text:
    Benfordene Butler SMITH v. STATE of Arkansas
    CR 97-1190
    974 S.W.2d 427
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Willard Proctor, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Mac Golden, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

Appellant Benfordene Butler Smith appeals her conviction for the January 26, 1996 slaying of Burt McKinley. A jury convicted appellant of capital-felony murder and sentenced her to life imprisonment without parole. Appellant raises four points on appeal. We find no error and affirm.

We need not recount the facts in great detail because the question of sufficiency of the evidence is not raised by appellant or preserved for our review. Burt McKinley was stabbed to death in his Stuttgart residence during a robbery. The murder weapon, a knife, came from an apartment that appellant and Pam Isbell shared. It appears that following several hours of drug use, the two roommates and Greg Martin decided to rob McKinley to get money for more drugs. While there was inconsistent testimony as to which of the participants stabbed the victim, all three were at or near the murder scene at the time of the slaying, and then rented a motel room and renewed their drug use following McKinley’s death. The murder weapon and a bloody jump suit that appellant had been wearing before the robbery were recovered near McKinley’s house.

The issues on appeal include whether the trial court committed error in (1) refusing to give a non-model jury instruction on the legal requirement for status as an accomplice; (2) allowing evidence of appellant’s prior conviction; (3) allowing rebuttal evidence of prior bad acts of appellant; and (4) allowing the admission of statements made by appellant. We address each of these issues in the order presented.

I. Accomplice-Status Instruction

At trial, the court refused to give the following instruction, proffered at appellant’s request:

Mere presence, acquiescence, silence or knowledge that a crime is being committed, in the absence of a legal duty to act is not sufficient to make a person an accomplice.

The trial court stated that it felt that this instruction was covered in AMI Crim. 2d 403, which was given, along with AMI Crim. 2d 401 on the same subject. The trial court further noted, in refusing to give appellant’s proffered instruction, that nothing prevented appellant from arguing in closing that mere presence, acquiescence, silence, or knowledge that a crime was committed was insufficient to support a finding that she was an accomplice.

Appellant asserts that the trial court erred in refusing to give the proffered instruction. She argues that AMI Crim. 2d 403 was inadequate because it does not state that an individual may be present and not be an accomplice, and that because AMI Crim. 2d 403 does not state the law, a non-AMI instruction should be allowed.

We addressed this issue in Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997). In Calloway, the appellant argued that the trial court erred in refusing to give a proffered jury instruction, which is identical to the one before us, in conjunction with AMI Crim. 2d 401. Calloway, 330 Ark. at 148, 953 S.W.2d at 573. We stated that in reviewing the trial court’s refusal to give the non-model jury instruction, the trial court should not use a non-model instruction unless it finds that the model instruction does not accurately reflect the law. Id. (citing Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994)). We adhered to our previous decisions in which we had declined to alter AMI Crim. 2d 401 to reflect the legal principle that mere presence is not enough to establish accomplice liability, finding that our previous reasoning on the issue was sound. Id. (citing Williams, 329 Ark. at 21, 946 S.W.2d at 688; Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996)).

We have adopted the reasoning that under AMI Crim. 2d 401 and 403, both of which were given in this case, the State must prove that the accused was engaged in activity that aided in the commission of the crime and, by implication, that the accused was not merely “present.” Id. If the State proves that an individual was present when a crime was committed but does not prove beyond a reasonable doubt that the individual participated in some way in the crime, then the State has not met its burden. Id. Following this rationale, it would be redundant for the trial court to instruct the jury on what does not give rise to accomplice liability in addition to what does. Id. In both Williams and Webb, we rejected the requirement of a “mere presence” instruction and held that AMI Crim. 2d 401 accurately and completely reflects the law of accomplice liability. Id.

Based on our clear language in Calloway and its predecessors, we affirm on this point.

II. Admissibility of Appellant’s Prior Conviction

Prior to trial, appellant filed a motion in limine to exclude the introduction of evidence relating to a prior conviction for which she was incarcerated over ten years before. Although the trial court ruled at the time that the prior conviction was inadmissible under Ark. R. Evid. 609 (1998) because more than ten years had passed, the trial court ruled during trial that the State could question one of appellant’s character witnesses about her knowledge of the convictions. Based on the latter ruling, appellant’s counsel chose to elicit the information about the prior conviction during his direct examination of appellant when she was recalled. On appeal, appellant argues that the ruling admitting evidence of her prior conviction violated Ark. R. Evid. 609.

Under Rule 609, a party may attack the credibility of a witness with evidence that she has previously been convicted of a felony or crime involving dishonesty or false statement, as long as not more than ten years have elapsed since the date of conviction or release from confinement. Ark. R. Evid. 609(a) and (b) (1998). Appellant’s reliance on Ark. R. Evid. 609 is misplaced. Rule 609 applies only when one is attempting to show that the witness herself has been convicted of a crime. Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986); Barker v. State, 21 Ark. App. 67, 728 S.W.2d 204 (1987).

Appellant’s Rule 609 argument raises a relevancy question under Ark. R. Evid. 405(a). See Barker, 21 Ark. App. at 66-67, 728 S.W.2d at 210. Evidence must pass muster under our relevancy inquiry based on Rules 404 and 405 of the Arkansas Rules of Evidence. First, a defendant must establish that the character evidence is admissible under Rule 404, which states in pertinent part:

(a) Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.

Ark. R. Evid. 404(a)(1) (1998). Once the defendant establishes the admissibility of the character evidence under Rule 404, Rule 405 establishes the methods of proof that may be used. Gooden v. State, 321 Ark. 340, 902 S.W.2d 226 (1995) (citing Smith v. State, 316 Ark. 407, 872 S.W.2d 843 (1994)). Rule 405 provides that in cross-examining a defendant’s character witness, it is permissible to inquire into the witness’s knowledge of relevant specific instances of conduct. Ark. R. Evid. 405(a) (1998).

It is well established that a defendant may open the door to evidence that might otherwise have been inadmissible by producing a character witness. See, e.g., Gooden, 321 Ark. at 342, 902 S.W.2d at 227; Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986); Reel, 288 Ark. at 190, 702 S.W.2d at 810. In Gooden, the appellant was accused of arson. He called a witness at trial who testified that the appellant had been with him the day of the fire and stated, “I don’t believe he would do anything like that. I’ve been knowing him too long. He’s not that type of guy.” Gooden, 321 Ark. at 341, 902 S.W.2d at 227. The trial court ruled that by this testimony, the appellant had opened the door by placing his character in issue with the witness’s statement that he “wouldn’t do that sort of thing.” Id. The trial court allowed the State to cross-examine the witness by asking him if he was aware that the appellant had been previously convicted of four felonies. We affirmed the trial court’s decision concluding that the cross-examination was allowed not to show that the appellant had committed the arson, but to determine the weight to be given the character testimony of the witness. Id.

In reaching this conclusion, we relied principally on Rules 404 and 405 and on our decision in Reel, where we explained the reason for the rule set out in Ark. R. Evid. 405(a) as follows:

The policies behind rule 405(a) are, however, distinguishable from those underlying rule 609(a). The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness’ knowledge of facts which should have some bearing on the accused’s reputation. If the witness does not know that an accused was previously convicted of a crime, the witness’ credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness . . .
By presenting a character witness an accused opens the door which would otherwise be closed. If he wants us to know what his reputation is, we must be able to determine the witness’ awareness of the relevant facts.

Reel, 288 Ark. at 191-92, 702 S.W.2d at 810-11; see also Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997).

The trial court ruled on the basis of appellant’s motion in limine that the State could not question appellant about her conviction for possession of marijuana with intent to deliver because it was outside the ten-year limit. Later, the trial court ruled that if appellant opened the door by producing a character witness, it would conduct a sidebar conference at that time and determine whether the State would be allowed to cross-examine the witness regarding her knowledge of the prior conviction. The trial court also stated that it would give the jury an appropriate limiting instruction.

Relevancy of evidence is within the sound discretion of the trial court, subject to reversal only if an abuse of discretion is demonstrated. TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688, 946 S.W.2d 930 (1997). The trial court’s ruling in the case before us follows the principles established by the foregoing case law. Furthermore, the prior conviction came in because appellant herself took the stand and admitted it in direct examination rather than waiting and risking its admission during cross-examination. We find no abuse of discretion, and we affirm the trial court’s ruling.

