author: John I. Purtle, Justice.

text:
    German Dario Gutierrez GUZMAN v. STATE of Arkansas
    CR 84-11
    672 S.W.2d 656
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984
    [Rehearing denied July 16, 1984.]

      Larry D. Vaught, for appellant.

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

The trial court overruled appellant’s motion to suppress evidence he alleged was obtained in violation of his Fourth Amendment rights. He was found guilty of possession of a controlled substance with intent to deliver and was sentenced to a term of forty years imprisonment. For reversal appellant argues: 1) evidence received and admitted was obtained in violation of his rights under the Fourth Amendment to the Constitution of the United States; 2) the sentence is excessive under the circumstances of this case; and 3) the court erred in failing to admonish the jury regarding inflammatory statements by the prosecutor in closing argument. We hold that the trial court erred in admitting evidence which should have been suppressed.

Sometime prior to appellant’s arrest on June 13, 1983, the Arkansas State Police and The Federal Drug Enforcement Administration had appellant’s home in Batesville, Arkansas, under surveillance because it was suspected he was dealing in cocaine. Observation and photographs produced probable cause neither for a search of appellant’s residence nor fbr his arrest. About 7:30 p.m. on June 13, 1983, Agent Jim Stepp with the DEA requested Sgt. J. R. Howard of the Arkansas State Police to go to appellant’s residence to determine if there were any illegal aliens there. Another state trooper and two deputy sheriffs joined Howard en route to appellant’s home. Upon arrival the three occupants of the house where appellant resided were outside in the yard. Appellant’s brother was in the front yard and appellant and his mother were in the back yard. Sgt. Howard encountered the brother in the front yard and other officers encountered appellant and his mother in the back yard. Although the parties at the house stated there were no more people in the house, they nevertheless consented to the officers’ entry of the house to look for other illegal aliens. Appellant’s mother and brother were determined to be in this country illegally and were turned over to the Border Patrol which was contacted after appellant’s arrest.

While the officers were in the house searching for aliens Sgt. Howard observed a set of num-chuks near a bedroom door. Stating the num-chuks were illegal weapons the officers then requested to search the house for other illegal weapons or contraband. None of the residents of the house could read or write English. Sgt. Howard then wrote out a consent to search and obtained appellant’s signature. The consent stated: “I, German Guzman, voluntarily give Sgt. J. R. Howard, Arkansas State Police, and Trooper Carroll Seaton, Arkansas State Police, permission to search my residence at 2240 Byers Street in Batesville, Arkansas.” After obtaining the written consent the officers searched the premises. In a bedroom closet they found an open box which contained a set of small scales. The scales could be used to weigh cocaine but were not manufactured for that purpose. The scales could be used for weighing gunpowder or any similar substance. A white powder was found in the cup on the scales which is used for weighing powder and other material. The officers decided the white powder was cocaine. The parties were arrested and allowed to change clothes. In the process, appellant was seen trying to conceal several packets of cocaine which weighed in the aggregate 4.5 grams.

On the date of appellant’s arrest there were several arrests of other Columbian nationals by the DEA in Little Rock as part of an ongoing investigation relating to cocaine sales. Sgt. Howard’s report of appellant’s arrest stated he had gone to the house to "investigate possibility of illegal aliens having possession of narcotics.”

If the consent to search appellant’s home was given voluntarily the evidence obtained by the search is admissible. However, if it was not voluntarily given the evidence should be suppressed. It is undisputed that appellant’s home had been observed and photographed as a part of a much larger investigation concerning Columbian nationals dealing in cocaine. No probable cause existed for appellant’s arrest nor for a search of his home. His arrest occurred on the same day other Columbian nationals in Arkansas were arrested on drug charges. Sgt. Howard’s report stated he went to appellant’s home to investigate the possibility of aliens having possession of narcotics. It is clear that if the purpose of the officers’ visit to the appellant’s home was to discover illegal aliens, such purpose ended well before the num-chuks were found. There is no evidence the num-chuks were illegal weapons.

The Fourth Amendment to the United States Constitution was to prohibit the dreaded general searches which had existed prior to the adoption of the Bill of Rights in 1791. United States v. Lefkowitz, 285 U.S. 452 (1932). In Lefkowitz it was held that an arrest may not be used as a pretext to search for evidence. There has been a tendency by the various courts, including the United States Supreme Court, to relax the exclusionary rule. However, there is no indication by any court that the rule as it relates to searches of homes is being relaxed. The United States Supreme Court held in Welsh v. Wisconsin, _ U.S. _, 104 S.Ct. 2091 (1984) that the Fourth Amendment prevents warrantless arrests in the home unless there is probable cause and exigent circumstances. In quoting from Payton v. New York, 445 U.S. 573 (1980) the Welsh Court said:

It is not surprising, therefore, that the court has recognized, as “a ‘basic principle of Fourth Amendment law [,]’ that searches and seizures inside a home without a warrant are presumptively unreasonable.”

“A search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show . . . the presence of ‘exigent circumstances’.” Welsh, supra; Coolidge v. New Hampshire, 403 U.S. 443 (1971).

The Fourth Amendment guarantee against general searches applies to the guilty as well as the innocent. At the time of a search the suspect is presumed innocent. To decide the issue of reasonableness after the fact would render the Amendment meaningless. The right of privacy is one of the fundamentar values of our civilization. It can neither be treated lightly nor trod upon. If the Fourth Amendment is to protect the fundamental right of the people in America to remain secure in their homes there must be sanctions against the violation of this sacred right. The sanction applied for violation of this right is the suppression of evidence illegally obtained. Absent exigent circumstances the Fourth Amendment interposes a judicial officer between citizens and the police. Exigent circumstances must be compelling to override the rights of the people. This is not done to protect criminals or to allow houses to be used for illegal purposes. This restraint is imposed in order that an objective mind is utilized to weigh the reasons before one’s home is invaded by uninvited police. A man’s home is still his castle. The right to this protection is too valuable to entrust to those who are charged with the duty of apprehending criminals and whose duties also require them to locate evidence to prove the guilt of suspects. In McDonald v. United States, 335 U.S. 451 (1948), the Court stated:

Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that Constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

The Fourth and Fourteenth Amendments require that consent to search a home cannot be coerced, explicitly or implicitly, or by threats whether implied or overt. A warrantless search of a home may be the least obnoxious or objectionable thing to some but it is generally illegal and uncontitutional. Most unlawful practices commence with slight intrusions which are usually silent and unnoticed at first but subsequently depreciate constitutional rights in a much more devastating form. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Boyd v. United States, 116 U.S. 616 (1886). In Schneckloth the Court explained the problem of reconciling the divergent interests relating to the Fourth Amendment. In considering the voluntariness of a consent to search the Court considered the totality of the circumstances when it stated:

In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of “voluntariness.”

This court has been no less diligent than the United States Supreme Court in protecting the Constitutional rights of the citizens. We have held that consent to a warrantless search of one’s home must be given freely and voluntarily. Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979); King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). Our position on this issue was stated in Smith, supra, as follows:

The State, as it should, bears a heavy burden to prove that a warrantless search is voluntary... That burden is to prove by clear and positive testimony that [the] consent was freely and voluntarily given... On appeal, we made an independent determination considering the totality of the circumstances to see if the State has met its burden.

We held that the search of Smith’s home was illegal because he was arrested under pretext. The officers arrested Smith on a hot check charge but while waiting for him to dress they obtained his consent to search and almost immediately located stolen property which was the real object of their search in the first place. In the present case appellant had been under suspicion as a participant of Columbian nationals who were dealing in cocaine in Arkansas. His home had been under surveillance for several weeks but no cause for a warrant had been found. In fact it is admitted there existed no probable cause to issue a warrant at the time Sgt. Howard and three other officers were dipatched to see if illegal aliens were present at appellant’s residence. Howard’s report reflects that he went there to investigate the possibility of “illegal aliens having possession of narcotics.” Upon arrival the officers found all three occupants of appellant’s home were in the yard. They were informed by the three persons that there were no other people in the house. Still the officer obtained permission to search the house for “other aliens.” Finding no other “aliens” the officers did observe a set of num-chuks in one of the bedrooms and informed appellant they wanted permission to search for other illegal weapons. It is disputed as to whether the officers informed appellant they wanted to look for drugs also. Having no consent forms the officers wrote out a general search form as follows: “I, German Guzman, voluntarily give Sgt. J.R. Howard, Arkansas State Police, and Trooper Carroll Seaton, Arkansas State Police, permission to search my residence at 2240 Byers Street in Batesville, Arkansas.” The consent which appellant signed had no restrictions. They located a small box in a bedroom closet containing a pair of scales which could be used for weighing cocaine. The scales could also be used to weigh gunpowder or aspirin or thouands of other items which are lawful and legal. None of the Guzman family could read or write English. They conferred in Spanish in the presence of the four officers and came to the conclusion that appellant had no choice but to sign the consent to search.

The burden was upon the state to prove by clear and positive testimony that consent for the search of appellant’s home was freely and voluntarily given. When the defendant is in custody the burden on the state is particularly heavy. Consent free and clear of fear or coercion under the circumstances of this case does not occur frequently. Considering the totality of the circumstances we cannot find that exigent circumstances and probable cause existed. Therefore, we must hold that the items seized as a result of the illegal search should have been and must be suppressed.

