text:
    Dennis GLICK v. STATE of Arkansas
    CR 84-56
    689 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Dennis Glick was found guilty by a jury of first degree escape, kidnapping and theft of property. He was sentenced as a habitual offender with eleven prior felony convictions to terms of 20 years, life and 20 years respectively. We affirmed the judgments and convictions but set aside an order which had held that the sentences were to be served consecutive to other sentences which petitioner was already serving. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Ark. R. Crim. P. 37. He also requests at public expense a copy of the transcript of his trial. This Court denied a motion for transcript in this case on March 11, 1985, because petitioner did not demonstrate a compelling need for a transcript. Petitioner has not established a compelling need in this petition.

Petitioner contends that the trial court erred in allowing him to be tried over counsel’s objection in the white uniform of a prison inmate. We first note that the issue which was raised at trial could have been raised on appeal, but was not. A question not argued in accordance with the controlling rule of procedure is waived, unless it is so fundamental as to render the judgment of conviction absolutely void. Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983). Petitioner, who was an inmate at Cummins Prison at the time of the escape, was charged with escaping from guards who had taken him from the prison to a medical clinic, stealing their guns and taking an employee of the clinic hostage. The fact of petitioner’s incarceration in state prison was fully revealed to the jury in the course of testimony about the offenses. Petitioner’s conviction was not made void by the mere fact that his attire revealed something the jury already knew. See Glick v. State, 3 Ark. App. 175, 623 S.W.2d 546 (1981) (citing United States exrel. Stahl v. Henderson, 472 F.2d 556 (5th Cir.) cert. denied, 411 U.S. 971 (1973)). Petitioner also contends that counsel should have objected to guards standing near him during the trial. Petitioner who was being tried for escape had been convicted of another escape in 1981. He was considered a high security risk, and the presence of the guards under the circumstances does not demonstrate that their presence was so obtrusive and prejudicial as to deny petitioner a fair trial.

Petitioner alleges that it was error for the trial court to engage in off-the-record conferences at the bench. All discussions between court and counsel occurring during trial that pertain to substantive matters involving the trial should be recorded. As we said in Fountain v. State, 269 Ark. 454, 456, 601 S.W.2d 862 (1980):

While it is the responsibility of the trial court to see that a fair and adequate record of a trial is preserved, counsel must be diligent and responsible in seeing that one is made. “The complete transcript is of crucial importance for a meaningful review of both the appellate court and to new counsel on appeal.” State v. Green, 129 N.J. Super, 157, 322 A. 2d 495, 499 (1974). All bench conferences and in chambers conferences should be “on the record” unless they involve matters unrelated to the current trial, in which case, a note to that effect may be made.

While the record does indicate that at least two off-the-record conferences were held during petitioner’s trial, petitioner has not alleged that anything occurred during the conferences which was prejudicial to him. A petitioner is not entitled to postconviction relief without a showing of prejudice sufficient to deny him a fair trial. Perry v. State, 279 Ark. 213, 650 S.W.2d 240 (1983).

In a third assertion of error by the trial court, petitioner argues that it was wrong to use prior convictions which were pending on different “judicial levels” as proof of his being a habitual offender. The issue is also one which could have been raised at trial; but, in any event, the argument has no merit. There are several challenges to a conviction which may be made by a convicted defendant, including direct appeal, a petition under Rule 37, and federal habeas corpus petitions. As the Court of Appeals recently noted, not using a felony conviction for enhancement purposes until every possible remedy was exhausted would result in the rare application of the habitual offender statutes. Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985). For the purpose of sentence enhancement, a conviction is final when judgment is pronounced.

Petitioner also contends that his prior convictions for burglary and theft of property should have been considered a single felony conviction and that some of the other prior convictions should also have been consolidated because they occurred as part of one course of conduct. Ark. Stat. Ann. § 41-1001(3) (Supp. 1983) provides that a conviction of burglary and the felony that was the object of the burglary shall be considered a single felony conviction for the purpose of habitual offender sentencing. It appears from the record that the convictions of burglary and theft of property entered against petitioner on April 8, 1981, were counted as separate felonies. The error was not one which denied petitioner a fair sentencing proceeding, however, since the maximum enhancement of sentence applies to defendants convicted of at least four or more felonies and does not increase regardless of the number of felonies above four. Ark. Stat. Ann. § 41-1001 (2) (Supp. 1983). Petitioner’s claim that the other prior convictions should have been consolidated is not supported by the record. Petitioner was found to have been convicted of six separate counts of rape, burglary and theft of property (which were subject to consolidation as noted above), aggravated robbery, another count of theft of property and escape. The mere fact that some of the offenses may have been committed in one escapade does not make them one crime. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Furthermore, Rule 37 was not designed as a means to relitigate the merits of the convictions used to enhance a sentence.

In a related allegation, petitioner contends that counsel should have objected to his being convicted in the instant case of escape, theft of property and kidnapping because the three offenses occurred in one criminal episode. Petitioner has not demonstrated that there was any basis for an objection. Petitioner handcuffed the men guarding him, stole two guns and then forced a woman to drive him to Little Rock. The elements of each offense were distinct in nature and could be proven independently.

If the defendant shows by a preponderance of the evidence that the victim was released alive and in a safe place prior to trial, a charge of kidnapping may be reduced on proper motion from a Y to a class B felony. Ark. Stat. Ann. § 41-1702 (2) (Supp. 1983). Petitioner alleges that counsel was ineffective in that he did not establish that the victim in this case was released unharmed in a safe place, ask that the charge be reduced and request a jury instruction on false imprisonment as a lesser included offense of kidnapping. To prevail on an allegation of ineffective assistance of counsel, a petitioner has the heavy burden of establishing that the conduct of counsel prejudiced him so as to undermine the proper functioning of the adversarial process. Strickland v. Washington, _ U.S. _, 104 S. Ct. 2052 (1984). The object of a review of a claim of ineffective assistance of counsel is to determine whether there was actual prejudice which denied the petitioner a fair trial. Isom v. State, 294 Ark. 426, 682 S.W.2d 755 (1985). Petitioner has not shown that he was denied a fair trial. The victim in this case was taken hostage to facilitate petitioner’s escape in violation of Ark. Stat. Ann. § 41 -1702(1)(b)(c), the statute which defines the offense of kidnapping. The victim was released unharmed, but only after the police closed in on the car she and petitioner were in. Since petitioner has offered nothing in this petition to show that there was any rational basis for the jury to find him guilty of a lesser included offense or to reduce the charge to a class B felony, he has not established that counsel’s conduct prejudiced him.

At the request of counsel, petitioner was evaluated by psychiatrists at the Arkansas State Hospital. The doctors’ report indicated that petitioner was aware of the charges and proceedings against him and capable of cooperating effectively with counsel. The report further indicated that petitioner at the time of the commission of the offenses did not lack the capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law. Petitioner contends that the results of the evaluation should have prompted counsel to request a sanity hearing and ask that a psychiatrist be appointed for the defense. In light of the evaluation which found petitioner fit to proceed and competent at the time of the offenses and petitioner’s failure to provide any proof in this petition of grounds for a sanity hearing or appointment of a defense psychiatrist, we cannot say that counsel should have pursued an insanity defense. The mere fact that a petitioner might have mounted such a defense is not proof that counsel was ineffective for not doing so. Dudley v. State, 285 Ark. 160, 685 S.W.2d 170 (1985).

Petitioner states that counsel interrupted the court while a discussion was in progress about petitioner’s motion for mistrial. It is not clear at what point in the trial the interruption occurred or how petitioner was prejudiced by it. Allegations with no factual substantiation and a showing of prejudice do not warrant postconviction relief. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983).

Finally, petitioner complains that counsel did not present to this Court on appeal all the objections made at trial. As he does not say what issues were meritorious and has not advanced in this petition any ground on which we could conclude that he suffered any prejudice, the allegation is not entitled to further consideration under Rule 37. See Jones v. Barnes, 457 U.S. 1104 (1983).

Petition denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Truitt YAWN v. STATE of Arkansas
    690 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      J. Fred Hart, for appellant.

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

Appellant, Truitt Yawn, by his attorney, has filed for a rule on the clerk.

His attorney, J. Fred Hart, admits that the record was tendered 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: Jack Holt, Jr., Chief Justice.

text:
    Charles STAIN v. Linda STAIN
    85-62
    689 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      David J. Manley, Legal Services of Arkansas, for appellant.

      Judith C. Lansky, UALR Law School Legal Clinic, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal challenges the validity of a child support order in which the chancellor found the appellant to be the father of a child born to the appellee prior to the parties’ marriage. Our jurisdiction is pursuant to Sup. Ct. R. 29(1) (a) as we are being asked to interpret the Arkansas Constitution.

The child, Brian Christopher Wheeler, was born July 24, 1981. Appellant and appellee, the child’s mother, were married November 21, 1981. In September, 1982, appellee sued and appellant countersued for divorce. In her complaint for divorce, the appellee alleged that the appellant was Brian’s father and requested child support. The appellant initially denied that he was Brian’s father but later admitted paternity and challenged the chancellor’s jurisdiction to decide a paternity issue. The chancellor granted the appellee a divorce, and in a separate proceeding held that he had jurisdiction, found the appellant to be the father of Brian and ordered the appellant to pay $12.50 per week as child support. It is from the finding of paternity that this appeal is brought. We reverse.

Article 7, § 28, of the Arkansas Constitution provides:

County courts — Jurisdiction — Single Judge holding court. — The county courts shall have exclusive original jurisdiction in all matters relating to . . . bastardy,. . . (emphasis added).

We were confronted with similar situations in Higgs v. Higgs, 227 Ark. 572, 299 S.W.2d 837 (1957) and in Rapp v. Kizer, Chancellor, 260 Ark. 656, 543 S.W.2d 458 (1976), and in both instances found the county court had exclusive jurisdiction of a matter relating to bastardy pursuant to the constitution.

