text:
    Stephen Wayne CLAY v. STATE of Arkansas
    CR 86-71
    716 S.W.2d 751
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Hale, Ward, Young, Green & Morley, by: Milas H. Hale, III, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of rape, burglary, and harassing communication. The facts surrounding the crimes are set out in detail because the sufficiency of the evidence is questioned.

The prosecutrix’s alarm clock sounded at 5 a.m. As she started to get up, an intruder hit her in the mouth and threatened to kill her if she screamed. He put one hand on her throat and, with his other hand, removed her underclothing. He then raped her a total of five times; first, by forcible sexual intercourse; second, by forcing her to perform fellatio; third, by anal intercourse, and the fourth and fifth times, by forcible sexual intercourse. The prosecutrix did not get a direct view of her attacker’s face but was able to give a physical description of him and to describe his clothing, including a grayish green t-shirt and spectator type shoes. Police officers testified that when they arrived at her home at 6:45 a.m. she was distraught, shaken, and showed signs of injury to her face. The examining medical doctor found evidence consistent with the prosecutrix being forcibly raped. That evidence included sperm, a contusion, a bruise, and soreness in her neck and arms. The doctor utilized a sexual assault evidence collection kit for taking evidence. The police took latent fingerprints at the prosecutrix’s home.

Late that evening, the prosecutrix looked at a photographic line-up assembled by the police and picked out someone other than appellant as her attacker. That person’s fingerprints did not match the latent prints found at the scene.

Three weeks later the prosecutrix began receiving alarming telephone calls. For example, on one occasion the caller said: “Hi, . . . (vulgar). I’m coming back to get some more . . . (vulgar).” The prosecutrix recognized the voice as that of her attacker. An electronic tracing device was placed on the prosecutrix’s phone, and it was discovered that the calls were coming from the home of Willie Clay, who is appellant’s father. Appellant lived in his father’s home at the time. The police then went to the home and found appellant. They immediately notice a pair of spectator type shoes and found a grayish green t-shirt.

The prosecutrix identified the shoes and shirt as those worn by her attacker. She identified appellant in a police line-up and positively identified him in court.

Appellant’s fingerprints were compared with those found at the scene, and they matched. A forensic serologist testified that appellant’s blood group and secreter status were consistent with that found in the vaginal smear slide, the vaginal swabs, and the vaginal washings, which were part of the sexual assault evidence kit utilized by the doctor.

The evidence is sufficient to sustain the convictions on all three charges. The prosecutrix gave direct testimony that appellant unlawfully entered and remained in her house for the purpose of committing rape. The testimony proved all of the elements of burglary. See Ark. Stat. Ann. § 41-2002 (Repl. 1977). The positive eyewitness testimony of the prosecutrix alone was sufficient to sustain the guilty verdict. Pridgett v. State, 276 Ark. 52, 631 S.W.2d 833 (1982). In addition, appellant’s fingerprints were found at the scene.

The prosecutrix gave direct testimony that the appellant engaged in sexual intercourse and deviate sexual activity with her by forcible compulsion. The testimony proved the elements of rape. See Ark. Stat. Ann. § 41-1803 (Repl. 1977). In a rape prosecution the positive identification of a defendant by a prosecutrix alone is sufficient evidence to sustain a conviction. Hamm v. State, 214 Ark. 171, 214 S.W.2d 917 (1948). In addition, the medical evidence, the fingerprints, and the telephone calls constituted corroborating evidence.

To sustain a conviction for harassing communications there must be substantial evidence to show that a person, with the purpose to harass, annoy, or alarm another person, contacts that person by telephone in a manner to harass, annoy, or alarm. Ark. Stat. Ann. § 41-2910(l)(a) (Repl. 1977). The testimony of the prosecutrix proved all of the elements of the crime. In addition, the records of the electronic tracing device corroborated her testimony.

Appellant next charges that the trial court erred in refusing to grant a mistrial when, after the trial had commenced, a juror told the trial judge that he knew the prosecutrix. The juror stated that the prosecutrix had spoken to him during the lunch hour and that, after reflection, he had recalled meeting her three or four years earlier as he repaired a typewriter at a bank where she worked. He stated that he had not seen her since that time and that he could be a fair and impartial juror. There simply is no showing that the juror was biased. The trial court did not abuse its discretion in refusing to grant a mistrial. The facts of the case at bar show an innocent failure to initially recognize the victim, and are clearly distinguishable from those cases where a juror intentionally gave false information during voir dire. See, e.g., B&J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984).

Appellant next contends that the trial court erred in denying his motion for continuance in order to change attorneys. Again, the argument is without merit. The refusal to grant a continuance rests within the discretion of the trial court, and the decision will not be overturned absent a showing of abuse of that discretion. Thorne v. State, 269 Ark. 556, 601 S.W.2d 886 (1980). Here, the original attorney appeared with appellant at plea and arraignment. Appellant said nothing about changing attorneys. The same attorney appeared with appellant at a later hearing, and appellant said nothing about any problems with counsel. Then, just before the trial, appellant decided he wanted a different attorney and a delay. The trial court ruled:

This court denies the request to change counsel at the last moment unless new counsel can go forward without a delay in the court. These requests are made on a regular basis and it’s my experience that to allow a continuance because this defendant wants to change counsel will result in nothing being tried. Many of these are done at the last moment for delay.

The trial court was correct. Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Here, there was no showing that a substitute attorney had even been contacted, much less that some unknown attorney could go forward without undue delay.

Appellant’s final argument is that the prosecutor’s use of peremptory challenges to remove two black jurors prevented him from having a jury of his peers. We find no merit in the argument in this case, but, because some of our past holdings on the subject are now constitutionally questionable, we desire to discuss the point in some detail. Batson v. Kentucky, _ U.S _, 106 S. Ct. 1712 (1986) is now the controlling case on this subject. Batson overruled part of Swain v. Alabama, 380 U.S. 202 (1965). In some of our decisions we have relied on that part of Swain which was overruled. See Johnson v. State, 287 Ark. 98, 696 S.W.2d 742 (1985); Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981).

Batson, supra, holds that even though a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as the reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors, as a group, will be unable to impartially consider the State’s case against a black defendant. The holding then provides that a defendant may establish a prima facie case of purposeful discrimination solely on evidence concerning the prosecutor’s exercise of peremptory challenges in the defendant’s trial. A prima facie case is made when the defendant shows that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. The defendant may also rely on the fact that peremptory challenges constitute a jury selection practice which permits persons who are of a mind to discriminate, to do so. Finally, the defendant must show that such facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen from the petit jury on account of their race. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. The prosecutor may not rebut a prima facie showing by stating that he challenged the jurors on the assumption that they would be partial to the defendant because of their shared race or by affirming his good faith in individual selections.

The United States Supreme Court stated:

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.

Batson v. Kentucky, _ U.S. _, 106 S. Ct. 1712, 1723 (1986).

In the case at bar no peremptory challenges were made orally; they were made by striking from a list which is not in the record. The record does not reflect the racial composition of the jury, either before or after veniremen were struck. We are told only that the prosecutor struck two black persons; that the prosecutor took “several” black persons on the jury, and that he had strikes remaining when the jury was selected. Voir dire does not imply even a hint of racial discrimination, and the record does not disclose the race of the victim.

Since there were several black persons on the panel, and the State had strikes remaining, and there is no indication of discrimination in the record, we affirm the trial court. The appellant did not show such facts and circumstances to raise the inference that the prosecutor used strikes to exclude the veniremen from the petit jury solely on account of their race.

In compliance with Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, an examination of the record of all other objections has been made and no reversible error found.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Jarvis RHODES v. STATE of Arkansas
    CR 86-12
    716 S.W.2d 758
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Hall & Vaught, by: Larry D. Vaught, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

We must reverse this capital felony murder conviction because of the equivocation of a juror, upon being polled, as to his verdict. We will discuss the appellant’s other points only to the extent it is necessary to avoid error if the case is retried.

1. The undecided juror

At the conclusion of the trial, the appellant’s counsel asked that the jurors be polled as to their verdict of guilty. When the court inquired of juror Washington, the following occurred:

Court: Mr. Washington, is this your verdict?
Mr. Washington: It is, with a question.
Court: Sir?
Mr. Washington: It is, with a question.
Court: What is your question? What do you mean?
Mr. Washington: I mean I signed it with a question mark. I wasn’t sure.
Court: You weren’t sure about what, sir?
Mr. Washington: I wasn’t sure either way.
Court: Well, then what you’re saying this is not your verdict?
Mr. Washington: I agreed to it after we discussed it and they brought out some fine points. I agreed to it.
Court: Well, are you convinced of — you were instructed that you had to be convinced of Mr. Jarvis Rhodes’ guilt beyond a reasonable doubt, and reasonable doubt was explained to you. Are you convinced —
Mr. Washington: I’m sure.
Court: Sir?
Mr. Washington: I’m sure.

