author: Jack Holt, Jr., Chief Justice.

text:
    CITY OF MARIANNA, Martin CHAFFIN, Don CAHOON, Ed BROWN, Robert “Bub” DAVIS, Donnie EDWARDS, and Wilson KELL v. ARKANSAS MUNICIPAL LEAGUE, Administrator, MUNICIPAL LEAGUE DEFENSE PROGRAM
    86-131
    722 S.W.2d 578
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellants.

      Winston Bryant and William G. Fleming, for appellee.
   Jack Holt, Jr., Chief Justice.

At issue in this appeal is whether the Arkansas Municipal League, as administrator of the Municipal League Defense Program, was wrong when it refused to defend a lawsuit brought by third parties against the appellants, the mayor and aldermen of the City of Marianna. The trial court held the refusal to defend was justified and we affirm.

The Municipal League Defense Program was developed by the Arkansas Municipal League to provide funds to member cities for the defense of certain types of lawsuits filed against municipal officials and employees. The mayor and aldermen were sued in 1983 in federal district court by third parties who alleged that they violated the Voting Rights Act. The Arkansas Municipal League declined to defend the mayor and aldermen in the lawsuit. The City of Marianna was also covered by an insurance policy provided by Home Indemnity Company. The mayor and aldermen filed this lawsuit against the Arkansas Municipal League and Home Indemnity Co., seeking an order requiring the insurance company and the defense program to pay their costs associated with defending the lawsuit; to pay for any liability incurred as a result of the lawsuit; and seeking a declaratory judgment determining which of the defendant’s coverage is primary and which is secondary. Each of the parties filed a motion for summary judgment. The trial court granted the Municipal League’s motion for summary judgment and dismissed them from this lawsuit. It is from that order that this appeal is brought.

This is the second time the mayor and aldermen have attempted to appeal the trial court’s order of summary judgment. We dismissed their first appeal without prejudice because of the failure of the trial judge to comply with Ark. R. Civ. P. 54(b) which provides that when judgment is directed against one but not all of the parties involved, the order must specify that it is final and that there is a danger of injustice that will be alleviated by an immediate appeal. City of Marianna, et al. v. Arkansas Municipal League, 289 Ark. 473, 712 S.W.2d 305 (1986).

Subsequently, the mayor and aldermen obtained an order from the trial judge to that effect and filed a supplemental transcript containing that order with this court. The mayor and aldermen failed, however, to abstract that order as required by Sup. Ct. R. 9. Since the Municipal League did not raise the issue of failure to comply with Rule 9 and since this is a second appeal, we will dispose of the case on its merits. Nevertheless, all relevant orders entered by the trial judge are to be abstracted.

The pertinent terms and conditions of the defense program, as amended in 1983, provide as follows:

During the term of this Program and to the extent of funds available, the Program shall, in the sole discretion of the Program administrators, provide extraordinary legal defense and extraordinary expenses in “suits against municipal officials and employees” of a participating municipality and pay extraordinary judgments (for actual damages not punitive damages) imposed on “municipal officials” or the estate of such “municipal officials.”
The words suits against municipal officials and employees shall not include the following:
(iii) any claim which is insured by a valid insurance policy;

The program was amended again in 1985 to expand coverage to include suits against municipal governments (member cities). This coverage, however, did not apply at the time the federal court lawsuit was brought.

The trial judge stated in his findings of fact that the Municipal League refused to defend the mayor and aldermen because the federal court lawsuit was a suit against the city officials in their official capacity and thus, a lawsuit against the City of Marianna; and because there was other valid insurance in force. In his conclusions of law, the judge held that such refusal was justified. We agree.

The mayor and aldermen first contend on appeal that the federal court case is not a lawsuit against the City of Marianna. In support, the mayor and aldermen cite insurance law to the effect that the duty of an insurer to defend arises where there is a possibility that the injury or damage may fall within the policy coverage. Commercial Union Ins. Co. of America v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977). Insurance law is inapplicable to the facts presented by this appeal because the defense program is not an insurance policy. According to the affidavit of Don Zimmerman, Executive Director of the Municipal League, the cities have the option of joining the program, it is not required; the program is not operated for profit and is not actuarially sound; and membership in the program is not open to the public. Contained in the transcript is a letter from the Arkansas Insurance Department stating: “this Department is of the opinion that the [defense] program does not constitute ‘insurance’, and thus does not trigger any regulatory action by the Department. Primarily our opinion is based upon the fact that there is no legally binding promise to pay in any and all cases.”

Furthermore, in West & Co. of La. v. Sykes, Ins. Comm’r, 257 Ark. 245, 515 S.W.2d 635 (1974), this court cited California-Western States Life Ins. Co. v. State Board of Equalization, et al., 151 Cal. App. 2d 559, 312 P.2d 19 (1957) involving a retirement fund which was optional to the employees, was not offered to persons other than employees, and was not actuarially sound. The California court held that plan did not constitute an insurance contract and stated:

Regardless of the noted similarities in so many of the provisions contained in the plan to those found in annuity policies regularly sold by insurers, the great dissimilarity which inheres in the total absence of profit motive — never ignored by successful insurers — compels a conclusion that the establishment and maintenance of respondent’s employees’ retirement plan cannot be classified as insurance business done by it in this state.

Under this criterion, as followed in West & Co. of La., the defense program is not an insurance contract.

