author: Otis H. Turner, Justice. Tom Glaze, Justice,

text:
    Bobbi Lynn HOWARD v. STATE of Arkansas
    CR 89-165
    783 S.W.2d 61
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Allen & O’Hern, by: Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Otis H. Turner, Justice.

This appeal is from the denial of a Rule 37 petition in which the appellant alleges, as a basis for relief, ineffective assistance of counsel. In order to prevail, the appellant must show that legal counsel’s performance was deficient and that the deficiency was such that she suffered prejudice to the extent that she was deprived of the opportunity of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). Due to the unusual circumstances existing in this case, we are persuaded that the appellant’s counsel was ineffective to the extent that the petition for relief should have been granted.

Bobbi Lynn Mitchell (now Howard) was, along with her then-husband, charged with kidnapping, rape, aggravated robbery, and theft of property arising out of an extraordinarily brutal series of events. As a result of her guilty pleas, made upon recommendation of her counsel and without any plea bargaining, she was sentenced to twenty years on the kidnapping charge and forty years on the rape charge, with the terms to run consecutively. In addition, she was sentenced to twenty years on the aggravated robbery count and to four years for theft of property, both to run concurrently with the kidnapping and rape charges.

The appellant subsequently filed a motion to set aside the plea, which the trial court denied. Thereafter, this Rule 37 petition was filed, and from its denial comes this appeal.

Upon her arrest, the appellant retained an attorney of her own choosing— the same attorney she had employed in a recent domestic relations matter. It would serve no useful purpose to recite her all of the details, except to say that the appellant’s attorney, admittedly relying on outdated Arkansas statutes, convinced his client that, upon her plea of guilty, the court would possibly impose sentence under the provisions of the Alternative Service Act, Ark. Code Ann. §§ 16-93-501 to-510 (1987 &Supp. 1989); that all or a portion of her sentence would likely be suspended; and that there was a reasonable possibility that she would not have to spend more than ninety days in prison before being released on parole.

However, three of the four charges to which the appellant pled guilty are class Y felonies, and suspension of sentence or probation would not be available. Ark. Code Ann. § 5-4-301(a)(1) (1987); Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). Legal counsel admitted, at both the hearing to set aside the guilty pleas and the hearing on the Rule 37 petition, that at the time he advised the appellant he was unaware of the current statutory restrictions on sentencing and parole.

The erroneous advice of legal counsel, standing alone, would be sufficient to establish the first prong of the Strickland test — the deficiency of legal counsel’s performance. However, those facts would not necessarily constitute prejudice justifying the granting of the relief sought.

But here, the record reveals that during the period of representation by her attorney, the appellant was undergoing psychiatric counseling, experiencing a problem with alcohol abuse, and finally, having sexual relations with her lawyer, both at his office and elsewhere.

In light of these facts, we are convinced that the extraordinary influence by the appellant’s attorney, to her prejudice, proved instrumental in her entering a guilty plea. That plea should be set aside.

Reversed and remanded.

Glaze, J., dissents.

Tom Glaze, Justice,

dissenting. I respectfully dissent. The majority opinion holds that mere error by counsel in giving advice to a defendant is sufficient to establish that counsel’s performance was deficient. In doing so, it dilutes the test in Strickland v. Washington, 466 U.S. 668 (1984), for determining ineffective assistance of counsel.

The Strickland court held that a guilty plea is attended by a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance and that, if an error was made by the attorney, it must be one of such seriousness that the defendant was denied a fair proceeding, the outcome of which can be considered reliable. We have consistently followed Strickland in all cases where a collateral attack was made on a judgment by means of an allegation of ineffective assistance of counsel, including those cases where the alleged error by counsel concerned advice on parole eligibility. Pennington v. State, 294 Ark. 185, 741 S.W.2d 266 (1987); Garmon v. State, 290 Ark. 371, 719 S.W.2d 699 (1986); Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986).

An error in counsel’s advice to the defendant which does not interfere with the defendant’s ability to voluntarily and intelligently choose to plead guilty is not enough to establish that counsel’s performance was deficient. But, even if it can be said that a serious error was made in this case in counsel’s advice on parole eligibility, a claim of prejudice must be supported by facts which the trial judge as trier of fact finds credible.

Here, the defendant signed the plea agreement, and subsequently testified that she listened closely when the trial judge went over the agreement with her. She further testified that the court explained to her the range of penalties on each count. Nevertheless, petitioner now contends that she was relying entirely on counsel’s promise that she would not serve an extended sentence. The trial court, however, found her testimony unworthy of belief. This court should affirm the trial court’s findings as they were not clearly erroneous. Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981). The court’s failure to do so breaks with all precedent this court has handed down when ruling on a petitioner’s claim that she or he erroneously relied on counsel’s advice concerning parole eligibility.

Unfortunately, counsel, in this case, had an inappropriate relationship with his client at the time he represented her. Counsel’s misbehavior has affected, I think wrongfully, this court’s decision. While counsel’s relationship with petitioner is an appropriate subject matter for the Committee on Professional Conduct, this court’s review should focus on counsel’s legal conduct and whether there was factual substantiation to establish prejudice to the petitioner.

The court’s decision today reduces the petitioner’s burden of proof for establishing that counsel’s performance was deficient and discounts the trial court’s findings on the witness’s credibility, a factor of great significance in this case. It will also, I believe, foster claims of ineffective assistance of counsel grounded on simple mistakes or indiscretions by counsel which are not central to the decision to admit guilt. In this way, the stability of pleas of guilt will be undermined.

I would affirm.


source: Caselaw Access Project

author: Bill E. Ross, Special Justice.

license: Public Domain

text:
    John and Mary Jim RAMSEY v. DEPARTMENT OF HUMAN SERVICES
    89-56
    783 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Pulliam, Davis & Wright, by: Nelwyn Davis, for appellant.

      James B. Barnhill, Deputy General Counsel, for appellee Department of Human Services.
   Bill E. Ross, Special Justice.

This is an appeal by the parents (Ramseys) of a juvenile who was admitted to Rivendale Hospital in Benton, pursuant to a Juvenile in Need of Supervision (JINS) order. The appellee, Arkansas Department of Human Services (Department), denied retroactive Medicaid benefits following an administrative hearing. The circuit court reviewed and affirmed. On appeal, the Ramseys argue that the circuit court should have reversed what they claim is the Department’s arbitrary application of its “spend-down” procedure in denying retroactive Medicaid benefits. We do not agree with the argument and affirm.

The Congress, in 1965, established the Medicaid Program, which is a medical assistance program for people “whose income and resources are insufficient to meet the costs of necessary care and services.” 42 U.S.C. § 1396-1396k (Supp. II1982); Atkins v. Rivera, 477 U.S. 154, 156 (1986). Medicaid benefits are provided automatically for the “categorically needy,” persons who receive welfare payments under the Aid for Dependent Children (AFDC) and Supplemental Security Income (SSI) programs. If a state participates in the Medicaid program, it must provide coverage for the “categorically needy.” 42 U.S.C. § 1396a (a)(10)(A) (Supp. II 1982).

Congress also enacted an optional program for the “working poor” who were deemed “medically needy.” The “medically needy” become eligible for medicaid benefits when their income and assets are reduced by incurred medical expenses that reduce their income and assets below certain established levels. This then puts them in roughly the same position as the “categorically needy.” Public Health, 42 C.F.R. §§ 435.301, 435.308 (1987); 42 U.S.C. § 1396a(a)(17) (Supp. II 1982). Arkansas has elected to include this optional plan under its State Medicaid Plan. Therefore, it must comply with the requirements imposed by the federal Medicaid statutes. Atkins v. Rivera, supra; 42 U.S.C. § 1396a, supra.

