author: Ray Thornton, Justice.

text:
    Chad GONDOLFI v. Honorable David S. CLINGER
    CR 02-828
    98 S.W.3d 812
    Supreme Court of Arkansas
    Opinion delivered February 28, 2003

      Larry R. Froelich and George D. Oleson, for petitioner.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.
   Ray Thornton, Justice.

Petitioner, Chad Gondolfi, ticpetition e. writ of prohibition on Benton County Circuit Court, naming Judge David S. Clinger as respondent. This petition arises from the trial court’s order denying a motion to dismiss based upon violations of the speedy-trial provisions of Ark. R. Crim. P. 28 and the Interstate Detainer Act, codified at Ark. Code Ann. § 16-95-101 et seq. (1987). In his petition, petitioner seeks a writ of prohibition on his prosecution and a reversal of the trial court’s denial of his motion to dismiss. Petitioner argues that the State has failed to bring him to trial within the 365 days required under Ark. R. Crim. P. 28.1, and that the State failed to bring him to trial within the 180 days required under the Interstate Agreement on Detainers. We find no merit in petitioner’s argument and deny the writ of prohibition challenging the jurisdiction of the trial court.

I. Facts

Petitioner was charged by an amended felony information for having committed felonies in Arkansas on April 2, May 13, and June 6, 2000. The June 6 charges include the sale of a controlled substance and simultaneous possession of drugs and a firearm.

On June 26, 2000, and on July 12, 2000, petitioner failed to appear for his arraigninent. On July 12, 2000, the trial court issued a bench warrant for his arrest. Sometime before August 22, 2000, petitioner fled the jurisdiction and was arrested in Chicago, Illinois on Illinois charges that were subsequently dismissed. Petitioner was arrested in Cook County, Illinois on August 22, 2000, on the bench warrant issued by the Benton County Circuit Court. Petitioner was released by the Illinois authorities.

On August 23, 2000, the Benton County Sheriffs Office notified the prosecutor’s office that petitioner refused to waive extradition and that a Governor’s warrant would have to be obtained. On September 21, 2000, the State amended the felony information on the April 2 charge to include the July 6 charge. On October 16, 2000, the State requested extradition. Petitioner signed a waiver of extradition on March 20, 2001, and later returned to Arkansas. By March 27, 2001, petitioner was back in the Benton County jail.

On April 6, 2001, petitioner appeared in court represented by Mr. Louis Lim, a public defender. From April 16, 2001, to June 6, 2001, petitioner appeared with counsel at various pretrial hearings. On June 25, 2001, Mr. Lim was relieved as counsel because of a conflict of interest. The Public Defender Commission was appointed to substitute as counsel.

On July 23, 2001, at an attorney status hearing, petitioner appeared with Mr. Charles Duell, a public defender. The trial court was informed that no attorney had been appointed to represent petitioner. On August 2, 2001, the trial court entered an order, appointing Ms. Linda Schribner to replace Mr. Lim as counsel. After numerous status hearings where trial dates were set and reset, on May 24, 2002, Ms. Schribner was allowed to withdraw as counsel, and Mr. Larry Froelich was appointed.

On June 27, 2002, petitioner filed a motion to dismiss the June 6 charges on the basis that he had been denied a speedy trial. The State responded. A hearing on the speedy-trial issue was held on August 5, 2002.

On August 7, 2002, the trial court entered an order denying petitioner’s motion to dismiss based upon allegations of violations of the speedy-trial provisions of Rule 28 of the Arkansas Rules of Criminal Procedure and the Interstate Detainer Act, codified at Ark. Code Ann. § 16-95-101 et seq. On August 9, 2002, petitioner filed a petition for writ of prohibition with our court alleging a speedy-trial violation.

II. Speedy trial

For his first point, petitioner seeks a writ of prohibition against Judge David S. Clinger to prohibit him from conducting a trial on the basis that he had been denied a speedy trial. We note that petitioner erroneously seeks the writ against Judge Clinger. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. Crump v. Ford, 346 Ark. 156, 55 S.W.3d 295 (2001). Accordingly, we will treat the petition as one against the Benton County Circuit Court. Id.

Petitioner first argues that a writ of prohibition should issue. In Doby v. Jefferson County Circuit Court, 350 Ark. 505, 88 S.W.3d 824 (2002), we stated:

Pursuant to Ark. R. Crim. P. 28.1(d), a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction.

Id. (citing Gamble v. State, 350 Ark. 168, 85 S.W.3d 520 (2002)). A writ of prohibition will not issue unless it is clearly warranted. Id.

Under Ark. R. Crim. P. 28.1, a defendant must be brought to trial within twelve months unless there are periods of delay which are excluded under Ark. R. Crim. P. 28.3. Moody v. Arkansas County Circuit Court, Southern District, 350 Ark. 176, 85 S.W.3d 534 (2002). If the defendant is not brought to trial within the requisite time, the defendant is entitled to have the charges dismissed with an absolute bar to prosecution. Ark. R. Crim. P. 30.1. If prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest. Ark. R. Crim. P. 28.2. It is well settled that a defendant does not have a duty to bring himself to trial; rather, the burden is on the court and the prosecutor to see that the trial is held in a timely fashion. Moody, supra. Once a defendant establishes a prima facie case of a speedy-trial violation, the State bears the burden of showing that the delay was the result of the defendant’s conduct or otherwise justified. Id.

In the present case, we first must determine when the speedy-trial period commenced. Petitioner asserts that the State failed to prosecute his case twelve months from his August 22, 2000, arrest date because he was released by Illinois officials and “lawfully at liberty,” pursuant to Ark. R. Crim. P. 28.2. The State contends that the time for bringing him to trial began to run on March 20, 2001, when petitioner waived extradition.

Petitioner’s argument is unavailing. On August 5, 2002, at the hearing on the speedy-trial motion, petitioner testified that he did not resist extradition and that he never refused to waive extradition. However, the trial court noted that petitioner failed to appear on pending Arkansas charges, fled the jurisdiction, went to Illinois, and was arrested in Illinois. We have no evidence before us, other than petitioner’s testimony, about petitioner’s circumstances in Illinois. In fact, the State produced as State’s Exhibit 2 a faxed memo, dated August 23, 2000, from Brenda Larsen, a fugitive warrant secretary for Benton County, that petitioner refused to sign the waiver of extradition back to Arkansas.

We agree with the State’s argument on this point. In White v. State, 310 Ark. 200, 833 S.W.2d 771 (1992), appellant was arrested in Texarkana, Texas for charges stemming in Arkansas and in Texas. He waived extradition to Miller County, Arkansas. We stated:

We have held that an accused in prison in another state, for a different crime, must affirmatively request a trial in order to activate the speedy trial rule. Here, the state showed that the appellant signed the waiver of extradition on October 18, 1990, thus he was unavailable for trial before this date. . . . Thus, appellant’s speedy trial period did not begin to run until he waived extradition on October 18, 1990, and his trial on July 22, 1991 was well within the twelve month speedy trial period.

Id. (citations omitted).

Under White, supra, we will use March 20, 2001, when petitioner waived extradition to Arkansas, as the date that commenced the speedy-trial period. We will also use June 27, 2002, as the end of the speedy-trial period, as that date is when petitioner filed his speedy-trial motion. We have said that the filing of the speedy-trial motion tolls the speedy-trial period. Doby, supra; Moody, supra. The time between March 20, 2001, and June 27, 2002 is 464 days. As this period exceeds the twelve-month requirement for a speedy trial, a prima facie case is established, and the State must show that the delay was the result of the defendant’s conduct, or was otherwise justified. Moody, supra.

We now consider whether there are any periods of time to be excluded from the 464-day period between March 20, 2001, and June 16, 2002. First, we note that, in a pretrial order dated April 16, 2001, the trial court excluded June 26, 2000 to April 16, 2001. However, March 20, 2001, the day from which the speedy-trial period begins, falls within this excludable time period. The twenty-seven days from March 20, 2001 to April 16, 2001 is chargeable to the petitioner, as noted below.

In various pretrial, arraignment, and setting orders, the trial court excluded the following periods from the speedy-trial calculation:

Order Time Excluded Number of days
4/16/2001 June 26, 2000-April 16,-2001 27 (beginning at 3/20/01)
4/25/2001 April 25, 2001-April 26, 2001 1
5/24/2001 May 24, 2001-June 6, 2001 13
6/6/2001 June 6, 2001-June 25, 2001 19
6/25/2001 June 25, 2001-July 23, 2001 28
7/23/2001 July 23, 2001-Aug. 2, 2001 10
8/2/2001 Aug. 2, 2001-Aug. 9, 2001 7
8/10/2001 Aug. 10, 2001-Sept. 25, 2001 46
9/20/2001 Sept. 25, 2001-Nov. 27, 2001 63
11/27/2001 Nov. 27, 2001-Feb. 14, 2002 79
5/2/2002 May 2, 2002-May 6, 2002 4
5/24/2002 May 7, 2002-July 23, 2002 51 (ending at 6/27/02)

Therefore, the total number of excludable days found by the trial court to be chargeable to the petitioner equals 348 days. After subtracting 348 days of the excludable periods from the total period of time of 464 days, the balance is 116 days, which is well within the twelve-month requirement for speedy trial.

