is authorized by the statute and not violative of constitutional limitations, it is permissible.

While this nation’s jurisprudence in more recent years has moved away from its earlier staunch safeguards for minority stockholders, our general rules of statutory interpretation must still control to determine whether the actions taken here are valid under the statute notwithstanding the movement away from minority stockholder protection. As Keith argues, the statute is clear on its face that the sale of the shares must be a sale of “all” shares under Ark. Code. Ann. § 23-48-601 (a)(1). As previously stated, the basic rule of statutory construction is to give effect to the intent of the legislature. Kildow, 333 Ark. at 338. If the language is plain and unambiguous, our analysis need go no farther. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997).

Flere, no ambiguity exists in the statute to require us to analyze the language beyond its plain meaning. The statute at issue reads in pertinent part:

Authority to adopt plan of exchange Approval hy commissioner required.
(a)(1) A state bank may adopt a plan of exchange of all of the outstanding capital stock held by its stockholders, for the consideration designated in this section to be paid or provided by a bank holding company which acquires the stock, in the manner provided in this subchapter. . . . [Emphasis added.]

Ark. Code Ann. § 23-48-601. This statute is clear and unambiguous. As stated, a plan of exchange may be effectuated by a vote by the stockholders to sell all of the outstanding capital stock. Reading the plain language of the statute, it cannot be said that the legislature intended “all” to actually mean “some,” as Ford argues.

In support of his argument, Ford argues that the change in the above statute which was enacted through Act 117 of 1999 indicates what the legislature truly intended in the original reorganization statutes. Act 117 of 1999, entitled “Clarification of the Procedures to Reorganize Using a A Plan of Exchange,” significantly modifies the 1997 statute. Specifically, subsection -601(a)(1) was changed to read “A state bank may adopt a plan of exchange for shares of the outstanding capital stock. . .” instead of “A state bank may adopt a plan of exchange of all of the outstanding capital stock. ...” (Emphasis added.) In addition, the legislature further changed the language of the statute by altering subsection -604(a)(1) and (2). In -604(a)(1), “and each shareholder of the state bank acquired shall thereupon cease to be a shareholder of the state bank” was changed to “and each shareholder of the state bank whose shares were acquired shall thereupon cease to be a shareholder of the state bank.” Furthermore, in subsection -604(a)(2), “The ownership of all shares of the issued and outstanding stock of the state bank. . .” changed to “The ownership of shares acquired in the plan of exchange. ...” While these changes may seem minor in nature, they are major in effect. Under the statute as amended, the actions that Bancshares took to consolidate the shares for 100% control of the bank may be permitted. However, despite the attempt to characterize Act 117 of 1999 as merely a “clarification” of the earlier statute, our rules of statutory interpretation do not allow us to consider the 1999 amendment as a “clarification” of the legislature’s intent. We briefly summarized the applicable statutory construction principles in State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994), where we stated:

In support of its position, the State correctly asserts that the basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Pugh v. St. Paul Fire & Marine Ins. Co., 317 Ark. 304, 877 S.W.2d 577 (1994). Yet, the State fails to note when a statute is clear, it is given its plain meaning, and that we will not search for legislative intent, rather, that intent must be gathered from the plain meaning of the language used. Pugh, supra. We are also very hesitant to interpret a legislative act in a manner contrary to its express language unless it is clear that a drafting error or omission has circumvented legislative intent. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994). In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate means that throw light on the subject. McCoy v. Walker, 317 Ark. 86, 876 S.W.2d 252 (1994). We have recognized that changes made by subsequent amendments may be helpful in determining legislative intent. American Casualty Co. v. Mason, 312 Ark. 166, 848 S.W.2d 392 (1993).

As noted in McLeod, when the express language of a statute is clear, later statutory changes should only be considered if it is obvious that there has been a drafting error or omission.

The “error or omission” concept stems from our caselaw referring to a drafting error or omission. Here, it cannot be said that there was a drafting error or omission in the language used by the legislature in the 1997 statutes when the words used are consistent with a valid, recognized procedure, i.e., the establishment of a “phantom bank,” to accomplish the “reorganization” of a state bank. Merely because Act 117 of 1999 changes the language in the statute, thus changing the available procedures to allow a reorganization, does not necessarily mean that an error occurred in the drafting of the 1997 statute. As such, we hold that there was no drafting error or omission in the 1997 statute, and Bancshares’s actions, approved by the Commissioner, were ultra vires of the statute.

Joinder of Parties

The Commissioner argues in his second point to this court that Bancshares and Union Bank were necessary parties to this action, and should have been joined in the lawsuit pursuant to Ark. R. Civ. P. 19. However, as Keith notes in his brief, agency actions governed by the Arkansas Administrative Procedure Act are exempt from the Rules of Civil Procedure because the A.P.A. provides a different procedure for the parties to follow. See Ark. R. Civ. P. 81(a); See also Whitlock v. G.P.W. Nursing Home, Inc., 283 Ark. 158, 672 S.W.2d 48 (1984) and Wright v. Arkansas State Plant Board, 311 Ark. 125, 842 S.W.2d 42 (1992).

Under the A.P.A., Bancshares and Union Bank did not have to be listed as parties, they just had to be served with notice of the proceedings. This was done. In addition, Ark. Code Ann. § 25-15-212(b) (Repl. 1996) allows an interested party to intervene at the discretion of the Commissioner. Bancshares and Union Bank did not move to intervene, although they were served with the pleadings and did appear at each and every hearing on the matter, and the Commissioner did not require them to become parties.

Appellant has not challenged the circuit court’s ruling remanding the case to the Commissioner for further proceedings based on the court’s view that Keith had not been provided “an acceptable opportunity to present evidence or testimony for a fair price for their shares.” The ruling of the circuit court reversing the Commissioner therefore stands.

Commissioner’s decision reversed.

Circuit Court’s decision affirmed.

Arnold, C.J., and Glaze and Thornton, JJ., dissent.

W. H.“Dub” Arnold, Chief Justice,

dissenting. Although I agree with the majority’s recitation of the applicable standard of review, I disagree with the majority’s application of that standard to the facts in the instant case. I cannot say that the commission’s interpretation of Ark. Code Ann. section 23-48-601 (a)(1) was “clearly wrong.” Further, the majority’s reversal of the commission’s finding leads us to a result that defies the basic rule of statutory construction, namely, to give effect to the intent of the legislature. See Rosario v. State, 319 Ark. 764, 769, 894 S.W.2d 888 (1995).

When we are presented with a matter of first impression, as here, this court is vested with a pivotal responsibility to determine the meaning of a statute. See In re Adoption of Martindale, 327 Ark. 685, 688-89, 940 S.W.2d 491 (1997) (citing Arkansas Dep’t of Health v. Westark Christian Action Council, 322 Ark. 440, 910 S.W.2d 199 (1995); Peters v. State, 321 Ark. 276, 902 S.W.2d 757 (1995): Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993)). The majority’s interpretation that section 23-48-601(a)(1) contained no ambiguity, no drafting error, or omission, fails to adequately meet that responsibility because we must construe statutes by looking to all laws on the subject, viewing them as a single system, and giving effect to the general purpose of the system. See Citizens to Establish a Reform Party in Arkansas v. Priest, 325 Ark. 257, 265-66, 926 S.W.2d 432 (1996) (citing Hercules, Inc. v. Pleader, 319 Ark. 702, 894 S.W.2d 576 (1995); Pace v. State Use Saline County, 189 Ark. 1104, 76 S.W.2d 294 (1934)).

