author: Robert L. Brown, Justice.

text:
    William Edward WHITSON v. STATE of Arkansas
    CR 93-404
    863 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

William Whitson, the appellant, was found guilty of Driving While Intoxicated and violation of the Implied Consent law in the Municipal Court of Springdale. He appealed to the Washington County Circuit Court. Following a jury trial, he was again found guilty of both charges. Based on the jury verdict, his license was suspended for six months, a $ 150 fine was levied against him, and he was sentenced to three days in the Washington County Jail. On appeal, he raises the following issues: (1) whether the trial court erred by admitting testimony about the Horizontal Gaze Nystagmus (HGN) Test; (2) whether the trial court erred by permitting testimony of Whitson’s post-Miranda silence; (3) whether the trial court erred by not ruling on the constitutionality of the Arkansas Implied Consent Law; and (4) whether the trial court erred by allowing the State to inquire about a prior bad act committed by the appellant.

None of the errors asserted requires reversal of this case, and we affirm.

During the early morning hours of June 1, 1991, the Springdale Police Department responded to a call regarding a problem at a residence jointly owned by Whitson and a friend of longstanding, Penny Curtis. Officer Robert Scott Lewis of that department arrived at the appellant’s residence at 2:05 a.m. At trial, Officer Lewis testified that he found the appellant to be “highly intoxicated.” He was drinking a beer when the officer arrived, and his eyes were bloodshot and glassy. His speech was also slurred, and his movements were slow and sluggish. The police officer advised the appellant that “he should not drive at all.” Fearing that Whitson might try to leave, the officer notified the Springdale dispatcher of the license number on Whitson’s black Ford Ranger truck.

Approximately two hours later at 4:20 a.m., Officer Lewis observed Whitson’s truck going east on Highway 412 towards Huntsville. The officer followed the truck and saw the appellant cross the center line two times. He stopped the appellant, and when Whitson exited his vehicle, Officer Lewis approached him and told him that he “knew he had been drinking” and requested him to take field sobriety tests to determine his level of intoxication. Again, the officer noted that the appellant’s eyes were very bloodshot, his speech was slurred, he smelled of intoxicants, and he was swaying and leaning against the truck.

Officer Lewis gave the appellant three sobriety tests. He first administered the one-leg-stand test. Prior to giving the appellant final instructions about the test, the officer asked him if he had any knee, back, or feet problems. The appellant said that he had back problems. The appellant failed this test. The second test conducted was the finger-to-nose test. While giving Whitson instructions for this test, the officer was told that Whitson’s left arm did not function properly, and he would only be able to perform the test with his right hand. Officer Lewis then had the appellant perform-the test with his right hand only. The appellant also failed this test.

The third test administered by the police officer was the horizontal gaze nystagmus test (HGN test). Officer Lewis later testified that he had taken an eight-hour night course on HGN testing at the State Police Academy. In Whitson’s case, he tested each eye separately and administered three drills for each eye. The officer first requested that Whitson follow the tip of his pen with one eye without moving the head; secondly, that he move his eye fully to the corner; and thirdly, that he follow the pen with his eye to a forty-five degree angle. Officer Lewis stated at trial that he looks for several things during the tests, including a lack of smooth pursuit by the eye and the presence of nystagmus or involuntary twitching and jerking in the eye. He stated that nystagmus indicates the presence of alcohol in the system and alcohol actually increases nystagmus to a measurable degree. He concluded that the tests showed nystagmus for both eyes under all three tests which indicated the presence of alcohol in the system. Whitson was then placed under arrest for driving while intoxicated.

The police officer later testified that had Whitson passed two of the three field sobriety tests, he would not have arrested him, but he failed all three. After his arrest, Whitson was taken to the police station for a breathanalysis where he was read the Implied Consent Warning and Right to Another Test form by Officer Lewis. Whitson indicated to the police officer that he understood the form and that he would take the test, and he checked the answers to questions on the form and initialed them. Whitson either refused or was unable to blow into the machine on two occasions. He attributed this inability at trial to a scarred lung condition. He was charged with DWI and violation of the Implied Consent Law.

Whitson was tried and convicted of both charges in Springdale Municipal Court. He then appealed to Washington County Circuit Court. Prior to trial, Whitson moved to dismiss the Implied Consent charge on grounds that the law is unconstitutional, both facially and as applied. Specifically, he argued that Ark. Code Ann. § 5-65-205(c) denies the accused the right to a jury trial because it speaks in terms of a judge deciding the issue. As a concomitant, he contended that only a judge could determine violation of implied consent under the statute — not a jury. The trial court denied the motion to dismiss.

A jury was impaneled to hear the DWI and implied consent charges in circuit court. Whitson was convicted on both charges and assessed three days in jail and $150 fine for DWI and a six-month suspension of his drivers license for violating the Implied Consent Law. Judgment was then entered.

I. HGN TEST

On appeal, the appellant first argues that the trial court-erred in admitting Officer Lewis’s testimony about the HGN test because (1) the test was not relevant, and (2) a preliminary Prater hearing to determine relevancy was not conducted. He cites this court to Prater v. State, 307 Ark. 180, 820 S.W.2d 429 (1991), and Middleton v. State, 29 Ark.App. 83, 780 S.W.2d 581 (1989), and argues that a mistrial should have been declared.

In 1986, the Arizona Supreme Court defined nystagmus as follows:

Nystagmus is an involuntary jerking of the eyeball. The jerking may be aggravated by central nervous system depressants such as alcohol or barbiturates. (Citation omitted.) Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side.

State v. Superior Court of County of Cochise, 149 Ariz. 269, 271, 718 P.2d 171, 173 (1986). In 1988, an American Law Reports Annotation further stated that HGN testing had been in use for 30 years but had not been widely used until recently. Horizontal Gaze Nystagmus Test: Use In Impaired Driving Prosecution, 60 ALR4th 1129, § 1, p. 1131 (1988).

We note initially that Officer Lewis did not testify to a specific blood alcohol percentage after administering the HGN test but only concluded that the test indicated the presence of alcohol. The pertinent DWI statute describes two unlawful acts — one for driving while intoxicated and one for driving with .1 percent blood alcohol content as proven by chemical testing:

(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.
(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10 %) or more by weight of alcohol in the person’s blood as determined by a chemical test of the person’s blood, urine, breath, or other bodily substance.

Ark. Code Ann. § 5-65-103 (1987). “Intoxicated” is further defined as ingesting alcohol to such a degree that the driver’s motor skills are substantially altered and a clear and substantial danger to the driver or to others exists. Ark. Code Ann. § 5-65-102(1) (Supp. 1991).

In 1989, the Court of Appeals concluded that the testimony of an arresting officer was insufficient to provide an evidentiary foundation to determine the percentage of alcohol content in the driver’s blood. Middleton v. State, supra. In that case, the officer testified that the driver’s blood alcohol level was. 15 or. 16 percent based solely on the HGN test.

The fact that the police officer in Middleton v. State testified to fixed percentages of blood alcohol content under § 5-65-103(b) distinguishes that case from the case at bar. Here, the HGN test administered by Officer Lewis was not used to quantify a precise percentage of blood alcohol content but rather to show some indication of alcohol consumption in conjunction with other field sobriety tests. Using the test to identify a precise blood alcohol content under § 5-65-103(b) is vastly different from testing to indicate some alcohol in the system for purposes of intoxication under § 5-65-103(a). In a later case, the Court of Appeals had occasion to consider the HGN test when the testing officer did not attempt to identify precise blood alcohol content. Brown v. State, 38 Ark. App. 18, 827 S.W.2d 124 (1992). In Brown, the Court of Appeals held that where there was no testimony of specific blood alcohol percentages by the police officer but only that the HGN test showed the driver had ingested substances that would make him an unsatisfactory driver, no error occurred. The facts of the Brown case more closely approximate those in the present case.

We note that other jurisdictions have also been circumspect about permitting police officers to testify to percentages of blood alcohol content predicated solely on the HGN test. See, e.g., State v. Superior Court of County of Cochise, supra; People v. Loomis, 156 Cal. App. 3d Supp. 1, 203 Cal. Rptr. 767 (1984). Yet, when blood alcohol content is not quantified by the testifying officer, introduction of nystagmus as some evidence of impairment due to alcohol has been allowed. See, e.g., State v. Superior Court of County of Cochise, supra (dictum); State v. Clark, 762 P.2d 853 (Mont. 1988). In County of Cochise, the Arizona Supreme Court assessed the use of HGN testing to prove blood alcohol content or, alternatively, to prove that one was “driving under its influence.” The Arizona Court drew a clear distinction between 1) using nystagmus to prove a percentage of blood alcohol content under one Arizona statute comparable to Ark. Code Ann. § 5-65-103(b), and 2) using it to prove driving under the influence of alcohol under a second statute much like Ark. Code Ann. § 5-65-103 (a). The court denied the use of HGN testing to establish blood alcohol content but did not prohibit introduction of the results of the test to prove driving under the influence.

We agree that testimony of the driver’s nystagmus is relevant for the limited purpose of generally indicating the presence of alcohol. In the case at bar, Whitson was charged with driving while intoxicated, not with operating a vehicle with a blood alcohol content of. 1 percent or more, and the jury was only instructed on the § 5-65-103(a) offense. Also, Officer Lewis’s training and qualifications are not contested on appeal. Moreover, the HGN test was not used to fix a percentage of blood alcohol content under § 5-65-103(b) but rather to indicate impairment. Indeed, no percentages of blood alcohol were testified to by Officer Lewis. We hold, therefore, that testimony of Whitson’s nystagmus was relevant as some proof of intoxication under § 5-65-103(a).

