text:
    Jerry Wayne PEMBERTON v. STATE of Arkansas
    CR 86-178
    730 S.W.2d 889
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      Bill E. Ross, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant was accused of capital murder for having killed Charles E. Brown. He was convicted of first degree murder and sentenced to forty years imprisonment. Three points of appeal are raised, the first of which is that the state was allowed to ask one of its own witnesses about a prior inconsistent statement the witness had made. Secondly, the appellant contends that the evidence was insufficient to support the jury’s verdict. His third point is that the trial court erred in failing to instruct the jury on the lesser included offense of manslaughter. We hold it was not error for the state to be allowed to elicit testimony from its own witness that she had made a prior inconsistent statement and that there was no error in failing to instruct on manslaughter. There was ample evidence to support the conviction.

On Sunday, March 3, 1985, the appellant was found asleep and intoxicated by the side of the road in a truck belonging to the decedent, Charles E. Brown, with the motor running. Police officers arrested him for public intoxication. When they asked the appellant whose truck he was driving, he answered that it belonged to Brown. The appellant was released on bond, and the truck was released to the appellant’s brother who had come to the place where the appellant was being held. During the next few days, the appellant drove around in the decedent’s truck.

The decedent’s son, Danny Brown, an Arkansas State Trooper, lived in Piggott. The decedent’s home was in or near Leachville. They stayed in pretty close touch. Danny Brown testified that after a day of being unable to reach his father by telephone, he called another state trooper, Sergeant Bill Corwell, whom he asked to check on his father. Sergeant Corwell went to the elder Brown’s home and found him there dead on the evening of March 5, 1985. The state medical examiner testified that the death was caused by a gunshot wound just below the ear. A ballistics expert testified that the wound was caused by a Marlin, Model 60, .22 caliber rifle. Although some $1,000 was found concealed in the decedent’s home, no money was found in his pockets.

There was undisputed testimony that it was known that the decedent carried large sums of money in his pocket because of his business as a “trader” who commonly bought and sold items to earn his living. There was also testimony that the appellant was out of a job and had no other source of income and that he had had access to a Marlin .22 rifle which belonged to his brother. The appellant testified that he and Wilma had been out shooting the rifle near the time the crime occurred, but that he had sold the rifle to a person at a bar for $25, and that this sum, plus others he had obtained by gambling had enabled him to have the money to post the bond when he was arrested for public intoxication, and was the source of the money observed on his person by Wilma, between March 3 and March 5, and by another woman, Madonna McElhaney, with whom he had consorted for a time on March 3.

Wilma Honeycutt’s brother, Jeffery Chadwick, testified that on a day early in March the appellant and Wilma came to the apartment occupied by Jeffery and his wife, Tammy, and asked if they could stay the night. He noticed a pickup truck near his apartment when the appellant and Wilma arrived, and he asked the appellant if they had arrived in the truck. The appellant denied it. On March 5 or 6, Jeffery returned home from work, and he, Tammy, the appellant, and Wilma were watching the evening news which reported the homicide and indicated the authorities were searching for a thirty-five-year-old Leachville man. At that point, the appellant and Wilma went outside, and when they returned, the appellant spoke with Jeffery privately. He told Jeffery he “was the one that done it” and asked Jeffery to trade him his tennis shoes for the appellant’s boots and to let the appellant use a sleeping bag. The appellant became the subject of a manhunt lasting several days. He gave himself up as officers were closing in on him near a levee on Eight Mile Creek.

At the commencement of the trial, counsel for the appellant made a motion in limine to prohibit the prosecution from asking Wilma about a statement she had made to the police to the effect that the appellant had told her at Jeffery’s house that he, the appellant, had committed the crime. Wilma’s testimony, as presented by the state, was that the appellant had said only that he was the one they were looking for, the inference being that he was being sought because he had been driving about in the decedent’s truck. When the prosecutor began to ask Wilma about her previous statement, the appellant’s counsel objected, and the court initially ruled that the prosecution could not ask about her prior inconsistent statement. However, in cross-examination of Wilma, the appellant’s counsel asked: “Did you ever hear him, Jerry, make any statement, ‘I’m the one that done it,’ or ‘the one they’re lookin’ for?’ ” Wilma responded: “I did not.”

At that point, the prosecutor objected, saying that that had been the question he had been denied permission to ask, and the court ruled that the appellant’s counsel had “opened the door” to allowing the prosecution to inquire. He then permitted the prosecutor to ask Wilma whether she had ever made a contradictory statement, and she replied that she had.

1. Impeachment

The appellant argues that Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983), is precedent for disallowing any reference whatever to Wilma’s previous inconsistent statement. In that case, the son of the appellant told police he saw his father kill his mother with a pistol. In subsequent statements, and in his testimony, he said only that he was in another room and heard the shot. The first statement was introduced through the testimony of a deputy sheriff who read it to the jury. We held that was improper, but went on to say:

We still must decide whether the trial court erred in allowing the State to impeach Richard, its own witness, with his . . . hearsay statement by asking him if he had in fact made the prior inconsistent statements. Under the circumstances of this case we believe the probative value of such testimony was far outweighed by the danger of unfair prejudice. Therefore, this evidence should have been excluded under Rule 403 ....

Thus, without saying why it was unfairly prejudicial, we held that “in the circumstances of [that] case,” upon retrial, the state could not inquire whether the witness had made a prior inconsistent statement.

Whatever the unfair prejudice may have been in that case, we do not find it here. The ruling in the Roberts case that the prior statement itself could not be quoted into evidence as part of the impeachment process was consistent with prior Arkansas cases, and indicated that the adoption of A.R.E. 613 had not presaged any change in that respect. Note, 37 Ark. L. Rev. 688 (1983). However, if we meant to say there that the fact that a reference to, rather than a quotation of, a prior inconsistent statement was unfairly prejudicial because it came in the form of the state’s impeachment of its own witness, we failed to take account of A.R.E. 607. That rule makes it clear that there no longer is a general prohibition against such impeachment. S. Perroni, Impeachment of One’s Own Witness by Prior Inconsistent Statements Under the Federal and Arkansas Rules of Evidence, 1 UALR L.J. 1277 (1978).

In the case before us now, when the appellant’s counsel, during cross-examination, asked Wilma whether she had heard the appellant say “he was the one that done it,” the prosecutor’s objection was that that had been the question he had been denied the privilege of asking. That was incorrect, as he had wanted to ask whether Wilma had previously made an inconsistent statement, not what Wilma had heard the appellant say. The trial judge found that the appellant’s counsel had “opened the door” to allowing the prosecutor to ask, on redirect examination, whether Wilma had made a prior inconsistent statement. That ruling was correct because a party may inquire of a witness on redirect examination with respect to testimony given on cross-examination, and the scope of redirect examination is largely within the discretion of the trial judge. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979); Stovall v. State, 233 Ark. 597, 346 S.W.2d 212 (1961). While the Parker and Stovall cases are not cases in which impeaching testimony was taken on redirect examination, in view of Rule 607, discussed above, we do not find that distinction to be significant.

The state’s argument on this point is that no error was committed because the appellant’s statement to Wilma was an admission and thus qualifies for the exception to the hearsay rule found in A.R.E. 801(d)(2). That argument misses entirely the point that the question and answer complained of by the appellant went to Wilma’s prior inconsistent statement, that is, what she had said, rather than asking her what the appellant had said. However, given our conclusion that the trial court did not abuse its discretion in permitting the question and the answer, we can disregard the state’s argument and still affirm on this point.

2. Sufficiency of the evidence

There was no eyewitness to the killing of the decedent. However, circumstantial evidence which is consistent with guilt of the appellant and inconsistent with other reasonable conclusions may form the basis of a verdict of guilty, and the role of this court is only to determine whether the evidence was substantial. Ward v. State, 280 Ark. 353, 658 S.W.2d 379 (1983); Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). In reviewing the evidence, we need only look to that which is favorable to the appellee to determine its sufficiency. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987).

The appellant’s argument on this point is that he gave a plausible explanation for his having been in possession of the decedent’s truck, i.e., he stole it, and of his having recently been in possession of a rifle such as the one which killed the decedent, i.e., he and Wilma were shooting it for fun, and of his being in possession of money despite lack of a job, i.e., he won it and sold the rifle. (He does not, however, explain Jeffery Chadwick’s testimony that the appellant admitted to him having killed the decedent.) He argues that the jury may not be allowed to disregard the testimony he presented, citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). However, the appellant gives no reason for us to conclude that the jury ignored his testimony as opposed to merely not believing it which, of course, is the jury’s prerogative.