We have been cited to no Arkansas authority dealing with this situation, and we know of none. In Georgia, it has been held that when two jurors replied, upon being polled, that their verdicts were “with question,” their affirmative votes were held to be sufficient to show the requisite unanimity. The court’s rationale was that the state need only prove its case to a juror beyond a reasonable doubt, and need not remove every question. Watts v. State, 142 Ga. App. 857, 237 S.E.2d 231 (1977). We find that rationale to be unsatisfactory. If the question on the juror’s mind is the ultimate one of whether the accused is guilty, as was apparent in this case, then that juror is expressing a reasonable doubt, and the verdict is not unanimous.

In United States v. Sexton, 456 F.2d 961 (9th Cir. 1972), a juror responded to being polled by saying, “I didn’t vote either way.” The court then said, “Well, is it your verdict?” and the juror said, “Yes sir.” In reversing the conviction, a number of federal cases dealing with this problem were reviewed by the court of appeals. The court concluded that when a juror casts doubt on whether the verdict rendered is his or her verdict, and the court questions the juror until the juror casts an unequivocal vote, the juror is voting in the courtroom rather than in the jury room. We agree that is improper. Although there are some cases in which courts have been able successfully to question a juror in open court and remove confusion without being reversed, those are rare circumstances in which, e.g., the confusion is caused by the inability of the juror to hear the question, Williams v. United States, 419 F.2d 740 (D.C. Cir. 1969), or a juror is reluctant, based on religious scruples to use the word “guilty”, United States v. Lawrence, 618 F.2d 986 (2nd Cir. 1980).

The instant it appears that the guilty verdict is not unanimous because of a juror’s response to being polled, the jurors must be returned to the jury room for further deliberation, otherwise the trial judge runs the risk of conducting a proceeding which, albeit well meant, will have the palpable effect of coercion. See Jones v. United States, 273 A.2d 842 (D.C. App. 1971).

2. First degree murder instruction

The evidence upon which the appellant was convicted included police testimony showing statements of two men who said they were with the appellant the night the murder occurred. The three had planned to commit a burglary but the two other than the appellant backed out at the last minute because they were acquainted with the residents of the house they ultimately said they saw the appellant approach. The evidence also showed the victim’s purse was found in an abandoned building several blocks from her house.

The appellant was charged with killing the victim in the course of a burglary. Ark. Stat. Ann. § 41-1501 (Repl. 1977) provides, in relevant part, as follows:

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

Ark. Stat. Ann. §41-1502 (Repl. 1977) provides, in relevant part, as follows:

A person commits murder in the first degree if:
(a) acting alone or with one or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life; ....

While § 41-1502(l)(a) is broader than § 41-1501(l)(a) in that one may be in violation when a killing occurs in the course of a felony other than the ones named in § 41 -1501 (1) (a), it is obvious that if, as in this case, evidence shows one is guilty of homicide in the course of a burglary, it also shows one to be guilty of homicide in the course of “a felony” as provided in § 41-1502(1 )(a).

Ark. Stat. Ann. § 41-105(2)(a) (Repl. 1977) provides:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; ....

This statute thus makes it clear that when capital felony murder is charged under § 41-1501 (l)(a), first degree felony murder is “a lesser included offense” because the same evidence used to prove the former of necessity proves the latter. Therefore, an instruction on first degree murder is required. We said as much in obiter dictum in Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981), reh. den., 271 Ark. 687A, 611 S.W.2d 742 (1981).

In the Wilson case, we were concerned with the ancillary problem, not raised here, of whether the overlap in our capital murder and first degree murder statutes made them unconstitutional. In Roberts v. Louisiana, 428 U.S. 325 (1976), the Supreme Court held the Louisiana statutory scheme unconstitutional because it required the trial judge to instruct on a number of homicide lesser included offenses in any case in which first degree murder, which carried a mandatory death penalty, was charged. The Supreme Court said this practice allowed the jury to avoid its duty to impose the death penalty by capriciously choosing a lesser offense when it felt the death penalty inappropriate despite lack of evidence to support a lesser included offense. We held in the Wilson case that our overlapping statutes did not run afoul of the Supreme Court decision and that our statutes do not allow the jury to sentence one convicted of homicide in an arbitrary and capricious manner.

The effect of § 41-105 (2) (a) and of our decision in the Wilson case, and we say it more directly here, is that when one is charged with homicide in the course of committing one of the felonies named in § 41-1501 (l)(a), the judge must also instruct on first degree murder, § 41-1502(l)(a). If the jury convicts the accused of capital felony murder, the sentence may be death or life imprisonment without parole. Ark. Stat. Ann. § 41-1501(3) (Supp. 1985). If the jury convicts of first degree murder, a lesser sentence may be imposed. First degree murder is currently a class Y felony, Ark. Stat. Ann. § 41-1502(3) (Supp. 1985), punishable by a sentence of not less than ten nor more than forty years or life imprisonment.

We do not find the failure to instruct on first degree murder in this case to be reversible error, however, because the objection of counsel was that the court should have given the instruction because of evidence, which counsel could not recite, that the appellant entered the victim’s residence for “a purpose other than to commit a burglary.” That objection hardly raised the point argued on appeal which we have discussed here for the benefit of the court and the parties in the event of retrial.

3. Evidence of previously committed offenses

The appellant argues that by allowing introduction of evidence that he is serving a penitentiary sentence the court erred because such evidence shows he has been convicted of other, irrelevant crimes and he has thus been prejudiced. See Uniform Rule of Evidence 404(b). He also argues the prosecutor should not have been allowed to mention in his opening statement that the appellant was in the penitentiary.

Much of the evidence in this case consisted of testimony of prison inmates as well as one guard relating admissions made by the appellant. The trial court had ruled that it would be inevitable that this evidence would show the appellant to have been in the penitentiary when the admissions were made, but that the evidence would be allowed. In Glick v. State, 275 Ark. 34, 675 S.W.2d 14 (1982), we were confronted with this situation, and we held it was not error to permit the evidence to come in. We also said that the prosecution could not make direct proof of the fact that the appellant had been in the penitentiary and should not draw needless attention to it.

Given the fact that the evidence indirectly showing that the appellant was in the penitentiary was admissible, we cannot say it was error for the prosecutor to have mentioned it in his opening statement. We adhere to our statement in the Glick case that unnecessary attention should not be drawn to prejudicial evidence which is admissible only because its presentation is inevitably incidental to admissible evidence. However, we decline to say a prosecutor may not mention in opening statement any fact which it is permissible for him to present to the jury. Our view might be different if the prosecutor had gone beyond the mere mention of the appellant’s imprisonment, but we need not decide that now.

4. Pre-indictment delay

We find no error in the delay between 1981, the year the crime was committed, and 1984, the year the charges were brought against the appellant. The only bases for suspecting the appellant prior to 1984 were evidence that he had scratches on his body, which could have been inflicted by the victim, shortly after the date of the homicide, and the statements of three convicted felons, two of whom said they had been with the appellant outside the victim’s house, on the night of the homicide, planning to burglarize it. The appellant had denied any participation. In 1984, the evidence of the appellant’s admissions to, and in the presence of, fellow inmates was discovered. We agree with the trial court that under these circumstances the delay was satisfactorily explained by the principal police investigator who felt his case was insufficient until the admissions came to light. Cf. Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978). We cannot say the prosecution delayed to gain a tactical advantage. Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984).

5. Communication with the jury during deliberation

After the jurors began deliberating the case, they sent a note to the judge asking a factual question. Upon agreement of the appellant’s counsel and the prosecutor, the judge returned a note to the jurors with the answer. The same thing occurred two more times, and on the fourth occasion, the appellant’s lawyer refused to consent to allowing the judge to answer the question by returning a note to the jurors with the answer to the question. Instead, the judge sent a note in which he declined to answer the question but offered to send the jurors a tape recording of the proceedings.

The judge should not have communicated with the jurors in this fashion. Although the facts in Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), are distinguishable from those before us now, we made it clear in that case that the provisions of Ark. Stat. Ann. § 43-2139 (Repl. 1977), requiring the judge to call the jury into open court to answer any question the jury may have, are mandatory. Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971).

6. Other points

We find no error in and no need to discuss the appellant’s other points having to do with death qualification of jurors, sequestered voir dire, and the prosecutor’s closing argument.

Reversed.


author: Per Curiam.

text:
    James Rubin DIZER v. STATE of Arkansas
    716 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Gerald A. Coleman, for appellant.
    No objection by appellee.
   Per Curiam.

The record in case CR 85-185 from the Crittenden Circuit Court was tendered late, because the appellant’s attorney miscalculated the time for filing the record. The attorney for appellant, Gerald A. Coleman, admits responsibility for the miscalculation. That admission on the part of counsel constitutes good cause for granting the motion. Per Curiam Order of Feb. 5,1979,265 Ark. 964. The motion for a rule on the clerk is accordingly granted.

A copy of this order will be sent to the Committee on Professional Conduct.


text:
    Joseph KANDUR v. STATE of Arkansas
    715 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Dale W. Finley, for appellant.
    No response.
   Per Curiam.