In his brief, petitioner only challenges three excludable periods: (1) March 20, 2001 to April 16, 2001, (2) June 25, 2001 to July 23, 2001, and (2) July 23, 2001 to August 2, 2001. The first period involves the time when petitioner was in Chicago after he waived extradition. The second period was when his attorney appeared for the purpose of withdrawing as counsel due to a conflict in interest. The third period of ten days involved the appointment of the Public Defender Commission, and petitioner argues that consideration of this period as excludable was inappropriate because he was without counsel. We note that even if petitioner were to prevail on his argument that these three periods, which aggregate sixty-five days, should not have been excluded, only 181 days of nonexcludable time have elapsed within the 365 days allowed by Rule 28.1. However, we do not reach petitioner’s argument concerning the March 20, 2001 to April 16, 2001 exclusion or the June 25, 2001 to July 23, 2001 exclusion because the issue of those exclusions was not preserved for appellate review because no contemporaneous objection was made at the hearings. A contemporaneous objection to the excluded period is necessary to preserve the argument in a subsequent speedy-trial motion. Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999); Tanner v. State, 324 Ark. 37, 918 S.W.2d 166 (1996); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995).

Because the time elapsed between petitioner’s waiver of extradition and his motion to dismiss for violation of our requirement for a speedy trial is less than twelve months after proper exclusions of chargeable times, we hold that no violation of our speedy-trial rule occurred. Therefore, we find no error in the trial court’s denial of petitioner’s motion to dismiss because the time for bringing petitioner to trial has not expired. Accordingly, petitioner is not entitled to a writ of prohibition on the basis of a speedy-trial violation.

III. Interstate Agreement on Detainers

For his second point, petitioner argues that the trial court erred in denying petitioner’s motion to dismiss based upon violations of the Interstate Agreement on Detainers, codified at Ark. Code Ann. § 16-95-101 et seq. (1987). Specifically, petitioner argues that he was not brought to trial within the 180-day period allowed in that agreement.

The Interstate Agreement on Detainers, found at Ark. Code Ann. § 16-95-101, provides in pertinent part of Article III:

(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Id.

In the present case, petitioner cites subsection (a) for the purposes of his argument that he shall be brought to trial within 180 days. However, petitioner was not returned to Arkansas pursuant to the Interstate Agreement on Detainers, but upon signing a waiver of extradition. Extraditions are governed by the Uniform Criminal Extradition Act, codified at Ark. Code Ann. § 16-94-201 et seq. (1987).

In order to comply with the Interstate Agreement on Detainers, a prosecutor must file a detainer upon learning that an accused is imprisoned elsewhere and must request that the official having custody of the accused advise the prisoner of the filing of the detainer and of the prisoner’s right to demand trial. Ark. R. Crim. P. 29.1(b); Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). The prisoner then has the right to demand trial, and such trial must be had within 180 days unless there is good cause for a delay. Id. Here, there is no showing in the record that the State filed a detainer or that petitioner was served with a detainer while incarcerated in Illinois. Therefore, we hold that the Interstate Agreement on Detainers was never triggered and is inapplicable.

Petition for writ of prohibition denied.

Imber, J., not participating.

       Pursuant to Ark. R. Crim. P. 1.4, we will not count the first day of each excludable period.


source: Caselaw Access Project

author: WH. “Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Anthony Tyrone MATTHEWS v. STATE of Arkansas
    CR 01-1135
    99 S.W.3d 403
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      C. Scott Nance, for appellant.

      J. Leon Johnson, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Justice.

Appellant, Anthony Tyrone Matthews, brings ce. appeal from his conviction of first-degree murder and life sentence imposed in connection with the shooting death of Alfredo Resendiz, which occurred on October 27, 2000, in Newport, Arkansas. Appellant asserts the following three points on appeal:

1) The trial court erred when it denied the appellant’s motion in limine to exclude overly prejudicial photographs of the crime scene;
2) The trial court erred when it denied the appellant’s objection to overly prejudicial evidence being admitted into evidence;
3) The trial court erred when it allowed the use of an uncertified interpreter at the trial.

Finding no error, we affirm.

I. Photographs

For his first point on appeal, appellant asserts that the trial court abused its discretion in admitting certain photographs of the victim that he alleges were more prejudicial than probative. In Barnes v. State, 346 Ark. 91, 55 S.WAd 271 (2001), this Court discussed the admission of photographs.

The admission of photographs is a matter left to the sound discretion of the trial court. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). When photographs are helpful to explain testimony, they are ordinarily admissible. Id. (citing Williams v. State, 322 Ark. 38, 907 S.W.2d 120 (1995)). Further, the mere fact that a photograph is inflammatory or is cumulative is not, standing alone, sufficient reason to exclude it. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). Even the most gruesome photographs may be admissible if they assist the trier of fact in any of the following ways: by shedding light on some issue, by proving a necessary element of the case, by enabling a witness to testify more effectively, by corroborating testimony, or by enabling jurors to better understand the testimony. Id. Other acceptable purposes are to show the condition of the victims’ bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000). Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs into evidence. Id.

Barnes, 346 Ark. at 104, 55 S.W.3d at 281.

In the instant case, the State was allowed to introduce photographs that depicted the deceased victim in various manners or views. These photographs were the subject of a pretrial hearing on the appellant’s motion in limine seeking their exclusion. At the hearing, defense counsel raised various objections to photographs he anticipated would be proffered by the State. The State proffered eleven photographs. State’s Exhibit No. 1 (admitted at trial as State’s Exhibit No. 16), was an overhead view of the crime scene to which defense counsel offered no objection. State’s Exhibits Nos. 2-6 were various views of the victim, and State’s Exhibits Nos. 7-11 were photographs taken during the autopsy of the victim, Alfredo Resendiz. The trial court examined each of the photographs and heard arguments of counsel. The trial court subsequently excluded State’s Exhibits Nos. 3, 9, and 11, finding that these photographs were duplicative of remaining photographs.

At trial, the State sought to prove that the appellant shot and killed the victim during the course or in furtherance of a robbery. To that end, the State called witnesses familiar with the scene of the crime and the discovery of the victim as well as the medical findings of the autopsy. The State called James Duvall, a lieutenant with the Newport Police Department, who testified that he was the supervising officer of the investigation surrounding the death of the victim.

Duvall testified that, on the night of the shooting, he arrived at the scene at approximately 9:30 p.m. and, as part of his duties, photographed the crime scene with the body of the victim present and, subsequently, took additional photographs after the victim’s body had been moved to the funeral home to await transport to the Arkansas State Crime Lab for an autopsy. Duvall described State’s Exhibit No. 12 as a photograph of the victim as he lay in the street, where the shooting occurred. Duvall further described State’s Exhibits Nos. 13, 14, and 15 as photographs depicting wounds to the victim’s head and the bagged hands of the victim.

Duvall explained that, in the course of the investigation, the appellant had indicated that he had struggled with the victim and that his gun had accidentally discharged. According to Duvall, the victim’s hands were bagged in order to preserve evidence that might have indicated signs of a struggle. Duvall also testified that when he interviewed the appellant, he had incorrectly assumed that the smaller bullet wound to the victim’s forehead had been the entry wound and that the large wound to the back of the victim’s head had been the exit wound. Duvall said that, during the course of several interviews, the appellant first denied involvement, then accused another person of the shooting, and, finally, admitted participation, but maintained that his gun accidentally discharged during his struggle with the victim.

Dr. Stephen Erickson, qualified as an expert in the area of forensic pathology to give his opinion as to the cause and manner of death of the victim, testified that he performed an autopsy on the body of the victim, whom he identified as Alfredo Resendiz, a twenty-two-year-old Hispanic male. He testified that, prior to his external examination of the victim, he learned that the victim had been involved in a shooting. Consequently, his external examination of the body took this into account and was part of his testimony. Erickson said he noted a small abrasion on the back of the victim’s right elbow and a small abrasion and contusion on the mid-forehead, from which he concluded that the victim had fallen to the ground after having been rendered unconscious by the gunshot wound to the head.

Erickson further testified that his examination revealed a through-and-through gunshot from the back of the head, in the hairline, with an exit wound located at the left forehead. In order to further examine and document his findings, Erickson said that the area around the wound was shaved and photographed. Erickson described State’s Exhibit No. 19 as a photograph of the face and forehead of the victim that included an area that had been shaved to reveal the exit wound with a ruler placed in the photo to indicate the correct scale of the depiction. Erickson identified State’s Exhibit No. 20 as a photo of the bullet entry-wound to the victim after having been cleaned and shaved to reveal the physical characteristics of the wound. State’s Exhibit No. 21 was identified by Erickson as a photo of the victim’s upper back and head with the bullet wound to the back of his head as he initially observed it.

Erickson said that after his examination of the physical characteristics of the head wound (depicted in the photos), he proceeded to determine the distance between the victim and the weapon when the weapon was fired. Erickson explained that firearm distance is classified in three categories: contact; close range, where powder from the firearm comes out and marks the skin; or distant, where the powder has lost its energy and does not reach to the skin of the target. With regard to the victim’s wound, he stated that it was' consistent with that of a contact wound, in that the muzzle appeared to have created a seal against the skin and that, together with the projectile, gases associated with the firearm’s discharge go underneath the scalp and deposit soot into the adjoining tissue.

Appellant principally relies on the case of Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1996), for the proposition that the introduction of photographs depicting the victim and his wounds was more unfairly prejudicial than probative. Appellant’s reliance on Berry is misplaced. In Berry, there was clearly more of a “carte blanche acceptance” of graphic and repetitive pictures of the victim and the crime scene. Id. at 227, 718 S.W.2d at 450. This Court observed, in Berry, that the only real issue at trial was whether the defendant had helped plan the crime. We further described the use of photographs, which clearly distinguishes the instant case, as follows:

[T]he probative value of the photographs in this case was limited to the cause and nature of death and would easily have been satisfied by introduction of a reasonable number of photographs depicting the injury to the victim and showing the crime scene.