We turn next to the issue of whether the trial court erred in not conducting a preliminary Prater inquiry on the relevancy of the test. In 1991, this court announced the relevancy approach as our standard for determining the admissibility of novel scientific evidence which we described as a more liberal test than the Frye standard which looked to general acceptance of the procedure in question in the scientific community. Prater v. State, supra. The relevancy approach requires that the trial court conduct a preliminary inquiry of any novel scientific evidence and focus on: (1) the reliability of the process used to generate the evidence; (2) the possibility that the jury would be overwhelmed, confused or misled by the evidence; and (3) the connection between the evidence to be offered and the disputed factual issue in the particular case.

The State clearly did not consider HGN testing to be “novel scientific evidence” warranting a preliminary Prater inquiry under these facts. As already indicated, HGN testing has been in existence for 35 years, and officers are trained in this technique at the State Police Academy. Moreover, Whitson, who asked for the discrete hearing, made no showing of novelty but merely argued the absence of reliability and relevancy. We agree, based on the record before us, that the results of nystagmus testing for purposes of showing some indication of alcohol was not novel scientific evidence requiring a preliminary inquiry. Our opinion, however, might well be different had the officer attempted to quantify blood alcohol content based solely on the HGN test.

In sum, we hold that the results of the HGN test were relevant to show alcohol consumption in conjunction with the results of other field sobriety tests performed. We note in this holding that the training and qualifications of Officer Lewis to administer the test are not in dispute. We further underscore the point that the test was not used to quantify blood alcohol content and, thus, the novelty of the test was not such as to require a discrete Prater inquiry. The motion to declare a mistrial was properly denied.

II. LACK OF COOPERATION

The appellant next argues that his right to remain silent under the Fifth Amendment was violated after he was given Miranda warnings in contravention of Doyle v. Ohio, 426 U.S. 610 (1975). He specifically objects to testimony given by Officer Lewis that during the booking process he was cooperative “[t]o a certain degree” and “refused to answer certain questions.” The State counters that this issue was not preserved for appeal because at trial Whitson argued that his refusal to answer questions was irrelevant whereas on appeal he has changed his argument to violation of Due Process on the basis that the officer’s remarks constituted a reference to his post-Miranda silence.

It is well settled that only an issue stated clearly and specifically below will be reviewed on appeal. See, e.g., Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990); Horn v. State, 282 Ark. 75, 665 S.W.2d 880 (1984). Where an appellant objects to testimony on one theory at trial, we will not consider a distinct argument raised for the first time on appeal. Segerstrom v. State, 301 Ark. 314, 783 S.W.2d 847 (1990), Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). The reason is simple. The trial court was not given an opportunity to consider the point now raised. Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992); Gustafson v. State, 267 Ark. 83, 593 S.W.2d 187 (1980).

In the instant case, Whitson objected to the introduction of a Miranda warning form which he apparently refused to sign. The State sought to introduce the form as evidence of the appellant’s lack of cooperation. The court sustained a defense objection to its introduction but permitted inquiry into Whitson’s “overall degree of cooperation” on the basis that this was probative of intoxication. Following that ruling, Officer Lewis testified, “Mr. Whitson was cooperative to a certain degree. He refused to answer certain questions.” Defense counsel objected again, and the court ruled a second time that lack of cooperation was relevant to the issue of intoxication.

Though Whitson protests vehemently that this is not the case, it is obvious to us that his argument has changed on appeal. Whitson now argues that his Due Process rights were violated under Doyle v. Ohio, supra, by allowing interrogation which alluded in any respect to his post-Miranda silence. This is a wholly distinct and dissimilar argument from his objection concerning the relevancy of a refusal to sign the Miranda form which he made at trial. There, the argument made was that a refusal to sign a Miranda form was not pertinent to the issue of lack of cooperation. We will not consider constitutional issues raised for the first time on appeal, Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993), and we conclude that this issue is not properly preserved for appeal.

As a footnote to this issue, we observe a potential inconsistency between advising a defendant of the right to remain silent as part of the Miranda warnings and using any subsequent refusal to answer questions as evidence of uncooperativeness and, ultimately, of intoxication. The privilege against self-incrimination embraced within the right to remain silent is fundamental. Using that silence to prove lack of cooperation, if appropriately raised, is clearly prohibited. However, a defendant could well refuse to answer certain questions in a spirit of rebellion that have nothing to do with guilt or innocence. In the case before us, we can only surmise what brand of “questions” Officer Lewis was alluding to in his testimony.

III. IMPLIED CONSENT LAW

Next, Whitson charges that the Arkansas Implied Consent Law is unconstitutional on its face and as applied in that it provides for a judicial determination and not trial by jury. Because the judge is the factfinder under Ark. Code Ann. 5-65-205 (c) (1987), according to the appellant, the law deprives defendants of their right to a jury trial. This point was argued by appellant as a pre-trial motion, but the trial court refused to rule on the constitutionality of the statute, stating that the motion was not timely filed and the Attorney General had not been given notice.

We hold that this point is now academic because the appellant did receive a jury trial on the implied consent charge. He is not a member of the class adversely affected and, therefore, lacks standing to raise the issue that § 5-65-205(c) does not provide for a jury trial. Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991). Furthermore, because the appellant has received a jury trial the matter is moot, and there is no relief left to be afforded. See Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993).

IV. PRIOR BAD ACT

For his final point, the appellant argues that the trial court erred by allowing the State to elicit testimony from Peggy Curtis, that he had previously fought with her and shoved her. We note that the appellant’s defense was based in large part on the fact that he was physically unable to pass the field sobriety tests due to back and arm injuries. The colloquy on this issue was as follows:

PROSECUTOR: Is he able to engage in fighting?
CURTIS: I have never seen him fight.
PROSECUTOR: You haven’t?
CURTIS: No.
PROSECUTOR: He has fought with you, hasn’t he?
CURTIS: He has never hit me.
PROSECUTOR: Okay, I want to show you a document here that I want to call State’s Exhibit Number 3. Is this in your writing? An affidavit you filled out at my office.
CURTIS: Yes, he didn’t hit me, he shoved me.

The defense first objected on grounds that this was impeachment on a collateral matter by using extrinsic evidence and later added objections to the State’s introduction of the affidavit on the basis of relevancy and the resulting prejudice which would outweigh the probative value of the document. The trial court denied introduction of the affidavit but permitted the prosecutor to inquire further into the “rough-housing” between Whitson and Peggy Curtis as relevant to Curtis’s truthfulness.

First, we note that Whitson is entirely correct that a witness cannot be impeached by extrinsic evidence on a collateral matter. Ark. R. Evid. 608(b); see also Sutton v. State, 311 Ark 435, 844 S.W.2d 350 (1993). The trial court did properly deny admission of the affidavit into evidence. We turn, therefore, to the issue of the cross examination itself. Even though the extent of Whitson’s physical abilities was a crucial issue in this case, we consider questioning about whether the appellant could hit, shove, or push Curtis to be a collateral matter and, in addition, an improper area of examination for the very reason argued by the appellant — its probative value was outweighed by the potential prejudicial impact. Ark. R. Evid. 403. Nonetheless, we note where later in her testimony, Curtis answered affirmatively that the appellant was rough-housing her and had pushed her on the day he was arrested. Whitson made no objection to this subsequent testimony. Hence, we conclude that any error committed by the prosecutor’s first questioning which was objected to by defense counsel was rendered harmless by Curtis’s subsequent testimony to the same effect, though it related to a separate incident. See Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Billy Joe BRITTON v. STATE of Arkansas
    CR 93-832
    861 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      John L. Kearney, for appellant.
    No response.
   Per Curiam.

Billy Joe Britton, by his attorney, has filed a motion for a rule on the clerk.

His attorney, John L. Kearney, admits by motion and brief that the record was tendered late due to a mistake on his part.

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

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Lawrence Charles GARRETT v. STATE of Arkansas
    CR 93-965
    861 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered October 18, 1993

      John L. Kearney, for appellant.
    No response.
   Per Curiam.

Lawrence Charles Garrett, by his attorney, has filed a motion for a rule on the clerk.

His attorney, John L. Kearney, admits by motion and brief that the record was tendered late due to a mistake on his part.

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

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice. Robert H. Dudley, Justice, Jack Holt, Jr., Chief Justice.

text:
    Mickie Gean JOHNSON v. STATE of Arkansas
    CR 93-402
    863 S.W.2d 305
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993
    [Supplemental Opinion on Denial of Rehearing December 13, 1993.]

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

      Dudley & Newbern, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This case involves a consideration of the Arkansas implied consent law, codified at Ark. Code Ann. §§ 5-65-202, 5-65-205 (Supp. 1991), and the effectiveness of a. waiver of trial by jury. We hold that the appellant effectively waived his right to trial by jury and that his assessments of our implied consent law and a police implied-consent admonition form are of no moment.

The appellant, Mickie Gean Johnson, was arrested by State Trooper Mark Meadows on July 26, 1991, for driving while intoxicated, fleeing, and violation of the implied consent law. He was tried in the Prairie Grove Municipal Court in January 1992 and was found guilty of DWI and violation of the implied consent law. The court found him not guilty on the charge of fleeing. Following a de novo bench trial before the Washington County Circuit Court in July 1992, Johnson was again found guilty of DWI and violation of the implied consent law. The appellant raises three issues for reversal.