In Higgs an action was filed in chancery court to compel the alleged father of an illegitimate child to support the child. The father contended that the county court had exclusive jurisdiction of such a proceeding. This court defined a bastardy proceeding as “a proceeding of a civil nature to compel a bastard’s father to support him,” and found that to be exactly the kind of proceeding involved in the case under consideration. The court stated:

“The common law affords no remedy to compel a putative father to contribute to the support of his illegitimate offspring. Statutes now exist in most jurisdictions, however, providing for judicial proceedings, usually called filiation or bastardy proceedings, to establish the paternity of a bastard child and to compel the father to contribute to its support.” 7 American Jurisprudence 679. . . .Perhaps the reason for placing jurisdiction in bastardy matters in the county court no longer exists, but nevertheless, the Constitution has not been changed, and the county court still has exclusive, original jurisdiction in such matters.

In Rapp it was the putative father who filed a petition in chancery court in which he sought visitation rights and a determination of child support. The child’s mother questioned the chancellor’s jurisdiction to entertain the petition. This court quoted art. 7, § 28 of the constitution and held:

Webster’s New International Dictionary, 2nd Edition, defines bastardy as:
“1. State or quality of being a bastard; illegitimacy.
2. The procreation of a bastard child.”
The term “relating to” has generally been defined as meaning “in respect to; in reference to; in regard to,” . . . Can it be said that the action instituted in the chancery court by the putative father is not a “matter relating to. . . bastardy?” To ask the question is but to answer the question for the issues presented for determination obviously flow from and are involved only with the procreation of a bastard or illegitimate child. . . .
Our Constitution . . . does not limit the original jurisdiction of the county court to “bastardy proceedings” but specifically gives the county court “exclusive original jurisdiction in all matters relating to . . . bastardy . . .”

It cannot be disputed that under the rationale of these cases the instant case also involved a matter relating to bastardy.

As we noted in Higgs and Rapp we are restrained by the provisions of the constitution even though the reason for placing jurisdiction in the county court no longer exists. Until and unless that document is changed, we have to live within its confines. The constitution vests original and exclusive jurisdiction of cases such as these in the county courts. Accordingly, the chancellor erred by taking jurisdiction of the paternity issue.

Reversed.


text:
    Kenneth TOWELL, Leroy G. WALKER, and Daisy M. WALKER, His Wife v. J.D. SHEPHERD, JR. and Juanita SHEPHERD, His Wife
    85-51
    689 S.W.2d 564
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

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

      Reed, Irwin, Green & Tilley, P.A., by: R. Bryan Tilley, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this case is the jurisdiction of the chancery court to dispose of a tort claim contained in a complaint which primarily sought injunctive relief. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(o).

The appellants own land in Cleburne County, Arkansas, that adjoins land owned by the appellees. A portion of the adjoining land is a pond that has been in existence approximately 30 years. In August 1978, the Cleburne Chancery Court entered an order allowing the appellees to fill in that portion of the pond that is situated on their property.

In April, 1984, the appellants filed a complaint in circuit court alleging that the appellees cut a ditch across appellants’ portion of the property that lowered the level of the pond. The appellants further claimed that the appellees had continuously and systematically pursued a course of conduct that was designed to interfere with the appellants’ quiet enjoyment of their property. The appellants asked for a permanent injunction to prohibit the interference with their enjoyment of the pond and $25,000 in compensatory and punitive damages for the intentional infliction of emotional distress. The case was transferred on the appellees’ motion to chancery court.

The chancellor ordered the appellees to restore the pond to its original water level within 15 days or pay $350.00 as compensation for making a new fill; enjoined the appellees from further interference with the pond’s water level; and enjoined them from placing additional fill material beyond the water level of the pond. The chancellor found however that the appellees’ actions did not warrant an award of damages to the appellants for injury to their property or for emotional distress.

The appellants contend on appeal that the chancery court did not have jurisdiction over the issues that pertain to the tort of intentional infliction of emotional distress. In the alternative, the appellants argue that the court erred in refusing to grant damages arising out of the tortious conduct of the appellees.

We hold that the chancery court properly exercised its jurisdiction to resolve the entire matter.

The appellants originally filed their complaint in circuit court. The appellees filed a motion to transfer to equity. The appellants did not object to the transfer. We have held that when a suit is improperly bought in equity it should not be dismissed, but should be transferred to the law court and that if no motion to transfer is made, the objection is deemed waived, unless there is a total lack of jurisdiction, such as a criminal case or probate of a will. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). Likewise, by not objecting to the transfer to equity the appellants effectively consented to the chancery court’s adjudication of the controversy and lost their right to object to the court’s jurisdiction. 27 Am Jur 2d Equity § 18 (1966).

Since the appellants were primarily seeking injunctive relief which is an equitable cause of action, the chancery court’s jurisdiction had been legally invoked. Under the clean up doctrine, once the chancery court had jurisdiction for any purpose it could retain jurisdiction for all purposes and decide all issues involved in the subject matter of the dispute between the litigants. See White v. Cliff Peck Chevrolet, 266 Ark. 942, 587 S.W.2d 606 (1979); Johnson v. Johnson, 240 Ark. 657, 401 S.W.2d 213 (1966); Bierbaum v. City of Hamburg, 262 Ark. 532, 559 S.W.2d 20 (1977); Import Motors v. Luker, 268 Ark. 1045, 599 S.W.2d 398 (1980); and 27 Am Jur 2d Equity § 108. The chancery court will decide all issues pursuant to the clean up doctrine even though it means passing on matters which are ordinarily cognizable at law. 27 Am Jur 2d Equity § 108. The court, however, is only able to exercise jurisdiction over legal matters when the decision of the legal questions is incidental or essential to the determination of the equitable questions. Id. § 110.

Here, the appellants’ claim for damages for the intentional infliction of emotional distress was incidental to the primary aim of the litigation — injunctive relief against the appellees. As a matter of propriety, once the lawsuit was transferred to chancery court it should stay there for a resolution of all of the issues.

In their challenge to the chancery court’s jurisdiction, the appellants rely on Gorchik v. Gorchik, 10 Ark. App. 331, 663 S.W.2d 941 (1984) in which the court of appeals found the chancery court did not have jurisdiction in a divorce action to hear a damages claim for an intentional tort. In Gorchik, however, the tort claim was not incidental to the divorce action and was based on different facts than those presented in the appeal from the divorce decree. Here, the same facts are presented, the appellants simply seek two forms of relief. Furthermore, the chancery court in this case did not award damages for the tort action, rather the chancellor decided there was nothing in the record on which to base a tort claim. The court’s action was within the purview of the clean up doctrine.

The appellants also contend that the chancery court erred in refusing to grant damages for the alleged tortious conduct of the appellees. In their argument the appellants list the actions of the appellees which they find offensive but they do not say in what way they were damaged. They also failed to allege damages in their complaint but merely made the conclusory allegation that they were damaged as a result of the intentional infliction of emotional distress by the appellees in the sum of $25,000. The chancellor was not clearly erroneous when he found the appellees’ conduct did not amount to a tort so as to warrant an award of damages to the appellants.

Affirmed.


author: George Rose Smith, Justice.

text:
    Peggy PEEK v. PULASKI FEDERAL SAVINGS & LOAN ASSOCIATION et al
    85-7
    690 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      Paul D. Capps, for appellant.

      Robert M. Wilson, Jr., for appellees.
   George Rose Smith, Justice.

The controlling question in this appeal is the validity of a local rule of the Pulaski Chancery Court by which a pending case may be dismissed without notice to the parties or attorneys if there has been no activity in the case for three years or more. The trial court upheld the local rule and refused to set aside a dismissal order. This appeal by the party whose case was dismissed comes to us under Rule 29(l)(c). We disagree with the chancellor’s refusal to set aside the dismissal in this instance.

Pulaski Federal Savings & Loan Association brought this suit to foreclose a first mortgage that had been assumed by the principal defendants, William and Mariannes Brickey, who owned the mortgaged property when the suit was filed in June, 1968. The appellant, Peggy Peek, one of the lienors who were joined as defendants, filed a cross-complaint to foreclose the lien of her $35,000 second mortgage on the property. The debtors, the Brickeys, filed general denials in response to the complaint and cross-complaint. The Brickeys resumed their payments on the first mortgage; that debt became current. At that point in the litigation the case became inactive, in 1968, but it remained on the docket.

On October 27, 1977, all three of the chancellors in the district adopted the following local rule:

In all cases in Pulaski Chancery Court wherein there has been no action of record during the three years just past, the court may summarily dismiss such cases without notice. This rule does not apply to those cases requiring continuing court attention.

The rule was duly filed with the clerk of this court, as required by Rule 12 of the Uniform Rules for Circuit and Chancery Courts. Rule 12 also provides that a local rule shall not conflict with those Uniform Rules.

In April, 1978, when there had been no activity in the case for almost ten years, one of the chancellors signed a notation made with a rubber stamp on the jacket containing the pleadings in this case, the notation reading: “Dismissed for want of prosecution under Rule 10.” A similar stamped notation, though unsigned, was made on the docket sheet for the case. It is not shown whether a dismissal order was entered in the judgment record, but the parties have attached no importance to that possible omission. No notice of the dismissal was sent to any party or attorney.

Next, at the request of the appellant’s attorney the chancellor signed an order in April, 1984, setting the case for trial in September. It was then discovered that the case had been dismissed by the rubber-stamp notation. Pulaski Federal and the appellant filed a motion in August for reinstatement of the action, but in October the chancellor denied that motion “in view of local Rule 12 of the Pulaski Chancery Courts, which does not require notice to parties of such dismissal.” This appeal is from that dismissal.

