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

text:
    Eugene I. PITTS v. STATE of Arkansas
    CR 80-40
    617 S.W. 2d 849
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      William R. Simpson, Jr., Public Defender, and Gene Worsham, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Pitts was convicted of the capital felony murder of Dr. Bernard Jones, committed in the course of kidnapping, and was sentenced to life imprisonment without parole. For reversal he questions two rulings about the admissibility of evidence and, secondarily, the sufficiency of the evidence to support the verdict.

Before narrating some of the testimony we should explain that the appellant questions the credibility of Dr. Jones’s widow, Benita Jones, who identified Gene Pitts as the person who kidnaped her husband, and also relies heavily upon the testimony of Linda Stanley, who said that the Toyota Land Cruiser in which the decedent’s body was found the next morning was parked near her house at 6:07 p.m. In our opinion both those matters presented issues of credibility for the jury.

The three principals, Pitts and the Joneses, were all black persons. Mrs. Jones testified that she first knew Pitts for about a year and a half in the law school at . Fayetteville. She said there were only from 15 to 20 black students, who went to the same places together and got to know each other. She had a car, and she and Pitts traveled in it together to Little Rock once or twice.

Benita married Bernard Jones, a veterinarian, in 1977. In January, 1978, Pitts, not concealing his identity, began to harass her with phone calls to the Legal Aid, where she worked. He seemed to- just want to talk to her, but he also said she would have to belong to him and she would have to get rid of that “Goddamn nigger” she was married to. On Valentine’s Day she received a dozen roses from a flower shop, with no identification of the sender. After the murder a search of Pitts’s home produced a paid receipt from that shop for a dozen roses to be sent to Benita Terry at the Legal Aid. Also on Valentine’s Day Dr. Jones received in the mail a package containing a bullet with “Bernard” scratched on it. A handwriting expert testified that it was highly probable that Pitts wrote the address on the package. Dr. and Mrs. Jones went to the prosecuting attorney’s office and soon obtained an injunction prohibiting Pitts and the Joneses from harassing one another. Mrs. Jones saw Pitts in the course of that court proceeding.

The murder occurred on the evening of January 22, 1979- Dr. Jones left his office at about 5:40, dropped off an employee at about 5:50, and evidently went home. Mrs. Jones got home at about 6:00 and parked her car in the driveway next to her husband’s Toyota Land Cruiser. These times are so well established by independent testimony that there is no doubt about their substantial accuracy.

The Jones house, in the Lakewood area of North Little Rock, appeared tó be dark when Mrs. Jones got home. As she went in the open front door an intruder with a gun stepped from behind the door, stopped her, and made her go up some steps to a hallway, where the light was on. The intruder wore a beanie cap, pulled down, nothing over his eyes, and some sort of mask that concealed his nose and mouth. Dr. Jones was lying face down in the hallway, with his hands and feet tied and something tied around his head. In the hallway Christmas presents, checks, and other articles were scattered about on the floor.

The intruder refused her request to go to the bathroom and ordered her to lie down. She testified: “By this time I knew who he was. and I said, ‘It’s you, isn’t it, Gene?’ And he said, ‘Don’t call me no more Goddamn names and just shut up and lie down.’ ” After she lay down Pitts tied her hands and feet, put a scarf in her mouth, gagged her, and tied something over her eyes. She testified that before she was tied up, Pitts said to her husband, “You lied, didn’t you, Doc?” The witness continued: “That was when we were walking down the hall. He said: ‘You lied, didn’t you, Doc? You told me she had a class.’ Then I said, ‘No, no, he didn’t lie. I had a class but I had to come home and get something.’ He said, ‘Doc, you’re going to have to pay for that. You lied.’ ”

Mrs. Jones testified that after she was bound and blindfolded she could hear Pitts apparently taking things out of the front door. (Later she found that two small TV sets, three watches, a rifle, a shotgun, two cameras, and money were taken. The items were found in the Land Cruiser the next day.) She testified that before Pitts left with her husband, her husband said he could walk and also identified some keys. After the two men left she heard the Toyota Land Cruiser start up. That was 15 or 20 minutes after she got home, which would be about 6:15 or 6:20 p.m.

After Pitts left with her husband Mrs. Jones tried to leave her house, fearing that Pitts would return. Her departure took some time. She got the blindfold down by rubbing her face on the carpet. She also loosened the gag with her tongue. With her hands tied behind her back she was unable to free her feet with a butcher knife on the kitchen floor. She got outside by pushing a little sliding latch with her nose. She “scooted” across the grass to a gate to the neighbors’ yard. The lock on the gate didn’t work, and someone had removed the string the gate had been tied with. She pushed the gate open and reached the home of her neighbors, who let her in and untied her hands and feet. The neighbors testified that Mrs. Jones’s hands were tied behind her back, her feet were tied, and she was partly gagged when she got to their house.

Mrs. Jones called the police, who recorded the time as 6:53. The police tape of the call shows that she said Gene Pitts had tied up her and her husband and had left with her husband in a Toyota Land Cruiser. Officer Montgomery arrived within a few minutes. There was evidence that the intruder had entered the Jones house through a kitchen window and had ransacked the house. Pitts’s fingerprints were not found in the house; Mrs. Jones testified he was wearing gloves. She was positive in her identification of Pitts as the intruder.

Pitts was picked up at about 9:30 p.m. After having been warned of his rights he said that he had been trying to collect rent for his employer. The police asked for some addresses so they could interview the people, but Pitts said there had been so many that he didn’t know any specific address. He did not testify at the trial.

The next morning the Land Cruiser was reported to the police as being parked on Arlington Drive, also in the Lakewood area. Dr. Jones’s body was in a sitting position on the passenger side. He had been shot once in the side of the head and three times in the back of the head. His body was still tied up.

Dr. Jones’s clothing was sent to the FBI laboratory for examination. An expert witness, Mike Malone, testified that he found several Caucasian hairs and a brown Negroid hair on the clothing. The Negroid hair, when examined with a microscope, had 20 different characteristics. Sample specimens of Pitts’s hair had exactly the same 20 characteristics. Malone testified that as part of a test to qualify as an FBI examiner he was given 50 hairs from 50 different persons. He was also given another 50 hairs from the same persons, but they were all mixed up. He passed the test by matching all 50 pairs correctly, with no mistakes. He said that in his nine years’ experience the only way he had seen hairs match the way they did in this instance was when in fact they came from the same person. He testified that his identification was not absolutely positive, like a fingerprint. The jury, however, could certainly have relied upon it in returning a verdict of guilty.

The time discrepancy argued by the appellant is not really serious when the proof is considered as a whole. Mrs. Jones’s testimony puts the departure of Dr. Jones and Pitts in the Land Cruiser at 6:15 or 6:20. Linda Stanley testified that she turned into her driveway on Arlington Drive at 6:07 p.m. by her car clock. As she turned, her headlights shone on a Land Cruiser about a car length away, parked in front of the house next door. She saw two men standing by the vehicle who made an effort to duck away and conceal themselves. She had the impression they were white people, but she did not see their faces and was not certain. She said she may have thought they were white because it is an all-white neighborhood.

Mrs. Stanley had been with a woman friend who was going to meet her to go out to dinner. The friend drove up “right behind me.” When Mrs. Stanley got in her house she found she needed milk and had to go to Skaggs to get it, about two minutes away. She and the friend went to Skaggs and got the milk. The cash register receipt fixed the time as 6:35.

Mrs. Stanley had not mentioned the time of her arrival, 6:07, in her written statements, but at the suggestion of the police and at the request of the defense she submitted to hypnosis, a deputy prosecutor being present. Under hypnosis she remembered the time as 6:07; that, she said, was where the 6:07 time came from. There is no testimony about the reliability of a hypnotically stimulated memory.

The jury could readily have disregarded Mrs. Stanley’s timing, in view of other testimony. Mark Musgrave, then aged 15, testified he lived across the street from Mrs. Stanley. At about 6:30 he was standing at the window of his house, looking for a friend who was to pick him up between 6:30 and 7:00. He was interested in cars and especially liked Land Cruisers. He saw the Land Cruiser drive up and park at about 6:30. Either one or two men got out and ran past Mrs. Stanley’s house toward a field behind it. He was under the impression the man or men were white, but it was dark and raining. He was not sure. He knew Mrs. Stanley. She pulled up about five or ten seconds after the Land Cruiser arrived. About a minute later another lady pulled up and went into Mrs. Stanley’s house. He then left himself and did not see them leave.