III. Admissibility of Appellant’s “Prior Bad Act” Through a Rebuttal Witness

Appellant’s third point concerns whether the trial court erred in allowing Isbell to testify on rebuttal about appellant’s violence toward her. At trial, appellant called Urella Johnson as a character witness in her defense. Johnson not only testified that appellant was a nonviolent person, but also that she knew of no occasion in which appellant had been violent toward Pam Isbell.

The State then offered Isbell as a rebuttal witness. Isbell testified that appellant had on one occasion attempted to cut her with a knife, and that appellant had been the initial aggressor in several fights between the two of them. Isbell testified that she had filed charges against appellant after she had tried to cut her. Appellant contends that the trial court erred in allowing the State to present this testimony concerning specific instances of violence because only character evidence of reputation or opinion may be used for rebuttal.

As a general rule, proof of other crimes or bad acts is never admissible when it is only relevant to show that the accused is a bad person. Spohn v. State, 310 Ark. 500, 837 S.W.2d 873 (1992). However, when the accused raises the issue of her pertinent character trait, then the State is permitted to introduce rebuttal evidence on the trait, and evidence that is otherwise inadmissible may become admissible. Ark. R. Evid. 404(a)(1); see also Landrum v. State, 320 Ark. 81, 894 S.W.2d 943 (1995); Wilburn, 289 Ark. at 228, 711 S.W.2d at 762.

We considered a similar question in Spohn where the appellant raised the issue of his character by testifying on direct examination that his relationship with the victim was not violent and that he had never had thoughts of harming her. Spohn, 310 Ark. at 503, 837 S.W.2d at 874. The appellant further testified that he had never been charged with an act of violence. Id. On cross-examination, the State inquired whether the appellant had ever held a woman in Sedona, Arizona, against her will. The appellant responded that he had experienced a “blackout” in Sedona. Id. We ruled that the trial court did not err in permitting the State to respond to this testimony because the appellant had opened the door by testifying about his peaceful character. We found the following language instructive:

Ordinarily, if the defendant chooses to inject his character into the trial in this sense, he does so by producing witnesses who testify to his good character. By relating a personal history supportive of good character, however, the defendant may achieve the same result. Whatever the method, once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits — but only these traits — is open to rebuttal by cross-examination or direct testimony of prosecution witnesses.

Id. at 503, 837 S.W.2d at 874-75 (citing 1 John W. Strong, McCormick on Evidence §§ 190 & 186 (4th ed. 1992)).

Appellant argues that Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), requires reversal of the trial court’s decision. We disagree. In McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986), we examined Kellensworth and carefully distinguished two types of situations that may arise in cases such as this. We pointed out that in such cases as we cited under Point II above, we have held that a party opens the door to rebuttal testimony showing bad character by giving direct evidence of good character. Id. We differentiated this situation from that involved in Kellensworth, where we held that evidence of good character may not be rebutted with evidence of bad acts. We stated that Rule 404(b) does not preclude introduction of evidence of a pertinent character trait if the evidence is relevant to the main issue of the guilt or innocence of the accused and does not merely show the accused bad’s character or action in conformity. Id.

In the case at bar, appellant raised the character issue. Appellant’s counsel procured Johnson’s statement on direct examination that appellant was not a violent person and that she had no knowledge of any instances where appellant had ever been violent towards Pam Isbell. By raising this issue regarding the pertinent character trait of appellant’s nonviolent nature, appellant opened the door for the State to call Isbell to rebut Johnson’s testimony.

Admissibility of rebuttal evidence is discretionary with the trial court, and we will not reverse absent a showing of abuse of that discretion. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). We conclude that the trial court’s ruling on this issue did not constitute an abuse of discretion, and we affirm on this point.

IV. Admissibility of Appellant’s Custodial Statements

For her final point on appeal, appellant urges reversal based on the trial court’s denial of her pretrial motion to suppress her custodial statements. Appellant here challenges (1) whether the statements were voluntarily made and (2) whether the statements were made after a knowing and intelligent waiver.

After appellant filed a pretrial motion to suppress her custodial statements, the trial court held a hearing on April 1, 1996, during which the court stated: “the main thing we are doing is the motion to suppress . . . [appellant’s] statement.” The principal issue that the parties debated at the hearing was whether appellant’s counsel, Denese Fletcher, phoned the jail after she was retained and requested that appellant not be questioned anymore. At the conclusion of the hearing, the parties were to brief the issue and provide phone records to substantiate whether Fletcher had made the alleged contact. From the record, it is unclear how, or if, the court specifically ruled on this after the briefing. However, just prior to the beginning of the trial, the trial court summarily denied all of appellant’s pending motions, including the motion to suppress.

Appellant’s pretrial motion to suppress was sufficient to raise the issue of the voluntariness of her custodial statement and to require the court to hear evidence out of the jury’s presence. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). The trial court met its obligation to have a hearing by holding the April 1, 1998 hearing. The State presented a witness, Detective Keith Connell, who testified regarding appellant’s custodial statements. Aso, appellant presented her counsel, Fletcher, as a witness, and she testified that at some time after appellant retained her, she had requested that appellant not be questioned.

Appellant relies on our decision in Rankin v. State, 329 Ark. 379, 948 S.W.2d 379 (1997), where we remanded a case to the trial court to conduct a hearing on whether the appellant’s custodial statements should be suppressed. This situation is different because the court did hold a hearing on the suppression issue and later denied appellant’s motion. Beyond that, the burden was on the appellant to obtain a ruling. See Wright v. State, 327 Ark. 558, 940 S.W.2d 432 (1997).

A statement made while the accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). We make an independent review of the totality of the circumstances surrounding the confession to determine whether appellant knowingly, voluntarily, and intelligently waived his constitutional rights. Davis v. State, 330 Ark. 76, 953 S.W.2d 559 (1997). We reverse only if we determine that the trial court’s finding was clearly erroneous, viewing the evidence in the light most favorable to the State. Id.

We have pointed out that there are two components in the inquiry into the validity of a defendant’s waiver. Humphrey, 327 Ark. at 760, 940 S.W.2d at 863. First, we examine whether the statement was voluntary. Id. The “voluntary statement” argument addresses whether the statements were the product of a free and deliberate choice rather than intimidation, coercion, or deception. Id. (citing Colorado v. Spring, 479 U.S. 564 (1987) and Moran v. Burbine, 475 U.S. 412 (1986)). We look at the following factors to aid us in making our determination: “age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment.” Id. at 760, 940 S.W.2d at 864.

Second, we examine whether the waiver was knowingly and intelligently made. Id. The “waiver of rights” argument focuses upon whether the waiver was made with a “full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” as well as whether the accused made the choice, “uncoerced by police, to waive his rights.” Id.

Appellant, in a pretrial motion, moved to suppress all five custodial statements that were subsequently admitted at trial. We review these statements to determine whether the trial court’s rulings were clearly erroneous.

A. Custodial Statement No. 1, January 21, 1996, early morning

Appellant made her first statement when the police picked her up for questioning in the early morning hours of January 27, 1996. The police informed appellant of her rights pursuant to Miranda v. Arizona, and she indicated that she understood and signed her waiver-of-rights form. At this time, she stated, “I didn’t kill Burt McKinley. I asked Kenny for ten dollars, but I did not talk about killing Burt.”

Based on the factors which aid us on review, we conclude that the trial court did not err in admitting this statement because it was voluntary and was the product of a knowing and intelligent waiver. Appellant was forty-two at the time of these statements. She was advised of her constitutional rights, and signed a waiver form indicating that she understood them. She was picked up for questioning and promptly released after indicating that she had no knowledge of the incident. No evidence was presented that Detective Connell used any coercive tactics or threats to compel the statement, or that the form of the questioning was repeated or prolonged. Detective Connell had been informed that appellant had been smoking crack on the evening in question, and he testified that he observed no signs of intoxication and that appellant did not appear to be incapable of giving a statement due to the influence of drugs or alcohol. However, even if she had been intoxicated, that issue would be a question of fact regarding whether she lacked capacity to waive her rights intelligently, and would be a question for the trial court to resolve. Standridge v. State, 329 Ark. 473, 951 S.W.2d 299 (1997). Also, evidence of intoxication reflects on the credibility of the statement, not its admissibility. Id.