I. WAIVER OF TRIAL BY JURY

Johnson’s first point addresses essentially the same question that we recently considered in Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993), where we found that an attorney’s waiver of his client’s right to a jury trial, made in open court and in the presence of the defendant, satisfied the requirement of Ark. R. Crim. P. 31.2 that such a waiver be made “personally.” Johnson contends that the trial court erred in not granting him a trial by jury. He asserts that the circuit court failed to obtain a valid waiver of his right to a jury trial because it did not address him personally and elicit a knowing, intelligent, and voluntary waiver. We disagree.

Johnson’s argument is based primarily upon two recent DWI cases which we considered in Bolt: Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), and Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992), in which we declared that, under the Arkansas Constitution and the Arkansas Rules of Criminal Procedure, a criminal defendant is entitled to receive a trial by jury unless the right is waived in the manner provided by law.

As we noted in Calnan v. State, supra, the “manner prescribed by law” for waiver in a criminal trial is set forth in Rules 31.2 and 31.3 of the Arkansas Rules of Criminal Procedure. Rule 31.2 provides that:

Should a defendant desire to waive his right to trial by jury, he must do so personally either in writing or in open court. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury shall be made and preserved.

Rule 31.3 states that “In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney. . . .”

The two cases cited by Johnson, although superficially similar to the present set of circumstances, bear marked differences, as we noted in comparing the corresponding situation in Bolt. In Calnan, the appellant was tried in Rogers Municipal Court and found guilty of DWI, disorderly conduct, violation of the implied consent law, and speeding. She appealed to the circuit court and, in a de novo bench trial, was found guilty of all charges except speeding. No mention was made of a trial by jury by either party or the court. On appeal, Calnan asserted that she had not waived her right to a jury trial, and this court agreed, noting that a waiver is an “intentional relinquishment of a known right,” 310 Ark. at 748, 841 S.W.2d at 595, and that, under the rules of criminal procedure, the only way a waiver of a jury trial can be effected is “by personally making an express declaration in writing or in open court,” 310 Ark. at 747, 841 S.W.2d at 595, the proceedings of which must be preserved.

In Winkle v. State, supra, the defendant faced a more serious charge — DWI, third offense, in addition to driving on a suspended license and hindering apprehension or prosecution — but, like the defendant in Calnan, neither he nor his attorney asked for a jury trial or offered any objection to the bench proceedings. Citing Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991), we stated that, under the state constitution and rules of criminal procedure, a defendant is entitled to be tried by a jury without making such a motion. Further, we emphasized that a waiver of a jury trial is constitutionally permissible only when it is made in accordance with the provisions of the rules of criminal procedure.

The record in the case now before this court, unlike the transcripts in Calnan and Winkle, is far from silent on the question of waiver. In fact, it is quite similar to the record in Bolt, which reflects that the defendant’s attorney, in open court and in his client’s presence, formally waived “any requirement of a jury trial in this matter.” See 314 Ark. at 387, 862 S.W.2d at 841.

At the beginning of Johnson’s bench trial, the circuit court acknowledged the appellant’s presence, calling him by his full name. During the defense counsel’s closing argument, the following exchange occurred:

THE COURT:. . . As I understand it, the defendant in this particular case has waived his right to a jury trial.
MR. NORWOOD: That’s correct, Your Honor.
THE COURT: Is that not correct?
MR. NORWOOD: Yes, we have a bench trial, yes.
THE COURT: Well, I just wanted to be certain about that.
MR. NORWOOD: Oh, no, there’s no problem with that, Judge.
THE COURT: Okay, fine. You may proceed.
MR. NORWOOD: What I’m saying is even if we had had a jury —
THE COURT: I understand . . . your argument. I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we’re trying here today.
MR. NORWOOD: Right.

The distinction between the Calnan and Winkle cases and Johnson’s situation — and the analogy with Bolt — is clear. Where nothing was said one way or the other about waiver during the trials in the earlier cases, defense counsel in the present matter affirmed “in open court” (as Ark. R. Crim. P.31.2 puts it) that Johnson’s right to trial by jury had been waived. Moreover, like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial. Under the circumstances of the present case, Johnson was bound by his attorney’s action.

II. IMPLIED CONSENT LAW

The appellant argues in his second point for reversal that the Arkansas implied consent law — and specifically Ark. Code Ann. § 5-65-205 (Supp. 1991)— is facially unconstitutional because it removes from the jury’s province the ability to determine whether the arresting officer had reasonable cause to believe the defendant had been driving while intoxicated. In closing argument, Johnson’s attorney asserted that if his client had been tried by a jury, the implied consent law would have violated his right to trial by jury because the trial court, rather than the jury, would have determined whether the appellant had been guilty of refusing to submit to a chemical test.

The statutory section at issue provides:

If the judge determines that the law enforcement officer had reasonable cause to believe the arrested person had been driving while intoxicated or while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood, and the person refused to submit to the test upon the request of the law enforcement officer, the judge shall order the Office of Driver Services to [suspend or revoke the operator’s license].

Ark. Code Ann. § 5-65-205(c) (Supp. 1991).

The trial court declared the constitutional issue moot because “the defendant has specifically waived his right to a jury trial.” Johnson’s contention is based on a hypothetical proposition: had there had been a jury trial, the appellant’s rights would have been jeopardized. But it is well established that this court does not answer academic questions. Neely v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986); Crittenden County v. Williford, 283 Ark. 296-A, 679 S.W.2d 795 (1984), supp. op. on den. of reh’g; Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Nor does the Supreme Court issue advisory opinions. Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); City of Springdale v. Jones, 295 Ark. 129, 747 S.W.2d 98 (1988).

Moreover, Johnson’s attorney waited until his closing argument to address the issue of the constitutionality of the implied consent law. Failure to object at the first opportunity to do so waives any right to raise the point on appeal. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).

III. IMPLIED-CONSENT ADMONITION FORM

Finally, Johnson urges that the trial court erred in refusing to dismiss the charge of refusing to submit to a chemical test on the basis that he was inadequately informed of the consequences of refusing to take the test. The language of Ark. Code Ann. § 5-65-205(c) (Supp. 1991), quoted above, states that “the judge shall (emphasis added) order the Office of Driver Services” to suspend or revoke the motor vehicle operator’s license upon a judicial determination that the law enforcement officer had reasonable cause to believe that the arrested driver was DWI or while there was 0.10% of alcohol in the driver’s blood and the driver refused to submit to a chemical test.

The consent form which Johnson signed contained the following notice:

If I have reasonable grounds for believing you have been driving or have been in actual control of a motor vehicle while intoxicated or while impaired by alcohol or a controlled substance, I can request that you take a chemical test of my choosing to determine your blood alcohol and/or controlled substance content.
If you refuse this test and a court later determines that I had proper cause to require you to take the test, then your driver’s license may be suspended for six months or more. (Emphasis added.)

The arresting officer, Mark Meadows, testified that he read the rights and consent form to Johnson, who signed the line indicating his refusal to take a chemical test. Johnson himself stated at trial that he had read the form and believed that the phrase “may be suspended” meant that “at least I had a chance of still keeping my license.” He said that “I thought you didn’t have to take the test, then you could go to court and argue about it.”

Johnson cites two cases from other jurisdictions involving consent-form variants on statutory language. In State v. Huber, 540 N.E.2d 140 (Ind. App. 3 Dist. 1989), the Indiana implied consent law provided that “the refusal will result in the suspension of [the arrested person’s] driving privileges.” Ind. Code § 9-ll-4-7(b) (1988). The appellate court found that the warning that “your license may be suspended for one year” was insufficient under the Indiana implied consent law, which “requires an advisement that refusal will result in suspension.” 540 N.E.2d at 141.

In Graves v. Commonwealth, 535 A.2d 707 (Pa. Cmwlth. 1988), the commonwealth court found the arresting officer’s implied consent warning insufficient to convey the mandatory nature of the suspension entailed by refusal to submit to a chemical test. The driver had been advised that he “could” lose his license as a consequence of his refusal to take the test. This, the court said, was “inadequate to convey the standard of certainty of the suspension that is mandated by the statute.” 535 A.2d at 708. That statute, 75 Pa. Cons. Stat. § 1547(b)(2), provided that “It shall be the duty of the police officer to inform the person that the person’s operating privilege will be suspended or revoked upon refusal to submit to a chemical test.”

Arkansas, unlike Indiana and Pennsylvania, does not have a statutorily prescribed implied-consent admonition form. The General Assembly did not include such a requirement when it enacted the implied consent law. The United States Supreme Court has held that a defendant need not be apprised of the consequences of refusing to submit , to a chemical test. South Dakota v. Neville, 459 U.S. 553 (1983). As we observed in another context: “The police should not be penalized for attempting to afford an unnecessary procedural safeguard to appellant.” Allen v. State, 211 Ark. 380, 386, 641 S.W.2d 710, 714 (1982).

The trial court did not err in finding that the appellant had been adequately informed of the consequences of refusing to take the prescribed chemical test.

Affirmed.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. I concur in the result reached. I personally do not agree with all of the reasoning expressed in Point I, the point involving waiver of trial by jury. See dissenting opinion, Dudley, Bolt v. State, CR-93-281 (Ark. October 11, 1993). However, the majority has decided this issue, and I now accept that decision.