It will be observed that the rubber-stamp notation dismissed the appeal for want of prosecution “under Rule 10,” but the order being reviewed justified the dismissal under “Local Rule 12.” We cannot sustain the dismissal as being under Rule 10 of the Uniform Rules for Circuit and Chancery Courts, for that Rule permits the dismissal of cases without prejudice when there has been no action of record during the preceding 12 months, but it also requires that prior notice of the court’s intention to dismiss the case must be mailed to all attorneys of record. That notice was not given; so the dismissal was not valid under Rule 10.

There remains the question whether the dismissal without notice was proper under the local rule. The appellant argues that the local rule conflicts with the Uniform Rule, because the latter requires notice to counsel. The appellees argue that there is no conflict, because the Uniform Rule requires that the inactivity continue for only 12 months, but the local rule sets the minimum period at three years, and here it was almost ten years.

The equities are pretty plainly on the side of the appellant, because she is threatened with the loss of her $35,000 claim under the five-year statute of limitations. A statute is tolled during the pendency of a suit to enforce the debt. In one of our cases, for example, the suit was pending for fifteen years, but the statute was tolled for all that time. Cole v. Hall, 85 Ark. 144, 107 S.W. 175 (1907). In another case we held that the creditor was not estopped by a five-year delay in bringing the matter to trial, for the debtor might at any time have asked the court to act. Rogers’ Estate v. Hardin, 201 Ark. 1, 143 S.W. 2d 544 (1940).

The appellant was entitled to assume during the period of inactivity in this case that the statute of limitations had been tolled. Her attorney had not been given the required notice under Uniform Rule 10. That attorney was not under a duty to check periodically to be sure that the rules of the game had not been changed while play had been suspended.

We need not, however, declare the local rule void. The Maryland court reached a sound practical rule in a similar situation. There, as here, the state-wide rule required notice of an intended dismissal for want of prosecution, but a local rule did not. The trial court had dismissed the case without notice. The Maryland court noted, as we can note in Arkansas, that the increasing backlog of inactive cases had plagued the local courts for many years. The state-wide rule had been adopted in an effort to remedy that congestion of dockets. The local rule was defective in not requiring notice, but the court held that the order of dismissal was “voidable.” Mutual Benefit Soc. of Baltimore v. Haywood, 257 Md. 538, 263 A. 2d 868 (1970). We adopt that solution. This appellant was free from blame in the matter and has obviously been prejudiced by an order, made without notice, that may destroy her $35,000 claim. We agree with the Maryland court’s statement that “our long range administrative goals will be better served by fair and open treatment of those who have slept on their right to have a day in court.” We need not decide the validity of the Pulaski Chancery Court’s local rule in situations where no prejudice has occurred. We simply hold that this appellant is entitled to her day in court without regard to the dismissal.

Reversed.


text:
    SABER MANUFACTURING COMPANY v. Tim D. THOMPSON
    84-298
    689 S.W.2d 567
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      Wright, Lindsey & Jennings, for appellant.

      J. Lamar Porter, for appellee.
   George Rose Smith, Justice.

This is a suit for personal injuries suffered by Tim D. Thompson while he was inflating a tire on a racing wheel manufactured by the defendant, Saber Manufacturing Company. The jury’s verdict awarded Thompson $21,172.00. His motion for a new trial was granted by the trial judge. Saber appeals from that order, arguing that the trial judge abused his discretion in granting a new trial. Our jurisdiction includes cases presenting an issue of tort law. Rule 29(l)(o).

Thompson was deliberately overinflating the tire to stretch it out of shape so that it could be raced at abnormally low pressure — a widespread practice known to Saber as a manufacturer of racing wheels. A defect in the seam by which the two halves of the wheel had been welded together caused the wheel to separate at the seam with explosive force. At the time, Thompson was reaching with both arms across the wheel, which was lying on the floor. The upper half of the wheel was driven upward, lifting Thompson into the air and breaking both his forearms. Thompson was disabled for about eight weeks, including substantial hospitalization, lost his wages of $500 a week, suffered great pain and injuries both permanent and disfiguring, and incurred medical expenses totaling $21,172.10. The jury’s verdict of $21,172.00 was in the amount of the medical expenses, less the odd ten cents.

The trial judge, in granting a new trial, properly specified his reasons. Rule 16, Uniform Rules for Circuit and Chancery Courts. He first said that the jury had awarded only the medical expenses, with nothing for Thompson’s other elements of damage. That result, the judge decided, could not be based on comparative fault, for Thompson’s negligence was minimal but Saber’s was gross. The judge held, second, that the small amount of the verdict was clearly against the preponderance of the evidence.

Our rule in reviewing an order granting a new trial is to affirm unless the trial court has clearly abused its discretion. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982). Saber seeks to demonstrate an abuse of discretion by showing that even if the jury did award only the medical expenses, $21,172, the other damages susceptible of precise pecuniary measurement, such as the lost wages, were less than the amount of those expenses. Hence the jury, in awarding Thompson more than 50% of his total measurable pecuniary loss, could have arrived at the amount of its verdict under the doctrine of comparative fault. Counsel cite Tompkins v. Duncan, 255 Ark. 491, 501 S.W.2d 210 (1973), to support their argument. Counsel conclude: “Tim Thompson cannot complain about the failure of the jury to award damages for his scars, his pain and suffering, and his permanent injury because none of those elements of damage can be determined precisely.” Two other cases, both involving similar computations of measurable pecuniary losses, are also cited. Ferguson v. Graddy, 263 Ark. 413, 565 S.W.2d 600 (1978); Law v. Collins, 242 Ark. 83, 411 S.W.2d 877 (1967).

The flaw in Saber’s argument is simply that the principle followed in those three cases, and in others, is no longer the law in Arkansas. It is true that our present Rule of Civil Procedure provides, in the exact language of an earlier statute, that a new trial may be granted for “error in the assessment of the amount of recovery, whether too large or too small.” Rule 59(a)(5); Ark. Stat. Ann. § 27-1901 (Repl. 1962). The trouble is that Section 27-1901 was qualified by the next section, 27-1902, which provided that a new trial shall not be granted on account of the smallness of damages in an action for personal injuries “where the damages shall equal the actual pecuniary injury sustained.” That section was quoted and relied on in Law v. Collins, supra, and was cited and followed in both the other two cases now being urged by Saber. The section was part of the Civil Code and remained in force for over a century. It was specifically repealed by the supersession section of our per curiam order adopting the procedural rules. See Compiler’s Notes to the Rules of Appellate Procedure, Rule 1; Ark. Stat. Ann., Vol. 3A, p. 460 (Repl. 1979).

Without the superseded Section 27-1902, Civil Procedure Rule 59(a), as amended in 1982, provides that a new trial may be granted for either of two reasons pertinent here: The recovery is too small, or the verdict is clearly contrary to the preponderance of the evidence. The trial judge did not abuse his discretion in granting a new trial for both those reasons. He could fairly find that the jury failed to take into account all the elements of Thompson’s total damage in awarding only the amount of the medical expense. It is perhaps true that the jury was motivated by Thompson’s testimony that he evaded his federal and state income tax liability by persuading his employer to pay him in cash and by filing no income tax returns. But the trial judge could fairly take the view that the remedy for income tax fraud lies in the tax statutes, not in reducing an injured person’s recovery for personal injuries. We find no abuse of discretion by the trial court.

Affirmed.


author: John I. Purtle, Justice.

text:
    Jack Frederick HOBACK v. STATE of Arkansas
    CR 84-186
    689 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      Skillman & Durrett, for appellant.

      Steve Clark, Att’y Gen., by: Alice Ann Burns, Deputy Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of violation of Ark. Stat. Ann. § 82-2617 (a)(l)(i) (Supp. 1983), a class Y felony, delivery of cocaine. He was sentenced to life imprisonment. The appellant argues five grounds for reversal. Since each argument will be treated in the opinion they will be separately stated. We do no find reversible error.

During a drug investigation law enforcement officers contacted Larry Rodgers who was involved in drug dealings. Rodgers informed the police he expected to hear from the appellant on a drug deal in a few days. The officers persuaded Rodgers to cooperate with them and, pursuant to the agreement, equipped Rodgers’ phone with a recording device. They also installed video equipment in Rodgers’ office and a listening device in his vehicle, as well as a microphone to be worn on the body. Naturally the appellant had no knowledge of the trap which had been set for him by his colleague and the officers. As expected appellant contacted the informant by telephone, which conversation was duly recorded, and made plans to bring some cocaine and collect money for the delivery. The officers monitored and recorded, by sound and video, the activities and transactions between the appellant and the informant. These recordings included delivery of a sack by appellant to the informant and payment to the appellant of $10,000, which had been supplied by the F.B.I. After the transfer of the sack and the money, the officers closed in and arrested the appellant, and ostensibly the informant, Larry Rodgers.

During the trial the audio and video tapes were used against the appellant over his objections. The court refused to allow an expert on video tapes to testify on behalf of the appellant. The proffered expert’s testimony would have explained to the jury that it is not possible to distinguish between original and copied or spliced video tapes. The court also prevented the appellant from impeaching an officer’s testimony by showing that he had helped other defendants obtain favorable treatment. Over appellant’s objection evidence of the street value of the cocaine was presented to the jury. The trial court rejected appellant’s offered instructions AMCI 401 and 402 on accomplice liability.

I

THE TRIAL COURT ERRED IN NOT SUPPRESSING THE VIDEO AND AUDIO TAPES.

There is no dispute of the fact that the informant agreed to be taped and recorded and that the appellant consented to none of it. The recordings were admitted over appellant’s objection.