The Ramseys admitted the juvenile to Rivendale on February 12,1987. The Pulaski County Probate Court entered a JINS order on February 27, 1987, stating that the placement was appropriate and should be continued. Rivendale undertook, with the parents’ consent, the filing of a “medically needy” application for Medicaid. The application showed that the juvenile had no income. It also showed that a resource, in the form of a Merrill-Lynch account containing approximately $5,000.00, existed in Mrs. Ramsey’s maiden name as custodian for the juvenile. The Department’s Saline County office received the application on March 9, 1987, and denied it on March 16, 1987. Denial was based on an initial determination that the Merrill-Lynch account was a resource available to the juvenile in excess of the Medicaid $1,800.00 resource eligibility limit. The parents were notified on March 23, 1987, and they immediately filed an appeal for an administrative hearing challenging the determination that the account was available to the juvenile.

Also on March 23, the Department’s county office, at the Ramseys’ request, made a written inquiry to the Department’s Medicaid Section for further clarification of the resource status of the Merrill-Lynch account. On March 30,1987, the Medicaid Section responded and stated that the account was still considered a resource available to the juvenile. On April 23, 1987, the Department recognized expenses paid from the Merrill-Lynch account that reduced it to the $ 1,800.00 resource eligibility limit. The juvenile’s Medicaid eligibility was established effective as of May 1,1987. Approximately $36,000.00 in medical expenses had been incurred between the juvenile’s hospital admission in February and his effective Medicaid eligibility on May 1.

The Ramseys, in their March 23, 1987, request for an administrative hearing, challenged the availability of the Merrill-Lynch account to the juvenile. However, the principal issue at the July 30, 1987, administrative hearing was whether the Department should have applied the same “spend-down” procedure to the Merrill-Lynch resource account that was used by the Department in determining eligibility for “medically needy” applicants.

Under the “medically needy” procedure, applicants are permitted to “spend down” their excess income for medical expenses. The applicants are considered eligible for Medicaid while spending down their excess income. The policy objective is to assist the working poor by providing some Medicaid assistance after their medical expenses reduce available income to the Medicaid income eligibility limit.

On the other hand, the Department requires applicants with excess resources to reduce their resources to the resource eligibility limit of $ 1,800 by paying qualifying expenses. Eligibility is not established, and Medicaid assistance is not provided at all, until the resource eligibility limit has been reached. The policy objective is to deny benefits to persons with resources until the applicant’s wealth in hand is reduced to a certain eligibility limit by requiring the applicant to pay qualifying expenses.

The Ramseys claim that the Department acted arbitrarily by not establishing Medicaid eligibility and by permitting a “spend-down” of the Merrill-Lynch account to the $1,800.00 resource eligibility limit in the same manner that an applicant with excess income can become eligible by a “spend-down” to the income eligibility limit. Had the Department acted as the Ramseys claim it should have acted, Medicaid eligibility would have been established at the latest on, or shortly after, February 27, 1987, when the probate court entered its JINS order. Medicaid then would have covered all allowable medical expenses after the Merrill-Lynch account had been reduced to the $1,800.00 resource eligibility limit.

The record indicates, however, that on March 23,1987, the Ramseys did contest the initial Department determination that the Merrill-Lynch account was a resource available to the juvenile and that they conceded the point in April 1987 by then making qualifying expenses to reduce the account to the $1,800.00 resource eligibility limit. Thus, the Ramseys, in effect, waived the opportunity to follow the Department’s resource eligibility procedure at the outset by not immediately reducing the account in order to quickly establish Medicaid eligibility. Had they done so, they subsequently could have contested the availability of the Merrill-Lynch account to the juvenile and claimed reimbursement for the expenses made to reach the $1,800.00 resource eligibility limit.

Accordingly, since the Ramseys didn’t reduce the resource account to the qualifying limit, the issue to be resolved is whether the Department is required by law to apply to the Ramseys’ excess resources the same “spend-down” procedure that the Department applies to an applicant’s excess income, which permits Medicaid eligibility during the “spend-down” to the income eligibility limit.

The question of different treatments by a state under the Equal Protection Clause covering “Economics and Social Welfare classifications” turns on whether the state has a reasonable basis for its actions, and the state does not violate the clause simply because the classifications made by its laws are imperfect. Dandridge v. Williams, 397 U.S. 471 (1971).

The federal regulations that undergird the Arkansas Medicaid Plan and its implementing state policies and regulations provide separately for determining “medically needy” income eligibility, codified in Public Health, 42 C.F.R. §§ 435.831, 435.832 (1987), and for determining “medically needy” resource eligibility, codified in Public Health, 42 C.F.R. § 435.845 (1987). Similarly, the federal regulations governing “Optional Coverage of the Medically Needy,” provide in Public Health, 42 C.F.R. § 435.301 (a)(1)(ii) (1987) for the provision ofMedicaid to individuals with excess income provided, “. . . [they] have incurred medical expenses at least equal to the difference between their income and the applicable income standard. . . .” There is no similar “spend-down” provision for resources in the Code immediately following Public Health, 42 C.F.R. § 435.301(a)(2) (1987) and in the sections cross-referenced therein.

There is one exception for a resource “spend-down” under the “Section 1634 Agreement” between Arkansas and the Social Security Administration. Employees’ Benefits, 20 C.F.R. §§ 416.1240—416.1246 (1989). This exception applies only to individuals who meet all but the resource requirements for the receipt of Supplemental Security Income (SSI). These individuals have six months to dispose of non-liquid resources, with all or a portion of the proceeds to be applied to Medicaid assistance rendered during the six month period. 20 C.F.R. §§ 416.1240—416.1246, supra. The Ramseys’ juvenile is not enumerated among the categories targeted for this exception. In any event, the Ramseys’ Merrill-Lynch account is not a non-liquid resource.

The pertinent federal statutes and regulations and their application through the Arkansas State Medicaid Plan establish no authority in any category for a “spend-down” of excess resources that is similar or identical to the expressly authorized “spend-down” of excess income, with the exception of the inapplicable provision noted above.

On appeal, we give the evidence its strongest probative force in favor of the ruling of the administrative agency. Arkansas Dept. of Human Services v. Simes, 281 Ark. 81, 661 S.W.2d 378 (1983).

The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong, and the court will not substitute its judgment for that of an administrative agency unless the administrative agency’s decision is “arbitrary and capricious.” Arkansas Contractors License Bd. v. Butlers Constr. Co., Inc. of Barling, Arkansas, 295 Ark. 223, 748 S.W.2d 129 (1988); Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).

On appeal, the Ramseys rely on the point that the Department acted arbitrarily in applying its resource “spend-down” policy in denying retroactive medical benefits that it approves in “medically needy” income cases. Administrative action may only be regarded as arbitrary when it is not supportable on any rational basis, and something more than mere error is necessary to meet the test. First Nat’l Bank of Fayetteville v. Smith, 508 F.2d 1371 (8th Cir. 1974), cert. denied, 421 U.S. 930 (1975). The party challenging an action under this standard must prove that it was a willfull and unreasoning action, without consideration and with a disregard of the facts or circumstances of the case. Arkansas State Bd. of Nursing v. Long, 8 Ark. App. 288, 651 S.W.2d 109 (1983).

The rationale behind treating resources and income differently is that income merely restores resources to their previous levels. It is accrued day by day in return for labor. On the other hand, resources in place, or acquired, are viewed as wealth in hand that increases the recipient’s well-being. A rational basis, therefore, can be said to exist for this distinction in treating resources and income differently. See LaMadrid v. Hegstrom, 830 F.2d 1524 (9th Cir. 1987); Dandridge v. Williams, supra.

We find that the Department’s construction of the pertinent authorities precludes a finding that it acted contrary to law. Accordingly, its action is rational and not willfull and unreasoning. Our required review of the entire record, as noted in Alcohol Beverage Control v. R.C. Edwards Distrib. Co., Inc., 284 Ark. 336, 681 S.W. 2d 356 (1984), shows that, with regard to the facts and circumstances of this case, there is substantial evidence, as well as a correct application of the law, to support the Department’s decision to deny retroactive Medicaid benefits to the Ramseys’ minor.

Affirmed.

Hays, J., not participating.


author: Per Curiam.

text:
    Jessie JORDAN, Administratrix of the Estate of Homer Jordan, Deceased v. WHITE RIVER MEDICAL CENTER
    CA 89-514
    783 S.W.2d 836
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Gary Vinson, for appellants.