Mark also testified that when the Land Cruiser arrived he called his mother from the kitchen to see it. He told her it was the kind of car he wanted. His mother testified to the same effect. She also said that the Mary Tyler Moore show on TV came on at 6:30 while she and Mark were discussing the Land Cruiser. Thus Mark and his mother corroborated Mrs. Stanley’s testimony except as to the arrival time of the Land Cruiser, which they put at just before 6:30. Inasmuch as Mrs. Stanley’s timing is essentially contrary to all the other pertinent testimony, the jury was not required to accept it.

In summary, the state’s proof established Pitts’s motive for murdering Dr. Jones and his various threats to do so. Mrs. Jones’s statements to the police and her testimony at the trial had minor inconsistencies, but there was no variance so great as to weaken her positive identification of Pitts as the intruder in her home. The. FBI testimony about the hair definitely puts Pitts in contact with Dr. Jones. Pitts left the Jones house in the Land Cruiser with Dr. Jones and the stolen articles. The body and articles were in the vehicle the next morning. Mrs. Stanley’s timing of the arrival of the Land Cruiser was contradicted by Mark Musgrave and his mother. Only about three hours after the murder Pitts was unable to account for his earlier whereabouts. We find an abundance of substantial proof to support the verdict.

Second, it is argued that defense counsel should have been permitted to cross examine Dr. Malak, the medical examiner who performed the autopsy on Dr. Jones’s body, about the finding of a few sperm in the anal area. Dr. Malak, owing to the finding of anal scars that might have been attributable to hemorrhoids (which the decedent had) or to anal intercourse, inquired of the police if they had any information about the possibility of Dr. Jones’s having been homosexual. Apparently there was no such information. Dr. Malak explained to the police that it is quite common for a man to ejaculate when he dies a violent death. In his autopsy report Dr. Malak found no sperm in the rectum and concluded that because of spontaneous postmortem ejaculation and the inconclusive result of the anal acid phosphatase, the finding of the few sperm on the anal smear was of no value. In view of what thus amounted to a completely negative finding, the court was right in holding that any reference to homosexuality through cross examination would have had no relevance to the issues and would have involved a danger of unfair prejudice outweighing any possible probative value of the cross examination. Uniform Evidence Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Third, it is argued that the proof of Pitts’s harassing phone calls and his sending the bullet should have been excluded as being too remote and as constituting proof of another crime (a postal violation). The testimony, however, was admissible not only to show motive but also to support Mrs. Jones’s identification. Uniform Evidence Rule 404 (b). It is now suggested that a limiting instruction should have been given, but it was incumbent on the defense to request such an instruction, which was not done. Amos v. State, 209 Ark. 55, 189 S.W. 2d 611 (1945).

We find no prejudicial error in the points argued nor elsewhere in the record.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. For the first time I am dissenting solely upon the ground that I do not find the testimony of a witness to constitute substantial evidence. Without the testimony of the widow there would only be one possibility óf the appellant being connected in any way to this crime. Other than the widow’s testimony, one witness, an expert from Washington, D.C., stated that one Negroid hair was found about the decedent’s clothing. According to the expert, the 20 characteristics found in the hair were the same as the characteristics found in appellant’s hair. There were more than a dozen Caucasian hairs found about the decedent’s clothing but none of them were identified. The expert from Washington admitted he could not positively identify appellant by hair like he could fingerprints. He stated:

Okay. To begin with I don’t want to mislead anyone. A hair is not like a fingerprint. In other words, I can’t say that the hair from those pants came from Mr. Pitts to the exclusion of everyone else.

His report further states:

It is pointed out that hair comparisons do not constitute a basis for positive personal identification.

Speaking of fingerprints, it is most interesting that none of appellant’s fingerprints were found in or around the residence nor in or around the vehicle where the victim was found although more than 50 sets of latent fingerprints were found. The widow indicated her attacker discarded the gloves he was wearing before he left her house.

Turning to the testimony of the widow, her statement was that she arrived home at 6:00 p.m. when the house was already dark. She explained that she could not see her husband and stated:

And, it was dark or I couldn’t see anything and I called out his name.

She testified that as the door moved inward as she opened it a man stepped from behind the door and told her to come on in. The exhibits reveal that this door opens flush with the wall (Exhibit No. 23). In other words, the door would only open to 90 degrees. It would be impossible for anyone to be behind the door. I recognize a person could have been standing in front of the door but not behind it. Although it was dark and the intruder wore a mask covering everything but his eyes, the witness stated:

Yes. When we came in — I looked at him. He said, don’t look at me.

About the same time she stated to the intruder:

It’s you, isn’t it, Gene?

It is difficult for me to believe that any person could identify a black man in a dark house while he was wearing a mask except over his eyes. This was the sole identification witness against the appellant.

The witness further stated the intruder remained there about 20 minutes. Since she arrived exactly at 6:00 p.m., this would mean it was 6:20 when the intruder left in the company of her husband. After the intruder left, the witness stated she worked her way to the patio door, while still bound hand and foot, and managed to open the lock with her nose. In looking at the photographs it appears that the lock is between the handle which opens the sliding glass door and the door jamb. It appears there are approximately three inches between the handle and the jamb. Therefore, it would take a rather long nose to reach into this position and unlock the sliding glass door. After this the witness allegedly slid or scooted across the lawn to a gate which also had a lock on it. The witness apparently told different stories about how this gate was opened. At one point she stated:

With my nose I unhooked the thing, you know, where it hooks.

Defense Exhibit No. 15 is a picture of the latch the witness just described as having opened with her nose. The top part of the latch, which is the part that would have to be pushed up, is 65-1/2 inches from the ground. That would be at least as high as this witness’ head. At any rate, the witness stated she continued to scoot or crawl to a neighbor’s house where she finally gained admission. The neighbor testified her hands and feet were tied but that her clothing did not appear to be soiled or wet. There was snow on the ground and it had been raining.

The witness also was able to get the packing out of her mouth without removing the portion of the gag which held the material in her mouth. Apparently this is so because she still had the piece around her mouth but no material in her mouth when she arrived at the neighbor’s house.

A disinterested witness, Mrs. Stanley, testified that the decedent’s Land Cruiser was parked on Arlington Drive, a considerable distance from the decedent’s home, by 6:07 p.m. on the date of his disappearance. The Land Cruiser was parked in front of the house next door to the witness’s, and she saw two men standing by the vehicle at the time she turned into her driveway. She was of the opinion these were white men. This witness’s friend came up immediately behind her and the two of them went to Skaggs Drug Store and made a purchase. When they left the drug store, the ticket tape was clocked as 6:35 p.m. Therefore, there is very little likelihood that the witness is mistaken in her statement that the vehicle bearing the decedent’s body was parked next door to her house sometime before 6:07 p.m. This witness underwent hypnosis in order to be questioned about the time of day the decedent’s vehicle was seen by her. Under hypnosis she stated the time was 6:07 p.m. There was another witness who stated he saw the Land Cruiser, in which decedent’s body was discovered, pull up to the Arlington Drive address about 6:30 p.m. He further stated that two men got out and ran past Mrs. Stanley’s house toward the field behind it. He too was of the opinion that the men were white. Both the young witness and his mother discussed matters in detail and came to the firm conclusion that the vehicle had been parked before 6:30 p.m. The Land Cruiser in which the decedent’s body was found was not moved from the spot where it was parked until the police recovered it the following morning.

With three or four completely disinterested witnesses testifying the vehicle bearing the decedent’s body was parked on Arlington Drive soon after 6:00 p.m. there is no reasonable possibility of it having left the decedent’s residence after 6:20 p.m. At least three of the four witnesses thought the two men they observed either around the vehicle or running from it were white. This testimony cannot be reconciled with that of the widow.

In fact, during the time the intruder was in the house the widow claims to have been in possession of his gun on at least two occasions. On one of these occasions she threw the gun into a bedroom. Also, when she was asked to lie down in the floor, the shotgun was alongside her. I cannot understand why she did not attempt to use one of these guns at some time during the episode. The widow had been harassed by Pitts in the past, and it is evident from the record that she had no use for him.

I think the hair which supports this conviction is not strong enough to bear the weight of the burden of the sentence of life without parole. There is nothing else upon which this verdict could stand. I am of the opinion that the facts in this case are so weak that they cannot uphold the verdict pronounced by the jury; therefore, I would reverse this conviction.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Verdie MOORE v. STATE of Arkansas
    CR 81-57
    617 S.W. 2d 855
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Verdie Moore appeals from a decision by the Pulaski County Circuit Court that denied his petition for Rule 37 relief without a hearing. The trial judge found that the record in the case conclusively showed that Moore was entitled to no relief. On appeal Moore argues that he was entitled to an evidentiary hearing. We cannot say that the trial judge was clearly wrong and, therefore, we affirm the decision.