We think reliance on Katz v. United States, 389 U.S. 347 (1967), is inapposite for the reason that in Katz it was the recording of Katz’s voice from a public telephone booth that the Court denounced. There was no consent by anyone in Katz. In the present case the informant not only knew the transactions were being recorded, he also helped with the documentation. The present case is more like United States v. White, 401 U.S. 745 (1971), where an informant performed like Rodgers did in the case here under consideration. In White it was held that it made no difference that a defendant completely trusted an apparent colleague who betrayed him. His expectations were not protected by the Fourth Amendment. The rule that an accused relies on a colleague at his own risk is well established. We have relied upon decisions of the United States Supreme Court in holding that recordings made with the consent of an informant are admissible. Osborn v. United States, 385 U.S. 323 (1966); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980); Patterson v. State, 267 Ark. 436, 591 S.W.2d 3 56 (1979).

II

THE COURT ERRED IN REJECTING THE TESTIMONY OF APPELLANT’S EXPERT WITNESS ON VIDEO TAPES.

Although appellant’s expert witness may have been the world’s foremost authority on video tapes, his testimony was not relevant at the trial of this case. The essence of the proffered testimony in this case was that video tapes could be spliced or duplicated and one could not differentiate between the original and the copies. The state had properly established the foundation of the evidence before introduction and the appellant did not seriously dispute the tapes’ authenticity in any respect. Had there been a dispute about the authenticity of the tapes, then the expert testimony may have been relevant. At the very least we can say with certainty that the trial court did not abuse its discretion in rejecting the testimony.

Ill

THE TRIAL COURT ERRED IN REFUSING THE APPELLANT’S ATTEMPT TO IMPEACH OFFICER BRACKIN.

Officer Brackin suggested to appellant it would be in his best interest if he would cooperate with the officers during the investigation. He may have told appellant he would “cut him some slack” in return for cooperation. He explained to the court that he meant any cooperation would be taken into consideration at a later date. He did not promise the appellant he would recommend a lesser charge or sentence. Upon cross-examination defense counsel asked the officer if he had in fact made a deal for a named individual. The court ruled the question was collateral and excluded further questioning. However, the testimony was proffered in chambers out of the presence of the jury. It developed that Brackin had indeed attempted to help one of the men in the National Guard unit to which he belonged. Brackin explained he did not consider himself to be acting as a law enforcement officer while he was at drill and it was in his capacity as a National Guard officer that he tried to help the serviceman. There was no evidence that Brackin offered anyone a deal in his capacity in law enforcement.

Cross-examination is extremely important to an accused and wide latitude should be allowed. It should not be unduly restricted in matters relating to the credibility of a witness. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976). A trial judge has considerable discretion in determining the scope of cross-examination. Boreck v. State, 277 Ark. 72, 639 S.W.2d 352 (1982); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980). The scope of cross-examination to impeach is not generally limited to matters brought out on direct examination. Matkin v. Jones, 260 Ark. 731, 543 S.W.2d 764 (1976). Cross-examination should be limited to material and relevant matters before the court. Dillard v. State, 260 Ark. 743, 543 S.W.2d 925 (1976). Harmless errors are not grounds for reversal of a case. An accused is entitled to a fair trial but not a perfect one because there are no perfect trials. Brown v. United States, 411 U.S. 223 (1973). Although it may have been the better practice to allow the cross-examination to include the incident to which appellant referred, we do not find that the trial court abused its discretion and no prejudice has been demonstrated.

IV

IT WAS ERROR TO ALLOW THE STREET VALUE OF THE COCAINE TO BE STATED TO THE JURY.

Neither Unif. R. Evid. 403 nor our case law prohibits such testimony from being revealed to the jury. Rule 403 states that although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. We reversed the case of Brady v. State, 261 Ark. 257, 548 S.W.2d 821 (1977), where the trial court refused to allow the accused to prove the value of the pills during the mitigation phase of his trial. The relevancy or prejudice matter must be decided by someone. The trial court has been assigned that responsibility in our system and it is the logical and proper place to make such determination. Unless that discretion is abused, we will not reverse the trial court. See Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). We see no abuse in the trial court’s ruling.

V

IT WAS ERROR TO REFUSE TO GIVE AMCI INSTRUCTIONS 401 & 402.

The court ruled as a matter of law that the informant was not an accomplice of the seller in this case. We need not cite authority that the appellant could not have been convicted by the testimony of Rodgers alone if he were an accomplice of the appellant. Appellant recognizes that we have previously held that an undercover officer or informant is not an accomplice solely because he is a buyer. Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). In Sweatt we held as a matter of law that a buyer of contraband is not an accomplice of the seller.

VI

THERE WERE NO ADVERSE RULINGS PREJUDICIAL TO THE APPELLANT WHICH WERE NOT ARGUED.

Pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rule 11 (0 of this Court, we have considered all objections by appellant and find no prejudicial error.

Affirmed.


author: David Newbern, Justice.

text:
    Dr. A. K. BUSBY v. James THOMPSON, et al
    85-47
    689 S.W.2d 572
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      Williamson, Ball & Bird, by: William K. Ball, for appellant.

      Thompson, Coe, Cousins & Irons, by: Robert B. Wel-lenberger, for appellee Precious Ridgell.

      Ross & Ross, by: James A. Ross, Jr., for appellee Doris Adair Lisenby.
   David Newbern, Justice.

This is an ejectment case which was certified to this court by the Arkansas Court of Appeals. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.4. b. The circuit judge held the defendants could not be ejected because they had obtained title by adverse possession. We disagree, and we find no other basis for the claims of the defendants, so the decision of the lower court is reversed.

Bailey Lamb executed a deed in 1919 to his grandson Noah McCray to a tract of land containing approximately 126 acres. The granting clause was, “. . . unto my said grandson, Noah McCray, for and during his natural life and in remainder to the child or children of his body born unto him and living at his death, and to their heirs and assigns in fee simple forever. . . .” The habendum clause was “. . . unto said Noah McCray during his natural life and in remainder to the heirs of his body and unto their heirs and assigns in fee simple forever. . . .”

Noah McCray had two daughters, Annie Thompson and Ethel Ellis, each of whom predeceased him. Annie Thompson had three children, James Thompson, Preston Thompson and Sadie Williams. Sadie Williams and Preston Thompson, in 1969, conveyed their interest in the approximately 126 acres to Dr. Busby, the appellant, who brought this action. Dr. Busby claims an undivided two-thirds interest in the land. His theory is that the deed to Noah McCray from Bailey Lamb is to be construed as conveying to Noah for life with remainder to the heirs of his body who survived Noah. That would have made James and Preston Thompson and Sadie Williams the owners in fee simple at the death of Noah McCray in October, 1969, and thus enabled Preston and Sadie to confer a two-thirds interest on Dr. Busby by their deeds to him in November, 1969.

The flies in Dr. Busby’s ointment consist of two earlier conveyances of parts of the land made by Noah McCray. The first of these wasa 1922 mortgagewhich resulted ina 1923 foreclosure and commissioner’s deed to forty of the approximately 126 acres to H. M. Wilson. Through mesne conveyances this forty acres was conveyed to appellee Doris Lisenby who was in possession of it when this suit was commenced.

The other conveyance was a deed from Noah McCray to two acres in the approximately 126-acre tract to Precious Ridgell in 1962. Precious Ridgell was in possession of the two acres at the time this suit was commenced.

One who takes a deed from a life tenant holds the land only so long as the grantor is living, or pur autre vie. Meadows v. Hardcastle, 219 Ark. 406, 242 S.W.2d 710 (1951); Bradley Lumber Co. of Arkansas v. Burbridge, 213 Ark. 165, 210 S.W.2d 284 (1948); Georgia State Savings and Loan Ass’n. v. Dearing, 128 Ark. 149, 193 S.W. 512 (1917). Thus Precious Ridgell held the two-acre tract for the life of Noah McCray which ended October 27, 1969.

The same is true of Doris Lisenby. Her title was based on the mortgage executed by Noah McCray and his two daughters. The daughters were contingent remaindermen and thus could convey nothing. National Bank of Commerce v. Ritter, 181 Ark. 439, 26 S.W.2d 113 (1930); Hurst v. Hilderbrandt, 178 Ark. 337, 10 S.W.2d 491 (1928). Noah McCray had only a life estate. Thus Doris Lisenby’s interest terminated with Noah McCray’s life, October 27, 1969.

Doris Lisenby has raised two points in a paragraph of her brief labeled “cross-appeal.” First, findings of the trial court contained a typographical error showing the land conveyed to the immediate predecessor to her purported title was in Section 7, Township 10 when it should have read Section 10, Township 12. In view of our holding, this point becomes moot.

The other point is an asserted ground for affirmance, i.e., that when the mortgage of the forty acres Doris Lisenby possesses was foreclosed in 1923, the court entered an in rem decree in favor of H. M. Wilson which is not now subject to collateral attack.

The foreclosure decree recited that H. M. Wilson held a first mortgage lien on the 40 acres superior to the title of the life tenant, Noah McCray, and his then living daughters Annie and Ethel, and that H. M. Wilson was entitled to $201.93 “. . .from said. . .land. . .” and unless it was paid the land would be sold to satisfy the debt. This decree did not reach an “in rem” conclusion that H. M. Wilson owned the forty acres in question, and it was unlike the action in the case Doris Lisenby cites on this point, Crittenden Lumber Co. v. McDougal, 101 Ark. 390, 142 S.W. 836 (1911). That was an action pursuant to a statute which specifically declared it to be an in rem proceeding. Nor does Dr. Busby challenge this decree, collaterally or otherwise. He questions, rather, the effect of the commissioner’s deed to H. M. Wilson, given the lack of title in Noah McCray, the mortgagor, beyond his life estate.