I respectfully disagree with the majority’s interpretation and adopt the position advanced by the Arkansas Bankers Association and Arkansas Community Bankers Association, who filed an amicus curiae brief in this matter. When read as a whole, the purpose of these statutory provisions is to allow a reorganization through a plan of exchange that will result in a bank holding company becoming the sole stockholder of a bank. The commission’s interpretation of Ark. Code Ann. sections 23-48-601—605 recognized that purpose by permitting the instant transaction.

As further evidence of the legislature’s intent, we may also consider subsequent amendments to the statute. Rosario v. State, 319 Ark. 764, 769, 894 S.W.2d 888 1995). Via Act 117 of 1999, the legislature enacted an amendment to sections 23-48-601, -604, and -605, entitled a “clarification of the procedures to reorganize using a plan of exchange.” (Emphasis added.) Clearly, the legislature intended to clarify an ambiguity in section 23-48-601(a)(1) to allow for a plan of exchange in which a minority shareholder may be forced to accept a fair cash value for his shares, although other shareholders may receive differing types of equitable consideration in exchange for their shares. Given that the legislature has approved “cash-out” transactions in a corporate-merger context, we should not conclude that the commission acted arbitrarily or capriciously by interpreting section 23-48-601 to permit a cash-out transaction in the context of a bank reorganization utilizing a plan of exchange. Also, like corporate stockholders dissenting from a plan for consolidation, minority bank shareholders, forced to take cash for their shares pursuant to a plan of exchange, are able to obtain a fair valuation for those shares under section 23-48-603.

In conclusion, the interpretation advanced by the majority is counter to the overall purposes and provisions of the Arkansas Banking Code. We should not disregard the legislature’s enactment of its intent in this area. In light of the great deference afforded an agency’s interpretation, Arkansas State Medical Bd. v. Bolding, 324 Ark. 238, 244, 920 S.W.2d 825 (1996), the ambiguity in section 23-48-601 (a)(1), and the legislature’s expressed intent, I respectfully dissent.

Glaze and Thornton, JJ., join.

        See McLeod, supra (statute clear on no award of attorney’s fees in trade practice cases; no error or omission); Coleman v. State, 327 Ark. 381, 938 S.W.2d 845 (1997) (drafting error not to raise threshold to $500 in the theft-by-receiving statute as it had done in the theft statute); Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994) (obvious from context that effective date of statute for criminal offenders was 1993 and not 1983). It must be clear that a drafting error or omission has circumvented legislative intent. See Rosario v. State, 319 Ark. 764, 894 S.W.2d 888 (1995) (possession of a handgun was erroneously omitted from the definition of a “delinquent juvenile”).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Andra GAINES v. STATE of Arkansas
    CR 99-88
    994 S.W.2d 938
    Supreme Court of Arkansas
    Opinion delivered July 22, 1999

      Donald A. Forrest, for appellant.

      No response.
   Per Curiam.

Appellant Andra Gaines, through his attorney Donald A. Forrest, has filed a petition asking this court for instructions regarding the incomplete record in this matter. Appellant previously petitioned this court for a writ of certiorari to complete the record with transcripts of a pretrial hearing held on May 9, 1997, and a suppression hearing held on May 13, 1997. This court granted Appellant’s petition on May 13, 1999. The writ was returned on June 7, 1999; however, the completed record contained the May 9 pretrial hearing, but not the May 13 suppression hearing.

Rather than requesting further delay, Mr. Forrest filed Appellant’s abstract and brief in accordance with the original briefing schedule. Because the record did not contain the May 13 suppression hearing, Appellant’s abstract does not contain any reference to that hearing. Appellant asserts that this hearing is necessary to properly pursue his appeal.

Accordingly, we remand this matter to the trial court to settle the record regarding the May 13 suppression hearing. See Ark. R. App. P.—Civ. 6. Once the record has been settled and filed with our Clerk, the Clerk will set a new briefing schedule for substitution of the abstract and brief previously filed by Mr. Forrest.


text:
    Richard JACOBY, Freddie Mae Green, Curtis Ivy, Jean Marrow, Elsie Sanchez, Evan Sanders, George Thomas, Barbara Whittaker, and Shirley Williams v. ARKANSAS DEPARTMENT of EDUCATION, Vocational and Technical Education Division
    97-310
    995 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered July 27, 1999

      Lavey & Burnett, by: John L. Burnett, for appellants.

      Mark Pryor, Att’y Gen., by: Timothy Gauger, Ass’t Att’y Gen., for appellee.
   Per Curiam.

On February 19, 1998, our opinion was handed down in this matter. We reversed the trial court and remanded the matter for further proceedings. The issue involved was whether state employees could sue the Arkansas Department of Education, Vocational and Technical Education Division, in state court for alleged violations of the Fair Labor Standards Act, 29 U.S.C.§§ 201-219 (1994 and Supp. I 1995). We held that they could and reversed the trial court’s judgment to the contrary.

A mandate was issued in this matter after petition for rehearing was denied. On April 30, 1998, the mandate was recalled in connection with the petition of the Arkansas Department of Education to the United States Supreme Court for a writ of certiorari.

On June 24, 1999, the United States Supreme Court granted the petition for a writ of certiorari and vacated the judgment and remanded the case for further consideration by this court in light of Alden v. Maine, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). The mandate from the United States Supreme Court was issued on July 23, 1999.

We order rebriefing in this case in light of Alden v. Maine, supra. The Clerk of the Supreme Court will set the briefing schedule.

        Reporter's note: See Jacoby v. Arkansas Dep’t of Education, 331 Ark. 508, 962 S.W.2d 773 (1998).


text:
    William Leroy DANIELS v. STATE of Arkansas
    CR 99-654
    998 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      John M. Blair, for appellant.
    No response.
   Per Curiam.

Appellant, William Leroy Daniels, by his attorney, John M. Blair, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.


text:
    Kevin FRANKLIN v. STATE of Arkansas
    CR 99-962
    998 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      Louis A. Etoch, for appellant.
    No response.
   Per Curiam.

Appellant, Kevin Franklin, by his attorney, Louis Etoch, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).

A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, supra.


text:
    James KIRBY v. STATE of Arkansas
    CR 98-1442
    999 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      James O. Clawson, for appellant.
    No response.
   Per Curiam.

By per curiam dated June 24, 1999, we remanded this case to the trial court to determine whether appellant James Kirby’s trial counsel, James O. Clawson, had been given notice of a February 8, 1999 hearing held to determine if Mr. Clawson should be held in contempt for failing to file a timely appeal on behalf of Mr. Kirby. On remand, the trial court held a hearing on the notice issue. Upon determining that Mr. Clawson did not have notice of the earlier February 8 hearing, the trial court properly inquired of Mr. Clawson concerning his obligation, if any, in filing Kirby’s appeal. On this issue, the trial court entered the following findings:

1. That subsequent to his conviction in this case on May 13, 1997, James Kirby requested on at least three separate occasions that his trial counsel, James O. Clawson, appeal this conviction.

2. No appeal was filed by James O. Clawson.

3. No motion to be relieved was filed by James O. Clawson.

In reviewing the trial court’s record and findings, we note Mr. Clawson conceded he was never relieved from representing Mr. Kirby, nor did he file an appeal. Mr. Clawson averred that he filed a motion for reconsideration which he believed “basically” amounted to an appeal. While Mr. Clawson denied being requested to file an appeal, the trial court obviously disagreed, finding Mr. Kirby had requested on three occasions that an appeal be filed. We conclude that the trial court’s findings are not clearly erroneous.

