author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

text:
    Steven Douglas HILL v. STATE of Arkansas
    CR 85-212
    713 S.W.2d 233
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986
    [Rehearing denied September 15, 1986.]

      William R. Simpson, Jr., Public Defendér, and Thomas J. O’Hern, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

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

The appellant was charged with nine felonies stemming from events that occurred on October 15, 1984, when the appellant and another inmate, Michael Cox, escaped from the Wrightsville Unit of the Arkansas Department of Correction. Separate trials were held for the two defendants. On the day of his trial appellant pleaded guilty to all charges except for the capital murder of Arkansas State Trooper Robert Klein and the attempted murder of Lt. Conrad Pattillo, a fellow officer. A jury trial was held on the remaining counts and a guilty verdict was returned. In a separate sentencing procedure, the jury sentenced appellant to death by lethal injection for the capital murder and to 50 years imprisonment for criminal attempt to commit capital murder. It is from that verdict and sentence that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29 (1) (b). As required by our rule 11 (f) we have reviewed all abstracted rulings adverse to appellant as well as the points raised on appeal. We find no error.

The appellant raises eight arguments for reversal which will be discussed separately.

I. VOLUNTARINESS OF HIS CONFESSION

Appellant’s first allegation of error is that the trial court should not have admitted into evidence a statement given by him after his arrest as the appellant did not voluntarily or knowingly waive his constitutional rights. In support of this contention, appellant claims that he was threatened by police officers and that, during the videotaping of his confession, some of the officers were armed and one of the officers was “playing” with his gun in an effort to intimidate the appellant. The officers denied these accusations.

On appeal this court examines a trial court’s ruling that a statement was voluntarily given to see if the state proved by a preponderance of the evidence that the statement was voluntary. We make an independent determination of this issue considering the totality of the circumstances and affirm the trial court unless we can say the lower court was clearly wrong. Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). When the situation presents a swearing match between the officials and the appellant, as here, the conflict is for the trial court to resolve. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

The testimony at the Denno hearing revealed that appellant escaped from prison shortly before 3 p.m. on October 15. He and Cox arrived at a home in Woodson, Arkansas, occupied by Billie Jo, Merle and Buck Rice. The two inmates robbed the Rices at gunpoint, threatened and intimidated them, tied them up, and left the house at about 10:30 p.m. From there they went to a second house, owned by the Cooks where the fatal shooting occurred at about midnight. After a standoff with the police, Hill surrendered at approximately 4:30 a.m. and was advised of his Miranda rights by Lt. David Rosegrant. Around 5 a.m. Cox surrendered. The inmates were transported to state police headquarters in Little Rock and arrived at 5:45 a.m. Cox was interrogated first and then Hill. The appellant’s videotaped confession was taken, at 6:50 a.m. after he was advised of his Miranda rights by Investigator Bill Gage. The statement lasted about 30 minutes. The videotape was then transcribed and read back to Hill who signed it.

During the Denno hearing, Hill acknowledged that he was read his rights and understood them, but he did not choose to exercise those rights at that time. He stated that he knew what rights were available to him.

Based on the foregoing, the state met its burden of proving a voluntary waiver.

Appellant also contends that when the statement was taken the officers only advised him that he was a suspect in an escape and not in a capital murder. Accordingly, appellant maintains he could not intelligently waive his rights since he did not know the nature of the charges and the consequences of a waiver of rights. Contrary to the appellant’s claim, the transcript reveals that he was advised he was a suspect in a capital murder on at least two different occasions. Sgt. Larry Gleghorn testified the appellant was advised he was a suspect in a murder and kidnapping and aggravated robbery before the videotaping began. Officer Rosegrant testified that when he advised appellant of his rights he also informed him of the charges. Appellant’s argument is without merit and the confession was properly admitted.

II. PROSECUTORIAL MISCONDUCT

Appellant claims that the prosecutor’s closing argument in the penalty phase of the trial was improper and prejudiced his right to a fair trial. He maintains the trial court erred in refusihg to grant a mistrial or a new trial after the prosecutor argued outside the record and presented evidence not in the record.

During his closing argument, in the penalty phase of the trial, the prosecutor argued as an aggravating circumstance the that the capital murder was committed to avoid arrest. As evidence of that, he told the jury that the appellant was at the Cooks’ house “loaded for bear.” To illustrate his point, he picked up one of the recovered shotguns and loaded it, to show that it held only five shells, which was the number found in the gun when Hill was arrested. The inference to be drawn was that Hill, after firing two shots — one at Officer Klein and one at Officer Pattillo — reloaded the gun and was ready to shoot again.

The appellant states that, although the murder weapon, a 20-gauge shotgun, contained five shells when it was found, there was no proof that the gun held only five shells. In addition, when the prosecutor conducted the demonstration, he mistakenly used the wrong gun, a 16-gauge shotgun also found at the scene. Although the appellant’s counsel lodged a general objection to the demonstration, there was no specific objection during the closing argument to the use of the wrong gun.

Demonstrations such as the one performed by the prosecutor are permissible. We have allowed prosecutors to use items such as clothing, rope or documents by way of illustration in their closing arguments for many years. See Derrick v. State, 92 Ark. 237, 122 S.W. 506 (1909); Tiner v. State, 109 Ark. 138, 158 S.W. 1087 (1913). Some leeway is given in closing remarks and counsel are free to argue every plausible inference which can be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). Nevertheless, “[c]losing arguments must be confined to questions in issue, the evidence introduced and all reasonable inferences and deductions which can be drawn therefrom.” Williams v. State, 259 Ark. 667, 535 S.W.2d 842 (1976). The trial court has a wide latitude of discretion in controlling the arguments of counsel and its rulings in that regard are not overturned in the absence of clear abuse. McCroskey v. State, 271 Ark. 207, 608 S.W.2d 7 (1980).

Other states have found permissible closing argument where a prosecutor used “similar” material to a rope used to bind a victim to show that the victim might have bound himself, Collins v. State, 561 P.2d 1373 (Okla. Cr. 1977); where a live model and an unloaded pistol were used to demonstrate that shots could not have been fired in the manner claimed by the defendant, Herron v. Commonwealth, 23 K.L.R. 782, 64 S.W. 432 (1901); where a piece of crayon was used to show how the defective muzzle on a revolver could have deformed a bullet fired from the pistol, Russell v. State, 66 Neb. 497, 92 N.W. 751 (1902); where an attorney borrowed a gun from an officer in the courtroom to demonstrate the deceased could not have inflicted a fatal wound upon herself, Peoples v. Commonwealth, 147 Va. 692, 137 S.E. 603 (1927); and where a toy gun was used to prove the fatal wound could not have been inflicted as claimed, Barber v. Commonwealth, 206 Va. 241, 142 S.E.2d 484 (1965). In the Barber case the Virginia court found it was within the sound discretion of the trial court to determine whether the use of the toy pistol should be permitted even though the toy was not shown to be the same size or type as the murder weapon.

Likewise, here the trial judge did not abuse his discretion when he permitted the prosecutor’s demonstration with the shotgun. As to the use of the wrong gun for the demonstration, without an objection at the trial, this could not have been a ground for a mistrial. Nor is it newly discovered evidence since it could have been discovered when it occurred during the trial and there is no indication that the evidence is “important” as required by Ark. Stat. Ann. § 43-2203(6) (Repl. 1977).

Even if this court were to consider the use of the wrong gun to be error, it would be rendered harmless by the jury’s specific findings of aggravating circumstances. By the demonstration, the prosecutor was attempting to establish the proposition that the appellant knowingly created a great risk of death to a person other than the victim, premised on the fact that the appellant reloaded after shooting the police officer. The jury, however, given the opportunity, failed in its formal findings to recognize that aggravating circumstance existed. See Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). This argument is accordingly without merit.

III. PREVIOUS FELONY AS AGGRAVATING CIRCUMSTANCE

Prior to the beginning of the trial, appellant pled guilty to three counts of aggravated robbery and one count of kidnapping, and to burglary, theft and escape. These offenses stemmed from appellant’s escape from jail and the incident at the Rice home in Woodson and occurred on the same day as the murder and attempted murder of which appellant was convicted. In the penalty phase of the trial, the state used these convictions pursuant to Ark. Stat. Ann. § 41-1303(3) (Repl. 1977) which provides as an aggravating circumstance:

The person previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person.

Appellant maintains that the statute does not contemplate the use of felonies that are part of the same criminal episode as the capital murder. We disagree.

In passing § 41-1303(3) the General Assembly intended to narrow the class of persons exposed to the death penalty to those with a predisposition for violent acts. The state, during the guilt and innocence phase, can always prove other acts done at the same time as the principal crime to show the aggravated nature of the crime charged. McFarland v. State, 284 Ark. 533, 684 S.W.2d 233. Furthermore, Ark. Stat. Ann. § 41-1303(8) (Supp. 1985) allows the state, during the penalty phase, to show the murder was done in a particularly heinous manner. The reason, then, for section (3) is to allow the state to show that the defendant has a character for violent crimes or a history of such crimes.