Doris Lisenby also points out that Bailey Lamb had mortgaged this same forty acres to John Lamb who was also Noah McCray’s mortgagee and who had assigned his interest to H. M. Wilson. Doris Lisenby argues that the mortgage from Bailey Lamb merged with that from Noah McCray, and thus the decree was a foreclosure of both mortgages. Presumably this would have the effect of conveying Bailey Lamb’s reversionary interest to H. M. Wilson. No authority is cited for this merger proposition, and we are not convinced by the argument. The foreclosure decree speaks only of foreclosing against the interest of Noah McCray and his two daughters. That was, in effect, no more than Noah McCray’s life estate. A life tenant can mortgage no more than the tenancy for life. Georgia State Savings Association v. Dearing, 128 Ark. 149, 193 S.W. 512 (1917). See also Holloway v. Bank of Atkins, 205 Ark. 598, 169 S.W.2d 868 (1943).

The trial court held Precious Ridgell and Doris Lisenby had title by adverse possession. If James Thompson, Preston Thompson, and Sadie Williams are remaindermen, then the adverse possession began to run against them and as to their respective interests as of October 27, 1969. Possession of one claiming under a life tenant cannot become adverse against the remainderman until the death of the life tenant. Fletcher v. Hurdle, 259 Ark. 640, 536 S.W.2d 109 (1976); Luster v. Arnold, 249 Ark. 152, 458 S.W.2d 414 (1970); Wilson v. McDaniel, 247 Ark. 1036, 449 S.W.2d 944 (1970). If Noah McCray’s grandchildren were not remaindermen, then the trial court was correct, and Dr. Busby’s claim to the tracts possessed by Doris Lisenby and Precious Ridgell fails.

The question then comes down to the effect of the 1919 deed from Bailey Lamb to Noah McCray. If it is construed as a grant to Noah for life with remainder to the heirs of his body surviving at Noah’s death, then James Thompson, Preston Thompson and Sadie Williams were contingent remaindermen whose interests vested prior to the conveyances of Preston and Sadie to Dr. Busby. If, on the other hand, it is construed as being limited to Noah for life and remainder to Noah’s children, as opposed to bodily heirs, then the contingent remainder in Noah’s children was destroyed when they died, predeceasing Noah.

The appellees contend that the time the conveyance from Bailey Lamb to Noah McCray was made, 1919, the law of this state was that if the granting clause were in conflict with the habendum, the habendum would be disregarded. Sutton v. Sutton, 141 Ark. 93, 216 S.W. 1052 (1919); Jackson v. Lady, 140 Ark. 512, 216 S.W. 505 (1919). Cf. Georgia State Savings Association v. Dearing, supra. To find a conflict we would have to say the language “. . . to the child or children born unto him . . .” differs irreconcilably from “. . . to the heirs of his body. . . .” We are unwilling to say that, had this case arisen in 1919, the result would necessarily have favored the appellees. If a will or a deed shows it was the intention of the testator or grantor to use the words “child or children” to mean words of limitation like “heirs of his body,” we have held that is what was meant. See Wilkins v. Wilkins, 212 Ark. 242, 206 S.W.2d 126 (1947); Kelly v. Kelly, 176 Ark. 548, 3 S.W.2d 305 (1928).

Certainly under the law as it is today we can look to the habendum as an explanation of ambiguity in the granting clause. Fender v. Rogers, 185 Ark. 191, 46 S.W.2d 804 (1932). The habendum may be considered in determining the intent of the grantor from examination of the entire deed. Gipson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974); Wilkins v. Wilkins, 212 Ark. 242, 206 S.W.2d 126 (1947).

We agree with appellee Lisenby that Bailey Lamb probably had no knowledge whatever of what was in the granting clause as opposed to the habendum in his deed to his grandson. He was “old and unlettered.” He signed his name by mark. But when we look to the circumstances recited in his deed it becomes pretty clear he did not intend to have a stronger reversionary interest than would have been the case if the words of his deed were construed to cause the title to go to the heirs of the body of his grandson. The first paragraph of the deed was as follows:

That I, Bailey Lamb, an unmarried old man, for and in consideration and upon the express condition, and subject to said conditions, that my grandson Noah McCray, shall support me during the remainder of my life, furnishing me with a comfortable and suitable home, on the below described land and with suitable and comfortable clothing, medicines, medical attention and good and wholesome food and all other necessities of an old colored man of my age, during my life, and at my death shall have my body decently and suitably buried in an- appropriate burial place, with stone to mark my grave, I hereby grant, bargain, sell and convey unto my said grandson, Noah McCray, for and during his natural life and in remainder to the child or children of his body born unto him and living at his death, and unto their heirs and assigns in fee simple forever, the following described 125.83 acres of land in Drew County, Arkansas, to-wit: [then followed the legal description].

By the fifth paragraph he gave Noah McCray all his personal property “. . . to be by him used in the cultivation of the said land and in my maintenance and support.”

We hold Bailey Lamb’s language showed he intended his grandson’s bodily heirs, whether children or grandchildren, who survived Noah McCray, to be the takers of the land. Therefore, the adverse possession claims of Doris Lisenby and Precious Ridgell did not begin to run against the remaindermen, James Thompson, Preston Thompson and Sadie Williams until October 27, 1969. This suit was brought before the seven year period ended. Thus Dr. Busby has shown a title superior to those of the appellees and should prevail in his ejectment action.

Reversed and remanded for entry of an order not inconsistent with this opinion.


text:
    Mikey Dale FORREST v. STATE of Arkansas
    690 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      John F. Gibson, Jr., for appellant.
    No response.
   Per Curiam.

With respect to this motion for a rule on the clerk, the attorney for the appellant insists that it is the court reporter’s responsibility to prepare the record and to notify the attorney if more time is needed. Counsel therefore refuses to recognize his responsibility for filing the record on time. Counsel is in error. We have repeatedly held that the attorney is responsible for filing the record and cannot shift that responsibility to the trial judge or to the court reporter. See, for example, Christopher v. Jones, 271 Ark. 911, 611 S.W. 2d 521 (1981). As stated in our per curiam order on belated appeals in criminal cases, 265 Ark. 964, we put “the responsibility where it belongs, on the shoulders of the lawyer who is at fault.”

No good cause having been shown for the tardy filing of the record in this case, the motion for a rule on the clerk is denied.


text:
    James C. WALTERS v. STATE of Arkansas
    CR 84-72
    690 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered May 28, 1985

      Appellant, pro se.

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

Petitioner James C. Walters was found guilty by a jury of kidnapping and sentenced as a habitual offender with four prior felony convictions to a term of 60 years imprisonment in the Arkansas Department of Correction. We affirmed. Walters v. State, 283 Ark. 243, 675 S.W.2d 364 (1984). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground of ineffective assistance of counsel at trial and on appeal.

Petitioner contends that his attorney and the prosecutor misled the trial court into accepting inadequate proof of his prior felony convictions. He denies being the same James Clifton Walters named on the records of the prior convictions and argues that, even if this Court finds adequate proof of his identity, two of the convictions were juvenile offenses and the record of one of those is uncertified.

The State produced evidence that petitioner had been convicted of the following crimes:

1973, California, grand theft;
1973, California, burglary;
1978, Missouri, rape; and
1983, Missouri, forgery.

Because petitioner was 19 in 1973 he was committed to the California Youth Authority upon being convicted of grand theft and burglary. The commitment specifies that both offenses were felony offenses. The sentences, the length of which are not designated on the commitment, were ordered served concurrently. Under California law, petitioner may have been eligible to have the two felony convictions made misdemeanors upon honorable discharge from the Youth Authority. Calif. Ann. Pen. Code § 17 (1970). The certified record introduced at trial, however, reflects that petitioner was dishonorably discharged, “whereabouts unknown,” in 1977, and petitioner has provided nothing in this petition to show that the felony convictions were reduced to misdemeanors. More importantly, even if a youthful offender’s prior convictions were completely expunged, the convictions may be used under Arkansas law to enhance sentence as a habitual offender. Gosnell v. State, 284 Ark. 299, 681 S.W.2d 385 (1984).

With regard to the identification of petitioner as the man named in the records of the prior convictions, we find adequate proof of identification for the four convictions used to enhance sentence. Petitioner’s date of birth appears on the records concerning the California convictions and the 1978 Missouri rape conviction. The records on the 1978 conviction also contain a photograph and fingerprints. Petitioner contends that counsel was remiss in not calling a fingerprint expert to testify on whether the fingerprints in the Missouri records are his, but there is no requirement that proof of identity be proven by fingerprint analysis.

Although, the record of the 1983 Missouri forgery conviction does not provide any means of identification except petitioner’s name, we have held that if the State offered evidence of a previous conviction of one of the same name, then a prima facie case was made of the previous conviction. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979); Higgins v. State, 235 Ark. 153, 357 S.W.2d 499 (1962). The name “James Clifton Walters” is the same name that appears on the California commitments and is the same name as that used by petitioner at trial. Petitioner’s bare assertion that he is a different man does not establish that counsel erred in not challenging the proof of identity.

Petitioner’s final allegation is that counsel on appeal should have raised the issues in this petition on appeal. There were no objections to preserve the questions for appeal, but even if there had been, petitioner has not shown, that the issues have merit.

Petition denied.


author: Darrell Hickman, Justice.

text:
    David POTTER v. Betty POTTER
    85-25
    690 S.W.2d 124
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Steel & Steel, by; George E. Steel, Jr., for appellant.

      Smith, Jernigan & Smith, by: Robert D. Smith, for appellee.
   Darrell Hickman, Justice.

What the appellant calls a petition for a temporary restraining order and injunction is, in effect, merely a request for the trial judge to change his prior ruling.

The parties were divorced in 1981, and we modified that decree in Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983). The parties’ residence was ordered sold and Mrs. Potter bought it. The sale to her was confirmed; the confirmation is the subject of a separate appeal.

The appellant moved for permission to occupy the house during the pending of that appeal since Mrs. Potter had moved out and to enjoin her from renting the premises to a third party. The judge denied the request without a hearing. Although Potter characterized his prayer as one for injunctive relief, in effect, the motion asked the judge to change his prior ruling which gave Mrs. Potter temporary occupancy, ordered the home sold and confirmed the sale. The appellant’s request is not a final and appealable order as defined in Ark. R. App. P. 2. If it were, all orders before, during and after a divorce decree could be appealed.

