author: Elsijane T. Roy, Justice.

text:
    DeWayne HULSEY v. STATE of Arkansas
    CR 76-125
    549 S.W. 2d 73
    Opinion delivered April 11, 1977
    (In Banc)

      Kinney & Easley, for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant DeWayne Hulsey was charged with capital felony murder in violation of Ark. Stat. Ann. §§ 41-4701, et seq. (Supp. 1973). The facts developed at trial indicated that appellant while robbing a service station shot the attendant seven times, causing his death. After trial by jury appellant was found guilty as charged. The jury then heard evidence of aggravating and mitigating circumstances and after further deliberation determined appellant should be sentenced to death by electrocution.

Appellant raises for the first time on appeal the argument that prospective juror John L. Clark should have been excused for cause. The record discloses that the trial judge, upon learning that Juror Clark was a first cousin of the sheriff of St. Francis County, checked the statutes governing challenging of jurors for cause and voir dired Clark, but refused to excuse him. Appellant did not object to the trial court’s actions, nor did he ask that Clark be excused for cause. This Court has held that even in capital cases an objection must be made in the trial court in order to raise an issue on appeal. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).

However, if we consider the merits, we find no support for appellant’s claim that Clark should be excused for cause. The sheriff was not a party to the action, and he did not testify. Furthermore, Clark testified on voir dire that he would give equal credence to the testimony of witnesses for the defense and the State.

On appeal appellant did not raise the issue of whether his confession was voluntary, but since this Court, pursuant to Ark. Stat. Ann. § 43-2725 (Supp. 1975), must review the record for all errors prejudicial to him, we will discuss the admissibility of the confession.

The trial court, pursuant to Ark. Stat. Ann. § 43-2105 (Supp. 1975), held the required Denno hearing to consider the circumstances surrounding the giving of appellant’s confession to law enforcement officers. Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). Under this statute it is the duty of the court “ . . . before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily. The trial court after hearing the testimony of four witnesses ruled appellant’s confession had been freely and voluntarily given.

The evidence at the Denno hearing included the testimony of all the police officers present when the confession was signed and a copy of rights statement signed by appellant. The rights statement form showed that appellant stated he understood he had the right to remain silent; that anything he said could be used against him in court; that he could consult with and have an attorney present before making any statement or answering any question; that if he could not afford an attorney one would be appointed and that he could stop the questioning at any time if he so desired.

Deputy Sheriff James Jones testified he was present when appellant signed the rights statement. Deputy Claude Ramsey testified the rights statment form was read to appellant and signed by him. Deputy Sheriff George Irwin testified he was present when appellant signed his confession and heard the confession read to appellant before he signed it. State Police Officer W. D. Davidson testified he read the statement of rights form to appellant, inquired as to whether appellant wished to waive his rights and witnessed the signing of the rights form. Davidson further testified that neither he nor anyone in his presence threatened, coerced or intimidated appellant, or promised leniency to appellant in order to obtain the confession. Thus the preponderance of the evidence reflects appellant’s confession was voluntary and was properly admitted by the trial court. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

Appellant next contends the court abused its discretion in admitting certain photographs of the body of the victim because cotton swabs were sticking out the bullet wounds in the victim’s face. It is urged that the pictures were inflammatory, prejudicial and unnecessary. An examination of the photographs does not indicate the cotton swabs made the pictures prejudicial in any way.

Deputy Sheriff Irwin testified he asked a nurse to place some cotton-tip swabs in the facial area of the decedent to determine the number of wounds and the direction of travel of the bullets; that it was necessary to use the cotton-tip swabs because the large amount of blood made it difficult to find the bullet holes. The State Medical Examiner testified the decedent had four gunshot wounds to his head and face and three more to other parts of the body.

At the prosecuting attorney’s request the trial court gave a precautionary instruction, stating:

Ladies and Gentlemen, I’m going to permit these pictures to be passed and viewed by you. You have heard what it is that has been added, why they were so added, and you will disregard the pictures for any other purpose other than to help you understand where the deceased was shot.
# >ft
Furthermore, you may consider the pictures for purposes of showing the ferocity of the attack upon the deceased.
❖ *

It was proper for the jury to consider the photographs to determine the savagery of the attack upon the victim. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975). Since the photographs corroborate appellant’s confession and clearly depict the wounds inflicted upon the victim, the trial judge properly admitted them. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 168 (1976). See also Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421 (1972), wherein we stated the trial court has “wide discretion” in admitting photographs into evidence.

Prior to trial appellant filed a motion to suppress eyewitness identification because of a prejudicial line-up. Appellant did not pursue the motion when he learned there had not been a line-up but that the pre-trial identification was made by photographs.

Even if the pre-trial identification had been questioned on appeal, we find it wasjiroperfy handled. A pre-trial hearing was conducted to determine whether the pre-trial photographic identification was tainted. After hearing evidence the trial court ruled the pre-trial identification procedure was conducted in accordance with all the requirements of the law.

At the hearing Tim Brooks, the person who made the pre-trial identification, testified he picked appellant’s picture from a group of pictures and that when he saw appellant at the murder scene the lights at the service station were on, visibility was clear and appellant was about three feet away at one of the times he observed him. Deputy Sheriff Irwin testified he showed Brooks pictures of seven or eight white males and that Brooks picked out appellant’s picture; that he (Irwin) did not indicate any particular photograph; and that when the order was rearranged Brooks again immediately picked out appellant’s photograph.

From testimony and the totality of the circumstances we find the State has shown that there is no likelihood of misidentification in this case. Pollard v. State, 258 Ark. 512, 527 S.W. 2d 627 (1975).

Appellant next contends the trial court prejudiced the jury by commenting on the credibility of appellant’s testimony and that of Dr. Sophia McCay.

At the trial during cross-examination of appellant the following exchange took place.

THE COURT: Mr. Hulsey, please answer the questions.
THE DEFENDANT: I’ve answered the question as best I know how.
THE COURT: You have not answered it, Mr. Hulsey.
BY MR. RAFF: Q. I’ll repeat it to you one more time, and I am referring to this statement. Did any of the officers ask you to read this statement?
A. They asked me to read a statement similar.
MR. RAFF: Your Honor—
THE DEFENDANT: I don’t see how I can give—
MR. EASLEY: The defendant said the statement was on yellow legal paper.
THE COURT: He asked him if they asked him to read that statement there. Yes or no.
THE DEFENDANT: No, not that statement.
MR. EASLEY: He denied it.
MR. RAFF: No, sir, he has not answered the question, and it’s been propounded six times.
THE COURT: He just answered no. Now it has been answered.

The pertinent part of the examination of Dr. McCay follows:

MR. KINNEY: Let the witness finish.
MR. RAFF: She answered the question, and then she goes into other areas not covered by the question.
MR. KINNEY: She’s entitled to do this.
MR. RAFF: She is entitled to give an explanation of her answer, but not to answer others.
THE COURT: She is entitled to answer the question, but not quibble or explain it away.
MR. KINNEY: If it requires an explanation, then she, as an expert witness, is entitled to give that explanation.

Thereafter the court allowed the witness to make a full explanation of her answer. The record discloses appellant did not object, ask for a mistrial or request the jury be admonished in connection with the court’s remarks concerning Dr. McCay or appellant. The law is well settled that even in capital cases an objection must be made in order to raise an issue on appeal. Neal v. State, supra; Fields v. State, 235 Ark. 986, 363 S.W. 2d 905 (1963); and Johnson v. State, 127 Ark. 516, 192 S.W. 895 (1917).

* * * If appellant was under the impression that the remark made by the court was prejudicial it was his duty to so inform the court and give it an opportunity to make a retraction or explanation to the jury.
Roach v. State, 222 Ark. 738, 262 S.W. 2d 647 (1953).

We also note the trial court gave the following instruction:

* * #
I have not intended by anything I have said or done, or by any questions that I may have asked, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate, you will disregard it.

We do not view the remarks made by the trial judge as comments on credibility of the witnesses, but as comments necessary to control the examination of the witnesses.

Appellant also seeks reversal of his conviction on grounds that the trial judge should have given a cautionary instruction even though he had sustained appellant’s objection to the question, “Are you a penitentiary man?” At trial appellant did not ask the trial judge to give a cautionary instruction, and he cannot now raise the failure to give one as grounds for reversal. In Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976), this Court stated:

Since Spann did not request that the trial judge admonish the jury relative to the testimony about “some other guy,” he is in no position to argue his complaint on appeal based on the judge’s failure to do so. * * *
This Court held that similar questions did not amount to reversible error. In Coleman v. State, 256 Ark. 665, 509 S.W. 2d 824 (1974), the Court found no prejudice in the question, “Mr. Coleman, you’re what is known in contemplation of the law as a habitual criminal, is that correct?” See also Miller v. State, 250 Ark. 199, 464 S.W. 2d 594 (1971). We find no error on this point.