Section (3) was amended in 1977 to permit the state to prove that the defendant has previously committed violent felonies. Prior to the amendment, the state could only offer proof of previous convictions for violent felonies. The question we must answer is what the legislature meant by “previously committed.”

Since there are other avenues by which the state can prove crimes immediately connected with the principal crime, the only logical conclusion is that section (3) applies to crimes not connected in time or place to the killing for which the defendant has just been convicted. In this case the crimes used to prove an aggravated circumstance involved other victims, in another place and previously in time. Therefore, they were properly used as an aggravating circumstance.

IV. YOUTH AS MITIGATING EVIDENCE

The appellant turned 18 about two months before the crimes were committed. This evidence was presented to the jury and was submitted on the form as a mitigating circumstance. The jury found that “[t]here was no evidence of any mitigating circumstance.” Because the jury did not check the part of the form providing that “there was evidence of mitigating circumstances but the jury agreed they did not exist at the time of the murder,” appellant argues the jury improperly failed to consider the evidence of appellant’s youth.

In Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977) this court found error in the sentencing procedure in the jury’s failure to find any mitigating circumstances where there was evidence throughout the record that appellant was an imbecile who suffered from organic brain syndrome. In that same case, however, the jury found that the youth of the appellant, who was apparently 19 or 20 when the crime was committed, was not a mitigating factor. This court affirmed the jury’s finding, stating, “[a]ny hard and fast rule as to age would tend to defeat the ends of justice, so the term youth must be considered as relative and this factor weighed in the light of varying conditions and circumstances.” Giles, supra; see also Neal v. State, 261 Ark. 336, 548 S.W.2d 135 (1977).

We do not interpret the jury’s action to mean that they did not consider the evidence of mitigation that was offered. Rather we find the jury determined that the appellant’s youth was not a mitigating factor, as they were entitled to do, and so indicated that no mitigating circumstances were found. No error was committed.

V. MANDA TORY DEA TH SENTENCE

The appellant filed a pretrial motion challenging the constitutionality of the death penalty sentencing statute as a mandatory death statute. The sentencing statute, Ark. Stat. Ann. § 41-1302 (Repl. 1977) states:

(1) The jury shall impose a sentence of death if it unanimously returns written findings that:
(a) aggravating circumstances exist beyond a reasonable doubt; and
(b) aggravating circumstances outweight [outweigh] beyond a reasonable doubt all mitigating circumstances found to exist; and
(c) aggravating circumstances justify a sentence of death beyond a reasonable doubt.

Appellant argues that the statute does not permit an individual determination to be made by the jury as to whether this particular defendant should be sentenced to death.

A jury cannot impose a sentence of death until it specifically finds that all three parts of the statute apply. We have held in several cases that, regardless of a jury’s findings with respect to aggravation versus mitigation, “it is still free to return a verdict of life without parole, simply by finding that the aggravating circumstances do not justify a sentence of death.” Clines, Holmes, Richley & Orndorff v. State, 280 Ark. 77, 656 S.W.2d 684 (1983). The jury has additional leeway because it can find that mitigating circumstances outweigh aggravating circumstances. We have found that this fact prevents the imposition of the death sentence from being mandatory. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). We further stated in Collins that “[t]he statute provides adequate guidelines, so limiting and directing the exercise of the jury’s discretion that an arbitrary, capricious, wanton or freakish exercise of that discretion is improbable.”

A further safeguard is provided in that the trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982); Collins, supra.

The sentencing statute does not require a mandatory death sentence, but rather establishes criteria which must be strictly met before a death sentence shall be imposed. It is not unconstitutional.

VI. CONSTITUTIONAL QUESTIONS

Under this argument, the appellant raises several challenges to the constitutionality of the death penalty and alleges that his constitutional rights were violated.

He first argues that error was committed because the jury was death qualified. This court has repeatedly held that this practice is constitutional, Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), and the United States Supreme Court has now also taken that position. Lockhart, Dir., Ark. Dept. of Correction v. McCree,_U.S.__, 106 S.Ct. 1758 (1986).

Appellant next claims the sentence of death is cruel and unusual punishment, but acknowledges that this argument has been rejected by the U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976) and by this court in Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984). We decline his invitation to overrule our cases.

The next allegation of error by appellant is that the death penalty statute unconstitutionally infringes upon an accused’s right to plead not guilty and to have a jury trial. This contention is based on the fact that the only way the death penalty can be imposed is if the defendant chooses a jury trial since a judge cannot sentence a defendant to death. Ark. Stat. Ann. § 41-1302(3) (Repl. 1977). We have rejected this argument several times. E.g., Ruiz & Denton v. State, 275 Ark. 410, 630 S.W.2d 44 (1982); Hill v. State, 278 Ark. 194, 644 S.W.2d 282 (1983).

VII. MOTION FOR NEW TRIAL

After the transcript was filed but before briefs were due, appellant submitted a petition for writ of error coram nobis which was denied by this court. The petition was based on an unsolicited affidavit from appellant’s codefendant, Michael Cox, in which Cox purportedly states that he, not appellant, fired the shot that killed Officer Klein. Appellant asked this court in his petition to order the trial court to conduct a hearing to determine whether a new trial is needed. We are now asked to reconsider our ruling denying the petition.

Although we are being asked to decide this petition on its merits, the petition is not a part of the transcript and neither is Cox’s affidavit. It is the responsibility of the parties to provide this court with a record.

Based on what is contained in the briefs, however, we find appellant’s argument is without merit. A writ of error coram nobis is an excessively rare remedy meant to provide relief where none is available on appeal because the facts are not in the record. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). That is the situation here. If relief was to have been granted, it would have been when the writ was filed and not now on appeal. We have already denied the writ.

VIII. SUFFICIENCY OF THE EVIDENCE

For his final contention, the appellant challenges the sufficiency of the evidence. In doing so he admits that there was sufficient proof that either he or Michael Cox killed Officer Klein. He maintains, however, that without his statement, the admissibility of which he has challenged, there is insufficient evidence to establish which of the two committed the murder. We have already discussed the appellant’s confession and found that it was admissible. The appellant’s confession is a part of the evidence which is sufficient to support the conviction.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. The appellant was charged with nine felonies committed during a period of a few hours. At the beginning of his trial, he pled guilty to all of the felonies except the charges of capital murder and attempted capital murder, for which he was sentenced to death and 50 years, respectively. I disagree with the majority on two points. I believe the state erroneously argued evidence which was outside the record and introduced evidence of aggravating circumstances which should have been excluded.

First, the state’s attorney used a shotgun for demonstration purposes during the closing argument. He used the wrong gun in attempting to show how the appellant had fired twice and then reloaded for the purpose of being ready to shoot someone else. Aside from it being the wrong gun, the evidence did not tend to show the appellant had in fact reloaded the weapon. The worst thing about the incident was that the prosecuting attorney had trouble loading the gun and it jammed. No doubt this apparent reckless use of a loaded shotgun in the presence of the jury had a tendency to arouse fear and bias in the jury and inflame the passions of the jury. Suppose the gun had fired; would it have been all right if the court directed the jury to remove it from their minds? I don’t think so. I would condemn such activity before someone gets seriously injured or killed. I believe the defense attorney properly objected to this performance at the time it was taking place. I think the court should have stopped the demonstration and admonished the jury to disregard the performance of the prosecutor. There had been no proof presented to show that appellant had in fact reloaded the shotgun. Therefore, this part of the argument was outside the.record.

Secondly, I disagree with the majority in approving the procedure utilized by the court in the penalty phase of this trial. As evidence of aggravating circumstances, the jury was allowed to consider evidence that the appellant had previously committed other felonies which grew out of the conduct of the appellant during the period of his escape and the murder for which he was convicted in the trial under consideration. This trial commenced on March 4, 1985. On the same day appellant offered to plead guilty to several charges growing out of the same episode. The trial court entered an order which was dated March 7, 1985, in which the court attempted to nunc pro tunc the judgment to March 4, 1985. The jury verdict reflects appellant was found guilty of attempted capital murder and capital murder. At page 32 of the appellant’s abstract, it is noted that the jury found three aggravating circumstances and sentenced appellant to death by lethal injection. The amended felony information, pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977), charging the appellant as an habitual offender, commences on page 33. Following the amended information, the judgment is found at page 34, sentencing appellant on the crimes which had already been presented to the jury as aggravating circumstances. There does not appear to have been any separate proof that appellant had committed any prior felonies. These judgments should not have been presented to the jury because they had not yet been entered.

If this procedure is approved, then there is no reason why the court should not have stopped the proceeding after the jury announced its first verdict, on either the attempted capital murder or the capital murder, and informed the jury that now that he had been found guilty of one felony they could consider it in determining the other verdict.