Reversed and remanded.


source: Caselaw Access Project

author: Steele Hays, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Connie GROGG v. COLLEY HOME CENTER, INC. and NATIONAL MORTGAGE CORPORATION OF AMERICA
    84-49
    671 S.W.2d 733
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Peggy O’Neal, for appellant.

      Daily, West, Core, Coffman & Canfield, by: Stanley A. Leasure, for appellee National Mortgage Corp. of America.

      Hardin, Jesson ér Dawson, by: Robert T. Dawson and Robert M. Honea, for appellee Colley Home Center, Inc.
   Steele Hays, Justice.

This case comes to us on appeal from a delaratory judgment against the appellant, Connie Grogg, in favor of Colley Home Center, Inc. and National Mortgage Corporation of America. The only question is whether Arkansas or Oklahoma law governs an installment loan contract, between the parties for a mobile home purchased in Oklahoma and delivered to Grogg in Arkansas. The contract called for twelve percent interest which would render the indebtedness void under Arkansas, law. The Chancellor found the parties intended that Oklahoma law applied and upheld the contract. We affirm.

The first contact between the parties occurred in July of 1978 when Grogg visited the sales lot of Colley Mobile Homes Sales in Barling, Arkansas. None of the mobile homes located on this lot suited her and she was told by a representative of Colley’s that they maintained a separate lot in Roland, Oklahoma and she might find what she wanted there. She drove to the Oklahoma lot that afternoon and chose a 1978 mobile home. She negotiated for the purchase of the home with Don Boshears, the manager of the Oklahoma lot, and signed a contract for its purchase. It was later found that an identical 1979 model, already purchased for the Roland lot and en route to Oklahoma, was temporarily at the Arkansas lot. Boshears called Grogg and offered to sell the later model for the same price, thereby saving her transportation and delivery costs. Grogg agreed and the 1979 model was delivered and set up at a mobile home park in Arkansas.

All negotiations except the telephone call, the signing of all documents, including the assignment of the contract to National Mortgage, occurred in Oklahoma. The down payment was made in Oklahoma and the remaining balance was financed by National of Texas, all payments to be sent to National in Dallas. Colley treated the Roland lot as a separate business operation at all times, maintaining a separate account for that operation. The payment delivered to the manufacturer for the 1979 home was made out of the Roland bank account, and the payment received from National Mortgage when the contract was assigned was deposited to the Roland account. Approximately the same number of homes were offered for sale on each lot. It is not disputed that Colley was never properly qualified through the Secretary of State’s office to do business in Oklahoma, however, Colley did have a mobile home dealer’s license from the State of Oklahoma for its Roland operation prior to commencing business at that location. We also note the home was delivered to an Arkansas location, Arkansas sales taxes were paid on the transaction, the U.C.C. filing was done in Arkansas, the home was licensed and titled in Arkansas, the license fee charged was based on Arkansas licensing fees, the insurance on the home was written in Arkansas and after the purchase, Grogg bought accessories and repair items from Colley at Barling.

Since Cooper v. Cherokee Village Development Co., 236 Ark. 37, 364 S.W.2d 158 (1963), our cases have followeda consistent and reasonable approach to the difficult area of multistate contracts, specifically those involving usury. In Cooper we noted that in determining what law governs the validity of a multistate contract we had on different occasions applied three different theories: 1) The law where the contract was made; 2) the law where the contract was to be performed in its most essential features; and 3) the law of the state which the parties intended to govern the contract. We noted, too, in Cooper a consistent preference for the law of the state that would make the contract valid rather than void. An exception to the application arises, however, when the issue of usury is involved and the laws of another state become a sham for charging a higher rate and avoiding the harsh penalty applied by our law. We addressed this conflicts problem in Cooper where the parties had agreed that New York law would govern the contract. We found all three theories pointed to the law of New York rather than Arkansas and said: “This is not a case of a cloak for usury or where the parties to a wholly Arkansas contract have sought to avoid the Arkansas usury laws by having the validity of the contract determined by the laws of a state having no substantial connection with the contract.” In Snow v. C.I.T. Corp. of the South, 278 Ark. 554, 647 S.W.2d 465 (1983), our most recent case dealing with the same issue, we reached the same result, applying the law that upheld the contract, but where not all theories pointed to the same state. In Snow the transaction had a direct connection with four states: Arkansas, where the contract of sale was negotiated between the president of an Arkansas drilling supply company and an Arkansas resident; Tennessee, where the actual seller, a dealer, had the rig for sale and where the contract documents were signed; Georgia, where the finance company had its principal office and completed the sale by signing the documents, and (whose laws governed the transaction by agreement); and Kansas, where the rig was delivered and used by Snow. With the transaction having a direct connection with four states, we held that the choice of Georgia law was not unreasonable and, like Cooper, we found the selection of Georgia law was not a cloak to avoid Arkansas’ usury laws.

In Yarbrough v. Prentice Lee Tractor Co., 252 Ark. 349, 479 S.W.2d 549 (1972), a case very much like this one, an Arkansas resident purchased a tractor and truck from Prentice, a Louisiana seller, which assigned the note to a Louisiana bank. There was conflict in the testimony but it appeared the negotiations and excution of the contract took place in both states while the equipment was delivered and used in Arkansas. We found no particular act would establish one state’s contacts as being more significant than the other. Citing Cooper, we held where both states’ laws were applicable we would apply the law that would make the contract valid rather than void where it was not a wholly Arkansas contract, nor an attempt to avoid the Arkansas usury penalty through the laws of a state having no substantial connection to the contract. We also found the parties had dealt with each other for a number of years and although there was no evidence the previous contracts were all similar to the one at issue, it was difficult to conceive that the parties entered into these prior contracts with the intention they be construed under the law of Arkansas for if that were the case, cancellation would likely have been previously sought. This, we found, justified an inference that the intention was to subject the agreement to Louisiana law.

In this case, as in Yarbrough, we find there are substantial connections to either Arkansas or Oklahoma to allow the laws of either state to govern the transaction and absent a showing of the usurious cloak we will choose the law which will uphold the contract’s validity. Such choice is based on a presumption that the parties intend to contract with reference to the law that would uphold, rather than invalidate, their contract. See Dupree v. Virgil R. Cross Mortgage Co., 167 Ark. 18 (1924); Wilson-Ward v. Walker, 125 Ark. 404 (1916). In addition to this presumption we have the fact that Grogg without solicitation or any underhandedness on the part of the appellee sought out the Oklahoma place of business, all the negotiations for the purchase occurred in Oklahoma (extending over a period of four months), all of the many documents were executed in Oklahoma, the primary contracts stated clearly the place of execution as Oklahoma, and on the face of the contracts the interest rate of twelve percent was obviously stated in clear, unambiguous terms. It was not until almost five years later that Gross, by her own account, was alert enough to notice the interest rate was twelve percent, and raise the usury issue. Yet at the hearing she testified that she had assumed from the beginning that it was “an Arkansas deal, you know; it was delivered in Arkansas, and I lived in Arkansas, I thought the Arkansas law would govern. ” It is not a strained inference to find that Grogg then, at the time of the making of the contract was aware of Arkansas interest limits and knew or should have known that she was signing a contract for twelve percent interest, yet made no protest until she filed suit almost five years later. The situation is similar to Yarbrough where there had been no previous objection under earlier contracts which acted to justify an inference and bolster the presumption that the intention was to subject the agreement to the state that would validate the contract.

The appellant points to two items in the contracts she contends indicate a contrary in test of the parties: Statements that l)aU.C.C. filing statement must be filed with this state; 2) insurance must be acquired by a company authorized to do business in this state. We note that the forms were standard forms supplied by National Mortgage of Texas, and obviously were not prepared with the thought in mind of a multistate transaction of this sort which requires a U.C.C. filing where the property will be located, which in this case was Arkansas. Also, Grogg apparently acquired insurance through an out-of-state company that was authorized to do business in Arkansas but that does not compel us to conclude that “this state” in that context dictates Arkansas law as the parties intent. These points are of too little significance to rebut the presumption and the supporting factors discussed above to conclude that the parties intended Arkansas law to govern. Under the facts in this case and the presumption of intent, we cannot say that the finding of the trial court that the parties intended Oklahoma law to govern, was clearly erroneous.

This is not a case of a wholly Arkansas contract where there has been an attempt to avoid the usury law by substituting the law of a state with no substantial connection with the contract. We have already noted the legitimate connections of Oklahoma to this contract and the parties intent. The appellant has made no showing nor does the evidence suggest a cloak of usury surrounding the transaction and neither was there any evidence of enticement, solicitation, overreaching or any unconscionable act by the appellees. Under these circumstances, we will choose the law of the state that will make the contract valid rather than void.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the interpretation of the facts by the majority. As I understand the facts the contract here in question is clearly an Arkansas contract and therefore should be declared usurious. A more perfect case of evading the harsh penalties of the prior Arkansas usury law cannot be found.