Appellant next contends the jury was illegally constituted because of age discrimination and he was thereby deprived of certain constitutional rights. He specifically contends that because he was only 22 and the jurors were years older he did not have a fair trial by his peers. However, no motion to quash the jury wheel was filed, no motion alleging age discrimination was; made prior to trial and no evidence nor proffer of proof was made that young people had been systematically excluded from jury service. We have held in a number of cases that an issue cannot be raised for the first time on appeal even in capital cases. Neal v. State, supra; Fields v. State, supra; and Johnson v. State, supra.

Appellant urges that because of recent decisions even though this issue was not raised in the trial court he shouid be allowed to raise it on appeal. We find no merit here as the United States Supreme Court, over thirty years ago, recognized that systematic exclusion of a particular group from jury service constituted a violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. Norris v. Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074 (1935). If appellant felt the jury panel did not represent a proper cross section, he should have timely filed a motion to quash the jury panel and adduced proof on the issue.

Appellant contends the trial court placed an unconstitutional burden of proof upon him when it instructed the jury it might consider five or more mitigating circumstances.

At trial counsel stated: “Your Honor, they [the instructions] are good for the defendant.” Appellant by failing to object to the instructions cannot now raise the issue on appeal even though this is a capital case. See Neal v. State, supra. Rule 13 of the Uniform Rules for Circuit and Chancery Courts, Ark. Stat. Ann., Vol. 3A, p. 139 (Supp. 1975), provides;

No party may assign as error the giving or the failure to give an instruction to a jury unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. The trial judge shall give all parties an opportunity to make objections to instructions out of the hearing of the jury.
A mere general objection shall not be sufficient to obtain appellate review of the trial court’s actions relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.
* * *

Furthermore the instructions reflect that the court did not place any burden on appellant to prove mitigating circumstances. The court stated each side would be permitted to put on testimony regarding mitigating or aggravating circumstances, and that all the evidence previously presented might be considered in determining the verdict. As to the aggravating circumstances the court instructed they must be found to exist beyond a reasonable doubt. As to mitigating circumstances he imposed no burden of proof but stated:

* * *
A mitigating circumstance is one which does not excuse the offense in question but which, in fairness and mercy, may justify your imposing less than the maximum possible sentence. The following are among the circumstances, but are not the only circumstances, which you may consider as mitigating circumstances:
* * *

Appellant relies on Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975), but the issue in Mullaney was whether the State could be relieved of proving any element of a crime beyond a reasonable doubt. The Court held the prosecution must prove every element of the crime and the burden did not shift to the defendant to prove he was acting with “heat or passion” in order to reduce his charge from murder to manslaughter.

In the case at bar the issue of guilt of the crime charged had already been resolved against appellant before mitigating circumstances were considered by the jury. Proof of all the essential elements of the crime was required and the jury found appellant guilty. Thus the holding of Mullaney is not applicable under these facts.

Appellant also contends the statute under which he was convicted is unconstitutional because “it does not provide for automatic appeal and makes no provision for comparative review of similarly situated defendants.” All of appellant’s contentions under this point, and others, have been considered and discussed in detail in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), and Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977), and found to be without merit. In both these cases this Court carefully reconsidered the constitutionality of §§ 41-4701 et seq. in light of Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976);Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Woodson and Waxton v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976); and Roberts v. Louisiana, 428 U.S. 352, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), as directed by the mandate of the Supreme Court of the United States. We have attached hereto the same Appendix used in Collins, supra, to indicate the changes made in the felony murder rule by the Arkansas Criminal Code effective January 1, 1976.

The Arkansas statute having been found constitutional in Collins and Neal, we now review the jury’s findings as to aggravating and mitigating circumstances to ascertain if the verdict is adequately supported by the evidence. As to aggravating circumstances the jury found:

(8)
The Defendant did, beyond a reasonable doubt, in the commission of the capital felony, knowingly create a great risk of death to one (1) or more persons in addition to the victim. (\/)
(D)
The capital felony was, beyond a reasonable doubt, committed for pecuniary gain, (v/)

As to mitigating circumstances one of the defenses pled by appellant was intoxication or diminished capacity, and the jury found:

(B)
The capital felony was not committed while the capacity of the Defendant to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of law, was impaired as a result of mental disease or defect, intoxication or drug abuse. (\/)

As indication of the jury’s fairness to appellant and serious consideration of mitigating factors the jury, though finding no mitigating circumstances on the list, wrote on the verdict form:

We, the jury, have found, in our judgment that Dewayne Hulsey had a very poor home life. We do feel that it plays a minor part in his behavior, but not to the extent of committing this brutal crime.

Thereafter the jury found the mitigating circumstances were not sufficient to outweigh the aggravating circumstances and that the aggravating circumstances were sufficient to justify imposition of the death sentence.

In his reply brief appellant states through “oversight” he omitted his objections in the original brief to the instruction on diminished capacity. The questioned instruction and preceding one read as follows:

Instruction No. 10
You are instructed that the state is required to prove all of the material allegations in the information and to prove them to your minds beyond a reasonable doubt. * * *
Instruction No. 11
You are instructed that mere weakness of intellect will not shield one who commits a crime; however, a defendant’s mental condition may diminish his capacity to form certain specific intents. You are instructed that if you find that the defendant’s mental condition at the time of the alleged offense was such that he could not formulate the specific intents that I have instructed you are necessary elements of the crimes charged then you may find him guilty of a lesser offense not requiring specific intents but you could not find him guilty of those crimes which required the finding of specific intents.
The burden of proving diminished capacity is upon the defendant and then must be shown by a preponderance of the testimony in the case.

Relying upon Mullaney, supra, appellant contends it was violative of the Fourteenth Amendment Due Process Clause to place the burden of proof of any essential ingredient of the offense charged on the defendant.

After giving the instructions the court asked, “Any additional instructions to be tendered, or objections to be made to the instructions given?” Appellant’s attorney replied, “No, Your Honor.”

Appellant strenuously argues it would be violation of federal constitutional standards not to review the instruction regardless of Rule 13, supra. However, Arkansas’ Rule 13 is similar in nature to Rule 30 of the Federal Rules of Criminal Procedure. Rule 30 of the Federal Rules of Criminal Procedure provides:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. At the same time copies of such requests shall be furnished to adverse parties. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

In United States v. Indiviglio, 352 F. 2d 276 (2d Cir. 1965), cert. denied 383 U.S. 907, 86 S. Ct. 887, 15 L. Ed. 2d 663 (1966), the court stated:

Federal courts, including the Supreme Court, have declined to notice errors not objected to below even though such errors involve a criminal defendant’s constitutional rights.

The position of federal courts that claimed error to which there are no objections will not be reviewed was reaffirmed May 3, 1976, in the cases of Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976) and Francis v. Henderson, 425 U.S. 536, 96 S. Ct. 1708, 48 L. Ed. 2d 149 (1976). In Estelle the Court held that the failure of a criminal defendant to object to being tried in jail clothing precluded him from seeking to collaterally attack the conviction in federal court. In the Francis case the Court found that by failure to object to the composition of the grand jury as required under a Louisiana rule of procedure prior to trial, the defendant in that case was precluded from raising the question of the racial composition of the grand jury in federal habeas corpus proceedings.

We do not view the court’s instruction here as an erroneous one since it does not change the burden of proof as to the essential elements of the crime which always remains on the State; only the burden of persuasion as to an affirmative defense is placed on appellant. Furthermore appellant’s actions do not reflect diminished capacity as he carefully planned and executed the crime by borrowing a gun, removing the license plate from his car and after completing the crime replacing the license plate and hiding the gun.

In Rivera v. State, 351 A. 2d 561 (Del. Super 1976), the court held the statute classifying mental illness as an affirmative defense which the defendant must prove by a preponderance of the evidence did not conflict with the due process clause citing in support of its position Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952). Rivera, supra, has the following comment:

We think that Leland remains the controlling authority on the question. Leland has not been overruled by Mullaney, in our view, either expressly or. implicitly.