      Barrett, Wheatley, Smith & Deacon, by: Paul D. McNeill, for appellee.
   Per Curiam.

The appellant obtained an extension of time to file the record from the trial court on December 11, 1989. The time expired that day to file the record with us. The record consisted only of pleadings and orders in the circuit clerk’s office.

The record was ultimately filed December 18, 1989. The appellee moves to dismiss the appeal citing the jurisdictional limitations on filing transcripts, Rule 5(a) of the Arkansas Rules of Appellate Procedure, and the requirements of Rule 5(b) of those rules.

Rule 5(b) reads in pertinent part:

In cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, upon finding that a reporter’s transcript of such evidence or proceeding has been ordered by appellant, and upon a further finding that an extension is necessary for the inclusion in the record of evidence or proceedings stenographically reported, may extend the time for filing the record on appeal, but the order of extension must be entered before the expiration of the period for filing as originally prescribed or extended by a previous order.

It is conceded this record contained no stenographically reported portions. The trial court was without authority to extend the time to file the record, and since the record was not filed within 90 days under Rule 5(a), the appeal is dismissed.

The rule is explicit and for good reason. Otherwise, a lawyer could delay any case for seven months for no good reason. A record that only consists of pleadings and documents can easily be filed within 90 days. The attorney appealing, who delays filing of the record, does so at his peril.

We have always, as near as possible, been strict on this question of jurisdiction. The burden is placed on the appellant’s attorney to prepare and file the appeal. See Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983). Attorneys know this, or quickly learn it. Even enforcement of a rule is far more just than selectively granting exceptions.

Motion to dismiss granted.

Turner, J., dissents.


text:
    Jerry KELLY v. STATE of Arkansas
    RC 89-14
    783 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Terry Crabtree, for appellant.

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

We have this matter before us on appellant’s motion for belated appeal. On April 15, 1987, appellant pled guilty to three counts of rape and a controlled substance charge for which he received forty years, twenty years to be suspended upon his good behavior. Appellant filed a pro se Rule 37 petition which was denied on September 23, 1987. Appellant and his mother then hired counsel on September 24, 1987. For some reason, appellant did not appeal the denial of his Rule 37 petition. Instead, he filed a petition for writ of habeas corpus in the United States District Court, Eastern District. That court dismissed appellant’s petition without prejudice, and in doing so, recognized that the time for filing a motion for belated appeal had not expired. Appellant subsequently filed his belated appeal motion with this court on March 22,1989, which was one day within the eighteen-month period required for filing such motions under A.R.Cr.P. Rule 36.9.

A motion for belated appeal will be granted if the appellant can demonstrate good cause in not filing a timely notice of appeal. Conley v. State, 286 Ark. 388, 691 S.W.2d 868 (1985). In support of his motion, appellant cites our cases that reflect that, when a Rule 37 motion is denied, the court clerk is required to notify the appellant of the court’s action and if the clerk neglects to do so, the appellate court will grant a belated appeal. See Pennington v. State, 286 Ark. 503, 697 S.W.2d 85 (1985); Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984); see also A.R.Cr.P. Rule 37.3(d). When the record is silent on whether the clerk complied with the rule and the Attorney General in his response to a motion for belated appeal is unable to provide the clerk’s affidavit or some other proof that the order was mailed, it will be assumed that the petitioner was not notified of the denial of his motion. Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985).

Here, appellant’s motion and attached affidavit alleged that he had never been notified of the court’s denial of his Rule 37 petition; however, someone, by pen, lined through those assertions denying receipt of notice, so we remanded this matter to the trial court for it to conduct a hearing to determine why the changes or alterations were made and whether notice had been given appellant by the clerk under Rule 37.3(d). Kelly v. State, 298 Ark. 465, 768 S.W.2d 533 (1989). On August 30,1989, the trial court conducted a hearing and the parties stipulated the appellant had been timely notified that his Rule 37 petition had been denied, and he had received notice on the approximate date he had hired his counsel.

In sum, appellant’s original allegations that he had never received notice of the court’s denial of his Rule 37 petition were shown to be untrue. As a consequence, he has failed to show good cause for his having failed to file a timely notice from the trial court’s order entered September 23, 1987.

Alternatively, appellant suggests that the counsel he hired on September 24,1987, should have pursued the appeal and that counsel’s having failed to do so was' ineffective assistance of counsel which should entitle appellant to a belated appeal.

We find no merit to the contention in that the right to effective assistance of counsel under the Sixth Amendment does not extend to collateral attacks on a judgment. See Pennsylvania v. Finley, 481 U.S. 551 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).


text:
    Nylon VICK v. STATE of Arkansas
    CR 89-2
    783 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered February 5, 1990

      Pro Se Rule 37 Petition, Motion for Transcript, and Motion for Appointment of Counsel; petition and motions denied.

      Appellant, Pro Se.

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

The petitioner Nylon Vick was convicted of two counts of rape and one count of kidnapping and was sentenced to one hundred and forty years imprisonment. His convictions were affirmed upon appeal. Vick v. State, 299 Ark. 25, 770 S.W.2d 653 (1989). The petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37.

The petitioner claims first that his attorney was ineffective. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

The victim testified that the petitioner held her in his house overnight and raped her several times. She also testified that he forced her to take baths at his house. The petitioner now alleges that his attorney was ineffective because, had he investigated the case prior to trial, he would have learned that there were no utilities turned on at the house, and therefore, the petitioner could not have forced the victim to take baths. The petitioner argues that had his counsel investigated he could have proven that the victim committed perjury. Even if it was proven that the victim was not forced to take baths, it is very unlikely that that fact alone would cast doubt on the verdicts since there was clear testimony that the petitioner held the victim and raped her. Therefore, the petitioner’s allegations, even if true, would not undermine confidence in the outcome of the trial, and that is what is required. Strickland v. Washington, supra.

The petitioner also claims that the victim perjured herself at least twenty times and the defense counsel allowed the perjury to the petitioner’s prejudice. The petitioner fails to say about what the victim lied; therefore, the allegation is conclusory and does not warrant an evidentiary hearing. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

At trial the prosecutor repeatedly questioned the petitioner on cross-examination concerning why he did not tell the police his exculpatory version of the facts which he was testifying to at trial when he was arrested or afterwards. The petitioner answered that, “the police did not ask me,” and “[m]y lawyer had already warned me that I didn’t have to make a statement unless I wanted to.” After the prosecution asked numerous questions pertaining to this matter, the defense counsel objected. The trial court sustained the objection. On appeal, this court did not consider the petitioner’s claim that the prosecution violated his fourteenth amendment right to a fair trial by asking him about his post-arrest silence since petitioner received all the relief from the trial court that his attorney requested. This court stated that since the petitioner requested neither an admonition nor a mistrial, no reversible error occurred. The petitioner argues now that his attorney was not reasonably competent in failing to move for a mistrial or a dismissal.

In Doyle v. Ohio, 426 U.S. 610 (1976), the United States Supreme Court held that it is fundamentally unfair and a deprivation of due process to allow an arrested person’s silence to be used to impeach an explanation subsequently offered at trial. However, it is possible that where the defendant’s silence is mentioned by the state, it is harmless error if there is no prosecutorial focus by repetitive questioning or arguing on a defendant’s silence and where the evidence of guilt is overwhelming. See Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982). In this case the error was harmless because a defense objection was sustained and because of the overwhelming evidence against the petitioner. This court cannot say that defense counsel’s failure to object to the questioning was so critical, or that his failure to move for a mistrial or dismissal was so critical as to undermine confidence in the outcome of the trial. See Strickland v. Washington, supra.

In addition to his argument that his counsel was ineffective for failure to halt the prosecution’s pursuit of his failure to exculpate himself, the petitioner argues that the prosecutor engaged in prosecutorial misconduct by questioning the petitioner about his failure to have told the police the exculpatory story he told on the witness stand. This argument was raised on appeal and cannot be raised again in Rule 37 proceedings. Rule 37 does not provide an opportunity to reargue points settled on appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981).