3. Lesser included offense

The jury was instructed as to capital murder, first degree murder, and second degree murder. The appellant was found guilty of first degree murder. He argues it was error for the court to have refused his proffered instruction on manslaughter. There is no error in failing to give an instruction on one lesser offense if other lesser offenses were covered by the instructions given and the jury returned a verdict of conviction on an offense greater than the least offense instructed upon. See Sherron v. State, 285 Ark. 8, 684 S.W.2d 247 (1985); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). There is no prejudice to the accused when that occurs.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    William C. HEDRICK, Jr. v. STATE of Arkansas
    CR 87-1
    730 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      Thomas M. Carpenter, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This Rule 37 appeal ensues from a murder to which appellant pled guilty on March 17, 1975, over twelve years ago. Appellant committed the murder of Louis G. Boyd during the perpetration of a robbery. He was charged with murder in the first degree pursuant to Ark. Stat. Ann. § 41-2205 (Repl. 1964), but he later pled guilty to capital felony murder under Ark. Stat. Ann. § 41-4701 (Supp. 1973), and was sentenced to life without parole. Appellant now seeks post-conviction relief based upon the argument that he pled guilty to capital felony murder, a crime with which he was never charged. Thus, he claims the sentence given him was illegal, and, instead, he is entitled to have it set aside or reduced to life imprisonment — the sentence for first degree murder, the crime with which he was charged. We reject appellant’s argument, as did the trial court.

Rule 37.2(c) of the Arkansas Rules of Criminal Procedure provides that an attack on a conviction pursuant to Rule 37 must be made within three years from the date of commitment, unless the ground for relief would, if proven, render the conviction absolutely void. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985). Of course, the conviction at hand was not challenged within the three-year period, so appellant is left only with the argument that his conviction was absolutely void under the provisions of Rule 37.2(c) or was illegal under Ark. Stat. Ann. § 43-2314 (Supp. 1985) — a statutory provision that authorizes a circuit court to correct an illegal sentence at any time. We hold that appellant has demonstrated no entitlement to relief under either of these provisions.

We first should point out that we agree with appellant’s underlying contention that a person cannot, under due process, be convicted of a crime for which he was not charged. In support of this fundamental proposition, we note Bosnick v. State, 248 Ark. 846, 454 S.W.2d 311 (1970), wherein we stated that the State’s law in effect then was not intended to enable the State to charge one “class of murder” (premeditated murder) and then prove a different class (murder in perpetration of a robbery). Stated in other terms, a conviction upon a charge not made would be sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88 (1940).

The Bosnick case, of course, involved a conviction that resulted from a jury trial, and the case here involves a conviction that resulted from appellant’s plea of guilty to a charge of felony murder. Such a distinction, however, in no way relieves the State’s burden to gain a conviction to the crime with which it charges a defendant. In Switzer v. Golden, Judge, 224 Ark. 543, 274 S.W.2d 769 (1955), the petitioner was charged with one specific instance of selling liquor in a dry territory, a misdemeanor. He pled guilty, however, to a third offense of selling intoxicating liquor in a dry territory, a felony. Our court held the trial court exceeded its jurisdiction in sentencing the defendant to prison on a plea of guilty to a felony when he was charged only with a misdemeanor. 224 Ark. at 545.

While, then, acknowledging the validity of appellant’s argument that he could not legally plead guilty to a crime for which he was not charged, we cannot agree that he demonstrated such an error occurred. The record, as presented to us, is incomplete and confusing. Unquestionably, appellant committed a murder during a robbery for which the State, at that time, had the option of charging him with either capital felony murder or first degree murder. The facts underlying either of these crimes were the same, and those facts were recited in the information filed against appellant; the information was titled “capital felony information,” but, in the body of the information, he was charged with committing the crime of “murder in the first degree,” in violation of Ark. Stat. Ann. § 41-2205 (Repl. 1964). The State later filed an amended information bearing the same caption and criminal charge but changing only the date the robbery-murder occurred. No conviction judgment appears in the record, nor is there a transcript of the hearings at which appellant entered his plea and was sentenced. The record does reflect appellant’s plea statement wherein he and his attorney acknowledged he was charged with capital felony murder and that he could, upon entering a plea, receive a sentence of from life without parole to death. Appellant signed that statement, admitting his guilt to capital felony murder. Too, his attorney signed the statement, indicating that he had discussed the plea statement with appellant, that appellant understood the statement and its contents and appellant’s guilty plea was consistent with the facts as appellant related them to the attorney. The only other matter of record of what occurred when and after appellant was sentenced is a penitentiary commitment order remanding appellant to the Department of Correction for life without parole. That order reflects March 17,1975, as the date of the “Proceedings” and the style contained the words, “Indictment for Murder In First Degree.”

As we have already noted, appellant, in his claim for post-conviction relief, must show his conviction judgment is absolutely void or illegal. In other words, the burden is on appellant, as the petitioner, to demonstrate that the judgment entered was a nullity, and the presumption that a criminal judgment is final is at its strongest in collateral attacks on the judgment. Travis v. State, supra. Here, as we mentioned earlier, the record is incomplete, and in examining what is in the record, we are left with the impression that something may well have happened at the sentencing hearing that could reconcile the ambiguity caused by the filed documents reflecting the dual use of the terms (crimes), first degree murder and capital felony murder.

In oral argument, appellant’s counsel conceded the sentencing record of what occurred in open court in 1975 no longer exists. Nonetheless, we have held that the appellant has the burden of supplying a transcript of the proceedings below and that burden includes the responsibility of obtaining a transcript or its reconstruction. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In sum, we hold that appellant has not met his burden of showing his conviction is illegal or absolutely void.

In conclusion, we add that one matter is certain from our study of the record before us. Appellant knew the underlying facts of the murder he committed, and both crimes of first degree murder and capital felony murder were mentioned either in the information filed against him or at the time he pled guilty. Also, we know he faced the prospects of a death sentence. He obviously desired to avoid the death penalty by entering his guilty plea, thereby availing himself of a sentence of life without parole. Under these circumstances, we decline to speculate that the appellant, at the time of sentencing, did not knowingly enter a guilty plea to the charge of capital felony murder. Therefore, we affirm.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant was charged by information with first degree murder pursuant to Ark. Stat. Ann. § 41-2205. Before the scheduled trial he decided to plead guilty. The court accepted the guilty plea; however, it sentenced him for capital felony murder pursuant to § 41-4701, a crime for which appellant had never been charged.

This Court has reached the pinnacle of affirmance in this case by upholding the finding of guilt for a crime which was never charged. So far as I am concerned, the sentence of life without parole is as void as a death sentence issued by a municipal judge. Good-bye due process and equal protection.

       While appellant advocates the applicability of § 43-2314, his sentence was imposed in 1975, and we have held that § 43-2314 is not available to correct a sentence if the sentence was imposed before the statute became law in 1983. Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987).


author: Per Curiam.

text:
    Jimmie WILBURN v. STATE of Arkansas
    CR 86-7
    730 S.W.2d 491
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      Appellant, pro se.

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

Petitioner Jimmie Wilburn was found guilty by a jury of first degree murder and sentenced to life imprisonment. We affirmed. Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986). Petitioner now seeks permission to proceed in circuit court pursuant to Criminal Procedure Rule 37.

Petitioner first requests a copy of the transcript of his trial to enable him to “further prepare and amend” his petition. He does not explain specifically why a copy of the record is necessary to amend the petition and he has not filed a motion to amend in this court. Before a request for transcript will be granted, the petitioner must show that he has some reasonably compelling need for specific documentary evidence to support a particular ground for postconviction relief in the amended petition. See Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971). Petitioner does not contend that he has any specific need for documentary evidence.

Petitioner next alleges that he was not afforded the effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution. He contends that counsel failed to argue that his confession should be suppressed as the fruit of an illegal arrest. As support for the.allegation, petitioner argues that there was no probable cause to arrest him, that the arrest warrant was based on uncorroborated information and that the police entered his home without his consent.

There is a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient and that counsel made an error so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment to the Constitution. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied on as just. Even if counsel could have made a meritorious motion to suppress, the judgment must stand, unless the petitioner demonstrates that the failure to file the motion had a prejudicial effect on the outcome of the trial. Strickland v. Washington, supra. A reasonable probability that but for counsel’s conduct the result of the proceeding would have been different is a probability sufficient to undermine confidence in the outcome. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985).

We find no basis to conclude that counsel was ineffective for failing to move to suppress petitioner’s confession on the grounds that it was obtained as a result of an illegal arrest. Petitioner himself cites information provided to the police by several persons on which the authorities based their arrest warrant. It was not necessary for the police to have proof beyond a reasonable doubt that petitioner was guilty before arresting him.