Moreover, even if we assume error it is harmless beyond a reasonable doubt. In support of the propriety of the harmless error rationale, the jury (jid not find any factual existence at all for the defense of diminished capacity as a mitigating circumstance. See answers of jury, supra. The finding of no existence whatsoever of diminished capacity as a mitigating factor denies its operable existence regardless of upon whom the burden devolves. Although that determination was made at the sentencing stage, it was based upon the evidence adduced in both bifurcated stages of trial, guilt and sentencing. Neal v. State, 259 Ark. 27, 531 S.W. 2d 17 (1975).

As was stated in Collins, supra (March 7, 1977), and Neal, supra (March 28, 1977), comparative review of a sentence is difficult, but we do have the precedent of Neal and Collins to serve as our guidelines here. In both cases the crimes were brutal murder and the death penalty was imposed.

On the afternoon of the crime here appellant had been drinking beer and vodka with a friend, Buddy Caldwell. They returned to the friend’s house, and appellant borrowed a rifle from him. According to the testimony of Caldwell, appellant stated he was going to rob a service station. Appellant’s confession reflected that after removing the license plate from his automobile and borrowing a rifle he drove to a service station. While the attendant, who was crippled in one leg and walked with a decided limp, was putting gas in the car appellant took the gun, got out of his automobile and told the attendant it was a robbery. Then he stated he shot the attendant in the chest as he grabbed for the gun. Thereafter the attendant walked into the station with appellant following him to the cash register. The attendant pleaded “I don’t think I am going to die — don’t do this, son.” Appellant then testified he came out from behind the register to where he could see the attendant who had moved toward the cigarette machine and shot him twice more in the head. Appellant’s confession indicated he was aware of what he was doing at the time of committing the crime.

The medical examiner testified:
The deceased had a total of seven gunshot wounds to his head and trunk areas; four of these wounds involved his head and face area. One wound that struck the right corner of his eye, and exit wound near the top portion of his head.
Another wound was a wound that struck the back of the deceased’s head, and in its path penetrated vital structures of the brain.
He had another wound that struck the right portion of his mid-face area that in its path entered the brain.
He had a similar wound that was located approximately near the jaw area, that in its path went into the brain.
He also had two wounds involving his left arm, one of which was located in his left upper arm, that went through his arm and penetrated the subcutaneous tissue of the left chest area.
He had a similar wound located and involving the left forearm that also was an exit wound and struck the left chest area. It did not penetrate the chest cavity itself.
The last wound was one that was located in the left lower abdomen, and it penetrated the abdominal cavity, and in its path penetrated the intestines several times. It was removed from one of the bones in the right pelvis area.

While appellant was still at the scene of the crime, Tim Melvin Brooks drove up to the station with two young children. Appellant posed as an attendant. Brooks testified appellant pointed the rifle at him from about ten feet, and said “I’ve robbed the station and I’ve killed one man, and I’ll kill another.” Then appellant pointed at the two boys and said, “If you think anything of your family you will get in your car and forget what you seen.”

Appellant was subsequently arrested, and upon conviction the jury sentenced him to death by electrocution pursuant to the bifurcated trial system utilized in capital cases for murder as heretofore set out.

We find under these facts there was clearly sufficient evidence to support the jury’s findings that appellant was guilty as charged and that the aggravating circumstances outweighed the mitigating circumstances warranting imposition of the death penalty.

We do not find either passion or prejudice entered into the jury’s deliberation, nor do we find imposition of the penalty for this merciless killing was arbitrary, capricious or wanton. We hold the imposition of the death penalty did not violate any of the provisions of the federal or state constitutions.

We have also reviewed the records as required by Ark. Stat. Ann. § 43-2725 (Supp» 1975) and find no reversible error.

Judgment affirmed.

George Rose Smith, Holt and Hickman, JJ., dissent only for the reasons stated in their dissents filed in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

APPENDIX

Ark. Stat. Ann. § 41-1501 (Criminal Code 1976) changed the felony murder rule [formerly Ark. Stat. Ann. § 41-4702 (Supp. 1973)] by eliminating mass transit piracy and treason and adding escape in the first degree to the list of felonies to which the rule is applicable; and by including provisions creating accomplice liability (and affirmative defenses for an accomplice); by extending the rule to include a killing committed in immediate flight from an included felony; and by providing that the death be caused “under circumstances manifesting extreme indifference to the value of human life.”

It also changed the focus of an unlawful killing involving a public official from (E) the unlawful killing of a public official resulting from a premeditated design to kill anyone, to (d) the unlawful killing of anyone resulting from a premeditated design to kill a public official. It added murder pursuant to agreement as a capital murder.

Ark. Stat. Ann. § 41-1304 (Criminal Code 1976) is different from § 41-4712 (Supp. 1973) in that it states that mitigating circumstances are not limited to those provided in the statute and by adding as mitigation the fact that the defendant has no significant history of prior criminal activity.

Mitigating circumstances are no longer limited to those provided in the statute and now include the circumstance that the defendant has no significant history of prior criminal activity. Ark. Stat. Ann. § 41-1304 (Criminal Code), § 41-4712 (Supp. 1973).

Aggravating circumstances were changed somewhat as they relate to a person who has a prior record of commission of a felony. Ark. Stat. Ann. § 41-1303 (Criminal Code), § 41-4711 (Supp. 1973).

Substantive changes in trial procedure, § 41-1301 (Criminal Code), formerly § 41-4710 (Supp. 1973), include a provision that evidence of mitigating circumstances may be presented regardless of whether the evidence is admissible under the rules of evidence; and for waiver of the death penalty by the prosecutor, expressly or by stipulation as to the facts of mitigating and aggravating circumstances, after trial. §41-1302 (Criminal Code) allocates the burden of proof during the sentencing phase of a capital trial.

       Previous opinion 259 Ark. 8, 531 S.W. 2d 13 (1975).

       Previous opinion 259 Ark. 27. 531 S.W. 2d 17 (1975).

       For affirmative defenses see Ark. Crim. Code § 41-601 (1976) (and commentary thereon) which codifies existing law.


source: Caselaw Access Project

author: William C. Adair, Jr., Special Justice. Lewis D. Jones, Special Chief Justice,

license: Public Domain

text:
    COMMERCIAL PRINTING COMPANY and Katherine Gosnell WELLS v. Marshall N. RUSH, Lynn WADE, Dr. Thomas WORTHAM, Richard Earl GRIFFIN and Eula DORSEY, Acting in Their Capacities as Members of the Board of Correction of the State of Arkansas
    76-98
    549 S.W. 2d 790
    Opinion delivered April 11, 1977
    (In Banc)
    IRchrarini? denied May 31, 1977.)

      Coleman, Gantt, Ramsay <2? Cox, by: William C. Bridgforth, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., and Wade, McAllister, Wade & Burkes, P.A., and Bridges, Toung, Matthews & Davis, for appellees.
   William C. Adair, Jr., Special Justice.

At a meeting of the Board of Corrections of the State of Arkansas, Appellees herein, on October 25, 1975, an executive session was called and the public excluded therefrom. Katherine Gosnell Wells, Appellant, a reporter for the Pine Bluff Commercial owned and operated by the Appellant Commercial Printing Company was present, objected to the calling and holding of the. executive session, and was ejected over her protest from the meeting. One member of the Board, Mr. Lynn Wade, opposed the Board’s decision to go into executive session and refused to participate therein and by separate counsel has filed an Appellee’s Brief in support of the Appellant’s argument. The executive session was called to discuss personnel matters, specifically the possible dismissal or disciplining of Department of Correction employees in connection with alleged wrong doing by these employees that had arisen after an inmate under their supervision had died.

Appellants Commercial Printing Company and its reporter, Katherine Gosnell Wells, sought a declaratory judgment declaring that the executive session held by the Board of Correction on October 25, 1975, was in violation of the Freedom of Information Act as set forth in Arkansas Statutes Annotated, Title 12, Chapter 28 (September, 1.967). A hearing was held and subsequently the lower court after reviewing a taped recording of the executive session ruled that the session was in accordance with the Freedom of Information Act as to the subject matter discussed. The Court also ruled, however, that the Board had violated the Freedom of Information Act when it called Department of Correction Commissioner Hutto and Cummins Superintendent Lockhart into the executive session at various times.

Appellants then filed a motion seeking to have the Court make public the tape recording and any transcript thereof on file be made immediately public. The Court denied the motion citing in its opinion that the subject matter of the session was proper within the Freedom of Information Act.

From the lower court’s judgment declaring that the subject matter of the executive session was proper and its refusal to make the tape recording of the session public, Appellants bring this appeal.