The petitioner claims too that the prosecutor should have been required to furnish expert testimony from a physician, who had examined the victim since the petitioner claimed at trial that he did not rape the victim. This argument should have been raised at trial and on appeal. Since it was not and is not so fundamental as to render the judgment of conviction void, it will not be considered. White v. State, 290 Ark. 77, 716 S.W.2d 203 (1986). Moreover, the testimony of a rape victim is sufficient to support a conviction for rape. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981).

The petitioner claims next that his convictions for two counts of rape and one count of kidnapping violate the double jeopardy clause of the constitution because each of the counts arose out of the same episode. One act can provide a basis for more than one charge. In this case, the petitioner kidnapped the victim and forced her to participate in several acts of intercourse. Therefore, separate convictions for each of these acts will stand. Kidnapping and rape are not lesser included offenses of one another since each crime requires a different element of proof. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986).

The petitioner has also filed a motion asking that he be appointed counsel. Since post-conviction proceedings under Rule 37 are civil in nature there is no constitutional right to appointment of counsel to prepare a petition under Rule 37. Fretwell v. State, 290 Ark. 221, 718 S.W.2d 109 (1986). Rule 37.3 provides for the appointment of counsel by the circuit court for the hearing if one is granted if the petitioner is unable to afford counsel. Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988).

The petitioner, who states that he is indigent, asks this court to provide him with a copy of the complete record of the transcript related to his proceedings so that he may use it to amend the matters herein.

A petitioner is not entitled to a free copy of the trial record or other material on file with this court unless he demonstrates some reasonably compelling need for specific documentary evidence to support an allegation contained in a petition for post-conviction relief. See Austin v. State, 287 Ark. 256, 697 S.W.2d 914 (1985); sec Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971); see also United States v. Losing, 601 F.2d 351 (8th Cir. 1979). Indigency alone does not entitle a petitioner to photocopies at public expense. Washington v. State, 270 Ark. 840, 606 S.W.2d 365 (1980). Since the petitioner has cited no specific compelling reason requiring these copies, the motion will be denied.

It should be noted that when an appeal has been lodged in either this court or the Court of Appeals, the appeal transcript remains permanently on file with the Clerk of the Supreme Court. Counsel'may check a transcript out through the Clerk’s office for a period of time, and persons who are not attorneys may review a transcript in the Clerk’s office and photocopy all or portions of it. An incarcerated person desiring a photocopy of pages from a transcript may write this court and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost of photocopying. Austin v. State, supra.

Petition and motions denied.


author: Jack Holt, Jr.,

text:
    Michael Dale BOWDEN v. STATE of Arkansas
    CR 89-162
    783 S.W.2d 842
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Gardner, Putnam & Miner, by: Buford Gardner and John Putman, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr.,

Chief Justice. At his first trial, the appellant, Michael Dale Bowden, was convicted of capital murder and sentenced to life imprisonment without parole. He appealed, and we reversed on the basis that the trial court erred in admitting into evidence lineup identification testimony by a witness inasmuch as the lineup was conducted in violation of Bowden’s sixth amendment right to counsel. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). Upon retrial, Bowden was again convicted of capital murder and sentenced to life imprisonment without parole. As his sole argument on appeal, Bowden contends that the trial court’s restriction of his cross-examination of a witness for the prosecution denied him his sixth amendment right to confront the witness. We disagree and affirm.

As the facts are essentially the same as those in the first appeal, we limit our review to the matter in controversy.

Tom Duck, Captain in charge of the Investigation Division of the Harrison Police Department at the time of the murders of Johnny Hefley and Cindy Bowden, was called as a witness for the State. On direct examination, Captain Duck testified concerning his investigation soon after the incident. He related that the victims were shot with a semiautomatic weapon at close range, that a murder weapon was never found, that fingerprints were not made at the crime scene, and that after conducting several interviews, he was able to identify a possible suspect, Michael Dale Bowden. The prosecutor then asked, “The fact that you located a possible suspect at that point, did that mean that you ceased all effort to investigate other possible suspects?” Duck answered, “No, sir.”

Later in Captain Duck’s testimony about his investigation, the following exchange occurred:

Prosecutor: At that point or any point in the investigation, did you completely eliminate the possibility of the willingness to investigate other possible suspects other than the one that I think you’ve indicated you had focused on?
Mr. Duck: At that point, we felt we had the proper suspect.
Prosecutor: Prior to that time, had there been a concerted effort to check out other possible suspects? [Emphasis added.]
Mr. Duck: Yes, sir. We had made various trips in outlying counties and following up possible leads and information phoned in to different agencies and what have you and they were all negative with result. [Emphasis added.]

During the course of cross-examination, Duck was asked about other suspects:

Defense counsel: And you also said that during the course of your investigation, not only did you investigate here, but you all also investigated some other suspects, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: Were there other suspects in the case?
Mr. Duck: Possibly not suspects, but possible witnesses.
Defense counsel: Were there other circumstances that led you all to be suspicious of someone? [Emphasis added.]
Mr. Duck: Yes, sir, there was.
Defense counsel: And what were the circumstances that had caused you to be suspicious? [Emphasis added.]

At this point, the prosecutor objected, and the following dialogue occurred:

Defense counsel: Your Honor, he opened it up.
The Court: The Court is going to sustain the objection.
Defense counsel: Your Honor, we would like to make a proffer.
The Court: You may do so after I’ve released the jury.

After the jury was released, defense counsel proffered the following testimony:

Defense counsel: Mr. Duck, during the course of your direct examination. . . , you testified as to your role in the investigation of the deaths of Cindy Hefley Bowden and Johnny Hefley, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: And during the course of that testimony, you indicated that one of the things you did was look into other possible leads and suspects, is that correct?
Mr. Duck: Yes, sir.
Defense counsel: Okay. I want to ask you, what other — what steps did you — well, first, let me ask you, what other leads or possible suspects did you have at that time?

Captain Duck then related that he investigated rumors involving an incident in Newton County, one year prior to Johnny Hefley’s and Cindy Bowden’s murders, in which Terry Ricketts killed Roger Nichols. He explained that some evidence in the case indicated that Johnny Hefley supplied the gun used by Ricketts and that Cindy Bowden was the object of the incident.

The testimony continued:

Defense counsel: I understand that, but part of your investigative function was to check out rumors in regard to that?
Mr. Duck: Yes, sir.
Defense counsel: Because of —
The Court: Now, we’re getting into — the Court wants to understand again what my ruling has been here. We’re dealing with both hearsay and relevancy. What you’re eliciting right now —
Defense counsel: Your honor, at this point, the point I’m trying to make is, this officer testified on direct examination that they had other leads and other suspects and that they had checked those out. We have the right to confront this witness about those assertions. At this point, all I’m trying to do is establish what it was he was trying to check out. I haven’t gotten to the point in order to establish — [Emphasis added.]
Defense counsel: Officer, were you involved in that investigation?
Mr. Duck: Yes, sir, I was.
Defense counsel: What did you do specifically in regard to that?
Mr. Duck: Mainly I followed Lieutenant Cornett’s lead and we interviewed various witnesses, myself being a second investigator, in that area in Newton County.
Defense counsel: Did you ascertain whether or not any of those persons that you interviewed had access to a blue Ford pickup truck on the night of the 18 th or 19th of April ?
Mr. Duck: I don’t recall, Mr. Gardner.
Defense counsel: Did you attempt to locate the whereabouts of any persons you interviewed on the night of the 18th or 19th?
Mr. Duck: As I recall, part of the standard interview Lieutenant Cornett used was to establish where individuals were that weekend night and what they were doing before and then after this incident in Harrison.
Defense counsel: Did you fingerprint any of those individuals?
Mr. Duck: No, sir.
Defense counsel: Is there anything else that you did in regard to this investigation insofar as checking leads and talking to suspects out of that, the Newton County case that occurred about a year before that?
Mr. Duck: Not that I recall other than running down various rumors.
Defense counsel: That’s all.