This court has held that if a convicted defendant wishes to appeal, his counsel must either file a notice of appeal or obtain permission from the court to withdraw as counsel. Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983); see also Ark. R. App. P.—Crim. 16. Based upon the full record before this court and its per curiams, we hold Mr. Clawson in contempt and direct that he pay a fine in the amount of $250.00. This matter is also referred to the Professional Conduct Committee. In addition, Mr. Kirby’s motion for belated appeal, granted on May 20, 1999, is acknowledged, and Mr. Kirby’s new counsel is directed to file a brief thirty days from the date of this per curiam.


text:
    Corey SANDERS v. STATE of Arkansas
    CR 99-628
    998 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      Larry G. Dunklin, for appellant.
    No response.
   Per Curiam.

Corey Sanders, by his attorney, has filed a motion for rule on the clerk.

His attorney, Larry G. Dunklin, admits in his motion that the record was tendered late due to a mistake on his part.

We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Sedrick Maurice SIMPSON v. STATE of Arkansas
    CR 98-423
    999 S.W.2d 181
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999
    No response.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Per Curiam.

For the second time, the State moves this court to direct appellant Sedric Maurice Simpson to comply with Ark. Sup. Ct. R. 4-3 (h). We granted the State’s original motion on May 6, 1999. Simpson filed a brief on June 11, 1999, but the amended abstract still fails to comply with Rule 4-3 (h). Simpson has filed no response to the State’s second motion.

We deny the State’s motion and instead direct the State to file a supplemental abstract in compliance with Rule 4-3 (h) which is consistent with the State’s burden under the rule to make certain and certify that all objections and adverse rulings be abstracted and all points argued by Simpson that appear to involve prejudicial error are briefed. The State’s alternative request for a thirty-day extension is granted.

Upon receipt of the supplemental abstract, we will review and determine whether defense counsel’s name should be referred to the Committee on Professional Conduct. See McGehee v. State, 327 Ark. 88, 937 S.W.2d 632 (1992).


text:
    James SLACK v. STATE of Arkansas
    CR 99-809
    999 S.W.2d 667
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      Kenneth G. Fuchs, for appellant.
    No response.
   Per Curiam.

Appellant James Slack was convicted of kidnapping and sentenced to sixty years’ imprisonment. Through his attorney, Kenneth G. Fuchs, Appellant has filed a motion for belated appeal. ■ The motion reflects that the sentence was pronounced on May 5, 1998, but that the judgment was not entered until numerous weeks later. The motion further reflects that Appellant was not given any notice that the judgment had been filed. Accordingly, no timely notice of appeal was ever filed. Appellant now prays for a belated appeal, pursuant to Rule 2(e) of the Arkansas Rules of Appellate Procedure—Criminal. We deny the motion.

Rule 2(e) provides in pertinent part:

The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made to the Supreme Court within eighteen (18) months of the date of entry of judgment or entry of the order denying postconviction relief from which the appeal is taken. If no judgment of conviction was entered of record within ten (10) days of the date sentence was pronounced, application for belated appeal must be made within eighteen (18) months of the date sentence was pronounced. [Emphasis added.]

This court has interpreted Rule 2(e) as requiring an affidavit upon application to this court for a belated appeal. Harris v. State, 327 Ark. 14, 935 S.W.2d 568 (1997). See also Morrissey v. State, 323 Ark. 803, 917 S.W.2d 167 (1996) (holding that when a good reason is shown by affidavit, this court may act upon and decide a case in which the notice of appeal was not given).

Here, Appellant has timely filed the motion for belated appeal (within eighteen months from the date that his sentence was pronounced), but he has failed to file an affidavit in support of his motion. Because such an affidavit is required by Rule 2(e), we must deny Appellant’s motion at this time. We direct Appellant to submit the required affidavit, demonstrating good reason for failing to timely file the notice of appeal, within thirty days of the date of this per curiam opinion. Upon receipt of the affidavit, we will consider the motion.


text:
    Tim A. WOMACK v. Phillip FOSTER
    99-953
    998 S.W.2d 737
    Supreme Court of Arkansas
    Opinion delivered September 9, 1999

      Mike Frey and Kinard, Crane & Butler, P.A., by: Mike Kinard, for appellant.

      Harrell & Lindsey, P.A., by: Searcy W. Harrell, Jr., for appellee.
   Per Curiam.

Appellant Tim A. Womack moves this court to advance this appeal concerning an election contest on our docket and to establish an expedited briefing schedule. Appellee Phillip Foster objects to the motion because the transcript of the trial has yet to be completed and filed.

The Election Code provides that it is this court’s duty to advance appeals of election contests. See Ark. Code Ann. § 7-5-804(b) (Supp. 1997). We have had occasion to expedite consideration of election appeals in the past, which involved setting a schedule for filing the record and for briefing. See, e.g., Heathscott v. Raff, 334 Ark. 224, 971 S.W.2d 266 (1998) (per curiam). We grant the motion to expedite the appeal and to set the briefing schedule. The record in this matter shall be filed no later than Friday, September 24, 1999. Simultaneous briefs shall be filed by the parties no later than Monday, October 11, 1999. Responsive briefs shall be filed by the parties no later than Monday, October 18, 1999. There will be no reply briefs.


author: W. H.“Dub” Arnold, Chief Justice.

text:
    Brian Keith BANGS v. STATE of Arkansas
    CR 98-1276
    998 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Arkansas Public Defender Comm’n, by: Mac Carder, and Teri L. Chambers; and Beverly C. Claunch, for appellant.

      Mark Pryor, Att’y Gen., by; Vada Berger, Ass’t Att’y Gen., for appellee.
   W. H.“Dub” Arnold, Chief Justice.

Appellant, Brian Keith Bangs, was found guilty of two counts of capital murder in the deaths of his mother-in-law and father-in-law, Carol and Darrel Turner, rape, Class-B-felony kidnapping, and first-degree battery of his wife, Jennifer Turner Bangs, and felony theft of property, namely, a pickup truck belonging to Darrell Turner. Bangs was sentenced to two terms of life imprisonment in the Arkansas Department of Correction for the capital-murder convictions and to a total of eighty-five years’ imprisonment for the remaining offenses. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(a)(2) (1999). In the instant appeal, Bangs challenges the trial court’s (1) denial of his motions for directed verdict regarding the capital-murder and first-degree battery convictions, (2) refusal to suppress his statements to an Arkansas State Police Investigator and the Stone County Sheriff, and (3) denial of his motion to strike two jurors for cause and grant of the State’s motion to strike one juror for cause. We find no merit in appellant’s arguments, and we affirm.

I. Motions for directed verdict

A. Standard of review

At the close of the State’s case-in-chief, appellant moved for a directed verdict. The trial court denied the motion. On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Freeman v. State, 331 Ark. 130, 131, 959 S.W.2d 400, 401 (1998) (citing Williams v. State, 329 Ark. 8, 16, 946 S.W.2d 678, 682 (1997)). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401.

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Freeman, 331 Ark. at 131-32, 959 S.W.2d at 401 (1998). Notably, the evidence may be either direct or circumstantial. See Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

B. Capital-murder convictions

For his first point on appeal, Bangs argues that the State failed to present sufficient evidence to support his two capital-murder convictions. Pursuant to Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Appellant contends that the evidence failed to establish premeditation and deliberation and that the only direct evidence supported his position that the shootings were an “impulsive act.”

However, the State presented testimony that Bangs went to his estranged wife’s home on the afternoon of the crime and hid in the home until he was discovered by his sister-in-law, Crystal. After the two talked, Bangs left the home. Between 6:30 p.m. and 7:30 p.m. Crystal and her son left the home, leaving it unlocked. According to appellant, he returned to the house, parked his truck at a neighbor’s house, a quarter of a mile away, 250 feet from the road, and in some trees, so that the Turners would not see it upon their return. Bangs testified that he then entered the house, hid in the bathroom shower, and remained there until the family returned and went to bed around 10:30 p.m.