Moore was charged with first degree murder. With the assistance of retained counsel, Moore entered a negotiated plea of guilty to second degree murder and received twenty years imprisonment.

Before Moore entered his plea he signed a comprehensive plea statement which informed him of the minimum and maximum sentence for second degree murder. On the plea statement he answered that he fully understood the charges against him, that he had discussed the case with his attorney and was satisfied with the attorney’s services, that he was entering the plea of his own free will without anyone causing him to do so on account of promises or threats, and that he realized the judge was not bound by the agreement.

The trial judge conducted a hearing, as he should have, and questioned Moore about his plea before he accepted the plea. The judge asked Moore if his plea was voluntary and if he understood that he would receive twenty years imprisonment. Moore indicated that he knew he was pleading guilty to the second degree murder of Henry C. Nelson and that no threats or promises or inducements of any kind were made in relation to the plea.

In his petition for Rule 37 relief Moore argued that he had ineffective assistance of counsel, that his counsel used coercive tactics to induce his plea of guilty, and that there was insufficient evidence to sustain the conviction. We agree with the trial judge that the documents in this case conclusively show otherwise. In two instances Moore had an opportunity to deny that he was satisfied with his counsel and in neither instance did he do so. He argues that his lawyer told him that he could receive forty years unless he pleaded guilty. In Horn v. State, 254 Ark. 651, 495 S.W. 2d 152 (1973), we dealt with a similar question of whether statements by counsel concerning the possible sentence that could be received at trial amounted to ineffective assistance of counsel. There we found that the trial court had questioned the defendant on this very matter to make certain that the plea was freely and voluntarily made. We held that Horn could not claim ineffective assistance of counsel since he had the opportunity to raise this issue prior to his plea, and the same is true for Moore. It was not unlikely that Moore could have received forty years on the basis of his statement of what happened. In Moore’s petition for Rule 37 relief he stated that on the night of the incident he decided to get some beer and while in the store making his purchase he met an acquaintance whom he asked to take him home. As they were riding home his acquaintance asked Moore if he wanted to buy a shotgun for $25.00. Moore replied that he had only $13.00. Nevertheless he bought the shotgun with four shells. Instead of going directly home Moore went to the friend’s house where he sat drinking beer until later when he asked his acquaintance to take him home. On the way he saw Henry C. Nelson walking down the street. Moore had had an argument with Nelson days before about money which Nelson owed him. Nelson had told Moore that if he asked about the money again he would kill him. Knowing this, Moore asked his acquaintance to stop the car so that he could talk to Nelson about the debt. In Moore’s pro se motion to vacate his sentence under Rule 37, he stated:

But when he [Moore] confronted Nelson about the money, Nelson became hostile and told the petitioner that he was going to kill him and at the same time, went into, his pocket for a weapon and started towards the petitioner. Whereas the petitioner took his gun out, put two shells in it and to defend himself from what was clearly a matter of self-defense petitioner then shot A. [sic] C. Nelson.

This statement hardly qualifies as a case for self-defense. If anything, it supports the State’s charge that Moore deliberately approached a man whom he knew to be hostile and did not attempt to retreat. Moore had time to get his gun, insert two shells, and shoot Nelson while Nelson did not at any time withdraw his alleged weapon from his pocket.

It would serve no useful purpose to have an evidentiary hearing in this case because the record conclusively shows Moore was entitled to no relief.

Affirmed.

Adkisson, C.J., not participating.


author: John I. Purtle, Justice.

text:
    Billy WOODARD v. STATE of Arkansas
    CR 76-50
    617 S.W. 2d 861
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      Michael Chertoff, Washington, D.C., and Tom Carpenter, for petitioner.

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

Petitioner is an inmate at the Cummins Unit of the Department of Correction under sentence of death from the Poinsett County Circuit Court. He was convicted and sentenced to die on March 4,1976. The crime was capital felony murder in violation of Ark. Stat. Ann. § 41-4702 (Supp. 1973). We affirmed in Woodard v. State, 261 Ark. 895, 553 S.W. 2d 259 (1977), cert. denied 439 U.S. 1122 (1979).

Petitioner’s first assignment of error is the incriminating confessions allegedly made on October 10 and 11, 1975. He asserts these statements were obtained in violation of his rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution. He relies specifically upon the case of Dunaway v. New York, 442 U.S. 200 (1979). Dunaway essentially holds that a Miranda warning is no cure for a voluntary statement given in violation of the Fourth Amendment. In other words, passing the Fifth Amendment test is the threshold for consideration of the Fourth Amendment barrier to such statements. Although petitioner relies on Dunaway, which was decided about the time certiorari was denied in petitioner’s case, the Dunaway case was bottomed squarely upon the case of Brown v. Illinois, 422 U.S. 590 (1975). Therefore, this argument would have been as valid on the original appeal as it is at this time. Dunaway and Brown both hold that there must be probable cause to hold a suspect before a statement made by him may be used against him at the trial. This court specifically ruled upon the voluntariness of the confessions in the direct appeal. We also examined the entire record for any overruled objections which might be prejudicial to petitioner and we found none.

Under the circumstances it seems that this argument is not timely. In any event, the testimony of the officers was that the petitioner voluntarily traveled to the scene of the crime with the deputy and that he was not being held in custody until after he made statements which gave rise to probable cause. We have no quarrel with petitioner’s interpretation of Dunaway v. New York, supra. It just simply does not apply to the circumstances and facts of this case. Petitioner was not held until after he made the inculpatory statements.

The second argument of petitioner is that the confession of September 7 was obtained by coercive efforts on the part of the officers. This was also considered on the initial appeal; furthermore, there was nothing about the statement which was inculpatory. To construe Brown and Dunaway as strictly as petitioner contends would prevent the police from questioning any suspect unless they had probable cause for his arrest. We do not believe the United States Supreme Court intended this result. After the Supreme Court of the United States decided that Dunaway had been seized without probable cause, they proceeded to the question of whether the connection between the unconstitutional police conduct and the incriminating statements was sufficiently atten-tuated to permit the use of them at the trial. Brown identified several factors to be considered when determining whether the confession was obtained by exploitation of an illegal arrest: the temporal proximity of the arrest and confession, the presence of intervening circumstances, and particularly the purpose and the flagrancy of the official misconduct. Such confession may be admitted only after the state has shouldered the burden of proving the statements were not a product of the illegal seizure.

Petitioner raises the issue of the death qualified jury. He argues that juror Bonham was the brother-in-law of the sheriff and should have been excused for cause. Bonham also stated initially that he believed the testimony of a police officer deserves special credence. If the court had not followed through with this juror we would have to agree with the petitioner. However, the following question and answer places the matter within the sound discretion of the trial court:

THE COURT: In weighing the evidence and the testimony do you feel like that you might be more ready to believe or to give more weight or credit to the testimony of a police officer because he was a police officer?
JUROR BONHAM: No, sir, not necessarily, no sir.

In addition to being a matter which is within the discretion of the trial court, this argument could have been raised on direct appeal but it was not. Therefore, we do not find it reversible error. In Beed v. State, 271 Ark. 526, 609 S.W. 2d 898 (1980), the objection was made and the point was argued on direct appeal. The very fact that we did reverse the case in Beed is an indication that we consider these matters very seriously.

Petitioner further argues that the court erred in excluding death-scrupled veniremen from the jury panel in violation of the Sixth and Fourteenth Amendments as set out in Witherspoon v. Illinois, 391 U.S. 510 (1968), and its progeny. Witherspoon was one of the most widely established doctrines in criminal law at the time the petitioner was tried. Surely, an objection would have been made to the seating of a juror which the petitioner thought was not qualified to serve. Certainly such argument would have been carried forth in the initial appeal if there were any substance to the arguments now presented. From the excerpts of the voir dire transcript it appears that the court excluded jurors who stated they did not believe in the death penalty. It is fair to say that these jurors expressed conscientious scruples in opposition to the death penalty. Since this matter could have been initially argued and we do not see anything which would render the judgment void, we do not find reversible error. In other words, it does not appear that it is possible the sentence was imposed in violation of the Constitution or laws of the United States or of this state.

Petitioner again argues that our death statute is unconstitutional as applied to the petitioner. We ruled squarely upon this in the original appeal.