The sixth amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination. Delaware v. Fensterer, 474 U.S. 15 (1985); Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987). See also Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). In fact, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673 (1986); Davis v. Alaska, 415 U.S. 308 (1974); Winfrey v. State, supra.

However, the right to cross-examine the prosecution’s witnesses is not unlimited. United States v. Cameron, 814 F.2d 403 (7th Cir. 1987). Trial judges have wide latitude insofar as the Confrontation Clause is concerned “to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, supra. The Confrontation Clause “guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, supra; Ohio v. Roberts, 448 U.S. 56 (1980).

In order to determine whether the restrictions placed on the right to cross-examine a witness rise to the level of a constitutional deprivation, a reviewing court must look “to the record as a whole” and resolve whether the restrictions that the trial court imposed on the defendant’s cross-examination created a substantial danger of prejudice by depriving the defendant of a meaningful opportunity to elicit available, relevant information that was likely to effectively impeach the credibility of the witness. See United States v. Cameron, supra; United States ex rel. Blackwell v. Franzen, 688 F.2d 496 (7th Cir. 1982), cert. denied, 460 U.S. 1072 (1983). In considering whether there has been a deprivation of meaningful cross-examination in violation of the Confrontation Clause, courts have considered various factors, such as whether an effective cross-examination would have been crucial to the defense. See United States v. Kaplan, 832 F.2d 676 (1st Cir. 1987), cert. denied, 485 U.S. 907, 108 S.Ct. 1080 (1988).

In Davis v. Alaska, supra, the trial court refused to allow the defendant, on cross-examination, to ask a key government witness if the witness had been on probation for burglary at the time he provided the information to the police that led to the arrest of the defendant. The United States Supreme Court reversed the conviction on the basis that the trial court had violated the defendant’s right to confrontation because the restrictions it had imposed made it impossible for the defendant to effectively impeach the witness by showing bias.

In Delaware v. Van Arsdall, supra, the trial court prohibited all inquiry into the possibility that a witness for the prosecution was biased as a result of the State’s dismissal of his pending public drunkenness charge. The United States Supreme Court held that by “cutting off all questioning about an event that the State conceded had taken place and [an event] that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony,” the trial court violated the defendant’s rights secured by the Confrontation Clause.

The case at bar is readily distinguishable from Davis and Van Arsdall. First of all, Captain Duck’s testimony was not a consequential part of the prosecution’s case, and therefore an effective cross-examination was not critical to the defense. The purpose of Duck’s testimony was merely to show the progress of the initial stages of the investigation, including the fact that Bowden was identified as a suspect. Police investigators Gary Keeter, Wayne Cone, and Glen Redding also testified at length concerning most of the same details.

Secondly, it is obvious from examining the proffered testimony by Duck that it, at the most, was marginally relevant. More importantly, if permitted, it likely would have confused the issues in the case. Duck testified concerning his investigation of the various rumors involving an incident in Newton County, prior to the murders of Johnny Hefley and Cindy Bowden, in which Terry Ricketts killed Roger Nichols. He explained that some evidence in that case indicated that Johnny Hefley supplied the gun used by Ricketts and that Cindy Bowden was the object of the incident.

Granted, Captain Duck’s testimony on cross-examination might have had the effect of showing that his recollection of the investigation was slight and that there was not a concerted effort to investigate other suspects. Notwithstanding, the issue of Duck’s investigation of other suspects was not an important part of the State’s case against Bowden.

The likely effect of this testimony would have been to invite the jury to speculate that someone else committed the murders. However, there was no evidence at trial linking other suspects to the actual commission of the murders. See Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985).

Based upon the foregoing, we conclude that the restrictions the trial court imposed on the scope of Bowden’s cross-examination were proper and that Bowden was not denied his constitutional right to confront the witness against him.

Pursuant to Ark. Sup. Ct. R. 11(f), we have examined all other objections made at trial and find no reversible error.

Affirmed.


text:
    CDI CONTRACTORS, INC. v. GOFF STEEL ERECTORS, INC.
    89-298
    783 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Friday, Eldredge & Clark, by; James C. Baker, Jr., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellee.
   Jack Holt, Jr.,

Chief Justice. The appellant, CDI Contractors, Inc. (CDI), an Arkansas corporation with its principal place of business located in Pulaski County, Arkansas, is the general contractor for an office project in Jackson, Mississippi. CDI awarded to the appellee, Goff Steel Erectors, Inc. (Goff), a foreign corporation not qualified to do business in Arkansas, a subcontract to install reinforcing steel in the office project.

CDI maintains that Goff failed to perform its obligations under the subcontract and filed suit in the Pulaski County Circuit Court. The trial court dismissed the complaint on the basis that Goff was not subject to the personal jurisdiction of the Arkansas courts. The trial court further found that, even if it did have jurisdiction pursuant to the long-arm statute, Pulaski County was not the proper venue for the suit.

CDI appeals from that order on two points of error: 1) that the trial court erred in dismissing its complaint since the trial court does have personal jurisdiction over Goff, and 2) that the trial court erred in dismissing its complaint since Pulaski County is the proper venue for this case.

We disagree and affirm the trial court.

CDI contends that Goff is subject to the personal jurisdiction of the Arkansas courts. Ark. Code Ann. § 16-4-101(C)(1) (1987) provides for personal jurisdiction based upon conduct and states that “[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s: (a) Transacting any business in this state . . . .”

The purpose of this section is to permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by due process. Martin v. Kelley Elec. Co., 371 F.Supp. 1225 (E.D. Ark. 1974); SD Leasing, Inc. v. Al Spain & Assoc., Inc., 277 Ark. 178, 640 S.W.2d 451 (1982). We noted in SD Leasing, Inc., supra, that:

International Shoe Co. v. Washington, 326 U.S. 310 (1945) set out the due process requirements for personal jurisdiction: In order for a valid judgment to be rendered against a nonresident defendant not served within the forum state, due process requires that “certain minimum contacts” exist between the nonresident and the state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

CDI’s reliance on SD Leasing, Inc., supra, however, is misplaced. In SD Leasing, Inc., the appellee, a Florida corporation, defaulted on a non-cancelable lease agreement between it and the appellant, SD Leasing, Inc., an Arkansas corporation, and the appellant filed suit in Arkansas to recover the balance due. The trial court granted the appellee’s motion to dismiss for lack of personal jurisdiction; we reversed on appeal on the basis that there were sufficient minimum contacts to meet due process requirements for personal jurisdiction of the non-resident appellee.

The contacts were sufficient in SD Leasing, Inc., where (1) the lease, although executed in Florida, was mailed to the appellant in Arkansas where it was reviewed, approved, and accepted, (2) the appellee mailed its monthly payments directly to appellant in Arkansas, as well as two memos informing the appellant it was going out of business, (3) the lease agreement specifically provided that the lease “shall be governed by and construed under the laws of the State of Arkansas,” and (4) the lease provided that in the event of default, the lessee would consent to and be subject to the jurisdiction of the courts of the State of Arkansas to enforce the terms of the lease.

In this case, Goff submitted a bid by telephone to CDI for the subcontracting job on the Mississippi office project. CDI agents went to Mississippi, where the president of Goff signed the contract, in regard to formalizing the contract. The contract was mailed to CDI, and CDI contends that the contract was executed in Pulaski County, Arkansas; Goff contends that the contract was executed in Jackson, Mississippi. The contract provided that Goff must mail its payment requests to Arkansas, but did not contain any provisions concerning jurisdiction or applicable law for dispute resolution.

In Mountaire Feeds, Inc. v. Agro Impex, 677 F.2d 651 (8th Cir. 1982), it was held that the use of arteries of interstate mail, telephone, railway, and banking facilities is insufficient, standing alone, to satisfy due process in asserting long-arm jurisdiction over a nonresident corporation.

In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. Mid-South Beverages, Inc. v. Forrest City Grocery Co., 300 Ark. 204, 778 S.W.2d 218 (1989) (citing Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989)).