Appeal dismissed.


text:
    Arland CHANDLER v. PERRY-CASA PUBLIC SCHOOLS DISTRICT NO. 2, et al
    84-306
    690 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Cearley, Mitchell & Roachell, by: Robert M. Cearley, Jr. and Marcia Barnes, for appellant.

      G. Ross Smith, P.A., by: G. Ross Smith and W. Paul Blume, for appellees.
   John I. Purtle, Justice.

After pretrial briefs, testimony, and arguments of counsel, the circuit court dismissed appellant’s complaint for a declaratory judgment and for a writ of mandamus. For reversal appellant argues the trial court abused its discretion in denying the petition for a writ of mandamus and erred in dismissing the complaint with prejudice. We do not agree.

Appellant entered into a contract to teach for the school year 1983-1984. The contract entered into on April 22, 1983, stated that appellant would “work as assigned by the Supt. or Prin.” Although the contract was the standard Arkansas “Teacher’s Contract,” it did not describe appellant’s classroom duties. After appellant was assigned teaching duties in secondary math and basic computer skills, some students and parents became dissatisfied with appellant’s performance and petitioned the board to reassign him. At a regular board meeting on April 7, 1984, the board voted to reassign him or give him an early release from his contract. He was also suspended indefinitely. The next day the superintendent me't with appellant and informed him of the board’s action. At a special meeting on April 9, 1984, the board voted to rescind the suspension and reassign appellant to teach computer science. Appellant was notified of this board action by the superintendent on April 11, 1984. The following day he applied for reemployment for the 1984-1985 year. When appellant returned to work on April 16,1984, he was removed from his math classes and assigned to teach only the computer science class. This class ended on April 27, 1984. He had no other teaching duties for the balance of the school year.

The appellant requested a hearing before the board to protest his suspension and reassignment. Pursuant to this request the board held a hearing on April 30, 1984, and rescinded the suspension action and expunged the record of appellant’s suspension. The board upheld appellant’s reassignment. After the reassignment, his duties were to train other teachers to operate new computers, set up computers in the elementary school library, draft a list of computer discs for math and spelling classes, and prepare a list of computer programs needed for the 1984-1985 school year.

Deeming his reassignment of duties a termination of his duties as a math teacher, appellant requested a hearing before the board. He was certified by the State Board of Education as a secondary math teacher. The appellee board did not grant him a hearing on the matter of reassignment of duties and he filed a complaint in the circuit court entitled “Complaint for Declaratory Judgment and Application for Writ of Mandamus.” After a hearing the trial court held it did not have jurisdiction to issue a writ of mandamus because assignment of duties is discretionary with the school board. The complaint was dismissed with prejudice. At the time of the hearing appellant had been rehired to teach math for the 1984-1985 school year.

The first assignment of error is that the court erred in refusing to grant a writ of mandamus. In support of this argument it is urged that the Teacher Fair Dismissal Act and the Arkansas Pupil Assignment Act of 1959 mandated that appellant be allowed to continue his math teaching duties. Arkansas Stat. Ann. § 80-1234 (Repl. 1980) is a part of the Arkansas Pupil Assignment Act of 1959 but this particular statute grants local boards of education the power to assign, reassign, and transfer teachers within the district. This statute has not been construed by this court. The first rule to be applied in statutory construction is to give the words in the statute their usual and ordinary meaning. If there is no ambiguity we give a statute effect just as it reads. Mourot, Freeman and Bailey v. Arkansas Board of Dispensing Opticians, 285 Ark. 128, 685 S.W.2d 502 (1985). We think the statute means exactly what it says and that the local boards of education may assign, reassign and transfer teachers within the district. The statute states: “Local Boards of Education shall have authority to assign and reassign or transfer all teachers in schools within their jurisdiction.”

The purpose of the writ of mandamus is to enforce an established right or to enforce the performance of a duty. Lewis v. Conlee, 258 Ark. 715, 529 S.W.2d 132 (1975). Mandamus will not be granted to compel action on discretionary matters. The standard of review upon denial is whether the trial court abused its discretion. Bunting v. Tedford, 261 Ark. 638, 550 S.W.2d 459 (1977); Karoley v. Reed, 233 Ark. 538, 345 S.W.2d 626 (1961). From the law and facts of this case we cannot find that the board has failed or refused to do an act which is plainly its duty. Therefore, the writ of mandamus was properly refused. Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).

The second argument is that the trial court erred in dismissing the complaint with prejudice. The complaint alleged that the reassignment amounted to dismissal for arbitrary and capricious reasons thereby violating the Fair Dismissal Act. He also alleged damages pursuant to 42 U.S.C. § 1983, commonly known as the Civil Rights Act. There was also an allegation that the reassignment was not initiated by the superintendent thereby violating Ark. Stat. Ann. § 80-1266.5 (Supp. 1983).

We accept appellant’s statement that the board did not comply with the terms of the Fair Dismissal Act and that it was not the superintendent who initiated the reassignment. He did recommend reassignment after the board voted to suspend or release the appellant. We do not accept appellant’s statement that the action of the board was arbitrary or capricious.

The Fair Dismissal Act requires notice to the teacher of the reasons for suspension within two days after it is imposed. Suspended teachers are entitled to a hearing. Ark. Stat. Ann. § 80-1266.5 (Supp. 1983). However, within the time required for the notice the appellant had been reinstated. He was subsequently given a hearing and was completely vindicated. The board expunged the record of the suspension but refused to rescind its action relating to the reassignment of duties. Since he has been renewed for the 1984-1985 school year, appellant was obviously not terminated in a literal sense.

There is no requirement that a teacher be assigned the duties of his preference or that he consent to transfer or reassignment. In the present case the contract on its face stated the appellant would be assigned duties by the superintendent or the principal. He was not hired as a secondary math teacher which is obviously the duty of his choice. He was assigned from the beginning as a part time computer instructor. He was later assigned to full time computer duties. He designed programs and instructed other teachers as part of his duties. His assignment seems to have retained him in an important and useful capacity. Had he been assigned janitorial duties or something of that nature we would likely take a different view. The assignment here is a reasonable one based upon the record before us.

The allegation that appellant had a § 1983 action based upon a liberty right was dismissed along with the other allegations of the complaint. There were no facts pleaded upon which such action could have been maintained.

Under the circumstances and pleadings of this case we are of the opinion that the trial court properly refused to grant the writ of mandamus and also properly dismissed the complaint because it did not state facts upon which relief could have been granted.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    James ELAM v. STATE of Arkansas
    CR 85-8
    690 S.W.2d 352
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Guy Jones, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was found guilty of violating the Omnibus DWI Act of 1983. We affirm the conviction. The appeal comes to this Court under Rule 29(l)(c).

On June 18, 1983, Trooper Simes of the Arkansas State Police was dispatched to investigate an accident near Vilonia. Upon arriving at the scene of the accident, he found appellant’s overturned vehicle with beer cans inside and outside. Appellant’s bloodshot eyes were “kinda out of control.” Appellant was taken to the nearest hospital and, while there, told the trooper that he was the only person in the car at the time of the accident and that the accident occurred because he had missed a curve. The trooper concluded that appellant had been drinking and, as soon as appellant was discharged from the hospital, took him to the police station for a breath test. The result of the test was 0.15% blood alcohol content.

While the trooper did not actually see appellant operate the vehicle, the confession coupled with the recited facts constitute substantial evidence from which the jury could find that appellant was in actual control of the vehicle.

Appellant argues that there was no reasonable cause to require him to submit to the breath test. See Ark. Stat. Ann. § 75-1045(a)(3) (Supp. 1983). We find no merit in the argument. The manner in which the accident occurred, the beer cans, and appellant’s appearance supplied ample cause for the officer to require the breath test.

Last, appellant argues that the breath test was not administered for more than two hours after the accident, and the result of the test was not admissible in evidence. As authority for his argument appellant cites Ark. Stat. Ann. § 75-1031.1 (Supp. 1983). That statute does not provide an unqualified exclusionary rule of evidence for tests administered more than two hours after a person is arrested for driving while intoxicated. Instead, it provides that if the test is administered within two hours of the arrest and the test shows that the defendant has a blood alcohol content of 0.05% or less he shall be presumed not to be under the influence of alcohol. If the defendant has a blood alcohol content in excess of 0.05% but less than 0.10% there should be no presumption whether the defendant was or was not under the influence of intoxicants. The statute is silent, however, regarding situations in which the test is taken two hours or more after the arrest, and the result reflects a blood alcohol content of 0.10% or more. The legislative reasoning is obvious. A delay beyond two hours could result in the blood alcohol content of an intoxicated person declining to the extent that it could no longer be detected by the testing mechanism, or, if detected it would register a smaller level. In such cases it would not be fair to apply either of the statutory provisions on presumptions. However, if the delay is two hours or longer and the test still shows a blood alcohol content of 0.10% or more, neither provision on presumptions is applicable, and the test is admissible.

Even if we construed the statute to apply to situations in which the test is taken two hours or more after the arrest and the result was 0.10% or more, we would not reverse because there would be no prejudicial error since the longer the period of time between the arrest and the test, the more the blood alcohol content decreases. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

Affirmed.


author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    F. Omaha Pope PETERSON, et al. v. Robert L. SIMPSON and Rosa SIMPSON
    85-1
    690 S.W.2d 720
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985
    [Rehearing denied July 15, 1985.]

      Gardner & Gardner, by; Stephen C. Gardner, for appellant.

      Dale S. Braden; and Martin, Vater & Karr, by: Charles Karr, for appellee.

       George Rose Smith, J., not participating.

   Robert H. Dudley, Justice.