It is also argued that the petitioner’s Sixth Amendment confrontation rights and the due process clause were violated by the prosecutor’s statements in both the guilt and penalty phase of the trial. The record does not reveal any objection to the remarks at the time. Therefore, it is too late to raise this issue at this time. If the prosecutor made remarks which were outside the record, it would have been proper to object and request that the remarks be stricken from the record. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979). The record does reveal that the petitioner was referred to by the prosecutor as an “unemployed mechanic and dog thief possibly.” Objection was made and the court admonished the jury. The comment was withdrawn and stricken from the record.

Petitioner again argues the impropriety of allowing a nonsequestered rebuttal witness to testify. This matter was treated during the initial appeal and presumably was raised in the Petition for Certiorari to the United States Supreme Court which was denied.

The only other substantial allegation made by petitioner is ineffective assistance of counsel. It appears these allegations are merely second guesses at what should have been done. Perhaps no two lawyers would handle a matter in the same manner. For example, petitioner contends counsel failed to discover that the police had arrested petitioner on October 10 without probable cause. This is a conclusion and no facts are alleged. Since the statements made on October 10 were furnished to petitioner and counsel before trial, it should be obvious that he was under arrest at the time. However, the record does not show that the petitioner was arrested prior to the time he made the statements. It may be true that Dunaway v. New York, supra, had not been decided at that time but certainly Brown v. Illinois, supra, and Wong Sun v. United States, 371 U.S. 471 (1963), had been decided. They both stand for the same proposition here argued by petitioner. .It would be mere speculation now to decide whether the trial court would have excluded these confessions had they been challenged under the Fourth Amendment theory. It is also argued that counsel failed to object to certain questions asked by the prosecutor on cross-examination.

We have repeatedly held that the scope of cross-examination is largely within the discretion of the trial court. Alexander v. State, 257 Ark. 343, 516 S.W. 2d 368 (1974).

It appears that the petitioner does not understand the purpose of Criminal Procedure Rule No. 37. It is not intended to provide a review of mere error in the conduct of the trial or to serve as a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). It also seems that petitioner feels that any error is subject to collateral attack. Unless an allegation raises issues so fundamental as to render the judgment void, such issues cannot be raised by the use of Rule 37. Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968); Moore v. Illinois, 408 U.S. 786 (1972). Issues not raised by appellant in his original appeal are considered waived unless they are so fundamental as to render the judgment void. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).

Petition denied.


author: Robert H. Dudley, Justice.

text:
    Jessie O. and Imogene ROBINS v. ARKANSAS SOCIAL SERVICES
    80-318
    617 S.W. 2d 857
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      Thomas J. Ginger and Thad M. Guyer, of Central Arkansas Legal Services, for appellants.

      Breck Hopkins, for appellee.
   Robert H. Dudley, Justice.

On June 17, 1980, the Social Services Division of the Department of Human Services of the State of Arkansas filed a petition in the Garland County Juvenile Court alleging that Shelia, David and Marvin Robins had been abandoned by their parerfts, had no clothes other than those they were wearing, and were neglected children as defined by statute. The Juvenile Court of Garland County ordered that the children be temporarily placed in the custody of appellee Social Services. Shortly thereafter, appellants Jessie and Imogene Robins, the parents of the children, separated. Both appellants gave notice of appeal to circuit court and the attorney for appellants asked leave to withdraw as the attorney of record. He argued that his clients, because of their separation, presented him with a conflict of interest as each individually wanted custody. The appellants then filed a motion asking that each be appointed a separate attorney for their individual circuit court appeals. The circuit judge declined to allow the original attorney to withdraw and refused to appoint an attorney for each of the appellants.

Appellants argue that “Arkansas has not, by statute or case law, adopted a practice of holding bifurcated juvenile proceedings so that the jurisdictional adjudication of dependency is undertaken apart from a custody disposition.” The circuit judge refused to order the juvenile court to hold a bifurcated hearing.

The circuit judge also ruled that the custody dispute between appellants, the mother and the father, had to be tried in chancery court; that the matter of temporary care of the children by the State was properly before the juvenile court; that the quantum of proof was a preponderance of the evidence; and that the decision of the juvenile court should be affirmed.

To resolve the issues presented it is necessary to discuss the jurisdiction of the various courts involved in the field of juvenile justice. In Arkansas the General Assembly does not have the power to create courts. Article 7, § 1, Constitution of Arkansas. Jansen v. Blissenbach, 214 Ark. 755, 217 S.W. 2d 849 (1949). After the Arkansas Constitution was adopted there was a nationwide movement to create juvenile courts. The first juvenile court was created in Illinois in 1899. Twelve years later, by Act 215 of 1911, the Arkansas General Assembly established the juvenile court as a segment of the county court. That act was tested in the case of Ex Parte King, 141 Ark. 213, 217 S.W. 465 (1919) and this court very carefully pointed out that the General Assembly had not created a new court, but authorized the county court, a previously existing and constitutionally created court, to exercise the special subject matter jurisdiction set forth in the statute. This special subject matter jurisdiction was bottomed solely on the basis of a public guardianship over infants as a class. The opinion explains that the existing constitutionally created courts would retain their traditional jurisdiction. Chancery courts would retain general jurisdiction over the persons (custody) and property of minors; probate courts would retain general jurisdiction over guardianships of the persons and estates of minors and of adoptions; while circuit courts would retain civil and criminal jurisdiction over minors.

The purpose of the Juvenile Court Act is to allow the county court to exercise powers “some of which are clearly judicial and others are clearly administrative” to temporarily care for neglected or dependent children. “Certainly, no higher duty could devolve upon the government than to throw proper safeguards around that helpless class who have become dependent, neglected, abandoned and wayward, and who have thus become a charge upon the public, or wards of the State.” Ex Parte King, supra.

Our cases have consistently followed the harmonious system described in Ex Parte King, supra. A few examples of that consistency follow. Scott v. Brown, 160 Ark. 489, 254 S.W. 1074 (1923) held that the juvenile court does not invade the jurisdiction of the probate court over the persons and estates of juveniles. In Cude v. State, 237 Ark. 927, 377 S.W. 2d 816 (1964), the juvenile code then in effect provided that the juvenile court could appoint a guardian, but we held that the appointment of a guardian over a minor was only within the jurisdiction of the probate court. Lee v. Grubbs, 269 Ark. 205, 599 S.W. 2d 715 (1980) holds the same is true even if the child is illegitimate. Edwards v. Martin, 231 Ark. 528, 331 S.W. 2d 97 (1960) distinctly sets out that the probate court has no jurisdiction to hear a contest for the custody of a child, that power being reserved to the chancery court. In Kirk v. Jones, 178 Ark. 583, 12 S.W. 2d 879 (1928), we said, “Minors are the wards of chancery courts, and it is the duty of such courts to make any orders that would properly safeguard their rights.”

In Underwood v. Farrell, 175 Ark. 217, 299 S.W. 5 (1927), we stated that the juvenile court was not a substitute for the circuit court. See also, Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 749 (1980).

In the case before us the three children had been temporarily abandoned. The State was the proper party plaintiff in its public guardianship capacity because an emergency situation involving children existed. Clearly, the juvenile court was the court with jurisdiction to determine whether the children should be placed in the temporary care of the State, and we affirm the circuit judge in so holding.

Each parent asked the circuit judge to appoint an attorney so they could contest permanent custody between themselves. The circuit judge was correct in refusing to appoint attorneys for this purpose. Juvenile court has no jurisdiction to hear custody cases between private litigants. Juvenile courts hear cases involving temporary care of infants as wards of the State, while chancery courts hear custody cases between private litigants. Ex Parte King, supra. Since the juvenile court had no jurisdiction to hear a custody dispute between parents there could be no requirement that attorneys be appointed to represent the separate parents.

The appellants are still married and both still have permanent custody, subject to the temporary care by the State. There is no independent cause of action by which one spouse may sue the other solely for the custody of their children. Suits between spouses for custody are derivative of a divorce action or a separate maintenance action. No such action has been filed in chancery court. The one attorney had no conflict in law by representing both parents against the State in juvenile court or on appeal in circuit court.

Appellants cite a number of cases from other states to support their contention that an attorney should be appointed for the parents in a “termination of parental rights case.” Those cases are not applicable to the Arkansas system because in this state jurisdiction over dependent or neglected children and jurisdiction over termination of parental rights cases are in different courts.