Id. at 233, 718 S.W.2d 453.

In the instant case, the trial court exercised its discretion in excluding three of the ten photographs objected to as being cumulative or repetitive. Even if the remaining photos could be characterized as “inflammatory,” they are admissible at the discretion of the trial judge if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Perry v. Smith, 255 Ark. 378, 500 S.W.2d 387 (1973). The testimony at trial revealed that, initially, the police believed (incorrectly, as it turned out) that the bullet that had killed the victim had struck him from front to back. Additionally, the police had taken various statements from the appellant, who had given varying accounts of the shooting and his participation therein. The seven remaining photos depicted what the police initially observed, the steps they took in their investigation, and what, ultimately, the medical examiner determined had happened.

In short, the photos of the victim’s wounds clearly served to corroborate the testimony of Dr. Erickson and served to explain the course of the police’s investigation. Based upon these accepted purposes for the photographs, the trial court was within its discretion in admitting them. We, therefore, affirm the trial court’s admission of the photographs in question.

II. Testimony Regarding Location of Appellant’s Arrest

The appellant’s next point on appeal is that the trial court abused its discretion in allowing testimony that he was arrested on the night of the shooting at a Newport liquor store with another suspect and in possession of several bottles of wine. The State contends that the testimony was offered, and is properly admissible as such, to demonstrate the appellant’s state of mind, i.e., his motive or intent. The State further points out that, although appellant did object to the testimony in this regard, he failed to request a limiting instruction with regard to the jury’s consideration of this evidence and, as such, the trial court should be affirmed. We agree.

The appellant was initially charged with capital murder, in that he, or an accomplice, caused the death of the victim during the commission of a robbery. Ark. Code Ann. § 5-10-101 (Repl. 1997). The underlying felony of robbery requires that the actor must act “with the purpose of committing a felony or misdemeanor theft[.]” Ark. Code Ann. § 5-12-102(a) (Repl. 1997). As part of its case-in-chief, the State sought to demonstrate the appellant’s motive and intent for the commission of the offense. The admission of evidence showing motive is a matter left to the discretion of the trial court, which will be reversed only for an abuse of that discretion. E.g., Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). In Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002), we reiterated the long-held rule that where the purpose of evidence is to disclose a motive for killing, anything and everything that might have influenced the commission of the act may, as a rule, be shown. Id. at 494, 79 S.W.3d at 287.

At trial, the State adduced evidence regarding the planning and commission of the robbery and shooting death of Alfredo Resendiz. This evidence came largely from the statements made by appellant to the police. The evidence established that, after learning that the victim carried money, appellant’s motive was to rob the victim. However, appellant claimed that the victim was shot as the result of his firearm accidentally discharging. The appellant claims that evidence that he was apprehended outside a liquor store after having just made a purchase was more unfairly prejudicial than probative. While the appellant claims that evidence of the circumstance of his arrest was not “narrowly” drawn, the State submits otherwise. We agree with the State.

Testimony indicated that the victim was shot on the night of October 27, 2000, and that police responded at approximately 9:30 p.m. After interviewing witnesses at the scene, the appellant was sought in connection with the shooting. Scott Bridgeman, an officer with the Newport Police Department, testified that he apprehended appellant in the company of another person also sought, as the two, on that same night, were leaving a Newport liquor store where they had just purchased several bottles of wine.

The purchase of wine being a legal act in Newport, Arkansas, the appellant’s assertion begs the question of how his apprehension there could be deemed prejudicial. That he would be making such a purchase on the same night that he had robbed and gunned down his victim in the middle of a city street, however, is highly probative of his intent to rob and his motive for doing so. The circumstances that tie a defendant to the crime or raise a possible motive for the crime are independently relevant and admissible as evidence. E.g., McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). It is far-fetched to suggest that a jury would convict a defendant of first-degree murder solely on the ground that he was a wine addict. Had there been the remotest possibility that the jury would have based the appellant’s conviction solely on the location of his arrest, he could have requested that an instruction be given, instructing the jury as to the purposes for which it could consider the admitted evidence. Appellant requested no such instruction. As such, we find no error with regard to any testimony about the location of appellant’s arrest.

III. Interpreter

The appellant’s final point on appeal is whether the trial court erred in employing a noncertified foreign-language interpreter to assist in translating some of the responses of family members of the victim during the sentencing phase of his trial. Based upon this fact alone, appellant contends that his sentence should be reversed and remanded for a new sentencing hearing. We disagree.

The appellant was found guilty of first-degree murder, and the trial proceeded to sentencing, at which time, the State called Jose Resendiz, brother of the victim. Resendiz testified in English and served as the representative of the family. In that capacity, Resendiz proffered a document, written in Spanish, by family members that corresponded to a written English translation. Both the document written in Spanish and the one in English (State’s Exhibits Nos. 29 and 30) were admitted without objection from appellant. Prior to Resendiz reading from the victim-impact statement, the trial court summoned Ms. Isaac to the witness stand in order for her to affirm the translation of the written responses. At that time, defense counsel waived reading of the oath to Ms. Isaac; however, the trial court subsequently placed Ms. Isaac under oath and received an affirmation from her that her translation accurately reflected the responses of the witness(es).

It does not appear that the prosecutor proffered Ms. Isaac as a certified interpreter or that the trial court qualified her as a non-certified court interpreter pursuant to this Court’s directives. It does appear, however, that Ms. Isaac’s principal role was to explain court proceedings to members of the victim’s family. It does not appear that Ms. Isaac was called upon to translate in the usual question-and-answer format normally conducted during direct and cross-examination of witnesses. As such, we find no error in her limited participation.

In short, Ms. Isaac was not called upon to translate in the usual question-and-answer format; moreover, both the document written in Spanish and the one in English were admitted without objection by appellant; as such, we affirm the trial court’s admission of such documents and find no error in Ms. Isaac simply affirming that her translation accurately reflected the responses of the witness(es)’ statements offered in written documents to which no objection was made.

IV. Rule 4-3 (h) Compliance

The record has been reviewed for prejudicial error pursuant to Ark. Sup. Ct. R. 4-3(h), and no reversible errors were found.

Affirmed.


author: Tom Glaze, Justice.

text:
    Raymond Earl CLAMPET v. STATE of Arkansas
    CR 02-387
    99 S.W.3d 414
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      Kristin Pawlik, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   Tom Glaze, Justice.

This appeal was certified to us from tice. appeals so that we can once again address a trial court’s authority to modify a defendant’s probation under Act 346 of 1975. Appellant Raymond Clampet was charged with first-degree criminal mischief, a Class C felony, on October 9, 1996, after he smashed out the windows on his wife’s truck with a tire iron. In April of 1997, Clampet entered a plea of guilty to this charge, and the trial court sentenced him to three years’ probation pursuant to Act 346 of 1975; the court also imposed $500.00 “restitution in lieu of a fine,” and $1,124.10 in victim restitution. The order of probation was entered on April 24, 1997.

On February 11, 1999, the State filed a petition for revocation of Clampet’s probation, alleging that he had faded (1) to report to his probation officer, (2) to pay court costs and restitution as ordered, and (3) to report a change of address. On May 10, 1999, the trial court held a hearing at which it found Clampet in violation of his probation, but declined to revoke his probation. The judge stated, “However, your Act 346 status will be revoked and your plea of guilty accepted. You’ll be found in contempt for violating the court’s orders and sentenced to 120 days in jail with credit for 12 days served.” (Emphasis added.) In addition, the court extended Clampet’s period of probation for twenty-four additional months, and ordered him to pay the balance of what he owed on his restitution.

On July 2, 2001, the State filed another petition for revocation of probation, alleging that Clampet had failed (1) to report to his probation officer, (2) to remain in his treatment program, and (3) to report his change of address. This petition was amended in August of 2001 to add an additional allegation of committing the offenses of driving while intoxicated and driving on a suspended license. Clampet moved to dismiss the petition, based on lack of subject-matter jurisdiction, because on May 10, 1999, the court had revoked his Act 346 status and accepted his guilty plea. At a hearing on August 13, 2001, the trial court denied Clampet’s motion to dismiss.

At a subsequent revocation hearing, held on August 27, 2001, Clampet admitted to part of the factual allegations contained in the revocation petition, and the trial court found him in violation of his probation, revoked it, and sentenced him to 42 months in the Department of Correction, with an additional 30 months suspended. The court gave Clampet credit for 160 days and directed that he complete a substance abuse program. Prom this order, Clampet brings his appeal, arguing that the trial court erred in denying his motion to dismiss the 2001 petition to revoke his probation. He argues that the court lost subject-matter jurisdiction when it previously revoked his Act 346 status.

Because Clampet was charged and placed on probation in 1996, this case is governed by the sentencing law in effect prior to the passage of Act 1569 of 1999. That Act changed the statutes governing a trial court’s authority to modify or amend the terms and conditions of a defendant’s probation. However, in Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), we declined to apply that Act retroactively, and therefore, our prior case law on the subject — including Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2000), and McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) — controls.

This court has consistently held that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. See, e.g., McGhee, supra; Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). We have also held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Pike, supra; McGhee, supra. In the present case, the State urges that the trial court never lost jurisdiction because it never imposed a “fine,” and therefore, Pike should not control in this case.