We find that Golfs telephone and mail transactions do not, standing alone, satisfy the minimum contacts required by due process to bring it within Arkansas’s jurisdiction.

We need not address GDI’s second point of error, relating to venue, due to our finding of a lack of jurisdiction.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Christopher SEGERSTROM v. STATE of Arkansas
    CR 88-62
    783 S.W.2d 847
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990

      Denny Hyslip, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Christopher Segerstrom, a fifteen-year-old boy, raped and killed four-year-old Barbara Thompson. Both the rape and the murder were outrageously violent: a stick was rammed into the little girl’s vagina with such force that it protruded into her abdominal cavity, and she was beaten with a forty-pound rock to such an extent that her skull was partially flattened with brain matter protruding. In addition, she had abrasions to her back and chest, including one through her right nipple which appeared to have been intentionally inflicted. The appellant was charged with capital murder, but the State waived the death penalty because of his age. He was convicted and sentenced to life in prison without parole. We affirm the judgment of conviction.

We need not devote a great deal of time to appellant’s first point of appeal as it is wholly without merit. In it, appellant argues he was deprived of due process of law because the trial court refused to appoint a private psychiatrist or to provide funds for one because: (1) the psychiatric evaluation by the state hospital was inadequate, and (2) the two psychiatrists who examined appellant had directly conflicting opinions.

More specifically, appellant contends the evaluation by the state hospital was inadequate because: (a) the psychiatrist’s report was not based upon the psychiatrist’s own evaluation, but instead, upon what she thought the court wanted to hear, and (b) the psychiatrist had been treated by another psychiatrist. The assertion that the psychiatric report was not based upon evaluations is wholly without factual support. Further, there is nothing in the record which indicates that the trial judge attempted to direct any particular response from the psychiatrist.

The examining psychiatrist from the state hospital, Dr. Lynch, had been treated by another psychiatrist for anxiety brought on by having to testify at criminal proceedings. We fail to see any causal connection between seeking counseling for anxiety and the adequacy of the evaluation. In fact, the evaluation, as supplemented, is thorough.

Appellant additionally argues that a private psychiatrist should have been appointed to resolve the “direct conflict” between the testimony of the psychiatrist from the state hospital, Dr. Lynch, and the testimony of another appointed psychiatrist who worked at Ozark Guidance Center, Dr. Jenkins. The short answer to the argument is there was no direct conflict in their testimony. Dr. Lynch’s testimony was about appellant’s ability to appreciate the criminality of his conduct at the time of the murder and his ability to understand the nature of the charge against him and to cooperate in his defense. Dr. Jenkins very candidly testified he had not been asked to form an opinion about those matters. Instead, he was asked whether appellant had the ability to knowingly and intelligently waive his Miranda rights.

Appellant’s next point of appeal is that the trial court erred in refusing to suppress his confession because it was neither voluntary nor was there a knowing and intelligent waiver of his rights. There is no merit to either contention.

The “voluntary” requirement is concerned with coercive police activity. Appellant contends that he was physically abused on four (4) occasions before he confessed and, accordingly, his confession was not voluntary. The first incident occurred before the police arrested appellant. An antagonistic crowd of the victim’s neighbors gathered around appellant. A dangerous situation existed. The police had to work their way through the crowd in order to safely remove appellant from the scene. Very simply, that did not constitute coercive police activity. The second incident was in the police car on the way to the police station. Appellant was handcuffed while in the back seat of the car. Still, he managed to get hold of a bottle and an umbrella and said to the policeman that he was going to “poke your. . . eyes out.” He fought as the police tried to get him out of the car. Under the circumstances the police grabbed his legs to keep him from kicking them. The use of reasonable force to subdue a prisoner and transport him to the police station is not a police activity designed to coerce a confession. Third, the police saw that he had a red substance on his clothes. They correctly assumed the substance might be the victim’s blood and the clothes might constitute valuable evidence. They asked for the clothes. The appellant, possibly realizing how damaging the evidence might be, refused to give the police the clothing with blood on it. They had to physically remove his clothes. No excessive force was used. Fourth, appellant refused to stand for a mug shot. In fact, he strenuously fought having his picture taken, and it took two and sometimes three officers to hold him for the picture. Again, no excessive force was used.

As can be seen from those incidents, appellant was very hostile. The police were only trying to restrain appellant for the legitimate purposes of transporting him to the station, taking his picture and collecting evidence. By these activities, there was no attempt to force a confession out of him. There was no lengthy period of interrogation. The murder occurred around 2:30 p.m., and appellant was arrested shortly after 3:00 p.m. He was given his Miranda warning at 4:50 p.m. and was questioned for about 30 minutes in front of a number of officers. He denied committing the murder. He then was taken to another room by an officer who knew him, and he soon confessed to that officer. The confession had been handwritten and signed by 7:22 p.m. There was no police overreaching, and appellant was not intimidated.

Appellant additionally argues that he did not knowingly and intelligently waive his Miranda rights. Again, in examining this issue we make an independent review of the totality of the circumstances and reverse the trial court only if its ruling is clearly erroneous. Burin v. State, 298 Ark. 611, 770 S. W.2d 125(1989). The credibility of the witnesses who testify to the circumstances surrounding the accused’s custodial statement is for the trial court to determine. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). In this case a psychiatrist, Dr. Jenkins, testified that appellant had an intelligence quotient of 77 on the WISC-R test, was fifteen years old, but only had a mental age of six years and four months, and had an attention deficit disorder as well as a learning disability. Under these circumstances, Dr. Jenkins stated that it would be likely that appellant did not understand his Miranda warning. However, the witness also stated that if appellant were slowly told of his rights, and if the officers paused after advising him of each right, and if he were warned only a short time before being questioned, it would increase the likelihood that appellant understood his rights. Finally, the doctor stated, “It’s totally possible that when he was advised of those rights on July 26th, that he understood those rights.”

Testimony by the officers showed that appellant had been arrested previously on burglary and drug charges and had been given Miranda warnings on four or five earlier occasions. On the afternoon the confession was given, the officer slowly read the standard Miranda form to appellant and then explained each individual right to him and then asked questions about each right. For example, two of the questions the officer asked on his own were, “You understand you do not have to say anything?” and “Do you want an attorney right here?” The appellant signed the form that he understood he was waiving his rights, and he told the officers that he understood his rights and waived them. The officers testified that they were satisfied that the appellant understood his Miranda rights and knowingly waived them. Under these facts we cannot say the ruling of the trial judge was clearly erroneous.

Appellant further questions the voluntariness of the waiver on the basis that it was falsely induced. We reject the argument as there was no false promise. Just before he confessed, appellant asked what was going to happen to him. The officer replied that he did not know, but he was definitely going to jail and would probably be evaluated. He did go to jail and was evaluated by the state hospital. Consequently, there was no false promise which rendered appellant’s statement inadmissible. See Tippitt v. State, 285 Ark. 294, 686 S.W.2d 420 (1985).

Appellant makes the related argument that his confession should not have been admitted because he invoked his right to remain silent. We do not interpret the testimony cited by appellant as demonstrating an attempt to invoke his right to remain silent. In the cited testimony, which occurred during the first few minutes of questioning, the appellant said he knew the victim, but did not murder her, and he wanted to go fishing.

Appellant’s next point of appeal is that the police placed physical restraints upon him and these restraints had a chilling effect on his right to present a defense. The argument is wholly without merit. Appellant was most unruly during the 154 days he was in jail awaiting trial. He would run and butt his head on the cell door. He beat on the cell wall. He urinated on the cell door. He screamed. He intimidated other prisoners. He plugged the air vent in the cell. He tore up a blanket, and put it in the toilet and flooded his cell. He flooded the cell on other occasions by plugging a shower. He was combative. He attempted suicide. As a result of this, the police, on seven (7) occasions, placed physical restraints on him. These included handcuff's, shackles, and a waist chain. Appellant offered no proof at the trial to show how the use of restraint on seven (7) occasions had a chilling effect on his right to present a defense, and he offers no explanation of the argument on appeal. Accordingly, we dismiss the argument.