When the juvenile court temporarily places children in the care of the State it does not terminate parental rights. The child is temporarily removed from the physical possession of the parent, but the parents normally may still visit the child; have companionship with the child; discipline the child; inculcate in the child the parents’ moral and ethical standards; control and manage the child’s earnings; control and manage the child’s property; prevent adoption without consent; and have the child bear the parents’ name. The parents still have the duty of support. The parents are not precluded from asking at any time that the child be returned to them. On the other hand, parental rights are greatly limited in the probate court by guardianship proceedings or else in the chancery court by a custody decision. These rights are completely terminated in the probate court in an adoption proceeding. The issue of appointment of an attorney in the case of a parental status termination proceeding is not before us. We affirm the holding of the circuit court in refusing to appoint attorneys for both appellants.

Appellants next ask that we adopt the practice of holding bifurcated juvenile proceedings so that jurisdictional adjudication of a dependent or neglected child is undertaken apart from a permanent custody disposition. We already have such a system, and we could not change it if we wanted, as it is mandated by the Arkansas Constitution for the reasons previously explained.

The issue has not been raised either below or here concerning whether an attorney should be appointed for neglected or dependent children who are indigent. We are disturbed by appellee’s 1978-1979 annual report which is cited by appellants for the proposition that 63 percent of the Arkansas children remain in foster care for longer than one year and that 19 percent remain in foster care longer than six years. Upon an ádversary proceeding, with all the issues and facts being litigated below, we will decide whether thé appointment of an attorney for these children would help prevent a child from spending his or her critical years adrift in foster care.

Appellants contend that the State’s quantum of proof is the standard of clear and convincing evidence. That is the correct standard in some parental rights termination proceedings, for example, an adoption case, Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). However, that is not the standard in juvenile court where there is no permanent termination of parental rights and the interests are different. The State, in its capacity as public guardian of infants, is seeking an order to temporarily care for neglected or dependent children. This action is for the benefit of the children and their rights are at least as great as those of the parents. As a result, the preponderance of the evidence standard is proper and we affirm the circuit judge in so holding.

There was substantial evidence upon which the trial judge based his verdict. The parents, the appellants, left these children with a man with whom they were not well acquainted. They were to be gone two days, but did not return for ten. The appellants never called, never wrote nor did they in any manner let anyone know their location. The father is shown to have a serious drinking problem. Neither had room for the children. The father explained that he hoped to get public housing and the mother testified that she had only one bed which she was sharing with another man. There was testimony that the children were filthy and one was bruised. This testimony, coupled with the desirability of keeping the children together if at all possible, is substantial. We affirm the decision and remand it to juvenile court for continued supervision.


text:
    ARKANSAS GAZETTE COMPANY v. SOUTHERN STATE COLLEGE et al
    81-90
    620 S.W. 2d 258
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981
    [Rehearing denied September 28, 1981.]

      Rose Law Firm, P.A., by; Phillip Carroll, for appellant.

      Steve Clark, Atty. Gen., by; Nelwyn Leone Davis, Asst. Atty. Gen., and Allen, Cabe & Lester, by: H. William Allen, for appellees.
   Robert H. Dudley, Justice.

The appellant, Arkansas Gazette Company, brought suit against the Arkansas Intercollegiate Athletic Conference seeking to compel the AIC to disclose the amount of money that its member institutions had disbursed to student athletes during the last school year. The lower court denied appellant access to the AIC financial records on the basis that the records were “educational” and were required by law to be closed to the public pursuant to the Arkansas Freedom of Information Act, Ark. Stat. Ann. § 12-2804 (Repl. 1979) and The Family Education Rights and Privacy Act of 1974, 20 U.S.C.A. § 1232g.

The AIC is composed of ten Arkansas colleges and universities — five public and five private. It is governed by a constitution and by-laws which require the members to submit an annual report detailing the amount of money disbursed to student athletes. The stated purpose is to support the subsidization of athletes. In North Central Association of Colleges v. Troutt Brothers, 261 Ark. 378, 548 S.W. 2d 825 (1977), we held that a voluntary association of publicly supported educational institutions was subject to the Freedom of Information Act even though the association business was conducted through a private non-profit corporation. Similarly, each of the ten member institutions currently pays $2,800 in annual dues to this voluntary association of colleges and universities. The dues paid by the state supported institutions are from public funds. Therefore the AIC is partially supported by public funds.

The AIC cites McMahan v. Board of Trustees of University of Arkansas, 255 Ark. 108, 499 S.W. 2d 56 (1973), where we found the Freedom of Information Act did not apply to lists kept by the athletic department of people who were issued complimentary football tickets. However, in 1973, the act only required the disclosure of records which by law were required to be kept and maintained. Since that date the General Assembly has amended the act to include records required to be kept or

... (b) otherwise kept and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. § 12-2803.

This addition to the act clearly applies to the AIC and thus the records are public ones. The public has a fundamental right of access to public records. This right is the general rule and secrecy is the exception.

The AIC asks us to construe the act in such a way that these records fall within the “scholastic” exception. “Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals ... [and] statutes enacted for the public benefit are to be interpreted most favorably to the public ... the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.” Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968). Accordingly, we interpret the language of this exception to be limited to individual education or academic records, and we do not construe it to include information concerning the amount of money paid to student athletes. The appellant Gazette has specifically deleted from its request any information about individual scholastic records.

The AIC contends that the records contain confidential information which would violate a student’s reasonable expectation of privacy if released to appellant. No student has claimed a right of privacy and the standing of the AIC to assert the athlete’s claim is doubtful. Even so, we have considered the argument and dismiss it. The AIC report contains the student’s name, the amount paid to him through an AIC grant, the amount paid to him for work, the amount loaned to him, the amount paid to him through three federal and states grants (BEOG, SEIB and EOG, the amount paid to him through other grants, the amount of other financial aid given to him and the amount of notes he may have signed for any of the above. An application by the student for any of the above listed grants or loans is confidential and is not included in the AIC report. The amount of money distributed from the member institution to the student athlete from any of the above sources is the only information contained in the report and is the only information sought. No one has a reasonable expectation of privacy concerning the amount of public funds dispersed to him unless that person clearly comes within one of the exceptions which by law are required to be closed to the public.

The AIC contends, and the trial court held, that the records sought are “educational records” required to be closed to the public under The Family Education Rights and Privacy Act of 1974, 20 U.S.C.A. §§ 1230-1232Í. We disagree. The AIC is not an educational agency or institution subject to the authority of the Federal Commission of Education as defined by the act, § 1232g (a)(3), and is not subject to the act. However, the member institutions are subject to the authority of the Commission and they have been supplying records to the AIC which conceivably are “education records” which are “personally identifiable” as described by § 1232g (a)(4)(A). If the colleges and universities have breached the federal act that breach had already occurred and those member institutions cannot now claim that they should not have supplied the information to the AIC. The records sought are not required by law to be closed to the public.

Reversed and remanded.

Hays, J., not participating.


author: Steele Hays, Justice.

text:
    Gaylon M. MORGAN v. STATE of Arkansas
    CR 80-251
    618 S.W. 2d 161
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      E. Alvin Schay, State Appellate Defender, by: Linda Faulkner Boone, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Stephen M. Sharum, amicus curiae.
   Steele Hays, Justice.

Gaylon Morgan was charged with attempted rape and aggravated robbery. The jury convicted him of attempted rape and reduced the aggravated robbery charge to the lesser offense of theft of property. As a repeat offender, he was sentenced to 40 years for attempted rape and ten years for theft of property, the sentences to run concurrently. For reversal, appellant argues that the jury panel was improper, that the trial judge misinstructed the jury on the defense of intoxication and that the evidence was insufficient to support the verdict. We find no error and affirm the judgment.

On the evening of January 14, 1980, shortly before the 10 o’clock closing hour, Morgan came into the Irish Maid Doughnut Shop in Fort Smith and ordered coffee. The lone attendant, Ms. Vanessa Martin, thought his behavior strange. Morgan left and returned, again ordering coffee. He left once more, returned unnoticed and accosted Ms. Martin in the back of the shop with a pocket knife, saying that he wanted to have sexual relations with her. She managed to fend him off by talking and grabbing his hands as he told her to remove her clothing. She suggested they go to the front to the cash register and as Morgan was occupied with the money, Ms. Martin pressed a silent alarm. During the interval until the police arrived he resumed the sexual advances and tore Ms. Martin’s blouse. The police arrived and Morgan was arrested as he tried to find a means of escape from the building. At police headquarters, he was given a gas chromatograph test for the presence of alcohol and registered 0.15.

There was abundant medical testimony, both at a pretrial hearing on Morgan’s competence to stand trial and during the trial itself, that Morgan suffered from organic brain damage as a result of a high school football injury. He experienced periodic memory loss and brain disfunction as a result of the injury; the condition was exaggerated by the consumption of alcohol. According to the expert testimony, even minimal amounts of alcohol further reduced normal brain function and evoked anti-social behavior.