Based on these facts, we conclude that this statement was the product of appellant’s free and deliberate choice and that her waiver was made with a full awareness of her rights and a choice to waive those rights. Therefore, the trial court did not err in admitting this statement into evidence.

B. Custodial Statement No. 2, January 21, 1996, afternoon

Appellant was released and subsequently picked up around 1:50 p.m. on the same day, after the police officers found additional evidence linking her to the crime. Again, the officers read appellant her rights, and she signed and initialed the waiver form, acknowledging that she understood her rights. This time, when the officer showed her the blue coveralls, she stated, “That’s my clothes. I want a lawyer.” The officers testified that the questioning ceased at that point.

Police officers may interrogate a suspect until she unequivocally invokes her right to counsel, at which time the interrogation must cease. Davis, 330 Ark. at 87 n.2, 903 S.W.2d at 562 n.2. Appellant’s statement identifying her jump suit is admissible because it occurred after she signed her waiver form and before she invoked her right to counsel. We conclude that the trial court’s admission of this statement was not clearly erroneous.

C. Custodial Statement No. 3, January 29, 1996

The third statement was taken on January 29, around 4:53 p.m., after appellant initiated contact with Detective Connell. Detective Connell again read appellant her rights, and she signed another waiver form. In her statement, appellant said that she had been with Pam Isbell and Greg Martin in her apartment at the time of McKinley’s death. She also identified her jump suit and repeatedly asserted that she did not know anything about the incident.

During custodial questioning, an individual may terminate all questions by indicating that she wishes to remain silent. Davis, 330 Ark. at 87, 953 S.W.2d at 562. However, if an accused, who had previously expressed a desire to deal with the police only through counsel, initiates further communication or conversation, she waives the previous invocation of the right to counsel. Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997) (citing Edwards v. Arizona, 451 U.S. 477 (1981)).

Under the circumstances before us, we cannot say that the trial court’s decision to admit this statement was clearly erroneous because, although she had previously invoked her right to counsel, the evidence shows that appellant initiated this communication herself.

D. Custodial Statement No. 4, February i, 1996

On February 1, 1996, appellant gave her fourth statement while being interviewed by Investigator C.A. Beall and Sergeant John Howell of the Arkansas State Police. Appellant gave two statements at this time. She was yet again informed of her rights and signed a waiver form. The first statement was taken at 1:58 p.m., and the second at 3:13 p.m. In the first statement, appellant acknowledged that the coveralls and knife that the police possessed were hers, and she stated that she did not remember a lot of things from the day of the slaying because she was under the influence of alcohol and crack cocaine.

In the second statement, appellant related her version of the events on the night of McKinley’s death. She recalled that she, Isbell, and Martin were drinking and smoking crack that afternoon when they hatched a plot to rob McKinley. Martin questioned her about McKinley and asked her if he could borrow a knife to “scare” McKinley. She said that Martin left and came back, telling appellant and Isbell to get a motel room. They then bought some more crack. She stated that Martin later told her that he had cut McKinley.

At the April 1 hearing on the pretrial motions, appellant argued that she retained counsel around February 1, 1996. However, appellant never reinvoked her right to counsel after she initiated contact with Detective Connell either on January 29 or February 4. Although Denese Fletcher testified that she contacted the police station sometime after February 1, the approximate date that appellant retained her as counsel, and instructed them to refrain from questioning appellant further, we have no other evidence supporting that assertion or indicating that appellant had any knowledge of the call. In Moran v. Burbine, 475 U.S. at 422, the Supreme Court concluded that an accused’s knowledge, or lack of knowledge, of outside events is irrelevant to her capacity to understand and voluntarily relinquish a known right. Further, appellant again signed and initialed a form indicating that she understood her rights and waived them prior to the state police officer’s questioning.

No evidence of coercion or changed circumstances gives us reason to find that this statement was the product of anything other than appellant’s free will. Again, we cannot say that the trial court’s decision to admit this statement was clearly erroneous.

E. Custodial Statement No. 5, February 4, 1996

Appellant gave her fifth statement to Detective Connell on February 4, 1997, at 5:37 p.m. Appellant sent a message through a matron that she wanted to speak to him and give a statement. Detective Connell read appellant her rights, and she again signed and initialed a statement indicating that she understood them. This statement was more detailed in its account than the February 1 statement. Appellant here said that she and Isbell accompanied Martin to McKinley’s house. She said that she pointed out the house to Martin, and that she and Isbell went ahead and waited for Martin on the street. The account is consistent otherwise, but with more details of the evening. Detective Connell read the statement into evidence.

Appellant argues that the trial court erred in admitting this statement because she had invoked her right to counsel. In arguing that this contact was impermissible, appellant overlooks the fact that she reinitiated contact with Detective Connell on February 4. By reinitiating contact with Detective Connell, appellant waived her prior invocation of her right to counsel. See Stephens, 328 Ark. at 88, 941 S.W.2d at 415 (citing Edwards v. Arizona, 451 U.S. at 484-84). Because appellant reinitiated this contact with Detective Connell and signed another waiver-of-rights form, we cannot find clear error in the trial court’s admission of her fifth statement under these circumstances.

Ark. Sup. Ct. R. 4-3(h) Compliance:

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed, and it has been determined that there were no reversible errors with respect to rulings on objections or motions prejudicial to appellant.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    QUALITY FIXTURES, INC. v. MULTI-PURPOSE FACILITIES BOARD for Pulaski County, Arkansas; Bob Russell; Sherman Tate; Billie Ann Meyers; Dr. George Mitchell; Lee Frazier; and Hussey Seating Company
    98-722
    970 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      Skokos, Bequette & Billingsley, P.A., by: Jay Bequette and Keith I. Billingsley, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard P.L.L.C., by: Tim E. Howell, Lance R. Miller and W. Christopher Barrier, for appellees.
   Per Curiam.

Appellee Hussey Seating Company moves this court to dismiss the appeal of appellant Quality Fixtures, Inc., on the basis that Quality Fixtures failed to include a statement in its notice of appeal that financial arrangements had been made with the court reporter, as required by Ark. R. App. P.—Civ. 3(e). The motion to dismiss was filed on June 12, 1998, and was accompanied by a partial record. Quality Fixtures responds that financial arrangements were in fact made with the court reporter and that this is evidenced by an affidavit from the court reporter, Maude Parkman, and by an affidavit of its counsel of record, Keith I. Billingsley. Quality Fixtures also points to the fact that the transcript was tendered to this court on June 22, 1998. Hussey Seating’s motion to dismiss was submitted to this court for decision on June 25, 1998.

This court stated in Green v. Williford, 331 Ark. 533, 961 S.W.2d 766 (1998) (per curiam), that the fact a notice of appeal does not include the financial-arrangements language did not render the notice of appeal automatically void but merely voidable. We further stated that a contest to the notice of appeal must be timely made and that the proper procedure was to file a motion to dismiss accompanied by a partial record. In Green, we denied the motion to dismiss because it was filed after the court reporter had been paid and after the record with the transcript had been filed. Because the record had been filed, we deemed the financial-arrangements issue to be moot.

Since Green v. Williford, supra, we have dismissed three cases for failure to comply with the financial-arrangements requirement of Rule 3(e). See Billy Bowman v. City of Russellville, No. 98-628 (June 18, 1998); Benton/Washington County Water Association v. Citizens for Feasible & Affordable Water, Inc., No. 98-566 (June 4, 1998); Deborah Washington v. Roberta Collins, No. 98-377 (April 16, 1998). None of those cases involved the fact situation we are confronted with today where the appellant’s record with the transcript has been tendered to the Supreme Court prior to submission of the motion to this court for decision.

We view this situation as analogous to that in Green v. Williford, supra. The purpose behind the financial-arrangements language has been satisfied by the tendering of the record prior to submission of the motion to dismiss. As was the case in Green v. Williford, supra, we consider the appellees’ motion to be moot and direct the Clerk of the Supreme Court to file the record.

Glaze, J., not participating.

       A petition for reconsideration filed by appellant Benton/Washington County Water Association was submitted on July 2, 1998.


text:
    Daryl VAUGHN v. STATE of Arkansas
    CR 98-741
    970 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered July 9, 1998

      J. Leon Johnson, for appellant.
    No response.
   Per Curiam.

Appellant Daryl Vaughn, by his attorney, J. Leon Johnson, has filed a motion for rule on the clerk. The motion admits that the record was not timely filed and that it was no fault of the Appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam). Here, the attorney admits that the record was filed one day late, and that he was in error in failing to file the record on time.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978). A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Motion granted.


author: David Newbern, Justice. Annabelle Clinton Imber, Justice,

text:
    Warren LOOPER, Jr. v. Melvin THRASH
    98-260
    972 S.W.2d 250
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998

      Oscar Stilley, for appellant.