It is true that Judge Keith ordered Clampet to make a payment designated as a “restitution in lieu of a fine” to the Benton County Restitution fund, as well as making full restitution to the victim. However, the only statutory authority for imposing restitution in this fashion is found in Ark. Code Arm. § 16-90-307 (1987), which reads, in pertinent part, as follows:

(a) The circuit judges of each judicial district may establish a restitution fund to be administered by the circuit judge, the prosecuting attorney, or probationary agency, whichever the circuit judge shall designate.
* * * *
(c)(1) The circuit judges may levy additional fines against criminal defendants and place the additional fine money in the restitution fund of the judicial district.
(2) The additional fines shall be in an amount not to exceed the amount of the criminal penalty fine provided by law for the offense.
(3) The additional fine money shall be remitted to the fund, to be deposited in a depository other than the county treasurer or State Treasury.

(Emphasis added.) Although we have not previously interpreted this statute, it is clear from the emphasized language that this kind of “restitution” is comprised solely of fine money and is used to establish a “restitution fund” maintained by “additional fines.” Pike is directly on point, and involved the same trial judge as we have before us here. In Pike, Eric Pike pled guilty to four counts of forgery in November of 1993; his plea was deferred under Act 346, and he was placed on three years’ supervised probation. In January of 1995, the State filed a petition to revoke Pike’s probation, alleging he had failed to report to his probation officer and failed to pay fines, fees, and costs. On January 30, 1995, the trial court held a probation-revocation hearing, wherein Pike admitted the allegations. The court found Pike in contempt of court and sentenced him to eighteen days in jail, with credit for eighteen days served. However, the trial court did not accept Pike’s initial guilty plea or revoke his Act 346 status. The court also extended Pike’s probation by two years.

In October of 1996, the State filed a second petition to revoke Pike’s probation, again alleging he had violated several terms of his probation. The trial court held a second revocation hearing in September of 1997, and Pike again admitted the violations. At that time, the trial court revoked Pike’s Act 346 status, accepted his initial guilty plea on the forgery charges, ordered him to pay the balance of his fines, fees, and court costs, and found him in contempt of court, ordering him to serve 120 days in the Arkansas Department of Community Punishment. The court also extended Pike’s probation for another twenty-four months.

In June of 1998, the State filed a third petition to revoke Pike’s probation. This time, Pike filed a motion to dismiss the petition, citing McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and Harmon v. State, 317 Ark. 46, 876 S.W.2d 240 (1994), and arguing that the trial court had lost jurisdiction over him by entering its September 1997 order that accepted his guilty plea, revoked his Act 346 status, and executed his sentence by ordering him to pay the balance of his fines, fees, and court costs. The trial court denied Pike’s motion to dismiss, and then held a third probation-revocation hearing. The court denied the State’s petition to revoke, but found Pike in contempt for violating the conditions of his probation and sentenced him to 150 days in the Benton County jail.

On appeal, Pike argued that the trial court erred in finding him in contempt of court at the third revocation hearing because the court lost jurisdiction over him when it executed his sentence at the second revocation hearing by accepting his guilty plea and ordering him to pay the balance of his fines. This court agreed, holding as follows:

We have made it clear that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. E.g., McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). We have also held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. McGhee, supra; Harmon, supra; Jones, supra.
In McGhee, supra, the State urged us to overrule Harmon, supra, but we declined to do so and reversed the trial court, adhering to our long-standing case law, which holds that a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment, constitutes a conviction, and that, therefore, the court loses power to modify the original order. McGhee, supra (citing Jones, supra).
Similarly, in the present case, by the time of the third revocation hearing, the trial court had lost subject-matter jurisdiction to modify the sentence that had already been executed by the trial court’s actions in revoking [Pike’s] Act 346 of 1975 status, accepting his guilty plea, and ordering him to pay the balance of $866.25 in fines, fees, and court costs.

Pike, 344 Ark. at 484.

What Judge Keith did at Pike’s second revocation hearing is identical to what he did in Clampet’s first revocation hearing: the judge revoked Clampet’s Act 346 status, accepted his initial guilty plea, and ordered him to pay the balance of his “restitution in lieu of a fine.” Because that “restitution” was comprised of money that in reality constituted a fine, given the language of § 16-90-307, the judge’s actions at the May 1999 revocation hearing amounted to executing Clampet’s sentence. The plea of guilty, coupled with a fine and probation, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. See Pike, supra; McGhee, supra; Baker v. State, 318 Ark. 223, 884 S.W.2d 603 (1994) (trial court enters a conviction judgment if it sentences the defendant to pay a fine and places the defendant on probation); Harmon, supra; Jones, supra (interpreting § 5-4-301 (d)(1) to mean that a guilty plea, a fine, and suspension of imposition of sentence amounts to a conviction, which, in turn, entails execution).

Because the valid sentence was put into execution at the May 1999 hearing, the trial court was without jurisdiction, in August of 2001, to amend or modify Clampet’s sentence, and the court thus erred in denying Clampet’s motion to dismiss the State’s petition to revoke his probation. The trial court’s denial of Clampet’s motion to dismiss is therefore reversed.


author: Tom Glaze, Justice. Robert L. Brown, Justice,

text:
    Vicki WHITE, Executrix of the Estate of Noel Baker, Jr. v. Daryl DAVIS, Kevin Davis, and Gary Davis, d/b/a Davis Dairy, d/b/a Davis Brothers Dairy, and d/b/a Davis Dairy Farm
    02-1092
    99 S.W.3d 409
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      Jerry D. Patterson, for appellant.

      Jones, Jackson & Moll, PLC, by: Mark A. Moll and Jay W. Kutchka; and Courtway & Osment, PLC, by: Pamela Osment, for appellee.
   Tom Glaze, Justice.

This case is before us on petition tice. the court of appeals. We granted the appellee Gary Davis’s petition because the issue presented on appeal called for an interpretation of Ark. Code Ann. § 16-13-317 (Repl. 1997); however, we conclude that the issue was not properly preserved for our review, and therefore, we affirm the trial court.

In November of 1994, Noel Baker, the appellant, selected eighty Holstein heifers from Gary Davis and Davis’s brothers’ dairy farm, residents of Missouri, agreeing to pay $104,000 for the cows, and an additional $2,634 for twenty-six tons of alfalfa hay. After Davis delivered the cattle to Baker in December of 1994, Baker discovered that the cattle delivered and paid for were not the same animals that he had selected from Davis’s dairy. Baker notified Davis that the cattle were not the ones he had selected and demanded the return of the money he had paid. Davis refused to return the money, and as a result, Baker filed suit against Davis in Searcy County.

Davis subsequently moved to dismiss, alleging that Baker’s complaint failed to set forth facts that would support a finding that Davis had contact with Arkansas, as is required to confer personal jurisdiction over him. The Searcy County Chancery Judge signed a decree on December 30, 2000, finding that the Arkansas courts had personal jurisdiction over Davis. The judge went on to find that Davis had defrauded Baker, and awarded damages totaling $360,657.93. The decree was filed and entered with the court clerk on January 19, 2001.

After the decree was entered, Davis filed a motion for new trial on January 26, 2001, reasserting his argument that the trial judge did not have personal jurisdiction over him, and raising a claim that the award of money damages was not supported by the evidence. Baker filed a response to Davis’s motion for new trial on February 6, 2001.

On February 13, 2001, a hearing was held on the motion for new trial before a newly-elected chancery judge, Michael Maggio, in Faulkner County, which is in the same judicial district as Searcy County. At the outset of the hearing, Judge Maggio noted that he was “at a little bit of a disadvantage [because he did] not have the complete file; that is up in Searcy County.” Noel Baker’s counsel noted that the case had been tried in Searcy County, but the motion was being heard in Faulkner County. Counsel stated that “we are here because of the moving party, and not by agreement. We do not agree to the hearing. It is our position that this is outside the venue of the court action. The original court file ... is not here, and neither is the docket.” The judge replied, “All righty. All righty.” The parties then went on to present their arguments, and the judge eventually granted Davis’s motion for new trial, finding that Davis was not subject to the personal jurisdiction of the court. The judge then vacated the decree and dismissed Baker’s complaint without prejudice.

Baker appealed, challenging the chancellor’s authority to hold the hearing in Faulkner County over Baker’s objection. In response, Davis argued that Baker never obtained a ruling on the venue question below, and therefore, the issue was not preserved for appeal. In a split decision, the court of appeals agreed with Baker, concluding that the issue was directed to the chancellor’s attention when Baker objected to the hearing and his objection was resolved by the chancellor’s continuing on with the hearing. Estate of Baker v. Davis, 79 Ark. App. 188, 191, 85 S.W.3d 553 (2002).

In reaching this conclusion, the court of appeals relied on McMahan v. Berry, 319 Ark. 88, 890 S.W.2d 242 (1994). In that case, McMahan objected to a proposed jury instruction, but the trial court gave the instruction anyway. In reaching McMahan’s arguments about the propriety of the instruction, this court held that the giving of the instruction “effectively became the riding, and we can see no sound reason why more should be required.” McMahan, 319 Ark. at 93-94.