For reversal, Morgan argues first that the court below erred in not granting a motion to quash the jury panel on the grounds that a jury may not properly be drawn from only the Fort Smith District of Sebastian County. We disagree.

Article 13, § 5 of the Constitution of Arkansas (1874) provides:

Sebastian County may have two districts and two county seats, at which county, probate and circuit courts shall be held as may be provided by law, each district paying its own expenses.

And, Ark. Stat. Ann. § 39-205.1 (Supp. 1979) provides in part:

During the month of November or December of each year, the prospective jurors for the following calendar year shall be selected among the current list of registered voters of the applicable district or county ... (Emphasis supplied.)

Clearly both our Constitution and the statute contemplate that a jury may properly be drawn from only one district within a'county having more than one district. And we so hold. As we stated in our recent decision of Meyers v. State, 271 Ark. 886, 611 S.W. 2d 514 (1981):

The argument which is raised by the motion to quash, that appellant is entitled to be tried by a jury drawn entirely from Sebastian County, rather than from Fort Smith alone, has been considered a number of times and put to rest. Meyers, at 888.

The appellant now submits that Amendment 55 to the Constitution of Arkansas effectively repeals Article 13, § 5, and that our decision in Robinson v. Greenwood District, Sebastian County Quorum Court, 258 Ark. 798, 528 S.W. 2d 930 (1975), compels the same result in this case. We did not reach this particular argument in Meyers because the issue was not properly raised in the court below. See, Meyers, at 887. We now have the issue properly presented.

In Robinson, the very narrow question of whether Sebastian County could be administered by two separate quorum courts under Section 13, Act 128 of 1975, was settled. We held that it could not:

However, the 1974 Amendment 55 to our constitution contains provisions that are patently inconsistent and incompatible with these two districts continuing to have separate quorum courts which is provided by Section 13 of Act 128. Robinson, at 801.

The decision in Robinson did not, as appellant contends, invalidate Article 13, § 5 of the Constitution of Arkansas (1874). Indeed, nothing in Amendment 55 is inconsistent with the provisions of Article 13, § 5, which are at issue in this case, that is:

Sebastian County may have two county seats, at which county, probate, and circuit courts shall be held as may be provided by law. ...

Further, under this same point for reversal, the appellant argues that annexation by the city of Fort Smith of surrounding areas in effect changes the boundaries of the Fort Smith and Greenwood Districts. Appellant asserts that these boundary changes of the two districts are arbitrary, without authority, conducive to gerrymandering and in some manner prejudicial to the appellant. However, he has failed to cite any authority for such broad assertions and has failed to state a compelling reason why we should adopt such a position. Therefore, we decline to consider this argument. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977).

Appellant also insists that there was not sufficient evidence to support the convictions. The argument relies on the voluminous expert testimony concerning appellant’s mental condition. We note that it is not argued that the court erred in finding the defendant competent to stand trial following the pretrial hearing and that issue is not before us. Rather, the appellant complains of a lack of sufficient evidence to prove a culpable mental state or the specific intent required by the statutes under which he was charged. It is enough to state that the jury is not bound to accept the expert testimony as conclusive to the exclusion of any other evidence. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979).

Thirdly, the appellant argues that the trial court erred in instructing the jury on the defense of intoxication. In giving the instruction the trial court properly combined AMCI 4001 and AMCI 4005, as intended by the Arkansas Model Jury Instruction, Criminal, but in so doing the trial judge added a paragraph at the end not presently in the AMCI:

In this connection you are further instructed that, before intoxication would excuse a defendant on this charge, it must not be voluntarily produced for the purpose of nerving the defendant to carry out a preconceived design, and the intoxication must be so complete, and to the extent that reason is dethroned and the defendant rendered incapable of having a specific intent to commit the offense. Partial intoxication, which merely arouses the passions and influences the mind of the defendant will neither mitigate nor lessen the degree of guilt of either of these offenses, if he still knew right from wrong, the probable consequences and results of his acts, and was capable of the specific intent.

Appellant contends in his brief that the instruction as given “improperly intermingled the specific intent instruction with the affirmative defense instruction.” We find no merit in this argument as the comments accompanying AMCI 4001 plainly state that the affirmative defense instruction is to be included between the first and second paragraphs of AMCI 4001 which is how the trial judge combined the two. Appellant also urges that the instruction as given places the burden of disproving specific intent on the appellant rather than on the prosecution. However, when the instructions are read as a whole we have concluded that the jury was not misinformed as to where the burden of proof rested. The trial judge instructed on the elements of attempted rape and robbery and gave AMCI 107, which told the jury that the State must prove beyond a reasonable doubt every element of the offenses charged. Furthermore, AMCI 4001 includes a reminder that the burden of proof remained on the State:

Whatever may be your findings as to this defense, you are reminded that the state still has the burden of establishing the guilt of Gaylon Morgan on the whole case beyond a reasonable doubt.

Appellant also points out that the trial judge failed to adhere to the Per Curiam order of January 29, 1979, by modifying an AMCI instruction without stating his reasons. Ordinarily, that requirement applies whenever an AMCI instruction is refused or modified. Wharton v. Bray, 250 Ark. 127, 464 S.W. 2d 554 (1971); and Vangilder v. Faulk, 244 Ark. 688, 426 S.W. 2d 821 (1968). Here, however, the comment to AMCI 4005 makes note of the fact that a model instruction has not yet been drafted in conformance with Act 101 of 1977 and in the absence of an applicable AMCI instruction the trial judge is free to give the instruction he thinks proper, using language that is “simple, brief, impartial and free from argument.” (See Per Curiam order of January 29, 1979 ) The appellant argues correctly that the added wording contains argument and that there was no evidence that appellant drank for the purpose of nerving himself to carry out a preconceived design. However, the objection did not reach these issues and so we do not consider them. Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738 (1974).

Lastly, appellant tendered two instructions of his own dealing with intoxication. We find no indiscretion in their refusal, as they were covered adequately by the instructions from AMCI. Fields v. State, 255 Ark. 540, 502 S.W. 2d 480 (1973).

The judgment is affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    Michael D. FAUGHT v. LIGON SPECIALIZED HAULER, INC. and James S. BRADLEY
    81-82
    619 S.W. 2d 627
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981

      Thompson, O’Brien & Martin, by: Howard L. Martin, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Richard B. Adkisson, Chief Justice.

This appeal is from a judgment in the amount of $2,600 for damages sustained by appellant Faught which he received when appellee Bradley, a driver for appellee Ligón Specialized Hauler, Inc., negligently caused a load of lumber to slip off his truck and crash into the appellant’s automobile. The $2,600 judgment represents a $2,500 jury award for personal injury damage and a @100 award, as agreed, for property damage.

Appellant first argues that the appellee unnecessarily brought the subject of insurance to the attention of the jury by asking appellant if he had made a collision claim against his insurance carrier involving an unrelated accident which occurred several months after the accident in issue. We are unable to reach the issue of whether or not this question was prejudicial within the context in which it was asked because the appellant neither requested that the jury be instructed to disregard the question nor asked for a mistrial. Under such circumstances, alleged prejudicial error is not preserved for purposes of appeal by merely making an objection since counsel did not make known to the court the action which he desired the court to take. Rule 46, Ark. Rules Civ. Proc., Vol. 3A (Repl. 1979).

The appellant next argues for reversal that the court improperly instructed the jury regarding the measure of property damages and that a release given by the appellant’s insurance carrier in favor of the appellees was not pleaded as an affirmative defense. These issues are not preserved for consideration by this Court since the record clearly indicates that the appellant agreed and stipulated that the issue of property damage would not be submitted to the jury but, instead, that @100 would be added to any judgment in favor of appellant for all property damage sustained to his automobile.

Further, when the court modified appellant’s requested instruction on the measure of property damages he made no objections as required by Arkansas law. Missouri Pacific Railroad Co. v. J. W. Myers, 196 Ark. 976, 120 S.W. 2d 693 (1938); Rule 51, Ark. Rules Civ. Proc., Vol. 3A (Repl. 1974).

Affirmed.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    A. B. v. ARKANSAS SOCIAL SERVICES et al
    81-35
    620 S.W. 2d 271
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied September 21, 1981.]

      Daniel J. Runde, for appellant.

      Judith P. Balentine, for appellee.

      Theodore C. Skokos, for Dorothy Anne Greenfield, minor.
   George Rose Smith, Justice.