The appellant is a resident of Arkansas and the appellee, Colley Home Center, Inc., is a corporation doing business in Barling, Arkansas and at another site in Roland, Oklahoma. Appellant visited Colley’s Barling location and when she found no mobile home to her liking she was sent by Colley to their branch lot in Roland where she found one she decided to purchase. The purchase papers were completed at that time in Oklahoma. Before the delivery took place an employee of Colley called and informed appellant that they had a 1979 model mobile home on the Barling lot which they could sell her at the same price as they had sold her the 1978 model. Colley explained to her that they would save her money on set-up and delivery charges if she decided to purchase the newer model. Appellant elected to purchase the 1979 model which was located on the Arkansas lot. In fact it was manufactured in Arkansas. She was instructed by Colley to go to the Oklahoma lot and execute the new purchase agreement. The home was then delivered by the Barling operation and set-up in Van Burén, Arkansas on a lot owned by Colley and rented to appellant. The Arkansas sales tax was paid on the sale of the mobile home and the financing statement was filed in Arkansas. It was titled and licensed in Arkansas.

The only thing occurring in Oklahoma in relation to this contract was that appellant crossed the state line from Arkansas for the sole purpose of executing the contract. It is hard for me to believe that the purpose of that trip, at the request of Colley, was not solely for the purpose of evading the ten percent usury law in Arkansas. None of the negotiations on the purchase of this home were conducted in Oklahoma. Obviously there was a novation of the Oklahoma contract on the 1978 model. “Center of gravity,” “most contacts,” ’’substantial connection” and all other theories or rules cause this to be an Arkansas contract. This contract was made in Arkansas and to be performed in Arkansas. I would void the contract and cancel the debt.


author: Steele Hays, Justice.

text:
    THE TWIN CITY BANK v. Kenneth ISAACS, et ux
    84-75
    672 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      House, Wallace & Jewell, P.A., by: John R. Clayton and Daryl G. Raney, for appellant.

      Bob Scott and Tom Hinds, for appellee.
   Steele Hays, Justice.

Twin City Bank has appealed from a j udgment entered on a j ury verdict against it in favor of Kenneth and Vicki Isaacs for damages sustained from the bank’s wrongful dishonor of the Isaacs’ checks resulting in a hold order against their account for a period of approximately four years.

On Sunday, May 13, 1979, the Isaacs discovered that their checkbook was missing. They reported the loss to Twin City promptly on Monday, May 14, and later learned that two forged checks totalling $2,050 had been written on their account and honored by the bank on May 11 and 12. The sequence of events that followed is disputed, but the end result was a decision by the bank to freeze the Isaacs’ checking account which had contained approximately $2,-500 before the forgeries occurred. A few checks cleared Monday morning before a hold order was issued leaving the balance at approximately $2,000. Mr. Isaacs had been convicted of burglary and the initial hold on the account was attributable to the bank’s concern that the Isaacs were somehow involved with the two forged checks. The individual responsible for the forgeries was charged and convicted soon after the forgeries occurred and on May 30,1979 the police told the bank there was nothing to connect the Isaacs with the person arrested. Two weeks later the police notified the bank a second time they could not connect the Isaacs to the forgeries. The bank maintains it continued to keep the account frozen on the advice of its attorneys. However that may be, the Isaacs were denied their funds for some four years. The Isaacs filed suit in Mid-June of 1979 for wrongful dishonor of their checks and wrongful withholding of their funds.

The jury awarded the Isaacs $18,500 in compensatory damages and $45,000 in punitive damages. The bank made a motion for a new trial pursuant to ARCP Rule 59, which was denied. From that denial the bank brings this appeal contending error on three grounds: 1) Misconduct of a juror at trial, 2) the trial court’s refusal to give two requested instructions, and 3) jury error in assessing excessive damages contrary to the evidence and the law.

The bank’s arguments with respect to juror misconduct and the refusal of two instructions requested by it are readily answerable. It is urged that one of the jurors, who had indicated on voir dire that she was not acquainted with the Isaacs, was seen in conversation with them during a break in the trial. At the suggestion of the bank’s attorneys the Isaacs were questioned in chambers and it was learned the juror had asked Kenneth Isaacs (who had testified earlier he lived on Sheila Drive) if he knew the Whitehead family. He answered that he thought he knew the family, but wasn’t sure. The bank cites us to Zimmerman v. Ashcroft, Admn., 268 Ark. 835, 597 S.W.2d 299 (Ark. App. 1980), but the two cases have little in common. In Zimmerman, two jurors had failed to answer on voir dire whether they were involved in litigation in which counsel for either side were participants, when in fact they were involved. Here, there is no suggestion that the juror did not respond truthfully to questions asked on voir dire. The bank insists the trial judge should have questioned the juror about the incident, rather than simply offering that opportunity to counsel for the bank, who demurred for fear of incurring resentment by the juror. But decisions of this sort must rest largely with the discretion of the trial court and there was no error in the refusal to grant a mistrial. Mistrial is an extreme remedy to be resorted to only where the error is so prejudicial that justice cannot be served by continuing. Back v. Duncan, 246 Ark. 494, 438 S.W.2d 690 (1969).

The bank submits the jury should have been instructed in accordance with tendered instruction No. 15 and AMI No. 2229, both of which were properly refused by the trial court. The first would have told the jury that the Isaacs had the burden of proving their damages, and if they failed in that burden its verdict should be for the bank. But the burden of proof was covered by AMI 202 and 203 and the instruction offered was plainly slanted toward the bank, and was not in compliance with our Per Curiam Order dated April 19,1965, that when instructions are used which do not appear in AMI, they shall be “simple, brief, impartial, and free from argument.” See Arkansas Model Jury Insturctions, 2d Ed., p. xxxi.

With respect to AMI 2229, we find no error in the refusal of the instruction. Whether the bank was entitled to any instruction or mitigation based on the evidence is arguable, but in any event the instruction presented was not appropriate to the proof. AMI 2229 deals with physical damage to real or personal property and is intended to follow AMI 2221, which must include the appropriate property damage claim covered by AMI 2222 through 2228. None of these was used by the court and the damage instruction given the jury (AMI 2201) included only losses pertaining to money wrongfully withheld, mental anguish and financial loss. See Reynolds v. Ashbranner, 212 Ark. 718, 207 S.W.2d 304 (1948); Bovay v. McGahhey, 143 Ark. 135, 219 S.W.2d 1026 (1920).

On the issue of damages, the bank maintains there was insufficient evidence to support the $18,500 award for mental anguish, for loss of credit and loss of the bargain on a house, that the award of punitive damages should not have been given at all as there was not only insufficient proof of actual damages but insufficient evidence of malice or intent to oppress on the part of the bank. The bank does not challenge the sufficiency of the evidence of its wrongful dishonor, but contends only that there was no evidence to support an award of damages. These arguments cannot be sustained.

The statute upon which this suit was based is Ark. Stat. Ann. § 85-4-402:

Bank’s liability to customer for wrongful dishonor — A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.

The jury was instructed that if they found the bank liable they were to fix the amount of money which would compensate the Isaacs “for any of the following elements of damage sustained which were proximately caused by the conduct of Twin City Bank: 1) Any amounts of money wrongfully held by the defendant and remaining unpaid 2) any mental anguish and embarrassment suffered by the plaintiffs 3) any financial losses sustained by the [Isaacs].”

Initially, there can be no serious question as to certain losses: the $2,000 wrongfully withheld by the bank for four years, and the value of two vehicles repossessed because the Isaacs’ did not have access to their funds, resulting in a loss of approximately $2,200. Additionally, after the account was frozen the bank continued to charge the account a service charge and overdraft fees on checks written before the forgeries but presented after the account was frozen. The bank does not refute these damages but argues there is no showing of any financial deprivation from loss of credit or loss of the bargain on a house the Isaacs wanted to buy, and insufficient proof of mental anguish. We find, however, that in addition to the losses previously mentioned, there was sufficient evidence to sustain damages for mental suffering, loss of credit, and sufficient demonstration of some loss attributable to the inability to pursue the purchase of a home.

Mental suffering under § 4-402 of the Uniform Commercial Code is relatively new and has not been frequently addressed by other courts, but of those a majority has allowed recovery. Morse v. Mutual Federal Savings and Loan, 536 F. Supp. 1271 (Mass. 1982); Farmers & Merchants State Bank of Krum v. Ferguson, 617 S.W.2d 918 (Tex. 1981); North Shore Bank v. Palmer, 525 S.W.2d 718 (Tex. 1975); Kendall Yacht Club v. United California Bank, 50 Cal. App. 3d 949, 123 Cal. Rept. 848 (1975); and see White, Summers, Uniform Commercial Code (1980 2d ed.) § 17-4, p. 675. In general, the type of mental anguish suffered under § 4-402 does not need to rise to the higher standard of injury for intentional infliction of emotional distress. Wrongful dishonors tend to produce intangible injuries similar to those involved in defamation actions. See State Bank of Siloam Springs v. Marshall, 163 Ark. 566, 260 S.W. 431 (1924). Damages of this kind are more difficult to assess with exactness. In Wasp Oil v. Arkansas Oil and Gas, 280 Ark. 420, 658 S.W.2d 397 (1983) we noted the general rule that damages may not be allowed where they are speculative, resting only upon conjectural evidence, or the opinions of the parties or witnesses, but there are instances where damages cannot be proven with exactness. In Wasp we recognized a different rule applies when the cause and existence of damages have been established by the evidence, that recovery will not be denied merely because the damages cannot be determined with exactness. We went on to say the plaintiff in the case at bar was not trying to prove the latter sort of damage such as mental anguish as a result of defamation, but loss of income.