The record in case CR 84-21 from the Yell Circuit Court was tendered late, because an order extending the time was not filed. The attorney for appellant, Dale W. Finley, admits responsibility for the oversight. That admission on the part of counsel constitutes good cause for granting the motion. Per Curiam Order of Feb. 5,1979,265 Ark. 964. The motion for a rule on the clerk is accordingly granted.

A copy of this order will be sent to the Committee on Professional Conduct.


text:
    Charles LOCKLEAR v. STATE of Arkansas
    CR 86-121
    716 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Appellant, pro se.

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

Charles Locklear pleaded guilty in 1977 to capital murder and was sentenced to life imprisonment without parole. In 1985, appellant Locklear filed a petition seeking to withdraw the plea pursuant to Criminal Procedure Rule 37. He alleged, among other things, that he was denied a speedy trial. Relief was denied and appellant has lodged the record on appeal with this court. Counsel was appointed to represent the appellant and has filed a brief on his behalf. The issue of whether appellant’s right to a speedy trial was violated is not raised in the brief. Appellant now seeks to supplement the brief pro se to raise the speedy trial issue.

This court will permit an appellant to submit a pro se supplemental brief if he can demonstrate that his attorney has omitted an issue on which he is likely to prevail. Appellant’s allegation that he was denied a speedy trial, however, was not timely raised under Rule 37.2(c), and, as a result, was waived.

Rule 37.2 was amended on December 18, 1978 to provide that all grounds for relief under the rule must be addressed to the court within three years of the date of commitment, unless some ground is sufficient to render the judgment of conviction absolutely void. The three-year limitation was not in effect when appellant was convicted, but even if appellant were allowed three years from the date the rule was amended, his petition was not timely filed. As appellant’s speedy trial argument was not timely raised, he could not prevail unless the failure to afford a defendant a speedy trial is an error so basic that the judgment of conviction is rendered a nullity and thus void. We do not find that the failure of counsel to move to dismiss a charge on speedy trial grounds to be a defect sufficient to void a judgment. A speedy trial violation is not jurisdictional. Smith v. United States, 677 F.2d 39 (8th Cir. 1982). There being no merit to the point for reversal which appellant wishes to raise, his motion to supplement the brief is denied.

Motion denied.


text:
    Steve Vincent MOORE v. STATE of Arkansas
    716 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Richard A. Garrett„ for appellant.
    No objection.
   Per Curiam.

The appellant learned after his notice of appeal was filed and the transcript ordered that the testimony at his trial was recorded by an uncertified court reporter, appointed by the trial judge to fill in for the certified court reporter who was ill. On April 21, 1986 appellant was given a seven month extension to perfect his appeal. The parties have not, however, been able to agree on a trial transcript. Appellant requests a rule on the certified court reporter to prepare a transcript as recorded by the uncertified court reporter and for the trial court to settle the record.

This court adopted a rule providing for the certification of court reporters on July 5, 1983. In Re: Arkansas Supreme Court Bd. of Certified Court Reporters Examiners, 280 Ark. 598, 656 S.W.2d 694 (1983). Section 9 of that rule provides that courts in Arkansas will accept as evidence only those transcripts certified by a court reporter holding a valid certificate. The trial judge violated this rule by allowing an uncertified reporter to record the trial.

By Per Curiam order September 26, 1983, this court approved certain rules and regulations with reference to Certified Court Reporters, including the following provision:

13. In the event of an emergency where no Certified Court Reporter is immediately available, a judge of a circuit or chancery court may in his discretion, grant a one hundred twenty day, non-renewable emergency certificate in order to continue the conduct of the court’s business; provided a copy of the one hundred twenty day emergency certificate shall be forthwith filed with the Clerk of the Arkansas Supreme Court and Secretary of this Board.

Had the trial judge followed this provision and granted the uncertified reporter an emergency certificate, this problem would not have arisen. We admonish the bench and bar to follow the procedures governing court reporters.

Since it was the trial judge’s action in permitting an uncertified court reporter to record the trial that is causing the appellant’s difficulty in obtaining a transcript, the judge is the proper person to see to it that the situation is corrected.

In Pullan v. Fulbright, 285 Ark. 152, 685 S.W.2d 151 (1985), this court dealt with a somewhat similar situation. In that case, the transcripts were refused because the court reporter who transcribed them was not property certified. We held, that, in the interests of avoiding such a harsh result as refusing the appeal and to allow the litigants their opportunity to appeal, we would permit the transcripts to be filed, provided the attorneys of record certified to the Supreme Court Clerk by affidavit that the transcripts were true, accurate, and complete.

Furthermore, Rules of Appellate Procedure, Rule 6(d) provides:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best means available, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10) days after service upon him. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be included by the clerk of the court in the record on appeal.

Here, the best means available of preparing a transcript would be from the recording made by the uncertified court reporter, if verified by affidavits from attorneys for both parties and the trial judge. Accordingly, the motion is granted and the case is remanded to the trial court with instructions to the court to direct and supervise the preparation of the transcript and verify its accuracy.

Motion granted.


text:
    John L. NOBLE v. STATE of Arkansas
    715 S.W.2d 448
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Maxie G. Kizer, for appellant.
    No response.
   Per Curiam.

Appellant, John L. Noble, by his attorney, Maxie G. Kizer, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a miscalculation on his part.

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

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


text:
    Leon PHILLIPS, Jr. v. MARIANNA FORD TRACTOR, INC.
    86-112
    716 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Wilson, Bell & Neal Law Office, by: J. L. Wilson, for appellant.

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellee.
   Per Curiam.

Appellee Marianna Ford Tractor, Inc. has moved to dismiss the appeal of Leon Phillips, Jr. for failure to comply with Rule 3(e) of our Rules of Appellate Procedure. Phillips’s Notice of Appeal, filed on December 31,1985, made no mention of having ordered a transcript of the testimony. The Designation of the Contents of the Record, filed the same day, designated “all the pleadings, all testimony, all evidence, and all rulings and orders” of the trial court as the record on appeal.

Appellee further alleges that on February 28,1986 Phillips filed a motion for an extension of time for filing the record, and on March 4, an order was entered extending the time for six months. According to a letter from the court reporter, Phillips still had not ordered the transcript as of March 5.

The allegations of appellee’s motion to dismiss, filed on July 10,1986, have not been denied by Phillips, the only response is a motion to file a belated brief filed July 31, 1986.

In Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982), we dismissed an appeal where the entire record was designated, the Notice of Appeal (filed September 21, 1981) failed to state the transcript had been ordered, and the transcript was not in fact ordered from the court reporter until December 7, 1981. The exact situation exists here. There having been an unexplained failure to substantially comply with the requirements of Rule 3 (e) of the Arkansas Rules of Appellate Procedure, the appeal is dismissed.


text:
    Jamie Lee THOMAS v. STATE of Arkansas
    CR 85-1
    716 S.W.2d 765
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      Appellant, pro se.

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

A jury found petitioner Jamie Lee Thomas guilty of burglary and sentenced him as an habitual offender to a term of twenty five years imprisonment in the Arkansas Department of Correction. The Court of Appeals affirmed. Thomas v. State, CA CR 84-139 (January 2, 1985). Petitioner now seeks to proceed in circuit court pursuant to Criminal Procedure Rule 37.

Petitioner’s first allegation is that his attorney prejudiced him by informing the jury that he was being tried as an habitual offender and that he had rejected an offer to negotiate a plea of guilty. The trial record does not support the allegation. The record indicates that the jury was not present when counsel referred to petitioner’s status as an habitual offender and his decision to reject a negotiated plea.

Petitioner’s second allegation is that one or two of the prior convictions used to enhance his sentence were invalid because he was not afforded a speedy trial. He does not contend that he was not represented by counsel on the prior convictions. Rule 37 does not provide a procedure to go behind a conviction used to enhance a sentence and question its legality. If there is a basis for challenging the prior convictions, he should attack them in whatever proceeding may be available to him under the laws of the state in which the conviction was obtained or the laws of the United States.

Petition denied.


text:
    James WHITE v. STATE of Arkansas
    CR 86-128
    716 S.W.2d 203
    Supreme Court of Arkansas
    Opinion delivered September 29, 1986

      James Smedley, for appellant.
    No response.
   Per Curiam.

The appellant was convicted in the Union County Circuit Court of first degree murder and sentenced to ten years imprisonment. He appealed to the Arkansas Court of Appeals and that court affirmed his conviction on January 3,1985 in an unpublished opinion (CA-CR-84-122). The appellant then filed a petition for rehearing, which was denied. Appellant now seeks permission to proceed with a Rule 37 petition in Union County Circuit Court.

In support of his petition, appellant claims the trial court erred by refusing to permit him to introduce relevant evidence concerning a weapon used by the victim; not granting appellant’s motion for directed verdict; refusing to give a requested jury instruction; refusing to allow appellant’s attorney to question a material witness about statements made by an eyewitness immediately after the shooting; admitting appellant’s confession into evidence; and allowing appellant’s wife to testify against him in violation of the marital privilege protecting confidential communications.