The issues prssented in this appeal are directed to the historic legal concepts of the “public’s right to know” versus the protection of the “rights of the individuals” involved. The Legislature has clearly expressed its intent concerning the policies of the Freedom of Information Act and the declared public policy of this State dealing with the public’s business in Ark. Stat. Ann. Section 12-2802:

“DECLARATION OF PUBLIC POLICY. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials, and the decisions that are reached in public activity and in making public policy. Toward this end, this Act (Section 12-2801 — 2807) is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.” This Court has declared: “We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praise-worthy purposes may be achieved.” Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968).

The Legislature has provided for both the public’s right to know and protection of the individual’s rights from unwarranted adverse publicity and ensuing damage to individual’s reputations in Ark. Stat. Ann. Section 12-2805 (Repl. 1968) providing:

“Except as otherwise specifically provided by law, all meetings, formal or informal, special or regular, of . . . all boards, bureaus, commissions, or organizations of the State of Arkansas . . . supported wholly or in part by public funds, or expending public funds shall be public meetings. . . ”
“Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer or employee.”

The policy reasons dictating the rule of liberal construction of the act does not mean that the equally praiseworthy policy considerations which motivated the General Assembly to provide the single exception permitting executive sessions, i.e., for the purpose of discussing and considering personnel matters, are not equally meritorious, or are to be any more lightly regarded. The Act as a whole should be construed with reference to the public policy or policies it was designed to accomplish. Arkansas Tax Commission v. Crittenden County, 183 Ark. 738, 38 S.W. 2d 318 (1931). A statute must be analyzed in its entirety and meaning given to all portions. Construction of a statute which gives meaning and consistency to its various sections is desirable. Callahan v. Little Rock Distributing Company, 220 Ark. 443, 248 S.W. 2d 97 (1952).

Appellants earnestly urge with respect to the executive session in the present case that, “only after all of the discussion which took place in private had taken place in public and all of the information furnished and comments elicited should the Board of Correction have adjourned to executive session to determine if discipline was in order for particular public officers or employees.” If this interpretation of the executive session provision of the Freedom of Information Act is given effect, that section would be rendered virtually meaningless; and the legislative intent would be frustrated. A public discussion of allegations later proved unwarranted would lead to adverse publicity and unjustifiable damage to the reputation of the individuals involved. It is not the bare decision whether or not to discipline an employee that the executive session provision allows to be made in privacy, but rather the discussion or consideration of particular acts or omissions of the employee whose conduct has been called into question. This is the only way to avoid the “great and often unjustified damage to personal reputations, which such provisions are intended to prevent”. COMMENT, 75 Harv. L. Rev. at 1208 (1962).

The ultimate fact, the employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee should be public, and the public apprised of the officials acts of their elected and appointed public officials. At this time the public officials’ actions would be open to question and the evidentiary facts supporting the actions of the public officials be questioned and made known to the public.

Section 12-2805 further provides that, “Executive sessions must never be called for the purpose of defeating the reason or the spirit of the Freedom of Information Act.” The executive session under consideration in the present case was not called for that purpose. It was called for the purpose of discussing a personnel matter, and the discussion was carefully limited to the conduct of specific prison employees in relation to the death of an inmate. It is true as Appellant points out in its brief that general items were discussed concerning (1) Heat stroke symptoms and policies of the prison relating to the recognition of and treatment of such symptoms; (2) Assignment procedures in connection with inmates relating to work detail; (3) Policies for re-evaluation of medical reports; (4). Procedures for interviewing transferred inmates; (5) Procedures dealing with transfer of information from officers at the Cummins unit to officers at the Tucker unit; (6) Work habits and propensities of deceased inmates; (7) Prison policies concerning meals, especially relating to inmates being transferred in early morning hours from one unit to the other; (8) General Harassment; (9) Procedures for handling inmates who will not work; (10) The composition of hoe squads; (11) Procedures dealing with transfer runs and transfer vehicles; (12) Questions asked of Commissioner Hut-to and Superintendent Lockhart concerning the death of the inmate involved; (13) The State Police investigation into the death of the inmate in question; (14) Certain medical questions. However, this information was discussed within an overall general context of whether there had been any violation of board policies and procedures within which public disciplinary or other public action should be taken. The board could not make an informed decision as to discipline or any other action without this candid examination of the facts and free discussion of the board policies. No official acts of the board were taken in executive session. The Legislature has specifically provided for this discussion. “Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining or resignation of any public officer or employee.” Ark. Stat. Ann. Section 12-2805 (Repl. 1968). We agree with the following excerpt from the Opinion of the lower court:

“The Act provides that public bodies may meet in executive session for the purpose of considering, among other things, the disciplining of any employee. Once an executive session has been called for the purpose of disciplining, it is implicit in the act that all discussion must be related to the legal purposes for which the session was called. It is, however, both logical and within the spirit of the act to note that such discussion could of necessity deal with several areas which, taken out of the context of the total discussion, might be construed as improper subject matter for executive session. In fairness to the employee as well as the public, the discussion must delve into all circumstances surrounding the incident which has given rise to the question of discipline in the first place. The board must determine what lines of questioning it must follow to their logical ending to ferret out the relevant and material information necessary to determine what, if any, discipline is appropriate to the given situation. To do otherwise would be an injustice to the employee in question and a failure on the part of the board to meet the responsibility assigned to them by the Legislature.”

However, once a decision has been made in executive session that discipline, or other action is needed, all further acts of the board should be public, and the public officials accountable and answerable for their actions. In the instant case the board is to be commended on recording its executive session for its own record and possible judicial review. Of necessity the policies of a board must be reviewed to see if there has been an infraction which would warrant discipline or official action. The trial court properly reviewed the entire recording of the executive session in question in which official state reports and policies of the board were reviewed by the board for the purpose of determining if in fact there had been an infraction of board policy, and correctly made the tape recording a part of the record. See U.S. v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). It appears from our review of the record that a candid, free discussion was held on the way procedures were carried out by the penal institution by its officials with a view as to whether discipline was warranted. It should be pointed out that it was not the official function of this board to act as a grand jury or in the capacity of the prosecuting attorney’s office to bring possible criminal proceedings from the investigative reports from other agencies such as the State Police. The use of these reports and records of other agencies by the board in question was limited to the question of whether facts were available to indicate an infraction of board policy or procedure to warrant official board disciplinary action.

After reviewing the tape recording of the executive session in the present case the lower court determined that the discussion was limited to matters which were related to the possible need for disciplining certain named employees of the Department of Correction. Therefore, the court declared that, “The executive session . . . was in accordance with the Freedom of Information Act as to subject matter discussed.” While that finding is not binding on this Court, e.g., McGill v. Miller, 183 Ark. 585, 37 S.W. 2d 689 (1931), it should be accorded significant weight. This Court has held that the judgment of a Circuit Court in a declaratory judgment proceeding is reviewed in the same manner as any other judgment, and if there is any substantial evidence to support the finding upon which the judgment is based, it will be affirmed. Midsouth Insurance Company v. Dellinger, 239 Ark. 169, 388 S.W. 2d 6 (1965); Ark. Stat. Ann. Section 34-2506 (Repl. 1962). In determining whether there is any substantial evidence to support the trial court’s finding, this Court has stated that it must view the record in the light most favorable to the Appellee. Power v. Howard, 253 Ark. 1052, 490 S.W. 2d 435 (1973). The presumptions on appeal are all in favor of the validity of the judgment of the trial court. Woodman of Union of America v. Henderson, 186 Ark. 524, 54 S.W. 2d 290 (1932). It is our finding that this court did not err in finding that the executive session was in accordance with the Freedom of Information Act as to subject matter discussed.

Appellants for their second point contend that the court erred in refusing to allow the plaintiff to make an offer of proof and play the tape into the record. It is conceded by the Appellant that the court did accept the taps nd what it said into evidence. The court accepted the tape ph, 4cally into the case and although not transcribed made it a part of the record. Appellants object to the court’s refusal to allow the tape to be transcribed by the court reporter. As previously discussed, the Freedom of Information Act specifically provides for an executive session without public purview. There is the presumption that public officials act lawfully, sincerely in good faith in carrying out their duties. Arkansas Pollution Control Commission v. Coyne, 252 Ark. 792, 481 S.W. 2d 322 (1972). Had the board not recorded the executive session the presumption that the members properly limited their discussion to personnel matters as required by law would have made the Appellant’s burden in proving the contrary practically impossible. However, as the board in acting in good faith had a tape recording made, it was appropriate for the judge to accept the tape into evidence and inspect it in camera, as he did. See Environmental Protection Agency v. Mink, 410 U.S. 73, 35 L. Ed. 2d 119, 93 S. Ct. 827 (1973). There was no reason for the court to order the contents of the tape recording of a confidential executive session to be transcribed once it was determined that the subject matter was within the exception. Accordingly, we find that the trial court was correct and within its discretion to refuse to have it transcribed.