Decisions upholding recovery for mental suffering under the code have found injury resulting from circumstances comparable to this case. In North Shore Bank v. Palmer, supra, for example, a $275 forged check was paid from Palmer’s account. After the bank knew or should have known the check was forged, it charged Palmer with the $275 check and later wrongfully dishonored other checks. Part of the actual damages awarded was attributed to mental suffering for the “embarrassment and humiliation Palmer suffered from having been turned down for credit for the first time in his life.”

In Morse v. Mutual Federal Savings and Loan, supra, $2,200 was awarded for “false defamatory implications arising from temporary financial embarrassment.” And in Farmers & Merchants State Bank of Krum v. Ferguson, supra, the plaintiff’s account in the the amount of $7,000 was frozen for apparently one month for reasons not stated. The plaintiff was awarded $25,000 for mental anguish, $3,000 for loss of credit based on a denial of a loan, $5,000 for loss of time spent making explanations to creditors, and $1,500 for loss of use of his money. The court justified the mental suffering award because the dishonor was found to be with malice — the bank had failed to notify Ferguson that the account was frozen, some checks were honored while others were not, and the bank continued to withdraw loan payments due it during the entire time.

In this case, prior to the forgery incident the Isaacs’ credit reputation with Twin City Bank was described by the bank as “impeccable” and the freezing of their funds had a traumatic effect on their lives. They obviously lost their credit standing with Twin City, and were unable to secure credit commercially at other institutions because of their status at Twin City. The Isaacs had to borrow from friends and family, and were left in a precarious position financially. They did not have use of their $2,000 for four years. The allegation relative to the loss of a house resulted from the dishonor of an earnest money check for a home they were planning to buy, ending prospects for the purchase at that time. Though there may have been insufficient proof of loss of the bargain on the house, as the bank argues, nevertheless this evidence was admissible as an element of mental suffering. The denial of credit contributed to some monetary loss as occurred in Ferguson, supra, in addition to its being a reasonable element of mental suffering as was found in Palmer, supra. There was also testimony that the financial strain contributed to marital difficulties leading at one point to the filing of a divorce.suit. The suit was dropped but there was testimony that the difficulties caused by the bank’s action caused substantial problems in the marriage. Finally, the Isaacs lost equities in two vehicles repossessed as a result of the withholding of their funds. One of these, a new van, was repossessed by Twin City in June, 1979, before a five day grace period for a current installment had expired.

We believe there was substantial evidence to support the verdict. The jury heard the evidence of the amount wrongfully withheld, the loss of two vehicles, credit loss through loan denials, loss of the use of their money for four years, the suffering occasioned by maritial difficulties, the inability to acquire a home they wanted, and the general anxieties which accompanied the financial strain. We recognize that our holding today presents some conflict with pre-code law by allowing recovery without exactness of proof as to damages. In State Bank of Siloam Springs v. Marshall, supra, a suit based on the predecessor to § 85-4-402, we stated that the plaintiff must show the facts and circumstances which occasioned the damage and the amount thereof. However, Marshall itself recognized the nature of the damages in this action, and § 85-4-402, although similar to its predecessor, has additional language which impliedly recognizes mental suffering and other intangible injuries of the type noted in Wasp, supra, as recoverable under this statute. See White, Summers, supra § 17-4, p. 675. To the extent that exactness in proof is not required, the law as stated in Marshall is displaced by § 85-4-402.

The bank’s objection to the award of punitive damages is threefold: a) The instruction on punitive damages was in accordance with AMI 2217, which is intended for use in negligence cases and not applicable here; b) there was not evidence that the bank acted intentionally or with malice; and c) the verdict of $45,000 was excessive. However, wt address only the question of the excessiveness of the verdict as the other points were not raised in the trial court by objection to the instruction. Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978); Dodson Creek Inc. v. Walton, 2 Ark. App. 128, 620 S.W.2d 947 (1981); ARCP Rule 51.

In Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961), we noted the elements that may be considered in assessing the amount of punitive damages, recognizing that the deterrent effect has some correlation to the financial condition of the party against whom punitive damages are allowed. In view of the circumstances in their entirety presented by this case, we cannot say the amount awarded was grossly excessive or prompted by passion or prejudice. See First National Bank v. Frey, 282 Ark. 339, 668 S.W.2d 533 (1984); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Volger v. O’Neal, 226 Ark. 1007, 293 S.W.2d 629(1956).

The judgment is affirmed.

Hollingsworth, J., not participating.


author: P. A. Hollingsworth, Justice.

text:
    GENERAL PUBLISHING CO., INC. v. Edward J. ERXLEBEN, Director of Purchasing for the State of Arkansas, and Julia Hughes JONES, Auditor for the State of Arkansas
    84-79
    671 S.W.2d 182
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984
    [Rehearing denied September 10, 1984.]

      Brown ¿r Paiten, by: Charles A. Brown, for appellant.

      Steve Clark, Att’y Gen., by: Thomas S. Gay, Asst. Att’y Gen., for appellee.

      Purtle and Dudley, JJ., not participating.

   P. A. Hollingsworth, Justice.

The appellee, Edward Erxleben, as Director of Purchasing for the State of Arkansas, invited bids on April 7, 1981, for the printing of Volumes 269, 270, and 271 of the Arkansas Reports. The contract was awarded to the lowest bidder, United Services of Arkansas Inc., on April 24, 1981. At the time its bid was accepted, United Services had forfeited its charter for failure to pay its franchise tax. The appellee did not have actual knowledge of their defunct status at the time the contract was awarded. The appellant, General Publishing Co., Inc., submitted the néxt lowest bid and protested the director’s action in awarding the contract. The protest was denied and the State honored the contract, even after being notified of United Services’ failure to pay its franchise tax.

United Services paid the taxes and was reinstated after the contract was awarded but before the work was completed. The contract was fully performed and United Services was paid by the appellee, Julia Hughes Jones, the state auditor. The appellant filed a lawsuit challenging the appellees’ actions. The trial court dismissed the action on a motion for summary judgment filed by the appellees. It is from that action that this appeal is brought. This case comes to us under Sup. Ct. R. 29 (1) (a) & (c) because it involves interpreting the Arkansas Constitution and Arkansas statutes.

The trial judge granted the appellees’ motion for summary judgment on the grounds that no justiciable controversy existed, and the appellant was seeking in impermissible advisory opinion on a moot question.

Volumes 269,270 and 271 of the Arkansas Reports have already been printed and United Services has been paid for its work. Therefore, the question of determining who is the proper party to be awarded the contract is moot. We do not ordinarily decide moot issues, Mabry v. Kettering, 92 Ark. 81, 122 S.W. 115 (1909), and will not here. We agree with the trial court and affirm.

Affirmed.

Purtle and Dudley, JJ., not participating.


author: Per Curiam. John I. Purtle, Justice,

text:
    L.V. BLAKELY v. STATE of Arkansas
    CR 84-82
    671 S.W.2d 183
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Velda West Vanderbilt, Asst. Att’y Gen., for respondent.
   Per Curiam.

Petitioner L. V. Blakely pleaded guilty in 1981 to second degree forgery. He was fined $250 and given a five year suspended sentence. The suspended sentence was revoked in 1982 and petitioner was sentenced to ten years imprisonment and fined $1,000. The Court of Appeals affirmed. Blakely v. State, CACR 83-64 (October 26, 1983). He now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner contends that the trial court erred when it imposed a sentence of ten years and a $1,000 fine upon revocation of his suspended sentence because he was led to believe that the sentence upon revocation would be equal to the fine and term of suspended sentence imposed when he pleaded guilty. The legality of petitioner’s sentence was raised on appeal. Since the question was decided adversely to him, he cannot reargue it under Rule 37. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). He also raises in the petition the admissibility of his confession and the question of whether it was proper for the state to bring up his prior conviction, but these issues too were addressed on appeal and are also not cognizable in a petition for postconviction relief.

Petitioner alleges as error that (1) he was deprived of a fair proceeding by the “rush to judgment;” (2) he had made restitution and paid the $250 fine, which is probably an attack on the legality of the sentence after revocation; (3) there was insufficient evidence to revoke the suspended sentence; (4) a statement he made to a police officer should have been suppressed; (5) an unspecified exhibit was wrongfully admitted into evidence; (6) the prosecutor made the prejudicial remark that petitioner was going to prison as a pro; and (7) a witness’s testimony was incompetent. These issues could have been raised in the trial court and on appeal. Matters not raised in accordance with the controlling rules of procedure are waived, unless they present questions of such fundamental nature that the judgment is rendered void. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). As none of the allegations made by petitioner is sufficient to render the judgment in his case void, the issues have been waived.

Petitioner makes the general statements that his sentence was imposed in violation of the constitution and laws of the United States and this State and that he was denied effective assistance of counsel, but he does not offer any factual support for the assertions. Allegations without factual basis do not justify an evidentiary hearing. Smith v. State, 264 Ark. 329, 571 S.W.2d 591 (1978).

Petitioner contends finally that his plea of guilty was “unlawfully induced or not voluntarily made without complete understanding of the nature of the charge, and consequences of plea.” It is not clear whether petitioner is claiming that he was denied effective assistance of counsel when he entered his plea. If so, the burden rests on him to demonstrate ineffective assistance of counsel. United States v. Cronic, _ U.S. _, 104 S.Ct. 2039 (1984). Petitioner fails to meet this burden because he does not explain how counsel erred. A violation of the right to effective counsel can be shown only by pointing to specific errors by counsel. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Merely stating without substantiation that the plea was unláwfully induced and involuntary does not demonstrate that counsel was ineffective or that the plea was otherwise invalid.