      Friday, Eldredge & Clark, by: R. Christopher Lawson, for appellee.
   David Newbern, Justice.

This is an illegal-exaction case. Melvin Thrash, the appellee, served as Adjutant General of the State of Arkansas from September 21, 1993, to December 14, 1996. Warren Looper, Jr., the appellant, filed a complaint against Mr. Thrash on February 27, 1997. Fie alleged that, because Mr. Thrash lost his “federal recognition” upon reaching age 64 on May 1, 1996, Mr. Thrash’s acceptance of salary from May to December, as well as his use of a residence at Camp Robinson, known as the “Pike House,” at a reduced rental rate during that period, constituted an illegal exaction. Mr. Looper sought to have Mr. Thrash return to the State the salary received from May to December of 1996 and the “reasonable rental value of the Pike House less amounts actually paid thereon.” He further sought an order divesting Mr. Thrash “of all benefits and perquisites of his illegal office holding, including but not limited to retirement benefits or credits.” The Chancellor granted summary judgment to Mr. Thrash. We affirm.

We have not previously dealt with issues arising from the duality of responsibilities for the National Guard, but we have learned from our study of the state and federal statutes discussed below, as well as from cases decided in other states, that a state’s militia is governed by state law unless it becomes “federalized.” While a state’s militia remains under a state’s aegis, under the control of state officials, its equipment may be furnished by the federal government, and the states strive to achieve federal recognition for their militia units, and their personnel, so that they may be prepared for state or federal service. Perhaps the best explanations of the division of responsibilities between state and federal authorities appear in Holmes v. California Army Nat’l Guard, 920 F.Supp. 1510 (N.D. Cal. 1996), and Taylor v. Jones, 495 F.Supp. 1285 (E.D. Ark. 1980).

The argument presented by Mr. Looper is based on Arkansas Code Ann. § 12-61-201 (Repl. 1995), which provides:

(a) The organized militia shall be commanded by a general officer who shall be federally recognized or qualified for federal recognition in a rank not higher than major general.
(b) He shall be responsible for the military efficiency of the Arkansas organized militia.

Mr. Thrash does not contest the allegation that he lost his federal recognition on May 1, 1996. That was due to 32 U.S.C. § 324(a) (1994), which provides:

An officer of the National Guard shall be discharged when—
(1) he becomes 64 years of age; or
(2) his Federal recognition is withdrawn.
The official who would be authorized to appoint him shall give him a discharge certificate.

Apparently on the questionable assumption that the “organized militia” is “commanded” by the Adjutant General, Mr. Looper seized upon § 12-61-201 for his argument that Mr. Thrash illegally occupied the office of Adjutant General from May 1 until December 14, 1996. We need not decide in this case whether that is so.

We find nothing in the United States Code that requires that a state’s adjutant general be federally recognized to serve in that position. The pertinent (federal) National Guard Regulation, AR 600-100, § 11-3(1), provides, “A State Adjutant General may be appointed and serve in that capacity without Federal Recognition.” That, however, does not end the inquiry on Mr. Looper’s argument. Arkansas law must be examined further to determine whether Mr. Thrash’s loss of federal recognition made him ineligible to hold the position and, if so, whether his receipt of remuneration as he continued to serve in the position without being replaced by the appointing authority amounted to an illegal exaction.

Arkansas Const. art. 11, § 1, entitled, “Militia,” provides:

The militia shall consist of all able-bodied male persons, residents of the State, between the ages of eighteen and forty-five years, except such as may be exempted by the laws of the United States or this State, and shall be organized, officered, armed and equipped and trained in such manner as may be provided by law.

Laws enacted pursuant to art. 11, § 1, are found in Act 50 of 1969 which, in § 46(a), codified as Ark. Code Ann. § 12-60-102(1) (Repl. 1995), provides that the “organized militia” is “the National Guard of the state as defined in 32 U.S.C. § 101(3).” That federal-statute subsection contains only the following definition: “ (3) ‘National Guard’ means the Army National Guard and the Air National Guard.” 32 U.S.C. § 101(3) (1994).

“The Governor, by virtue of his office, shall be Commander-in-Chief of the militia, except the parts thereof as are ordered into the service of the United States.” Ark. Code Ann. § 12-61-102 (Repl. 1995).

Arkansas Code Ann. § 12-61-105(a) (Repl. 1995) provides that “[t]here shall be an Adjutant General of the state who shall be appointed by the Governor and shall be a commissioned officer in the Adjutant General’s department of the National Guard of this state and shall have rank not higher than major general.” The qualifications are further spelled out in § 12-61-105(b). Section 12-61-105 states nothing with respect to federal recognition.

We cannot, however, ignore a statute that has not been cited in this appeal, i.e., Ark. Code Ann. § 12-61-202 (Supp. 1996). It provides:

The land force of the organized militia shall be the Army National Guard as contemplated under the laws of the United States and shall comprise the army units which are a part of the Arkansas National Guard on February 12, 1969, and such other army units as may be allocated, accepted, and organized thereafter, including the personnel who are enlisted, appointed, or commissioned therein, provided that all persons who are members of the Army National Guard shall be federally recognized as such. [Emphasis supplied.]

It is thus apparent that, upon the loss of his federal recognition, Mr. Thrash lost his eligibility for membership in the Arkansas National Guard. He was not replaced, however, and continued to act in the position until his resignation on December 14, 1996. As there is no federal law on point, we must examine the Arkansas law applicable to an official who, although qualified upon appointment, loses his qualification but becomes a defacto or “hold-over” appointee.

In Sitton v. Burnett, 216 Ark. 575, 226 S.W.2d 544 (1950), the Clinton City Council employed Mr. Sitton as marshal even though Mr. Sitton was not a resident or “qualified elector” of that city and was thus ineligible to serve as marshal pursuant to a constitutional provision, a statute, and case law. We affirmed the judgment in favor of the taxpayer who sued to recover the salary paid.

We acknowledged that Mr. Sitton had in essence been a de facto officer of the city. We pointed out, however, that, in a prior phase of the case, Thomas v. Sitton, 213 Ark. 816, 212 S.W.2d 710 (1948), we had said that a defacto officer “is not entitled to the salary provided for the services of city marshal.” Sitton v. Burnett, 216 Ark. at 576, 226 S.W.2d at 545.

We then noted Mr. Sitton’s argument that, “since he was concededly a defacto officer, had performed the duties of the office of marshal in good faith, and there was no adverse claimant, or de jure officer claiming the salary, he, appellant, was entitled to said salary and could not be required to make refund.” Sitton v. Burnett, 216 Ark. at 577, 226 S.W.2d at 545. We rejected the argument. We said the argument would have been correct but for the statute addressing “usurpation of office,” now codified at Ark. Code Ann. § 16-118-105 (1987). We said that a defacto officer qualifies as a “usurper” and that, if there is no person “entitled to the office” to bring suit, the “fees and emoluments” may be recovered “by the State” — apparently through a taxpayer-initiated suit — and “paid into the public treasury.” Id. In that situation, the fees collected by the usurper “are not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance.” Id. at 578, 226 S.W.2d at 546 (quoting Stephens v. Campbell, 67 Ark. 484, 55 S.W. 856 (1900)). The Sitton case might be controlling here if Mr. Thrash had “usurped” the office of Adjutant General at the outset of his appointment, but that did not happen. Again, no one questions Mr. Thrash’s qualifications to serve at the time he was appointed.

Revis v. Harris, 217 Ark. 25, 228 S.W.2d 624 (1950) (“Revis I”), and Revis II, 219 Ark. 586, 243 S.W.2d 747 (1951), involved the claim of a taxpayer that Sam Harris, while serving as mayor of Clarksville, illegally held the post of municipal judge and also illegally obtained contracts for himself with the city-owned light and water system. The taxpayer sought, among other things, to recover for the State the money received by Mayor Harris (1) for his work as judge, and (2) on the contracts he made with the city utilities. The case was dismissed, and we reversed in Revis I and said that

if appellant’s allegations in his complaint to the effect that appellee [the mayor] had been paid sums of money illegally by the City of Clarksville while acting as Municipal Judge, and for other services, without right or authority of law, were true, appellant stated a cause of action and was a proper party to initiate the suit. Revis I 217 Ark. at 29, 228 S.W.2d at 626.