We have not previously had any trouble with the wording of Ark. Stat. Ann. § 41-1303(3), as amended in 1977. In Hill v. State, 275 Ark. 71, 628 S.W.2d 285 (1982), we considered the identical provision wherein the appellant argued the jury improperly considered felony convictions that had simultaneously been entered. In rejecting Hill’s argument that the jury may have considered these felonies arising out of the same episode for enhancement purposes or as aggravating circumstances, we stated:

Appellant also argues that the jury may have improperly considered the six findings of guilt that they had just entered as felonies for purposes of enhancement and aggravation during the penalty phase of the trial. We find no merit to this argument. We can assume that the jury understood the court’s instructions and understood the verdict forms which refer to conviction for previous felonies. [Emphasis in original.]

The wording of the statute seems clearly to apply only to felonies committed at a prior time. The defendant in Hill committed the same-episode felonies at different times and places — the robberies at one place and the murder and attempted murder at a later time and several miles away — the same as in the instant case. The verdict forms submitted to the jury in Hill referred to convictions for previous felonies. Under Ark. Stat. Ann. § 41-1303(3), the same-episode crimes should not have been considered by the jury during the penalty phase for purposes of enhancement and aggravation.

The majority opinion on this point appears to be based upon the Commentary, which is not a part of the statute or our interpretation of it. The Commentary states that the prosecutor may now establish an aggravating circumstance through proof that the defendant previously committed another specified type of pífense.

I concur in the result because I do not think either error was prejudicial in this case. The defense did not discover that the prosecutor had used the wrong shotgun until after the trial, but this does not amount to newly discovered evidence, nor can I say with any degree of certainty that the erroneous conduct by the State in the closing argument had any effect on the verdict.

The reason the second error (sentencing phase) was not prejudicial is that two other aggravating circumstances were found by the jury, and the defense specifically waived any objection to the offering of the same-episode felonies in the penalty phase of the trial.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Gary HOGAN v. STATE of Arkansas
    CR 86-27
    712 S.W.2d 295
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Guy Jones, Jr., P.A., for appellant.

      Steve Clark, Att’y Gen., by; Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

On August 21, 1984, the appellant, Gary Hogan, was found guilty by the Little Rock Municipal Court of driving while intoxicated. He was sentenced on September 24, 1984. An appeal was taken to the Pulaski County Circuit Court for a trial de novo where he was also found guilty. On appeal to this court, appellant argues that the municipal court exceeded its jurisdictional authority by waiting more than thirty days before sentencing. We find no merit in appellant’s argument and affirm. Jurisdiction is pursuant to Sup. Ct. R. 29(l)(c).

Appellant contends that Ark. R. Cr. P. Rule 36.4 and Ark. Stat. Ann. § 75-2506 (Supp. 1985) were violated by the municipal court. Rule 36.4 states that after the verdict, “sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . . .” Section 75-2506 provides that a presentence report shall be provided within thirty days of a DWI conviction, but does not limit the time a court has in which to sentence a defendant.

In addition to the fact that we have held this thirty day provision of Rule 36.4 is not mandatory, Hoke v. State, 270 Ark. 134, 603 S.W.2d 412 (1980), appellant cannot rely on an error in the municipal court after he has received an entirely new trial in the circuit court, “as if no judgment had been rendered” in the municipal court. Ark. Stat. Ann. § 44-509 (Repl. 1977); Killion v. State, 260 Ark. 560, 542 S.W.2d 744 (1976). Appellant received a fair trial in the circuit court, unaffected by the proceedings in the municipal court, and therefore there is no basis for reversing the judgment. Killion, supra.

Affirmed.


text:
    Earnest HUFF v. STATE of Arkansas
    CR 86-40
    711 S.W.2d 801
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Lloyd R. Haynes, for appellant.

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

Appellant’s petition for Rule 37 postconviction relief was denied by the Pulaski Circuit Court after an evidentiary hearing. This appeal is from that denial and, accordingly, our jurisdiction is pursuant to Sup. Ct. R. 29(l)(e). We affirm.

The appellant was arrested in September, 1983 for burglary and theft of property. After his arrest, a ring was recovered from appellant which was identified as coming from a robbery committed August 10, 1983, in Sherwood, Arkansas. Appellant later gave a statement to a Little Rock police officer admitting the robbery. On December 12, 1983, appellant pled guilty to aggravated robbery and burglary and was sentenced to 10 years imprisonment for the burglary and 30 years for the aggravated robbery, with directions that the sentences be served concurrently. Appellant’s petition for postconviction relief was filed pro se. He is represented by counsel for this appeal, however.

The appellant alleged ineffective assistance of counsel as the basis for postconviction relief. The appellant and his attorney provided the only testimony at the Rule 37 hearing. In denying the relief, the trial court found he failed to present sufficient evidence to prove his allegations.

Counsel is presumed competent. Travis v. State, 283 Ark. 478, 678 S.W.2d 341 (1984). The burden of overcoming that presumption rests on the petitioner. Maddox v. State, 283 Ark. 321, 675 S.W.2d 832 (1984). When a guilty plea is challenged, as here, the sole issue is whether the plea was intelligently and voluntarily entered with the advice of competent counsel. Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). The appellant has the heavy burden of establishing that counsel’s advice was not competent. United States v. Cronic, 466 U.S. 648 (1984); Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Ineffective assistance of counsel with regard to a guilty plea can be shown only by pointing to specific errors by counsel. Crockett, supra. Alleged errors are to be evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both that counsel’s performance was so deficient that he was not functioning as the “counsel” guaranteed by the sixth amendment and that the deficient performance resulted in prejudice so pronounced as to have deprived the petitioner of a fair trial whose outcome cannot be relied upon as just. Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). A defendant whose conviction is based on a plea of guilty ordinarily will have difficulty in proving prejudice since his plea rests on the admission in court that he did the act with which he is charged. Crockett, supra.

On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984).

Appellant claims he was assaulted by police officers and forced to appear in a lineup without an attorney, although he requested one. He also maintains that he confessed because the police officer threatened to file additional charges against him if he refused, and that the police officer told him what to say in his confession. Appellant further argues that his attorney told him he would try to have that confession suppressed and then failed to do so. These claims of constitutional deprivation, because they occurred prior to the entry of his guilty plea, are not pertinent since the focus of inquiry in a collateral attack on a guilty plea is on the question of voluntariness of the plea as it relates to the advice rendered by counsel. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982), quoting, Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). Any other defenses, except jurisdictional defects, are considered waived by the appellant. Id.

Appellant also alleges that he was erroneously advised by his attorney that, if he pled guilty and received the 30 year sentence, he would be eligible for parole in four or five years. That promise of parole led him to plead guilty, according to the appellant, who also states that he was not guilty of the aggravated robbery charge. His attorney denies advising the appellant when he could be paroled prior to appellant’s guilty plea.

Before entering his plea, the appellant filled out a plea statement which stated that he was charged with a felony and no prior convictions. Appellant testified he thought that meant he would be sentenced as a first time offender, leading to the early parole. Both plea statements he signed also stated the minimum and maximum sentences he could receive, and included statements that his plea was not induced by force, promises or threats, and that he was satisfied with his attorney. Counsel is not required to advise his client about parole because that matter is not a direct consequence of his guilty plea, Bell v. North Carolina, 576 F. 2d 564 (4th Cir. 1978) cert. denied, 439 U.S. 956 (1978), and the voluntariness of a guilty plea is not undermined by a lack of explanation as to the mechanics of the parole system. Hunter v. Fogg, 616 F.2d 55 (2d Cir. 1980).

The United States Supreme Court has also held that erroneous advice by counsel as to eligibility for parole under the sentence agreed to in a plea bargain is not sufficient to satisfy Strickland’s requirement of prejudice where petitioner does not claim he would have pleaded not guilty and gone to trial had he been correctly informed. Hill v. Lockhart,_U.S__, 106 S.Ct. 366 (1985). We need not decide whether Strickland’s prejudice requirement is met where the appellant does claim he would have gone to trial had he been correctly informed, because here, the question is essentially one of credibility.

The appellant introduced into evidence a letter from his attorney dated December 16,1983, in which the attorney stated:

In accordance with our agreement last week when you entered your guilty plea and received a sentence of 30 years, I am writing this letter to advise you that I will represent you in any matter before the Arkansas Parole Board and will, after the appropriate amount of time (approximately 4 or 5 years) apply for early relief by way of parole and/or clemency on your behalf.