McMahan, however, appears to be an unusual decision, and our case law otherwise overwhelmingly requires a party to obtain a ruling on an objection in order to preserve the issue for appellate review. In McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989), we explained the reason for this rule as follows:

We have held many times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal. Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987); Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). By appellant’s [McDonald’s] failure to include any record of a ruling, we are faced with essentially the same situation on review.
We have no way of determining from the record that the trial court did in fact make a ruling, nor, assuming one was made, the nature or extent of the ruling. It may be that the trial court reserved a ruling until the evidence was more fully developed and that the issue was left unresolved. It may be that depending on the ruling, appellant [McDonald] waived any objection on appeal, because it was he who elicited proof of the convictions during his case in chief. The point is that with no record of a ruling we can only speculate as to whether a ruling was made and what the particulars of the ruling may have been. Obviously, for an accurate and fair review of the question, that information is critical.

McDonald, 300 Ark. at 447-48. See also Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997); McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

Here, Noel Baker’s counsel told the judge that he did not agree to the hearing, and it was counsel’s position that venue was in Searcy County, not Faulkner County. However, counsel made no mention of the venue statute, § 16-13-317, he now attempts to argue on appeal. Although the statute authorized the judge to hold the hearing in Faulkner County to render “appropriate orders” with respect to the pending cause in Searcy County, counsel failed to point out to the judge that only “contested cases” may not be tried outside the county of venue of the case without agreement of the parties. See Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 568 (1978), and Gibbons v. Bradley, 239 Ark. 816, 394 S.W.2d 489 (1965). Despite this failure, Noel Baker now raises those specific venue issues in this appeal, although those issues were never brought to the trial judge’s attention for a ruling below.

Consistency requires that we follow our long-standing rule that a moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling, the issues are not preserved for our review. Because Baker did not properly obtain a ruling on his objection to venue being in Faulkner County, we are unable to reach the merits of this appeal, and the decision of the trial court is affirmed.

Brown and Hannah, JJ., disssent.

Thornton, J., not participating.

Robert L. Brown, Justice,

dissenting. The majority today stice, practice of the past and decides this case on an asserted procedural defect. Based on this analysis, it refuses to address the legal issue raised in this case. I am convinced that the trial judge effectively ruled on the issue at hand. For that reason, I would decide the legal point of whether a hearing on a new-trial motion is a contested matter for purposes of determining proper venue.

The fact that the trial court effectively ruled on the appellant’s venue objection is clear oil the face of the record. The appellant objected to the proceeding going forward in Faulkner County, because the trial had taken place in Searcy County. Following the venue objection, the trial judge said, “All righty,” and proceeded to hear the new-trial motion where he was — in Faulkner County.

According to the majority, there was no ruling on the appellant’s objection to the hearing taking place in Faulkner County. I ask the rhetorical question: What could be more of a ruling than proceeding with the hearing in Faulkner County when that was the basis for the objection? Holding that no ruling was made under these circumstances elevates the importance of uttering one word — “denied” — to dizzying heights.

Over the past decade, a trend has been established in this court to eliminate procedural pitfalls that resulted in no decision on the merits of a case. Those pitfalls were frustrating to both the bench and bar. See, e.g., Leon Fiolmes, Pitfalls of the Appellate Practice; Avoiding the Serbonian Bog, Arkansas Lawyer (Summer 2000). Some of the more obvious examples have been corrected: (1) the elimination of an absolute affirmance for abstract deficiencies (Ark. Sup. Ct. R. 4-2(b)); (2) providing that a notice of appeal filed before entry of judgment would be considered filed' the day after that entry (Ark. R. App. P. — Civ. 4(a)); (3) providing that a notice of appeal filed before an order disposing of posttrial motions shall also be deemed filed the day after the entry of that order (Ark. R. App. P. — Civ. 4(b)(2)); (4) providing that in a criminal trial, a motion for directed verdict at the close of all the evidence will be deemed denied when the trial proceeded ahead (Ark. R. Crim. P. 33.1(c)).

With respect to the precise issue confronting this court today, we decided an analogous case in 1994 in a unanimous opinion where we held that instructing a jury with a contested instruction was an effective ruling on the objection. We said:

However, counsel objected to the agency instruction, stating correcdy why it should not be given. The trial court then proceeded to give the errant instruction. The giving of the instruction effectively became the ruling and we can see no sound reason why more should be required.

McMahan v. Berry, 319 Ark. 88, 94, 890 S.W.2d 242, 246 (1994). In the McMahan case, as in the case before us, the issue was whether the action of the trial court in proceeding with the trial constituted a ruling. This court held that it did, even though the trial judge had not uttered the word, “Denied.” A majority of the court now holds that the McMahan case was an aberration, and that we should, in effect, pretend the case is not there. In holding as it does, the majority wants to retrench and decide cases based on an outmoded procedural pitfall.

The majority cites two post-McMahan decisions in support of the uncontroverted rule that we will not decide issues raised on motion or objection when the trial court has not ruled. See Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). That rule is not the issue in this case. The issue here, as in McMahan, is whether the judge effectively ruled on the venue motion by his actions in beginning the trial. It is obvious that he did.

I would hear this case on the merits, and, for that reason, I respectfully dissent.

Hannah, joins.

       At some point during the proceedings, Mr. Baker died, and Vicki White, executrix of his estate, was substituted as plaintiff. In addition, the original complaint also named Gary Davis’s brothers, Daryl Davis and Kevin Davis, along with the brothers’ business, variously called Davis Bros., Davis Bros. Dairy, and Davis Dairy Farm. Criminal charges were filed against all three Davises; Daryl eventually pled guilty to theft of property, and he and Kevin settled and were dismissed from the instant case. The civil case proceeded to trial against only Gary Davis. In writing this opinion, we merely refer to Noel Baker.

       The original chancellor, Judge Karen Baker, was elected to the court of appeals in November of 2000.

       Section 16-13-317 provides in full as follows:
      At any time while mentally and physically competent and physically present in the geographical area of the judicial district which he serves as chancellor, the judge of a chancery court may hear, adjudicate, or render any appropriate order with respect to any cause or matter pending in any chancery court over which he presides, subject to such notice of the time, place, and nature of the hearing being given as may be required by law or by rule or order of the court. However, no contested case can be tried outside the county of the venue of the case, except upon the agreement of the parties interested.

      The dissenting opinion in the court of appeals’ decision pointed out that this court’s rules have, in the past, been amended in response to “unreasonable results.” See Estate of Baker v. Davis, 79 Ark. App. 188, 194, 85 S.W.3d 533 (2002) (Vaught, J., dissenting) (citing Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996) (leading to change in Ark. R. Crim. P. 33.1); and City of Monticello v. Kimbro, 206 Ark. 503, 176 S.W.2d 152 (1943) (leading to amendment of Ark. R. Civ. P. 59(b)). Indeed, even those “frustrating procedural pitfalls” recited by the dissent were corrected by changing the rules of procedure. If this long-standing rule is to be altered, the change should first occur in our procedural rules, as it has been done before.

       The majority opinion contains one paragraph about lack of specificity in the appellant’s venue objection. Specificity of the objection was not raised or contested by the parties before the trial court or in this appeal. The sole contention is the question of whether a ruling was obtained from the circuit judge.


author: Donald L. Corbin, Justice.

text:
    Gary T. CLOIRD, a/k/a Saba Ka Makkali, a/k/a Simba Kali v. STATE of Arkansas
    CR 93-284
    99 S.W.3d 419
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      Jeff Rosenzweig, for petitioner.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.
   Donald L. Corbin, Justice.

Petitioner Gary Cloird, stice. Makkali and Simba Kali, was convicted in the Jefferson County Circuit Court of the crimes of rape and theft of property, which occurred on January 25, 1992, and was sentenced to a total of thirty-five years’ imprisonment. This court affirmed his convictions and sentence in Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993) (Cloird I). Following our decision, Cloird filed a petition for postconviction relief in the trial court, pursuant to Ark. R. Crim. P. 37. The trial court dismissed the petition on the ground that it was untimely, and this court affirmed the dismissal in an unpublished opinion. See Cloird v. State, CR 95-7, slip op. (Ark. February 27, 1995) (per curiam) (Cloird II). Cloird subsequently filed a petition for a writ of habeas corpus in the Lincoln County Circuit Court, the county in which he is incarcerated. He asserted in his petition that the Jefferson County Circuit Court lacked jurisdiction to try him on the charge of rape, because the trailer where the rape occurred was actually located in Arkansas County. The trial court dismissed the petition on the ground that Cloird had not met his burden of proof. This court summarily affirmed the trial court’s ruling on the ground that Cloird’s abstract was flagrantly deficient. See Cloird v. State, 00-166, slip op. (Ark. October 11, 2001) (per curiam) (Cloird III).

Four months after our decision, Cloird filed the instant petition in this court, seeking a writ of habeas corpus, as well as permission for leave to file a petition for writ of error coram nobis in the trial court. This court has original jurisdiction to hear petitions for extraordinary writs, pursuant to Ark. Const. Amend. 80, § 2(E). See also Simpson v. Sheriff of Dallas County, 333 Ark. 211, 968 S.W.2d 614 (1998) (per curiam). We remanded the habeas matter to the trial court for a factual determination as to where the trailer in which the rape occurred was actually located. See Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2002) (per curiam) (Cloird IV) We stated in that opinion that once the trial court made its factual determination, we would render a final disposition on the habeas matter.

On remand, the parties stipulated that the trailer in question was located at 402-A Levinson Street, in the town of Humphrey, which is situated in both Jefferson and Arkansas Counties. The parties stipulated further that the address of the trailer was in that part of Humphrey that sits in Arkansas County. Based on that stipulation, the trial court entered an order finding that the rape at the trailer occurred in Arkansas County. For the reasons set out below, we now deny the writ.