With regard to petitioner’s allegation that there was no consent to enter his residence, the record indicates that his stepson opened the door for the police. Petitioner does not contend that the stepson was not a resident and capable of giving consent to enter.

Petitioner next alleges that counsel erred in failing to object to the introduction into evidence of a handgun which was similar to the murder weapon. Petitioner further alleges that counsel should have objected to testimony by a firearms expert on the damage a .44 magnum handgun can do. As petitioner does not state where in the record the firearms expert testified about the damage such a gun could inflict or how he was prejudiced by the testimony, the allegation does not warrant consideration. This court will not search the record in an attempt to find factual support for an allegation. Troutt v. State, 292 Ark. 192, 729 S.W.2d 139 (1987).

We find no basis on which to conclude that counsel was ineffective since petitioner has not shown that he was prejudiced by the display in court of a gun similar to the murder weapon. While it is true that the murder weapon was never found, petitioner said in his confession that the weapon was a .44 magnum Ruger, single-action pistol. The State showed a similar gun to witnesses, but it was made clear that the gun exhibited in court was not the murder weapon. Contrary to petitioner’s claim, the gun shown to the witnesses was not introduced into evidence or displayed to the jury in closing argument.

Petitioner alleges that his attorney was ineffective in failing to object to his wife’s testifying against him. He bases the allegation on our decision in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), which held that the Uniform Rules of Evidence were not validly adopted by the legislature in 1976. Petitioner is correct that the Uniform Rules of Evidence were adopted in an invalid session, thus invalidating Rule 504 which permitted one spouse to testify against the other. Act 14 in 1943 which was in effect at the time of petitioner’s trial prohibited one spouse from being called by the opposite party as a witness against the other spouse. This is not to say, however, that counsel was ineffective under the standards of Rule 37 for not objecting to the wife’s testimony. The objection raised in Ricarte turned on an unusual set of circumstances with respect to which counsel advanced a novel, albeit successful, argument in an obscure area of the law. There can be no doubt that before Ricarte other highly competent attorneys faced with the decision of whether to object to testimony by a spouse had failed to recognize the merit in the argument raised in Ricarte. This court is not willing to conclude that an attorney is ineffective for failing to ferret out such an issue. As a result, we hold that the failure of an attorney to raise the issue decided in the Ricarte case does not constitute ineffective assistance of counsel.

Petitioner next asserts that counsel did not object to the unconstitutional process by which the jury was selected. He contends specifically that the number of black jurors was not in keeping with the percentage of black persons in the community and that the prosecution used its peremptory challenges to exclude black jurors. Counsel filed a motion to quash the jury panel on the grounds that the jury selection process unfairly discriminated against young people and blacks. Since counsel did object to the jury’s selection process, there is no basis for the allegation that he should have done so. Petitioner has further failed to state facts to establish that the State misused its peremptory challenges. Allegations without factual support do not justify an evidentiary hearing. Smith v. State, 283 Ark. 264, 675 S.W.2d 627 (1984).

Petitioner finds fault with counsel for not investigating evidence of juror bias. As substantiation for the allegation, he has attached the affidavits of his two sisters and a brother-in-law that they overheard two female jurors making the comments, “We can’t let that guy go; that’s that man’s son.” and a male juror saying to a female juror “I know he’s guilty.” In one of the affidavits, the affiant states that counsel for the petitioner was informed of the jurors’ comments and that counsel in turn informed the trial judge. According to the affiant, the judge then told the jury not to discuss the trial outside of the courtroom. The petitioner does not name the jurors or state where in the record the judge’s admonition to the jury can be found.

Jurors are presumed unbiased. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984). Petitioner is responsible for demonstrating actual bias on the part of a juror. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983). The bare allegation that members of petitioner’s family overheard unnamed jurors discussing the case is not enough to prove that any particular juror at petitioner’s trial was biased.

Finally, petitioner contends that counsel should have objected and requested a mistrial when the prosecutor said in his closing argument that the victim was not there to tell what happened because petitioner had shot him to keep him from telling what he knew. The prosecution is permitted to draw whatever inferences are reasonable from the evidence. Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976). It was not unreasonable to conclude that the victim was not present to tell his story because he had been killed. Petitioner was tried for aggravated robbery of the victim as well as murder. The mere suggestion in closing argument that petitioner had been motivated to kill the victim by his desire to leave no witness to the robbery was not in itself sufficient to deny petitioner a fair trial. Clearly, the failure to object to the prosecutor’s comment was not ineffective assistance of counsel under the criteria of Strickland v. Washington, supra.

Petition denied.


author: Jack Holt, Jr., Chief Justice. Darrell Hickman, Justice, Tom Glaze, Justice,

text:
    William Frank PARKER v. STATE of Arkansas
    CR 86-91
    731 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      W.H. Taylor and James G. Lingle, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

William Frank Parker was convicted of two counts of capital felony murder for which he was sentenced to death; two counts of attempted first degree murder (thirty years imprisonment and $ 15,000 fine for each); two counts of burglary (twenty years imprisonment and $15,000 fine for each); kidnapping (life imprisonment and $15,000); and attempted capital murder (thirty years imprisonment and $15,000). Parker’s capital felony murder convictions were for causing the deaths of James and Sandra Warren in the course of and in furtherance of a burglary. The burglary, as proved by the state, was the entry of the Warrens’ home for the purpose of committing therein the murders of the Warrens. The capital felony murder convictions must be reversed because the Warrens’ deaths were not caused “in the course of and in furtherance of’ a burglary as required by Ark. Stat. Ann. § 41-1501(1)(a) (Repl. 1977), and because the trial court erred in submitting evidence under Ark. Stat. Ann. § 41-1303(3) (Repl. 1977) regarding previously committed felonies as an aggravating circumstance at the penalty phase of the appellant’s trial. Parker’s remaining arguments contain no reversible error, thus we affirm each of his other convictions.

The relevant facts are basically undisputed as Parker’s primary defenses at trial related to his mental capacity at the time of the events. Parker was divorced from Pam Warren. Pam’s father, James Warren, and her sister, Cindy Warren, were getting into Mr. Warren’s truck in front of their house on November 5, 1984, when they saw Parker approaching the truck with a gun. Cindy got on the floor of the truck, from where she heard shots being fired. Cindy then got out of the truck and attempted to spray mace into Parker’s face. Parker fired one or two shots at Cindy, not hitting her, and then chased Mr. Warren into the house. Mr. Warren and his wife Sandra were later found in the house where they had been shot to death by Parker. In the events that followed that same day, Parker kidnapped and shot his ex-wife, Pam Warren, and shot a police officer three times in a shootout at the Rogers Police Department.

1. CAPITAL FELONY MURDER

Parker maintains the trial court erred in not directing a verdict in his favor on the capital murder charges for killing the Warrens. Parker was charged under Ark. Stat. Ann. § 41-1501 (l)(a), which provides:

A person commits capital murder if:. . .he attempts to commit rape, kidnapping, arson, vehicular piracy, robbery, burglary, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; . . . (emphasis added)

An analysis of this statute leads us to the conclusion that it cannot be read to encompass the facts of this case. The state’s proof showed that Parker followed Mr. Warren into the house for only one purpose—to commit the murders of the Warrens. The entry, was a burglary because Parker unlawfully entered an occupiable structure with the intent to commit those punishable offenses. Ark. Stat. Ann. § 41-2002 (Repl. 1977). The killings were obviously a form of criminal homicide of some degree, but they were not “in the course of and in furtherance of’ the burglary as required to be capital felony murder. Parker could have been charged under subsection (l)(c) of § 41-1501 for causing the death of two or more persons in the course of the same criminal episode. Instead, the prosecutor elected to proceed under subsection (l)(a), which was wrong. We must reverse.

Relying on Blango v. United States, 373 A.2d 885 (D.C. 1977), the state argues that the societal interests served by the burglary statute justify its use to support capital felony murder. In that case, Blango committed burglary by entering an “occupied dwelling” with the intent to commit assault on the victim. The court reasoned that the burglary violated the “societal interest in protecting occupied dwellings due not only to the inherent danger to occupants during the commission of such an offense, but also to the value society places on the home.” The D.C. court stated that the crime was complete upon entry, “and is a separate and distinct act from the succeeding killing, yet may be deemed to be a continuing offense for purposes of the felony murder statute.” Blango reasoned that the felony murder statute has the distinct societal interest of protecting the security of the person and the value of human life by punishing nonpurposeful killings by implying premeditation and deliberation from the commission of the burglary. Blango quoted People v. Miller, 32 N.Y.2d 157, 297 N.E.2d 85, 344 N.Y.S.2d 342 (1973) in support of its rationale:

It should be apparent that the Legislature, in including burglary as one of the enumerated felonies as a basis for felony murder, recognized that persons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street. Where, as here, the the criminal act underlying the burglary is an assault with a dangerous weapon, the likelihood that the assault will culminate in a homicide is significantly increased by the situs of the assault.