Petition denied.

Adkisson, C.J., Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. On June 2, 1981, appellant pled guilty to a charge of second degree forgery. He was sentenced to five years and fined the sum of $250. On November 12,1982, the court revoked the suspended sentence and imposed a ten year sentence. The Court of Appeals affirmed the conviction October 26, 1983. The matter is before us upon the appellant’s application to proceed in the trial court pursuant to Rule 37.

It is elementary that a person may not be required to “run the gauntlet” more than once. North Carolina v. Pearce, 395 U.S. 711 (1969). In the present case the trial court’s judgment stated in part: “[T]he defendant has been convicted upon his plea of guilty. . . . It is adjudged that the defendan t is guil ty as chaged and convicted. ’' The j udgmen t recites that the court asked the defendant if he had anything to say before the sentence was pronounced. The court found no reason to not pronounce sentence.

The Court should have revoked only the remaining portion of the five year sentence. Cumulative and overlapping sentences were considered by this court in Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984). In Deaton we stated: “The trial court should have revoked only the fixed term remaining on the suspended sentence.” After a sentence is imposed the trial court cannot later impose a greater sentence than the one first put into operation. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220(1980); Wotfe v. State, 266 Ark. 811, 586 S.W.2d 4 (Ark. App. 1979). Once a valid sentence is put into execution the trial court is without authority to amend or revise it. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983).

A defendant cannot be sentenced except by authorization of Ark. Stat. Ann. § 41-803. Neither section 803 noi any exceptions thereto authorize a trial court to impose a second sentence after a valid sentence is put into execution. Therefore, the second sentence of ten years imprisonment and a $1,000 fine cannot replace the five year sentence and $250 fine which had already been put into execution. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977) The very purpose of Rule 37 is to allow attacks on the sentence collaterally on such matters as constitutionality, jurisdiction and excess sentences. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). A trial court lacks jurisdiction and authority to change a sentence after appellate review. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979); Smith v. State, 262 Ark. 239, 555 S.W.2d 569 (1977). Rule 37.1(c) authorizes a colleratal attack on the ground “that the sentence was in excess of the maximum authorized by law. . .”

I would allow petitioner to proceed in the trial court with his Rule 37 request for vacation of the second sentence.

Adkisson, C.J., and Hollingsworth, J., join in this dissent.


author: Per Curiam.

text:
    Brian TODD v. STATE of Arkansas
    670 S.W.2d 454
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Donald R. Huffman, Public Defender, for appellant.
    No position taken by the Attorney General.
   Per Curiam.

Appellant, Brian Todd, by his attorney, Donald R. Huffman, has filed a motion for rule on the clerk.

The motion admits that the trial court’s order granting an extension of time was not timely filed and it was no fault of the appellant. His attorney admits that the order was filed late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases. 265 Ark. 964.

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


author: Richard B. Adkisson, Chief Justice.

text:
    Louis RICKETTS, Administrator of the Estate of Emma Belle Clanton RICKETTS, Deceased v. Homer Monroe FERRELL
    84-92
    671 S.W.2d 753
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984
    [Rehearing denied September 10, 1984.1

      Joe E. Purcell, and Smith, Jernigan ¿r Smith, by: H. Vann Smith, for appellant.

      Gibson Law Office, by: Charles S. Gibson, for appellee.
   Richard B. Adkisson, Chief Justice.

The declarant, Emma Belle Clanton Ricketts, pursuant to Ark. Stat. Ann. § 61-301 (Repl. 1971), executed a document entitled “Designation of Heir” on August 21, 1965, naming appellee, Homer Monroe Ferrell, as her sole heir at law. The document was delivered to appellee at this time. On April 14, 1982, the declarant died intestate, leaving an estate composed of real and personal property. On May 7, 1982, after notification of her death, appellee recorded the document pursuant to Ark. Stat. Ann. § 61-302 (Repl. 1971). These statutes provide:

Ark. Stat. Ann. § 61-301
Declaration — Acknowledgement. — In all cases hereafter, when any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons, to be acknowledged before any judge, justice of the peace, clerk of any court, or before any court of record in this State.
Ark. Stat. Ann. § 61-302
Record of declaration. — Before said declaration shall be of any force or effect, it shall be recorded in the county where the said declarant may reside, or in the county where the person in whose favor such declaration is made, may reside.

Appellee then petitioned the court to be declared the sole heir at law. The petition was granted.

Appellant, administrator, argues on appeal that the document must be filed before the declarant’s death for it to be of any effect. We do not agree. No time limitation is provided for in these statutes. Here, the declarant died on April 14, 1982, and the document was punctually filed twenty-three days later on May 7. If the legislature had intended that the document be recorded before the declarant’s death for it to be effective, they would have said so.

Appellant further argues that the trial court erred in admitting testimony regarding the relationship between the declarant and the appellee. Although this testimony properly should not have been admitted, we fail to see any possible prejudice to the appellant in its admission.

Affirmed.


text:
    Thelma MARTIN and Norma ENGLISH v. CITIZENS BANK OF BEEBE, ARKANSAS and Darrell HALL
    84-99
    671 S.W.2d 754
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Hughes ir Hughes, by: Thomas M. Hughes and Teresa L. Hughes, for appellants.

      Lance L. Hanshaw, for appellees.
   Richard B. Adkisson, Chief Justice.

This is the second suit involving these parties. The suits involved two certificates of deposit issued by appellee, Citizen’s Bank of Beebe. The certificates were purchased by Frances Quattlebaum, aunt of the present appellants, Thelma Martin and Norma English. After the death of Frances Quattlebaum, a dispute arose between her estate and the present appellants as to the ownership of the proceeds of the certificates.

In the first case, the administrator of the estate filed a suit for declaratory judgment to determine the ownership of the certificates. In answer to the suit, appellee bank filed a “Complaint to Interplead” the proceeds from the certificates and asked to be relieved from any liability to the parties. On appeal this Court held that the certificates of deposit designating appellants as co-owners issued by appellee bank did not create a right of survivorship in them. Martin v. First Security Bank, 279 Ark. 273, 651 S.W.2d 70 (1983).

Appellants then brought the present suit against appellees alleging breach of contract, negligence, constructive fraud, and unjust enrichment in preparing and handling the certificates of deposit. Appellees answered by specifically pleading that these issues should have been adjudicated in the prior suit, and the appellants are now barred by the doctrine of res judicata from litigating them in this independent action. Upon appellees’ motion the trial court granted summary judgment stating that the appellants “are now barred by the doctrine of res adjudicata.” On appeal we affirm.

Appellants initially argue that the “Complaint for Interpleader” filed in the first suit was not an interpleader pursuant to ARCP Rule 22. Rule 22 provides that, “A defendant. . .may obtain such interpleader relief by way of a cross-claim, third party complaint or counterclaim.” Therefore, in order to effectuate this interpleader against the present appellants, it was necessary for the appellees to file a cross-claim. It is a well settled rule of law that a pleading will be judged by what it contains. Beam v. Monsanto Co., Inc. 259 Ark. 253, 532 S.W.2d 175 (1976). Appellees’ complain for interpleader stated that appellees had no interest in tht certificates, requested permission to deposit the funds in the registry of the court or hold them subject to the orders of the court, and asked that it be dismissed from any liability to the parties. Appellees’ request for a discharge from the proceedings and judicial protection against further claims constitutes a seeking of “affirmative relief” against the parties sufficient to be termed a cross-claim against the co-defendants, appellants herein. In the original suit the parties, the trial court, and this Court on appeal accepted the pleadings as an interpleader without objection.

The doctrine of res judicata is based on the assumption that the litigant has already had his day in court. Dickerson v. Union National Bank of Little Rock, 268 Ark. 292, 595 S.W.2d 677 (1980). To apply the doctrine, it must appear that the particular matter involved was raised and determined or that it was necessarily within the issues which might have been litigated in the previous action. May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975). From the time that appellees filed the “Complaint for Interpleader,” appellants were on notice of appellees’ request for relief. It was at this time that it became incumbent on the present appellants to state any claim which, at the time .of the pleadings, they had against their adversaries. ARCP Rule 13 (a). Therefore, by not filing a claim against the appellees in the first suit, appellants were barred by the doctrine of res judicata.

Finally, appellants argue that they were not properly served with process on the cross-claim for interpleader and, consequently, the trial court lacked personal jurisdiction of appellants. Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983). However, that issue was not raised in the original suit and was, therefore, waived. Strahan v. The Atlanta Nat. Bank of Atlanta, Texas, 206 Ark. 522, 176 S.W.2d 237 (1943).

Affirmed.

Dudley, J., not participating.


author: George Rose Smith, Justice.

text:
    Alfred RIGGS and Virginia RIGGS v. Hoyt THOMAS
    84-130
    671 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Mills, Patterson & Shaffner, by: William P. Mills, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Rose Smith, Justice.

More than four years after the appellee Hoyt Thomas, a lawyer, had given an opinion approving the title to land being purchased by the appellants, they brought this action against Thomas for damages resulting from his asserted negligence in failing to mention in his opinion that the seller did not have title to the minerals. On agreed facts the trial court entered judgment for the defendant on the ground that the cause of action was barred by the three-year statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). Our jurisdiction of the appeal is under Rule 29 (1) (c).