Subsequently, Bangs left the cover of the shower and shot Carol twice in the chest and Darrell in the upper left back and right arm, also causing injury to Darrell’s right wrist. Bangs explained that Carol was sitting up in the bed when he shot her and that he merely “clicked” and began shooting. However, the medical examiner testified that both Carol and Darrell’s injuries were consistent with their lying asleep in bed when they were shot. Tests of Carol’s clothing also revealed that she was shot at close range.

We have stated that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)). Moreover, the credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). Here, the jury declined to believe appellant’s theory that he acted impulsively.

In any event, premeditation is not required to exist for a particular length of time. It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 467, 956 S.W.2d 849 (1997). Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id.

Here, the medical evidence revealed that the victims’ wounds were located in positions inconsistent with appellant’s testimony and consistent with the victims lying in their bed. The nature and distribution of the wounds coupled with appellant’s own testimony that he waited in the Turners’ home, hidden in the shower and armed with a gun, provided substantial evidence of premeditation and deliberation. Viewed in the light most favorable to the State, we conclude that there is sufficient evidence to support appellant’s capital-murder convictions.

C. First-degree battery conviction

Appellant’s wife, Jennifer, testified that she was awakened by the shootings and by appellant when she was “yanked up out of the bed.” She called to her father for help, and appellant hit her in the head with a gun. Bangs then dragged her through the hallway by her foot, leaving bloodstains on the carpeting. Appellant then told her, “There is no use in yelling because I shot your mom and dad.” Jennifer next recalled that she was sitting in her father’s truck and that Bangs had tied her hands with a cord. He also hit her several times in the face, and her head hit the back glass of the truck’s cab. Bangs then drove her to a trailer where they lived, drug her by the cord into the trailer, and got more ammunition. He then drove her into the woods and raped her. At some point, he placed her shirt around her head to stop the bleeding, and when she “bled through” the shirt, he wrapped paper towels around her head and put a “toboggan” on it. Appellant eventually released Jennifer in the woods. Ultimately, she encountered a police car.

Jennifer was then admitted to the hospital for treatment. The surgeon who treated her wounds noted that she had two lacerations on her scalp, approximately five centimeters in length, which he closed with staples. She also had bruises on her forehead and face and blunt injuries to her scalp and the back of her head. Notably, the surgeon characterized the wounds as “serious physical injuries.”

Pursuant to Ark. Code Ann. § 5-13-201 (a)(3) (Repl. 1997), a person commits first-degree battery if “he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.” “Serious physical injury” is defined at section 5-1-102(19) (Repl. 1997 & Supp. 1999) as:

physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

(Emphasis added.) Significantly, whether a victim has sustained serious physical injury is an issue for the jury. See Purifoy v. State, 307 Ark. 482, 489, 822 S.W.2d 374, 378 (1991). In light of the medical testimony and Jennifer’s own account, the jury could reasonably conclude that Jennifer sustained serious physical injury. Accordingly, we hold that there was sufficient evidence to sustain appellant’s first-degree-battery conviction.

II. Appellant’s statements to police

Appellant’s second point on appeal challenges the trial court’s admission of statements made by Bangs to Arkansas State Police Investigator Tommy Cleveland and to Stone County Sheriff Fred Black. Specifically, Bangs asserts that he never validly waived his rights, that the State did not conclusively establish that he actually made any statements, and that he was improperly questioned after requesting an attorney. When we review a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. See Wright v. State, 335 Ark. 395, 403-04, 983 S.W.2d 397, 401 (1998). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Phillips v. State, 321 Ark. 160, 163, 900 S.W.2d 526, 528 (1995).

Stone County Sheriffs Deputy Sammy Wilson awakened appellant and arrested him at his home at approximately 10:45 a.m. on the morning of December 24, 1996. While handcuffing Bangs, Deputy Wilson informed him of his Miranda rights. Wilson then transported Bangs to the Stone County jail, where Investigator Cleveland awaited their arrival. Using a standard Arkansas State Police form, Cleveland read appellant his rights, asked whether he understood those rights, and noted appellant’s affirmative responses. Although Bangs reviewed the form and indicated that he understood his rights, he refused to sign or initial the form. Accordingly, Cleveland noted that refusal on the form.

Next, with appellant’s assistance, Cleveland completed a standard description-of-suspect form. Then, Cleveland began to question Bangs about the incidents. Due to appellant’s objection to any notetaking, Cleveland wrote out a statement following the interview. According to that statement, Bangs admitted that he shot Carol and Darrell Turner. However, Bangs refused to sign that statement. Likewise, although Bangs conceded that neither Jennifer nor Crystal Turner was involved in the murders, he declined to sign a statement to that effect.

Sheriff Black joined appellant’s interview at approximately 12:45 p.m., and Bangs thanked him for his treatment of appellant’s family. Black noted that appellant looked tired but did not appear to be under the influence of drugs or alcohol. During the interview, Bangs repeated the statements that he had made to Cleveland. Again, however, he refused to sign a statement, adding that he would not do so without his lawyer.

Cleveland then asked Bangs who his lawyer was and, given a response, telephoned attorney Gray Dellinger at around 1:20 p.m. Dellinger confirmed the call. Dellinger testified that he spoke with Bangs on the telephone and that Bangs’s voice was flat and monotone but that he seemed to understand Dellinger when he told him not to sign, consent to, or say anything. Following this telephone conference, Bangs’s interview was concluded, and both Investigator Cleveland and Sheriff Black took notes regarding appellant’s statements. Recently, in State v. Sheppard, 337 Ark. 1, 5, 987 S.W.2d 677, 680 (1999), we noted that questions about a statement’s credibility and reliability, including whether it was recorded or in the accused’s handwriting, are matters for the jury to resolve and not for the trial court to resolve when ruling on a motion to suppress. The jury was also entitled to resolve any factual dispute regarding attorney Dellinger’s testimony and that of the police investigators.

Similarly, the jury could determine that appellant had the capacity to knowingly and intelligently waive his rights. In Hayes v. State, 312 Ark. 349, 354, 849 S.W.2d 501, 504 (1993), we held that a written waiver is not required to effect a valid waiver. Moreover, in Bowen v. State, 322 Ark. 483, 504, 911 S.W.2d 555, 565 (1995), we noted that the assertion of the right to counsel and the right to remain silent must be made with specificity. Id. (citing Davis v. United States, 512 U.S. 452 (1994)). When the appellant in Bowen acknowledged that he understood his rights but answered questions without mentioning those rights, we held that he waived the rights by implication. Bowen, 322 Ark. at 504, 911 S.W.2d at 565; see also Standridge v. State, 329 Ark. 473, 479, 951 S.W.2d 299, 301 (1997). Significantly, by merely answering questions, one may waive by implication his right to remain silent. Bowen, 322 Ark. at 504, 911 S.W.2d at 565 (citing Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992); Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987)).

In the instant case, police investigators advised appellant of his rights, and appellant acknowledged that he understood those rights. Additionally, although he refused to sign a statement, he proceeded to answer questions. Reviewing the evidence in the light most favorable to the State and given the totality of the circumstances, we conclude that the trial court was not clearly erroneous in denying appellant’s motion to suppress.

III. Jury selection

Appellant’s third point on appeal claims that the trial court erred by denying his challenges to strike two prospective jurors, Rayburn Holloway and Loyd McHenry, for cause. Additionally, Bangs asserts that the trial court erred by granting the State’s challenge for cause to prospective juror Martha Collins. The State correctly notes that appellant’s objections to venirepersons Holloway and McHenry are barred because he struck the two using peremptory challenges.