I write because of a concern I have with Point III, which involves an implied consent form. We have had a number of appeals involving these forms over the last decade, and some of the cases have demonstrated some confusion by the police about the advice to be given motorists who are arrested for driving while under the influence of intoxicants. Normally, the police are required to advise a motorist on three separate and distinct matters. These three are the detained motorist’s Miranda rights, a request that the detainee take a chemical test, and that the detainee can have a second chemical test at his own expense. I write this concurring opinion solely for the benefit of a prosecuting attorney, city attorney, or deputy prosecutor or deputy city attorney, or police instructor, who might wish to advise police about the forms.

In many of the cases, the first thing that happens after a motorist is taken to the police station is the motorist is given a Miranda warning about his right against self-incrimination. The motorist is told that anything he says can and will be used against him, that he has a right to remain silent, and that he has a right to counsel. Shortly afterwards, an officer asks the motorist if he will take a chemical test of his blood, breath, or urine. Some motorists, having just heard their Miranda rights, choose to remain silent and ask for a lawyer before they take the test. See Wright v. State, 288 Ark. 209, 703 S.W.2d 850 (1986). The motorist may not understand the distinction between the Miranda warning against self-incrimination and consequences of the refusal to take a chemical test. They may not know they have already given an implied consent to the chemical test merely by operating an automobile, Ark. Code Ann. § 5-65-202 (Supp. 1993), or that enforcement of the implied consent law does not violate the provision against self-incrimination, Steele v. State, 284 Ark. 340, 681 S.W.2d 354 (1984), or that the failure to take the test can result in the loss of one’s driver’s license. Ark. Code Ann. § 5-65-205 (Supp. 1993).

868 S.W.2d 43

Doug Norwood, for appellant.

Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

. Thus, it would seem appropriate for the officer to first advise the motorist of his Miranda rights, and then to carefully tell the motorist that the chemical test is not protected under the Miranda warning and that the failure to take the chemical test will likely result in the loss of his driver’s license. It seems only fair for the officer to make the distinction clear. Under the statutes, the policeman must still give a third warning to the motorist. He must advise the motorist that he can have an additional chemical test at his own expense if he so chooses. Ark. Code Ann. § 5-65-204(e) (Supp. 1993).

I concur in every respect with the majority opinion on this point in this case. I write this concurrence solely to set out the distinctness and separateness of the three warnings the police must give in conjunction with the implied consent to chemical test of motorists.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING DECEMBER 13, 1993

Jack Holt, Jr., Chief Justice.

Mickie Gean Johnson urges, in his petition for rehearing, that, in the opinion recently handed down in this case, Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (1993), we erred in our application of Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). More particularly, the appellant contends that we failed to mention the “two-part test announced in Bolt” regarding notice to the accused of a right to a jury trial and the presence of the accused in open court when the attorney makes the waiver.

Bolt’s two-tier ruling reads as follows:

. . .while a defendant who desires to waive his right to a jury trial under Rule 31.2 must do so either in writing or in open court, his or her attorney may also make such a waiver so long as the defendant has acknowledged he or she had been informed of the right and the attorney waives the right in open court, on the record and in the defendant’s presence.

314 Ark. at 390. At his arraignment, Bolt had been informed by the court of his right to a jury trial and had signed a form in which that right and others were set forth. Upon commencement of trial, his attorney, in open court, on the record, and in Bolt’s presence, waived the right to trial by jury. We held this was sufficient.

It is true, as Johnson notes in his petition, that the record in his case is silent on the question of his personal acknowledgment of having been informed by the trial court or his attorney of his right to a jury trial, and it is true, as well, that our opinion does not specifically refer to that portion of the Bolt requirement. The record and the opinion both, however, reflect the fact that the appellant was present when waiver was accomplished, the circuit court acknowledging Johnson’s presence by calling him by his full name in open court. See 314 Ark. at 474, 863 S.W.2d at 307.

Moreover, the open-court, on-the-record exchange between the trial court and Johnson’s attorney reveals that the judge employed the term “right to a jury trial” at a time when Johnson was present in the courtroom. Specifically, counsel expressly confirmed no less than four times (in response to questions or comments by the court) that trial by jury had been waived. In the colloquy, conducted in Johnson’s presence, his attorney stated that it was “correct” that Johnson had waived his right. He went on to declare that “Yes, we have a bench trial, yes,” and to assure the trial court that “there’s no problem with that. . . .” Finally, when the judge stated, “I just wanted to make it clear for the purpose of the record that you waived your right to a jury trial in this case, the case we’re trying here today,” Johnson’s attorney responded by saying, “Right.” Id.

In our opinion, we compared the situation in the present case with that in Bolt, observing that, “like the attorney in Bolt, defense counsel here, in the presence of the appellant, explicitly submitted the case to the court for a bench trial.” 314 Ark. at 475, 863 S.W.2d at 308. Stated another way, Johnson’s presence at the time of waiver amounted to a tacit acknowledgment of his right to a jury trial. As we noted in our opinion, under these particular circumstances, he was bound by his attorney’s actions.

Although a signed acknowledgment that one has been informed of his right to a jury trial, such as the one in the Bolt case, is certainly preferable, when, as in the present case, counsel repeatedly confirms waiver in open court, on the record, and in the defendant’s presence, the defendant may not stand idly by and later cry foul.

The petition for rehearing is denied.

Dudley and Newbern, JJ., would grant rehearing.


author: Robert H. Dudley, Justice.

text:
    METRO TEMPORARIES v. Damon BOYD
    93-197
    863 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Robert E. Hornberger and E. Diane Graham, for appellant.

      Barry D. Kincannon, for appellee.
   Robert H. Dudley, Justice.

Damon Boyd applied for work with Metro Temporaries. Metro is an agency that assigns its applicants to work on a temporary basis for third party companies. Metro assigned Boyd to work four hours for Didier Nurseries. Boyd accepted the assignment and was injured while working on the job. The sole issue on appeal is the method of determining the amount of weekly disability benefits Boyd is entitled to receive under the applicable Workers’ Compensation statute.

The essential facts are that Boyd applied for work with Metro on March 21, 1990. The next day Metro assigned him to work at Fort Smith Plastics, and he received $3.80 per hour from Metro for that work. He worked on that job for approximately thirty hours a week over the next five weeks. On April 25, he suffered a compensable injury. On May 1, he was released to go back to work. Metro offered to reassign him to Fort Smith Plastics, but he refused to do the work. Under his application with Metro, he could refuse to work for a third party, and, even if he accepted an assignment, he was not bound to work any set number of hours. On May 10,1990, Metro assigned him to a job at Didier’s Nursery in Fort Smith. His job was to unload peat moss and his rate of pay from Metro was the same as in the previous job, $3.80 per hour. The Didier job was to last only four hours, and, while unloading peat moss, Boyd injured his knee. Metro, the carrier, and Boyd could not agree on the amount of the weekly permanent partial disability benefit to which Boyd was entitled.

At a worker’s compensation hearing, the parties stipulated to every issue except the amount of weekly disability benefits Boyd was to receive for his permanent partial disability. The administrative law judge considered the hours worked for Metro on both the Fort Smith Plastics and the Didier job assignments and found that Boyd’s benefit rate was $76.17 per week. Metro appealed to the Arkansas Workers’ Compensation Commission. The Commission ruled that Boyd’s “contract of hire in force at the time of the accident” was the four hour job at Didier’s Nursery at the rate of $3.80 per hour, and that, as a result, Boyd was only entitled to the statutory minimum of $20.00 per week. Boyd appealed to the court of appeals. The court of appeals reversed the Commission, and remanded for a determination of appropriate benefits. Boyd v. Metro Temporaries, 41 Ark. App. 12, 846 S. W.2d 668 (1993). We affirm the holding of the court of appeals.

The applicable statutes are as follows:

Ark. Code Ann. § 11-9-518, in part, provides:
Weekly wages as basis for compensation
(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under the contract of hire in force at the time of the accident and in no case shall be computed on less than a full-time workweek in the employment. [Emphasis supplied.]

Ark. Code Ann. § 11-9-519(a) provides that the benefit for total disability shall be two thirds of the average weekly wage. Ark. Code Ann. § 11-9-501 provides the maximum and minimum benefits.

We first interpreted Ark. Code Ann. § 11-9-518(a)(1) and the benefits owing to injured workers who are assigned to temporary jobs in Travelers Ins. Co. v. Perry, 262 Ark. 398, 557 S.W.2d 200 (1977). In that case, Perry made himself available for work at Manpower, Inc., an employment agency similar to Metro in the case at bar, assigned him to work for a third party. Perry was on Manpower’s roll from May 27 through July 2,1975. During that entire time Perry only worked four days at different jobs. He was injured on the last job. The Commission held that Perry was entitled to be compensated for a forty-hour week since he had made himself available to work forty hours a week. The Commission relied on Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W.2d 357 (1974), in which a timberman’s widow was allowed to collect compensation for a full week even though the claimant frequently did not work a full forty-hour week. We distinguished Gill v. Ozark Forest Products and reversed because Gill was under contract to work forty hours at an agreed rate whenever work was available. We wrote, “In Gill, it was undisputed that the worker had a ‘contract of hire in force ’ which provided for a forty-hour work week at an agreed rate whenever work was available.” Perry, 262 Ark. at 400, 557 S.W.2d at 201 (emphasis supplied). Perry, however, was not bound under a contract of hire to be available for work forty hours a week, and, as a result, we held that he should only be compensated for the hours actually worked. Since Perry had worked only four days at $2.20 per hour he was entitled to only the statutory minimum regardless of whether his wages were averaged over his entire tenure with the employment agency or whether each temporary job was considered separately. We made no holding on whether each temporary job assignment might be considered a separate “contract of hire in force.”

In Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (1979), we applied Ark. Code Ann. § 11-9-518(a) to a part-time employee and upheld the commission’s computation of a part-time employee’s benefits on a work week of twenty hours. The same statute has been applied repeatedly for part-time, seasonal, and relief employees. See Wright v. Tyson Foods, 28 Ark. App. 261, 773 S.W.2d 110 (1991); Mack Coal v. Hill, 204 Ark. 407, 162 S.W.2d 906 (1942).

The court of appeals more recently considered a case involving an injured worker who was temporarily assigned by an agency to a third party. In that case, TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), the worker was assigned to a forty hour a week job with pay at the rate of $3.50 per hour. Shortly afterwards, she accepted an assignment to another forty hour a week job which paid $5.50 per hour. She worked on that job “at least three weeks, closer to a month.” The Commission computed her benefits based upon a forty-hour week at $5.50 per hour. On appeal to the court of appeals, TEC argued that the benefit should have been computed by averaging the wages she was paid on both jobs. The average hours worked was apparently not contested. The court of appeals rejected TEC’s argument and held that the Commission’s ruling on the average wage was supported by substantial evidence. The court’s opinion did not discuss the issue of the “contract of hire in force at the time of the accident.” Perhaps the statutory language was not argued by TEC in its brief, but, for whatever reason, it is significant that the issue was omitted from the opinion.

The the next case on the subject is the case at bar. In this case, the court of appeals considered Travelers Ins. Co. v. Perry and TEC v. Underwood and concluded that, under Travelers Ins. Co. v. Perry, the proper standard for determining benefits due the injured worker when he or she is assigned to the job by an agency would be to average the employee’s wages when the employee is working on an assignment of less than a full week at the time of injury, but, under TEC v. Underwood, when an injured worker is working on an assignment of forty hours or more per week the wages should not be averaged, but rather the benefits should be based on the hours and wages for that one week. Boyd v. Metro Temporaries, 41 Ark. App. 12, 15 (1993).

Metro asked this court to review the court of appeals decision and we granted review. In its petition, Metro asserts that all temporarily assigned, injured workers should be treated in the same manner, and whether they later accept assignments of ten hours a week or accept assignments of forty hours a week makes no difference in the “contract of hire in force.” From that premise, Metro argues that the contract either is or is not a “contract of hire in force.” It argues that the statute cannot correctly be construed to provide that there is no “contract of hire in force” when the employee works forty hours a week, but there is such a “contract of hire in force” when the employee works only ten hours a week. Metro further contends that in TEC v. Underwood, the court of appeals held that the wages paid during the forty-hour week in which the worker was injured did not have to be averaged, and that constituted an implied holding the “contract of hire in force and effect at the time” was the contract with the third party. Finally, Metro contends that the court of appeals holding in this case is inconsistent with TEC v. Underwood. Metro’s arguments are meritorious to this point. However, Metro goes further and asks us to overrule the court of appeals decision in this case and to apply the TEC rationale. The result would be that Boyd’s benefit would be based upon his assignment to Didier’s Nursery for four hours at a wage of $3.80, or the minimum statutory benefit. We decline the invitation to overrule the court of appeals in this case.

In support of its argument against averaging of wages, Metro, citing Curtis v. Ermert Funeral Home, 4 Ark. App. 274, 630 S.W.2d 57 (1982), suggests that precedent prohibits an award of compensation based upon the wages received and hours worked at two jobs. We are not persuaded that the cited case prohibits averaging. In that case the claimant worked for two employers, and sustained a compensable injury at one of the jobs. He sought to have the wages from both jobs combined in determining his benefits. The court of appeals held that there was no provision in the statutes authorizing combining incomes from two employers, and that the worker is limited to compensation based upon the wages he was earning under “the contract in force at the time of the accident.” However, the facts in Curtis v. Ermert Funeral Home do not govern this case because Metro is the sole employer under the applicable statute. In Marianna School Dist. v. Vanderburg, 16 Ark. App. 271, 700 S.W.2d 381 (1985), the court of appeals explained the rationale of Curtis v. Ermert Funeral Home, and held that an employee who is working two jobs for the same employer can receive compensation by combining the wages of the two jobs. The court explained:

We find a sound basis for a distinction between the combining of wages earned in concurrent employments with different employers and those earned in concurrent ones with the same employer. The combining of wages from different employers would impose on the employer a liability of which he might not be aware and had not assumed and upon the carrier one for which it was not compensated by premiums. Here the injured worker worked full-time for the same employer and insurance premium computations were based on the waged paid her in both employments.

Vanderburg, 16 Ark. App. at 274, 700 S.W.2d at 383.

In conclusion, Travelers Ins. Co. v. Perry holds that an injured worker like Boyd cannot receive benefits based on a forty-hour week without actually having worked forty hours, unless the worker can prove he or she was bound by contract to work the forty hours if the work were made available. Perry, 262 Ark. 400, 557 S.W.2d at 201. In Ryan v. NAPA, a case involving part-time work, we said that the average weekly wages of the appellant should be computed on the basis of a normal part-time work schedule of twenty hours per week, plus overtime actually worked. Ryan, 266 Ark. at 804, 586 S.W.2d at 7. In Marianna School Dist. v. Vanderburg, the court of appeals held that the statute provides for benefits based upon the combining of wages and hours worked at different jobs, if the different jobs are performed for the same employer. Vanderburg, 16 Ark. App. at 274, 700 S.W.2d at 383. In this case Metro understood that it was the employer because it paid Boyd’s wages, obtained compensation coverage, and stipulated that it was the employer. Metro anticipated assigning Boyd to different jobs, with different hours, and at different wages. Metro assigned Boyd to different jobs pursuant to the contract of hire in force at the time of the accident. Under the cases interpreting the statute, Boyd is entitled to receive benefits based upon averaging the hours worked at the different jobs. Accordingly, we affirm the holding of the court of appeals remanding this case to the Workers’ Compensation Commission for a determination of appropriate relief. We overrule TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), to the extent it is in conflict with this opinion.

Affirmed.


author: Steele Hays, Justice.

text:
    Harold GILBERT v. Reginald SHINE
    93-229
    863 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Davidson Law Firm, by: Brandon L. Clark, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson, for appellee.
   Steele Hays, Justice.

As a result of an intersection accident, Harold Gilbert brought this action for personal injuries against the other driver, Reginald Shine. The jury returned a verdict for the defendant and Gilbert now appeals from the denial of a new trial on two assertions of error: the verdict was not supported by substantial evidence and the trial court abused its discretion in allowing counsel for the defendant to cross-examine him as to prior misdemeanor convictions for hot checks. Finding no error, we affirm.

When a motion for a new trial is made the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP 59(a). But the test on review, where the motion is denied, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 226 (1982).

The collision in this case occurred on Martin Luther King Boulevard at its juncture with Interstate 630. Gilbert’s pickup truck was behind a van waiting to turn left (south) onto Martin Luther King Boulevard. When the light changed, the van moved forward followed by Gilbert. As Gilbert was turning left his truck was struck by a vehicle driven by Reginald Shine.

Gilbert’s testimony was that the light was green for him and red for Shine, a version confirmed by the driver and a passenger in the van. Shine, however, testified that the light was green for northbound traffic. He said he did not see the van prior to the collision:

Q: Do you have a specific recollection of the light of it being green—
A: I looked up at it and I saw a green you know, I didn’t see red, I saw a green, maybe. . .
Q: How long did you have your foot on the brake?
A: I didn’t have it on very long because I thought the light was green and I was going through it, and when I looked up the truck came.

Gilbert argues that Shine’s testimony proves he wasn’t keeping a proper lookout because he failed to see the van and must have been looking down prior to the collision. This testimony, he argues, is proof that Shine’s version of the accident was not physically possible. But whether the light was red or green was a disputed issue and however implausible Shine’s account of the incident may seem, it was for the jury to resolve. Nicholson v. Century 21, 307 Ark. 161, 818 S.W.2d 254 (1991). It is the sole province of the jury to determine not merely the credibility of the witnesses, but the weight and value of their testimony. Fuller v. Johnson, 301 Ark. 14, 781 S.W.2d 463 (1989).

As to Gilbert’s contention that the jury’s verdict was unsupported by substantial evidence, there are two answers: first, Shine’s testimony that the light was green suffices, and, second, where the verdict is against the party having the burden of proof, as in this instance, a literal application of the rule would be untenable, as the defendant may have introduced little or no proof, yet the verdict was for the defendant. We. have examined the rule in that context in a number of cases: See Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985); Schaeffer v. McGhee, 286 Ark. 113, 689 S.W.2d 537 (1985), and Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962).

What evidently occurred in this case is that Gilbert failed to convince the jury by a preponderance of the evidence of one or more of the following elements: that Shine was at fault, that Gilbert sustained injuries, or that his injuries were the proximate result of Shine’s negligence. AMI 203.

As to the issue of the checks, Gilbert made a motion in limine to exclude evidence of prior violations of Arkansas hot check laws. The motion was denied and at trial Gilbert testified on direct examination about hot checks. Shine’s counsel then probed the issue on cross-examination and over Gilbert’s objection the trial court permitted the inquiry as touching on deception with an admonition to the jury to consider it for purposes of credibility. A.R.E. 609(a).