This quiet title action presents questions about oil, gas or mineral rights, thus jurisdiction is in this Court pursuant to our Rule 29(l)(n). The first point for reversal raised by the plaintiffs, appellants, concerns the construction to be given a warranty deed. In the deed, the owner of a fractional mineral interest purports to convey a larger interest than can be granted because of another outstanding fractional mineral interest and the grantor’s own purported reservation of a fractional interest in the minerals. The trial judge was correct in ruling that the warranty deed failed to reserve an undivided one-half interest in the oil, gas and other minerals.

In 1940, the Supreme Court of Texas published its opinion on the issue now before us in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940). In the 45 years since that decision was issued, Duhig has been accepted, in some form, by the courts of at least eight (8) oil and gas producing states: Alabama, Colorado, Mississippi, North Dakota, New Mexico, Oklahoma, Texas, Wyoming, and probably Louisiana. See 1 H. Williams & C. Meyers, Oil and Gas Law, § 311 n. 12 (1981) and W. Ellis, Rethinking the Duhig Doctrine, 28 Rocky Mt. Min. L. Inst. 947 (1982) for a complete listing of the cases. It has recently been rejected, in part, in North Dakota, in Gilbertson v. Charlson, 301 N.W.2d 144 (N.D. 1981), and in Utah, in Hartman v. Potter, 596 P.2d 653 (Utah 1979).

We recently rejected application of the Duhig Rule with respect to reservations contained in quit-claim deeds in Hill v. Gilliam, 284 Ark. 383, 682 S.W.2d 737 (1985). The facts of the instant case, however, present us with an issue of first impression in Arkansas — whether we adopt the Duhig rule with respect to warranty deeds.

A brief outline of the Duhig facts and reasoning are necessary to understand the rule. Gilmer conveyed land to Duhig, reserving 50% of the minerals. It is undisputed that at this point Duhig owned all of the surface and 50% of the minerals. Duhig then executed a warranty deed to the predecessor in interest of Peavy-Moore Lumber Company which warranted title to the described land, but then set out the following statement: “But it is expressly agreed and stipulated that the grantor herein retains an undivided one-half interest in and to all mineral rights or minerals of whatever description in the land.” Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940). Duhig and the lumber company each claimed that they owned the 50% of the mineral interest not owned by Gilmer.

The Texas Supreme Court held in favor of the lumber company. The opinion was written by Commissioner Smedley, who did not agree with the majority justices. For himself, he wrote that the result was mandated by established rules of construction; that the deed showed an intent to convey to the lumber company all of the land owned by Duhig and a one-half interest in the minerals; and that the clause in question merely withheld the one-half mineral interest previously reserved in the Gilmer deed, which Duhig did not own, from the operation of the deed. For the majority, he explained the two step approach which they used in reaching their decision. First, the granting clause of the deed operates, and the lumber company receives all of the surface and one-half of the minerals, title to which was warranted. Duhig owns nothing. Next, the reservation operates, and the 50% interest in minerals returns to Duhig. Now the lumber company owns the surface but not mineral rights. At this point, both the grant and the reservation have been given effect, but Duhig is in violation of the warranty in the deed. To rectify the breach of warranty, 50% of the minerals are transferred from Duhig to the lumber company by using an analogy to the doctrine of estoppel by deed against assertion of an after acquired title.

It is not necessary to accept the Texas majority’s two-step estoppel theory in order to accept the Duhig result. Professor Ellis, in his outstanding article, Rethinking the Duhig Doctrine, 28 Rocky Mt. Min. L. Inst. 947 (1982), analyzes the Duhig rule as being made up of two sub-rules:

1. A warranty deed which does not limit the interest in the minerals granted purports to grant 100% of the minerals. He labels this the “100% rule.”
2. If the grantor of a warranty deed does not own enough interest to fill both the grant and the reservation, the grant must be filled first. He terms this the “allocation of shortage rule.”

Professor Ellis also discusses the underlying reason for the Duhig Rule:

In the United States, the recording system is the only method we have for keeping track of the ownership of mineral rights. The recording system only makes available the evidence of title, evidence which is meaningless until interpreted by a title examiner. Rules like those that comprise the Duhig rule exist primarily to make it possible for title examiners to interpret the evidence they find in the recorder’s office. Without such objective rules of construction, marketable title, and thus a market in mineral rights, would not be possible. The initial question faced by a court that is dealing with a Duhig problem is not whether to follow Duhig or some other rule of construction. The first question is whether to set aside all objective rules of construction and engage in a subjective inquiry into the meaning of the deed or to find the intent of the parties objectively according to accepted rules of construction.
The general criteria for making this threshold decision are clear. The goal of interpretation is finding, if possible, the actual intent of the parties. Relevant facts, which are admitted by the parties or are proper matters for judicial notice, can be taken into account if doing so will not injure the rights of subsequent purchasers or undermine reliance on the recording system. When, however, fairness to individual parties and preservation of a viable recording system are in conflict, preservation of the recording system, being more important, must control.

In the case at bar, Bullock, in 1938, conveyed land to Baird, reserving 50% of the minerals. It is undisputed that Bullock continues to own that 50% of the minerals. Next, in 1941, Baird conveyed his land and the other one-half of the minerals to Payne. In 1947, Payne conveyed his land and the one-half of the minerals he owned to Pope. In 1948, in the warranty deed now at issue, Pope, the predecessor in interest of the plaintiffs in this action, conveyed to Andrews setting out the following reservation: “Reserving however, from this conveyance, for the grantors herein, their heirs and assigns forever, ONE-HALF (Vi) of all oil, gas, coal and other minerals, in and to and that might be produced from the said real estate.” Andrews then conveyed his interest to Price, who conveyed to Brown, who conveyed to Neal, who conveyed to Pearson, who finally conveyed to the Simpsons, the defendants in this quiet title action. The language in the deed to the Simpsons provides: “This deed is made subject to reservations of one half (Vi) of all minerals heretofore reserved. It is meant by this deed to convey the surface and one half of all minerals.”

The plaintiffs, successors in interest to Pope, urge us to examine subjective considerations in order to decide this case, as was done in Hartman v. Potter, 596 P.2d 653 (Utah 1979). The defendants, Simpsons, are subsequent purchasers, and they would have us apply the Duhig rule, a rule of objective construction. We choose to apply Duhig to the extent explained below.

As set forth previously in describing the chain of title, the plaintiffs’ predecessor in interest, Pope, did not convey directly to the defendants. In fact, there were four intervening conveyances between the Pope deed and the Simpson deed. To decide the issue now on the basis of what Pope subjectively thought, or intended, when he conveyed to Andrews in 1948, when neither the grantees, nor their title examiners were privy to that thought, would be greatly unfair. As Professor Ellis stated in concluding his article on Duhig: “The Duhig Rule is not intended to uncover the ‘real’ intent of the parties. It is intended to protect BFP’s.” W. Ellis, Rethinking the Duhig Doctrine, 28 Rocky Mt. Min. L. Inst. 947, 967 (1982). Therefore, the proper procedure to follow in cases which do not involve the original grantor and his immediate grantee, as here, is to arrive at the meaning of the deed according to rules of objective construction, which we now hold to include application of the Duhig rule. Subjective considerations are not appropriate in such cases. Accordingly, with respect to such reservations contained in warranty deeds, a subsequent grantee is to receive that percentage of mineral interest in the land not reserved to the grantor, since the deed purports to deal with 100% of the minerals. If both the grant and reservation cannot thereby be given effect, the reservation must fail and the risk of title loss is on the grantor.

Subsequent purchasers, or grantees, must be able to rely upon this interpretation or else, under these type of circumstances, every title would require a lawsuit in order to be alienable. Rejection of the Duhig Rule would mean sacrificing the degree of certainty and guidance that it can provide concerning marketability of mineral interests, and replacing it with an outbreak of lawsuits. This we are not willing to do.

The fairness of applying Duhig is obvious. First, Pope did not specify the quantum of interest in the minerals he conveyed. There are only two reasonable ways to read a warranty deed which does not specify the quantum of interest conveyed, either “No interest” or “all the interest there is.” The idea that Pope intended to convey no interest in the minerals does not comply with the expectations of reasonable people.

Second, Pope, did not own enough interest to satisfy both his grant and his reservation. That leaves only two choices, either the grantor bears all the loss or the grantee bears all the loss. It is more fair to allocate the loss to the grantor, who could have prevented the misunderstanding in the first place.

Our decision in this case does not change the general rule that subjective considerations may be taken into account in reformation cases involving the original grantor and his immediate grantee.

The second point for reversal raised by the plaintiffs, appellants, is that the trial court erred by refusing to hold that appellants acquired ownership to the undivided one-half interest in the minerals by adverse possession. The trial judge was correct. When a mineral ownership has not been severed by deed from the surface ownership, as here, one cannot acquire title to the minerals by adverse possession unless he actually invades the minerals by opening mines or drilling wells and continues that action for the necessary statutory period. Taylor v. Scott, 285 Ark. 102, 685 S.W.2d 160 (1985). Here, there was no drilling and operation of the gas wells continually for the statutory period of seven years.

Affirmed.

Holt, C.J., Hickman and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. Sometimes we are so carried away by popular rules of construction we ignore the intent of the grantor which can be ascertained from the deed. If the deed had said simply that it conveyed the land reserving or excepting fifty percent of the minerals, I would find the Duhig rule useful, for in that instance there would be ambiguity, and a rule of construction would be of some help. We would not know whether the grantor intended simply to notify the grantee that fifty percent of the minerals had been reserved by a previous grantor or the grantor intended fifty percent to be reserved to himself.

Here the grantors’ reservation clearly said the reservation was “for the grantors herein, their heirs and assigns forever.” There is no ambiguity, and I find no need to resort to a rule of construction.