Unlike the case before us, in Miller the defendant was convicted of murdering a person who came to the aid of the first victim, v/hose home the defendant had entered to commit the assault. Blango and Miller’s distinction between whether a murder is committed in an occupied dwelling as opposed to outdoors may or may not be a valid reason for making it unnecessary to prove the intent ordinarily required for a capital or first degree murder conviction under the applicable statutes in those cases. However, when viewing the language of our own statutes such a distinction does not exist. For the phrase “in the course of and in furtherance of the felony” to have any meaning, the burglary must have an independent objective which the murder facilitates. In this instance, the burglary and murder have the same objective. That objective, the intent to kill, is what makes the underlying act of entry into the home a burglary. The burglary was actually no more than one step toward the commission of the murder and was not to facilitate the murder.

Simply put, the state has not advanced any convincing argument as to how the murder committed after the burglary could be in the course of and in furtherance of the burglary, both of which are elements required by our statutes. “If we can, we give legislation a construction to affect legislative intent. . .However, this is a criminal statute which must be strictly construed with doubt being resolved in favor of the accused.” Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984). In strictly construing our statutes, as we must do, it is apparent that in order to constitute capital felony murder, the murder must be in the course of, and in furtherance of the burglary, which is not the case before us.

2. PREVIOUSLY COMMITTED FELONIES

Appellant argues that the trial court erred in submitting an instruction on previously committed felonies under § 41-1303(3) as an aggravating circumstance at the penalty phase of his trial. His argument is that there was no evidence that Parker “previously” committed another felony, other than shooting at Cindy Warren, which was contemporaneous with the killings of James and Sandra Warren. We must agree.

Section 41-1303(3) provides as follows:

Aggravating Circumstances—Aggravating circumstances shall be limited to the following:
(3) the person previously committed another felony, an element of which was the use or threat of violence to another person or created a substantial risk of death or serious physical injury to another person.

In Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), this court addressed the question of what is meant by a previously committed offense under this statute. In Hill we explained that the reason for section (3) is to allow the state to show that the defendant has a character for violent crimes or a history of committing such crimes. Since there are other avenues by which the state can prove crimes immediately connected with the principal crime, our conclusion was that this section applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. In this instance, the shooting at Cindy Warren was so closely connected in both time and place that it did not present a portrait of the defendant as having previously demonstrated a character for violent crimes or a history for committing such crimes.

Because the trial court erred in submitting this case under our felony murder statute, and in instructing the jury on previously committed felonies, we reverse.

We find no merit in the issues raised by Parker for reversal of the other convictions. In addition to those issues, we will address the questions which may arise on retrial of the capital murder charges.

3. CONTINUANCE FOR RECOMMITMENT TO STATE HOSPITAL

Parker argues that the trial court should have granted his motion for a continuance so that he could be reevaluated by the state hospital in support of his insanity defense. The trial court granted Parker’s first request for a thirty-day commitment to the state hospital for a mental examination on November 15, 1984. The report from the state hospital, dated January 31, 1985, concluded that Parker was capable of assisting in his defense and that at the time of the commission of the offenses he was able to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.

On July 19,1985, Parker filed a motion to be recommitted to the state hospital for an additional evaluation. An amended motion was filed on August 1,1985, with a letter from Dr. David Pritchard, the forensic psychologist for the Arkansas Department of Human Services who conducted Parker’s first examination. Dr. Pritchard said in the letter that he felt it was “professionally advisable to return the defendant to the Arkansas State Hospital for additional neurological and neuropsychological evaluations.” The reason for the suggestion was that Dr. Pritchard had been made aware of a statement by Parker found in the Veterans’ Administration Hospital records from 1982 in which he gave a history of severe head trauma. Dr. Pritchard stated in the letter that Parker should be returned to the hospital only after the hospital had received the army records which document the head trauma. Parker’s counsel had been unable to obtain the records from the St. Louis Army Records Section.

On September 20,1985, Parker filed a motion for a continuance stating that the medical records pertaining to his head injury could not be obtained, that additional efforts to obtain the records were being made, and that the continuance was necessary to permit him to obtain the records. The trial court denied the motion and the trial began on October 28, 1985.

Parker contends that he was unable to adequately and completely present defenses and mitigating factors based on his mental condition without the neuropsychological evaluation to determine the effect of the head injury. He argues that a defendant should not be forced to go to trial in such a serious case as this without the opportunity to present evaluations from medical personnel who have the benefit of his complete medical history, including prior injuries. Parker states that his statement concerning the prior injury is given credibility because it was found in hospital records from more than two years before the murder. It was corroborated by testimony of Pam Warren, who testified at trial that Parker had told her how he received an injury when he was hit on the head with a pipe while working as a disc jockey at an army base.

Arkansas R. Crim. P. 27.3 states:

The court shall grant a continuance only upon the showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

Parker was tried just one week short of a year from the date of the crimes.

Whether to grant a continuance is addressed to the sound discretion of the trial court and this court does not reverse unless that discretion has been abused. Pruett v. State, 282 Ark. 304, 669 S.W.2d 186 (1984). The burden is on the appellant to show that there has been an abuse of the court’s discretion in denying the continuance. Cotton v. State, 265 Ark. 375, 578 S.W.2d 235 (1979). There is no error in the denial of a motion for a continuance to obtain evidence that is not material and not relevant. Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976). In Worley, we said the trial court was justified in denying a continuance requested by the appellant in order to secure documentary evidence, where he only verbally assured the court the documents would be forthcoming and it appeared the records might not be material or relevant.

The only evidence of Parker’s head trauma was his own statements concerning the injury that were contained in the Veterans’ Administration Hospital records and his statements to Pam Warren. Warren also testified that Parker never claimed to have any lasting effects from the injury. Parker’s attorneys were never able to produce any documentation of his injury, even though they knew about it as early as July, 1985, when the additional evaluation was requested. The record does not establish whether any documentation could have ever been obtained, and Dr. Pritchard’s letter stated that the reevaluation should occur only after the records were received. There is also no evidence of any mental problems suffered as a result of the head injury. For these reasons, the trial court did not abuse its discretion in denying the motion for a continuance.

4. DISCOVERY

Parker’s next two arguments for reversal are that the trial court erred by not compelling discovery of statements taken by the prosecutor pursuant to his subpoena power, and that the trial court erred in not granting his motion to compel the circuit clerk to issue discovery subpoenas so that he would have the same subpoena power as the prosecutor. We rejected these same arguments in Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).

In regard to the first of these issues, Parker contends, as did Alford, that Ark. R. Crim. P. 17.1 (b)(i), which requires the prosecutor to disclose to the defendant the “substance of any relevant grand jury testimony,” should be extended to compel the prosecutor to furnish statements acquired by subpoena. Parker bases this contention on Taylor v. State, 220 Ark. 953, 251 S.W.2d 588 (1952), which said that prosecuting attorneys have in a sense replaced grand juries and are subject to the same rules. In Alford, we said that the prosecuting attorney did not have to furnish the defendant with statements taken pursuant to a subpoena, but only must disclose to defense counsel any material information within the prosecutor’s knowledge, possession or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce any resulting punishment. Ark. R. Crim. P. 17.1 (d). The statement sought by Parker was made by Parker’s expert witness, Dr. Phillip Barling. Dr. Barling was called to testify by Parker, rather than by the state, and Parker has not shown how any information acquired by the state prejudiced his defense. Thus, there was no error.

We also held in Alford that the appellant was not denied due process when he was not allowed equal discovery rights to those given the state in Ark. Stat. Ann. § 43-801 (Repl. 1977). That statute authorizes prosecutors to issue subpoenas and administer oaths in all criminal matters they are investigating. Like Alford, Parker contends the trial court’s denial of his motion to subpoena witnesses is violative of the United States Supreme Court’s statement on the issue of equal discovery rights in Wardius v. Oregon, 412 U.S. 470 (1973). In Alford, we said:

The Wardius decision does not suggest that the due process clause requires states to adopt discovery procedures in criminal case, but rather it held that, where a state imposes discovery against a defendant, equivalent rights must be given to a defendant. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). The record before us fails to reflect that the State, by use of its statutory authority to subpoena witnesses, in any way abused that power in an effort to obtain witnesses against the appellant or to secrete their testimony from him before trial. Thus, we see no merit in appellant’s argument.