On appeal, Gilbert does not question the denial of the motion in limine, rather, he maintains the trial court permitted the defense to go into too much detail and spend an inordinate amount of time, “exceeding all bounds of probative benefit.” However, we find no objections to the trial court on the basis now argued. There were objections based on relevancy and materiality, or because Gilbert was not represented by counsel when the prosecutions occurred, but nothing in keeping with the argument advanced on appeal. Fuller v. Johnson, supra.

Affirmed.

Holt, C.J., not participating.


author: David Newbern, Justice.

text:
    Duke CLEMENT, Jr., as Successor Trustee of the Lois W. Rich Trust for Duke B. Clement, Jr. and Mary Jack Rich Wilson v. Sara Rich LARKEY, as Trustee of the Jack W. Rich Marital Trust
    93-224
    863 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Rose Law Firm, by: Phillip Carroll, C. Brantley Buck and Clay H. Davis, for appellants.

      Saxton & Ayres, by: Clint Saxton and McConnell Boyd, by: Ross Higman and Lawson F. Apperson, for appellee.
   David Newbern, Justice.

This is an appeal from a ruling of the Crittenden Chancery Court concerning the ownership and distribution of shares of stock in Guaranty Loan and Real Estate Co. (Guaranty). Guaranty is a close corporation. Stock in the corporation is held by Sara Rich Larkey as trustee of the Rich Marital Trust (Trust).

Ms. Larkey sought a declaratory judgment, to determine whether her proposed distribution of the Trust corpus would constitute an abuse of her discretion as trustee. Duke B. Clement, Jr., appeals from the Chancellor’s ruling that Ms. Larkey’s proposed distribution will not constitute an abuse of discretion. We affirm the Chancellor’s decision.

Jack W. Rich, during his lifetime, gave stock in Guaranty to each of his two children, Sara Rich Larkey and Mary Jack Rich Wilson, and to their children, J.E. Norfleet, Jr. (Ms. Larkey’s son), and Duke Clement, Jr. (Ms. Wilson’s son), and in 1976 to Mary Jack Rich Wilson’s husband, Duke Clement, Sr., who has since died. The gift to Duke Clement, Sr., placed 150 more shares of stock on Ms. Wilson’s side of the family than on Ms. Larkey’s side. Ms. Wilson inherited those shares from Duke Clement, Sr.

Jack W. Rich died. By his will he established a marital trust in favor of his widow, Lois W. Rich. When this litigation arose Lois W. Rich was deceased. Ms. Larkey is the trustee of the Rich Marital Trust.

Shares of Guaranty are now held as follows:

SARA RICH LARKEY - 45,475 shares in her own right
MARY JACK RICH WILSON - 45,625 shares in her own right, 150 of which she inherited from her deceased husband, Duke Clement, Sr.
J.E. NORFLEET, JR., (Sara Rich Larkey’s son) - 1.427 shares from a trust established by Lois W. Rich plus 150 shares in his own right.
DUKE CLEMENT, JR., (Mary Jack Wilson’s son) - 1.427 shares from a trust established by Lois W. Rich plus 150 shares in his own right.
RICH MARITAL TRUST (Sara Rich Larkey, trustee) - 12,505 shares.

In his will, Jack W. Rich gave Lois W. Rich a power of appointment over the assets of the Trust. In the residuary clause of her will, Lois W. Rich indicated her intent that assets over which she had such a power be distributed to other trusts she had established for her grandsons, J.E. Norfleet, Jr., and Duke B. Clement, Jr., in an “amount equal to the maximum amount allowable under the per grandchild exemption of [Internal Revenue Code] Section 1433. . . .” The parties do not contest the proposition that Lois W. Rich thus exercised her power of appointment with respect to the assets of the Trust. In Clement v. Larkey, (No. 93-226), we concluded that the Trust was not a part of the residue of Lois W. Rich’s estate, and thus the Crittenden Probate Court properly left the matter of distribution of the Trust assets to the Chancellor.

Ms. Larkey proposed to distribute the Trust corpus to Duke B. Clement, Jr., and to J.E. Norfleet, Jr., as follows:

J.E. NORFLEET, JR. (Sara Rich Larkey’s son) - 6,327.5 shares.
DUKE B. CLEMENT, JR. (Mary Jack Wilson’s son) - 6,177.5 shares plus cash in place of the shares he would have received in an equal, in kind distribution.

Duke B. Clement, Jr., protested, arguing that an unequal distribution of shares would amount to an abuse of discretion on the part of Ms. Larkey and a violation of her duty of loyalty to the beneficiaries.

The Chancellor, on joint motions for summary judgment, held that the proposed distribution did not amount to an abuse of discretion.

1. Abuse of discretion

The authorization for disbursement by the trustee could hardly be broader. The Trust instrument created in the will of Jack W. Rich provides:

The trustee. . . and the successors. . . are expressly authorized and empowered, at any time and from time to time:
***
(11) [T] o make such division or distribution in kind or in money, or in part in kind or in part money, and the apportionment and division by my trustee, both as to valuations and as to specific properties shall be final and determinative.
***

Duke B. Clement, Jr., acknowledges the broad grant and that a distribution in kind and in cash is not directly prohibited. He points, however, to the language in the residuary clause of Lois W. Rich’s will which directs that an “amount equal to the maximum amount allowable under the per grandchild exemption . . .” shall be distributed to each of the Norfleet and Clement Trusts. From this he argues that an unequal in kind distribution is not authorized. He argues further that the trustee’s duty of loyalty and impartiality are violated in this instance because the trustee proposes to benefit her son and herself. Clement then points out that a court can interfere with the exercise of the trustee’s discretion to prevent an abuse of that discretion. Deal v. Huddleston, 288 Ark. 96, 702 S.W.2d 404 (1986); Restatement (Second) of Trusts § 187 (1959), and other cases are correctly cited for that proposition.

The fact of a coincidental benefit to a trustee is, however, not alone sufficient to establish an abuse of discretion on the part of the trustee; it is rather one factor to be considered in determining the question. Comment g of Restatement § 187 discusses the improper motivation of a trustee as follows:

The court will control the trustee in the exercise of a power where he acts from an improper even though not dishonest motive other than to further the purposes of the trust. Thus, if the trustee in exercising or failing to exercise a power does so because of spite or prejudice or to further some interest of his own or of a person other than the beneficiary, the court will interpose. Although ordinarily the court will not inquire into the motives of the trustee, yet if it is shown that his motives were improper or that he could not have acted from a proper motive, the court will interpose. In the determination of the question whether the trustee in the exercise of a power is acting from an improper motive the fact that the trustee has an interest conflicting with that of the beneficiary is to be considered.

It is permissible for one of several trustees or a sole trustee also to be one of several beneficiaries of a trust, even though conflicts of interest and coincidental benefits to that trustee-beneficiary inevitably result. Restatement (Second) of Trusts § 99 (1957). In Reeder v. Meredith, 78 Ark. 111, 93 S.W. 558 (1906), we recognized that a trustee, by virtue of his or her relationship to the beneficiaries of a trust, must assume the burden of proving the fairness of a transaction with the beneficiary of the trust which also benefits that trustee.

In determining whether Ms. Larkey has sustained her burden, we look to the evidence which was before the Chancellor when he granted Ms. Larkey’s motion for summary judgment.

Ms. Larkey presented an affidavit of Christopher Mercer, a financial analyst, which showed that an equal, in kind distribution of the stock would result in the creation of a majority control block of shares in the Clement side of the family. This 50.1 % controlling interest would result in that block of shares having a value of $173.00 per share while the value of the minority block thereby created would have a value of $69.00 per share. The conclusion of the analyst was that an equal, in kind distribution would result in Duke B. Clement, Jr., receiving stock substantially more valuable than that received by J.E. Norfleet, Jr.

Duke B. Clement, Jr., seeks to discredit Mr. Mercer’s valuation of the shares by pointing out that the Internal Revenue Service would not aggregate stock in this fashion to establish a value and that such an aggregation would not be proper in valuing the shares for the purpose of dissolution of the corporation, but neither of these valuation methods is relevant in this case. The corporation is an on-going concern, and there is no indication that the enterprise basis of valuation reflected in Mr. Mercer’s affidavit is improper under these circumstances.

As in Mt. Olive Water v. Fayetteville, 313 Ark. 606, 852 S.W.2d 309 (1993), the Court was presented with a clear evidentiary basis for its conclusion, and the question became whether, if true, all the appellant’s counter-assertions concerning that evidence were sufficient to raise an issue of material fact with respect to the basis of the expert’s opinion.

We agree with the Chancellor that Duke Clement, Jr.’s assertions did not raise an issue of fact. The trustee in this instance was confronted with a situation where an equal distribution of stock in kind could harm one beneficiary and benefit the other but a distribution as proposed could benefit both beneficiaries equally in terms of the value of the stock.

From the other point of view, it could be said that the real issue is control of the corporation, and by equalizing the number of shares held by each “side” of the family the group now headed by Mary Jack Rich Wilson and her son, Duke B. Clement, Jr., will be deprived of the lead it now has by virtue of its ownership of 150 more shares than the side of the family including Sara Rich Larkey, and her son, J.E. Norfleet, Jr.

Ms. Larkey’s proposal may or may not be best for the corporation’s future, and thus it may or may not be best for the Riches’ grandsons. But that is not the issue, and we decline to speculate on possible outcomes with respect to this distribution. The evidence before the Chancellor indicated that the family members have always cooperated in the past in the exercise of their voting privileges when it came to running the corporation. He was given no basis to believe that would change. The issue before us is whether his decision permits a violation of Ms. Larkey’s duty of loyalty and impartiality.