During the evidentiary hearing, the following occurred in reference to this letter:

Q. Okay. Now, did that tie in with your understanding with . . . [your attorney] when you signed the plea statement as to the effect of the no prior convictions plea?
Appellant: This is what really, just really made, I felt that this is what really clinched everything when I signed the plea statement with no prior, I said, I can go on and plead to this and I can go down and therefore, I can go up in four or five years and if I did get a year and I can do another year now and then go up and maybe go up and make a go of it with his help. Because I know of another inmate that had got out like this. So, this is really the reason that I signed this statement. And the letter here, you know, I felt was the clincher and really, you know, if it was not true I felt it was misleading on his part. Because really, you know, I felt that I would have went to court or took a chance on going through other avenues besides pleading guilty, you know, instead of pleading guilty with the Court.
Appellant’s attorney, on the other hand, testified as follows:
Q: Okay. And did you advise him as to his parole eligibility?
Attorney: I think this was, this was right after the Legislature had changed the parole eligibility. Penitentiaries were crowded. My discussion with Mr. Huff about parole was that after a period of time I would apply for clemency and/ or take advantage of any laws that were on the books at that time for early parole. I think I advised him by letter that we would do this. This was after the plea was over. Not before. I think I advised him there that I would apply for clemency and/or parole and if since —
Q: And had you — Did you advise him that parole eligibility was up to the Department of Corrections?
Attorney: I advised Mr. Huff, as I advise everyone who goes to the Penitentiary. That it’s their penitentiary, they run it to suit themselves. . . . I never advise anybody or. take it into consideration parole eligibility because it is something you have no control over. They change the laws and you go on. . . .
Q: And that’s what you told Mr. Huff?
Attorney: I’m sure of it.

Here, the trial court was basically presented with a swearing match: appellant claimed his attorney erroneously advised him that he would be paroled within 4 or 5 years and, based on that, he entered his guilty plea. The attorney claimed that the parole discussion took place after appellant entered his plea and that he never advised anyone to take parole eligibility into consideration when deciding whether to accept a negotiated sentence because the parole laws can change. The trial court evidently believed the attorney. Conflicts in testimony are for the trial judge to resolve, and he is not required to believe any witness’s testimony, especially the testimony of the accused since he has the most interest in the outcome of the proceedings, Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). We cannot say his findings are against a preponderance of the evidence.

Affirmed.


text:
    LOUISIANA AND NORTH WEST RAILROAD COMPANY and Joe R. YOUNGBLOOD v. James H. WILLIS, Administrator of the Estate of Jo Ann Willis WILLIAMS
    86-79
    711 S.W.2d 805
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986
    [Rehearing denied September 15, 1986.]

      Chandler & Thomason, by: Larry W. Chandler, for appellants.

      Mike Kinard, and Acchione & King, by: Harold King, for appellee.
   Jack Holt, Jr., Chief Justice.

Jo Ann Willis Williams was killed when she drove into the side of appellant Louisiana and North West Railroad Company’s locomotive. The locomotive had stopped at the crossing of Highway 19 and appellant’s track near Magnolia so that the front end blocked only her lane of traffic. The appellee, James H. Willis, administrator of the estate of Mrs. Williams, was awarded $5,000 in compensatory damages and $65,000 in punitive damages in an action against appellant for the wrongful death of Mrs. Williams. Appellant argues on appeal that both of these verdicts were clearly against the preponderance of the evidence and that the question of punitive damages should not have been submitted to the jury. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(o).

A jury verdict will be affirmed on appeal if, when viewing the evidence in the light most favorable to the appellee, there is substantial evidence to support the verdict. E.I. DuPont de Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). There was substantial evidence from which a jury could conclude that L&NW Railroad Company, through its employees, negligently caused the death of Mrs. Williams, but the evidence does not support a finding of wanton and conscious disregard for the rights and safety of others. Accordingly, we affirm as to actual damages and reverse and dismiss the judgment for punitive damages.

The testimony at trial established the following set of events which preceded the collision between Mrs. William’s car and the appellant’s locomotive. At approximately 9 p.m. on December 30, 1980, the appellant’s train was in the process of making a switching operation at the intersection of Highway 19 and the appellant’s track. The intersection was a grade crossing, meaning the crossing and the highway were on the same level. The three locomotives pulling the train were disengaged from the other cars, and the engineer pulled the locomotives completely across to the other side of the highway. He then backed the locomotives into position to be coupled with the other cars, clearing only one lane of the highway. The engineer testified that when the brakeman on the crew instructed him to stop, he set the brakes and looked up the road, at which time he realized he was still sitting partially across the highway. He said there was nothing he could do to change that until the cars were coupled. The engineer said the brakeman had initially flagged him across the highway but had gone to the back of the engine to the switch stand after the locomotive had stopped.

There were no signal lights or arms at the crossing, and after the locomotive had stopped in the intersection, there were no crew members flagging traffic, and no burning flares left on the road. Two signs were standing at the side of the highway giving notice of the crossing. The highway, had no light poles or other illumination. There were lights on the locomotive which remained in the crossing, and windows through which the cab lights could be seen, but because of the angle in which the tracks crossed the highway, the locomotive’s headlight faced slightly away from traffic traveling in the lane it blocked. The engineer said the bell was ringing during the entire operation.

The engineer estimated the locomotive had been stopped thirty to sixty seconds when he saw Mrs. Williams’s car approaching at a “high rate of speed.” He reached for the whistle cord, but the impact occurred before he could pull it. The speed limit was 35 miles per hour, and Mrs. Williams had a straight stretch of about a mile before the crossing.

The collision was also witnessed by a driver coming from the opposite direction on Highway 19. He said he rounded a curve before the crossing and saw a set of car headlights, which disappeared almost instantly. He did not see the locomotive or its lights until the collision. He ran up to the scene, where he saw no flares burning and heard no bells.

The investigating police officer testified that it was dark at the scene and that the signs on the side of the road were faded and difficult to see. He also said it had been raining prior to his arrival at the scene.

The appellant’s vice-president and the crew members all testified that no rules and regulations were broken in their switching operation that night. They stated that there is no requirement of flagging traffic or setting flares or other warnings after the crossing is occupied by a train. We have also held that it is generally not required to have signals after the train has entered the crossing as the train itself stands as a warning to drivers. St. Louis S.W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S.W.2d 282 (1957); Lloyd v. St. Louis S.W. Ry. Co., 207 Ark. 154, 179 S.W.2d 651 (1944). An exception is when the crossing is shown to be abnormally dangerous and the railroad may then have a duty to provide active warning devices. Chicago, Rock Island & Pacific R.R. Co. v. Gray, 248 Ark. 640, 453 S.W.2d 54 (1970). There was insufficient proof in this case, however, to show that the crossing was abnormally dangerous, and no jury instruction was requested on the extra precautions necessary at those crossings.

The evidence was sufficient to raise a jury question on the issue of appellant’s negligence. There is no steadfast rule that there can be no liability on the part of the railroad company when a car is driven into the side of the train. The correct approach to analyzing cases of this nature is explained in Hawkins v. Mo. Pac. R.R. Co., 217 Ark. 42, 228 S.W.2d 642 (1950):

This Court has several times held that injured plaintiffs could not recover against railroad companies when automobiles were driven into the side of trains standing still on a highway crossing, [citations omitted] From these cases it is conceivable that one might leap to the conclusion that this Court has laid down a rule of law that a plaintiff can never recover when his automobile is driven onto a highway-railroad crossing into the side of a train. A reading of the cases cited makes it very clear that we have not laid down any such broad and all-embracing rule. We have not chosen to disregard the governing abstract principles of negligence and contributory negligence to the extent of saying that there never will be a crossing collision of that sort in which the railroad company or its employees are guilty of negligence, nor have we said that injured plaintiffs figuring in such collisions will always and invariably, in every case that arises, be guilty of negligence equal to or greater than that of the defendant railroad. On the contrary, in Fleming, Admrx. v. Mo. & Ark. Ry. Co., 198 Ark. 290, 294, 128 S.W.2d 986, 988, one of the cases cited supra, we said:
“It is the settled rule that whether failure of a railroad company to station a flagman at a crossing, constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track.”

In Hawkins, the crossing was two or three feet above the rest of the highway so that approaching cars could see through to the other side of the crossing, and the doors on the boxcar were open. Traffic lights on the other side of the track were visible and as the plaintiff's approached the crossing at 2 a.m., undimmed lights shone directly in the driver’s line of vision, creating the appearance that the road was clear. We held that these facts presented a question for the jury as to whether the railroad company was negligent in not providing some form of warning to approaching traffic.

As in Hawkins, there was evidence here that the appellant created, “unintentionally but perhaps carelessly, something like a trap for unwary night drivers.” The locomotive was blocking only a portion of the highway, with its headlights angling away from the appellee’s direction of travel. A driver from the other direction stated he also did not see the train until Mrs. Williams’s car appeared underneath it. Considering the darkness of the crossing, the weather, and the absence of watchmen or other appropriate warning signals during the time the locomotive partially occupied the crossing, the jury was justified in finding that the appellant was negligent.

Appellant relies heavily on Missouri Pac. R.R. Co. v. Purdy, 263 Ark. 654, 567 S.W.2d 92 (1978), where we held the trial court should have directed a verdict in favor of the defendant railroad company where the plaintiff “simply drove into the side of the train.” In that case, however, the plaintiff admitted he had been drinking, a state trooper measured skid marks of 93 feet, there was testimony the plaintiff was driving in excess of 50 miles per hour in a 35 mile per hour speed zone, the accident occurred at 5:45 p.m. and, most importantly, the train presented a solid profile completely across the highway. The facts in Purdy clearly distinguish it from the present case.