On remand, the Mayor argued that his receipt of money for his work as judge, and for the services “as a laborer for the water and light department,” was not illegal. We said that he had effectively made a plea of quantum meruit. Revis II, 219 Ark. at 587, 243 S.W.2d at 748. The Chancellor enjoined the Mayor from accepting employment “outside of his duties as mayor” but dismissed that part of the complaint requesting the Mayor to repay the salary he had received for working as a judge and as a utility “laborer.” The Chancellor agreed that it had been “illegal,” in light of Ark. Stat. Ann. § 19-909, for the mayor to do this work but reasoned that it would be “unjust and inequitable” to require repayment where the Mayor had rendered those extra services “while acting in good faith.” Id. at 589, 243 S.W.2d at 749.

We reversed in part and affirmed in part. Citing Sitton v. Burnett, supra, we required the Mayor to repay the salary he had earned for his work as municipal judge and observed that the mayor had not been a de jure judge in light of the statute prohibiting dual office-holding. Thus, we reversed on that point.

We affirmed on the question whether the mayor should repay the salary earned through his work on the contracts he made with the city utilities. On that issue, we conceded it had been illegal for the mayor to do that work but agreed with the argument that “the payee may retain the quantum meruit value received for services rendered even when there is a violation of the said section.” Id. at 590, 243 S.W.2d at 750. We said that the statute rendering that labor “illegal” did not make the contract “null and void,” and we further suggested that the contract had been performed in “good faith.” Id.

We did, however, require repayment of the money received for service as municipal judge and wrote in Revis II that the Sitton decision required return of the funds received illegally by Mr. Harris “as an officer.” Again, it was illegal for Mr. Harris to enter upon the office of municipal judge while he was mayor. Revis II was not a case in which the officer was qualified upon entry but lost his qualification later.

In Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963), we rejected the plaintiffs claim that dual office-holders were required to repay the salary they had received through the improper “second” office. We noted that there was “nothing in the record to justify a finding that appellants have acted with any fraudulent intent, or that they have even appreciated the possibility of their holding illegal offices. Under the circumstances, those appellants should not be required to account for funds received for services rendered and expenses incurred as Members of the involved State Boards.” Id. at 331, 372 S.W.2d at 588.

We expressed a similar view in Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977). There, a legislator held the office of deputy prosecuting attorney in violation of a constitutional provision that prohibits a member of the General Assembly from holding another state office. The legislator argued that “he had in good faith performed the duties” of deputy prosecutor and won summary judgment. Id. at 709, 551 S.W.2d at 203. We affirmed, quoting the Starnes opinion, and said that the State could not receive a “windfall” in light of the deputy prosecutor’s “good faith performance.” Id. at 710, 551 S.W.2d at 203. But see Mackey v. McDonald, 255 Ark. 978, 984, 504 S.W.2d 726, 732 (1974)(stating “fraud or bad faith” need not be shown in illegal-exaction cases; “A good faith misapplication of funds in a manner or for a purpose not authorized by law constitutes an exaction from the taxpayers which is illegal even though not fraudulent.”).

While our cases thus suggest that one who enters upon an office “illegally” may be liable to an illegal-exaction claim, we have no case dealing with an illegal-exaction claim against an officer who, although qualified at the time of appointment, as in this case, continues to serve after losing his qualification. Cases decided in other contexts are, however, helpful.

In May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975), an alderman was convicted of a crime and was replaced. The conviction was reversed, and upon remand, the charge was dismissed. The alderman sued his replacement and claimed that his office had been usurped. The issue on appeal was whether the complaint stated a cause of action. We held that it did and wrote:

We have said that an office does not ipso facto become vacant when a condition of ineligibility of the incumbent arises after he takes office, if he was eligible when he took office, and the subsequent ineligibility merely affords grounds for removal. Stafford v. Cook, 159 Ark. 438, 252 S.W. 597 [1923].

May v. Edwards, 258 Ark. at 876, 529 S.W.2d at 651.

That decision was consistent with our earlier holding in City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954). In that instance, Mr. Binam, the Berryville City Marshall, did not seek reelection to the position, and the person elected to succeed him failed to qualify. Mr. Binam continued in the office as a “hold-over.” The Berryville City Council had purported to reduce the city marshall salary from $100 to $1 per month. Mr. Binam was paid the monthly $1 during the time he held over in the position. He sued the City for the $100 monthly salary allegedly owed to him during the hold-over period. A statute, Ark. Stat. Ann. § 19-1103, specifically provided that a city marshall “shall continue in office until his successor is elected and qualified.” We held that he was entitled to the $100 per month. We did not limit our discussion of the law to the statute but said the following:

An officer who holds over and continues to perform the duties of his office after expiration of his term is entitled to compensation up to the time he ceases to discharge his duties. 62 C.J.S., Municipal Corporations, § 529; McQuillin, Municipal Corporations (3rd Ed.) § 12.202. The period of holding over in such cases is as much a part of the officer’s term of office as the regular period fixed by law. 67 C.J.S., Officers, § 48c; McQuillin, Municipal Corporations, (3rd Ed.) § 12.110.

222 Ark. at 964-65, 264 S.W. at 423. Although it may quite properly be said that our remarks beyond the citation of the statute were obiter dicta, we read them as an expression of the common law on the matter of persons who enter upon public office when qualified to do so but who lose their qualification and continue in the office with the acquiescence of the appointing authority until resignation or replacement.

There being no state or federal law to the contrary, and in view of our expressions in the May and Binam cases, we hold that Mr. Thrash did not occupy the office of Adjutant General illegally between May 1 and December 14, 1996. Thus, there was no illegal exaction.

Affirmed.

Glaze and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. This is an illegal-exaction case brought pursuant to Article 16, Section 13, of the Arkansas Constitution. It is not an ouster or usurpation case. As such, I do not understand the majority’s reliance on cases such as City of Berryville v. Binam, 222 Ark. 962, 264 S.W.2d 421 (1954), which involve whether a vacancy was created in an office.

If the majority is suggesting that a vacancy must be created in an office before salary paid to that officer may be recovered in an illegal-exaction claim, that is not a requirement that I can find expressed in our illegal-exaction cases. “This court has held that one who holds a public office illegally may be required to pay back money received as salary.” Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987) (citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)). For example, in Revis, supra, we recognized a viable illegal-exaction claim that was based on dual office holding, while in Hensley v. Holder, 228 Ark. 401, 307 S.W.2d 794 (1957), salary paid to a deputy sheriff was recoverable given that the salary was authorized by unconstitutional local legislation. Neither case couches its illegal-exaction holding in terms of vacancy or usurpation. Binam, and similar cases, are simply not on point.

In any event, the proposition in Binam that an officer who holds over and continues to perform the duties of his office after expiration of his term is entitled to compensation up to the time he ceases to discharge his duties, is mere obiter dictum because a statutory provision providing for holdover was present in Binam. And, this common-law holdover proposition is exclusively in the context of municipal-office holders. Notably, there is no statutory provision in the present case providing for any holdover.

Here, Melvin Thrash was obviously ineligible to continue serving as Adjutant General once he was discharged pursuant to federal law. My view is simple. It logically follows that Thrash held the office “illegally” once he was ineligible to serve in that office. To the extent that the trial court granted summary judgment to Thrash because no vacancy was created in the office, or because Thrash was a “defacto officer,” I would hold that it erred. For purposes of this appeal, I would further proceed to the issue of Thrash’s good-faith defense, and whether such a defense is even available under these circumstances. For the forgoing reasons, I respectfully dissent.

Glaze, J., joins this dissent.


text:
    Rafael CAMARGO v. STATE of Arkansas
    CR 98-772
    969 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998

      Robert C. Marquette, for appellant.
    No response.
   Per Curiam.

Appellant, Rafael Camargo, by his attorney, Robert C. Marquette, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    John Parker HEATHSCOTT v. Christopher C. RAFF; Sharon Priest et al.
    CR 98-801
    971 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998

      Appellant, pro se.

      Jeff Rosenzweig, for appellee.