In Willis v. State, 334 Ark. 412, 420, 977 S.W.2d 890, 894 (1998), we' declined to address a similar claim of error because it involved venirepersons that the appellant had excused via peremptory challenges. We noted that it is well-settled that the loss of peremptory challenges cannot be reviewed on appeal, and that the focus should be on persons actually seated on the jury. Id. (citing Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1990); Pickens v. State, 301 Ark. 244, 251, 783 S.W.2d 341, 345 (1990) (citing Ross v. Oklahoma, 487 U.S. 81 (1988))). Therefore, we need not consider whether Holloway and McHenry should have been struck for cause because they were not seated on the jury.

We also decline to consider appellant’s claim that he was forced to accept juror Judy Price after exhausting his peremptory strikes. In order to challenge a juror’s presence on appeal, Bangs must demonstrate that he exhausted his peremptory challenges and that he was forced to accept a juror who should have been excused for cause. See Willis, 334 Ark. at 420, 977 S.W.2d at 895-96. Here, Bangs merely claimed that Price should be removed via a peremptory strike.

Finally, during voir dire, venireperson Martha Collins stated that she knew a potential witness in the case because her husband had hired the attorney to represent him in connection with methamphetamine charges brought against him by the prosecuting attorney. Collins suggested that she could be fair and impartial despite the pending charges against her husband and that she would not have a “built[-]in animosity” against the State. However, after continued questioning, she admitted that the situation would “bother” her. Appellant claims that Collins only became upset because the prosecutor “hollered at her.”

The decision to excuse a juror for cause rests within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. Nooner v. State, 322 Ark. 87, 97-98, 907 S.W.2d 677, 682 (1995), cert. denied, 517 U.S. 1143 (1996). While statements that a venireperson can be fair can make the person an acceptable juror, they are “not an automatic cure-all.” Walton v. State, 279 Ark. 193, 199, 650 S.W.2d 231, 234 (1983). Further, even if the trial court had abused its discretion, appellant failed to show prejudice, a prerequisite to a reversible-error claim. See Williams v. State, 327 Ark. 97, 103, 938 S.W.2d 547, 551 (1997). In light of the foregoing, we conclude that the trial court did not abuse its discretion in granting the State’s challenge for cause.

IV. Rule 4-3(h)

Pursuant to Ark. Sup. Ct. R. 4-3(h) (1999), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. Accordingly, we affirm appellant’s judgment of conviction.


author: Donald L. Corbin, Justice.

text:
    Marilyn SMITH and Derrel Smith v. Phillip SMITH, Administrator of the Estate of Mary K. Smith
    98-1306
    998 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Keith & Miller, P.A., by: Sean T. Keith, for appellants.

      James Dunham, for appellees.
   Donald L. Corbin, Justice.

This case involves the probate court’s jurisdiction to determine ownership of funds held in a joint bank account as between the administrator of the decedent’s estate and the widow and son of one of the decedent’s heirs. The appeal was certified to us from the Arkansas Court of Appeals as presenting issues requiring further development and clarification of probate law. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(b)(5). We conclude that the probate court lacked jurisdiction to decide the matter, and we reverse.

Mary K. Smith died intestate on July 23, 1995, after a battle with cancer. She was survived by her husband, Clarence G. Smith, and her three children, Appellee Phillip Smith, Carol Wilkerson, and Cline Smith. Phillip was appointed administrator of his mother’s estate by the Franklin County Probate Court. Phillip filed an inventory of his mother’s estate on November 15, 1995. Included among the listed assets was a joint checking account, having a right of survivorship, that contained approximately $43,000. The joint account was opened in 1983 in the names of Mary K. Smith or Phillip K. Smith. The account’s owners remained the same until 1995, around the time that Mary became ill. From February 1995 to the time of Mary’s death, ownership of the account changed three times. At the time of Mary’s death, the listed owners were Mary K. Smith or Cline G. Smith.

Cline died on January 29, 1996, approximately six months after Mary’s death; he, too had suffered from cancer. Cline was survived by his wife and son, Appellants Marilyn Smith and Derrel Smith. After Cline’s death, Appellants appeared in the probate proceedings and objected to the inclusion of the joint bank account in Mary’s estate. They contended that because the account provided for a right of survivorship, the money belonged to Cline, and, correspondingly, to them as Cline’s heir and widow. The probate court ruled that the funds were the property of Mary’s estate. In a letter order, the probate judge explained his ruling: “Essentially, it was my belief, and still is my belief, that Mr. Cline Smith was holding this account in trust for the other heirs until such time as Mrs. Mary Smith had no further use of it.” This appeal followed.

For reversal, Marilyn and Derrel argue that the probate court lacked jurisdiction to determine ownership of the funds in the joint bank account because they are strangers or third parties to Mary’s estate. They argue further that the probate court lacked jurisdiction to fashion the equitable remedy of a constructive trust. Additionally, they assert that the probate court erred in ordering that Mary’s surviving husband be paid a $2,000 statutory allowance, pursuant to Ark. Code Ann. § 28-39-101(a)(l) (1987), from the bank account in question. We agree that the probate court acted without jurisdiction in this matter.

The probate court is a court of special and limited jurisdiction; it has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). This court has long recognized that the probate court lacks jurisdiction to determine contests over property rights and titles between the personal representative and third parties or strangers to the estate. Id. (citing Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974); Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942); Huff v. Hot Springs Sav., Trust & Guar. Co., 185 Ark. 20, 45 S.W.2d 508 (1932); Gordon v. Clark, 149 Ark. 173, 232 S.W. 19 (1921); Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140 (1914); Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166 (1913); Moss v. Sandefur, 15 Ark. 381 (1854)). In other words, “[t]he probate court lacks jurisdiction to try title to property claimed by a ‘stranger’ to the estate, i.e., one who has no claim as a beneficiary of the estate or the personal representative.” Jolly v. Estate of Jolly, 333 Ark. 394, 395, 970 S.W.2d 221, 222 (1998). Furthermore, it matters not whether the disputed property is in the possession of the administrator or the third-party stranger, as the probate court lacks jurisdiction in either case. Ellsworth, 204 Ark. 756, 165 S.W.2d 57; Bratcher v. Bratcher, 36 Ark. App. 206, 821 S.W.2d 481 (1991).

This court has defined a “stranger” to the estate as one who is not an heir, distributee or devisee of the decedent, or a beneficiary of or claimant against the decedent’s estate. Hilburn, 259 Ark. 569, 535 S.W.2d 810. There are numerous cases from this court and the court of appeals addressing the issue of who is a stranger to an estate. For example, in Ellsworth, 204 Ark. 756, 765, 165 S.W.2d 57, 61, this court held that the decedent’s stepdaughter was not an heir, distributee, or beneficiary of the estate and was, therefore, “a stranger to the blood and to the estate.” In Hilburn, 259 Ark. 569, 535 S.W.2d 810, this court ruled that the decedent’s mother was a stranger to the estate. In Jolly, 333 Ark. 394, 970 S.W.2d 221, this court determined that the decedent’s husband was a stranger to the proceedings in probate court because he had no claim in his wife’s estate and was not the executor of the estate. Likewise, in Bratcher, 36 Ark. App. 206, 821 S.W.2d 481, the court of appeals held that the decedent’s spouse, who was not provided for in the decedent’s will, was a stranger to the estate because her claim was based entirely on an antenuptial agreement. In Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998), the court of appeals held that the decedent’s granddaughter and husband were strangers to the estate, as they were not heirs, distributees or devisees, beneficiaries of or claimants against the estate.