Before we reach the merits of Cloird’s jurisdiction claim, we must address the question raised by the trial court, on remand, as to why this court is entertaining Cloird’s second habeas petition after having affirmed the denial of the first habeas petition. Both the trial court and the State felt that the first affirmance was the law of the case on this issue. In Cloird IV, we explained that the doctrine of law of the case was not applicable because the issue raised in the habeas petition was lack of jurisdiction, which, we pointed out, may be raised at any time. On remand, the trial court expressed considerable concern that our holding would effectively allow the jurisdiction issue to be raised repeatedly by the same prisoner in multiple habeas petitions. We now take this opportunity to clarify our position on this issue.

The doctrine of law of the 'case ordinarily arises in the case of a second appeal and requires that matters decided in the first appeal be considered concluded. Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999). Thus, the doctrine dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). The purpose of the doctrine is to maintain consistency and avoid reconsideration of matters once decided during the course of a single, continuing lawsuit. Id. However, matters that have not been decided, explicitly or implicitly, do not become law of the case merely because they could have been decided. Camargo, 337 Ark. 105, 987 S.W.2d 680. An example of when a matter has not been decided is when it is procedurally barred from appellate review. See Colbert v. State, 346 Ark. 144, 55 S.W.3d 268 (2001); Green, 343 Ark. 244, 33 S.W.3d 485.

In Colbert, this court rejected the State’s assertion that the evidentiary issue raised by the appellant was barred by the law-of-the-case doctrine. This court explained: “Mr. Colbert was procedurally barred in his first appeal from challenging the admission of evidence that supported his simultaneous-possession conviction. Thus, because that issue was not before this court in the first appeal, it was not expressly or implicitly determined in Colbert I.” 346 Ark. at 147, 55 S.W.3d at 271 (fn 1).

Similarly, in Green, 343 Ark. 244, 33 S.W.3d 485, this court concluded that the doctrine of law of the case did not apply where, in the previous appeal, this court held that the appellant’s challenge to the trial court’s comment on a witness’s credibility was procedurally barred because the appellant failed to raise an objection at trial. This court explained:

Therefore, this court’s holding did not turn on the trial court’s comment but upon failure to preserve. The court’s decision would have been the same in the absence of the statement characterizing the trial judge’s comments. The opinion did not reach the issue of the trial court’s comment and hence was not actually decided. No adjudication took place that would bind this court now. Consequently, we hold that the law-of-the-case doctrine does not apply to this appeal.

Id. at 251-52, 33 S.W.3d at 490 (emphasis added).

Here, this court did not reach the merits of Cloird’s jurisdiction argument in the first appeal of the habeas petition. We stated that we could not decide the jurisdiction issue because Cloird had failed to supply us with the pleadings, documents, and testimony necessary to review the issue. We explained that due to the flagrantly deficient abstract, we were “unable to determine whether the trial court lacked jurisdiction over the cause of rape.” Cloird III, slip op. at 2 (emphasis added). No adjudication took place on the issue of jurisdiction that would prohibit us from considering the issue now. Accordingly, the doctrine of law of the case does not apply.

Before we leave this issue, we must address the holding in McAdams v. Automotive Rentals, Inc., 324 Ark. 332, 924 S.W.2d 464, cert. denied, 519 U.S. 1013 (1996), which runs contrary to the holdings in Colbert and Green. In McAdams, this court held that the prior appeal to this court, which was summarily affirmed due to a flagrantly deficient abstract, was the law of the case and barred relitigation of any of the issues that were or could have been addressed in the first appeal. We believe that the more sound reasoning dictates that we apply the principle set out in Colbert and Green, that the doctrine of law of the case does not bar our consideration of an issue unless there has been an adjudication of that issue in the first appeal. Accordingly, we overrule McAdams to the extent that it conflicts with this principle. We turn now to the merits of Cloird’s claim.

Cloird argues that because the rape for which he was charged occurred in Arkansas County and because he was not convicted of the charge of kidnapping that occurred at the nightclub in Jefferson County, the Jefferson County Circuit Court lacked jurisdiction to try him. To fully understand the issue, we must examine the facts of the case, which reveal a continuous criminal episode that began in Jefferson County and continued into Arkansas County.

The record reflects that on the evening of January 24, 1992, the Pine Bluff Police Department received a report that a van had been stolen from a local car dealership. Later that same evening, Barbara Smith met Kurt Morris and Roosevelt Burton at a Pine Bluff nightclub called P.J.’s. As they were leaving, Ms. Smith accepted a ride from Morris and Burton to another nightclub, called Bad Bob’s. Burton would later tell police that one of the guys he was with told him that they intended “to run a train on her.” Morris went to get the car, while Ms. Smith and Burton waited outside the club’s front door. When Morris pulled up, Burton opened the door to allow Ms. Smith to get in the backseat. Burton then surprisingly slid into the backseat next to her. Ms. Smith sensed that something was wrong, and she immediately attempted to open the other door and get out of the car. By that time, however, Morris was pulling out of the parking lot. To prevent her from getting out of the car, Burton took hold of Ms. Smith by the hair and pushed her down into the seat. Ms. Smith then began screaming.

Ms. Smith continued to scream and struggle with Burton, as Morris drove the car. At one point, Ms. Smith opened the door and attempted to jump out of the car, but the door slammed shut due to the speed that the car was traveling. Burton again took hold of her hair and pulled her back down into the seat. This time, however, Burton forced her to perform oral sex on him. When Burton became angry because she was not doing it right, Morris pulled the car off onto a dark, dirt road and stopped. The two men then took turns forcing her to have oral, vaginal, and anal sex.

They then drove from Jefferson County into that part of the city of Humphrey that is located in Arkansas County, specifically to Morris’s trailer. The two men then dragged her inside the trailer, where she was physically and sexually assaulted. Ms. Smith recounted numerous instances of rape, committed by several individuals in three different rooms of the trailer. Among those she identified as her rapists was Cloird. Throughout her confinement, Ms. Smith begged the men to let her go or take her home, but they refused. Instead, they continued to terrorize her by raping her, making her perform oral sex until she vomited, and then making her drink her own vomit. At one point, one of the men put a gun to Ms. Smith’s head and pulled the trigger. Fortunately, there was no round in the chamber. Finally, the men released Ms. Smith the next day, and Morris drove her back to the city limits of Pine Bluff and released her.

Cloird was charged by information in the Jefferson County Circuit Court’ with having committed the crimes of kidnapping, rape, and theft of property. The amended information specifically reflected that Cloird was charged as an accomplice, along with Morris, Burton, and Bobby Foster, to the crimes of rape and kidnapping. Cloird does not deny the evidence that placed him at the scene of the trailer, where Ms. Smith was held against her will and repeatedly raped. However, he asserts that there was no evidence placing him at the scene of her abduction in Jefferson County. Thus, he contends that Jefferson County had no jurisdiction to try him as an accomplice to rape and kidnapping. He is wrong for two reasons.

First, Cloird is legally mistaken when he contends that he cannot be charged as an accomplice if he was not physically present at the crime scene. A person is an accomplice when he or she renders the requisite aid or encouragement to the principal with regard to the offense at issue. See Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002) (substituted opinion on denial of rehearing). It is not necessary that the accomplice actually be present at the scene of the crime or physically commit the crime, so long as the accomplice aided, assisted, or encouraged the crime. Id. “A participant cannot disclaim responsibility because he did not personally take part in every act that went to make up the crime as a whole.” Id. at 31, 86 S.W.3d at 878 (citing Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991), and Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979)).

Second, Cloird is factually mistaken when he asserts that there is no evidence placing him at the scene of the victim’s abduction in Jefferson County. The record reflects that during the night in question, Cloird and Foster stole a van from Smart Chevrolet in Pine Bluff and drove it to the trailer in Flumphrey. Pine Bluff Detective Susie Powell testified that Cloird admitted to her that he and Foster had stolen the van from the dealership and drove it to a trailer in Humphrey. The victim, Ms. Smith, testified that when she was abducted by Morris and Burton from the parking lot of P.J.’s, she noticed a van behind Morris’s car. Tremaine Parker, a very reluctant witness for the State, testified that Cloird told him that he stole the van and drove it first to P.J.’s, and then to the trailer in Humphrey. Based on these facts, Jefferson County had jurisdiction to try Cloird.

In Arkansas, jurisdiction is statutorily provided for in Ark. Code Ann. § 16-88-105(b) (1987), which states: “The local jurisdiction of circuit courts and justices’ courts shall be of offenses committed within the respective counties in which they are held.” See also Ark. Const, art. 2, § 10 (providing in part that “[i]n all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed[.]”) An offense that occurs in more than one county is governed by Ark. Code Ann. § 16-88-108(c) (1987), which provides: “Where the offense is committed partly in one county and partly in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.” The purpose of this section is to prevent miscarriages of justice by extending the lines of jurisdiction beyond the limits prescribed by the common law; thus, this section is remedial in nature and must be liberally construed. State v. Osborn, 345 Ark. 196, 45 S.W.3d 373 (2001) (citing Hill v. State, 253 Ark. 512, 487 S.W.2d 624 (1972)). Moreover, the crime of kidnapping is governed by its own jurisdictional provision, Ark. Code Ann. § 16-88-110(a) (1987), which provides that where a kidnapping occurs in more than one county, “the jurisdiction shall be in the county in which the kidnapping, seizing, or confining was committed, or in any county in which it was continued.”