Assuming, as we must, that the cash substitute to be paid to Duke Clement, Jr., in addition to the stock he will receive, is to be in an amount fairly compensating him, we cannot say Ms. Larkey proposes to violate her duty. There was evidence before the Chancellor in the form of Mr. Mercer’s affidavit from which it could have been concluded that the creation of equality in family stock blocks was the only way to prevent one grandson of the Riches from receiving stock valued substantially less than that received by the other. The secondary, but potentially important, issue of control of the corporation is somewhat hard to pin down in that we cannot know how the family members will behave in the future.

In these circumstances, we agree with the Chancellor’s conclusion that the proposed distribution will not constitute an abuse of the trustee’s discretion, any benefit to the trustee being permissible as incidental to her performance of her duties as trustee.

Affirmed.


text:
    Michael K. McGLOTHLIN v. Honorable John Dan KEMP, Circuit Judge of Independence County, Arkansas and Janie Jones, and Edward Lee Jones, Natural Parents of Christopher Lee Jones and Co-Administrators of the Estate of Christopher Lee Jones, Deceased
    93-261
    863 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      David Hodges, for petitioner.

      Murphy, Post, Thompson, Arnold & Skinner, by: J. T. Skinner and Tom Thompson, for respondents.
   David Newbern, Justice.

Michael McGlothlin seeks to prohibit Judge John Dan Kemp from enforcing an order compelling discovery. Finding no basis for issuing a writ of prohibition, we deny the petition.

Michael McGlothlin and Christopher Lee Jones were involved in a single car accident in which Jones was killed. The parents of Jones have brought suit against McGlothlin, alleging that he was the driver of the car and the accident was the result of his negligence. The Joneses’ complaint also alleges McGlothlin was intoxicated at the time of the accident. McGlothlin denies these allegations.

Through discovery, the Joneses have asked McGlothlin to sign a medical authorization for the release of medical information, and to produce all medical records pertaining to injuries McGlothlin received as a result of the accident, citing Ark. R. Civ. P. 35(c). McGlothlin has objected, stating that his medical condition is not in issue in this lawsuit, and thus his medical records are not made discoverable by Rule 35(c).

The Joneses contend McGlothlin’s medical condition is in issue. They state that McGlothlin has not only denied driving the car at the time of the accident, but has also denied being drunk. Moreover, the Joneses contend that the injuries McGlothlin received were consistent with those of the driver of a car. The Joneses moved to compel McGlothlin to execute the medical authorization and to produce his medical records.

Judge Kemp granted the motion, subject to a protective order prohibiting the release of confidential communications between McGlothlin and his doctors. In his letter opinion granting this Motion, Judge Kemp stated:

The plaintiffs contend that the defendant was the driver of the automobile in the accident that caused the death of the plaintiffs’ son. The discovery indicated the defendant sustained injuries in the course of the accident. The plaintiffs contend that the injuries to the chest sustained by the defendant are consistent with the defendant being the driver of the automobile. The defendant has denied the allegations of the plaintiffs’ complaint that he was the driver.
The court finds that the physical condition of the defendant is relied on by the defendant as part of his defense. Rule 35(c) therefore requires the defendant to execute an authorization to allow the plaintiffs to obtain copies of defendant’s medical records, provided confidential communication between the defendant and his physician are not disclosed

A writ of prohibition is an extraordinary remedy and “is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts.” Lupo v. Lineberger, 313 Ark. 315, 317, 855 S.W.2d 293, 294 (1993). The purpose of a writ is not to prohibit a lower court from committing error, but to prohibit the unauthorized exercise of jurisdiction when there is no other adequate remedy available by appeal or otherwise. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).

We make no determination whatever about the correctness of Judge Kemp’s decision. We hold only that he had jurisdiction to enter his order pursuant to Rule 35(c) and thus that a writ of prohibition would not be proper.

Petition denied.


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

text:
    Minnie Marie MISSILDINE v. STATE of Arkansas
    CR 93-569
    863 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered October 25, 1993

      Jim Pedigo, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

On December 3, 1991, the appellant, Minnie Marie Missildine, shot her daughter, Sheila Robertson, in the head causing her death. Following trial by jury, Missildine was found guilty of first degree murder and sentenced to life imprisonment.

As background, Missildine had had psychiatric problems for a number of years, had been hospitalized several times, and at one point, underwent a left frontal lobectomy due to seizures. On the day of the crime, Missildine apparently told Sheila she intended to kill herself.

At approximately 2:00 p.m. on December 3, officers were called to a disturbance at the home of Ruth Franklin, mother of Missildine; Sheila was present. Sheila and Franklin expressed concern to the officers because Missildine had locked herself in her home with pills and guns. The officers informed them of the need to start commitment proceedings and left.

Later that same day at approximately 4:00 p.m., officers were called to a suicide attempt at Missildine’s residence. Tom Douglas, a deputy sheriff for Miller County, testified that Gary Woods, Danny Robertson, and Sheila Robertson were attempting to get Missildine out of the house, and away from the pills and guns for her own protection. Sheila was near the house and did not respond when officers and her husband urged her to retreat. As Sheila was circling the house, beating on the outside wall, and yelling to her mother, she disappeared from view. Shortly, a single gunshot was heard.

Missildine bases her appeal on the following two points: insufficiency of the evidence through motions for a directed verdict and ineffective assistance of counsel. Missildine argues that the state failed to present any evidence that she acted with the purpose of causing the death of her daughter and that her trial counsel failed to adequately represent her by calling the proper witnesses.

When the sufficiency of the evidence is being challenged on appeal, this court reviews the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. This court does not weigh evidence on one side against the other, but simply determines whether the evidence in support of the verdict is substantial. McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993); Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or another, and requires more than mere speculation or conjecture. Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459 (1991). It is permissible to consider only the testimony which supports the verdict of guilt. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); McClure v. State, 314 Ark. 35, 858 S.W.2d 103 (1993).

A person commits murder in the first degree if with a purpose of causing the death of another person, he causes the death of another person. Ark. Code Ann. § 5-10-102(a) (2) (Supp. 1991). A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. § 5-2-202(1) (1987).

Here, even though there were no eyewitnesses to the actual shooting, a number of sheriff’s deputies were at the scene at the time the shooting occurred. Circumstantial evidence may constitute substantial evidence when it excludes every other reasonable hypothesis consistent with innocence. Guilt may be proved even in the absence of eyewitness testimony, and evidence of guilt is no less because it is circumstantial. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). It is for the jury to determine whether the evidence excludes every other reasonable hypothesis. Cigainero v. State, 310 Ark. 504, 838 S.W.2d 361 (1992).

Sheila was last seen going around the house, calling to her mother. A single gunshot was heard. Shortly, Missildine exited the house near where Sheila was last seen and called for someone to “come get her out of my yard.” Both deputies Tommy Douglas and Charles Wise testified that Missildine sounded “angry” when she yelled at them to come and get her daughter, and that the tone of her voice was rough and raspy. Missildine was pointing the gun toward the officers and had to be told several times to drop it before she actually complied. As the deputies approached her, Missildine turned and attempted to escape. When the deputies rounded the house toward Missildine, they saw Sheila lying on her back with a bullet wound in her forehead, several feet from a window. Missildine’s defense was based on an accidental shooting or a shooting due to drug impairment.

John Mackey, a criminal investigator for Miller County, testified that he determined the fatal bullet came from inside the house through the window and screen near the body. The window and screen had a hole in them, and broken glass was found inside on a table and on the floor near the window. Mackey testified that these findings were consistent with a bullet being shot through the window and screen. Further, the shot through the window occurred within a narrow space between a fan and a clothes basket sitting on a washing machine, the inference being that the gun was aimed through the narrowed space. A .22 revolver was found in the yard where Missildine tossed her weapon. In the revolver, Mackey found five unspent cartridges and one spent shell in the chambers. He also collected several prescription drug containers, ammunition, and a .38 revolvér from the house.

Berwin Monroe, an expert in the firearms section of the Arkansas Crime Laboratory, testified the bullet removed from Sheila’s head was too mutilated to determine barrel markings. He testified that the degree of mutilation present was consistent with the bullet being fired through an intervening material such as glass, penetrating the front of the skull, and then bouncing off the back of the skull as occurred in this case. Monroe was able to determine that the bullet was of the .22 caliber class. Further, he testified that the .22 revolver he received from the crime scene was a single action. In order to fire the .22 revolver with such an action, a person must first pull back or cock the hammer before pulling the trigger.

After being apprehended, Missildine was taken to the hospital and screened for a drug overdose. Drug testing revealed the presence of an unknown amount of benzodiazepines (once called tranquilizers), a low therapeutic dose of Dilantin (for control of seizures), and a low therapeutic dose of an antidepressant, Pamelor. Dr. Charles Poteet, the emergency room physician who examined Missildine, testified that there was no objective evidence indicating Missildine had overdosed, but that her sleepiness at that time, coupled with her medical history, was suggestive of overdose. He was able to state positively that a lethal dose of the benzodiazepine could be ruled out.

Missildine argues that Poteet testified that a person on Valium, a benzodiazepine, will react with anger if you try to stop them. While the benzodiazepine found in Missildine was of an unknown type and amount, no Valium pills or container were found in Missildine’s house. Further, Missildine argues that because there were no eyewitnesses, there was no proof that she acted with the intent necessary to purposely shoot her own daughter. And because three drugs were found in her system, she was not acting under her own will.

Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). Even premeditation, deliberation, and purposeful intent can be formed on the spur of the moment. Further, the intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).

Here, the circumstantial evidence is sufficient to show that Missildine acted with the purposeful intent to kill her daughter. First, the single action gun required an overt act of positioning the hammer before it would fire. The fatal bullet passed through a narrow space raising the inference that the gun had to be purposely aimed in order for the bullet to pass undeflected by obstacles. The bullet entered the deceased’s left forehead. Finally, after the shooting, Missildine reacted with anger in calling for the police to remove her daughter, and was reluctant to drop the gun when ordered to do so. From this evidence the trial court determined that there was a question of fact which was properly placed before the jury.

In Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985), this court upheld a capital felony murder conviction where the appellant was found to be legally intoxicated by registering .10 on the breathalizer. There, Novak argued that because he was intoxicated at the time of the crime, he could not have had the requisite intent as a matter of law. In rejecting his argument, we found that there was evidence that Novak was rational and coherent. Further, we stated the fact that Novak was shown to have the minimum intoxication to support a charge of DWI did not establish, as a matter of law, that he lacked the ability to form an intent to commit murder. We held these matters presented a question for the jury to decide.

In our case, Dr. Poteet, who examined Missildine immediately following the killing, testified that Missildine was sleepy but able to communicate with him. When he inquired as to what drugs she had taken, she told him dilantin and phenobarbital. He said that, although her sleepiness was suggestive of it, he found no objective evidence that Missildine had overdosed. From the record, there is evidence from which the jury could find that Missildine was rational and coherent, and that she could have formed the purposeful intent to shoot and kill her daughter.

The jury was instructed on first and second degree murder, and on manslaughter. Based on the record as presented, we conclude that the jury’s verdict finding Missildine guilty of first degree murder was based on substantial evidence.

For her second point, Missildine argues that she was assisted ineffectively at trial by her counsel. Attorney Carolyn Lee Whitefield raised the issue following the trial by filing a motion for a new trial and a motion to arrest judgment, alleging that Missildine received incompetent representation at trial from attorney Thomas A. Potter. The trial court denied the motion for a new trial, finding that “there is no credible proof that [Missildine] did not receive a fair trial.”

We first must consider the state’s argument that, according to our recent decision in Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993), Missildine may not claim on direct appeal that her counsel was ineffective. In Tucker, the defendant jiled a motion for a new trial and, among other things, claimed ineffective assistance of counsel, and after a hearing, the trial court denied the defendant’s motion. On appeal, we held Tucker’s ineffective counsel claim was premature, because under Rule 37, this court had held that it would not consider collateral attacks on a judgment of conviction as a part of the direct appeal.

Although Rule 37 generally provides the procedure for postconviction relief due to ineffective counsel, this court has recognized such relief may be awarded a defendant on direct appeal in limited circumstances. For example, in Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986), this court held that, ordinarily we do not consider a charge of ineffectiveness when a case is first appealed because the facts relevant to that issue have not been developed. However, when the proof is presented at a hearing on a motion for a new trial, economy of procedure would require a single appeal of all the issues. Id.; see also Tisdale v. State, 311 Ark. 220, 833 S.W.2d 776 (1992) (the court decided an ineffective assistance of counsel issue on direct appeal because the defendant raised the issue at trial and by a motion for a new trial); Hilliard v. State, 259 Ark. 81, 531 S.W.2d 463 (1976) (the court recognized that the ineffective counsel issue could be raised and heard by the trial court by defendant’s motion for a new trial, but if the accused had not adequate opportunity to raise the question, he could raise the question by motion for postconviction relief).

Because Missildine raised her ineffective counsel issue by motion for new trial and a hearing was conducted on the issue, we conclude it is proper for her to argue this subject on direct appeal. To the extent our Tucker holding is in conflict with this decision, that holding is overruled. We now address Missildine’s ineffective counsel argument.

The criteria for assessing the effectiveness of counsel has been enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show counsel’s representation fell below an objective standard of reasonableness, and that, but for counsel’s errors, there is a reasonable probability that the jury would have decided differently. Judicial review of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Finally, a court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence that was placed before the jury. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993).

Missildine bases her argument on Potter’s failure to (1) subpoena expert witness, Dr. Richard Tyler, to testify as to Missildine’s mental status; (2) hire an expert psychologist to testify as to her mental status before, during and after the crime; and, (3) in the absence of an psychiatric expert, call members of her own family who were present at the trial.

Mr. Potter testified that it was his intent to subpoena Dr. Tyler as a witness, but did not when the deputy prosecutor told him that the prosecutor’s office had already subpoenaed Dr. Tyler. Further, Potter testified that on the morning of the trial, he was informed that the state would not call Dr. Tyler, but that he would be left under subpoena so that Potter could call him. Dr. Tyler did not show up for the trial, and afterwards, Potter learned that Tyler had not been properly served. Deputy prosecutor, Charles Black, denied that he had told Potter that the state planned to call Tyler as a witness, but Black did state that he told Potter the prosecutor’s office had mailed a subpoena to Tyler. Missildine’s new counsel, Whitefield, did not subpoena Tyler for the post-trial hearing but did attempt to get Missildine’s hospital records entered into evidence. The state objected on the basis that the majority of Tyler’s notes in the record were the product of what other doctors and family members had related to him about Missildine, and thus were hearsay. The court agreed, and the records were proffered by Missildine.

While Missildine argues that a psychiatric or psychological expert should have been hired by Potter, she failed to show that such an expert would have testified that she was incompetent or impaired at the time of the crime. Further, testimony showed that Missildine had been examined by the State Hospital, as required due to her defense, and that she was found to be both competent to proceed with trial and competent at the time of the crime. Additionally, there was some testimony regarding whether Potter should have applied $2000 given to him by Missildine’s mother for expert testimony rather than to his fee. Again, the state points out that there is no evidence to prove that use of the funds for an expert would have resulted in a different verdict.

Finally, Missildine argued that if Potter had called members of her family, who were present at trial, to testify as to her mental status, the verdict would more probably than not have been different. At the hearing Potter testified that he decided not to call Missildine’s mother as a witness because he did not want to open the door for admission of evidence as to Missildine’s propensity for violence, namely, shooting at her exhusband and violating her bond because of a fight. Further, he had intended to call a friend of hers as a witness, but decided against it at the last minute because he doubted the man’s credibility, and did not want to violate the Rules of Professional Responsibility by offering testimony that Potter did not believe to be the truth. Potter stated that his decisions on these matters were based on trial strategy so as to act in the best interest of his client.

The trial court determined that Missildine received a fair trial and that from the evidence presented at the hearing on the motion for a new trial, all the issues raised were related to trial tactic by the defense attorney. As we have stated before, matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel. Burnett v. State, 310 Ark. 202, 832 S.W.2d 848 (1992); Hill v. State, 292 Ark. 144, 728 S.W.2d 510, cert. den. 479 U.S. 1101 (1987).

Missildine has failed to show that the trial court’s ruling was clearly erroneous in denying her motion for a new trial. Further, she has failed to show that her trial attorney’s conduct fell below reasonable standards of professional conduct and that, but for her trial attorney’s conduct, the verdict would have been different.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3(h), and the objections have all been abstracted and certified by the state. We have found no other rulings adverse to Missildine which constituted prejudicial error.

For the reasons discussed above, we affirm.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I concur in the affirmance but question the wisdom of considering the issue of ineffective counsel on direct appeal when raised by post trial motion.

By permitting this post trial motion, we are thrown right back into the old Rule 36.4 posture. Rather than promoting judicial economy, an incentive is now in place for convicted defendants to shuck trial counsel after trial and either proceed pro se or retain new counsel to pursue an ineffectiveness claim as part of post trial relief prior to direct appeal. Which counsel handles the merits of the direct appeal then becomes problematic.

We experimented with Rule 36.4 in 1989 and 1990. In doing so, we authorized post trial hearings on ineffectiveness of defense counsel and permitted joint appeals on that issue and the merits. There were problems with this procedure. The new Rule 37, effective January 1, 1991, was the result. Now we retreat and endorse a hybrid of the Rule 36.4 experiment.

The majority cites Tisdale v. State, 311 Ark. 220, 843 S.W.2d 803 (1992), as authority for its position. In Tisdale, though, the issue of inadequate counsel was raised during the trial itself:

However, the record here shows that during his trial, not afterwards, Tisdale requested the court to relieve Robert Scull III from being Tisdale’s counsel.

311 Ark. at 227, 843 S.W.2d at 807. We then said that we would review on direct appeal only objections relating to counsel made at trial.

The majority also cites a 1986 case as authority — Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986). But the Lasiter decision in this context constitutes ancient history because it occurred before the Rule 36.4 experiment and before the adoption of our new Rule 37 in 1991.

In my judgment, we intended by the new Rule 37 to eliminate claims of ineffective counsel as part of direct appeals, except when raised during trial which was the situation in Tisdale v. State, supra. By the majority’s decision, we can now anticipate more post trial motions based on ineffective counsel. We can also anticipate more direct appeals relating to inadequate counsel and the associated motions for trial counsel to be relieved and new counsel appointed for purposes of the motion and direct appeal.

In short, I am convinced that ineffectiveness claims are appropriately raised by collateral attack under Rule 37, and I would not consider this issue merely because it was raised by post trial motion. To do so blurs an area of procedure that had been clarified.

       Friend of Missildine.

       Husband of Sheila.

       Our ruling here does not preclude the defendant in Tucker from pursuing a Rule 37 petition for postconviction relief.