Although the evidence justified a finding of negligence, the issue of punitive damages should never have been submitted to the jury. Punitive damages “are not a favorite of the law.” Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160 (1974). “Negligence alone, however gross, is not sufficient to sustain such an award. St. Louis, I.M. & S.Ry. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1909). Gross negligence, without willfulness, wantonness, or conscious indifference, does not justify infliction of punitive damages. St. Louis S.W. Ry. v. Evans, 104 Ark. 89, 148 S.W. 264 (1912).” Phillips, supra.

“Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor.” Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982).

The following quote from Dysart supra, illustrates the insufficiency of appellee’s proof on this issue:

The negligence consisted in failing to observe the rules laid down for the operation of trains at crossings. If these rules had been observed on the part of defendant’s servants, no injury would have occurred; and the defendant is liable because of the negligence of its servants in the nonobservance of those rules. But this was gross negligence, and nothing more. There is nothing to show that the trainmen were aware of the perilous situation, or that there was any wilfullness on their part or conscious indifference to the consequences of their negligent act.

The appellant’s crew members did nothing that could be termed wanton and willful, or a conscious disregard of the rights and safety of others, and there were no safety regulations or requirements violated.

Appellee asserts that certain correspondence between the appellant’s vice-president and a highway department official, in which the highway department initiated plans for placing signals at the crossing nine months before the accident occurred, shows a conscious disregard for safety by appellant. The plans had temporarily stalled because federal funding for the project had not yet been authorized. There was no other showing that this crossing was known to be or even was abnormally dangerous, so that warning devices would be required. The fact that appellant elected to wait for the funding rather than finance the signals cannot be said to be willful and wanton negligence. Railroads are obviously not required to have active warning devices at every crossing.

For these reasons, the case is reversed in part with instructions to enter judgment only for compensatory damages.

Affirmed in part and reversed in part.


author: George Rose Smith, Justice.

text:
    Joe W. CLINE, Jr., d/b/a CLINECO ERECTORS, INC. v. B.G. CONEY COMPANY and NORTH ARKANSAS WHOLESALE, INC.
    86-130
    711 S.W.2d 815
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Gibson & Ellis, by: Sam Ed Gibson, for appellant.

      William R. Butler, for appellee.
   George Rose Smith, Justice.

This is an action brought by the appellant, Clineco Erectors, to enforce a mechanic’s lien upon property owned by an appellee, Arkansas Wholesale. On motion for summary judgment the trial court dismissed the action on three grounds, one being that a necessary party, Lashlee Steel Company, had not been joined as a defendant within the time allowed by statute. The case was transferred to us by the Court of Appeals as involving an interpretation of a procedural rule. We need not reach this point, because the case was correctly dismissed for want of a necessary party.

Arkansas Wholesale employed B.G. Coney Company as the general contractor for the construction of a building in White county. Coney subcontracted part of the work to Lashlee Steel, which in turn employed the plaintiff, Clineco, to erect the building. Clineco alleges that there is a balance of $4,253 due for overtime wages paid on the job, which was completed on October 15, 1984.

The statute, as interpreted by court decisions, requires the lien claimant either to file its account with the circuit clerk or to bring suit within 120 days after the completion of the work. Ark. Stat. Ann. § 51-613 (Repl. 1971). On February 6, 1985, the 114th day, Clineco filed this action against the landowner and the general contractor. On February 15, the 123rd day, Clineco joined Lashlee Steel as a defendant, though no service of process was ever had on Lashlee. Clineco admits that its contract of employment was only with Lashlee, not with Coney.

The case is controlled by our reasoning in Simpson v. J.W. Black Lbr. Co., 114 Ark. 464, 172 S.W. 883 (1914), which we have reaffirmed in later cases. Burks v. Sims, 230 Ark. 170, 321 S.W.2d 767 (1959); B.S.C., Inc. v. McKinney, 263 Ark. 110, 562 S.W.2d 600 (1978). In the Black case the materialman, which had sold lumber to the contractor, brought suit only against the owners, who had no contract with the materialman. In holding that the contractor was a necessary party and that it was essential that he be joined as a defendant within the 90 days then allowed, we said:

The contractor was a necessary party and should have been made codefendant with the owners, who knew nothing about what amount of materials had been furnished, nor how much of the materials furnished had gone into the construction of the improvement. He was a necessary party, both for his own and the owner’s protection. The owners had the right to look to him for the payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement, and can not be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered.

The same principle applies here. Neither the owner nor the general contractor had a contract with Clineco. The contractor had paid Lashlee Steel. It was essential that Lashlee Steel be joined, within 120 days, to settle all the issues in one lawsuit.

Affirmed.


text:
    Bettye KREMER and William KREMER v. BLISSARD MANAGEMENT & REALTY, INC., et al.
    86-85
    711 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Davidson Law Firm, Ltd. by: Charles Phillip Boyd, Jr., for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee.
   George Rose Smith, Justice.

This is a suit for personal injuries suffered by Bettye Kremer when she stumbled at night outside the condominium she and her husband were renting from its owner, Joan Palmer, who in turn had employed the appellee, Blissard Management & Realty, to manage the condominium. Mrs. Kremer attributed her fall to Blissard’s failure to replace a burned-out light bulb which Mrs. Kremer had reported. Although the suit was based on negligence, it seems to have been submitted to the jury as one for breach of an oral contract. The verdict was for Blissard. The appeal comes to this court as a second appeal, under Rule 29(l)(j). Blissard Management & Realty v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984).

Counsel for the appellants, without objection, designated only a small part of the record for the presentation of the two arguments for reversal. First, during the testimony of Dwight Blissard, Jr., he identified two written contracts: the management agreement between Mrs. Palmer and Blissard and the lease signed by Blissard and the Kremers. Both documents were admitted into evidence. The court, however, refused to allow counsel to stop at that point and have the witness read paragraphs of the contracts to the jury. The court explained that the documents were in evidence and could be used in the closing argument. Counsel then asked the witness Blissard if under the management agreement he had to maintain the leased premises. The court interposed, stating its position:

Just a minute, Mr. Boyd. I still haven’t made my point clear to you. And that is, Mr. Blissard, he may have gone to law school; I don’t know. But it is presumed that he didn’t. And you see, the question of law in a court proceeding is for the Court. The question of fact is for the jury.

There was no error and certainly no hint of prejudice. The trial court stated the law correctly.

Second, at the end of the trial counsel for the plaintiffs asked the court to give a number of instructions that would have left the determination of questions of law to the jury. For example, the amended complaint had alleged that Mrs. Kremer was a third party beneficiary of the management agreement, so that Blissard’s duty to maintain the common areas was in part for her benefit. One proffered instruction would have defined a third party beneficiary and closed by telling the jury that “whether or not Bettye Kremer was a member of the class of individuals intended to be a beneficiary of that contract, is for you to determine.” Other instructions would have told the jury to interpret the contracts according to their plain meaning, to construe ambiguities against the defendants, who prepared the contracts, and so on.

The requested instructions were properly refused. The construction and the legal effect of contracts are to be determined by the court as a question of law, except in instances in which the meaning of language depends on disputed extrinsic evidence. Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W.2d 558 (1972). That principle was recognized and applied by the court below. In admitting the lease into evidence the court remarked that during a recess “we’ll see what we need to do in the way of an interpretation of its legal significance to the jury.” By proceeding in that way the court might, if the occasion arose, first have construed the management agreement to require Blissard to maintain the common areas and then have instructed the jury that it was Blissard’s duty to use ordinary care to maintain the common areas in a reasonably safe condition. Jurors are not trained in the law. They cannot be expected to examine a contract, decide what duties it imposes, pass upon the facts, and return their verdict accordingly. The plaintiffs’ requested instructions would have resulted in that impermissible procedure.

Affirmed.


text:
    Marynell Milburn SUTTON, and Herbert COLLINS and John Rogers COLLINS, Trustees v. Margaret F. MILBURN, Executrix of the Estate of J.B. Milburn, Jr.
    85-317
    711 S.W.2d 808
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986
    [Rehearing denied September 15, 1986.]

      Wright, Lindsey & Jennings, and Bailey, Trimble & Sellars, for appellant.

      Perroni & Rauls, P.A., by: Stanley D. Rauls, for appellee.
   George Rose Smith, Justice.

This is a petition for the construction of a will. The testator, John Collins, was engaged for many years with his brother Herbert in managing property and estates. John died in Little Rock on January 4, 1965, a few days before his 64th birthday. He was survived by his wife Blanche, 58, his mother, Norrie Collins, 87, his brother Herbert, 55, and three sisters, Mona Collins Milburn, 62, Avanelle Collins Rogers, 60, and Anne Beth Collins Nanson, 53. The bulk of the estate was left in trust to two trustees, the testator’s brother Herbert and their nephew, John Collins Rogers. As a result of their management, the conversion of real estate into more productive investments, and an increase in the value of a block of corporate stock, the worth of the trust property had increased substantially when the trustees filed the present petition in 1985.