Our cases have consistently recognized that when a crime begins in one county and proceeds to culmination in another county, both counties have jurisdiction to prosecute the crime. For example, in Ellis v. State, 291 Ark. 72, 722 S.W.2d 575 (1987) (per curiam), this court denied relief under Rule 37 where the defendant alleged that Jefferson County lacked jurisdiction to try him for kidnapping and aggravated robbery. Relying on Ark. Stat. Ann § 43-1414, now codified as section 16-88-108(c), this court held: “The offense of kidnapping in this case occurred in Jefferson County and culminated in the aggravated robbery of the victim in Pulaski County. Under these facts, Jefferson County had jurisdiction to try the petitioner for both offenses.” Id. at 73, 722 S.W.2d at 576 (citing Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986)).

The facts in Cozzaglio, 289 Ark. 33, 709 S.W.2d 70, upon which this court relied in Ellis, were similar to those in the present case. There, the kidnapping occurred in Washington County, continued into Madison County, and culminated with the victim’s rape in Madison County. The defendant was tried and convicted of the kidnapping in Washington County, and then tried and convicted of the rape in Madison County. On appeal, the defendant argued that the first trial court had erred in refusing to join the offenses in one trial. This court agreed and reversed, on the ground that both counties had jurisdiction over both offenses. See also Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989) (reiterating the law that separate crimes committed in one continuous episode in more than one county may be tried in either county and require joinder in one county if the defendant requests it).

Similarly, in Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), this court held that although the murder occurred in Greene County, Craighead County had jurisdiction to try the appellant because some of the acts requisite to the murder occurred in Craighead County. See also Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (holding that both Saline County and Grant County had jurisdiction to try the appellant for murder, where the actual killing occurred in one county, but the acts requisite to the consummation of the murder and the subsequent disposal of the body occurred in the other county); Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987) (holding that where the murder and robbery occurred in one county, but the plan was hatched in another county and the body was subsequently returned to that other county, both counties had jurisdiction to try the appellant); Bottom v. State, 155 Ark. 113, 244 S.W. 334 (1922) (holding that the State has the right to elect in which county the offense may be prosecuted where the jurisdiction is concurrent under the statutes, and until the final judgment, which operates as a bar to further prosecution in either county, the State’s right of selection of the forum continues).

Here, the facts clearly establish that Ms. Smith was kidnapped from the parking lot of P.J.’s, a nightclub in Jefferson County, and eventually driven to a trailer in Arkansas County. Along the way, Ms. Smith was repeatedly raped by Morris and Burton. After she was abducted by Morris and Burton, Ms. Smith noticed a van behind Morris’s car. Cloird confessed to police that he and Foster stole a van that night from a Pine Bluff dealership and drove it to Humphrey. Cloird also told Tremaine Parker that after he and Foster stole the van, they drove it to P.J.’s and then to Morris’s trailer in Humphrey. Once at the trailer, the perpetrators continued to restrain Ms. Smith against her will, and Morris, Burton, and Cloird repeatedly raped her. This evidence clearly demonstrates that the crimes against Ms. Smith were committed in a single criminal episode that began in Jefferson County and culminated in Arkansas County. Under our statutes and case law, either county had jurisdiction to try Cloird.

Finally, we disagree with Cloird’s argument that because he was acquitted of the crime of kidnapping, Jefferson County lacked jurisdiction to try him for the rape. As set out above, the evidence established that both counties had jurisdiction to try him for the crimes. The fact that the jury ultimately concluded that Cloird was not guilty of the offense of kidnapping has no bearing on the trial court’s power to try him. We thus deny the writ of habeas corpus.

Imber, J., not participating.

       We also granted permission for Cloird to file a petition for a writ of error coram nobis in the trial court. This appeal involves only the habeas issue.


author: Jim Hannah, Justice.

text:
    Chan HOLCOMBE v. Steve MARTS, d/b/a Steve’s Imports and Ray Hodnett and Dona Hodnett
    02-1023
    99 S.W.3d 401
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      Joel W. Price, for appellant.

      Hal W. Davis, for appellees.
   Jim Hannah, Justice.

Appellant Chan Holcombe appeals a stice. of dismissal entered on May 8, 2002. Holcombe alleges that the trial court erred in denying his February 21, 2002, motion to proceed pro se, and in permitting discharged counsel to sign and approve the judgment and order dismissing the case. Holcombe provides no convincing authority for his argument that once he informed the trial court that he had discharged his attorney, the trial court erred as a matter of law in denying his motion to proceed pro se and to enter an order relieving his attorney of any further responsibility to this case. This assignment of error will not be considered by the court.

We do not reach the issue of whether the trial court was clearly erroneous in denying Holcombe’s motion to proceed pro se because no transcripts of hearings or evidence of any form showing why the trial court denied the motion has been provided by Holcombe. We further hold that no objection was made below to Holcombe’s counsel signing and approving the judgment and order of dismissal. Because the issue was not objected to or raised below, it will not be heard on appeal.

Facts

On February 21, 2002, Holcombe filed a motion to proceed pro se, informing the trial court that he had discharged his attorney and requesting the trial court to enter an order relieving his attorney. On March 4, 2002, the trial court entered an order denying the motion to proceed pro se and relieve counsel. No hearing was held on the motion to proceed pro se. On April 15, 2002, a joint motion of dismissal with prejudice was signed and filed by counsel for the appellee and the counsel Holcombe asserts he had discharged.

This case was settled and dismissed by the parties. No trial was held; therefore, no jury was empaneled. All matters at issue were heard by the trial court alone. The standard of review on appeal is whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001); Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997).

Holcombe alleges that the trial court erred when it summarily denied his motion to relieve his counsel and proceed pro se. He cites the commentary to Model Rule of Professional Conduct 1.16, which provides that “a client has a right to discharge a lawyer at any time, with or without cause. ...” Model Rule of Professional Conduct 1.16 (2002). Holcombe argues that this statement in the commentary supports his argument that he has the right to discharge his attorney and proceed pro se, and that the trial court erred as a matter of law when it denied his motion.

Holcombe acknowledges Ark. R. Civ. P. 64 (2002), which controls addition and withdrawal of counsel and provides that counsel may not withdraw absent permission of the court. However, citing Jones-Blair Co. v. Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996), Holcombe argues that under this court’s interpretation, Rule 64 is aimed at protecting the client’s interests, and the issue of withdrawal is to be viewed from the point of view of the client, not the attorney.

The issue presented is not whether Holcombe has a right to discharge his attorney or whether Rule 64 is to be interpreted from one viewpoint or another, but rather whether the trial court erred as a matter of law in denying Holcombe’s motion to proceed pro se when he informed the court .he had discharged his attorney. Holcombe simply offers no convincing authority to support his argument that a litigant must be allowed to proceed pro se when a litigant discharges his or her attorney and moves to proceed pro se. This court has repeatedly held that we do not consider assignments of error that are unsupported by convincing authority. Bonds v. Carter, 348 Ark. 591, 75 S.W.3d 192 (2002); Hurst v. Holland, 347 Ark. 235, 61 S.W.3d 180 (2001); Ark. Pub. Defender Comm’n v. Greene County, 343 Ark. 49, 32 S.W.3d 470 (2000).

Holcombe, however, further argues that the trial court also erred in denying his motion because he provided the trial court proof that he had previously represented himself successfully in this suit pro se and that he wished to again proceed pro se because his counsel was not adequately pursuing his case. Holcombe’s motion makes no assertion that his counsel was performing inadequately. Nothing in the abstract shows that the issue of adequacy of counsel was raised before the trial court. An issue cannot be raised for the first time on appeal. Coles v. Laws, 349 Ark. 177, 76 S.W.3d 878 (2002).

Additionally, Holcombe is arguing that the trial court was clearly erroneous in denying his motion to proceed pro se. We cannot reach this issue because the record and abstract are devoid of any proceedings or pleadings that show why the trial court denied the motion. Without a record of some form, we cannot conduct a meaningful review of Holcombe’s argument. This court has repeatedly stated that it is the appellant’s burden to produce a record sufficient to support his arguments on appeal. Miller v. State, 328 Ark. 121, 942 S.W.2d 825 (1997).

Finally, Holcombe argues that the trial court erred in permitting his counsel to sign and approve the judgment and order of dismissal. The motion to proceed pro se was denied by an order entered March 4, 2002. The judgment and order of dismissal was entered May 8, 2002, in other words, some eight weeks after the trial court denied Holcombe’s motion to proceed pro se. Based on the trial court’s denial of the motion to proceed pro se, Holcombe’s attorney was not relieved and was still serving as Holcombe’s attorney. In any event, Holcombe does not argue, and the abstract does not reveal that Holcombe objected or ever brought this issue to the attention of the trial court. The trial court was never given an opportunity to consider the issue. It is settled law that for a trial court to have committed reversible error, timely and accurate objections must have been made, so that the trial court was given the opportunity to correct the error. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993); Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). There is no indication this issue was raised below, and it will not be considered on appeal for the first time.

Affirmed.


author: Per Curiam.

text:
    Joe COPELAND v. STATE of Arkansas
    CR 03-180
    99 S.W.3d 426
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003

      Norman G. Co, for appellant.
    No response.
   Per Curiam.

Appellant Joe Copeland, by and through am. attorney, has filed a motion for a belated appeal and request for new counsel. His attorney, Norman G. Cox, states in the motion that the record was tendered late due to a mistake on his part.