The petition is denied. Rule 37 affords a remedy when the sentence in a case was imposed in violation of the Constitution of the United States or this state or is otherwise subject to collateral attack. Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974). Rule 37 was not intended to provide a method for the review of error in the conduct of the trial or to serve as a substitute for raising issues at trial or on the record on direct appeal. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). Even questions of constitutional dimension are waived if not advanced in accordance with controlling rules of procedure, unless they present a question so fundamental as to render the judgment of conviction void. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981).

Here, all of petitioner’s grounds for relief could have been argued at the trial and on the record on appeal and none present a question so fundamental as to render the judgment void. Accordingly, he is not entitled to proceed with a petition for Rule 37 relief.

Petition denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Thomas Lloyd GRISWOLD v. STATE of Arkansas
    CR 86-88
    716 S.W.2d 767
    Supreme Court of Arkansas
    Opinion delivered October 6, 1986

      Robert E. Irwin, for appellant.

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

In this appeal appellant challenges the sufficiency of the evidence of forcible compulsion as an element of rape. We find the evidence sufficient and affirm.

Appellant was convicted by a jury of three counts of rape involving three female children, ages thirteen, ten, and five, and sentenced to twenty years on each count, with the sentences to be served consecutively. His arguments on appeal are directed at two of the convictions. He does not challenge his conviction for raping the five-year-old. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(b).

Appellant contends that the evidence is insufficient to sustain a conviction on counts one and two because of a lack of evidence of forcible compulsion.

The rape statute in effect when the crimes occurred was Ark. Stat. Ann. § 41-1803 (Repl. 1977), as amended by Act 620 of 1981, which provided:

(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion; or
(b) who is incapable of consent because he is physically helpless; or
(c) who is less than eleven (11) years old.
(2) Rape is a class Y felony.

Forcible compulsion as used in the statute has been defined as “physical force, or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Stat. Ann. § 41-1801 (Repl. 1977).

The test for determining the sufficiency of the evidence on appeal is whether there is substantial evidence to support the verdict. Cooper v. State, 275 Ark. 207, 628 S.W.2d 324 (1982). “Substantial evidence is that which is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” Id.

Here, the testimony revealed that the appellant is the uncle of the thirteen and ten-year-old victims, and that they and their mother (the appellant’s sister) were living in the same house with the appellant and his wife. Both the children’s mother and the appellant’s wife worked at a poultry plant and the rapes allegedly occurred while they were at work and appellant was home alone with the children after school. The state offered the testimony of the thirteen-year-old and the ten-year-old as proof on the issue of force. The thirteen-year-old testified as follows:

Q: Did he (the appellant) do anything to you or make you do anything that you didn’t want to do?
A: Once in a while.
Q: And did that hurt you when he did that (had intercourse with her), cause you pain?
A: It just made me upset.
Q: Did you ever ask him not to do that?
A: Yes.
Q: Did he ever tell you not to tell?
A: Yes.
The ten-year-old victim similarly testified:
Q: Did he make you do these things, did he force you to do these things?
A: Yes.
Q: Do you recall what he would tell you when he would take you in there (the bedroom)?
A: He says, “Don’t tell anybody; anyway, they wouldn’t believe you.
Q: Did he ever make you touch any of his private parts?
A: Yes.
Q: Did he ever hold your hands or force you or press you down or anything like that, or did he just ask you to touch his private parts?
A: He’d tell me to.
Q: Now, did Thomas ever threaten you or hurt you in any way?
A: He told me not to tell, because nobody would believe me.
Q: Did he force you to do this?
A: Yes.
Q: How did he force you?
A: He said do it or else.
Q: What did he mean by “else”?
A: I don’t know, he never told me.
Q: How many times did he do that — “or else”?
A: Every time he —

We have considered the quantum of proof necessary to prove forcible compulsion before. In Canard v. State, 278 Ark. 372, 646 S.W.2d 3 (1983), the appellant was convicted of raping his daughter, who was 11 at the time. Her testimony was that, “ ‘He unzipped his pants and took his penis out and put it into me and started raping me.’ She testified that she told him that she “ ‘didn’t want to, but he did anyway.’ ” In finding this evidence sufficient, we noted:

In Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973) we stated that the quantum of force need not be considered as long as the act is committed against the will of the victim. Here, the daughter testified that she “didn’t want to, but he did anyway,” and that she was very much afraid of appellant. She also used the word “rape,” which, in the context of her testimony, not only denotes sexual intercourse but also that it was done against her will. This fact, when considered with the age of the victim and the fact that appellant is her father, leads us to conclude there was sufficient evidence from which the jury could conclude that forcible compulsion was present. . . .

In Spencer v. State, supra, the appellant admitted intercourse but said it was with the consent of the prosecutrix. We held that appellant’s arguments were facts to be argued to the jury, but that the jury was the sole judge of the credibility of the witnesses and it was within their province to determine whether the victim was acting under duress and fear.

Here, the thirteen-year-old victim testified that she asked appellant not to have intercourse with her and that it upset her when he did, and the ten-year-old victim testified appellant told her to “do it or else.” This was sufficient proof for the jury to find the acts were consummated against the will of the girls.

In Canard, supra, in finding the evidence of force sufficient, this court took into account the fact that the victim was the appellant’s daughter and that she was eleven. Again, in Fields v. State, 203 Ark. 1046, 159 S.W.2d 745 (1942), we found all the essential elements of rape were proved where the victim, who was twelve, testified that appellant grabbed her, threw her down on the ground, removed her clothes, and had intercourse with her, at which time she cried. The court noted that, at the time of the offense, the appellant had been working for the victim’s father for quite a while, had lived in their home, and was in the habit of playing games with the little girl. The court further stated, “It is true the little girl did not negative the fact of her consent in so many words, but she did testify that she cried which indicates very clearly that she did not consent to the act of sexual intercourse.”

The age of the victim and the relationship of the victim to the assailant are key factors in weighing the sufficiency of evidence of force to prove rape. The age of the prosecutrix has always been considered an important factor in determining whether she consented to intercourse out of fear of harm. 65 Am Jur. 2d Rape § 11 p. 767 (1972). Similarly, our Criminal Code makes special provisions for victims of sexual offenses who are minors, waiving the forty-eight hour time limitation for reporting a sexual assault, Ark. Stat. Ann. § 41-1824 (Supp. 1985); and making it a crime to engage in sexual intercourse or sexual contact with any person other than the actor’s spouse, who is more than thirteen and less than eighteen years old, if the actor is the other person’s guardian, Ark. Stat. Ann. §§ 41-1826, -1827 (Supp. 1985). In addition, the emergency clause of Act 326 of 1985, codified as §§ 41-1826, -1827, provides:

It is hereby found and determined by the General Assembly that certain individuals who are in a position of power or authority over minors have avoided prosecution under current law for certain sexual activities with such minors and that such activities by individuals should be punished.

Furthermore, Act 405 of 1985 added a new subdivision to U.R.E. Rule 803 which permits a statement made by a child under ten years of age concerning a sexual offense, child abuse or incest against that child to be admitted in a criminal prosecution. Rule 803(25). Before admitting the evidence, the judge conducts a hearing and evaluates the reliability of the statement using criteria which include the age of the child and the relationship of the child to the offender.

Likewise, other states have placed a great deal of emphasis on the age and situation of the victim in determining the sufficiency of the evidence of force to prove rape. In State v. Risen, 235 P.2d 764 (Or. 1951) the Oregon Supreme Court found sufficient evidence where the prosecuting witness was 19 and was the daughter of the appellant’s wife. The court explained that to constitute rape the act must have been committed forcibly and without the woman’s consent. The court further held:

In the present case, the complaining witness was a young girl toward whom for more than 17 years the defendant had stood in loco parentis. . . . [A] reading of her testimony indicates that her intelligence is not of a very high order. Upon such a person the constraints of family discipline and the habit of obedience must necessarily exercise a considerable influence. How a more mature and more intelligent woman might have reacted under the circumstances is not in point. . . . Where submission of a girl is induced “through the coercion of one whom she is accustomed to obey, such as a parent or one standing in loco parentis,” the law is satisfied with less than a showing of the utmost physical resistance of which she was capable. Hammond v. State, 39 Neb. 252, 58 N.W. 92, 94; State v. Mertz, 129 Wash. 420, 225 P. 62; Hill v. State, 143 Md. 358, 122 A. 251, 253, 254.

Accord: State v. Sunderland, 468 P.2d 903 (Or. App. 1970); Tryon v. State, 567 P.2d 290 (Wyo. 1977) (“The standard of resistance in rape cases is a relative one, i.e., a victim is not required to do more than her age, strength, surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest opposition.”)

Here, both victims were children and they were alone every day after school with the appellant, who was their mother’s brother and the only adult male living in the house. The jury would be justified in finding that their submission was induced through the forcible coercion of appellant, who stood in loco parentis to the girls. Under these circumstances, the testimony of each victim was sufficient proof for the jury to find forcible compulsion.