As in Alford, the only witness subpoenaed by the state was called by the defense to testify, rather than by the prosecution, and there is no indication of abuse by the prosecutor of the subpoena power or that any testimony was hidden from Parker. Accordingly, there was no prejudicial error.

Parker next argues that the trial court should have either granted his motion for a continuance or suppressed certain testimony because the state failed to timely disclose certain witnesses’ statements to the defense. Parker argues that in response to pretrial motions for discovery, the prosecutor had assured him and the court that he was disclosing all of Parker’s previous statements the state had in compliance with Ark. R. Crim. P. 17.1 (a)(ii). October 17, 1985, however, eleven days before trial, the state provided Parker with certain statements by witnesses relating what Parker had told them. Seven days before trial, the prosecutor gave the defense affidavits containing more statements Parker had allegedly made to third parties. Parker moved that all the statements be suppressed because they were provided too late for Parker to adequately defend against them or to have them analyzed by his expert witness. Only the testimony of Leta Lloyd, however, is urged as prejudicial by Parker. That testimony concerned statements by Parker about his marital difficulties that show how upset he was over his separation from Pam Warren. Parker argues he could have used these statements to support his contention that his divorce had affected his emotional state before the crimes were committed.

The state argues that Parker’s attorneys were able to interview Lloyd before the trial, the statements were provided before trial to the defense’s expert witness who said it did not affect his opinion, and the same testimony Lloyd provided about Parker being distraught over the failure of his marriage was provided by other witnesses. The state’s position is correct. Accordingly, the trial court did not abuse its discretion in denying the continuance and refusing to suppress the testimony, and Parker has shown no prejudice as a result of the ruling. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

5. SEVERANCE

Parker also contends that the trial court should have granted his motion for a severance of the capital murder charges from the other offenses. Two or more offenses may be joined when they (a) are of the same or similar character or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Ark. R. Crim. P. 21.1. If offenses are joined solely on the ground that they are of the same or similar character and are not part of a single scheme or plan, a defendant has the right to a severance. Ark. R. Crim. P. 22.2(a). The court shall also grant a severance if it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense. Ark. R. Crim. P. 22.3(b)(1).

It is clear that the crimes charged constituted a single criminal episode and “when a series of acts are connected that is enough to give the state a right to join them in a single information.” Ruiz v. State, 273 Ark. 94, 617 S.W.2d 6 (1981). Parker maintains that the cumulative effect of the offenses was prejudicial and that the severance should have been granted in order to promote a fair determination of his guilt or innocence. Parker has offered no convincing argument that the trial court abused its discretion in determining that a severance was not appropriate to promote a fair determination of Parker’s guilt or innocence, and we find no error.

6. FUNDS FOR PRIVATE PSYCHIATRIC EXAMINATION

Parker next contends that the trial court should have granted his motion for funds for a private psychiatrist. In Dunn v. State, 291 Ark. 131, 722 S.W.2d 595 (1987), we held that the defendant’s right to an examination under Ake v. Oklahoma, 470 U.S. 68 (1985) was adequately protected by the examination at the state hospital, an institution which has no part in the prosecution of criminals. In addition, Parker was able to afford the services of Dr. Barling, a clinical psychologist.

7. INFLAMMATORY PHOTOGRAPHS

Parker argues also that the trial court erred in admitting several photographs showing the Warrens’ bodies at the scene and at the coroner’s. Pictures of the blood-stained floor and a picture of the Warrens together while alive were also shown to the jury over Parker’s objections.

Parker maintains that the probative value of these photographs was substantially outweighed by the danger of unfair prejudice because of their inflammatory nature and that the photographs were needlessly cumulative. A.R.E. Rule 403. The fact that photographs are inflammatory is not alone sufficient reason to exclude them. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984). Inflammatory pictures are “admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony.” Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973). We have often held that a photograph is not inadmissible merely because it is cumulative, and that the defendant cannot admit the facts portrayed and thereby prevent the state from putting on its proof. Rodgers v. State, 261 Ark. 293, 547 S.W.2d 419 (1977). Even the most gruesome photographs have been held admissible when they related to proof of an element of the offense charged. Perry, supra; Robinson v. State, 269 Ark. 90, 598 S.W.2d 421 (1980); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979).

In Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), we reversed the trial court when it needlessly allowed seven photographs of the victim’s face and dislodged teeth, some of which showed the victim in a more inflammatory state because of the coroner’s work on the victim. In Berry, the photographs had little relevance to the issues at the trial; depicted injuries inflicted by the appellant’s accomplice; were needlessly repetitive; and were unusually inflammatory.

The state argues that the photographs in this case were necessary to show the repeated and accurate shooting of the victims by Parker from close range and while the victims were defenseless. Parker’s “extreme indifference to the value of human life” was an element of the capital murder charges. None of the photographs were unnecessarily gruesome, and the autopsy pictures merely showed the corpses with the blood cleaned away from the bullet wounds. Any prejudicial nature the photographs had did not so substantially outweigh the probative value as would mandate a reversal. We trust, however, that the trial court on retrial will carefully weigh the probative value of each photograph against its prejudicial nature, and not automatically accept every photograph the state has to offer, as we directed in Berry.

The photograph of the victims while alive had little, if any, prejudicial effect, but Parker is correct in asserting that it also had no probative value, and it should not be admitted on retrial. See Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986).

8. PREVIOUS STATEMENTS OF WITNESS

Parker maintains that the trial court erred in not requiring the prosecutor to provide him with previous statements made by a police officer who testified for the state. Ark. Stat. Ann. § 43-2011.3 (Repl. 1977). We are unable to determine what Parker is alleging as error, because after the request for the statements was made, the trial court agreed that Parker was entitled to whatever the officer had used to refresh his memory, and to any other statements he had previously given or signed, but that he thought Parker already had those statements. Parker’s counsel responded that he did. There is nothing in Parker’s argument indicating what statements the officer had previously made to which Parker was not given access. Therefore, he has not shown any prejudicial error.

9. PROSECUTOR’S ARGUMENT

Parker also contends that the trial court erred in allowing the prosecutor to address the jury in response to a juror’s question. After Parker’s attorney requested a recess to review a witness’s previous statements provided by the prosecutor after the witness had testified, the juror asked why the statements were not provided earlier in order to save time. The prosecutor was allowed to tell the jury that the statements had been supplied to the defense on April 3, 1985, that the witness had testified in a pretrial hearing, that a transcript of the hearing was available to the defense, and that other notes had been made available while the witness was testifying.

Parker argues that this, in effect, made the prosecutor an unsworn witness, who was not subject to cross-examination. The prosecutor, however, did not address the jury on an issue pertaining to Parker’s guilt or innocence, but only sought to correct the impression that the state had not given the defense adequate time to review the statements the prosecution had in its possession. The trial court was wrong in permitting the prosecutor to address the jury, however, Parker has not shown any prejudice as a result of the prosecutor’s response to the juror’s question, and we need not reverse. Berna, supra.

10. DISCRETION IN SENTENCING

Parker alleges that the trial court failed to exercise its discretion in imposing the sentences recommended by the jury. The responsibility for sentencing was placed with the jury by Ark. Stat. Ann. § 41-802 (Repl. 1977). Parker has apparently confused this situation with the rule that the judge must exercise discretion in determining whether sentences should run consecutively or concurrently. Ark. Stat. Ann. § 41-903 (Repl. 1977); Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). No error was committed.

11. CONSTITUTIONALITY OF CAPITAL FELONY MURDER STATUTE

Finally, Parker argues that our capital murder statute is unconstitutional in its application, because it has been applied almost exclusively to males. This argument was not raised at trial, and thus we are not required to address it on appeal. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). For purposes of the retrial, however, we note that we see no merit in the argument that our facially neutral statute, held constitutional in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), was passed with any discriminatory intent towards men.

12. SEVERANCE OF JUDGMENT

In Martin v. State, 290 Ark. 293, 718 S.W.2d 983 (1986), we held that “[w]hen a judgment in a criminal case is correct as to one count, but erroneous as to another, as in this case, we have the power to sever the judgment, affirm the count on which the appellant was properly convicted, and reverse and grant a new trial as to the other.” Accordingly, the capital murder convictions are reversed. Parker’s other convictions are affirmed.

Hickman, J., concurs.

Hays and Glaze, JJ., dissent.

Darrell Hickman, Justice,

concurring. I concur and write merely to maintain my opposition to the decision in Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986).