Appellants further contend that the lower court erred in refusing to make the transcript public alleging that the board waived the confidentiality of the executive session because of the court’s finding that Commissioner Hutto and Superintendent Lockhart were improperly called into the executive session. This court acknowledges that the appearance of Correction Commissioner Teryl Don Hutto and Superintendent A. L. Lockhart, Cummins Prison Superintendent, before the Board in executive session on October 25, 1975, was at that time a violation of the Freedom of Information Act. However, we hold that the refusal of the lower court to make the tape recording of that session public was necessary to protect the individuals who were the subjects of the discussion in the executive session from unfair and/or unwarranted publicity. The prqcedural irregularity of allowing agents of the Board whose assistance the Board sought in its effort to determine whether certain lower echelon employees of the Department of Correction should be disciplined should not be held to destroy the confidential nature of an otherwise valid executive session. The individuals whose rights are protected by the exception to the Freedom of Information Act should not be penalized because of an innocent mistake by a board or commission which has at all times acted in good faith.

It should be noted, however, that the Arkansas Legislature in special session in 1976 amended the Freedom of Information Act to allow the presence in executive session of persons falling into their category.

AFFIRMED.

George Rose Smith, Hickman, JJ., and Lewis D. Jones, Special C.J., dissent.

Harris, C.J., and Holt, J., not participating.

Lewis D. Jones, Special Chief Justice,

dissenting.

I dissent. The majority would puli every tooth out of the mouth of the State which says, “Executive sessions will be permitted only for the purpose of discussing or considering employment, appointment, promotion, demotion, disciplining, or resignation of any public officer of employee.” (Emphasis added) Ark. Stat. Anno. Section 12-2805. If the Board of Correction of the State of Arkansas or any other public agency is going to be permitted in executive session to delve into, discuss, and deliberate on items such as:

1. Heat stroke symptoms and policies of the prison relating to the recognition of and treatment of such symptoms;
2. Assignment procedures in connection with inmates relating to work detail;
3. Policies for re-evaluation of medical reports;
4. Procedures for interviewing transferred inmates;
5. Procedures dealing with transfer of information from officers at the Cummins unit to officers at the Tucker unit;
6. Work habits and propensities of deceased inmates;
7. Prison policies concerning meals, especially relating to inmates being transferred in early morning hours from one unit to the other;
8. General harassment;
9. Procedures for handling inmates who will not work;
10. The composition of hoe squads;
11. Procedures dealing with transfer runs and transfer vehicles;
12. Questions asked of Commissioner Hutto and Superintendent Lockhart concerning the death of the inmate involved;
13. The State Police investigation into the death of the inmate in question;
14. Certain medical questions;

all under the umbrella of the fact that disciplinary procedures might be invoked, then there is nothing that can’t be handled in executive session and thereby removed from the public scrutiny.

I think it is most significant that neither Correction Commissioner Teryl Hutto or Superintendent A. L. Lockhart, or any other employee requested an executive session or requested that the proceedings be made public, or made any request of any kind in connection with the proceedings before the Board of Correction; and after all under the theory of the majority case, it is their right the Court is so vigorously protecting. Ark. State Police v. Davidson, 253 Ark. 1090, 490 S.W. 2d 788 (1973).

It should also be noted that there is nothing in the statute that requires that executive sessions be conducted in connection with the employment, appointment, promotion, demotion, disciplining, or resignation of a public officer; and it is obvious from the context of this meeting that the concern as to public inspection of the facts might well have been as much or more on the part of the Board members as on the part of any employee.

I believe that the need for the public to know far outweighs any personal embarrassment which the members of the Board or the supervisors of the prison system may suffer as a result of public access to policy and procedure discussions. In the literal sense, every meeting of.the Board of Correction could deal with the discipline of some employee as a result of some act that is brought before the Board; and if followed to its logical conclusion, each meeting of the Board could be held substantially in secret under the ruling of the majority in this case. This Court has zealously in the past safeguarded the public’s right to know. Ark. Gazette v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975).

In the Laman v. McCord case cited by the majority this Court very correctly held that a liberal interpretation should be given to the statute in order to effectuate its public policy provisions. This would necessarily require a narrow interpretation of the exceptions to the rule. Yet the majority now would swing wide the door to let the entire enforcement of the statute out through the exception. Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968).

The majority is very correct in saying that this case is almost unique in that a total transcript of the proceedings was available for perusal. Whereas in the ordinary secret meeting it is very difficult to ascertain the facts that actually were discussed if the conspiracy of silence is maintained. All the more reason to strictly adhere to the actual language of the statute. If the Legislature had desired to exempt the Board of Correction from the Freedom of Information Act, it could have very easily done so just as it changed the Act to permit the employees whose discipline is under question to attend the executive sessions; and in the absence of such amendatory legislation, I would adhere strictly to the Freedom of Information Act.

Since I believe the lower court erred in ruling that the executive session was proper, it naturally follows that the contents of the “executive session” should have been made public. There is authority for having evidence reviewed in camera; however, to permit the secret transcript of a secret meeting to be introduced into evidence in secret, reviewed in secret by the trial court, and further reviewed in secret by the Appellate Court, is a dangerous precedent and smacks to my mind of Star Chamber proceedings. I would reverse the trial court and order that the contents of the “executive session” in question be made public.


author: Harold Sharpe, Special Justice. John A. Fogleman, Justice,

text:
    FIRST STATE BUILDING AND LOAN ASSOCIATION, Mountain Home, Arkansas v. ARKANSAS SAVINGS AND LOAN ASSOCIATION BOARD and HOME SAVINGS AND LOAN ASSOCIATION
    76-174
    549 S.W. 2d 274
    Opinion delivered April 11, 1977
    (In Banc)
    | Rehearing denied May 16, 1977.]

      Roy E. Danuser and Catlett & Henderson, for appellant.

      John E. Pruniski HI and Lester & Shulls, for appellees.
   Harold Sharpe, Special Justice.

This appeal seeks reversal of the Order of the Pulaski County Circuit Court affirming the grant of a savings and loan charter to Appellee, Home Savings and Loan Association, by Appellee, Arkansas Savings and Loan Association Board. For the purposes of brevity, Appellee, Arkansas Savings and Loan Association Board is hereinafter referred to as “The Board”, and Appellee, Home Savings and Loan Association, is hereinafter referred to as “The Association”.

Although this matter has previously been before this Court (257 Ark. 599), because of the length of tirfSe involved and the complexity of the sequence of events, we briefly summarize the proceedings. On May 1, 1973, The Association filed its application with The Board for a charter for a savings and loan association to be located in Mountain Home, Arkansas. After the taking of voluminous testimony from numerous witnesses, by deposition and ore tenus, The Board granted the application on December 26, 1973. Thereafter, appeals were taken to the Circuit Court of Pulaski County and to this Court. On February 10, 1975, this Court reversed and remanded for lack of specific findings by The Board. On May 27, 1975, The Board made new findings of fact and declarations of law, which, on November 3, 1975, the Circuit Judge found deficient, and again the matter was remanded to The Board. On November 18, 1975, new findings of fact and declarations of law were made by The Board. The matter was again taken to the Circuit Judge of Pulaski County, who entered his Order affirming the grant of the charter. This appeal follows.

Before considering the merits of the case, we make specific reference to Rule 9 (b) of the Rules of the Court. As the Rule clearly states, the Statement of the Case to appear in Appellant’s Brief is to be made without argument. The purpose of the Statement of the Case is to give this Court, which is familiar with neither the facts nor proceedings of the case, an unbiased, impartial, and factual overview and synopsis of the nature of the case and the proceedings below. It is not the place for argument.

Appellant urges three points for reversal:
(1) That the findings of facts by The Board did not comply with the requirements of Ark. Stat. Ann. Sec. 67-1824, on the question of management;
(2) That the record contains no substantial evidence to support the Order of The Board granting the application;
(3) That the circuit Court erred in holding that The Board need not find a present need for a new savings and loan association in the area.

We deal with these contentions as they are presented.