Accordingly the judgment appealed from is affirmed.


author: Darrell Hickman, Justice.

text:
    Larry MITCHELL v. STATE of Arkansas
    CR 86-99
    717 S.W.2d 195
    Supreme Court of Arkansas
    Opinion delivered October 6, 1986

      Everett & Whitlock, by: John C. Everett, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Larry Mitchell, a charter pilot from Hopkinsville, Kentucky, had an ongoing dispute with another charter pilot, Billy Allen. On the morning of August 28, 1984, Mitchell and Allen flew into the Bentonville airport in their respective airplanes carrying passengers to a meeting at the WalMart offices. Mitchell arrived first and was standing by his airplane when Allen landed. After Allen saw Mitchell, he left his plane and approached Mitchell. Mitchell shot Allen in the upper abdominal area at close range with a .38 pistol. A misfire occurred, apparently from faulty ammunition, and the bullet penetrated only one centimeter. At the hospital an x-ray revealed a density which appeared to be a bullet. Surgery disclosed the matter was a calcified lymph node. The spent bullet was found on the tarmac at the airport. Mitchell was charged with attempted battery in the first degree. He was convicted and sentenced to three years imprisonment and fined $10,000.

Mitchell argues on appeal there is no such crime as attempted battery, and he should have been charged with aggravated assault instead. Mitchell’s argument essentially attacks the provision in the criminal code which defines the crime of attempt. Under the old common law, there was no attempted battery. 2 Torcia, Wharton’s Criminal Law, § 179 (14th ed. 1981); Perkins, Perkins on Criminal Law, (2 ed. 1969). Attempt crimes were designated as assault crimes. James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983). The new criminal code, which became effective January 1, 1976, changed the common law by providing for the crime of attempt.

Ark. Stat. Ann. § 41-701 (Repl. 1977) provides:

(1) A person attempts to commit an offense if he:
(a) purposely engages in conduct that would constitute an offense if the attendant circumstances were as he believes them to be; or
(b) purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as he believes them to be.
(2) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpability otherwise required for the commission of the offense, he purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause such a result.
(3) Conduct is not a substantial step under this section unless it is strongly corroborative of the person’s criminal purpose.

Essentially, the provision states that a person commits the criminal act of attempt when his conduct constitutes a substantial step intended to result in the commission of an offense. The statute does not exclude any crimes from its application nor does it list any crimes to which it applies. Obviously, the attempt statute was adopted by the legislature to insure that gaps did not exist in the law which would allow some criminal misconduct to be unaccountable to an appropriate charge. We have the question of whether the language of this statute applies to the offense, battery in the first degree. Ark. Stat. Ann. § 41-1601 (Repl. 1977) defines battery in the first degree in pertinent part:

(1) A person commits battery in the first degree if:
(a) with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; or ****
(c) he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.

It is not necessary to belabor the facts to conclude that Mitchell intended to kill or seriously injure Allen. Mitchell took a substantial step to carry out his purpose. Only because of the misfire was such a misfortune avoided. We find the evidence in this case supports the charge of attempted battery in the first degree.

Mitchell also argues there can be no attempted battery when there is a completed battery. He argues that since the injury was not serious, his conduct constituted battery in the third degree because it requires only physical injury. Ark. Stat. Ann. § 41-1603 (Repl. 1977). The fact that the bullet struck Allen would not preclude a charge for attempted first degree battery, because using the plain language of the statute, the conduct fits the crime defined as an attempt to commit serious physical injury to another.

One of several possible charges could have been brought in this case. We have held that the fact overlaps may exist under the criminal code is not grounds for dismissal of a charge. In Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981), the capital murder and murder in the first degree statutes were not unconstitutional because the definitions of the offenses overlapped.

Mitchell also argues that a pistol is not a deadly weapon, because the faulty ammunition could not have inflicted serious physical injury. This argument, often made in such cases, is meritless because a gun is a deadly weapon. Ark. Stat. Ann. § 41-115(4) (Repl. 1977).

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Earnest SMITH v. STATE of Arkansas
    CR 86-55
    717 S.W.2d 193
    Supreme Court of Arkansas
    Opinion delivered October 6, 1986

      Williams Law Firm, by. Lynn Williams, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order denying a petition for postconviction relief pursuant to A.R.Cr.P. Rule 37. The issues before us are whether the trial court was correct in denying the petition and whether the trial court’s order satisfies A.R.Cr.P. Rule 37.3(a). We find no merit to these issues and affirm.

Smith was convicted on March 9, 1983, of burglary and, with nine previous convictions, was sentenced as a habitual offender to 30 years imprisonment, to be served consecutively to any previously imposed sentences. After his conviction, Smith filed several motions instead of appealing the conviction. A motion for a belated appeal was denied by us in March, 1984. Smith then requested a free transcript and the appointment of a psychiatrist which were denied by the trial court. He filed for a writ of error coram nobis and four petitions for postconviction relief. After Smith requested a writ of mandamus from us ordering the trial court to rule on his motions, the trial court issued an order on December 27, 1985, denying the relief. The order read:

This Court, having reviewed this entire file finds that the petitioner fails to allege a cause of action for relief under a Rule 37 proceeding. That the Petitioner failed to perfect an appeal of his conviction herein and the Supreme Court has denied his request for a belated appeal.
IT IS THEREFORE the order of this Court that the relief prayed for be and the same is hereby denied.

Smith argues two errors were committed. First, the trial court was wrong in denying the petition, because it failed to state a cause of action. The petition alleged ineffective assistance of counsel and incompetency to stand trial because of a mental defect. The petition was couched entirely in conclusory language unsupported by any facts and was, therefore, patently deficient. We have held numerous times that a Rule 37 petition must contain statements of fact to support its allegations. Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986); Walker v. State, 277 Ark. 284, 641 S.W.2d 19 (1982).

Smith’s second argument is that the trial court erred by not holding an evidentiary hearing or making written findings of fact as required by Rule 37.3 (a). There was no hearing and none was required because the petition on its face was without merit because Smith failed to set forth any facts supporting his allegations. We have dismissed numerous petitions for this reason and affirmed the trial court for just such action. In Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985), the trial court denied a petition without an evidentiary hearing, and we said:

The circuit court need not hold an evidentiary hearing where it can be conclusively shown on the record or the face of the petition itself, as it can be in this case, that the allegations have no merit. See Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).

This case is precisely the same set of circumstances. The petition was deficient on its face. The trial court examined all the records in this case and found that Smith failed to state a cause of action. That satisfied Rule 37.3 (a). See Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion for a number of reasons. The appellant was convicted on March 9,1983. His trial attorney did not give notice of appeal nor did he obtain the permission of the trial court to be relieved. Finding himself without counsel, the appellant filed a motion for belated appeal on August 16, 1983. This motion was denied by the trial court on December 20, 1983. This Court for some reason also denied his motion for belated appeal on March 12, 1984. Appellant filed motions for post-conviction relief in March, April, August, and November 1984, alleging, among other things, ineffective assistance of counsel due to counsel’s failure to recognize the appellant’s mental defect at the time of his trial. Finally, the appellant filed a petition in this Court for a writ of mandamus to require the trial court to rule on his motions. The trial court subsequently denied appellant’s motions on December 27, 1985. Apparently, for some reason, these motions had not been presented to the trial court prior to the petition for mandamus. After all this time and effort the appellant has yet to have the merits of his case considered by an appellate court.

The order denying the Rule 3 7 relief is set out in the maj or ity opinion and will not be repeated here. There are no findings of fact and conclusions of law in the order denying Rule 37 relief. The court is authorized to summarily dispose of the motion pursuant to Rule 37.3(a), which states:

If the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.

If the court does not so dispose of the motion, then Rule 37.3(c) requires the court to grant a prompt hearing and “determine the issues and make written findings of fact and conclusions of law with respect thereto.”

If petitioner alleges in his original Rule 37 motion, or a motion to appeal the court’s findings, that he is unable to employ counsel to pay the cost of the proceedings, the trial court, if satisfied that the allegations are true, shall appoint counsel to assist with the hearing in the trial court and/or appeal to the Supreme Court. Rule 37.3(b). Allegations of inability to pay costs or employ counsel were made by the prisoner. However, the court made no reference in the order denying Rule 37 relief to the financial ability of the appellant. Since there were no written findings made as required by subsections (a) or (c), I believe the case should be returned to the trial court with directions to make specific findings of fact from the record showing appellant is not entitled to relief or grant him a hearing on his motion.


text:
    Cleveland PARKER v. STATE of Arkansas
    CR 86-98
    717 S.W.2d 197
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Reginald A. Rogers, for appellant.

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

Appellant, Cleveland Parker, was convicted of three counts of delivery of controlled substances. He was sentenced as an habitual offender with four prior felonies to three concurrent 75-year terms of imprisonment. On appeal, he challenges the sufficiency of the evidence and the length of the sentences he received. Jurisdiction is pursuant to Sup. Ct. R. 29(1)(b). We affirm.

The appellant was convicted of twice selling cocaine and once selling dilaudid to an informant. Detective Phillip Rea observed all three transactions, the first from the window of a motel room and the other two from a parked car. Rea testified he could clearly see the informant and the appellant make the exchanges, with the informant using money Rea had given her. The informant and another officer who had witnessed one of the transactions also testified against the appellant.