Tom Glaze, Justice,

dissenting. I respectfully but vigorously disagree with the majority decision concerning its disposition and reversal of the capital felony murder conviction regarding appellant’s killing of Sandra Warren. Although it can be said that the appellant entered the Warren’s house to kill James Warren, the proof at the same time precludes that he entered the house with the intention to murder Sandra. Cindy Warren testified that the appellant saw her and her father, James, when they were departing James’ truck in front of the Warren house. Appellant shot at Cindy and then his “attention automatically went to my father,” as her father was running to the house.

I fail to see any logic in the majority’s attempt to distinguish the instant case from either the holding in People v. Miller, 32 N.Y.2d 157, 297 N.E.2d 85, 344 N.Y.S.2d 342 (1973), or Blango v. United States, 373 A.2d 885 (D.C. 1977). As was true with the defendants in those cases, the appellant here entered an occupiable structure to commit a crime other than the one with which he was convicted. In this respect, appellant entered the Warren house with the ostensible purpose of killing James Warren—which the majority concedes was a burglary because appellant entered an occupiable structure with the intent to commit an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). Again, as were the situations in Miller and Blango, appellant, while in the course and furtherance of committing this burglary (felony), murdered James’ wife, Sandra—a second and distinct crime.

The rationale underlying the Miller and Blango decisions is that the legislature, in including burglary as one of the enumerated felonies as a basis for felony murder, recognized that persons within domiciles are in greater peril from those entering the domicile with criminal intent than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street.

In the instant case, appellant’s entry into the secluded and confined homestead of the Warrens in his pursuit and effort to kill James also enhanced greatly the prospects that he would kill anyone else trapped within those confines. I believe the rationale underlying our State’s felony murder statute is sound, and the facts of this case implore its application, at least as to Sandra Warren.

I also disagree with our court’s holding in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), insofar as that decision interpreted Ark. Stat. Ann. § 41-1303(3) (Repl. 1977). In my view, this court placed a much too restrictive interpretation on the words “previously committed” when deciding what prior violent crimes can be used in establishing aggravating circumstances for sentencing purposes in capital felony murder cases.

In Hill, we explained that the reason for section (3) is to allow the state to show that the defendant has a character for violent crimes or a history of committing such crimes. This court then parlayed that reasoning to arrive at the conclusion that section (3) applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. Such reasoning and logic engrafts a restriction on the employment of section (3) that simply is not there.

Here, I have no problem reaching the conclusion that appellant’s acts warranted the jury’s consideration of the plain language used in section (3)—that he previously committed another felony, an element of which was the use or threat of violence to another person or created a substantial risk of death or serious physical injury to another person. Undisputably, appellant attempted to murder Cindy Warren outside the Warren house just moments before he entered the home where he killed both James and Sandra Warren. The majority holdings here and in Hill raise more questions than they answer. For example, if appellant had attempted to shoot Cindy an hour ear-Her—somewhere on the grounds but outside the house—could section (3) be employed? What would be the result if appellant’s prior acts had happened the day before he entered the Warren house to kill James? In short, at what point in time and place may a defendant’s prior violent acts be used to justify the usage of section (3)?

We become entrapped in our own web, so-to-speak, when we add language to section (3) that is not there. The purpose, I submit, of section (3), is merely to permit a jury to consider a defendant’s violent nature, as he had previously applied it towards others, regardless of when and where such violence occurred.

For the reasons stated, I would affirm William Parker’s conviction and find no error in giving the instruction on previously committed felonies.

Hays, J., joins in this dissent.


author: Darrell Hickman, Justice.

text:
    Bruce CONSTANT et ux v. Sam HODGES et ux, et al.
    86-312
    730 S.W.2d 892
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      Ivester, Henry, Skinner & Camp, by: David P. Henry, for appellant.

      House, Wallace & Jewell, P.A., by: Don F. Hamilton and Janice W. Vaughn, for appellee.
   Darrell Hickman, Justice.

This is a suit to enforce a restrictive covenant in several instruments applicable to the Robinwood Subdivision of Little Rock. The appellants owned one of the large lots in Robinwood on the corner of Cantrell Road and Misty Lane, consisting of 1.73 acres. Their house burned in 1983, and the lot remains vacant. The appellants applied to the Little Rock Planning Commission to divide their lot into four smaller lots. Permission was denied. A request was then made to divide the lot into two lots. That request was granted. A request for another split was filed but deferred when this lawsuit was filed. The appellees, several residents of Robinwood, sued to prevent breaking up the lot and to enforce restrictive covenants applicable to Robinwood. The chancellor held the restrictive covenants limited the use of the lot to a single family residence, and it could not be divided.

The appellants make two arguments on appeal. First, their land was not subject to such a restriction, and second, the chancellor was wrong in finding the existence of a general plan of development which would permit enforcement of the restrictive covenants in question. The chancellor was unquestionably right and we affirm the decree.

It is agreed that there are three relevant instruments. First, a bill of assurance was filed in 1949 which provides in part: “The lands hereinbefore described shall be restricted to detached single-family residences; garages, servants’ quarters, and other outbuildings must be clearly incidental to residential use of said land.” The bill of assurance said its purpose was to carry out. . . “a general plan to develop said lands as a high-class suburban residential property.” The parties agree a deed to a predecessor in title of the appellants is applicable and contains this language: “This conveyance is subject to the reservations, covenants, and restrictions set forth in the Bill of Assurance dated November 15, 1949,. . . Only one detached single-family residence with only one story at or above ground level. . . shall be erected. . .” The same date the deed was executed, a memorandum of agreement was executed and later filed. It provided in part:

In addition to the provision contained in said deeds that only one detached single-family residence with only one story at or above ground level shall be erected, it is hereby expressly agreed that no residence shall be erected ... if the main floor area of such residence ... is less than two thousand five hundred (2,500) square feet. . . It is agreed that the provisions of this agreement shall run with the said land.

Nathaniel Griffin, who was director of city planning in Little Rock in 1977 and has a masters degree in city planning, testified at length about the Robinwood Subdivision. Some of his testimony is especially relevant:

The area is virtually the same as it was in 1977, with the possible exception of the house with the white wall around it and the Constant house which burned in 1983. The area has been remarkably stable over the years in terms of its livability. The Gibsons’ [original owners of the land] original objective as set forth in the Bill of Assurance has been achieved over time and the area remains an attractive, residential environment, certainly one of the best in the City.
* * * *
The Cantrell Place West proposal [the appellants’ plan] would have an adverse effect on the property values in the area, but the effect would depend on what future changes occurred as a result of the development and I could not be specific as to the magnitude of change. It is not the thing you qualify in dollars.
* * * *
...lam quite familiar with all the residential development patterns of the City and would say that the Robinwood area has among the largest lots of any residential district. These large lots on a major arterial represent the only way that you can have an established residential character that can be preserved.
* * * *
. . . [T]he division of the Constant property into two or four lots would be a negative factor because it would communicate to everyone in the area that it is not going to be a sacrosanct, single-family area. That the community will consider alternate uses, and that is a destabilizing factor.
* * * *
. . . There is absolutely no reason why they could not build a new home on that 1.73 acre lot if they chose to do so.

W. P. Hamilton, a Little Rock lawyer, testified he was personally familiar with the development of Robinwood. He said: “It is my opinion that the Constants’ proposals are inconsistent with the development pattern in the neighborhood and would adversely effect property values.”

Sam Hodges, one of the appellees, testified that he had lived in Robinwood for 20 years. He said:

In my opinion, a subdivision of the Constant property into two or four lots would have a deleterious effect, reducing the value of the property, destroying what we’ve got and the visual effect of the Robinwood neighborhood. The pattern of development has been maintained since 1967, except for landscaping changes. The lot split would torpedo our development. There is nothing that can be done with the Constant lot except to build a nice single-family dwelling.
I think the homes in the area would average $250,000 with some below, and then some much more than that, over $500,000.

After hearing the testimony and examining the documents, the chancellor made these findings:

The character and nature of the Robinwood Subdivision referred to in the Bill of Assurance signed by Cecil Gibson and Vera Gibson has been and is single-family residences consisting of very valuable, large homes on large lots. The nature of the neighborhood and this pattern of development have not changed since the lands described in the Bill of Assurance were developed beginning in 1949, and this pattern has continued through the present time. Although there may have been some violations (as alleged by defendants) of some of the provisions of the Bill of Assurance or some of the restrictions contained in deeds subsequently conveying lands subject to the Bill of Assurance, those violations have been minor and they have not destroyed the purpose of the Bill of Assurance or deed restrictions and these violations have not adversely affected the adjoining property owners.