      Winston Bryant, Att’y Gen., by: Thomas S. .Gay, Sr. Ass’t Att’y Gen., for other parties.
   Per Curiam.

Appellee Christopher C. Raff moves for expedited consideration of the appeal by appellant John Parker Heathscott. Heathscott has appealed an order of the Pulaski County Circuit Court declaring that he is not “learned in the law,” as required by Article 7, § 24, of the Arkansas Constitution for the office of prosecuting attorney, and removing his name from the ballot for the November 3, 1998 General Election. Raff makes this motion for fear that otherwise this court will not be able to resolve the issues in the appeal in the normal course of business before the General Election. The other parties have responded and agree with Raff s motion to expedite. Heathscott has not responded to the motion.

We grant the motion to expedite this appeal and set the briefing schedule. The record in this matter shall be filed no later than Friday, July 31, 1998. Simultaneous briefs shall be filed by the parties no later than Monday, August 17, 1998. Responsive briefs shall be filed by the parties no later than Monday, August 24, 1998. There will be no reply briefs.


text:
    Robert A. NORMAN v. Josephine L. NORMAN
    97-759
    970 S.W.2d 270
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998
    T. B. Patterson, Jr., P.A., for appellant.

      Bachelor, Newell & Oliver, by: C. Burt Newell, for appellee.
   Per Curiam.

Appellant Robert Norman has filed a motion for clarification of our opinion in Norman v. Norman, No. 97-759, which we delivered on June 18, 1998. Appellant also moves this court to stay the mandate pending clarification and to extend the time for a petition for rehearing until we rule upon this motion.

The trial court entered a judgment in favor of appellee in this matter on April 15, 1997. Appellant filed an amended and substituted notice of appeal on April 17, 1997, and lodged the record with the clerk on July 9, 1997. Subsequently, the trial court entered a second judgment on December 11, 1997, granting appellee an additional recovery. Appellant filed a notice of appeal from that judgment on January 8, 1998, and moved for consolidation of the two appeals on the same date. The Arkansas Court of Appeals denied the motion to consolidate on January 28, 1998. However, appellant was granted permission by the court of appeals to supplement the record and to file a supplemental abstract and brief, and appellant filed such supplemental materials. Appellee did not respond to the supplemental materials.

Without reaching the question whether the trial court had jurisdiction to consider and enter a second order determining the amount of appellant’s liability after the record from the first appeal was docketed with the clerk of this court, we note that while the court of appeals allowed supplemental material to be filed, it ruled against appellant’s motion to consolidate the two appeals. Because we reversed and remanded the trial court’s judgment in Norman v. Norman, No. 97-759, all issues relating to the recovery of benefits may be considered on retrial in accordance with that decision.

Motion denied.


text:
    Dennis SUBLETT v. STATE of Arkansas
    CR 97-49
    969 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998

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

The appellant, Dennis Sublett, by and through his attorney, Kenneth G. Fuchs, has filed a motion for belated appeal. The record in his case was tendered on September 20, 1996, and a completed transcript was filed on February 3, 1997. Since that time, Mr. Fuchs has been granted six extensions to file the appellant’s brief, the last of which was designated as a final extension. On March 3, 1998, the date the appellant’s brief was due, Mr. Fuchs tendered a no-merit brief. Thereafter, on March 27, 1998, Mr. Fuchs and the Attorney General filed a joint motion for compliance for the purpose of correcting the appellant’s brief. We granted the motion and set a new briefing schedule, setting the due date for the appellant’s brief as May 26, 1998. On June 30, 1998, Mr. Fuchs filed this motion for belated appeal.

We grant Mr. Fuchs’s motion, and we order him to appear on September 10, 1998, to show cause why he should not be held in contempt for failing to file the appellant’s brief.


author: Per Curiam. Annabelle Clinton Imber, Justice,

text:
    VILLAGE MARKET, INC. v. STATE FARM GENERAL INSURANCE COMPANY
    97-702
    975 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered July 16, 1998
    [Petition for rehearing granted July 16, 1998.]

      Warner, Smith & Harris, PLC, by: G. Alan Wooten, for appellant.

      Jones, Jackson & Moll, PLC, by: Randolph C. Jackson and Jay W. Kutchka, for appellee.

      Morgan Welch & Associates, by: Morgan E. Welch, amicus curiae, for the Arkansas Trial Lawyers Ass’n.

       Newbern, Brown, and Imber, JJ., would deny.

   Per Curiam.

In its petition for rehearing, appellant, Village Market, Inc., seeks reconsideration of only that portion of this court’s opinion that awards State Farm General Insurance Company, Inc., attorney’s fees under Ark. Code Ann. § 16-22-308 (Repl. 1994). The amicus petitioners timely join in Village Market’s rehearing petition. Petitioners argue that the court’s majority opinion failed to consider the statutory-construction argument originally offered by Village Market, and in disregarding that argument, caused error. We must agree.

In this court’s initial consideration of the attorney’s fee issue, Village Market pointed out that State Farm was awarded an attorney’s fee under § 16-22-308, but that Ark. Code Ann. § 23-79-208 (Repl. 1992) is the statute that controls attorney’s fee awards, and it provides no such fee to insurers when they prevail in an insured’s claim under his or her policy. Village Market, citing State Farm Mut. Auto Ins. Co. v. Brown, 48 Ark. App. 136, 892 S.W.2d 519 (1995), explained that § 16-22-308 is a general statute that provides for attorney’s fees in actions on breach of contract, but § 23-79-208 is a specific statute that provides for attorney’s fees on insurance loss claims and allows such fees (and penalties) for only insureds and then only under special circumstances. Our earlier opinion did not specifically address Village Market’s citations or argument, but instead stated the following:

Village Market reads into § 23-79-208 a prohibition against the recovery of attorney’s fees by insurers that is simply not there. In fact, the statute is utterly silent as to what an insurer may or may not recover should it prevail in a claim brought by the insured for failure to pay the loss. We decline to interpret this silence as legislative intent to prohibit such a recovery.

Two major principles are controlling in this case. First, when interpreting statutes, the rule is settled that a general statute must yield when there is a specific statute involving the particular matter. Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); see also Brown, 48 Ark. App. 136, 892 S.W. 2d 519. Second, we must consider the fundamental principle that attorney’s fees are not awarded unless expressly provided for by statute or rule. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). If we had fully considered Village Market’s statutory-construction argument when interpreting §§ 16-22-308 and 23-79-208, we would not have “declined to interpret § 23-79-208’s silence as to what an insurer may or may not recover should it prevail in a claim brought by the insured.” (Emphasis added.)

In considering and applying the foregoing statutory principles, we first read the plain language of § 23-79-208, which provides for attorney’s fees in actions between policyholders and insurance companies. That statute allows attorney’s fees to insureds under prescribed circumstances, but omits any reference for such fee awards to insurers. Next, in reading § 16-22-308, that statute never mentions insurance policies and never expressly provides attorney’s fees for either insureds or insurers. Because attorney’s fees are awarded only when expressly allowed by statute or rule, the silence of such fee awards to insurers in §§ 16-22-308 and 23-79-208 can only be interpreted to mean that the General Assembly never intended that attorney’s fees be awarded to insurers when an insured has filed an action seeking recovery for a claim under his or her policy.

In conclusion, we agree that Village Market’s (and amici curiae’s) construction of §§ 16-22-308 and 23-79-208 is correct. Therefore, we grant its petition for rehearing and reverse only that part of the trial court’s decision awarding State Farm attorney’s fees.

Newbern, Brown, and Imber, JJ., dissent.

Annabelle Clinton Imber, Justice,

dissenting. Contrary to the intimation by the new majority, the arguments presented by Village Market and the amicus petitioners were fully considered when this case was originally submitted and decided. Thus, petitioners have failed to state a valid ground for rehearing under Ark. Sup. Ct. R. 2-3(g). State Farm Mut. Auto Ins. Co. v. Brown, 48 Ark. App. 136, 892 S.W.2d 519 (1995), relied on by the majority as a basis for rehearing, is remarkably not on point. There, the court of appeals rejected a claim by an insured for an attorney’s fee under the breach-of-contract provision. Given that Ark. Code Ann. § 23-79-208 (Repl. 1992) is replete with references to when and how an insured may recover such a fee, the statutory-interpretation issue confronting the court of appeals in Brown was completely dissimilar from the present case. I dissent from the grant of rehearing for the reasons stated in the original majority opinion handed down on June 11, 1998.