The appellant argues that inconsistencies in the testimony of the two officers and the informant discredit the witnesses and make the evidence insufficient for a conviction. The appellant points to discrepancies in the testimony as to whether the informant’s hands were always clearly visible during the first exchange; whether the cocaine was wrapped in tin foil or white paper; how thoroughly the informant was searched before the first exchange; and whether the second officer saw what the appellant handed to the informant.

Obviously, none of these irregularities makes the evidence insufficient for a conviction. Minor discrepancies, conflicts and inconsistencies are for the jury to assess in weighing the testimony. White v. State, 266 Ark. 499, 585 S.W.2d 952 (1979). The testimony of the officers and the informant and the substances which were entered into evidence against the appellant were substantial evidence upon which a conviction can be based.

The appellant also argues that the 75-year sentence was excessive for a nonviolent crime. The appellant was sentenced as an habitual offender under Ark. Stat. Ann. § 41-1001 (Supp. 1985). The three offenses are Class Y felonies under Ark. Stat. Ann. § 82-2617(a)(l)(i) (Supp. 1985). Having previously been found guilty of four felonies, the appellant could, pursuant to § 41-1001, have been sentenced to a term not less than forty years nor more than life.

We have held many times that if a sentence is within the limits set by the legislature, it is legal. Porter v. State, 281 Ark. 277, 663 S.W.2d 723 (1984). In Pridgeon v. State, 266 Ark. 651, 587 S.W.2d 225 (1979), we stated:

Punishment authorized by statute is never cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Hinton v. State, 260 Ark. 42, 49, 537 S.W.2d 800, 804 (1976).

The appellant’s sentence was not excessive.

Affirmed.


author: George Rose Smith, Justice.

text:
    Jim James Junior LASITER v. STATE of Arkansas
    CR 86-100
    717 S.W.2d 198
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Witt Law Firm, P.C., by: R. Kevin Barham, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of having raped his eight-year-old niece once in 1983 and five times on successive Sundays in 1984, while his sister-in-law, the child’s mother, was away from the home occupied by the three of them. The jury imposed six life sentences, which were made to run concurrently. The sufficiency of the evidence has not been questioned. The primary issue for the jury was that of credibility as between the prosecutrix, who described in detail what she said had occurred, and the defendant, who testified that he had never molested the child in any way.

Lasiter’s original attorney was Brian K. Mueller. After the trial Lasiter obtained other attorneys, who filed a motion for a new trial on the ground of ineffective assistance of counsel in that the State had been allowed without objection to introduce inadmissible, prejudicial testimony. At the hearing on the motion Mueller explained at some length his reasons for not making objections. Those reasons were not good ones. This appeal is from the trial court’s refusal to grant a new trial. Ordinarily we do not consider a charge of ineffectiveness when a case is first appealed, for the facts relevant to that issue have not been developed. When, however, as in this case, the proof is presented at a hearing on a motion for a new trial, it is certainly a sensible procedure for all the issues to be disposed of in a single appeal.

The appellant argues several instances of ineffectiveness, but we need discuss only two, for we hold that a new trial must be granted on the basis of those two. The standards by which counsel’s performance is to be judged were considered in detail in Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986). There we summed up the defendant’s burden of proof in this language:

With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

In the case at bar both instances of professional misconduct related to proof that Lasiter had assertedly raped his own daughter several times ten or eleven years earlier, when she was about fourteen or fifteen years old. That matter was first mentioned in the prosecutrix’s deposition which had been videotaped by a policewoman under a 1981 statute. Ark. Stat. Ann. § 43-2036 (Supp. 1985). The deposition was introduced by the prosecutor and was read to the jury. In that deposition the prosecutrix stated that the defendant (her uncle) had told her in the course of the incidents between them that he had done the same thing to his daughter (the prosecutrix’s cousin). Attorney Mueller had read the deposition before the trial, but he made no objection to that part of it.

The second instance was even more damaging to the defense. The prosecution had brought up, in the deposition, the allegation that Lasiter had raped his daughter. Lasiter testified in his own defense and said that his daughter had made up the story because she was mad at him. The prosecutor later called the daughter as a rebuttal witness. Here are excerpts from her testimony:

Q. What did [the prosecutrix] tell you?
A. That my father had had sex with her.
Q. Did she go into detail, did she describe it or what did she say to you, as best you can remember?
A. That, you know, he just went all the way, and that’s about all she really said.
Q. Did you believe her?
A. Yes, sir.
Q. Why did you believe her?
A. Because the same thing happened to me.
Q. What did he do to you?
A. The same thing he done to Shannon.
Q. What is that?
A. Had sex.
Q. Sexual intercourse with you?
A. Yes, sir.
Q. He raped you?
A. Yes, sir.

Mr. Mueller made no objection to any of this testimony, explaining later that he thought it was admissible as rebuttal. There can be no doubt that in the present case Lasiter’s asserted rape of his daughter was not admissible. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). It should have been objected to before the deposition was read into evidence. If that had been done, there would have been no reason for Lasiter to bring up the other incident when he elected to testify. There would then have been no repetition of the assertion on rebuttal. Even though it was the prosecutor who was at fault in bringing an unrelated crime into the case, defense counsel was also at fault in failing to object to the evidence.

It is clear enough that the defendant, in making the complaint of ineffectiveness, has shown a reasonable probability of prejudice sufficient to undermine confidence in the outcome. In a case involving alleged sexual abuse of a child, it is hard to conceive of testimony more damaging than proof that the accused had raped his own daughter when she was a child. Yet that inadmissible but devastating testimony was allowed to be introduced without either an objection or a demand for a mistrial. Moreover, the prosecutor drove home the point in his closing argument, again without objection. That prejudice actually resulted is clearly indicated by the jury’s imposition of six life sentences, the maximum punishment on the six charges. All that is necessary is a reasonable probability of prejudice, as to the sentences if not as to the finding of guilt. That showing has been made.

Reversed and remanded for a new trial.


text:
    Louis RICARTE, Jr., a/k/a Louis VALDEZ, a/k/a Alexander VALDEZ v. STATE of Arkansas
    CR 86-31
    717 S.W.2d 488
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Wright & Hamilton, by: Fielding Wright; and Martin, Vater & Karr, by: Charles Karr, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The appellant Ricarte was convicted of three counts of aggravated robbery, three counts of kidnapping, and two counts of theft of property. As an habitual criminal with 10 prior convictions he was sentenced to life imprisonment on each count of aggravated robbery and to 30 years plus a $15,000 fine on each of the other counts. The trial court made the sentences run consecutively.

Counsel for the appellant have listed 18 points for reversal, but only the first eight are argued in their brief. It being a life imprisonment case, we have considered all the points. We must reverse the convictions because Ricarte’s wife was permitted, over a proper objection, to testify against him. We need not discuss all of the other 17 points, for some will not arise upon a second trial and others are so obviously lacking in merit as not to be considered. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

The crimes took place on the evening of March 2 and the morning of March 3,1982, in Fayetteville. The case was not tried until July 15,1985, for the robbers followed a carefully laid plan and left scant clues as to their identity. It is not necessary for us to relate the facts in detail.

Four men acted together in committing the crimes. One was not an active participant; he merely monitored police calls on a scanner so that he could warn the others by telephone if the police were alerted by an alarm system. There was no alert.

At about 9:00 p.m. on March 2 the other three, Ricarte, Brannen, and Clark, entered the home of Robert H. Perry, who owned a jewelry store in Fayetteville. Two of the men were rather inadequately disguised. The third man, Ricarte, was completely covered by means of a ski mask, a jogging suit, gloves, and shoes. Brannen testified that Ricarte did not want his skin color to be seen, because he is an Indian. The three men, who were armed, handcuffed Perry and his wife and son. Brannen and Clark explained the robbers’ plan to remain at the Perry home all night and rob the jewelry store early the next morning. That plan was successfully carried out; both the Perry home and the store were robbed. The total take had a retail value of about a million dollars, with the wholesale value being about half that. Ricarte actively participated but maintained his anonymity by never speaking except in a whisper inaudible to the Perrys. One of the three, Brannen, was eventually arrested after prolonged and painstaking police work. Brannen joined the Federal Witness Protection Program, gave the FBI information about the robbery, and testified against Ricarte at the trial.

On July 12, 1985, three days before the trial began, Ricarte and Susan Schneider were married in Arkansas. When the State called Mrs. Ricarte as a witness, counsel objected on the ground that under Arkansas law the State cannot call one spouse as a witness against the other. The State relied on Uniform Evidence Rule 504(b), by which only confidential communications between spouses are privileged. The defense insisted that the Uniform Rules of Evidence were not validly adopted by the legislature, because at the time of their adoption the legislature was unlawfully in session in January, 1976, almost a year after the 1975 regular session had ended. That practice of continuing the legislature in session after its regular 60-day session has ended is not permitted by the Arkansas Constitution. Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375 (1980). The trial judge overruled the objection on the ground that a marriage three days before trial should not create a privilege.