On appeal we consider the evidence in a light most favorable to the appellee. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). We do not reverse a finding of fact by a chancellor unless it is clearly wrong. ARCP 52; Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Using this criteria, the evidence overwhelmingly supports the chancellor’s finding that a general plan of development existed for Robinwood. That is important because if no general plan of development exists, the general rule is that restrictive covenants cannot be enforced. Jones v. Cook, 271 Ark. 870, 611 S.W.2d 506 (1981). The test of whether such a plan exists is “whether substantial common restrictions apply to all lots of like character or similarly situated.” Jones v. Cook, supra.

In this case the existence of large lots with single family residences has remained unbreached since its inception. The appellants attack the three instruments in detail, arguing that they do not apply for several reasons: The bill of assurance does not prohibit dividing a lot; the trial court did not specify which of the three instruments was binding or a basis for his decision; the deed contained no restrictions in the granting clause, and the only restriction contained therein appears after the habendum clause with none in the granting clause; and the covenant did not “run with the land.” On appeal our only duty is to decide if the chancellor was wrong. Indeed, if he reaches the right result but for wrong reasons, he will be upheld. At one point the court remarked:

. . . But, as they sold the property, further restrictions were put on it, and it does run with the land, as it says in those others, but you have to read all of the instruments together to reach a conclusion as we do in many cases in the law to reach whatever result that we’re going to try to reach.

This is apparently what the chancellor did, considered all the instruments, in deciding that the restrictive covenant did exist which prohibited dividing this lot. In reviewing instruments, our first duty is to “give effect to every word, sentence and provision of a deed where possible to do so and give effect to the intention of the parties.” Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). That intent in this case is gathered from all the instruments.

We agree with the appellees that there is little room for doubt that these instruments contain a restrictive covenant that prohibits the action the appellants seek to take.

Affirmed.

Glaze, J., not participating.


author: John I. Purtle, Justice.

text:
    FIRST AMERICAN BANK OF NORTH LITTLE ROCK, N.A., et al. v. ASSOCIATED HOSTS, INC., d/b/a WRANGLER, et al.
    87-6
    730 S.W.2d 496
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      Jim O’Hara and Zachary D. Wilson, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   John I. Purtle, Justice.

This appeal represents yet another attack on the lack of a Dramshop Act in Arkansas, and as such, it too must fail.

On December 7, 1982, the appellant attended the “happy hour” at a local bar and dance hall where he consumed more than a dozen drinks in about three hours. The appellant left the bar in an intoxicated condition and fell backwards on the sidewalk. The appellant’s head struck the pavement, and he sustained injuries which rendered him partially paralyzed, blind in one eye, and mildly retarded.

The question presented is whether a dramshop owner or operator is liable for damages to a patron who becomes intoxicated and by reason thereof sustains injury. Our prior decisions hold that an owner of a tavern is not responsible for injuries caused to third parties by a drunk patron. See Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987). We hold that there is no reason to favor an intoxicated patron over an innocent third party. At the common law, a tavern owner had no liability for injury to a patron or a third party. See Bolen v. Still, 123 Ark. 308, 185 S.W. 811 (1916).

We continue to defer to the General Assembly on this subject. Yancey, supra. We therefore affirm the decision of the trial court in dismissing the complaint.

Affirmed.


text:
    Naomi Johnson HENRY v. Leonard JOHNSON, Administrator
    86-279
    730 S.W.2d 495
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      Wayne R. Foster, for appellant.

      Marquis E. Jones, for appellee.
   John I. Purtle, Justice.

After the decedent’s death, his brother petitioned the probate court for appointment as personal representative of the estate. Letters of administration were issued. The appellant then filed a petition in the probate court for determination of heirship, claiming to be the illegitimate child of the decedent. The probate court decided that the appellant’s petition was a matter relating to bastardy and transferred it to the county court. The county court then transferred the case back to probate on the theory that a proper petition to establish paternity had not been filed and that the county court was without jurisdiction. The probate court then dismissed the petition on the ground that Article 7, Section 28, of the Arkansas Constitution grants exclusive jurisdiction to the county court in all matters relating to bastardy. We agree with the appellant’s argument that determination of heirship is not a bastardy proceeding within the meaning of Article 7, Section 28, and therefore reverse the decision and remand the case to the probate court.

Alonzo Johnson died intestate in Pulaski County, Arkansas, on January 9, 1985. The petitioner was born in Chicot County, Arkansas, on September 23,1935. During the decedent’s lifetime there had been no legal proceeding to determine if the decedent was the father of the appellant. We considered a somewhat factually similar case in Lewis v. Petty, 272 Ark. 250, 613 S.W.2d 585 (1981). Although Lewis fell within the period of time between the decision of Trimble v. Gordon, 340 U.S. 762 (1979), which declared statutes similar to Ark. Stat. Ann. § 61 -141 (d) to be unconstitutional, and the reenactment of the revised 61-141(d) (Act 1015 of 1979), the decision is persuasive. There the illegitimate daughter of Lewis was born in 1927, and Lewis died in 1978 without a legal determination of paternity during his lifetime. In Lewis the petition for a determination of heirship was filed in the probate court and was never considered by the county court.

We also considered the matter of an illegitimate child in the case of McFadden v. Griffith, 278 Ark. 460, 647 S.W.2d 432 (1983). There we were concerned with the claim of child support by the mother of a teenaged child against the putative father. The action was initiated in the county court as a bastardy proceeding. The county court found that McFadden was the father of the child and ordered support. This order was then affirmed by the circuit court and we affirmed that decision. For reversal the appellant cited the case of Lewis v. Petty, supra. However, we distinguished the type bastardy proceeding presented in McFadden from one to determine heirship as in Lewis. We stated that the standard of proof in determining heirship by a child of a deceased person is by clear and convincing evidence; whereas, the quantum of proof required against a living putative father is by a preponderance of the evidence.

Clearly this Court has recognized that an illegitimate child may bring a petition for the determination of heirship in the probate court where the decedent’s estate is being administered. Equally certain is our adherence to the requirement that matters relating to bastardy must be brought in the county courts pursuant to Article 7, Section 28, Constitution of Arkansas. The possible confusion of these two positions arises from the language used in some of our decisions, such as Higgs v. Higgs, 227 Ark. 572, 229 S.W.2d 837 (1957); Rapp v. Kizer, 260 Ark. 656, 543 S.W.2d 458 (1976); Stain v. Stain, 286 Ark. 140, 689 S.W.2d 256 (1985); and Jarmon v. Brown, 286 Ark. 455, 692 S.W.2d 618 (1985). All four of these cases held that chancery courts do not have jurisdiction to determine paternity and establish support payments and visitation rights in cases involving an illegitimate child. None of these cases dealt with probate proceedings for the determination of heirship of an illegitimate. Admittedly the language of Rapp and Jarmon was not expressly limited to proceedings to establish paternity, support and visitation, but these decisions are obviously limited to the issues presented. The issues presented in all of these decisions are all limited to true bastardy proceedings.

In Stain we questioned the current relevance of the constitutional provision found in Article 7, Section 28. There we quoted from Higgs, supra, as follows:

The common law affords no remedy to compel a putative father to contribute to the support of his illegitimate offspring. Statutes now exist in most jurisdictions, however, providing for judicial proceedings, usually called filiation or bastardy proceedings, to establish the paternity of a bastard child and to compel the father to contribute to its support____Perhaps the reason for placing jurisdiction in bastardy matters in the county court no longer exists, but nevertheless, the Constitution has not been changed, and the court still has exclusive, original jurisdiction in such matters.

This concern was also reflected in the concurring opinion of two justices in Jarmon v. Brown, supra. This concurrence also specifically objected to the broad language in Rapp v. Kizer, supra.

In the present case the appellant sought only to establish heirship in a probate court, and we hold that she should have been allowed to present her case in that forum. She did not attempt to establish liability for expenses, support payments or visitation rights of an unmarried parent. To the extent, if any, that our prior decisions have implied that county courts have jurisdiction to determine heirship, they are overruled.

Reversed.


text:
    STATE of Arkansas, CHILD SUPPORT ENFORCEMENT UNIT v. Herschel MARKHAM
    87-11
    730 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      Mark Woodville, Asst. General Counsel for Arkansas Department of Human Services, for appellant.

      David B. Switzer, for appellee.
   John I. Purtle, Justice.

The state filed an action in the County Court of Polk County to determine if appellee was the father of an illegitimate child. The referee eventually ruled in favor of the putative father and the state appealed to the circuit court where the appeal was dismissed as untimely.