The Collins trust was to last at least 20 years, with the income being distributed to the testator’s mother, his widow, and his heirs at law. On the 20th anniversary of the testator’s death the trustees filed this petition to have the estate reopened for the determination of heirship. The question presented by the petition is: Should the testator’s “heirs at law,” who are to receive the trust property at the expiration of the trust, be determined as of the date of the testator’s death in 1965 or as of the date of the death of the surviving life beneficiary, Blanche (who died on June 8,1985, while the petition was pending in the probate court)?

The probate judge chose a third date, that of the death of the testator’s mother on June 12, 1967. That choice was based on a legal theory that avoids incongruities when one of two or more life beneficiaries is also the testator’s sole heir, as John Collins’s mother would have been under Act 52 of 1933, § 1, which was in force at his death. For the theory adopted by the trial judge, see Restatement of Property, § 308, Comment k (1940); Delaware Trust Co. v. Delaware Trust Co., 33 Del. Ch. 135, 91 A.2d 44, 38 ALR 2d 318 (1952). We need not weigh the trial court’s theory, because the view that the heirship is to be determined as of the date of the testator’s death treats the main issue more directly and reaches the same result on the facts of this case.

Before turning to the provisions of the Collins will, we note that the distribution of only one eighth of the trust property is affected by this dispute about heirship. The testator’s brother and two of his sisters were still living at Blanche’s death; each receives one fourth under any view. The third sister, however, died on May 5, 1967, survived by two children, J.B. Milburn, Jr. and the appellant Marynell Milburn Sutton. If the heirs are determined as of the testator’s death in 1965, then upon the death of the testator’s sole heir, his mother, the one-eighth interest now in question would have passed by her will to J.B. Milburn, Jr., whose mother had predeceased her own mother, Norrie. That vested one eighth would then have passed by J.B. Jr.’s will to his widow, the appellee Margaret F. Milburn. On the other hand, if the heirs are determined as of Blanche’s death in 1985, J.B. Milburn, Jr. had died three months before Blanche’s death, without descendants; so Mona Milburn’s entire one-fourth share would have vested in her daughter, the appellant Marynell Milburn Sutton.

John Collins’s will was executed on January 27,1964, about a year before he died from a heart attack on January 4,1965, and seven weeks after he married his second wife, Blanche. The will consists of ten numbered paragraphs, after an introductory sentence. All the paragraphs are short except the seventh, in which the trust is created. We quote that paragraph and summarize the others.

First: [The usual direction that debts be paid.]
Second: [A devise of a home to the testator’s wife, Blanche, plus a legacy of $5,000, with minor details.]
Third: [A gift of $10,000 to a church.]
Fourth: [A legacy of $2,500 each to the testator’s brother and three sisters, who are named.]
Fifth: [A legacy of $ 1,000 each to the testator’s seven nephews and nieces, if living, otherwise to their “heirs at law.”]
Sixth: [Legacies to three domestic employees.]
Seventh: The remainder of the rest and residue of my Estate I give, devise and bequeath to Herbert Collins and John Collins Rogers in trust with all the right, title and power in handling same that I now possess for the uses and purposes set out hereinbelow.
Out of the net income my Executors and/or Trustees shall pay to my wife, Blanche H. Collins, the sum of $700.00 cash per month beginning immediately after my death and for the duration of her lifetime, and additional amounts out of the income of my Estate which my Trustees may deem necessary or in the case of illness or any unforeseen contingency if, in their opinion the $700.00 monthly payment does not appear to be adequate. In the event the current year’s income is not sufficient for the monthly payment and additional amounts which my Trustees are authorized to pay to my wife, then my Trustees shall pay same from prior years accumulated, undistributed income, if any, otherwise, out of the corpus of my Estate for whatever amount may be required in excess of income. If my wife remarries, the monthly payments and additional amounts shall be terminated at that time.
Out of the net income my Executors and/or Trustees are to pay to my Mother, Mrs. Norrie M. Collins, the sum of $200.00 cash per month beginning immediately after my death and for the duration of her lifetime, as well as any additional amounts which my Trustees deem are necessary or in case of illness or any unforseen contingency. In the event there is not sufficient income from the current year or prior years accumulated, undistributed income, such additional amounts as may be needed shall be paid from the corpus of my Estate.
Whatever net income is remaining at the end of each calendar year, after the payment of amounts which are to be paid from income, shall be invested and after the accumulated, undistributed net income amounts to a total of $20,000.00, all the net income not needed for my wife Blanche H. Collins, and my Mother, Mrs. Norrie M. Collins, under the foregoing provisions shall be distributed share and share alike to my heirs at law, with the further provision that if part of said $20,000.00 is used for the purposes set forth, a like amount shall be retained out of the succeeding year’s net income so that the accumulated, undistributed net income of $20,000.00 shall be maintained before resuming payments of net income to my heirs at law.
After the death of my wife or her remarriage, my Trustees are authorized to use out of the corpus of my Estate $5,000.00 for each of the children of my nieces and nephews now living or that may be born hereafter, for education purposes after finishing High School, to be paid out as in the discretion of my Trustees is advisable.
After a ten year period following my death has expired, or the death or remarriage of my wife, whichever is later, my Trustees shall determine how much of the corpus of my Estate, including prior years accumulated, undistributed net income on hand, if any, will be needed for payment of bequests which I provide be paid from income and the amounts needed for educational purposes for the children of my nieces and nephews, and out of the corpus in excess of the amounts reserved, my Trustees are authorized to distribute one-half of the remaining corpus of my Estate, share and share alike per stirpes to my heirs at law. The Trustees shall take sufficient time for making said distribution as would be for the best interest of the Estate, as it might be necessary to sell some things that cannot be distributed in kind in order to make the distribution. Partial distributions can be made.
After a twenty year period following my death has expired, or the death or remarriage of my wife, whichever is later, this Trust shall ipso facto cease and whatever remains shall go share and share alike per stirpes to my heirs at law, my Trustees to have whatever time is deemed for the best interest of my Estate to dispose of those assets necessary to make an equal distribution. Before making the distribution after twenty years has expired following my death or the death or remarriage of my wife, whichever is later, my Trustees shall retain sufficient liquid assets or income producing real estate to provide for educational purposes for the children of my nieces and nephews and/or any amounts which are to be paid under the provisions of this will or any codicil to same.
Eighth: [Directions for the liquidation of Collins & Company, the partnership with Herbert Collins.]
Ninth: [All beneficiaries to receive their bequests without deduction for estate taxes.]
Tenth: [Appointment of Herbert Collins and John Collins as executors and trustees, with the survivor to serve alone upon the death of either.]

The rival lawyers support their arguments by stressing distinctly different aspects of the problem. Counsel for the appellee, arguing for the determination of heirship as of the date of John Collins’s death, relies upon two familiar rules: One, the law favors the early vesting of estates when a choice is to be made, and two, the word “heirs” is a legal term that refers both by the common law and by statute to those who are entitled by law to inherit property from a person who dies intestate. The substance of that definition of “heir” is contained in our statute of descent and distribution, Ark. Stat. Ann. § 61-131 (Repl. 1971), and in our Probate Code. Section 62-2003 (j). We have often determined heirship as of the date of a pertinent death, but we have not allowed that principle to override the clear intention of a testator. The appellee cites Bowman v. Phillips, 260 Ark. 496, 542 S.W.2d 740 (1976), as being closely on point. That opinion, however, construed a deed, not a will. Wills were involved in Wallace v. Wallace, 179 Ark. 30, 13 S.W.2d 810 (1929), and Griffin v. Moon, 238 Ark. 692, 384 S.W.2d 243 (1964). In Wallace the will seemed to create a trust for the management of farmland for 25 years, but the court held that the will did not create a trust nor even a remainder. Consequently title vested at the death of the testator, whose devisees could immediately convey a clear title. In Griffin the testator left his farm to his wife, “with the remainder thereof on her decease or marriage, to my said children and their children, respectively, share and share alike.” The testator’s children had no children at his death. The court stressed the rule of early vesting in holding that title vested in the testator’s children at his death. As usual, however, the court qualified the principle favoring early vesting by adding “in the absence of a contrary intention of the testator appearing from the will.”

Historically, the emphasis on early vesting and on a fixed construction of the word “heirs” arose as part of the developing law of real property in feudal times and thereafter. Those common law rules governing the creation and conveyance of estates in real property.are surely the most technical that have managed to survive to the present. For instance, a deed to a grantee and his heirs conveys nothing to the heirs; the grantee takes the fee. Again, a deed to a grantee for life with remainder to his heirs conveys the fee simple to the grantee, by the application of the Rule in Shelley’s Case. In fact, that rule is so inflexible that, in commenting on a Pennsylvania case, we noted that the devisee took the fee simple under the Rule in Shelley’s Case even though the testator had said in his will that “in no event whatever shall the fee simple vest’*' in that devisee. But it did, the Rule being applied despite the testator’s contrary intention. Bishop v. Williams, 221 Ark. 617, 255 S.W.2d 171 (1953).