This guardianship case has to do with Anne, a child born in Arkansas in 1978. She was later placed in the custody of Arkansas Social Services. In June, 1979, the juvenile court of Pulaski county granted Social Service’s petition for authority to file a proceeding in the probate court for the appointment of a guardian for the child with power to consent to her adoption without notice to the child’s natural parents. Ark. Stat. Ann. § 56-126 (Supp. 1979).

The present proceeding was accordingly filed in probate court in March, 1980. About a month earlier the child’s mother had decided to give up the child for adoption and had signed a formal entry of appearance and consent to adoption without notice. The appellant, A. B., is conceded by Social Services to be the child’s father, although at the child’s birth her mother was married to another man, with whom she had not lived for some years. A. B. was made a party to this proceeding and has contested it from the beginning.

The matter was referred to a special master, who conducted a hearing and made findings that were adopted by the probate court. The court’s order granted the petition, appointed Ivan H. Smith as guardian with power to consent to adoption, and found that A. B. is not a fit and proper person to have the child, for three reasons:

(1) This father’s actions have caused his incarceration and his failure to meet his parental responsibilities for a period of more than a year;
(2) Placing the child in the father’s custody would raise a substantial risk of serious harm to the child due to the mental and emotional illnesses of the father which have resulted in repeated incarcerations and failures at rehabilitating his own life; and
(3) The father’s past behavior indicated an irremediable inability to provide for the basic, essential and necessary physical, mental and emotional needs of the child.

The appellant argues that the proof does not support the court’s findings. In a case such as this one, in which a natural parent’s consent to adoption is to be dispensed with, the basis for the court’s action must be proved by clear and convincing evidence. Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979).

The court’s first finding is essentially one of abandonment under § 56-128 (D) (1) (Supp. 1980), which requires a finding that the parent has abandoned the child, by conduct evidencing “a settled intent to forego parental rights and responsibilities.” There is a rebuttable presumption of abandonment if the parent has without just cause, for a period of one year immediately preceding the filing of the petition, failed to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility. Id.

We find the proof insufficient to support the first finding. A. B. entered the Department of Corrections two weeks before his child’s birth, to begin serving a five-year sentence. Over a period of nearly two years, beginning when Anne was four months old, two Social Services case workers took the child for a total of nineteen two-hour visits with her father. The case workers’ testimony rebuts the notion that A. B. had a settled intent to abandon his child. He was gentle with the child and expressed his love and concern for her. In fact, the special master said at the close of the hearing that the father obviously loved the child very much. Mere incarceration is not conclusive on the issue of abandonment. Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W. 2d 765 (1976). Inasmuch as A. B. was released on parole a month after the present petition was filed, there was a marked failure by the petitioner to show abandonment for more than a year immediately preceding the filing of the petition.

The second and third findings are both under § 56-128 (F), but that subsection specifically states that before a ground of unfitness may be established under its provisions the court must be satisfied that the parents have received from Social Services for a period of up to six months “remedial support services” and that such services have failed to substreduce the risk of harm to the child. No such program has been attempted or even shown to be needed. Apart from that fatal defect, there is no proof that this father’s custody would present a risk of substantial harm to his daughter. At the time of the hearing he had been incarcerated for about 20 of his 41 years of life, originally as a teen-ager. He served all of a ten-year sentence for manslaughter in California; other comparatively short sentences made up the rest of the total. There is no showing of present mental or emotional illness. No witness testified to that effect. A. B. spent some time in mental institutions in California many years ago, but there is no indication of the nature of his illness or of its continued existence. The proof intended to support the second and third findings does not meet the minimum requirements of the statute.

In stressing the deficiencies in the petitioner’s proof we do not in any way imply that A. B. is entitled to Anne’s custody. That issue is not even presented by this case. We must, however, reverse the trial court’s decision; in doing so we suggest that the case may appropriately be referred again to the juvenile court, to the end that it and Social Services may resume their efforts to preserve this family relationship.

Reversed.

Hays, J., not participating.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. In two cases interpreting the new adoption law we have taken the view that the law should be liberally interpreted so that the legal father cannot unreasonably block the adoption of his child.

In Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979), we held that the legal father who had not contributed any money to the support of his child for “at least ten months” forfeited his right to object to the adoption of his child. In Henson v. Money, 273 Ark. 203, 617 S.W. 2d 367 (1981), decided only weeks ago, we held the legal father forfeited his rights when he did not pay support payments for fifty-one weeks. In both cases the fathers were the legal biological fathers of the children, who had in the past supported their children.

In this case the father has never sought any legal rights to the child which is his out of wedlock. In Roque v. Frederick, 272 Ark. 392, 614 S.W. 2d 667 (1981), we held a putative father had the right to a hearing regarding his rights. We did not hold a putative father necessarily had any legal rights to the child. That depends on the circumstances of the case.

The father in this case has spent a good part of his life in mental and penal institutions. He admitted to being incarcerated for about twenty of his forty-one years. He was in the Arkansas penitentiary when the child was born.

Why Arkansas Social Services took the child to the penitentiary for regular visits I do not know. Perhaps this was done at the order of the Juvenile Court or perhaps in the belief that this man and the mother might get married.

The testimony was that after he was released he did not seek to visit the child. He said he called the social worker a few times but she was not in. But the social worker in charge of the case said he never contacted her regarding the child. He has not ever paid a dime’s support for this child. He admits to being in the custody of the California Youth Authority when he was thirteen or fourteen. He admitted he pleaded guilty to manslaughter in California and was sentenced to serve from six months to ten years. He served every day of the ten year sentence. He admitted he stole an automobile in San Francisco for which he received probation. He was in jail numerous times. His “rap sheet” reads as follows:

Greenfield admitted most of the convictions but claimed there was another man named David Allen Greenfield in California that must have committed some of these acts.

The evidence reflects that since he was released from the Arkansas penitentiary he has moved about and changed jobs. There was evidence he had not been completely honest about his employment since he was paroled.

I find that all this evidence supports the probate judge’s two findings:

(2) Placing the child in the father’s custody would raise a substantial risk of serious harm to the child due to the mental and emotional illnesses of the father which have resulted in repeated incarcerations and failures at rehabilitating his own life; and
(3) The father’s past behavior indicated an irremediable inability to provide for the basic essential and necessary physical, mental and emotional needs of the child.

I would agree that incarceration alone is not grounds to find abandonment. But the test on review is not whether we are convinced that there is clear and convincing evidence of the probate judge’s findings, but whether we can say that the probate judge was clearly wrong in his findings. Rules of Civil Procedure, Rule 52.

This father may need this child but this child does not need this father. Social Services owes no duty to put this father and child together. They worked on this case providing support financially and otherwise to both the father and mother for over a year. This child does not need its life and well being delayed any longer. There was sufficient evidence to support the probate judge’s findings and I would affirm the decree.


author: Frank Holt, Justice. George Rose Smith, Justice,

text:
    Jeffery TALLEY et al v. MFA MUTUAL INSURANCE COMPANY
    81-16
    620 S.W. 2d 260
    Supreme Court of Arkansas
    Opinion delivered July 6, 1981
    [Rehearing denied September 21, 1981.]

      Frierson, Walker, Snellgrove & Laser, by: Paul Mark Ledbetter, for Don A. Davis, Imogene Davis and Phillip Anthony Davis; and Seay, Bristow & Res, by: Bill W. Bristow, for appellants.

      Cathey, Goodwin, Hamilton & Moore, by: Donis B. Hamilton, for appellee.
   Frank Holt, Justice.

Appellee brought this declaratory judgment action to determine its liability to various appellants under a homeowners policy issued to appellants, Don and Imogene Davis. Both appellee and appellants, the Davises and their son Tony, sought summary judgment. The trial court granted summary judgment in appellee’s favor based on the pleadings and affidavits, finding appellee had no liability under the terms of the policy.

Rick Evans, Jeffrey Talley and Tony Davis, appellants, were among those attending a party at the home of a friend, Joe Burns. Evans and Talley were 18 at the time — Davis was 16. An altercation arose between Davis and the other two. Davis, who had apparently consumed considerable alcohol, left the party about 11 p.m., procured a shotgun and returned to the house. Some of the guests were outside and he told them to tell Evans and Talley to come outside if they still wanted some arguments. Shortly thereafter, those at the party heard shots and discovered the rear windows of the Evans and Talley cars, parked in the driveway, had been shot out. Davis circled the block and shot at the car windows a second time. Talley and Evans at some point took shotguns from the Burns’ house and went outside in the area of their cars. Davis returned again and fired a third time in the direction of the cars. He then drove away and did not return. In this final round of fire, Talley and Evans were hit by the shotgun blasts. As a result Talley is totally blind and Evans is partially blind.