For its first point for reversal, Appellant argues that Ark. Stat. Ann. Sec. 67-1824 (2) (Supp. 1975), requires that The Board make a specific finding, separate and apart from its findings relating to the directors and officers of the applicant, that the applicant will have qualified full time management, and that the factual basis for this finding be set out in detail by The Board in its Order. We disagree. The statute provides as follows:

67-1824. Approval of application for charter. — The Board shall not approve any charter application unless the incorporators establish and the Board shall have affirmatively found from the data furnished with the application, the evidence adduced at such hearing, and the official records of the Supervisor that:
(2) The character, responsibility, and general fitness of the persons named in the articles of incorporation and who will serve as directors and officers of such association are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of this act and the proposed association will have qualified full time management.

If we read the statute as urged by Appellant, any applicant would necessarily be required to hire or make arrangements for its manager before the charter is issued, so that his name may be submitted with the application, and his qualifications determined by the full board. As we said in Morrilton Federal Savings and Loan Association v. Arkansas Valley Savings and Loan Association, 243 Ark. 627, 420 S.W. 2d 923 (1967), we do not read the statute as requiring that the manager be employed before the charter is issued. Such a requirement would be entirely impractical. The procedure to secure a savings and loan charter is lengthy, and either the manager or the members of the proposed association would be required to bear the risk of rejection of the application. In the case at bar, for example, the proposed manager would have been held in limbo, supposedly at the expense of the applicant, since 1973.

Rather, we interpret the statute to require The Board’s finding be that the character, responsibility, and general fitness of the proposed directors and officers are such that the proposed association will have qualified full time management. In this case, no serious question has been raised as to the proposed directors and officers who will select the full time manager. Thus, we find that the statutory requirement has been met.

With such an interpretation of the statute, it is unnecessary for us to deal with Appellant’s contention that submission of the name of the manager, once hired, to the supervisor is a delegation of the Board’s statutory authority to the supervisor.

For its second contention, Appellant urges that the record does not contain substantial evidence to support The Board’s finding of a need of another savings and loan in the Mountain Home area. We affirm The Board’s action since there is substantial evidence to support its findings. In addition we consider the evidence with all reasonable inferences deducible therefrom in the light most favorable to the Appellees. First Federal Savings and Loan v. Union Federal Savings and Loan, 257 Ark. 199, 515S.W. 2d 75 (1974). Whether the evidence of the Appellee or the Appellant weighs more heavily is not a consideration. Heber Springs Savings and Loan Association v. Cleburne County Bank, 240 Ark. 759, 402 S.W. 2d 636 (1966).

When we review the findings of The Board, we find the evidence to be clearly substantial. The Board found that the proposed service area consists of six counties, with a population of approximately 52,000, and with a rapid growth factor, both in number of people and economically. Bank deposits increased by 428 percent during the decade of the 1960’s. From December, 1972, to June 30, 1973, the total assets in the three financial institutions with home offices in Mountain Home increased to in excess of $96,000,000.00, and during the same period, loans increased by 20.7 percent, to over $68,000,000.00. Overall, The Board found the area to be served to be an area of rapid demographic and economic growth, increasing in population, and with a progressive economy.

Finally, Appellant contends that the lower Court erred in rejecting its argument that, for The Board’s grant to be sustained, there must be a finding that there is a present need for a savings and loan association in the area. Essentially, Appellant’s argument is boiled down to be that the proof heard by The Board in 1973 had no application in 1975, due to changing economic and social conditions. Our rejection of this argument is based on practical considerations. Because of the tremendous growth of litigation and the physical limitations of the Courts, there is a lapse of time between decisions of an administrative tribunal or trial Court and the Appellate Court. At present, we know of no way to avoid the delay, but have long worked toward judicial economy. To hold that this decision must be reversed for stale evidence would only prolong the litigation, and open the door for an endless cycle of appeals and rehearings of cases in this type. It has already been four years since the original filing of the application. It is not unreasonable to say that, if we were to remand for the taking of new proof, another four year cycle would be forthcoming. We also note that this argument was not raised before The Board, but only after the question had reached the Courts. Therefore, any such argument is deemed to have been waived.

For the reasons hereinabove stated, the judgment is affirmed.

Special Chief Justice Comer Boyett and Special Justice R. Eugene Bailey join in the majority opinion.

Fogleman, J., concurs.

Harris, C.J., and Byrd and Holt, JJ., not participating.

John A. Fogleman, Justice,

concurring.

I concur in the result. I do not agree that the statutory construction urged by appellant would require that the name of the full-time manager be submitted with the application before the Board could find that the applicant would have full-time management. This finding could be assured by other means, one of which is approval by the Board, when the manager is employed. See First Federal Savings & Loan Ass’n. v. Arkansas Savings & Loan Ass’n. Board, 257 Ark. 985, 521 S.W. 2d 542. I felt that the construction of the act urged by appellant was proper, but recognize that the matter is subject- to argument and defer to the majority.

I disagree with the position that, whenever the matter is before the Board for factual determination, changed conditions are never pertinent. Little, if any, of the data or opinions in this case could be related to the changed situation that arose from the establishment of a full-time, full-service branch of another savings and loan association in Mountain Home. This is a dangerous precedent which could seriously affect not only new permittees, but existing financial institutions and ultimately the general public. I cannot join in that portion of the majority opinion. But it seems to me that appellant had the burden of offering evidence before the Board pertaining to the potential impact of the new institution when the Board had its public hearing on November 27, 1973, or at least seeking the opportunity to support by evidence any impact unfavorable to the applicant that appellant alleged would result. Certainly, after the lapse of time involved, the court would not abuse its discretion by refusing to hear evidence on this question or to remand the matter to the Board to do so.

I must observe that most of the delay in this matter has been due to the inability (I trust not unwillingness) of the Board to make proper findings of fact to support its conclusions.

I concur in the result.


author: John A. Fogleman, Justice. Darrell Hickman, Justice,

text:
    Kenneth Allen BRITT v. STATE of Arkansas
    CR 76-206
    549 S.W. 2d 84
    Opinion delivered April 18, 1977
    (In Banc)

      Floyd J. Lofton, for appellant.

      Bill Clinton, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Kenneth Allen Britt was charged with, and found guilty of, two counts of aggravated robbery [Ark. Stat. Ann. § 41-2102 (Crim. Code, 1976)] and one count of battery in the first degree [Ark. Stat. Ann. § 41-1601 (Crim. Code, 1976)]. He was sentenced on each charge; however, the court made the sentences run consecutively and suspended the sentences on one of the robbery charges and on the battery charge. All of the charges were included in one information. Appellant’s sole point for reversal is his contention that the court erred in submitting instructions and “finding instructions,” or forms of verdict, on three offenses which were part of one criminal transaction “and/or” same conduct. The gist of the argument is that, in spite of the fact that two people were robbed and one of them wounded by appellant’s gunfire, all within a few minutes after appellant entered a beauty shop and before he left it, all the acts were part of the “same conduct,” and, thus, he could not be convicted of more than one offense under Ark. Stat. Ann. § 41-105 (1) (e) (Crim. Code, 1976). We disagree, so we affirm.

The evidence showed that appellant came into a beauty shop operated by Helen McPherson on January 12, 1976, at about 3:00 p.m., locked the door, threatened to “shoot the head off” Mrs. McPherson, put a gun to her head, and said he wanted money. He took money from the cash register and Mrs. McPherson’s purse. He then took money from the purse of Mrs. Nethercott, who was in the beauty shop. Mrs. McPherson then went to the back of the shop and got her gun and started firing. Britt fired first, according to Mrs. Nethercott. When the firing stopped, Mrs. Nethercott grabbed appellant and he struck her on the head, splitting it open, and she fell to the floor. Mrs. McPherson took appellant’s weapon away from him, but he had another and used it to shoot Mrs. McPherson in the head. She was left lying on the floor. The whole sequence of events did not last more than five minutes. Appellant was also wounded by the gunfire. The net proceeds of the robberies amounted to about $200.

Appellant contends that he could only be convicted of one offense, because of the language in § 41-105 (1) (e) that one whose “same conduct” may establish the commission.of more than one offense, may not be convicted of more than one of them if the conduct constitutes an offense defined as a continuing course of conduct and this conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. We do not so read the statute.