The objection should have been sustained. The Uniform Rules of Evidence were adopted at an invalid session of the legislature. Under the Wells case they did not become law. That being true, our earlier statute, Act 14 of 1943, was not affected by the repealing clause in the Uniform Rules. The 1943 statute provides that in a criminal case one spouse cannot be called by the opposite party as a witness against the other spouse. The statute makes no exception for a marriage that was or may have been entered into for the purpose of shielding one spouse from the testimony of the other. The point has been ruled upon in six or more jurisdictions, with all the courts enforcing the particular statute as it was written. See Wigmore on Evidence, § 2230 (1961).

We have been concerned about the topsyturvy condition that would come about if the Uniform Rules were abruptly cast out. There would be great confusion. Judges and lawyers would have to relearn the older, inferior rules of evidence. Many trial errors would occur. A host of new trials would follow. And costly timeconsuming appeals would prolong the difficulties.

We think our best course is to avoid all those unfortunate possibilities, simply and quickly. Under our own rule-making power and under existing statutory authority, as of this date we adopt the Uniform Rules of Evidence as the law in Arkansas. We have no misgivings about either the validity of our action or its wisdom, but a few comments are appropriate.

For more than fifty years there has been a steady trend in favor of committing to the courts the regulation of practice and procedure. Dean Wigmore took a strong stand in the matter as early as 1928. Editorial, 23 111. L. Rev. 276. Many others agreed. In 1940 the American Bar Association chose as the subject for its annual Ross essay contest: “To What Extent May Courts under the Rule-Making Power Prescribe Rules of Evidence?” the winning essay by Prof. Thomas F. Green, Jr., argued persuasively that all rules of evidence are properly subject to the courts’ rule-making power. 26 A.B.A.J. 482 (1940). Other pertinent articles include another Ross essay submitted by Charles A. Riedly, 26 A.B.A.J. 601 (1940); Morgan, “Rules of Evidence — Substantive or Procedural?,” 10 Vanderbilt L. Rev. 467 (1957); and Joiner and Miller, “Rules of Practice and Procedure: A Study of Judicial Rule Making,” 55 Mich. L. Rev. 623 (1957).

Arkansas has kept step with the progress made elsewhere. Our Constitution of 1874 confers upon the Supreme Court “a general superintending control over all inferior courts of law and equity.” Art. 7, § 4. We note in passing that the Supreme Court of New Mexico relied on almost that identical language in the New Mexico constitution as authority for the court’s action in adopting the Uniform Rules of Evidence as the law in that state. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), where the court analyzed in depth its rule-making power.

In 1971 the Arkansas legislature used mandatory words in committing the regulation of criminal practice and procedure to this court:

The Supreme Court of the state of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings in criminal cases.

Ark. Stat. Ann. § 22-242 (Supp. 1985). That action was not an improper delegation of legislative power; it merely recognized the court’s inherent power. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). The statutory language quoted above was repeated in a 1973 statute by which the legislature recognized the Supreme Court’s power to prescribe rules with respect to procedure in civil cases. § 22-245. Under those statutes we have adopted the Rules of Criminal Procedure and the Rules of Civil Procedure. More recently we adopted rules for the certification of court reporters. We are not the first court to adopt the Uniform Rules of Evidence by judicial action. That step has been taken not only in New Mexico, as mentioned earlier, but also in Florida, In re Florida Evidence Code, 372 So.2d 1369 (1979); in Montana, Montana Rules of Evidence, Ch. 10, Mont. Code Ann. (1984); and in Wisconsin, In re Promulgation of Rules of Evidence, 59 Wis. 2d R1-R377 (1973). The Supreme Court of the United States adopted the Federal Rules of Evidence pursuant to federal statutes quite similar to the 1971 and 1973 statutes enacted in Arkansas. See Reporter’s Note, 409 U.S. 1132 (1972).

Even though our order formally adopting the Uniform Rules is effective today, Ricarte is entitled to a new trial, for his wife should not have been allowed to testify for the State. Since the invalidity of the statute adopting the Rules was properly raised at the trial, Mrs. Ricarte’s right to claim the statutory privilege must in fairness be recognized at a new trial.

A second argument is that the court should have granted a mistrial when the prosecutor said in his opening statement that Ricarte had been in the penitentiary and also when a witness made that statement. The evidence was relevant, because the plan for the robbery was conceived by inmates who were in the penitentiary and a key witness for the State identified Ricarte as the man called “Chief’ whom he had known in the penitentiary. Since the fact of Ricarte’s incarceration was admissible and was proved, the prosecutor was entitled to refer to it in his opening statement. See Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

Another argument is that the court should have instructed the jury that two witnesses were accomplices as a matter of law. One of them, Brannen’s girlfriend at the time, testified that he told her to pick up a scanner at a motel a day or so after the robbery and that when she took it to Ricarte’s house at Fayetteville she saw many pieces of jewelry on a bed: “Scads of it. There was a lot, a bed-full.” There is no proof that she participated in the robbery. To the contrary, she said that when she saw the jewelry she was scared. The other witness was the one who had known Ricarte in the penitentiary as Chief. He recognized Ricarte as being Chief when Ricarte exchanged some of the jewelry for drugs, but there is no proof that the witness knew where the jewelry had come from. Neither of the two witnesses was shown to be an accomplice as a matter of law, their status being at most an issue for the jury.

Upon another point the appellant attacks the constitutionality of the statute permitting the judge to instruct the jury that a defendant has a certain number of previous convictions, which is what the judge did in this case. Ark. Stat. Ann. §§41-1003 and -1005 (Supp. 1985). We upheld that procedure in Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984), saying that the number of previous convictions is a matter of law. See case note, 39 Ark. L. Rev. 553 (1986). In the Shockley case, however, and in this case as well, the proof of previous convictions was undisputed. Consequently it was proper in both cases for the judge to inform the jury of facts not in dispute. AMCI 7001-A and Comment thereto (1982). If the existence or validity of one or more previous convictions is disputed by testimony offered by the defendant, the issue may be submitted to the jury by the use of AMCI 7001. Here there was no issue of fact for the jury; so the court’s actions were correct.

The last point we need mention is the trial court’s denial of a defense request that a pre-sentence report be obtained and be given to the jury when the issue of punishment was submitted. The statutes do not contemplate that procedure when punishment is to be fixed by the jury, and for good reasons. The report would be a waste of time and money whenever the defendant is acquitted. And when he is found guilty in the first stage of a bifurcated trial, there would be serious practical difficulties in allowing the jury to separate for an indefinite period while the defendant’s background was being investigated. The legislature may well have concluded that when a defendant has a record of previous convictions — ten in this instance — the issue of punishment should be submitted on that record alone, without a pre-sentence investigation.

Reversed and remanded.

Hays, J., dissents.


author: John I. Purtle, Justice.

text:
    Elwyn D. GRAHAM v. STATE of Arkansas
    CR 86-73
    717 S.W.2d 203
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Chandler & Thomason, by: Byron Thomason and J.G.

      Molleston, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted by a jury of the offenses of felon in possession of a firearm and of aggravated robbery. He was sentenced as an habitual offender pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1985). He was sentenced to 12 and 45 years respectively. He argues three grounds for reversal of the convictions: (1) the trial court erred in rejecting testimony about the appellant’s mental condition; (2) the aggravated robbery conviction was not supported by the evidence; and (3) the court erred in allowing the jury to inspect the appellant’s prior penitentiary commitments during deliberations. We reverse and remand the case for a new trial.

On October 7, 1985, at about 4:30 p.m., two Columbia County deputy sheriffs arrived at appellant’s residence to arrest him on a misdemeanor warrant. The appellant emerged from his bedroom with a shotgun and ordered a deputy to remove his gun and leave the house. The officer returned to his car where the other deputy was radioing for help. The appellant passed the officers as he was leaving his home, carrying his shotgun and the deputy’s pistol. He eluded the authorities until about 11:00 p.m. when he called them and arranged to surrender. At the time of the call he was about three blocks from his residence. After agreeing to surrender, he and a friend decided to leave the officer’s gun at the friend’s house rather than take it to the police station with him. At trial the officer testified that he was deprived of the use of his handgun for about six hours.

During the deliberations in the penalty phase of the trial, the jury asked the court about parole eligibility. The court instructed the jury not to consider the possibility of parole. Over appellant’s objection the jury was permitted to view the written judgments of prior convictions. The primary objection was that one of the prior commitments was dated about seven months before the offense for which he was being tried was committed. The appellant’s argument is that since it was a three year commitment, the jury could discern how soon a parole could be granted; therefore, allowing the jury to view the papers amounted to a comment on parole eligibility.

We first consider the argument that during the guilt-innocence phase of the trial the lower court erred in refusing to allow the testimony concerning appellant’s mental and emotional condition. The mother and grandmother of the accused would have testified to the effect that under pressure the appellant “goes to pieces.” This same testimony was also ruled inadmissible in the penalty phase of the proceeding. From the record it appears the mother and grandmother were qualified to express an opinion as to the appellant’s mental condition.

In Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979), this Court was faced with a similar fact situation and addressed the application of Ark. Stat. Ann. § 41-602 (Repl. 1977). There we stated, “[e] ven if the mental disease or defect did not constitute a defense, evidence of it was relevant on the question of his culpable mental state. . . .” In the present circumstances purposeful intent is an essential element of the aggravated robbery. A witness may give a non-expert opinion on matters rationally based upon his perception if it is helpful to a clear understanding of his testimony or the determination of a fact issue. A.R.E. Rule 701. Furthermore, evidence of mental disease or defect is admissible to prove whether the accused had the kind of mental state required for commission of the offense charged under Ark. Stat. Ann. § 41-602 (Repl. 1977). We therefore hold that it was prejudicial error to refuse to allow the appellant’s mother and grandmother to testify during the guilt-innocence phase of the trial.

The second argument is that the evidence was insufficient to support the aggravated robbery conviction. The provisions of Ark. Stat. Ann. § 41-2102 (Supp. 1985) state:

(1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 . . . and he
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed. . . .

Ark. Stat. Ann. § 41-2103 (Repl. 1977) defines robbery as:

(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Ark. Stat. Ann. § 41-2203 (Repl. 1977) defines theft as:

(1) A person commits theft of property if he:
(a) knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. . . .

The question for our consideration therefore is whether the appellant took or exercised unauthorized control over the officer’s pistol with the purpose of depriving the owner thereof. Whether he had the requisite intent is a question of fact. Williams v. State, 251 Ark. 878, 475 S.W.2d 530 (1972); Bailey v. State, 92 Ark. 216, 122 S.W. 497 (1909). In other cases in which an accused had disarmed an officer and fled with the weapon, we held that the trial court properly presented the question of intent to the jury. The record reveals substantial evidence from which the jury could have concluded that he possessed the necessary intent.

The third and final argument for reversal is that the trial court erred in allowing the jury to take copies of appellant’s prior convictions into the deliberation room. This action was taken after the court properly refused to inform the jury about parole eligibility and was in response to the jury’s inquiry whether the appellant had ever served time in the Arkansas Department of Correction. The prior convictions had been introduced as exhibits in chambers, out of the presence of the jury, in order that the court could determine the number of previous convictions.

Act 252 of 1981, codified as Ark. Stat. Ann. § 41-1005 (Supp. 1985), establishes the procedure for determining the number of convictions. Previously the jury made such determinations. The pertinent part of Act 252 states:

“[t]he trial court shall then instruct the jury as to the number of previous convictions and the statutory sentencing range. The jury may be advised as to the nature of the previous convictions and the date and place thereof.”

It is not mandatory that the jury know the nature and time and place of the previous felonies. This is a matter of discretion with the trial court.

Appellant relies upon our decision in the case of Jones v. State, 283 Ark. 308, 675 S.W.2d 825 (1984). In Jones the appellant argued that the prior convictions should have been submitted to the jury and the number of prior convictions determined by the jury. However, we pointed out that Act 252 made this an issue of law to be decided by the court. We did hold that it was not error to refuse to introduce prior convictions into evidence to be considered by the jury. In the present case the argument by appellant is the opposite of the argument in Jones. Here, it is argued that the court erred by allowing the jury to examine the commitments. We have previously held that the number of prior convictions is a matter of law, not fact. See McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986); Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984).

The correct statutory procedure in a bifurcated trial is, after a finding of guilt, for the trial court to hold a hearing, out of the presence of the jury, to determine the number of prior convictions and to then instruct the jury as to the number to be considered by them in fixing the punishment. Although evidence of prior convictions is made a part of the record for appeal purposes, such material is not introduced into evidence to be considered by the jury. Therefore, it is prejudicial error for the court to provide the jury with documents which have not been introduced into evidence. It would have been proper for the trial court to have advised the jury about the nature of the previous convictions and the dates and places thereof. However, in the absence of a request for such information by the parties or the jury, the trial court is under no duty to sua sponte inform the jury of such matters.

Reversed and remanded.

Hickman, and Hays, JJ., would not find prejudicial error on point three.


text:
    Eddie Lee JONES v. STATE of Arkansas
    CR 86-58
    717 S.W.2d 200
    Supreme Court of Arkansas
    Opinion delivered October 13, 1986

      Val P. Price, for appellee.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

A Craighead County jury convicted appellant of the offenses of rape, kidnapping, and theft of property. He was sentenced to consecutive terms of life, life, and 10 years, respectively, in the Arkansas Department of Correction. He argues seven points for reversal. We find that none of the assignments of error were prejudicial to the appellant, and accordingly affirm.

On August 5, 1985, the appellant was charged with a rape that occurred the day before. He was also charged on August 8, 1985, with a rape, kidnapping, and theft of property which occurred on July 24,1985. Before trial the appellant was notified that he would be tried on all charges at the same time. However, on the day of the trial, October 9,1985, the prosecutor informed the appellant that he would not be tried that same day for the rape which occurred on August 4, 1985.

During the course of the trial, the victim testified that at about 11:00 p.m. on July 24,1985, she stopped at a service station to purchase gasoline. She stated that as she was about to leave the station, the appellant jerked her car door open and jumped into her car. She testified that he then placed a knife to her throat and forced her to drive to a county gravel road, where he repeatedly raped her. During the drive the appellant sat in the back seat with his arm around the victim’s neck while holding the knife to her throat. She described the rapes in detail. Her testimony was that after he raped her he gagged her with the shirt he was wearing and tied her to a tree in the woods. He then fled in the victim’s 1976 Ford Mustang.

At trial the victim identified the appellant and the shirt he had used to gag her. Another witness stated that the appellant, who was not wearing a shirt at the time, came to his house at about 1:30 a.m. on July 25,1985, and persuaded the witness to help him get a white Mustang out of a ditch.

The victim was examined by a doctor in the emergency room of the hospital about 2:30 a.m. on July 25, 1985. He took a specimen in a rape kit and sent it to the crime lab. During the examination, the victim related to the doctor the same events she testified to at trial. The findings of the tests were superficial scratches on her throat and wrists and fluid in the vagina. One of the investigating officers testified that the victim had rope burns on her arm.

The day after the rape the officers located the tree to which the victim had been tied. They also found the place where the Mustang had been stuck in the ditch. A knife was found near where the appellant had been taken into custody. This knife was identified by the victim at trial as being like the one used by her attacker.

The appellant argues that the evidence was insufficient to support the convictions. From the facts already stated, we have no hesitancy in declaring that the record clearly reflects substantial evidence to support all three convictions.

It is also argued that the trial court erred in allowing the state to proceed at trial with only one of the two alleged criminal episodes. We fail to understand the appellant’s argument and it is clear that no prejudice resulted from this action.

The third argument is that the lower court erred in denying the appellant’s motion for a directed verdict at the close of the state’s case and again at the close of all the evidence. This is but another way of arguing that there is insufficient evidence to sustain the conviction. As this point has previously been addressed, no further discussion is necessary.

The appellant also argues that the trial court erred in overruling his objection to the giving of AMCI 5004. He argues that as there was no proof of the value of the victim’s vehicle, the instruction given to the jury that theft of property is a class C felony was erroneous. The evidence does not support this argument. The owner of the car testified that her parents paid $1500.00 for the vehicle in 1984. We have previously held that testimony of the purchase price of property may be shown to assist the jury in determining market value, if the purchase date is not too remote in time and the purchase price bears a reasonable relation to the present value. Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980). Therefore, we conclude that the trial court did not err as there was a reasonable relation between the purchase price and the value of the car at the time it was stolen.

The fifth and sixth points for reversal will be combined for discussion. The appellant asserts the court erred in giving AMCI 1702, kidnapping, because rape is a lesser included offense in this case. He also objected to the court giving AMCI 1803, rape, because kidnapping is a lesser included offense of rape under the circumstances of the present case. Apparently this argument is that as there was but one criminal act, he could be found guilty of either kidnapping or rape, but not both.

The facts clearly show that the victim was forced to drive to the country where she was repeatedly raped. Although she was not seriously injured physically, her life was threatened several times. After the rape the victim was tied to a tree. There could hardly be a more clear case of the separate crimes of rape and kidnapping. See Beed v. State, 271 Ark. 256, 609 S.W.2d 898 (1980).

Lastly, it is argued that the court erred by sustaining the state’s objection to appellant’s sister’s testimony attempting to describe how the shirt, which was used to gag the victim, fit the appellant. At trial the appellant put on the shirt for the purpose of demonstrating to the jury how poorly it fit. His sister was attempting to describe how the shirt fit the appellant for the jury and/or the record when the state’s objection was sustained. We believe this was a matter for the discretion of the court, and the exercise of this discretion will not be reversed in the absence of gross abuse. See, e.g., Price v. State, 268 Ark. 535, 597 S.W.2d 984 (1980). It was up to the jury to see for itself how the shirt fit and this testimony would probably have been of little assistance to the jury.

We have reviewed all errors which might have been prejudicial to the appellant and find that he has not been prejudiced by any ruling of the trial court. See Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Arkansas Supreme Court Rule 11(f).

Affirmed.