Newbern and Brown, JJ., join in this dissent.


text:
    Christina Marie RIGGS and John Wesley Hall, Jr. v. The Hon. Marion HUMPHREY, Circuit Judge, Pulaski County Circuit Court, First Division
    CR 98-889
    972 S.W.2d 946
    Supreme Court of Arkansas
    Opinion delivered July 24, 1998

      John Wesley Hall, Jr., for appellants.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill, Deputy Att’y Gen., and Todd L. Newton, Ass’t Att’y Gen., for appellee.
   Per Curiam.

Christina Marie Riggs and her attorney, John Wesley Hall, Jr., petition the court for the alternative writs of mandamus, prohibition, or certiorari. In their petition they request the circuit court be directed to conduct a Franz hearing on Riggs’s waiver of her appeal and to set aside the lower court’s order directing Hall to file a notice of appeal. The State has filed its response. We grant the petitioners’ requests for relief by granting a writ of certiorari.

Our holding in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988) is controlling. In Franz, Ronald Gene Simmons was convicted of capital murder and sentenced to death by the circuit court. After Simmons was sentenced, Simmons declared that he did not wish to appeal, and wanted his sentence carried out expeditiously. The Reverend Louis J. Franz petitioned to intervene as Simmons’s next friend and asked for a stay of execution. On appeal, we granted a stay of execution and requested the parties to file briefs addressing five issues — two of which are pertinent to Riggs’s and Hall’s present petition. First, the Simmons court held that there is no mandatory appellate review in Arkansas for death penalty cases. Second, the court further held that, in Arkansas, a defendant sentenced to death will be able to forego a state appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. In so holding, we further said the following:

In future cases, when a lower court has made a determination that a capital defendant can make a knowing and intelligent waiver of appeal, and has done so, the State has the burden of bringing the record of the lower court proceeding on this issue to this court for review. The record on this issue shall, if possible, be. lodged in this court after the time for appeal has lapsed, but, in any event, it must be lodged at least seven days before the execution date. We will then review the proceeding to determine whether the defendant had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to appeal his sentence of death. The standard of review, as in other types of criminal cases, is whether the trial judge’s conclusion is clearly erroneous. Id. at 189-190. (Emphasis added.)

As is clear from the foregoing holdings in Franz, the Pulaski County Circuit Court, First Division, here must conduct a hearing and then determine if Riggs has the capacity to understand the choice between life and death and to knowingly and intelligently waive all rights to appeal her sentence. The State candidly concedes this matter should be remanded for an immediate inquiry into whether Riggs possesses the capacity to waive her right to appeal in a knowing, intelligent, and voluntary manner.

As previously noted, Riggs’s conviction judgment was entered on July 1, 1998, and her time for appeal will not lapse until July 31, 1998. The State then has the burden of bringing the record of the lower court’s proceeding to this court for its review. Riggs and the State will be given the opportunity to file their respective briefs on the waiver-of-appeal issue. Because the execution date is set for August 15, 1998, and no hearing and petition for review of the hearing have, as yet, been conducted or filed, it appears impossible to resolve this matter prior to the time this court reconvenes on September 10, 1998. Therefore, we stay Riggs’s execution date until the lower court holds its hearing and makes a judicial determination on Riggs’s waiver-of-right-to-appeal issue and this court’s review of that determination as required under our Franz decision. See also Greene v. State, 326 Ark. 822, 933 S.W.2d 392 (1996).

Writ of certiorari granted.

Newbern, Brown, and Imber, JJ., not participating.

       The Franz court rejected Reverend Franz’s attempt to gain standing, but we need not address any standing issues here.


text:
    Cephas BREWER v. STATE of Arkansas
    CR 98-935
    973 S.W.2d 482
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      Theresa Nazario, for appellant.
    No response.
   Per Curiam.

Appellant, Cephus Brewer, by his attorney, Theresa Nazario, has filed a motion for rule on the clerk. His attorney admits that the notice of appeal was not filed in a timely manner due to a mistake on her part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion, which we will treat as a motion for belated appeal. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


text:
    Richard CONGER v. STATE of Arkansas
    CR 98-892
    973 S.W.2d 481
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      Naif S. Khoury, for appellant.
    No response.
   Per Curiam.

Appellant Richard Conger, by and through his attorney, has filed a motion for a rule on the clerk. His attorney, Naif S. Khoury, admits in his motion that the record was tendered late due to a mistake on his part.

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

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


text:
    Bobby Joe JONES v. STATE of Arkansas
    CR 98-924
    973 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      Marsha Basinger, for appellant.
    No response.
   Per Curiam.

Appellant Bobby Joe Jones has filed a motion for belated appeal from the order denying his petition for postconviction relief pursuant to A.R.Cr.P. Rule 37. His attorney, Marsha Basinger, states that the order denying postconviction relief was signed by the trial court on January 7, 1998, but that the order was not filed with the circuit clerk until February 4, 1998. The notice of appeal, however, was filed on January 28, 1998. Hence, under Rule 2 of the Arkansas Rules of Appellate Procedure — Criminal, the notice of appeal was of no effect. See also Mixon v. State, 328 Ark. 534, 944 S.W.2d 829 (1997) (per curiam).

This court will grant a motion for belated appeal when the attorney admits that the notice of appeal was not timely filed due to an error on his or her part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam). Similarly, this court will grant a belated appeal from an order denying a petition for postconviction relief if the movant shows good cause for the failure to file a timely notice of appeal. Elkins v. State, 300 Ark. 320, 778 S.W.2d 609 (1989) (per curiam); Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam). Here, the attorney does not admit fault. This court has held that a statement that it was someone else’s fault or no one’s fault will not suffice. Id.; Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam). Accordingly, Appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting foil responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


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    Barry NEAL v. STATE of Arkansas
    CR 98-908
    973 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      Stuart Vess, for appellant.
    No response.
   Per Curiam.

Appellant’s counsel, Stuart Vess, files a motion to withdraw and requests that attorney Joe Don Winning-ham be substituted in his place. Mr. Vess’s motion is granted. Appellant moves for the belated review of the court of appeals, division III, decision issued on May 27, 1998. Appellant asserts that, until June 30, 1998, he was unaware of the court of appeals’ May 27 opinion, and seeks a belated review. See Porter v. State, 315 Ark. 160, 865 S.W.2d 300 (1993). We grant the petitioner’s request to file a belated petition.

Petitioner and his substituted counsel have filed a petition for review, stating, among other things, that he is entitled to a review because the court of appeals erroneously affirmed the trial court’s ruling that the facts and circumstances surrounding petitioner’s arrest did not rise to the level of probable cause. See Hudson v. State, 316 Ark. 360, 872 S.W.2d 68 (1994). We deny, and hold that petitioner’s grounds do not meet the requirements set out in Rules 1-2(b) and 2-4(c) of the Arkansas Supreme Court.

A copy of this order will be sent to the Committee on Professional Conduct regarding Mr. Vess’s failure to file a timely petition for review.

Newbern and Corbin, JJ., not participating.


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    Bobby RICHARD v. STATE of Arkansas
    CR 98-1044
    973 S.W.2d 482
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      John L. Kearney, for appellant.
    No response.
   Per Curiam.

Petitioner, Bobby Richard, by his attorney, John L. Kearney, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

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

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


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    Jeremy TURNER v. STATE of Arkansas
    CR 98-992
    973 S.W.2d 480
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      David P. Price, for appellant.
    No response.
   Per Curiam.

Jeremy Turner, by his attorney, David P. Price, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and that it was no fault of the appellant.

This court has held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See, e.g., Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, the attorney does not admit fault on his part. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986). Therefore, appellant’s motion must be denied.

The appellant’s attorney shall file within thirty days from the date of this per curiam a motion and affidavit in this case accepting full responsibility for not timely filing the transcript, and upon filing same, the motion will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct.

The present motion for rule on the clerk is denied.


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    Donnie WHITNEY v. STATE of Arkansas
    CR 98-922
    973 S.W.2d 481
    Supreme Court of Arkansas
    Opinion delivered September 10, 1998

      Marsha Basinger, for appellant.
    No response.
   Per Curiam.