Neither robbery nor battery in the first degree is defined as a continuing course of conduct. Examples of this kind of offense are: non-support, Ark. Stat. Ann. § 41-2405 (Grim. Gode, 1976); promoting prostitution, Ark. Stat. Ann. § 41-3004, 3006 (Crim. Code, 1976); erecting or maintaining a gate across a public highway, Ark. Stat. Ann. § 41-2102 (Repl. 1964), now codified as obstructing a highway, Ark. Stat. Ann. § 41-2915 (Crim. Code, 1976). “A continuing offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy; an offense which continues day by day; a breach of the criminal law, not terminated by a single act or fact, but subsisting for a definite period and intended to cover or apply to successive similar obligations or occurrences.” 22 CJS 6, Crim. Law § 1. The following examples are listed in § 281, Crim. Law, 22 CJS 731 et seq: carrying concealed weapon; continuous keeping of a gaming or a disorderly house; desertion and neglect to provide for family; embezzlement; engaging in business without license; maintaining nuisance; offenses relating to intoxicating liquors; and a conviction for violating a Sunday law. Another example is found in Eclectic State Medical Board v. Beatty, 203 Ark. 294, 156 S.W. 2d 246, where we said:

In the case of State Board of Health v. Roy, 22 R.I. 538, 48 A. 802, 803, the court held that where one obtains a license from a state medical board by false or fraudulent representations, this is a continuing offense. Every time such person undertakes to practice under his license he keeps up and continues the fraud initiated when he obtained by false representations his pretended authority to practice.

The continuing course of conduct contemplated by Ark. Stat. Ann. § 41-105(1)(e) is explained with considerable clarity, and in a manner peculiarly applicable here, in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). There the court said:

*** The distinction between the transactions here involved and an offense continuous in its character is well settled, as was pointed out by this court in the case of Re Snow, 120 U.S. 274, 30 L. Ed. 658, 7 S. Ct. 556. There it was held that the offense of cohabiting with more than one woman, created by the Act of March 22, 1882, chap. 47, 22 Stat. at L. 31, was a continuous offense, and was committed, in the sense of the statute where there was a living or dwelling together as husband and wife. The court said (pp. 281, 286):
It is, inherently, a continuous offence, having duration; and not an offence consisting of an isolated act. *** A distinction is laid down in adjudged cases and in textwriters between an offence continuous in its character, like the one at bar, and a case where the statute is aimed at an offence that can be committed uno ictu.
The Narcotic Act does not create the offense of engaging in the business of selling the forbidden drugs, but penalizes any sale made in the absence of either of the qualifying requirements set forth. Each of several successive sales constitutes a distinct offense, however closely they may follow each other. The distinction stated by Mr. Wharton is that “when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.” Whart. Crim. Law, 11th ed. § 34. Or, as stated in note 3 to that section, “The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. ... If the latter, there can be but one penalty.”

The common law rule was certainly contrary to the construction appellant urges upon us. This statute, a part of a comprehensive code, should not be construed to overrule a principle of established common law unless the intent to do so is plain. Our language in Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 457 S.W. 2d 509, is appropriate, viz:

Of course, as pointed out by appellees, in attempting to codify a large body of law it is almost impossible to anticipate all the factual situations that may arise. And it is for this reason that courts have adopted the principle of statutory construction that a statute will not be construed so as to overrule a principle of established common law, unless it is made plain by the act that such a change in the established law is intended. In Barrentine and Ives v. State, 194 Ark. 501, 108 S.W. 2d 784, we said,
It has long been the rule in this state that “A statute will not be taken in derogation of the common law unless the act itself shows such to have been the intention and object of the legislature. ” (citing cases). A careful reading of the act fails to convince that such was the intention and object of the Legislature.

Appellant, however, seizes upon the language of the commentary to § 41-105 (1), which was before the General Assembly, but not adopted by it as a part of the Criminal Code of 1976, giving examples of the “same conduct” as the term is used in the section. There it was said that:

*** If X comes upon A, B, and C and robs them one at a time, the robberies arise from the “same conduct” despite the fact that X engages in separate acts with respect to A, B, and C. However, “same conduct” does not have application to a situation where X, pursuant to a single scheme, robs A on Monday, B on Tuesday, and C on Wednesday.

It should be noted that the first sentence of the section clearly states that, when the “same conduct,” i.e., the robbery of A, B, and C, establish the commission of more than one offense, the defendant (X) may be prosecuted for each such offense, unless the conduct constitutes one of the exceptions listed in the second sentence. Nowhere is it indicated that the robbery of more than one person or a robbery and a subsequent or accompanying battery are only one crime. As a matter of fact, the commentary also contains this statement:

*** This section retains the basic power of the state to prosecute for as many offenses as are committed by defendant.

The lifting of this example of the “same conduct” out of the context of the full commentary may be misleading, but subsequent statements in that commentary relative to § 41-105 (1) (e) show clearly that there was no intention to apply the exception relied upon by appellant as he does. There it is said:

Subsection (1) (e) prohibits multiple convictions for an uninterrupted course of conduct that violates a statute defining a continuing offense. It would find application in prosecutions for such offenses as Nonsupport (Section 2405) or Promoting prostitution (Sections 3004-3006). The proviso at the end of paragraph (e) leaves the legislature free to indicate, for example, that each day that illegal conduct continues constitutes a separate offense. See, e.g., Ark. Stat. Ann. § 41-2103 (Repl. 1964) (Gate across public road).

In considering such illustrations as appellant relies upon, it has been said that “[a]n explanatory tale [sic] should not wag a statutory dog.” A. P. Green Export Co. v. U.S., 284 F. 2d 383 (Ct. Claims, 1960). We add that the commentary to the Criminal Code is a highly persuasive aid to construction, but it is not controlling over the clear language of the statute. See Schultz v. Young, 205 Ark. 533, 169 S.W. 2d 648; Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P. 2d 617, 40 ALR 3d 420; In re Augustin Bros. Co., 460 F. 2d 376 (8 Cir., 1972); Northern Pac. Ry. Co. v. Sanders County, 66 Mont. 608, 214 P. 596 (1923); Houston Bank & Trust Co. v. Lee, 345 S.W. 2d 320 (Tex. Civ. App., 1961).

Where the language of a statute is clear and unambiguous and susceptible of a sensible construction, resort to extrinsic and collateral aids in construing it is not permitted. Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682; Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707. See also, John B. May Co. v. McCastlain, Commissioner, 244 Ark. 495, 426 S.W. 2d 158; 82 CJS 736, Statutes, § 351. If it is possible to do so, we ascertain the legislative intent from the language used in the statute itself. Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W. 2d 900. It is only when the statute is ambiguous and there is doubt as to its meaning that we resort to such extrinsic matters to shed light on the legislative intent. Arkansas State Highway Commission v. Mabry, supra; Gibbons v. Bradley, 239 Ark. 816, 394 S.W. 2d 489; Callahan v. Little Rock Distributing Co., 220 Ark. 443, 248 S.W. 2d 97.

Since we agree with the trial judge’s application of the statute, and disagree with appellant’s construction of it, the judgment is

Affirmed.

Byrd and Hickman, JJ., dissent.

Darrell Hickman, Justice,

dissenting.

The majority chooses to ignore the clear language of the statute involved in this appeal. The pertinent parts of the statute, although interpreted by the majority, were not quoted and they read as follows:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: ... .
(e) The conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.

We cannot affirm the conviction of both charges of aggravated robbery, if we use our usual rule of strict construction. The statute is primarily intended to prohibit “stacking” charges, and that is what was done. Furthermore, in the Commentary to this statute, there is an example given which is exactly in point with the case before us. The accused in this case was convicted of two counts of aggravated robbery, and in my judgment should have only been convicted of one count of aggravated robbery. I have no argument with the majority regarding the charge of first degree battery.

I am authorized to state that Justice Byrd joins me in this dissent.


author: Conley Byrd, Justice.

text:
    Earl A. WYNN v. STATE of Arkansas
    CR 77-1
    549 S.W. 2d 83
    Opinion delivered April 18, 1977
    (Division I)

      Carl K. Creekmore Jr., for appellant.

      Bill Clinton, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

In Byler v. State, 257 Ark. 15, 513 S.W. 801 (1974), we quoted liberally from the American Bar Association’s “Standards Relating to Pleas of Guilty” and in doing so we stated:

“. . . we must observe that compliance with the Standards will go far toward achieving the twofold purpose of (1) assuring justice both to the accused and the public and (2) minimizing the dreary necessity of having to reconsider in postconviction proceedings points that should have been set at rest when the plea of guilty was accepted.”

The trial court in the case of appellant Earl A. Wynn did not follow those standards in accepting a negotiated plea from appellant and was forced to go through the dreary necessity of holding a hearing on his post-conviction plea that he was not advised of the consequences of his plea nor did he understand the maximum or minimum penalty that could be handed down. At the post-conviction hearing it was shown that appellant was represented by retained counsel who had previously represented appellant in other matters and that the retained counsel had fully explained those matters to appellant before accepting a negotiated plea of second degree murder on a first degree murder charge. Based upon those facts, the trial court denied any relief to appellant’s post-conviction plea.