Applying the foregoing holdings to the case at hand, it is clear that Marilyn Smith and Derrel Smith are strangers to the estate of Mary K. Smith, as they are not her heirs, distributees, devisees, or beneficiaries of or claimants against her estate. We are not persuaded by Phillip’s argument that Marilyn and Derrel were acting as the representatives of Cline’s interest in Mary’s estate. There is simply no evidence to indicate that the probate court appointed them as Cline’s representatives or substituted them as parties to the proceedings. Rather, it appears that Marilyn and Derrel were acting in their own individual capacities, as widow and surviving heir of Cline. Accordingly, they were strangers to Mary’s estate. The title dispute was thus one between the administrator and strangers to the estate, and the probate court was, therefore, without jurisdiction to determine the ownership of the funds in the joint bank account. Similarly, the probate court was without authority to order payment from that account of the $2,000 statutory allowance to Mary’s husband. Because the probate court lacked jurisdiction, so does this court. Jolly, 333 Ark. 394, 970 S.W.2d 221. We thus reverse and dismiss the probate court’s ruling.

Glaze and Imber., JJ., concur on the basis that the case should be dismissed on the ground that Appellants have no standing.

       According to Marilyn Smith’s testimony, no probate estate has been commenced for Cline Smith.


author: Lavenski R. Smith, Justice.

text:
    Jason N. GATES v. STATE of Arkansas
    CR 98-1197
    2 S.W.3d 40
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Arkansas Public Defender Commission, by; Mac J. Carder, Jr., Betsy Johnson, and Scott Bles, for appellant.

      Mark Pryor, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

The appellant, Jason N. Gates (“Gates”), raises three points in his appeal of a capital murder conviction. Following conviction, the jury sentenced Gates to life imprisonment without parole. First, Gates argues that the Prosecuting Attorney made improper statements during closing arguments, including a veiled reference that Gates should have testified in his own defense during trial. Second, Gates argues that the trial court erred in allowing the admission of certain evidence suggesting that the victim had been sexually assaulted despite the fact that Gates had not been charged with any sexual offense. Finally, Gates argues that the trial judge should have recused because a relative to a potential witness in the case worked for the judge, and, prior to the murder, the judge conducted a guardianship hearing involving the victim. We disagree and affirm on all points.

Facts

On December 10, 1996, an intruder murdered Zena Mae Petty, an eighty-year-old resident of England, Arkansas, in her home. Lisa Elliot, Petty’s aide, arrived at Petty’s residence at approximately 8:45 a.m. that morning to pick up Petty and assist her with errands. Upon arrival, Elliot discovered the backdoor to the house partially opened. Elliot assumed that Petty must have previously opened it that morning, so she entered the house. Elliot walked down a hallway and into the family room, and noticed the house had been ransacked and the front door was broken apart and ajar. Eliot also noticed that the house was cold although Petty usually kept it fairly warm. Fearing something was wrong, Elliot left the house, obtained help from neighbors Quinn and Molly Melton, and together they reentered the house to find Petty. The group made its way to Petty’s bedroom located in the rear of the house where, upon seeing Petty’s legs at the foot of her bed, immediately exited the house and called the England Police Department. England Police Officer Nathan Cook arrived first, and secured the house as a crime scene. Cook and another England police officer then reentered the house and discovered Petty’s body on her bed in her bedroom.

Local authorities began a homicide investigation. England police called the Arkansas State Police for further investigative support. Soon thereafter, the Arkansas State Police arrived and began conducting a crime scene search of the premises. State Police officers lifted fingerprints from many surfaces, took blood samples, and searched the premises for any other physical evidence which might be present. The police identified what appeared to be shoe prints in blood on the floor. They also found gloves on the floor inside the home. Outside, the police found a screwdriver and a set of kitchen shears thrown in a nearby ditch. The police took all these items into evidence.

As the investigation proceeded, Jason Holt (“Holt”), a local juvenile, then age sixteen, met with Gates at the Git-N-Go Express convenience store in England. According to Holt they met at approximately noon on December 10. Holt knew Gates fairly well because Gates had previously dated Holt’s cousin. Later, Holt testified that during this meeting Gates told him “I hit a lick.” Gates then accompanied Holt to Holt’s grandmother’s house. There, according to Holt, Gates explained that he had robbed Zena Petty. Gates told how he “hit her four times” because she bruised his arm with a cane. Holt then stated that Gates showed him jewelry he had taken from Petty’s house, and told him where he had hidden other jewelry. Initially, Holt did nothing about reporting the crime. However, later that afternoon, as the young men were riding in a car with another friend, Bryan White, the pair learned from White that Petty had been found murdered. White testified at trial that Holt, upon hearing this information, seemed upset at the news.

Holt testified that after he left Gates’s and White’s company, he met with a friend, Rodney Spradlin, and asked for his advice about reporting the crime. Holt, himself, had previously committed several criminal offenses. Rodney Spradlin took Holt to Calvin Spradlin, Rodney’s father, who advised Holt to report what he knew to the police. At approximately 5 p.m. on December 10, Holt went to the England Police Department to report what he had been told about the crime. Subsequently, Holt accompanied an England police officer to the places Holt said that Gates told him that Gates had hidden the jewelry in a sock. The police investigator found a sock with jewelry in it in a place consistent with where Holt directed him to look. The England police officer then called in the State Police investigators who retrieved the sock for evidence. Holt also told officers that Gates had some clothes over at his house, and that Gates had changed pants there, but not shirts. The police then went to Holt’s house and retrieved a pair of Gates’s pants for testing.

Later that evening after taking Holt’s statement, the police picked up Gates for questioning. During questioning, the police asked for Gates’s shoes, and Gates then took off and handed the shoes to the questioning officer. The officer, at that time, noted that Gates was not wearing socks. During questioning, Gates told officers that he had been with Tony and Terry Oswalt the night before. Gates claimed that on December 9, 1996, he and the Oswalts rode around and bought and drank beer late into the evening. Terry Oswalt later testified at trial that he let Tony and Gates off at Tony’s house at the end of the evening, and that Tony and Gates went inside to watch the last of a Monday night football game. Tony Oswalt testified that, after the game, Gates left his house to “sleep at his [Gates’s] sister’s house.” Tony testified that at approximately 2:30 a.m., he heard knocking on a window, and Gates reappeared and asked whether he could sleep on Oswalt’s couch. Tony let him in and went back to bed. When Tony awoke the next morning at approximately 7:00 a.m., he said that Gates had already left his house.

The evidence collected at the crime scene and from Gates’s shoes and jeans revealed that a latent fingerprint lifted from the deadbolt lock on the back door in the garage at Petty’s house belonged to Gates. Further evidence revealed that blood specks found on Gates’s shoes and jeans, matched through DNA testing, was Petty’s blood. The kitchen shears and screwdriver found in a ditch near Petty’s house turned out to be Petty’s, and the shears had Petty’s blood on them.

At trial, Gates’s mother testified in his defense that on the morning of December 10, 1996, when she saw Gates at the Laundromat, she confronted him about not wearing the expensive tennis shoes she had purchased for him. He was wearing combat boots at the time. He justified not wearing his tennis shoes by explaining that his tennis shoes had gotten wet from a water hose. He said he left the shoes and the jeans at Holt’s house days before. His sister, Penny Parker, also testified that she noticed the boots. At the close of the case, the jury returned a guilty verdict on the capital murder charge and sentenced Gates to life in prison without parole, declining to impose the death penalty.

Closing arguments

Gates’s first argument on appeal is that the trial court committed reversible error by allowing the prosecutor to make two comments, to which Gates objected, during closing arguments. Gates characterizes the first comment as a veiled reference that Gates failed to testify. Such a comment would be a violation of Gates’s rights under the Fifth and Fourteenth Amendments of the United States Constitution as well as the Arkansas Constitution. The other comment made by the prosecutor to which Gates objects involved the prosecutor’s characterization of the testimony of one of Gates’s witnesses, calling that person’s testimony a “lie.”