Appellant Donnie Whitney has filed a motion for belated appeal from the order denying his petition for postconviction relief pursuant to A.R.Cr.P. Rule 37. His attorney, Marsha Basinger, states that the order denying postconviction relief was signed by the trial court on January 7, 1998, but that the order was not filed with the circuit clerk until February 4, 1998. The notice of appeal, however, was filed on January 28, 1998. Hence, under Rule 2 of the Arkansas Rules of Appellate Procedure — Criminal, the notice of appeal was of no effect. See also Mixon v. State, 328 Ark. 534, 944 S.W.2d 829 (1997) (per curiam).

This court will grant a motion for belated appeal when the attorney admits that the notice of appeal was not timely filed due to an error on his or her part. See, e.g., Brazil v. State, 332 Ark. 74, 959 S.W.2d 55 (1998) (per curiam). Similarly, this court will grant a belated appeal from an order denying a petition for postconviction relief if the movant shows good cause for the failure to file a timely notice of appeal. Elkins v. State, 300 Ark. 320, 778 S.W.2d 609 (1989) (per curiam); Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987) (per curiam). Here, the attorney does not admit fault. This court has held that a statement that it was someone else’s fault or no one’s fault will not suffice. Id.; Clark v. State, 289 Ark. 382, 711 S.W.2d 162 (1986) (per curiam). Accordingly, Appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of the opinion will be forwarded to the Committee on Professional Conduct. See Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978).


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    The LEAGUE OF WOMEN VOTERS of Arkansas v. Sharon PRIEST, in Her Official Capacity as Secretary of State of the State of Arkansas
    98-1093
    973 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered September 11, 1998

      Wright, Lindsey & Jennings LLP , by: John G. Lile and Stephen R. Lancaster, for petitioner.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenor John Hoyle.
   Per Curiam.

On September 4, 1998, an original action was filed in this court seeking an order invalidating a proposed constitutional amendment offered under Amendment 7 to the Arkansas Constitution; enjoining the respondent from placing the proposed initiated constitutional amendment on the November 3, 1998, General Election ballot; and directing that any votes cast thereon not be counted or certified because the ballot tide is defective. Complainants’ motion for expedited scheduling order was filed September 4, 1998.

An expedited briefing schedule is estabHshed as follows:

Complainants’ abstract and brief to be filed by September 18, 1998; all response briefs to be filed by October 1, 1998; and complainants’ reply brief to be filed by October 6, 1998; oral argument is scheduled for Thursday, October 8, 1998, at 9:00 a.m.

The motion for expedited scheduling order is, therefore, granted.


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    Bobby ROBERTS, Individually, And On Behalf Of Arkansans To Protect Police, Libraries, Education & Services (APPLES), Petitioners v. Sharon PRIEST, Secretary of State, Respondent; John Hoyle, Individually, And On Behalf Of Arkansas Taxpayers’ Rights Association, Intervenors
    98-1052
    973 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered September 11, 1998

      Friday, Eldredge & Clark, by: Elizabeth Robben Murray, Robert S. Shafer, and Ellen M. Owens, for petitioners.

      Winston Bryant, Att’y Gen., by: Tim Humphries, Ass’t Att’y Gen., for respondent.

      Oscar Stilley, for intervenors.
   Per Curiam.

On August 26, 1998, an original action was filed in this court for an order to invalidate a proposed initiated constitutional amendment offered under Amendment 7 to the Arkansas Constitution; to enjoin placement of the proposed initiated constitutional amendment on the November 3, 1998, General Election ballot; and to direct that any votes cast thereon not be counted or certified because the petition contained invalid signatures and other irregularities and because the ballot title is defective.

This original action filed by the parties raises issues of fact. Arkansas Supreme Court Rule 6-5 (b) provides that evidence on issues of fact will be taken by a master to be appointed by this court. Therefore, we appoint the Honorable Jack Lessenberry as master and direct him to conduct such proceedings and hearings subject to and in accordance with our Rule 6-5(a) and Rule 53, Arkansas Rules of Civil Procedure, as are necessary to determine whether the allegations contained in the petition are true, and to file his report with this court by September 22, 1998.

We also direct the master to attend to the parties’ additional motions for the taking of depositions and such other matters as are necessary to discharge his duties.

Intervenors raise an objection to any requirement of a bond, but cite no authority for dispensing with one in these circumstances. On this point, Arkansas Supreme Court Rule 6-5(c) provides in pertinent part:

Evidence upon issues of fact will be taken by a master to be appointed by the court. As a condition to the appointment of a master, the court may require both parties to file a bond for costs to be approved by the clerk. Upon the filing of the master’s findings, the parties shall file briefs as in other cases.

This court has routinely required parties to file a bond in Amendment 7 original actions where a master has been appointed, and we do so in this action, as well. See Holt v. Priest, 326 Ark. 277, 930 S.W.2d 359 (1996); Scott v. Priest, 326 Ark. 69, 928 S.W.2d 337 (1996); and Bailey v. McCuen, 318 Ark. 49, 884 S.W.2d 937 (1994). All costs may be assessed against the complainants or the intervenors, or both. The respondent, Sharon Priest, Secretary of State, is not subject to payment of costs because of sovereign immunity. See Bailey v. McCuen, 319 Ark. 369, 891 S.W.2d 797 (1995) (per curiam). Complainants and intervenors are each directed to file a bond in the amount of $1,000, to be approved by the clerk, to secure payment of costs adjudged against them incurred in taking and transcribing the proof, including the master’s fee.

We next address the complainants’ motion seeking to disqualify Mr. Oscar Stilley as the intervenors’ counsel. Complainants assert that Mr. Stilley might be a witness regarding the validity of the initiative petitions that are in issue in this cause of action. At a hearing before this court on September 10, 1998, complainants announced that they do not intend to call Mr. Stilley as a witness, and Mr. Stilley asserted he did not anticipate any reason that would require him to testify. Consequently, the court considers the complainants’ motion to be resolved and now moot.

In their motion, at the September 10 hearing, intervenors requested this court to decide the ballot title issue immediately so that, if the court’s decision rules the ballot title to be deficient, the ballot title can be corrected by the court before the printing of the ballots for the November 3, 1998, General Election. Intervenors refer to this remedy as a request for “ballot title reformation” but cite no citation of authority and make only general reference to the United States Constitution. Our case law is contrary to the intervenors’ request. See Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). Because this court has no authority under Amendment 7 to rule on or reform the ballot title at this stage, we deny their motion.

Intervenors further move that this court issue an immediate order declaring that they, as the initiative petitioners of the proposed amendment, be entided to thirty days to cure any deficiency found in the signatures. On this point, intervenors cite to Ark. Code Ann. § 7-9-111 (Repl. 1993), which provides the procedures the Secretary of State must follow when ascertaining and declaring the sufficiency or insufficiency of any initiative petition. In particular, intervenors refer to § 7-9-111(d)(1), which provides as follows:

If the petition is found to be insufficient, the Secretary of State shall forthwith notify the sponsors in writing, through their designated agent, and shall set forth his reasons for so finding. When the notice is delivered, the sponsors shall have thirty (30) days in which to do any or all of the following:
(A) Solicit and obtain additional signatures;
(B) Submit proof to show that the rejected signatures or some of them are good and should be counted;
(C) Make the petition more definite and certain.

Section 7-9-111(d) is enabling legislation to Amendment 7 to the Arkansas Constitution. Amendment 7 provides in initiative petition matters that the Secretary of State shall decide the sufficiency or insufficiency of any petition and, if insufficient, the Secretary of State shall without delay notify the sponsors of such petition, and permit at least thirty days from the date of such notification to correct the initiative petition’s insufficiency.

From the citation of authority given us by the parties, we conclude that the “thirty-day cure period” which intervenors request applies only in the case of an adverse action on the part of the Secretary of State and has no application to original actions in this court. See Walton v. McDonald, 192 Ark. 1155, 97 S.W.2d 81 (1936).

Finally, an expedited and bifurcated briefing schedule is established as follows:

Count I (Signatures): Simultaneous briefs and objections to the master’s report from all parties filed by 4:00 p.m. on September 29, 1998.

Count II (Ballot Title): Complainants’ abstract and brief to be filed by September 18, 1998; all response briefs to be filed by October 1, 1998; and complainants’ reply brief to be filed by October 6, 1998; oral argument on Counts I and II is scheduled for Thursday, October 8, 1998, at 9:00 a.m.

The motion for appointment of a master, for bifurcation of proceedings, for an expedited scheduling order, and for leave of court to take depositions is, therefore, granted.