Finally, appellant argues that the trial court erred in allowing a policeman to testify that appellant threatened him on the way to the police station. The appellant objected on the basis of relevancy. The trial court’s ruling was correct.

By the time of trial, appellant had confessed to the murder, but he had also told the victim’s mother that he accidentally dropped the stone on the little girl. Thus, one issue was whether the killing was intentional or accidental. Appellant’s emotional state of hostility and anger shortly after the child was killed was clearly relevant to show that it was more likely that the killing was intentional.

Appellant alternatively argues that, even if the above evidence was properly admissible, the trial court did not weigh probative value against prejudice as required by A.R.E. Rule 403. We summarily dismiss the argument as no such objection was made to the trial court.

In compliance with Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, an examination of all other motions and objections decided adversely to appellant has been made, and we find no prejudicial error.

Affirmed.


author: David Newbern, Justice.

text:
    Ronnie D. MULANAX v. STATE of Arkansas
    CR 89-159
    783 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990
    [Rehearing denied March 12, 1990.]

      Denny Hyslip, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.

      Price, J., not participating.

   David Newbern, Justice.

The appellant, Ronnie D. Mulanax, appeals from a conviction of first degree murder. He contends the court erred in failing to grant a continuance needed for the production of two witnesses and that the trial court improperly failed to exercise discretion in pronouncing sentence. We hold the denial of the continuance was proper because Mulanax waited too late to ask for it. We hold it was not error for the court to follow the jury’s sentencing recommendation. The judgment is affirmed.

1. Continuance

Mulanax contended he needed the testimony of Mark Mitchell because Mitchell had called police to say he knew of earlier hostility between the victim and Mulanax arising from the victim’s earlier attempt to collect a gambling debt from Mulanax. He contended he needed the testimony of Jimmy Baker because Baker had been an eye witness to the fatal altercation between Mulanax and the victim and that Baker had told an investigator that the victim had appeared to have a weapon of some sort in his hand.

The trial was scheduled for January 26, 1989. Baker’s statement was taken on September 15, 1988, and the call from Mitchell was logged on September 10,1988. The first subpoenas for these witnesses were delivered to the sheriffs office January 19, 1989, and the sheriff was thereafter unable to find the witnesses. The court denied the continuance and stated that Mitchell’s testimony would be irrelevant because in his phone call he had not even been certain that Mulanax and the victim were the people involved in the incident he observed. With respect to Baker, the court noted that the case had been set for trial for four or five months and there was no assurance that Baker would ever be located and brought in as a witness.

Denial of a continuance will not serve as the basis of reversal in the absence of a showing of a clear abuse of discretion. David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). Likelihood of obtaining a witness and diligence in seeking a witness are both proper considerations. Kelly v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). We find no abuse of discretion.

2. Sentencing

Mulanax asked the court for mercy. The court sentenced him to 40 years imprisonment, stating that it would be presumptuous to fail to follow the jury’s sentence unless it was “way off.” Mulanax contends it was error for the court to fail to exercise discretion, citing Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). In the Wing case, we held that a court must exercise discretion in deciding whether sentences will be served concurrently or consecutively. That was not the issue here.

It is the responsibility of a jury which has found one guilty of an offense to fix the punishment as authorized by law. Ark. Code Ann. § 5-4-103 (a) (1987). Subsection (b) of the same statute contains exceptions to the rule, none of which are alleged to apply in this case. See Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988), where we referred to the exceptions in our opinion, pointing out that, because of the exceptions, the rule and statute concerning presentence reports are not obviated by the basic jury sentencing subsection. It was not error for the court to impose the sentence declared by the jury.

Affirmed.


author: Tom Glaze, Justice. Otis H. Turner, Justice,

text:
    ARKANSAS TRANSIT HOMES, INC., Crews Mobile Home Service, and Transit Homes of America, Inc. v. Dwayne STONE, d/b/a Stone Mobile Home Service
    89-291
    783 S.W.2d 860
    Supreme Court of Arkansas
    Opinion delivered February 12, 1990
    [Rehearing denied March 12, 1990.]

      Kemp, Duckett, Hopkins & Spradley, for appellants,

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by; Scott E. Daniel, for appellee.

      Turner, J., would grant rehearing. Price, J., not participating.

   Tom Glaze, Justice.

This is an appeal from the trial court’s affirmance of the Arkansas Transportation Safety Agency, Transportation Regulatory Board’s (Board) granting Dwayne Stone a certificate of public convenience and necessity to operate as a motor common carrier in intrastate commerce. The appellee’s certificate is limited to secondary moves of mobile homes, which are any moves other than moving a new mobile home from a dealership, over irregular routes between points in Cleburne, Conway, Faulkner, Perry, Van Burén, and White Counties. Appellants, three companies who transport mobile homes in the areas where the appellee sought authority, protested the awarding of the certificate to the appellee below and here on appeal. On appeal, they contend that the Board’s order is contrary to the preponderance of the evidence. We reverse.

At the hearing before the Board, the appellee and five witnesses testified in support of his application. The appellee stated that he had been working with mobile homes since 1967, and if he was granted the certificate he would be the sole driver. In his testimony, he stated that he had previously filed an application for a certificate of public convenience and necessity on August 12, 1976, but it had been denied. He also testified that he had an ad in the phone book stating that he would provide escorts in and around Conway in a fifty mile radius, but that he had placed the ad before the hearing and just had not removed it. While the appellee stated that he tried to keep his business within the commercial zone, he candidly admitted that he had recently made moves outside the commercial zone of Conway without proper authorization. He also admitted that he was aware he needed the Board’s certification to permit him to engage in the intrastate movement of mobile homes, outside the commercial zone of the city.

Three of the appellee’s witnesses, as noted by the Board, testified as to their experiences with moves of mobile homes within the commercial zone of the city. These moves are not regulated by the Board, and thus no authorization is required. The other two witnesses, who are partners in Keathley Enterprises, a mobile home dealership engaged in buying and selling used and repossessed mobile homes, testified about bad experiences with using the other moving companies and about good experiences with using the appellee in moving mobile homes. In recounting those moves, the witnesses stated that the appellee had recently made unauthorized moves for them outside the commercial zone of Conway. In countering this evidence, the appellants mainly testified as to the amount of business they would lose, and requested that they be given an opportunity to provide any needed service before the appellee is authorized to provide new service.

After hearing the above testimony, the Board made the following pertinent findings: 1) Stone’s financial statement revealed that he had sufficient assets to serve the public as a common carrier; 2) Stone had many years experience in transporting mobile homes and is capable of performing the service; 3) the granting of additional authority to transport mobile homes would benefit the general public since there are not sufficient movers locally to handle short hauls wherein it would be unprofitable to deadhead equipment from another state or a distant county; 4) the granting of the authority would not represent a substantial diversion of traffic from any protestant, but would provide a “local” person to be available in a six-county area; and 5) Stone has conducted his business and himself in such a manner as to gain the confidence and respect of the witnesses.

Before a certificate for public convenience and necessity can be approved by the Board, the applicant has the burden of proving the following: 1) he or she is fit, willing, and able properly to perform the service proposed and to conform to the provisions of the Motor Carrier Act and the requirements, rules, and regulations of the Arkansas Transportation Commission; and 2) the proposed service is or will be required by the present or future public convenience and necessity. Ark. Code Ann. § 23-13-220(a)(1) (1987). Unless the applicant can prove both of these requirements, the Board must deny the application. Id. When an existing service is in operation for the route applied for, the applicant must prove one of the following to show public convenience and necessity: 1) the existing service is inadequate; 2) additional service would benefit the public; or 3) the existing carrier was given an opportunity to furnish additional service. See Jones Rigging & Heavy Hauling, Inc. v. Howard Trucking, Inc., 298 Ark. 33, 764 S.W.2d 450 (1989); Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907 (1945).