We are not questioning the wisdom of the strict principles applied in the law of real property. It is essential that the law governing the ownership of land be absolutely certain, regardless of logic. When a person buys a home, the law must be able to assure him that his title will be upheld by the courts, if challenged. The surest way yet found to reach that goal is to use language that through centuries has attained a rigid meaning. Early vesting also has a practical advantage, in the avoidance of contingent remainders that would make it impossible for any person or combination of persons to convey good title until the contingency occurred.

Counsel for the appellants, in presenting their side of the case, urge the court to give effect to John Collins’s intent, as reflected by the language of his will, rather than to the rigid rules of the common law. They have the stronger position. In some instances, of course, the common law rules give effect to the testator’s intent; there is no problem. In the case at bar, for example, by the fifth paragraph of the will the testator left a legacy of $1,000 to each of his seven nephews and nieces “if living, otherwise to their heirs at law,” the legacies to be payable out of the corpus of the estate “as soon after my death as my Executors deem it convenient to do so.” There can be no reasonable doubt about the heirship defined by that language.

When, however, the common law rules of construction, as distinguished from the rules of law, would bring about a result manifestly contrary to the testator’s intention, it is the intention that must prevail. We doubt if our first statement of this principle, made in 1840, was too broad: “The object of the courts of all countries, in the construction of wills, is to arrive at the true and real intention of the testator. To this end all the rules upon the subject necessarily tend, and upon it they are all made to turn.” Moody v. Walker, 3 Ark. 147, 185 (1840). A companion rule, though not so broad in its application, was quoted from a New York case: “[I]f there is a gift of the principal, unconnected with the time of payment, then the legacy vests; if there is no gift except at the time of payment, then it does not vest until the time arrives; and if it never arrives, the legacy is lapsed.” P. 186. The Moody opinion is still the law.

The Collins will provides, in . the final paragraph under Seventh: “After a twenty year period following my death has expired, or the death or remarriage of my wife, whichever is later, this Trust shall ipso facto cease to exist and whatever remains shall go share and share alike to my heirs at law,” with the trustees having ample time to make an equal distribution. Later in the paragraph the testator directs that the trustees retain sufficient assets to provide for the specified educational purposes of his grandnephews and grandnieces.

Herbert Collins was the only witness below. John Collins was not a lawyer, but he had been the trust officer of a bank that closed, which led to his being named as trustee or executor for estates, guardianships, and trusteeships. After John’s second marriage, in November, 1963, he started discussing with Herbert what he planned to do about his estate. The will was dictated by John, in Herbert’s presence, during several sessions in the month of January. It was evidently prepared with great care and certainly expressed the testator’s desires with remarkable clarity.

The testator’s primary concerns were for his mother, whom he had supported since he was 22, when his father died, and for his wife. The corpus of the trust was made available for their support. Apart from gifts to the church and to domestic employees, all the rest of the principal and income of the estate goes to or for the benefit of the testator’s immediate family or their descendants. For at least 20 years the trust property is to be preserved for the benefit of the family. Perhaps long after the expiration of the 20 years part of the estate may still be kept in trust for the education of younger members of the family.

A determination of heirship as of the date of the testator’s death would have no advantage, as far as the accomplishment of his intentions is concerned. With respect to real property, for which the rule of early vesting was created, there are often advantages in making the owner’s interest in the property readily transferable. No such advantage is discernible here. To the contrary, John Collins would no doubt have been strongly opposed to any thought that a beneficiary’s interest in the principal or income of the trust could be sold to outsiders, with obvious possibilities of resulting dissension. Similarly, there is no inference to be drawn from the testamentary plan that the testator meant for the ownership of any part of his estate to stray outside the family if one or more of the beneficiaries were to die without descendants before the expiration of the 20 years. Yet that is what could and did happen if the heirship is determined as of the testator’s death rather than at a time when a determination becomes necessary. After studying the case we are firmly convinced that John Collins’s fundamental purposes in creating the trust can best be carried out by fixing the determination of heirship as of the date of the death of Blanche Collins.

Reversed and remanded for the entry of a decree conforming to this opinion.

Purtle, J., not participating.


author: Darrell Hickman, Justice.

text:
    Dawn Hall BAKER v. STATE of Arkansas
    CR 85-227
    711 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Arthur L. Allen, and Deborah Sailings, Deputy Public Defenders, by: Jerry Sailings, Deputy Public Defender, for appellant.

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

Dawn Hall Baker was convicted by a jury of three counts of capital felony murder and sentenced to three terms of life without parole. We affirm the convictions.

Baker met Charles Franklin Stoner, a taxi driver, on October 29, 1984. On November 26, they robbed Capitol Cab Company, Stoner’s former employer. During the robbery, Stoner stabbed and killed the dispatcher, Roma Silvey. On November 29 Stoner and Baker went to Mark Graves’ apartment in Maumelle. Stoner knew Graves from driving him in his taxi. Graves was paralyzed and confined to a wheelchair. Stoner stabbed Graves three times, killing him, and the couple took his wallet and a box of foreign coins. On December 2, the couple went to Ken and Laurie Goodwin’s house. The Goodwins had also ridden with Stoner. They were both blind and Mrs. Goodwin is hard of hearing. Stoner stabbed Mr. Goodwin six times, killing him. Stoner and Baker took Goodwin’s wallet and Mrs. Goodwin’s purse. The couple was arrested December 10 in Lenoir, Tennessee, after using Ken Goodwin’s credit card.

Baker’s first argument is that the statements she made after her arrest should have been suppressed because they were obtained while she was under the influence of narcotics and after she was interrogated for over 24 hours without proper food, medical attention or sleep. After the arrest, Baker was placed in a patrol car, orally advised of her rights and questioned. She executed a written rights form at the scene at 9:51 p.m. and again at about 10:50 p.m. when she dictated a statement. She was taken to a cell between 1:30 and 2:00 a.m. Arkansas officers arrived the next day and she was again questioned at about 12:15 p.m. The interview was taped and lasted until 1:00 p.m. Baker was then driven to Little Rock. She arrived at 10:00 or 11:00 p.m. and was again advised of her rights at 11:55 p.m. A taped interview between her and a deputy prosecuting attorney began at 12:21 a.m. and ended at 12:55 a.m. A transcript of that interview was the only statement admitted into evidence. Baker was admitted to the hospital December 23 for symptoms of drug withdrawal.

Baker moved to have her statements suppressed. After a hearing the trial court denied the motion. At the hearing Baker maintained that she injected herself with Dilaudid about an hour before her arrest. She said that she hid ten more Dilaudid tablets in her boots and took them over the course of the next few days. She said that she began suffering withdrawal symptoms at about 1:00 or 2:00 a.m. on December 11, while being questioned by the Tennessee authorities. She said that she was interrogated all night and was not taken to her cell until morning when breakfast was brought to her. At that time she was so sick from withdrawal, she was unable to eat. Baker contended that she did not sleep that night nor on the way to Little Rock the next day.

Her testimony was directly contradicted by the officers involved. The arresting officer, who first questioned Baker, said that she was very willing to make a statement and did not seem to be under the influence of drugs or alcohol. The officer who took her statement at headquarters in Tennessee said that her mental and physical condition was good and that she did not appear to be under the influence of drugs or alcohol. The Tennessee authorities testified that she was taken to a cell at 1:30 or 2:00 a.m., given some food at that time, and that prisoners are ordinarily awakened at 7:30 and given breakfast at 8:00.

The Arkansas officers who questioned Baker the next day testified that Baker was cooperative and did not appear to be under the influence of drugs or suffering from withdrawal. She was taken to Little Rock and the officer who transported her said that they ate and that she slept for a couple of hours on the way. After Baker’s arrival at 10:00 or 11:00 p.m., she was interviewed at 12:21 a.m. The prosecutor who interviewed her testified at the hearing that she was quite lucid and did not seem to be under the influence of drugs or alcohol. She agreed to make the statement and was talkative.

When an in-custody statement is challenged, the state has the burden of proving by a preponderance of evidence that the statement was voluntarily given. On appeal we make an independent determination of this issue and affirm the trial court’s ruling unless it is clearly wrong. Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982).Wedo not find such error. Each of the officers testified that they saw no evidence that Baker was under the influence of drugs. She appeared to understand her rights and was cooperative in giving the statements. None of the interviews were particularly long. It was for the trial court to weigh the evidence and resolve the credibility of the witnesses. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981). The trial court believed that Baker’s faculties were not impaired and that a bed was provided for her in Tennessee while she was in custody. It rejected her testimony that she was not permitted to sleep, and we cannot say that finding was clearly against the preponderance of the evidence. We affirm the finding that Baker’s statements were voluntarily given.

Baker’s next two arguments have been settled. The overlap between our first degree murder and capital murder statutes has been upheld. Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984). Death qualified juries are constitutional. Lockhart v. McCree,_U.S._, 106 S.Ct. 1758 (1986).