Regarding the alleged reference to Gates’s failure to testify, the Prosecutor made the following statement during closing arguments:

Prosecutor: He [appellant] entered or remained unlawfully in order to commit an offense punishable by imprisonment, to-wit, a theft to deprive somebody, to take something from somebody else. The pantry was opened. A towel is there on another handle. But, at some point, and we do not know, but he does, he knows—.
Defense Counsel: Ask to approach, Your Honor. {At the bench.) Your Honor, I object to the prosecutor saying only the defendant knows, implying that he did not testify in this case. I would ask for a mistrial at this time.
Prosecutor: I am not implying anything. I am saying he is guilty and he knows.
Defense Counsel: When he says that he knows, that gives—.
Court: He is not alleging that. The Court has give the instruction that the fact that he did not testify is not to be considered in any way.
Defense Counsel: That is correct. The instruction was given. But, by him saying only he knows, he is implying that he knows and that he has failed to testify. I renew my objection for a mistrial.
Court: Denied.
Prosecutor: Your Honor, may I rephrase it, “He knows because he is guilty.”?
Court: Sure.
Prosecutor: Okay. (Bench Conference Concluded.) He knows because he is guilty and because he did this.

As noted, Gates moved for a mistrial on this matter at trial, and the trial court denied it. As a preliminary note, mistrial is an extreme remedy and is proper only when an error is so prejudicial that justice cannot be served by continuing the trial and' when it cannot be cured by an instruction. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). The decision to grant a mistrial is within the sound discretion of the trial court, and will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994); King v. State, 317 Ark. 293, 877 S.W.2d 583 (1994).

In reviewing whether a comment made by a prosecutor during closing arguments is an impermissible comment on a defendant’s failure to testify, a two-step process is involved. First, we determine whether the comment itself is an improper comment on the defendant’s failure to testify. The basic rule is that a prosecutor may not draw attention to the fact of, or comment on, the defendant’s failure to testify, because this then makes the defendant testify against himself in violation of the Fifth Amendment. See Chapman v. California, 386 U.S. 18 (1967); Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). A veiled reference to the defendant’s failure to testify is improper, as well. Landreth, supra; See also Bradley v. State, 320 Ark. 100, 896 S.W.2d 425 (1995).

Should we determine that the prosecutor’s closing argument statement did indeed refer to Gates’s choice not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Griffin v. Calfornia, 380 U.S. 609 (1965)(citing Chapman, supra). Here, defense counsel characterizes the prosecutor’s comment as a “veiled” reference, to Gates’s choice not to testify. We disagree. A careful examination of the statement in context reveals that the prosecutor’s statement asserts only that Gates, as the perpetrator of the crime, had knowledge of his actions. It did not go further and imply anything regarding Gates’s election under the Fifth Amendment not to testify. Also, the jury had already been instructed, prior to closing arguments, that Gates did not have to testify at trial, and his choice not to testify could not be considered against him. We hold that the trial court did not abuse its discretion in not granting Gates’s request for mistrial.

Gates also argues on appeal that the prosecutor improperly commented on the veracity of one of Gates’s witnesses, Norma Stephens, who testified about statements that Gates, her son, had made to her regarding his whereabouts the night of Petty’s murder. In commenting on the defense’s testimony during his closing argument, the prosecutor stated, “It is not just Jason Holt. If you just look at Jason Holt then you do not have that there was a lie as far as where he stayed that night, at Tony Oswalt’s. There was a lie even from Norma Stephens. And I would say this, there are not any inconsistencies in his witnesses’ testimonies.” Gates counsel objected, stating, “He is labeling them as a liar from the witness stand. He is invading the province of the jury on evaluating the evidence in this case.” The trial judge overruled Gates’s objection to this statement on the grounds that the prosecutor had not impermissibly characterized Stephens as a liar.

In response, the State argues in its brief that two versions of the events of that night were presented at trial — the State’s version, with Tony Oswalt testifying that Gates left his house for several hours during the night, and Gates’s version, presented through hearsay testimony by his mother, that Gates had spent the entire night at Oswalt’s house. In essence, the State argues that only one of the versions is true, and therefore someone had to have been lying.

Few of our cases deal with a prosecutor making a statement during closing arguments regarding the veracity of a witness’s testimony. In Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982), a prosecutor vouched for the veracity of one of his witnesses during closing arguments. Upon the defendant’s objection and motion for mistrial, the court denied the motion for mistrial and admonished the jury, pointing out that statements made by counsel were not evidence and should not be regarded as such. On appeal, we noted that the proper test was whether there was a manifest abuse of discretion by the judge in failing to act properly in the matter. The court determined that there had not been an abuse of discretion.

In Cook v. State, 316 Ark. 384, 872 S.W.2d 72 (1994), the defendant objected to a characterization of a witness’s testimony, arguing that the prosecutor was questioning the veracity of a witness. We disagreed and held that the characterization was more of an attempt to shift the burden of proof, and that an instruction by the trial court remedied that wrong.

In Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994), the defendant argued that the trial court abused its discretion in refusing to grant a new trial due to prosecutorial misconduct. In that case, the defendant argued that the prosecutor labeled the defendant’s testimony as “hogwash” and a “lie” in one instance, but then used the statement as truth at a subsequent trial of another man charged in the crime. We held that the prosecutor was under no duty to judge the veracity of witnesses when using their testimony, and allowed the statement to come in.

A trial judge is given broad discretion to control counsel in closing arguments, and this court does not interfere with that discretion absent a manifest abuse of it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Looking specifically at the statements in the instant case, we hold the trial judge did not abuse his discretion in permitting the statements. We also note that Gates did not request a curative instruction to the jury following his objection.

Admission of evidence at trial

In his next point on appeal, Gates argues that the trial court committed reversible error by admitting evidence which he contends indicated that Petty may have been sexually assaulted. The evidence consisted of a photograph, a hair sample, and police testimony. This issue originally arose during pretrial conferences. The original criminal information filed against Gates the day after the murder alleged that he had committed a sexual assault against Petty during the commission of the burglary and murder. After the original prosecutor recused, the new prosecutor amended the information and dropped the charge of sexual assault. Given this amendment, Gates requested that the trial court forbid mention or evidence of a sexual assault at trial as it would prejudice his case. The trial judge, by pretrial order, required the prosecutor to approach the bench before eliciting any testimony regarding a possible assault since that had not been alleged in the information.

Gates contends that during trial the court erred in three instances where it permitted the prosecutor to introduce prejudicial material. First, Gates objects to the trial court’s admission of a photograph of the crime scene because he argues that it was highly suggestive. The picture depicts Petty’s body on her bed, with her nightshirt raised to her abdomen, with her lower torso and legs completely uncovered. Gates argues that the photo suggested to the jury that Petty had suffered a sexual assault during the commission of the burglary and murder. Officer Cook and the other investigating officers described this scene as what they first saw when they entered Petty’s room. Upon Gates’s objection, the trial court allowed the picture into evidence as showing a complete view of the original crime scene. It was the only picture if its kind admitted into evidence.

Admission of photographs is a matter within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. Jones v. State, 329 Ark. 62, 947 S.W.2d 339 (1997). In Jones, we quoted Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997), regarding the admission of photographs, wherein we stated:

We have often stated that the admission and relevancy of photographs is a matter within the sound discretion of the trial court. Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980). Although highly deferential to the trial court’s discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against “promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer.” Id. at 228, 781 S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 S.W.2d at 450.
We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Other acceptable purposes are to show the condition of the victim’s bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Harvey v. State, 292 Ark. 267, 729 S.W.2d 406 (1987). Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The same guidelines that apply to photographs also apply to videotapes. Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993).