Upon being notified that a claim had been made against the Davises, the insureds, by Talley and Evans, appellee filed this action to determine appellee’s liability under both the automobile policy and the homeowners policy, the latter being the subject of this appeal. The homeowners policy provided liability coverage for “bodily injury or property damage, to which this insurance applies, caused by an occurrence.” “Occurrence” is defined in this section as “an accident.” The insurer has a duty to defend “even if any allegations of the suit are groundless, false or fraudulent...” The exclusionary language states that the policy does not cover “bodily injury ... which is either expected or intended from the standpoint of the insured.”

It is well settled that a summary judgment is an extreme remedy and is only proper whenever the pleadings and proof show that no genuine issue exists as to a material fact, and the moving party is entitled to a judgment as a matter of law. Any proof submitted with the motion must be viewed in the light most favorable to the party resisting the motion with all doubts and inferences being resolved against the moving party. Wirges v. Hawkins, 238 Ark. 100, 378 S.W. 2d 646 (1964); and Saunders, Adm’x v. Nat'l Old Line Ins. Co., 266 Ark. 247, 583 S.W. 2d 58 (1979).

The crucial question presented here is whether a liability policy such as this one provides coverage for the unintended results of an intentional act. If so, summary judgment was improper because there is a question of fact as to whether or not the injuries were intended or were merely the unintended result of an intentional act, shooting at the cars.

In a supporting affidavit, Tony Davis stated the injuries were not the intentional or expected result of any negligence on his part. The Davises, the insureds, in their pleadings and affidavit, stated the injuries were neither expected nor intended from the standpoint of the insured and that their son did not see Talley and Evans at the time of the shooting nor did he expect or intend to harm them. In Talley’s pleading and supporting affidavit, he stated that, having full knowledge of the circumstances, including his location and position at the time of the injuries he suffered, it was his opinion that Davis neither intended nor expected to cause him personal injury. An individual, who lived next door to the Burns and witnessed the incident, stated by affidavit that he saw Talley and Evans come out of the house and hide behind the cars berore the second round of shooting at which time a window and fender of another car were damaged. However, when the car made its third trip in front of the house it was his impression that the boys, who had been in the driveway, were in the house and he could not see them at that time. It was approximately midnight and the street lights did not provide much light. It was his opinion that the driver of the car did not see the youths but was shooting at the cars in the driveway and the pellets accidentally hit Talley and Evans.

The majority of jurisdictions would allow coverage for unintended results of an intentional act under this or similar language. The clear language of the policy exclusion itself, as quoted previously, states there is no coverage for injury that is expected or intended. In 10 Couch on Insurance 2d, § 41.6, the author states:

It is only the intended injuries flowing from an intentional act that are excluded;... and a homeowners policy covers bodily injury from unintended results of an intentional act but not for an injury which was intended.
For purposes of determining whether recovery can be had under an ‘accident’ provision of a liability policy, the resulting damage can be unintentional and therefore accidental even though the original acts were intentional ... If the consequences consisting of damages from intentional acts are not intended and are unexpected they are ‘accidental’ within a policy. ...

See also Anno., 2 ALR 3rd 1238.

In Lyons v. Hartford Insurance Group, 125 N. J. Super. 239, 310 A. 2d 485 (1973), the court had before it a policy containing the same language as here. The court there said:

The general rule is that coverage exists under insuring and exclusion clauses identical or similar to the ones involved here for the unintended results of an intentional act, but not for damages assessed because of an injury which was intended to be inflicted.

The court there distinguished those cases in which an intentional act resulted in an intended injury, although different in kind or more severe than intended.

In State Farm Mutual Auto Ins. Co. v. Worthington, 405 F. 2d 683 (1968), the insured contended he was shooting warning shots in the dark when he shot and killed the plaintiffs son. The court there rejected the argument that because the act, the shooting, was intentional so were the resulting injuries, stating this was too broad an interpretation of the exclusionary clause. The court quoted a Missouri case holding that, although the discharge was intentional, whethér the killing was intentional or not presented a fact issue. Some courts, on this issue, have also cited the rule of construction that, because the exclusionary provision is ambiguous, not clearly expressing an intention to exclude unintentional results of deliberate acts, any ambiguity must be resolved against the insurance company who drew up the contract. Smith v. Moran, 61 Ill. App. 2d 157, 209 N.E. 2d 18 (1965).

Appellees cite National Investors Life and Casualty Insurance Company v. Arrowood, 270 Ark. 617, 606 S.W. 2d 97 (CA 1980), in which the court of appeals discussed this issue. There the court expressly stated, however, it did not have before it the issue of “reconciling an intentional act with an unintended result.” Furthermore, the appeal was not, as here, based on a summary judgment.

Neither are we persuaded by the argument that an unintended result of an intended act cannot be an “occurrence” or “accident” within the coverage of the policy. See Lyons v. Hartford Insurance Group, supra. Furthermore, we see no violation of public policy in allowing recovery in circumstances in which it is shown the results were accidental or unintended. Nor do we adopt the tort concept that one intends the natural and foreseeable consequences of his acts so as to bar recovery for unintended results. See 7A Appleman, Insurance Law and Practice, § 4492.01, p. 29, stating this has no application in interpreting terms of insurance contracts.

The short of it is that if Tony Davis intended to shoot Talley and Evans, then there is no coverage. If he did not and it was mere negligence on his part, as he contends, then there is coverage. We hold a fact issue exists as to whether he intended to hit or injure Talley and Evans. Many acts are intentional in one sense or another; however, unintentional results often flow from intentional acts.

Furthermore, the court erred in awarding summary judgment against the parents of Tony, the insureds or policy holders. Their rights are severable under the policy. Under the terms of the policy, whether the act was “expected or intended” must also be looked at from the “standpoint of the insured,” the parents, the Davises. As to them, the injuries were not alleged to be intentional. As indicated, the insurer has a duty to defend the Davises “even if any allegations of the suit are groundless, false or fraudulent.” We think that from the pleadings and proof, the Davises are entitled to coverage as a matter of law.

Reversed and remanded.

George Rose Smith, Hickman, and Hays, JJ., dissent in part.

George Rose Smith, Justice,

dissenting in part. I agree that the judgment should be reversed as to the appellee’s coverage of Tony Davis’s parents, but I cannot join in the reversal as to Tony himself.

The affidavits of Johnny White and Melody James stand uncontradicted as to admissible facts based on personal knowledge, as required by ARCP, Rule 56 (e). Those witnesses say that Tony had been drinking heavily, having consumed “quite a few” shots of unmixed whiskey. Tony started to leave and got into an argument with Evans and Talley, in the course of which Talley kicked Tony in the face twice before Tony was able to drive off.

Johnny and Melody then drove to the county line to get more beer, a round trip we may judicially notice to exceed 12 miles. While they were gone Tony went home and got a shotgun and shells for it. As Johnny and Melody were walking up the driveway upon their return, Tony drove up, found out who they were, and yelled: “Tell those sons of bitches Talley and Evans to come out if they still want some arguments,” or words to that effect.

Johnny and Melody went in and delivered the message. Tony was heard to fire the shotgun. He returned and fired more shots while Evans and Talley were each getting a shotgun themselves. They went outside. Tony returned and must have shot directly at them, for he succeeded in hitting each one in the face. Such accuracy is not an accident. In response to the appellee’s affidavits, Tony Davis filed only a weasel-worded affidavit saying that “the alleged injuries” of Evans and Talley “were not the intentional or expected result of any negligence on my part.” Thus there is absolutely no sworn denial by Davis of the charge that he intentionally shot Evans and Talley.

Under our summary judgment procedure, when a motion for summary judgment is supported by affidavits, the opposing party cannot rely on the mere allegations or denials of his pleadings. He must meet proof with proof, setting forth “specific facts” showing there is a genuine issue for trial. Act 160 of 1967, now incorporated in ARCP, Rule 56 (e); Coffelt v. Ark. P. & L. Co., 248 Ark. 313, 451 S.W. 2d 881 (1970).

The affidavits here can only be understood to say that Davis challenged Evans and Talley to come out and continue the fight, they responded to the challenge, and Davis shot them both. If a jury should find, on this evidence, that the tragic injuries to Evans and Talley were the “unintended results of an intentional act,” I do not see how anyone could say that the verdict was based on substantial evidence. That being true, the summary judgment as to the appellee’s freedom from responsibility for Tony Davis’s conduct should be affirmed.

Hickman and Hays, JJ., join in this dissent.