Counsel for the appellants concede that it has long been the law in Arkansas that the statute of limitations in an action against an attorney for negligence begins to run, in the absence of concealment of the wrong, when the negligence occurs, not when it is discovered by the client. White v. Reagan, 32 Ark. 281 (1877); Wright v. Langdon, 274 Ark. 258, 623 S.W. 2d 823 (1981). The same rule applies to an action brought against an abstractor for damages resulting from an omission in the abstract of title. St. Paul Fire & Marine Ins. Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W. 2d 100 (1973). Counsel argue that we should overrule our prior cases, because an injustice occurs when the statute has run before the error is discovered. That may be true, but a countervailing consideration is that the contrary rule would permit the plaintiff to bring suit many years after the damage had actually occurred and at a time when witnesses might no longer be available. If such a marked change is to be made in the interpretation of statutes that have long been the law, it should be done prospectively by the legislature, not retrospectively by the courts.

Affirmed.

Dudley, J., not participating.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Stanley LACKEY and Susan LACKEY v. STATE of Arkansas
    CR 83-161
    671 S.W.2d 757
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Acchione é King, by: Harold King; and Lazar M Palnick and Jana Cairns, for appellant.

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

The convictions of Stanley and Susan Lackey for rape have to be reversed because of the admission of inadmissiable and prejudicial evidence before the jury.

The trial judge first permitted the State to elicit evidence that the appellants had given marijuana to three children, aged five, six, and eleven. The judge then decided that the evidence was not admissible and admonished the jury to disregard it. The court should have granted a mistrial. For that reason the judgment is reversed and the cause remanded for a new trial.

The testimony of the victim, a sixteen-year-old who knew the appellants, was essentially the State’s case. During her cross-examination she conceded that there had been “friction” between her family and the appellants. Using this as grounds, the State endeavored to show the cause of the friction through testimony of the victim. The record reads:

VICTIM: When Stanley Joe gave my two little—
DEFENSE COUNSEL: I’m going to object, Your Honor.
PROSECUTING ATTORNEY: He asked about the friction.
[Counsel approached the bench].
DEFENSE COUNSEL: What she’s about to say, I’ll have to move for a mistrial. We’ve had a marijuana case pending here and if she goes into the marijuana case, I’m going to move for a mistrial. That’s what its leading up to.
PROSECUTING ATTORNEY: He asked the question, Judge.
THE COURT: You’re going to have to be careful. Go ahead. She can answer the question.
[Before the jury],
PROSECUTING ATTORNEY:. . ,[W]hat caused the friction between Mr. Lackey and [victim’s father]?
VICTIM: Mr. Lackey give my two little cousins and my sister some dope. My cousins were five and six and my sister was eleven.
# # #
DEFENSE COUNSEL: I move for a mistrial. That is highly prejudicial. It is not involved in the rape case at all.
THE COURT: Denied.
# # #
[Before the jury].
DEFENSE COUNSEL: This information is based on solely on hearsay. I renew my motion of a mistrial.
THE COURT: Your motion for mistrial will be denied.
DEFENSE COUNSEL: I would like to ask the court to give the jury a precautionary warning to disregard the testimony of [victim] since it was based on hearsay and its not personal knowledge. It has no bearing on the rape case.
PROSECUTING ATTORNEY: We don’t have any objection to that, Judge.
THE COURT: I think I should.
PROSECUTING ATTORNEY: I have no objection to that.
THE COURT: Ladies and gentlemen of the jury, there has been certain testimony just presented to you involving friction between one of the defendants and [victim’s father]. I’m going to advise you at this time that that testimony should be disregarded by you. What may have happened between [victim’s father] and the defendant previously has no bearing on the charge of rape. It should not be considered by you at all. Just wipe it out of your minds and disregard it.

The trial court undoubtedly realized that the evidence was totally irrelevant and prejudicial and tried to correct the error with an admonition. Evidence of other crimes has long been considered the type that has no place in a trial. Ark. Stat. Ann. § 28-1001, Rule 404(b) (Repl. 1979). Since Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we have consistently held that admission of such evidence is cause for a new trial. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981); McCoy v. State, 270 Ark. 145, 603 S.W.2d 418 (1980); Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979), cert denied, 447 U.S. 923 (1980); Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979); Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). The admonition in this case was useless, the damage having been done. See Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983). The mere mention of “friction” by the defense was no reason to allow this type of evidence before the jury. The trial judge recognized that after the fact. The error can only be cured by a new trial.

The other arguments are obviously meritless. The victim’s testimony provided substantial evidence of guilt. Corroboration of the victim’s testimony is not required in a rape case. Urquhart v. State, 273 Ark. 486, 621 S.W.2d 218 (1981).

The attempt by the defense to introduce evidence that the victim had sexual intercourse with a third person within five days before the incident was merely an attempt to avoid the purpose of the Rape Shield Act. Ark. Stat. Ann. §§ 41-1810.1 et seq. (Repl. 1977 and Supp. 1983). The issue arose when the defense attempted to show that the victim had lied about such intercourse. A medical witness testified that sperm might live for several days, the inference being that the sperm found in the victim might not be Stanley Lackey’s. Consent was not an issue, nor was the evidence admissible for purposes of impeachment. To allow it would simply mean that the Rape Shield Act could be circumvented. The defense was merely trying to manufacture a colloquy whereby it could introduce evidence of the victim’s prior sexual experience. The relevance of that evidence to the issues of the case was questionable and its probative value was minimal in comparison to its prejudicial character. Ark. Stat. Ann. § 41-1810. 2. The argument that the trial judge initially ruled one way with respect to the proof and later reversed himself is of no consequence. At first he allowed the victim to testify whether she had had intercourse shortly before the incident. Subsequently he ruled fhat if she answered, “no.” then no further inquiry could be made. The judge’s first ruling was right; it was not relevant evidence.

Reversed and remanded.

Hays, J., dissents.

Dudley, J., not participating.

Steele Hays, Justice,

dissenting. There are several reasons why the trial court should not be reversed in this instance: first, because the defense initiated the issue of hard feelings between the defendant, Stanley Lackey, and the victim’s father by specifically asking if there was “friction” between them. This opened the door for some response by the prosecution and we have said that that is a matter for the trial court’s discretion. Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983) and Decker v. State, 255 Ark. 138, 499 S.W.2d 612 (1973). Second, the court admonished the jury to disregard the evidence and we have held, with rare exceptions, that an admonition to the jury to disregard improper, and even prejudicial matters cures such mistakes. Of necessity, the trial court has broad discretion in these areas and we will not disturb his ruling where that discretion is not abused. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) and Cary v. State, 259 Ark. 510, 534 S.W.2d 230 (1976).

Third, we have said repeatedly a mistrial is an extreme, drastic measure and to be appropriate the error must not only be irreparable, but so prejudicial that the trial cannot in justice continue. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980); Johnson v. State, 254 Ark. 293, 495 S.W.2d 115 (1973). Here, we are holding that the prejudice is so overwhelming that an admonition, given promptly at the request of the defense, is not sufficient and a mistrial should have been declared simply because the victim had “heard” that the defendant, Stanley Lackey, had given marijuana to her younger sister and cousins. In that connection, we ought to give the jury more credit than to think it would convict a married couple of an unspeakable crime not because it believed them guilty beyond a reasonable doubt in accordance with the court’s instructions, but because of a single comment admittedly based on hearsay that one of them had given marijuana to children, notwithstanding the judge’s instructions to disregard it! There seems to be a lack of consistency in our approach. We have held in similar cases that an admonition is sufficient. In Sanders v. State 277 Ark. 159 639 S.W.2d 733 (1982), for example, a police officer testified in a rape case of having seen evidences of marijuana in the defendant’s room when he arrested him, yet we held that an instruction to the jury to disregard the evidence precluded the necessity of a mistrial.

Finally, errors in the reception or rejection of evidence, to be reversible, must be shown to substantially affect the rights of the appealing party. Unif. R. Evid. 103. Appellant, Susan Lackey, was not even remotely connected with the evidence for which the court is reversing this case, so how can it be said her rights were substantially affected?


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

text:
    John David COSTON v. STATE of Arkansas
    CR 84-52
    671 S.W.2d 738
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Boswell, Smith & Clardy, by: Ted Boswell, for appellant.

      Steve Clark, Atty. Gen., by: Velda West Vanderbilt, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The appellant’s convictions for first degreé battery and manufacturing a controlled substance with intent to deliver were affirmed by the Court of Appeals. Coston v. State, 10 Ark. App. 242, 663 S.W.2d. 187 (1984). Without seeking permission from this court, the appellant filed a petition for post-conviction relief in the trail court alleging ineffective assistance of counsel. After a hearing on the petition, the trial court denied relief. This is an appeal from that ruling.

We are dismissing the appeal because appellant failed to adhere to A.R.Cr.P., Rule 37.2(a), which provides:

If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.