In this case, the trial court admitted the photograph to show the position of the body when it was found, and because it was a full view of the unmodified crime scene. According to our precedents, this is a valid and appropriate reason to admit the photograph. At the time of its admission, the jury had not been given any information implying that Petty had been sexually assaulted. The trial judge balanced the photograph’s probative value and any potential prejudice to Gates, then chose to resolve the matter in favor of its admission. The trial court did not abuse its discretion in doing so.

Second, Gates argues that the admission of testimony that the police took pubic-hair samples prejudiced him. It, too, he contends implied that Petty had been sexually assaulted. While Gates argues on appeal that he properly objected to the admission of the evidence, upon review of the record, we disagree. It is evident that Gates did not object to evidence of the taking of the pubic-hair samples when it was first mentioned by Investigator Scott Strickland of the Arkansas State Police. Investigator Strickland, who testified on three different occasions at trial, originally testified on February 16, 1998. In his testimony, Strickland noted that one of the pieces of evidence obtained in the course of the investigation was twenty-five pubic hairs obtained from the defendant. The defense did not object. However, when Investigator Strickland testified the second time on February 18, 1998, defense counsel objected to Investigator Strickland mentioning that pubic-hair samples had been taken. The trial court denied, this objection, finding that the prosecution could introduce the evidence to show that the police conducted a proper investigation, as one of Gates’s theories at trial had been that the police did not conduct a thorough investigation.

We have oft stated that to preserve a point on appeal, a proper objection must be asserted at the first opportunity after the matter to which the objection has been made occurs. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999)(citing Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996)). Here, Gates failed to object at the first opportunity when Investigator Strickland mentioned the evidence of the taking of the pubic-hair samples. As such, Gates waived further objections to this evidence.

Third, Gates argues that testimony from Holt prejudiced him because it mentioned rape. At trial, during Holt’s direct examination, Holt related statements made to him by Bryan White wherein White said to Holt and Gates that Petty had been raped. Gates objected for hearsay, but the trial court allowed the statement in evidence as it was not offered to prove the truth of the matter asserted, but only to confirm the conversation with White. Notably, Gates concedes in his brief that this ruling was proper. However, at trial, Gates stated that the defense would move for a mistrial if the word “rape” was heard again. Gates, however, did not later move for a mistrial, and, in fact, agreed with the trial court that the prosecutor could lead the witness to avoid any further problems with the objectionable word.

Gates now asks this Court to consider this exchange at trial, along with the photograph and hair-sample evidence, to overturn the conviction on the basis of their cumulative effect. In order for a cumulative-error argument to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that the cumulative-error objection was made to the trial court and a ruling obtained. Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998)(citing Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998)). Appellant’s abstract does not reveal that he made a cumulative-error objection at trial and, as such, this issue has not been properly preserved for this appeal. We find no error in the court’s rulings.

Recusal

Gates’s final point on appeal involves the recusal of the trial judge, Circuit Judge Lance Hanshaw. Prior to trial, Gates’s attorneys filed a motion seeking recusal of the trial judge. The defense based its motion on three facts. First, Lisa Elliot, who discovered Miss Petty’s body, is sister to judge Hanshaw’s case coordinator. Second, the judge had “expressed pity” for the victim upon hearing of the crime. Third, the Judge knew the father of the victim’s daughter-in-law, and the judge had presided over an initial guardianship hearing in a case involving the victim. The trial court held a hearing on this recusal motion on August 11, 1997, at which time the judge denied the motion.

The Arkansas Constitution, Article 7, § 20, as well as the Arkansas Code of Judicial Conduct, Canon 3(c), provide that judges must not preside over cases in which they might be interested and must avoid all appearances of bias. Trimble v. State, 336 Ark. 437, 986 S.W.2d 392 (1999)(citing Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993)). In addition, there exists a presumption of impartiality. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). A judge is not required to recuse because of his or her life experiences. Ayers v. State, 334 Ark. 258, 273, 975 S.W.2d 88 (1998)(citing Reel, supra). The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Turner, supra; Trimble, supra. Furthermore, the party seeking the disqualification bears the burden of proving bias or prejudice on the part of the trial court. Turner, supra; See also Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997).

A thorough review of the facts of this case reveals no prejudice on the part of the trial court against Gates. The court’s order denying the recusal request recites that the court had no contact with, the actual witness in the case, that the court’s employee had no contact with the facts of the case and was not a potential witness. The mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias. In the absence of demonstrated bias, we cannot say the trial judge abused his discretion in denying Gates’s request that he recuse. Turner, supra.

The record of the trial has been reviewed in this pursuant to Supreme Court Rule 4-3 (h), and no reversible error has been found.

Affirmed.


text:
    Derek Charles COLEMAN v. STATE of Arkansas
    CR 98-224
    998 S.W.2d 748
    Supreme Court of Arkansas
    Opinion delivered September 16, 1999

      Appellant, pro se.
    No response.
   Per Curiam.

The pro se appellant, Derek Charles Coleman, was convicted by a jury of first-degree murder and was sentenced to life in prison. We affirmed his conviction and sentence in Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). Coleman subsequently filed a pro se petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The Circuit Court denied relief without a hearing. In his appeal from that order, Coleman assigned error to the Circuit Court’s failure to make written findings in the order denying relief. We agreed that the order did not comply with the requirements of Rule 37.3, and we reversed and remanded the case for written findings and if necessary, a postconviction hearing. Coleman v. State, CR 96-883 (June 30, 1997).

The Circuit Court subsequently appointed counsel for Coleman and held a hearing on the claims in Coleman’s petition, which included allegations that his trial counsel was ineffective for waiving a pretrial hearing without Coleman’s consent; failing to move to suppress Coleman’s custodial confession; failing to call several character witnesses; failing to properly investigate the case; failing to ensure a proper competency evaluation; and for failing to ensure proper jury instructions. After the hearing, the Circuit Court entered the following order:

The Court upon a review of the complete record including a postconviction hearing on this date finds that the defendant-petitioner’s claim for Rule 37 relief should be denied.
FINDING OF FACTS
1. The defendants-petitioner was adequately and effectively represented by the Crittenden County Public Defender’s Office.
2. That the defendant-petitioner discussed the presentation of his case and participated in the development of his case.
3. The defendant-petitioner has not demonstrated any factual basis to warrant a new trial or postconviction relief.

Motion denied.

Coleman now appeals from this order. Once again, he contends that the order does not comply with the requirements of Rule 37.3. We agree that the Circuit Court’s order does not comply with the rule’s mandatory requirement of written findings of fact and conclusions of law following a postconviction hearing.

In pertinent part, Rule 37.3(c) provides that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” In Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981), we noted that “[w]e have held without exception that this rule is mandatory and requires written findings.” In Baumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), we made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held.

While the Circuit Court’s order contains the “finding of facts” as set out above, they are conclusory. Specifically, they do not reflect how the trial court applied the standard for ineffective assistance of counsel claims, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), to the allegations that were raised in Coleman’s petition and that were addressed during the postconviction hearing. Accordingly, we must once again reverse and remand the case for findings that comply with the rule.

The absence of written findings, however, does not preclude our review of another claim that Coleman raises in this appeal. Coleman argues that we should reverse the Circuit Court’s denial of postconviction relief because he did not receive effective assistance of counsel during the postconviction hearing. Coleman argues that the right to effective assistance of counsel attached when the Circuit Court appointed an attorney to represent him during the postconviction hearing. We disagree.

It is well settled that there is no right to counsel in a postconviction proceeding. Pennsylvania v. Finley, 481 U.S. 551 (1987). As a result, when the Circuit Court appointed an attorney to represent Coleman at the hearing on the Rule 37 petition, it was merely exercising its discretion pursuant to Rule 37.3. Coleman cannot now complain about his postconviction attorney’s performance.

Reversed and remanded.