We agree with the trial court that under the circumstances appellant was not entitled to any post-conviction relief.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Hoi/r, JJ.


author: George Rose Smith, Justice.

text:
    Raymond E. HUFF v. Joseph N. BRUCE Jr. et al
    76-403
    549 S.W. 2d 282
    Opinion delivered April 25, 1977
    (In Banc)

      Wade, McAllister, Wade & Burke, P.A., by: John R. Eldridge III, for appellant.

      Putman, Davis & Bassett, by: Sidney P. Davis, Jr., for appellee.
   George Rose Smith, Justice.

The appellant, Raymond E. Huff, was the holder of a $5,000 contingent claim against the estate of Joe N. Bruce, deceased. The claim became absolute more than six months before the probate court’s final order of distribution of the estate, but Huff failed to present the claim for allowance within that interval. Instead, he brought this suit in the circuit court, asking the court to enter a declaratory judgment holding that the distributees of the estate (the appellees) are liable for the debt up to the extent of the property received by them from the estate. This appeal is from a summary judgment holding Huff’s cause of action to be barred by reason of his failure to file a claim against the estate within six. months after the claim became absolute. The only issue is whether the trial court properly interpreted subsections (b) and (c) of § 119 of the Probate Code. Ark. Stat. Ann. § 62-2610 (Repl. 1971). We agree with the trial court.

Huff, the claimant, and Bruce, the decedent, were comakers of promissory notes due August 1, 1974. Bruce died on February 4, 1974, with the first notice to creditors of his estate being published on February 13. Huff and the holders of the notes filed a claim against the estate on March 14, 1975. That claim was denied, presumably because it was not filed within six months after the first notice to creditors. Ark. Stat. Ann. § 62-2601. No appeal was taken from the dis-allowance of the claim. Huff paid the notes in full on June 3, 1975; so what had been a contingent claim against the estate for Bruce’s share of the debt became absolute. Huff filed this suit against the distributees on August 13, 1975. The probate court’s final order of distribution was made on May 26, 1976, with Huff having taken no further action against the estate.

Section 119 of the Probate Code comprises three subsections. Subsection (a) permits the holder of a contingent claim to file it in the probate court and prove it. Doubtless one purpose of subsection (a) is to enable the contingent creditor to prove his claim while the supporting evidence is still available.

We are concerned with subsections (b) and (c), which read as follows:

b. Claims Which Become Absolute During Administration.
A contingent claim which becomes absolute six months or more prior to the order of final distribution shall be presented for allowance within six months after becoming absolute; and when so allowed shall be deemed an absolute claim as against assets which have not been distributed or distribution whereof has not been approved, and shall be entitled to the benefit of the provisions of subsection c as to assets which do not remain in the hands or subject to the control of the personal representative.
c. When Barred Against the Estate. Contingent claims not presented within the time prescribed by Section 110 [§ 62-2601], or subsection b hereof, shall be barred as against the estate, but within the time now or hereafter permitted by law for bringing actions thereon, may be enforced against distributees of the estate to the extent of the assets of the estate or the proceeds thereof, remaining in the hands of such distributees. [Ark. Stat. Ann. § 62-2610.]

The correct interpretation of the statute is not entirely free from doubt. Huff argues that subsection (b) is merely permissive as to claims becoming absolute more than six months before the order of final distribution, leaving such a creditor free to pursue a remedy against the distributees, under subsection (c), without having filed a claim under (b). In making that argument Huff relies upon the reference in subsection (c) to “claims not presented within the time prescribed by ... subsection b hereof.” He also stresses the statement in the Committee Comment that subsection (c) covers “the rights of the holders of contingent claims who were not required to and did not present their claims (whose rights are not barred thereby) and whose claims become absolute more four italics] than six months prior to the order of final distribution.”

In construing the slightly conflicting language of the statute and of the Comment to require the filing of claims that become absolute more than six months before the final order of distribution, we are strongly influenced — as we should be — by the practical desirability of that interpretation. We must assume that the draftsmen of the Code and the legislators who approved it intended a good result, not a bad one.

In the first place, the Code fixes six months as the basic period allowed for the filing of claims. § 62-2601. It is fair and reasonable to allow that same period for the filing of a contingent claim after it becomes absolute. Otherwise a creditor whose claim was due when the notice to creditors was published would have only six months for the assertion of his demand, but a creditor whose contingent claim became absolute one week after that publication would have extra months and even years in which to act. Such a protracted period of uncertainty about the liability of the estate or of the distributees is to be avoided.

In the second place, there are decided advantages in requiring that claims be asserted against the estate rather than against the distributees. The various beneficiaries of an estate are often residents of two or more jurisdictions. Thus the assertion of a single demand against them might entail a multiplicity of suits. There might also be problems about the comparative value of the property received by the several distributees and the extent to which they still had the property or its proceeds. All such difficulties are avoided if the claim must, whenever reasonably possible, be asserted against the estate.

The considerations just mentioned are supported by the presence of mandatory language in the statute and Comment. Subsection (b) provides that contingent claims that become absolute six months or more before the order of final distribution “shall” be presented for allowance within six months after becoming absolute. “Shall” is frequently used as a synonym of “must” rather than as a future auxiliary verb. Fort Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S.W. 2d 968 (1941). The Comment, in referring to subsection (b), recognizes “the requirement” that claims becoming absolute at least six months before the final order of distribution be filed. Colonel Adrian Williamson, one of the draftsmen of the Code, regarded subsection (b) as mandatory. In his words: “If the claim becomes absolute six months prior to the final distribution, it must be filed within six months after it became absolute.” Panel on Experience Under the Arkansas Probate Code, 12 Ark. L. Rev. 38, 56 (1957). We made a similar statement in Whitener v. Whitener, 227 Ark. 1038, 304 S.W. 2d 260 (1957), although the point was not directly at issue.

We are not persuaded that the many reasons favoring a mandatory interpretation of subsection (b) are overcome by the arguments urged by the appellant. In particular, we agree with the appellees’ suggestion that the word “more,” which we italicized in quoting subsection (c), was inadvertently used instead of “less.” Unless that view is taken, the statute and the Comment are hopelessly self-contradictory. We cannot believe such a result to have been the legislative intention.

Affirmed.

Byrd, J., dissents.


author: Frank Holt, Justice.

text:
    Ronnie PETTINGILL v. STATE of Arkansas
    CR 77-5
    549 S.W. 2d 284
    Opinion delivered April 25, 1977
    (Division I)

      Forrest L. Jacobi, for appellant.

      Bill Clinton, Atty. Gen., by: B. J. McCoy, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant, represented by court appointed counsel, pleaded guilty to burglary and grand larceny and was sentenced to a term of 15 years imprisonment in the Arkansas Department of Correction. Subsequently, he filed a pro se petition for post-conviction relief pursuant to Rule 37 alleging certain infringements of his constitutional and statutory rights. The trial court granted him a new trial without holding an evidentiary hearing. The state then amended its information alleging appellant was a habitual criminal. Upon a retrial appellant, represented by a different court appointed counsel, was convicted by a jury of the burglary, grand larceny charges and, also, being a habitual criminal. His punishment was assessed at 31 1/2 years in the Arkansas Department of Correction. For reversal appellant contends, through his court appointed trial counsel, that the trial court erred by granting his pro se petition, as an indigent, for post-conviction relief inasmuch as appellant “did not knowingly and intelligently waive his right to counsel and was thereby denied his constitutional right to equal protection.” In effect appellant asserts he should have had counsel to advise him in the preparation and filing of his pro se petition. Therefore, the court should not have granted his pro se petition. This novel argument is wholly without merit.

“A defendant’s technical knowledge is irrelevant to the assessment of a knowing exercise of his constitutional right to represent himself. ” Burton v. State, 260 Ark. 688, 543 S.W. 2d 760 (1976); Faretta v. California, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The trial court is not obliged to appoint counsel even for the resolution of the issues presented in a post-conviction relief petition if an evidentiary hearing is not necessary. Dyer v. State, 258 Ark. 494, 527 S.W. 2d 622 (1975).

Further, it cannot be said here that appellant was a stranger to courtroom procedure since it was alleged and proved that he was a habitual criminal. Additionally, he had originally pleaded guilty to the burglary and grand larceny charge to which he had confessed and this confession was not controverted in the case at bar.

We hold that appellant has demonstrated no infringements of his constitutional rights.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.