The scholarly article quoted by the majority is particularly unpersuasive. It refers to attempts to ascertain a grantor’s intent as “subjective” unless the “actual” intent can be found. That sort of discussion is not helpful to me. Nor can I fathom how prolific application of the Duhig rule will help protect our recording system. If the fifty percent mineral reservation, outstanding at the time of the deed questioned here, was made in a recorded deed, subsequent grantees had constructive notice of it. If it was not recorded, subsequent grantees may be bona fide purchasers in good faith without notice. The Duhig rule has nothing to do with either situation.

I am even less impressed with the tricky rationale of the Duhig case. It says the grantor, in one instrument, warrants title to all the surface and all the minerals, reserves some minerals to himself, but having already conveyed them he cannot have them back by analogy to the after acquired title rule. I find my view to be completely in accord with that of Justice Alexander whose dissenting opinion in Salmen Brick & Lumber Co. v. Williams, 210 Miss. 560, 50 So. 2d 130 (1951), is quoted in part in 1 H. Williams and C. Meyers, Oil and Gas Law, § 311, at 580.9 (1984), as follows:

I am unable to find support in a theory by which a court seeks gratuitously to save a grantor against an anticipated suit for breach of warranty. A warranty does not effect the conveyance. Title is acquired by the conveyance and guaranteed by the warranty. Nor is a deed void which subjects the grantor to a possible suit to enforce the warranty or for damages.

In discussing Justice Alexander’s opinion, Williams and Meyers clarify the real effect application of the Duhig rule will have in the case before us. It will relieve the ultimate grantee of having to pursue his remedy on the warranty by construing the deed to achieve a result contrary to the intent of the grantor. To say the least, I find this to be a novel approach, and I am unwilling to march to the tune of a tortured Texas opinion whose author was not even in step with his own majority. This is an instance in which our herding instinct serves us poorly.

I respectfully dissent.

Justices Holt and Hickman join in this dissent.


text:
    Joe HARMON v. STATE of Arkansas
    CR 84-212
    690 S.W.2d 125
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Mark Cambiano, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Joe Harmon has been tried three times for killing Ricky Bennett. He was first convicted of capital murder, and that conviction was reversed. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982). His second trial resulted in a hung jury. In the third trial he was convicted of first degree murder and sentenced to life imprisonment. Our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29. 1. b. and j.

Four points are raised in this appeal. First, we are urged to reconsider our position on death qualified juries. Second, we are asked to hold it was error to limit defense counsel in posing hypothetical cases to jurors who announced, on voir dire, reluctance to impose the death penalty. Third, error is asserted in admission into evidence of Harmon’s confession which was made, he alleges, after he had requested but not obtained counsel. Fourth, error is asserted in admission into evidence of an inculpatory letter written by Harmon to Dorothy Rader while he was awaiting trial. We find no error, thus the conviction is affirmed.

1. Death qualified juries

The appellant argues the decision of the Eighth Circuit Court of Appeals in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985), requires that we change the position we adopted in Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983). We dealt with the Eighth Circuit’s decision in dictum in Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985), noting that we decline to change our position on this issue. Our independent judgment and holding is that death qualified juries are not unconstitutional, and the United States Supreme Court has not ruled that they are unconstitutional. Our rationale is stated in the Rector case and adhered to in the Hendrickson case.

2. Voir dire limitation

A part of the voir dire of a venireman was as follows:

MR. MASSEY [the prosecutor]: Q. And what you are telling me, no matter what the circumstances were, that you wouldn’t vote for death?
A. No, I couldn’t, not really.
MR. CAMBIANO [defense counsel]: Q. And the second thing I want to bring out is, I want to know if you — you say in all cases you would never — could never vote for the death penalty. But let me ask you a few different cases. I’m not particularly talking about this particular case with Joe Harmon. I’m talking about, say, there was a small — the death of a small child involved. Say, this person tortured this child and sexually molested the child and killed the child. Could you consider giving the death penalty to someone who would do something like that?
A. That’s different, I probably could.

The venireman was ultimately excused after reiterating her inability to invoke the death penalty, and the defense counsel was not permitted to pose hypothetical in inquiring of other veniremen. The court told him to “stay away from the specific factual issues not involved in this case.”

The judge’s ruling was precisely in line with the position we stated in Rector v. State, supra. There venireman McKenna was excused because of his opposition to the death penalty despite his statement that he might reluctantly go along with a death sentence if he knew the accused would “assuredly kill others in the future.” We said:

There was certainly no possibility that in the course of this trial McKenna would know that Rector would assuredly kill others in the future. Hence McKenna was properly excused for cause. If this is not so, then defense counsel is always in a position to present to a venireman a totally irrelevant hypothetical situation and, if the juror admits that he might vote for the death penalty in that case, insist that the juror is acceptable. We do not understand the Supreme Court’s decisions to have gone that far. [280 Ark. at 398, 659 S.W.2d at 175.]

3. Right to counsel

At the time of the killing the appellant lived with Dorothy Rader at her home. The appellant was arrested at the office of a Pine Bluff lawyer who was representing him on other matters. The lawyer advised the appellant to “keep his mouth shut” and get another lawyer to represent him on the murder charge, to which the appellant replied “okay.” Later, the appellant was transferred to the Yell County jail where he was interrogated by investigator Kimery of the Arkansas State Police.

Kimery testified he obtained the appellant’s signature on a waiver of rights form before taking the appellant’s statement. The waiver form included acknowledgment of the right to counsel and a waiver of that right. Kimery testified the appellant did not make any mention of a lawyer.

The appellant’s testimony is directly to the contrary. He says he told Kimery he was waiting for Dorothy Rader to get a lawyer for him and that he had told her to get a lawyer at the time of his arrest in Pine Bluff. No one who was present at the arrest remembered or could testify with certainty that the appellant had told or asked Rader to get him a lawyer. Rader testified she did not remember being asked to find a lawyer for the appellant, and she said she had not tried to do so.

We cannot say the court erred in admitting the statement, given the express waiver executed by the appellant and the conflict in testimony as to whether he said he wanted the services of a lawyer when he was questioned.

4. The letter

Shortly after his arrest the appellant wrote a letter to Dorothy Rader in which he told her he was guilty “of being part of shooting that person.” He acknowledged that he had given a statement to the state police investigator. He then said he would not plead guilty because he would have a chance for a sentence to life imprisonment, or less, with a jury, but he felt he would get no less than death or life without parole if he pleaded guilty.

His contention is that Ark. Unif. R. Evid. 403, Ark. Stat. Ann. § 28-1001 (Repl. 1977) required exclusion of the letter because its unfairly prejudicial effect outweighed its probative value. At the trial the appellant objected to allowing the letter to go before the jury because of the statements it contained about possible sentences. No mention of Rule 403 was made in the objection. However, giving the appellant the benefit of the doubt as to whether his objection raised the issue to which Rule 403 applies, we hold the judge did not abuse his discretion in balancing prejudice against probative value. The appellant says in view of his already admitted confession the letter was only cumulative. That point cuts both ways, as it might be said that in view of the confession there was little, if any, prejudice, and surely not the unfair prejudice of which the rule speaks. We have held that the balancing called for by Rule 403 is most appropriately done by the trial judge. We will not reverse his decision absent a manifest abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 899 (1980); Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980).

Affirmed.


text:
    Willie Ray MACKEY v. STATE of Arkansas
    CR 85-83
    690 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Q. Byrum Hurst, Jr., for petitioner.

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

Petitioner Willie Ray Mackey was charged with capital felony murder and found guilty by a jury of first degree murder. He was sentenced to life imprisonment in the Arkansas Department of Correction. We affirmed. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Ark. R. Crim. P. 37. The sole ground for relief is that he was denied a fair trial as guaranteed by the Constitution of the United States because the jury at his trial was “death qualified.”

This Court has held that death-qualified juries are constitutional. Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985). Even if we had not so held, petitioner is not entitled to raise the issue now for the first time. An issue which could have been raised at trial and on the record on direct appeal in accordance with the controlling rules of procedure is considered waived, unless it presents a question so fundamental as to render the judgment void. Hill v. State, 278 Ark. 194, 644 S.W.2d 282; Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981); Moore v. Illinois, 408 U.S. 786 (1972); Stembridge v. Georgia, 343 U.S. 541 (1952); Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934, reh. denied, 268 Ark. 315, 599 S.W.2d 729 (1980); Williams v. Edmondson, 257 Ark. 837, 250 S.W.2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W.2d 440 (1968). The question advanced by petitioner is not sufficient to render the judgment in his case void.

Petition denied.


text:
    Billy Joe SKAGGS v. H.A. TAYLOR, Judge
    CR 85-85
    690 S.W.2d 354
    Supreme Court of Arkansas
    Opinion delivered June 3, 1985

      Petitioner, pro se.
    No response.
   Per Curiam.

Petitioner Billy Joe Skaggs filed a pro se petition pursuant to A.R.Cr.P. Rule 37 in the Circuit Court of Jefferson County on December 10,1984. When the State failed to respond, he amended his petition on April 3, 1985. On May 3, 1985, still having received no response, petitioner filed in this Court a pro se petition for writ of mandamus, in which he alleges that the trial court had failed to act on his Rule 37 petition in a timely manner. A copy of the petition was served on the Office of the Prosecutor but no response has been received.

On February 28, 1985 a request was sent from this Court to the Jefferson Circuit Court requesting information about the Rule 37 petition. A deputy clerk responded on March 11, 1985, stating that the Rule 37 petition had been filed in the Jefferson Circuit Court on December 10,1984 but no action had been taken. We again requested a status report on March 26, 1985. Another status report was requested on April 15,1985. On April 22,1985 our case coordinator wrote the trial judge directly. After three requests from this Court we still do not have any idea when this petition will be heard. The prosecuting attorney has not responded to the petition for writ of mandamus in any manner so far as we can determine.

The petition for writ of mandamus is granted. The trial court is directed to act on the pending Rule 37 petition or set it for a hearing within ten (10) days.

Petition granted.