The bastardy action was commenced on April 4,1984, and a hearing on the merits was held on May 31, 1985. The case was taken under advisement by the bastardy referee. On July 29, 1985, the referee wrote a. letter to the attorneys in which he announced his decision that the appellee was not the father of the child. The letter requested the counsel for appellant or the counsel for the appellee to prepare the order. However, the order was not signed and filed with the county clerk until March 3, 1986. An appeal was filed in the circuit court on March 14,1986. A motion to dismiss for untimeliness was filed by the appellee on March 26, 1986, and granted by the circuit court on July 29,1986. An order of dismissal was entered of record on August 15,1986. Notice of appeal was filed on September 10, 1986.

The question presented for our decision is when does the time for appeal commence to run from an order in the county court deciding the issue in a bastardy action? The statutes, rules and our prior decisions on this subject are somewhat less than clear. We take this opportunity to clarify the matter to the extent possible.

In Thomas v. Easley, 277 Ark. 222, 640 S.W.2d 797 (1982), we held that an appeal in bastardy cases must be made within 30 days from the entry of the judgment. The issue in Thomas was whether the apellant had 30 days or 6 months in which to file an appeal. The issue in the present case is what triggers the running of the 30 days within which to appeal from the decision in a bastardy proceeding. We must decide if time starts when the opinion is “rendered” or on the date of “entry of the judgment.”

After the decision in Thomas the legislature apparently attempted to comply with this decision and the concurring opinion of Justice Frank Holt by enacting what is now Ark. Stat. Ann. § 34-701.1(b) (Supp. 1985). This statute obviously was an effort to clarify the time limit within which appeals to circuit court in bastardy proceedings must be perfected. The statute states in part that an appeal in a bastardy case may be taken as a matter of right “within 30 days after the decision of the bastardy referee is rendered." (Emphasis added). However, Ark. Stat. Ann. § 34-709 (Repl. 1962) allows an appeal from such decisions “as in cases of appeal from judgments of justice of the peace to circuit courts.” Appeals from judgments of justices of the peace are governed by Rule 9 of our Inferior Court Rules. This rule requires appeals to be filed “within 30 days from the date of the entry of the judgment.” However, Inferior Court Rule 1 states: “These rules shall govern the procedure in all civil actions in the inferior courts of this state, except county courts.” (Emphasis added).

Although Rule 9 does require appeals in civil cases of inferior courts to be filed within 30 days from the date of “the entry of the judgment,” the Inferior Court Rules expressly do not apply to decisions of the county courts. We held the 30 day rule applied in Thomas. Even though we held that the 30 day rule applied, we did not intend to hold that the Inferior Court Rules apply to bastardy actions in county court. The Thomas holding was correct, however, where it stated: “Therefore, we conclude that appeals from the county court to the circuit court in bastardy proceedings must be perfected within 30 days.”

In the earlier case of Donley v. State Ex. Rel. Lewis, 226 Ark. 49, 287 S.W.2d 886 (1956), this Court held that an appeal in such matters must be made within 30 days from the date the written order was filed in the county court. The Donley case was factually similar to the present one insofar as the county court had announced the decision, but the decision had not been filed in the county court. The announcement of the decision by the county court was on January 7, 1955, but the written order was not entered until January 20, 1955, and stated it was nunc pro tunc for January 7,1955. Notice of appeal was filed and the record was filed in the circuit court on February 8, 1955. The circuit court dismissed the appeal as untimely. In Donley this Court reversed the circuit court and held the time for the 30 days within which to appeal started when the written order was filed in the record.

It was the obvious intent of the General Assembly by enacting Act 559 of 1983 (A.S.A. 34-701.1(b)) to make the law on this subject conform to the decision of this Court in Thomas. This statute also served the additional purpose of making the time within which to appeal an order of the county court in a bastardy action conform to the time limit for appeals in other courts. We therefore hold that by statute, the period for filing an appeal from the county court in a bastardy proceeding is 30 days, and the time within which to give notice of appeal begins to run when the judgment or order is filed in the county court.

In this case the appeal was filed within 30 days after the judgment was filed and entered of record. Therefore, the appeal to circuit court was timely.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    AMERICAN AUTOMOBILE AUCTION, INC. v. Ralph TITSWORTH and Joe McPEEK
    87-14
    730 S.W.2d 499
    Supreme Court of Arkansas
    Opinion delivered June 15, 1987

      Tatum & Sullivan, P.A., by: Tom Tatum, for appellant.

      Laws, Swain & Murdock, P.A., by: Timothy W. Murdock, for appellee.
   Robert H. Dudley, Justice.

The appellees, Ralph Titsworth and Joe McPeek, filed a tort suit under a negligent supervision theory, seeking to hold the employer, appellant American Automobile Auction, Inc., liable for the intentional acts of its employees. The jury returned verdicts of $50,000.00 for appellee Titsworth and $1,000.00 for McPeek. We affirm the judgment on the verdicts.

The appellant’s first point of appeal is that there is no proof of negligence because, it argues, the employees committed intentional torts against the appellees. The proof was undisputed that the employees committed intentional torts, but such proof does not exclude the theory of negligent supervision of the employees who committed the intentional torts. The appellees’ theory of the case was not based upon imputed liability, and they did not seek an instruction on vicarious liability for the intentional torts, but rather, they sought recovery on the theory of direct liability for the negligent failure to supervise employees.

In determining the sufficiency of the evidence an appellate court reviews the evidence, and all reasonable inferenees from it, in the light most favorable to appellee. Taylor v. Terry, 279 Ark. 97, 649 S.W.2d 392 (1983). In so reviewing the evidence we find that the appellant corporation conducted automobile auctions. It hired David Doster and Don Ball, both ex-convicts. Doster was hired as a sales director and repossessor of vehicles while Ball was hired as an auction ring man and bouncer. At the time of the intentional torts, an auction was being conducted, and employee Ball, who normally drank while at work, had a bottle of beer in his hand.

The president of the appellant corporation, Don Moak, had barred appellee McPeek from attending a different automobile auction which he owned because Moak had previously had trouble collecting a debt from McPeek and his partner. In fact, Moak and employee Doster had repossessed a truck from McPeek’s partner. Even so, appellant corporation mailed a written invitation to McPeek to attend the auction.

On the night of the auction, McPeek went to Moak’s office and asked if he was invited to or barred from the auction. Moak asked him to leave and come back some other time and discuss it. Moak then watched appellee McPeek go into the auction. McPeek caused a disturbance. The appellant’s employees, Doster and Ball, commenced to forcibly eject appellee McPeek. Appellee Titsworth, a large man, attempted, without fighting, to protect McPeek and, at the same time, get him out of the auction area. Employee Doster told appellee Titsworth: “Turn him loose, we’re going to teach him a lesson. This is the reason I pay this boy [Ball] $100.00 a week is to take care of punks like him.” Employees Doster and Ball then viciously attacked appellee McPeek in the auction area. McPeek drew a knife and started to fight back. Appellee Titsworth pleaded with them to stop before someone was killed. Appellee Titsworth then got appellee McPeek away from the auction and led him across the street to Titsworth’s truck. The employees, Doster and Ball, got a shovel and a bumper jack, went across the street to appellee Titsworth’s truck, and severely beat both appellees.

The beatings were so tumultuously administered that a crowd of 50 people gathered before it ended. Even so, the president of the appellant corporation remained in his office.

These facts and the reasonable inferences therefrom establish that appellant corporation hired Ball, an ex-convict, for the purpose of forcefully ejecting people from the auction and teaching “punks” “a lesson.” Ball was paid $ 100.00 per week but only worked one day a week. Ball normally drank at work and had a bottle of beer in his hand when the intentional torts occurred. Doster, another ex-convict, knew that appellee McPeek and his partner owed the appellant’s president, Moak, a debt and he had repossessed a truck from the partner. On the night at issue, Don Moak told appellee to leave the premises, but saw him walk into the auction area. At this point, the president of appellant corporation knew, or by the exercise of reasonable diligence should have known, that appellee McPeek might be forcibly ejected by the corporation’s employees, Doster and Ball. Still he did not exercise any supervisory care on behalf of the appellant corporation.

Clearly, an employer who hires two ex-convicts, one of whom is normally drinking, and entrusts to them the job of forcibly ejecting patrons, has a duty to exercise reasonable care to avoid harm to those patrons by exercising supervisory care when the employer knows, or by the exercising of reasonable diligence ought to know, that such employees are about to forcibly eject a patron.

Appellant next argues that the evidence is insufficient to support the amount of the awards. The argument is without merit. McPeek, who received the $1,000.00 verdict, suffered a permanent scar, plus pain, suffering, and anguish. Titsworth, who received the $50,000.00 verdict, had medical expenses in excess of $3,700.00, is still under medical care, has suffered loss of income, has suffered pain, and according to his medical witness, will continue to do so.

Affirmed.

Holt, C.J., not participating.