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, the state has raised what it perceives may be a prejudicial error. Baker argued in the penalty phase of her trial that pecuniary gain should not be submitted as an aggravating circumstance which would justify the death penalty, since that duplicates an element of the crime of robbery/murder. The argument is based on Collins v. Lockhart, 754 F.2d 258 (8th Cir. 1985), cert. denied,_U.S__, 106 S.Ct. 546 (1986), where the Eighth Circuit found that the state violates the eighth and fourteenth amendments of the United States Constitution by using an aggravating circumstance as an element of the underlying crime.

Since Baker received a sentence of life without parole, instead of the death penalty, she could not have been prejudiced by the submission of the aggravating circumstance. See Williams v. State, 260 Ark. 457, 541 S.W.2d 300 (1976); Sumlin v. State, 266 Ark. 709, 597 S.W.2d 571 (1979).

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.


author: John I. Purtle, Justice.

text:
    SKAGGS COMPANIES, INC. v. Loraine WHITE

      86-28

    711 S.W.2d 819
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986

      Wright, Lindsey & Jennings, by: Edwin L. Lowther, for appellant.

      Gary Eubanks & Associates, by: William Gary Holt and James Gerard Schulze, for appellee.
   John I. Purtle, Justice.

The appellee obtained a jury verdict for damages in the amount of $48,500.00 in a slip and fall case. This appeal is from the refusal of the trial judge to grant a directed verdict in favor of appellant at the close of the appellee’s case and at the close of all the evidence. We agree with the appellant that the motion should have been granted.

Both sides agree on the law which controls this case. To establish liability on the part of the owner or operator of a store, the plaintiff must prove the presence of the substance on the floor resulted from the negligence of the owner, or that the owner knew, or reasonably should have known, of the presence of the substance on the floor and that he failed to use ordinary care to remove or control it.

The appellee stepped into a clear gel-like substance which was only a few inches in circumference. The substance was located in a well-traveled aisle of the Skaggs Alpha Beta store located at 8415 West Markham Street in Little Rock, Arkansas. There was no color or odor to the substance which caused the appellee to slip and fall. There was no evidence offered, from any source, to indicate the length of time the substance had been on the floor or how it got there. No one saw it before the appellee fell. Skaggs offered testimony that an employee had walked down the aisle five minutes before the occurrence and did not observe the foreign matter. There was no evidence that the substance on the floor was part or parcel of anything sold by the appellant. In fact there is a complete absence of anything identifying the substance or indicating the length of time it had been on the floor. There is no presumption of negligence from the mere fact that a customer slips and falls while in the store. Moore v. Willis, 244 Ark. 614, 426 S.W.2d 372 (1968). The evidence in the present case is almost identical to that presented in Jackson & Kroger Co. v. Hemphill, 245 Ark. 699, 434 S.W.2d 818 (1968). In Hemphill we reversed the ruling of the trial court and held that the trial court erred in refusing to grant the directed verdict motion of Kroger at the close of all the evidence. See also, Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 708 S.W.2d 623 (1986).

The fact that the appellee suffered severe injuries and sustained much expense is not evidence of negligence. Under the facts of this case, we have no choice but to reverse and dismiss.

Reversed and dismissed.


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

text:
    SCHUECK STEEL, INC. v. McCARTHY BROTHERS COMPANY
    86-96
    711 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered July 7, 1986
    [Supplemental Opinion on Rehearing October 20, 1986.]
    [Rehearing denied November 24, 1986.]

      Owens, McHaney & Calhoun, by: John C. Calhoun, Jr., for appellant.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.

       Holt, C.J., not participating.

   Robert H. Dudley, Justice.

Appellant Schueck Steel, Inc. filed suit to foreclose, a lien against appellee McCarthy Brothers Company. The trial court granted a default judgment against appellee. Later, the trial court set aside the default judgment. Appellant appeals, contending that the trial court erred in setting aside the default judgment. We dismiss the appeal because the setting aside of a default judgment is not a final judgment by the trial court. Ark. R. App. P. 2.

We have frequently held that we will not decide the merits of an appeal when the order appealed is not a final one. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Roberts Enterprises, Inc. v. Arkansas Highway Commission, 277 Ark. 25, 638 S.W.2d 675 (1982). In all of these cases we have stated that in order for a judgment to be appealable, it must dismiss the parties or conclude their rights to the subject matter in controversy. Here, the parties are still before the trial court, and the rights in the subject matter remain to be decided.

717 S.W.2d 816

Owens, McHaney & Calhoun, by: John C. Calhoun, Jr., for appellant.

Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.

The appellee does not raise the issue of appealability, but the issue is a jurisdictional one which we raise on our own in order to avoid piecemeal litigation. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982).

Appeal dismissed.

Supplemental Opinion on Rehearing October 20, 1986

Robert H. Dudley, Justice.

In the original opinion, we dismissed this appeal on the basis that the order setting aside a default judgment was not a final order. In the petition for rehearing, the petitioner argues that we erroneously applied the “final order” rule because the default judgment in the case was set aside over ninety days after the judgment was entered. The petitioner’s argument is valid. In Maxwell v. Maxwell, 240 Ark. 29, 397 S.W.2d 788 (1966) we said: “The order setting aside the default judgment at a term subsequent to the one in which the judgment was rendered is a final order and appealable.” A.R.C.P. Rule 60(b) has substituted a fixed period of ninety days for the term of court. Since this order setting aside the judgment was entered more than ninety days after the judgment was entered, it is a final and appealable order. Therefore, we grant the petition for rehearing and reinstate the appeal. In this supplemental opinion we affirm the case on its merits.

The material facts of the case are that Missouri Pacific Railroad Company contracted with appellee, McCarthy Brothers Company, for the construction of a locomotive repair facility in North Little Rock. Appellee McCarthy in turn subcontracted part of the project to appellant, Schueck Steel, Inc. At the conclusion of appellant Schueck’s work on the project, appellee McCarthy refused to pay Schueck the contract balance of $91,406.68. Schueck filed a materialman’s lien against the Missouri Pacific property. On February 5, 1985, Schueck sued McCarthy for the debt and joined Missouri Pacific to foreclose the lien. Federal Insurance Company was joined as McCarthy’s surety. Missouri Pacific filed a timely general denial on February 25, 1985. McCarthy did not file an answer. On March 14, 1985, Schueck non-suited both Missouri Pacific and Federal Insurance Company. This action left only McCarthy as a defendant, and McCarthy had not answered. On March 18,1985, Schueck filed a motion for a default judgment against McCarthy. The trial court granted the default judgment. Following writs of garnishment against Missouri Pacific and a bank, McCarthy, on March 28, moved to set aside the default judgment. On April 22 the trial court, by letter opinion, ruled that the default judgment should be set aside. The trial court gave two reasons for its ruling: (1) the answer filed by Missouri Pacific inured to the benefit of McCarthy pursuant to the common defense doctrine as set out in Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980), and (2) the answer by the common defendant was not erased by the later dismissal of Missouri Pacific.

Appellant, in its original brief in this court, does not question the first part of the ruling which concerns the applicability of the common defense doctrine to this case. Instead, appellant questions only the second part of the ruling. The following two statements contained in the argument of appellant’s opening brief state the argument very clearly:

This case presents a narrow issue of procedure: Is a defaulting party insulated from judgment by reason of an answer once filed by a co-defendant even though the answering defendant is no longer in the case at the time a default judgment is requested and entered?
The sole and limited issue for decision is whether MoPac’s answer continued to inure to the benefit of McCarthy after MoPac was dismissed from the suit.

The appellee responded to the argument in its brief by citing a case, Rogers v. Watkins, 258 Ark. 394, 525 S.W.2d 665 (1975), which is squarely in point. In that case, the plaintiff filed suit against a seventeen year old girl, her mother, and her father. The mother and daughter answered in due time, while the father did not. The plaintiff dismissed the mother and the daughter, and then took a default judgment against the father. We reversed and expressly held that the answer inured to the benefit of the father, even after the daughter and her mother were dismissed from the suit. On the basis of the Rogers precedent, the trial court ruled correctly in the case at bar.

In its reply brief the appellant first contends that Rogers was not correctly decided because the common defense doctrine should not have been applied. (For a discussion of the subject, see Note, Firestone Tire & Rubber Co. v. Little: Overextension of the Common Defense Doctrine, 35 Ark. L. Rev. 328 (1981)). Next, appellant argues that the common defense doctrine should not be applicable in the case at bar since Missouri Pacific was only secondarily liable and the defenses were not truly common. In so contending, the appellant has shifted arguments and, for the first time in the reply brief, is actually contending that the trial court erred by applying the common defense doctrine.

As set out earlier, the trial court made a ruling on two separate points. One of those points was that the common defense doctrine provided an answer for the common defendant, appellee McCarthy. Appellant did not question that ruling in its opening brief, instead, it raises the argument for the first time in the reply brief.

We do not consider arguments raised for the first time in a reply brief. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984). The reason is that the appellee is not given a chance to rebut the argument. Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S.W.2d 324 (1971). Accordingly, we do not consider appellant’s argument that the trial court erred by applying the common defense doctrine.

Affirmed on its merits.

Holt, C.J., not participating.