After the State pointed out appellant’s failure to comply with that rule, appellant responded with a reply brief and a “Motion for Permission to Proceed under A.R.Crim.P. 37, Nunc Pro Tunc.” In both he concedes that no permission to proceed was sought from us but, in his reply brief, contends that no such permission was needed since his original appeal was not to the Supreme Court. That argument reflects a strained reading of the rule and ignores the fact that once a case is appealed, the trial court’s jurisdiction is lost and cannot be regained without our permission. See Mitchell v. State, 232 Ark. 371, 337 S.W.2d 663 (1960). Rule 37.2(a) clearly limits the jurisdiction of the trial court in post-conviction proceedings. See Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). The petition to proceed is absolutely required. Knappenberger v. State, 278 Ark., 382, 647 S.W.2d 417 (1983). The petition must be reviewed by us to determine if it has merit. If it does not state grounds a hearing is not in order. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

Nor can we consider appellant’s petition to proceed nunc pro tunc, because we cannot grant jurisdictional relief nunc pro tunc. Moreover, the petition, if we were to consider it, would be denied because it states no grounds at all for post-conviction relief. A.R.Cr.P., Rule 37.2(b); Ford v. State, 278 Ark. 106, 644 S.W.2d 252 (1982). The improperly pursued appeal, and the appeal brief which may state grounds for relief, cannot be bootstrapped to the untimely peition in order to correct appellant’s procedural errors.

The appeal is dismissed. The appellant has three years from the date of judgment to file a proper petition in this court. A.R.Cr.P., Rule 37.2(c).

Dismissed.

Purtle, J., dissents.

Dudley, J., not participating.

John I. Purtle, Justice

dissenting. Appellant filed a petition for a Rule 37 hearing in the trial court where it was heard without objection from the state. The case was fully developed and the trial court denied the requested relief. Timely notice of appeal was given and the record was prepared and presented to this court where it was accepted After appellant’s brief was filed the state then moved tc dismiss because permission of this court was not first obtained. The reason for granting permission by this court is that the original conviction was appealed to the Court of Appeals. There has been no prejudice and the petition was obviously filed in good faith.

In the interest of judicial economy and justice we should consider this case on its merits. Now appellant must file a petition to proceed in this court and if granted go back to the circuit court and redo the whole thing. If all parties agree they may stipulate the record to be the same and use the same briefs on appeal. We would then consider the same facts and issues we now have before us.


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    Kenny WHITLOCK, Acting Commissioner, Department of Human Services, Division of Social Services v. G.P.W. NURSING HOME, INC.
    84-81
    672 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Moody ir Nye, by: Debby Thetford Nye; and Carolyn Parham, for appellant.

      Smith, Jernigan ér Smith by: George O. Jernigan, Jr.; and Pickens, Boyce, McLarty & Watson, by: Wayne fioyce and Edward Boyce, for appellee.
   John I. Purtle, Justice.

On judicial review of an administrative agency decision, the Jackson County Circuit Court reversed the agency by granting a default judgment to the appellee. We agree with appellants that it was error for the court to grant default under the circumstances.

Appellant Division of Social Services, a state agency, supervises the Medicaid program for the State of Arkansas. The appellee, G.P.W. Nursing Home, is a provider under the program. The division disallowed a claim made by appellee. After an administrative hearing the claim was again denied. The Division of Social Services made findings of fact and conclusions.of law in which the agency’s denial was upheld. Kenny Whitlock, acting Commissioner, Department of Human Services, adopted the hearing officer’s decision. Appellee filed an instrument in the circuit court entitled “complaint” and “petition for judicial review of an administrative decision.” In the body of the pleading it is stated: “Petitioner files this appeal pursuant to the provisions of Ark. Stat. Ann. § 5-713 . . .” Appellee subsequently filed a petition to stay the administrative action and also caused summons to be issued and served upon Kenny Whitlock. The summons was served on March 21,1983. The appellants did not file a timely answer. However, the certified transcript of the administrative proceeding and a response was filed within the time allowed by the court. The court granted default because the agency did not answer within twenty days.

The question presented in this appeal is whether an administrative agency is bound to file an answer to a complaint, which is in the nature of a petition for review, filed in circuit court. The Administrative Procedure Act (APA), Ark. Stat. Ann. §§ 5-701 through 5-715.3 (Repl. 1976 and Supp. 1983), is controlling in this matter. The act provides that any person who considers himself injured by the final action of an agency shall be entitled to judicial review. The review proceedings shall be instituted by “filing a petition” in the circuit court. Filing the petition does not automatically stay enforcement of the agency decision. Subsection (d) of Ark. Stat. Ann. § 5-713 states in part as follows:

Within thirty (30) days after service of the petition, or within such further time as the court may allow, but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened.

Regardless of the title of the pleading filed in the circuit court by the appellee, its contents and the relief sought clearly reveal it was a petition for review of the final decision of an administrative agency. Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W.2d 836 (1968). When a party chooses to proceed pursuant to the APA he is bound by the procedures set out therein and is not entitled to a jury trial. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Appellee contends ARCP Rules 1 and 81 (a) allow it to proceed on the complaint as provided by Rules 12 and 55 (a). We hold that the APA procedure for judicial review (Act 434 of 1967 as amended by Act 704 of 1979) is an exception to the rules of civil procedure in Rule 81 (a) which states:

These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

It is obvious that the legislature and this court intended for the APA to be one of those exceptions to the rules of civil procedure. The appellants met the requirement of Ark. Stat. Ann. § 5-713 (d) by filing the original or a certified copy of the record of the proceeding under review. Therefore, an answer was not required.

The decision of the trial court is reversed and the case is remanded with directions to proceed in accordance with the provision of the APA.

Reversed and remanded.


text:
    Tommy DOWELL v. STATE of Arkansas
    CR 84-83
    671 S.W.2d 740
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Harkey, Walmsley, Belew if Blankenship, by: John M. Belew, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from the Circuit Court of Independence County where appellant was convicted of driving while under the influence of intoxicating liquor. The issue on appeal is whether appellant was in "actual control’ ’ of his vehicle within the meanings of the DWI Statute. We hold that he was not.

On October 31, 1982, appellant was found asleep in his automobile which was parked with the motor not running, in the driveway of a business near the highway. His keys were in the seat of the vehicle by appellant’s side. At the time of the alleged offense Ark. Stat. Ann. § 75-1027 was in effect and reads as follows: "It is unlawful and punishable as provided in Section 3 [§ 75-1029] of this Act for any person who is under the influence of intoxicating liquor to drive or be in actual control of any vehicle within this State.”

Under the circumstances of this case we hold that appellant was not in actual control of his vehicle within the meaning of the statute. He may not have been the person who drove the vehicle to where it was parked. If he drove it to the place where it was found he may have become intoxicated later. Criminal laws are to be strictly construed in favor of the accused. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952). We are without authority to declare an act to come within the criminal laws of this state by implication. Lewis v. State, supra.

Reversed and dismissed.

Adkisson, C.J., and Hickman, J., concur.

Dudley, J., not participating.


text:
    Carl Lee LINELL v. STATE of Arkansas
    CR 84-9
    671 S.W.2d 741
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Cross, Kearney & McKissic, by: Gene E. McKissic, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal brought by Carl Linell from a conviction for the capital murder of Charles and Louise Misho and the attempted capital murder of Austin Patterson, who survived a bullet wound to the stomach. All three were shot with a small caliber weapon around 7:00 p.m. on January 12, 1983 during the commission of an aggrevated robbery outside the 79 Bar and Grill in Pine Bluff.

Five days later Carl Linell, Carvin Thompson and Mamie Guy Curry were charged with the crimes. Thompson entered into a plea agreement for a sentence of life without parole and agreed to testify for the state. Linell was tried on July 11,1983, convicted and sentenced to life without parole for two counts of capital murder and twenty years for attempted capital murder, the sentences to run consecutively. Charges against Mamie Guy Curry were dismissed for lack of evidence. The appellant raises seven points for reversal, none of which are persuasive.

Carl Linell argues the trial court abused its discretion by not excusing one of the jurors for cause. The juror had indicated on a questionnaire that his business had been robbed and there had been acts of violence against his family. When asked if these events would make him predisposed about crime one way or another, the juror responded, “No, in a case like this, as serious as it is, I certainly wouldn’t be predisposed.” He said that he was not biased and would be fair and impartial. Appellant contends there is a clear assumption that the juror was biased and as he had used all his peremptory challenges, it was reversible error to hold a biased juror competent. The cases appellant cites to support his contention involved implied, rather than actual, bias. Implied bias arises by implication of law and its liberally construed in criminal cases. See Ark. Stat. Ann. § 43-1920; Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971). An entirely different standard applies to actual bias, which is the issue here. When actual bias is in question, the qualification of a juror is within the sound discretion of the trial judge because he is in a better position to weigh the demeanor of the prospective juror’s response to the questions on voir dire. Allen v. State, 281 Ark. 1, 660 S.W.2d 922 (1983). Jurors are assumed to be unbiased and the burden of demonstrating actual bias is on the appellant. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1953). In Jeffers we found no proof of bias where jurors on appellant’s panel had also served as jurors in a trial for the murder of the prosecutrix’s sister, and in Allen we found no abuse of discretion in the court’s refusal to excuse veniremen who knew two police officers expected to testify, but who could lay aside their friendship and weigh the testimony as that of a stranger.

Appellant Linell has not demonstrated actual bias and asks that we assume such bias was present. The juror was questioned on the issue and his responses were satisfactory to the trial judge. On review we are not in a position to assume actual bias, or to say that the trial court’s discretion was abused in holding otherwise.