While we review appeals from the Transportation Regulatory Board de novo, we will not disturb its findings unless they are against the preponderance of the evidence. Jones Rigging & Heavy Hauling, Inc., 298 Ark. 33, 764 S.W.2d 450. The burden is on the appellants to show that the Board’s decision is wrong. Id. We do not retry the cases or substitute our judgment for that of the Board, and we accord due deference to the Board because of its expertise in passing on the fact questions involved and because of its advantage of seeing and hearing the testimony of the witnesses. Id. If we find that the evidence is evenly balanced, the Board’s view must prevail on appeal. Jones Truck Lines v. Camden-El Dorado Express, 282 Ark. 50, 665 S.W.2d 867 (1984).

After stating these tenets, we first consider the statutory requirement bearing on fitness and whether the appellee met his burden in meeting that standard. The appellants argue that because the appellee knowingly conducted unauthorized moves of mobile homes prior to the hearing, the Board erred in finding the appellee fit. We must agree and find that this determination is dispositive of the case.

This court has never directly addressed the effect of prior illegal moves on the applicant’s showing of fitness. In Purolator Courier Corp. v. Arkansas Air Courier, 289 Ark. 455, 712 S.W.2d 892 (1986), this same argument was made, but we dismissed it because we could not find sufficient proof of the violations in the record. In the present case, the Board concluded from the appellee’s testimony that he misunderstood the “confusing” rules pertaining to commercial zones. We find nothing in the record to support such a finding. Instead, the appellee openly admitted in his testimony to knowingly performing moves outside the commercial zone without a certificate. In addition, the owners of Keathley Enterprises testified that the appellee recently made moves for them outside the commercial zone of Conway.

The Board stated that if it refused authority to every applicant who had provided transportation service without holding operating authority to do so, few applicants would receive authority. The Board’s summary dismissal of appellee’s blatant disregard for the law and the Board’s regulation runs counter to all precedent we have discovered bearing on appellee’s fitness and how it must be viewed in these matters.

In cases from the Interstate Commerce Commission, the applicant appearing before the federal regulatory board must also make an affirmative showing that he is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with the regulations of the Commission. 49 U.S.C.A. § 10922(b)(1)(A) (Supp. 1989). In considering an applicant’s fitness, the Federal Commission has stated that past failures to comply with regulatory requirements are pertinent insofar as they relate directly to his willingness and ability to conduct the proposed operation in a manner consistent with applicable laws and regulations. See Terminal Taxi Co. v. Common Carrier Application, 112 M.C.C. 796 (1971); Barrett Extension—Ironwood, Mich., 81 M.C.C. 731 (1959). The Commission has stated that prior violations do not in and of themselves require a finding of unfitness, but if the acts or omissions were willingly and knowingly engaged in with the intent of evading or defeating the purpose of the regulation, then such a finding must be made. See Terminal Taxi Co., 112 M.C.C. 796 (1971); see also Haywood Trucking Co. Contract Carrier Application, 81 M.C.C. 437 (1959).

Likewise, other jurisdictions have stated that while illegal operations are not a per se bar to the granting of a certificate of public convenience and necessity, a common carrier engaged willfully in illegal operations may be found unfit for purposes of obtaining a certificate of public convenience and necessity. See Wells Fargo Armored Serv. Corp. v. Bankers Dispatch Corp., 188 Neb. 584, 198 N.W.2d 195 (1972); Matador Serv., Inc. v. Missouri Basin Well Service, 367 N.W.2d 749 (N.D. 1985); Stephens v. Public Service Comm’n, 356 S.E.2d 191 (W. Va. 1987); see also Lynden Transfer, Inc. v. United States, 262 F. Supp. 336 (1967). In Stephens, the West Virginia Supreme Court of Appeals noted the following factors that mitigate against the extension of authority to a motor carrier that has engaged in illegal operations: 1) one should not be permitted to benefit from his wrongdoing; 2) the legislative intent behind statutes regulating common carriers may not be construed to mean that those who abide by such regulations should be penalized and those who violate rewarded, i.e., by granting of a certificate because they have established a need by their illegal operations; and 3) neither an administrative agency nor a reviewing court should encourage, by ignoring such operations, the infringement on the rights of others authorized to provide the services. 356 S.E.2d at 194 (quoting Donohue v. Public Utilities Comm’n, 145 Colo. 499, 508, 359 P.2d 1024, 1028 (1961)).

We consider the authorities cited above to be persuasive. The appellee first applied for a certificate from the Board, and when this application was denied he knowingly performed moves outside the commercial zone without proper authorization. Neither this court, nor the Board, should reward the appellee’s flagrant violation of the Board’s regulations with the granting of a certificate for public convenience and necessity. Therefore we hold that the Board’s finding that the appellee was fit is contrary to controlling law and against the preponderance of the evidence. Hence we reverse. Since we hold that the appellee failed to meet his first burden of proof in accordance with Ark. Code Ann. § 23-13-220(a)(l), we need not address whether the appellee showed that his service is required by public convenience or necessity. Suffice it to say, most of the evidence appellee presented in support of the public necessity issue directly resulted from his illegal operations in the six-county area for which he now seeks authority to work.

For the reasons stated above, we reverse.

Hickman and Turner, JJ., dissent.

Otis H. Turner, Justice,

dissenting. The majority substitutes its judgment in this case for that of the Arkansas Transportation Safety Agency, Transportation Regulatory Board, in basing its decision on the appellee’s unauthorized moving of homes at a time when Stone Mobile Home Service had no valid certificate, a violation of Ark. Code Ann. § 23-13-218 (1987).

These violations were considered by the Board, along with all the other evidence for and against the application. After weighing the evidence, as required, in its judgment and under the provisions of Ark. Code Ann. § 23-13-219 (1987), the Board granted the application for a certificate. On appeal, the action of the Board was affirmed by the circuit court.

The majority alludes to the fact that this court has never addressed the effect of prior unauthorized actions that are prohibited by statute, such as those of the appellee, when making a finding of fitness. Therefore, substantial reliance is based by the majority upon the federal code and cases arising from action of the Interstate Commerce Commission. That authority is neither applicable here nor persuasive. The Interstate Commerce Commission has stated that past failures to comply with regulatory requirements are pertinent in their direct relation to a company’s willingness and ability to conduct a proposed operation in a manner consistent with applicable laws and regulations. Moreover, if the past acts or omissions are shown to have been willingly or knowingly engaged in with the intent of evading the purpose or intent of the regulations, a finding of unfitness must be made. See Terminal Taxi Co., Common Carrier Application, 112 M.C.C. 796 (1971); see also Haywood Trucking Co., Contract Carrier Application, 81 M.C.C. 437 (1959). Arkansas has imposed no such requirement on the Board in its decision-making process.

We have recently restated in Jones Rigging & Heavy Hauling, Inc. v. Howard Trucking, Inc., 298 Ark. 33, 764 S.W.2d 450 (1989), certain principles which we will follow in appeals from the Board. While we review these cases de novo, we will not disturb the findings of the Board unless they are against the preponderance of the evidence. Batesville Truck Lines v. Ark. Freightways, Inc., 286 Ark. 116, 689 S.W.2d 553 (1985). We do not retry these cases or substitute our judgment for that of the Board. Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). We will accord due deference to the Board because of its expertise in passing on the fact questions involved and because of its advantage in seeing and hearing the testimony of the witnesses before it. The burden is on the appellants to prove the decision is wrong. When the evidence is evenly balanced, the Board’s view must prevail. Wheeling Pipe Line, Inc. v. Arkansas Commerce Commission, 249 Ark. 685, 460 S.W.2d 784 (1970).

As we have so often said, our role is not to substitute our judgment for the judgment of the Board, but to review its decision. In my view, the decision of the Board is not against the preponderance of the evidence, and I would affirm.

Hickman, J., joins in this dissent.

       We note that Crews Mobile Home Service only protested the appellee’s application for authority for movements that originate or terminate in Faulkner County as being in conflict with its present authority.

       Also, we note that the appellants argue that the appellee is unfit because he leveled and blocked mobile homes without obtaining the necessary license from the Arkansas Manufactured Housing Commission. But, because of the appellee’s illegal moves, we find it unnecessary to address whether this failure to obtain a license should make the appellee unfit.