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

The motion for a belated appeal is granted. The motion requesting new counsel is denied. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Alisa D. EFURD v. STATE of Arkansas
    CR 03-140
    99 S.W.3d 418
    Supreme Court of Arkansas
    Opinion delivered March 6, 2003
    J. F. Atkinson, Jr., for appellant.
    No response.
   Per Curiam.

Attorney J. F. Atkinson, Jr., represents appellant Alisa Danieal Efurd, who was convicted of first-degree murder by a jury in the Sebastian County Circuit Court and was sentenced to twenty-five years in the Arkansas Department of Correction. On February 23, 1999, the Arkansas Court of Appeals issued a mandate affirming Efurd’s conviction; and, on March 19, 1999, Efurd filed a timely pro se Rule 37 petition, a petition to proceed in forma pauperis, and a motion for appointment of counsel. On April 9, 1999, the trial court issued an order to appoint J. F. Atkinson, Jr., to represent Efurd in her Rule 37 proceeding; and, on April 12, 1999, the trial court sent a notice to counsel stating, “Please find an order appointing you (Jeff Atkinson) to represent Ms. Efurd in her Rule 37 Petition. No hearing has been scheduled as of this date.” On August 31, 1999, Efurd’s Rule 37 petition was summarily denied without making written findings specifying the parts of the files and records relied upon in denying the petition.

On September 9, 1999, the trial court entered an order awarding attorney fees to J. F. Atkinson, Jr. Efurd notified Atkinson of her desire to appeal; and, on November 10, 1999, Atkinson filed Efurd’s notice of appeal and designation of record. The court reporter filed the transcript with the Sebastian County Circuit Court Clerk and tendered to counsel the transcript on or about February 10, 2000.

Atkinson thereafter failed to timely file the transcript with the clerk of this court, due to the file and transcript sitting therein, having been misfiled or lost and forgotten about according to Atkinson. Atkinson asserts that while searching for another file which was misfiled, Atkinson came across Efurd’s file. Then, on February 7, 2003, Atkinson filed a motion to file belated appeal and rule on the clerk.

Based on the circumstances described above, we order J. F. Atkinson, Jr., to appear before this court on March 20, 2003, at 9:00 a.m., to show cause why he should not be held in contempt for failing to timely perfect the appeal.


author: Per CurDistrict

text:
    LONGVIEW PRODUCTION COMPANY v. Dub DUBBERLY, et al.

    03-156
    99 S.W.3d 427
    Supreme Court of Arkansas
    Opinion delivered March 10, 2003
   Per CurDistrict

On February 11, 2003, the United States District Court for the Western District of Louisiana filed with this court a motion to certify a question of law and certification order pursuant to Rule 6-8 of the Rules of the Supreme Court and Court of Appeals. Rule 6-8 was adopted in 2002 pursuant to Section 2 (D) (3) of Amendment 80 to the Arkansas Constitution: “The Supreme Court shall have original jurisdiction to answer questions of state law certified by a court of the United States which may be exercised pursuant to Supreme Court rule.” The pending motion is the first filed pursuant to this provision and presents the first opportunity for this court to consider its application.

At the outset, we note observations made by other courts concerning the certification process.

The growth of the Uniform Certification of Questions of Law Act has largely been a response to the Abstention Doctrine, which was a necessary outgrowth of Erie Railroad v. Tompkins, 304 U.S. 64 (1938). In Erie, the Court held that in diversity cases federal courts were no longer “free to exercise an independent judgment as to what the common law of the State is or should be; . . .” but must apply the substantive law as evolved by the state either through its statutes or its court decisions.

Morningstar v. Black and Decker Manufacturing, 162 W. Va. 857, 253 S. E. 2d 666, 669 (W. Va. 1979).

Many commentators have noted the benefits of certification. The procedure: (i) allows federal courts to avoid mischaracterizing state law (thereby avoiding a misstatement that might produce an injustice in the particular case and potentially mislead other federal and state courts until the state supreme court finally, in other litigation, corrects the error); (ii) strengthens the primacy of the state supreme court in interpreting state law by giving it the first opportunity to conclusively decide an issue; (iii) avoids conflicts between federal and state courts, and forestalls needless litigation; and (iv) protects the sovereignty of state courts. (See, e.g., Braun, A Certification Rule for California (1996) 36 Santa Clara L.Rev. 935, 937-942; Schneider, “But Answer Came There None’’: The Michigan Supreme Court and the Certified Question of State Law (1995) 41 Wayne L.Rev. 273, 299-301; see also Goldschmidt, Certification of Questions of Law: Federalism in Practice (1995 Amer. Judicature Soc’y.) pp. 3-10.)

Los Angeles Alliance for Survival v. City of Los Angeles, 22 Cal. 4th 352, 993 P. 2d 334, 338 (Cal. 2000).

Certification will only be necessary when our substantive law is unclear on an issue “which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court.” Rule 6-8(a) (2).

[0]ur sister-state high courts overwhelmingly have rejected contentions that in answering a certified question a court issues an improper advisory opinion. The weight of authority holds that a high court’s answer to a certified question is not an improper advisory opinion so long as (i) a court addresses only issues that are truly contested by the parties and are presented on a factual record; and (ii) the court’s opinion on the certified question will be dispositive of the issue, and res judicata between the parties. (See, e.g., Schlieter v. Carlos (1989) 108 N.M. 507, 775 P.2d 709, 710; Wolner v. Mahaska Industries, Inc. (Minn. 1982) 325 N.W.2d 39, 41; Elliott, supra, 74 Wash.2d 600, 446 P.2d 347, 354-355; see generally Braun, supra, 36 Santa Clara L.Rev. 935, 947.)

Los Angeles Alliance, 993 P. 2d at 338-39.

Acceptance of certification is a matter of judicial discretion, and this court will accept certification of a question of Arkansas law only where all facts material to the question of law to be determined are undisputed, and there are special and important reasons therefor, including, but not limited to, any of the following:

1. The question of law is one of first impression and is of such substantial public importance as to require a prompt and definitive resolution by this court.
2. The question of law is one with respect to which there are conflicting decisions in other courts.
3. The question of law concerns an unsettled issue of the constitutionality or construction of a statute of this State.

See Pennsylvania Supreme Court’s Internal Operating Procedures Regarding Certification of Questions of Law.

As to the pending motion before the court, it concerns an unsettled issue of the construction of a statute. Therefore, we accept the certification. As stated by the federal district court, the question is: “Does the phrase ‘person or persons’ in Ark. Code Ann. § 18-44-211 (‘Act 513’) include a limited liability company, in light of Ark. Code Ann. § 18-44-202 (‘Act 615’), the language of which clearly provides a lien to a ‘person, corporation, firm, association, partnership, materialman, artisan, laborer, or mechanic?”’ To that statement of the issue, we note that the certifying court points out that in 1837 the Arkansas General Assembly enacted a provision for construction of Arkansas Acts that states the following: “[w]hen any subject matter, party, or person, is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females as well as males, and bodies corporate as well as individuals, shall be deemed to be included.” Ark. Code Ann. § l-2-203(a). The federal district court points out that this rule of construction applies “in all cases,” Ark. Code Ann. § 1-2-201, and asserts that the conflict presented by these statutes, viewed collectively, is as follows: whether the general rule of statutory construction applies, or whether the Arkansas General Assembly intended to carve out an exception to this rule by its use of the phrase “person or persons” in Act 513 and its contemporaneous use of the phrase “person, corporation, firm, association, partnership, materialman, artisan, laborer, or mechanic” in Act 615? This per curiam order constitutes notice of our acceptance of the certification as herein reformulated. No portion of the record is to be filed at this time.

In considering this motion, we have concluded that Rule 6-8 may need to be supplemented to provide additional procedural details, but the prudent course of action appears to be to have further experience with this new procedure before considering amendments to the rule. A Rule 6-8 matter is an original action involving questions of law only. For purposes of the pending proceeding, the following requirements are imposed:

A. Timé limits under Rule 4-4 will be calculated from the date of this per curiam order accepting certification. The plaintiff in the underlying action, Longview Production Company, is designated the moving party and will be denoted as the “Petitioner,” and its brief is due 30 days from the date hereof; the defendants, Oil Field, et al, shall be denoted as the “Respondent,” and its brief shall be due 30 days after the filing of Longview’s brief, and Petitioner may file a reply brief within 15 days of Respondent’s filing. The Attorney General and any other interested parties filing amicus curiae briefs (see D, below) shall file briefs at the same time as the Respondent’s brief.
B. The briefs shall be as in other cases except for the content. Only the following items required in Rule 4-2(a) shall be included:
(3) Point on appeal which shall correspond to the “certified question of law to be answered” in the federal district court’s certification order, as reformulated.
(4) Table of authorities.
(6) Statement of the case which shall correspond to the “facts relevant to the certified question of law” as stated in the federal district court’s certification order.
(7) Argument.
(8) Addendum, if necessary and appropriate.
(9) Cover for briefs.
C. Oral argument will only be permitted if the court concludes that it will be helpful for presentation of the issue.
D. Rule 4-6 with respect to amicus curiae briefs will apply. Because the certified question involves statutory interpretation, a copy of this per curiam order accepting the certification will be sent to the Arkansas Attorney General, and that office shall prepare an amicus curiae brief on the issue.
E. This matter will be processed as any case on appeal and will not be given any special priority.
F. Rule XIV of the Rules Governing Admission to the Bar shall apply to the attorneys for the Petitioner and Respondents.

Corbin, J., not participating.