The second and third arguments are essentially one. Linell contends his cross examination of accomplice Carvin Thompson on prior inconsistent statements about the shooting was unduly restricted and this denied him the right to be confronted with the witnesses against him under the Sixth Amendment to the Constitution. The appellant complains that he should have been permitted to cross examine Thompson on the statements to point out for the jury the incorrect details in each statement and how Thompson’s story changed as he was fed information by the police. He cites Arkansas Uniform Rules of Evidence, Rule 613 (b) and previous cases to support his position. Rule 613 (b) provides in pertinent part:

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

Neither the rule nor the cases support the arguments. Rule 613 (b) provides for the introduction of prior inconsistent statements and gives the witness the opportunity to deny or explain the statements, which was done in this case. The cases cited only support the theory of application of Rule 613 (b) and neither the statute nor those cases give any support for the type of cross examination appellant argues is appropriate.

All prior statements were read to Thompson, which he acknowledged and admitted were not true. He was cross examined on the circumstances surrounding the statements and the court allowed considerable latitude before limiting the questioning, including the repeated suggestion that Thompson’s statements were influenced by the police. In Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980), a similar argument was made by the appellant as to undue restriction of cross examination while impeaching the state’s witness, the victim. The trial court sustained the objection to a question it found repetitious and argumentative and we upheld the ruling. We noted Ark. Unif. R. Evid. 611 (a) gives the trial court reasonable control over the mode of interrogating witnesses so as to avoid needless consumption of time and to protect the witness from harassment. The appellant has provided no supporting authority, nor does he show how his defense would have been fostered by this line of questioning. The issue he wanted was brought before the jury and the most that can be said of the point is that he was not permitted to question as extensively as he might have liked. But that right is not unlimited where discretion is not abused.

Appellant suggests that he was entitled to introduce evidence of other robberies committed by Carvin Thompson for which the state had elected not to file charges. But neither the proffer nor the ruling appear in the abstract and we will not consider the argument. Rule 9 (d) Rules of the Supreme Court and the Court of Appeals. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); Byers v. State, 267 Ark. App. 1097, 594 S.W.2d 252 (1980); Vail v. State, 267 Ark.App. 1078, 593 S.W.2d 491 (1980); Ellis v. State, 267 Ark.App. 690, 590 S.W.2d 309 (1979).

Two other closely related points are treated as one: Appellant’s motion for a directed verdict should have been granted because the testimony of the accomplice, Carvin Thompson, was not sufficiently corroborated and because the evidence did not support the verdict. The arguments are lacking, however, as there was substantial evidence to support the verdict and appellant’s connection with the crime was established by proof beyond that supplied by the accomplice.

Carvin Thompson testified that he and the appellant had been drinking beer and playing dominos with Mamie Guy Curry at Eva Cato’s house on January 12. Sometime around dark, he said, Mamie, appellant and he left to go to a liquor store on Highway 79. He had a shotgun and Linell had a pistol and while Mamie Guy Curry was in the liquor store they decided to rob someone. After walking Mamie Guy Curry to Eva Cato’s house they went back and waited near the 79 Bar and Grill. When a pickup truck pulled in Linell shot both occupants of the truck (the Mishos) and a third individual (Patterson) who came out of the bar to investigate the noise. They ran back to Eva Cato’s house with the purse and billfold of the victims, where they removed their clothing, which Mamie Guy Curry concealed in a bathroom cabinet. The purse was placed behind a couch and later retrieved by Linell.

Appellant relies on our statute, Ark. Stat. Ann. § 43-2116 (Repl. 1977):

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, That in misdemeanor cases a conviction may be had upon the testimony of an accomplice.

The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice is disregarded, there is other, independent evidence to establish the crime and connect the defendant with its commission. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983);Froman v. State, 232 Ark. 697, 339 S.W.2d 601 (1960). The corroborating evidence may be circumstantial, so long as it is of a material nature and tends to connect the defendant with the crime. Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Roath v. State, 185 Ark. 1039, 505 S.W.2d 985 (1932). False statements to the police by the defendant may constitute corroborating evidence. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).

The independent evidence of Linell’s involvement in the crime is entirely sufficient. The victims were shot with the pistol which was in his possession, according to Eva Cato’s testimony, immediately after Linell and Thompson returned to her house from what had been thought to be a trip to the liquor store. She said they both removed their outer clothing, which was hidden, and Mamie Guy Curry concealed Linell’s pistol in her bra. She said Linell put a woman’s purse behind her couch and took it with him when he left. Linell gave conflicting versions to the police of his whereabouts on the evening of the crimes and other evidence placed him in the vicinity of the crimes at the time they occurred. We have no difficulty in determining that independent, material evidence was offered which connected appellant to the crimes for which he was convicted.

Finally, appellant insists the trial court erred in seating a death qualified jury, citing Grigsby v. Mabry, 569 F. Supp. 1273 (1983). However, we have rejected the premise of death qualified juries in several cases, notably in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983).

We find no prejudicial error in any other matters brought to our attention under Rule 11 (f).

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I believe the trial court unduly limited cross-examination of witness Thompson. In order to place the issue in proper perspective I set out what I perceive to be the error. The witness and co-defendant had made several prior statements about the crime. The witness admitted that the statements were untrue and the following then took place:

Defense: I would like to go through the statement and give the various versions he gave because we know that he was told it couldn’t happen that way and he brought his testimony in conformity with the prosecution theory.
State: Mr. McKissic may ask Mr. Thompson if he made each and every statement and once he says he made it go to the next one. But he is not entitled to cross-examine him on these statements.
Court: Your objection is well taken. Mr. McKissic you may ask him if he made prior inconsistent statements. He can either admit or deny them but you may not cross-examine on statements he knows to be false. If he says the statement is true you may cross-examine him on it.

I do not understand the ruling of the trial court to be in keeping with the law and our prior opinions. We stated in Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980): ‘‘ The right of free and unfettered cross-examination of the accuser by the accused is basic to our system of justice.” In Miller we quoted from Smith v. State, 200 Ark. 1152, 143 S.W.2d 190 (1940) in part as follows: ‘‘The right of cross-examination is a substantive right, and a most valuable and important one.” Both Miller and Smith were reversed because of restrictions on cross-examination. The appellant should have full opportunity to test the credibility and trustworthiness of a witness. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982); Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979). Both Rhodes and Gustafson were reversed. We have always reversed before and we should do it again.

P. A. Hollingsworth, Justice dissenting. Appellant urges us to oveturn our ruling in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983) because individuals with conscientious objections to the death penalty were excluded from participating in his trial. Appellant asserts that he was denied his rights under the Sixth and Fourteen Amendments to the federal constitution to have his guilt determined by a fair cross-section of the community. I agree and dissent from the majority opinion for this reason.

The mandate that a jury be drawn from a fair and representative cross-section of the community is not unique to Arkansas law. Hall v. State, 259 Ark. 815, 537 S.W.2d 155 (1976); Sanford v. Hutto, 394 F. Supp. 1278 (E.D. Ark., 1975), affirmed 523 F.2d 1383 (8th Cir., 1975); Jewell v. Stebbins, 288 F. Supp. 600 (E.D. Ark., 1969). The United States Supreme Court has frequently affirmed this concept. Smith v. Texas, 311 U.S. 128 (1940); Thiel v. Southern Pac. Co. 328 U.S. 217 (1946); Peters v. Kiff, 407 U.S. 493 (1972). In Taylor v. Louisiana, 419 U.S. 522 (1975), the Court held that “the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.”

The right to be tried by a jury drawn fairly from a representative cross-section of the community is critical for a variety of reasons:

The purpose of a j ury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response.

Duncan v. Louisiana, 391 U.S. 145 at 155-156 (1968).

A commentator on this issue has stated, “ the absence of a group from petit juries in communities where the group represents a substantial portion of the population may lead to jury decisionmaking based on prejudice rather than reason.” See Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries, 86 Yale L.J, 1715, 1730-1731 & N. 69.

Community participation in the administration of the criminal law, more over, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.

Taylor, supra. 419 U.S. at 530-531.

I disagree with the statement by the majority in Rector that:

a jury system that has served its purpose admirably throughout the nation’s history ought not to be twisted out of shape for the benefit of those persons least entitled to special favors. It has always been the law in Arkansas, except when the punishment is mandatory, that the same jurors who have the responsibility for determining guilt or innocence must also shoulder the burden of fixing the punishment. That is as it should be, for the two questions are necessarily interwoven.

It is conceivable that the law has developed in this area to the point that it is permissible for the State to bar jurors with conscientious objections to the death penalty from serving on sentencing juries. Witherspoon v. Illinois, 391 U.S. 510 (1968). My reading of Witherspoon leads me to the conclusion that if further study prove that juries death-qualified by Witherspoon standards were less than neutral with respect to guilt it mandated a two phase trial — one phase to establish guilt and one phase for sentencing. Grigsby v. Mabry, 569 F. Supp. 1273 (1983) requires us to devise the two phase remedy. The empirical evidence in Grigsby that jurors who favor the death penalty are more likely to vote to convict defendants than jurors who oppose capital punishment requires us to adopt a modification of our criminal trial in this area. See Berry, Death Qualification and the “Fireside Induction” 5 UALR L.J. 1 (1982). I would not allow individuals with conscientious objections to the death penalty to be excluded from participating in the liability phase of appellant’s trial. I would reverse for that reason.

        Eddington v. State, 225 Ark. 929, 286 S.W.2d 473 (1956); Comer v. State, 222 Ark. 156, 257 S.W.2d 564 (1953); Humpolack v. State, 175 Ark. 786, 300 S.W. 426 (1927); Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889).