As to the trial court’s holding that the City of Marianna was actually being sued and not the mayor and aldermen, the United States Supreme Court has stated that when individual defendants are sued solely in their official capacities, an award of damages would have to be paid by the city employing them. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). Other courts have held that official capacity suits generally represent but another way of pleading an action against the entity of which the officer is an agent. Hughes v. Blankenship, 672 F.2d 403 (4th Cir. 1982); Calkins v. Blum, 675 F.2d 44, n. 2 (2nd Cir. 1982); see also Wolf-Lillie v. Sonquist, 699 F.2d 864 (7th Cir. 1983).

Under this theory, which we find persuasive, the suit against the mayor and aldermen was actually a suit against the City of Marianna and under the 1983 version of the defense program, coverage was not provided.

The mayor and aldermen also contend that because coverage was provided to them by the defense program and by Home Indemnity Co., the responsibility should be prorated between the two.

The Home Indemnity policy states: “This insurance shall be excess over any other valid and collectable insurance available to the insured, and shall not contribute with any such other insurance.” The defense program on the' other hand provides that suits against municipal officials and employees shall not be covered if they include “any claim which is insured by a valid insurance policy.” The short answer to the mayor’s and aldermen’s contention is that, as discussed under the previous point, the defense program was not an insurance policy and so the “other insurance” provision of the Home Indemnity Co. policy does not apply. Since the terms of the defense program unequivocally provide that lawsuits are not defended when a claim is covered by other valid insurance, and the trial judge specifically found in his findings of fact that other valid insurance was in force, we cannot say that finding was clearly erroneous. Ark. R. Civ. P. Rule 52(a).

The mayor and aldermen raise two other issues in this appeal, neither of which we need discuss as they concern provisions of the defense program not mentioned or relied upon by the trial judge in his order.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Harvey Cecil POE v. STATE of Arkansas
    CR 85-166
    722 S.W.2d 576
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      A. James Linder, for appellant.

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

The appellant, Harvey Poe, was convicted of aggravated robbery and sentenced to twenty years imprisonment as an habitual offender. His sentence was affirmed by the Arkansas Court of Appeals on June 27,1984 in an unpublished opinion. Subsequently, we ordered the trial court, under Rule 37, to conduct an evidentiary hearing with respect to Poe’s claim of ineffective assistance of appointed counsel at trial. Poe v. State, 287 Ark. 292, 698 S.W.2d 297 (1985). After the hearing, the trial court concluded that Poe’s allegation was without merit. Poe now appeals, complaining of his appointed counsel’s ineffectiveness at trial in not locating and presenting the testimony of certain alibi witnesses. He further asserts that the court erred at the hearing in excluding affidavits from these alibi witnesses as evidence.

When we have ordered a post-conviction hearing pursuant to Rule 37.2(a), the trial court is limited to the issues we have specifically directed it to consider. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Here, the question was whether Poe received effective assistance of counsel. During the hearing, Poe testified that after he was arrested he recalled that he had been at the home of Mr. and Mrs. Andrew Yon, III, on the night of the robbery, and that Mr. Yon verified his recollection over the phone. He said he told his attorney this, and his attorney said he would investigate it and have them subpoenaed. Poe said it was not until he went to trial that he discovered that his attorney had not located the Yons. He said he asked his attorney to move for a continuance, but that his request was ignored.

Two of his ex-wives also testified for Poe. One stated that she had seen Poe at the Yons’ home the night of the robbery. The other said Poe had told her he was there and that she then talked to Mr. Yon, who confirmed his story. Another witness testified that she overheard Poe talking to his attorney on the phone about locating the witnesses they had discussed.

Poe’s trial attorney testified at the hearing that Poe never told him of any witnesses, other than a man who approached the defendant’s table after the state’s case had been presented and offered to testify for Poe. His attorney said the man was obviously intending to lie, and that Poe knew this but urged the attorney to call him anyway. He further testified that Poe told him at least ten times before the trial that he had been deer hunting by himself the night of the robbery.

The trial judge chose to believe the testimony of the attorney rather than Poe and his witnesses, all of whom, the judge noted, had some relationship with Poe. It is for the trial court to resolve conflicts in testimony, Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), and we will not reverse the trial court’s findings in that regard unless they are clearly wrong. Hicks v. State, 289 Ark. 83, 709 S.W.2d 87 (1986). In this instance, we cannot say the court’s findings were erroneous.

Poe, in an effort to bolster his own testimony, attempted to introduce into evidence the affidavits of the Yons, the two alibi witnesses. These were considered by us in honoring Poe’s request for a Rule 37 hearing. Poe argues that because this court considered the affidavits for purposes of petitioning for a Rule 37 hearing, they are likewise admissible as evidence in the hearing itself. Such is not the case. In ordering a Rule 37 hearing, we are not bound by the strict rules of evidence and will normally grant such relief when affidavits establish a prima facie showing in support of the petitioner’s complaint. Although post-conviction hearings are relatively informal, the rules of evidence still apply there. Testimony, to be admissible, must be under oath and subject to cross-examination. Lewis v. State, 251 Ark. 128, 471 S.W.2d 349 (1971).

Poe argues that the trial court should have allowed these affidavits under A.R.E. Rule 804(b)(5), which allows the trial court to admit hearsay statements of an unavailable declarant under certain circumstances. The rule states:

(5) Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant, (emphasis added)

The “foregoing exceptions” include former testimony subject to cross-examination, statements under belief of impending death, statements against interest, and statements of personal or family history.

In Hill v. Brown, 283 Ark. 185, 672 S.W.2d 330 (1984), we stated:

The new paragraph [(b)(5)] does not spell out a specific exception to the general prohibition against hearsay. Instead, it lists several matters to be considered as conditions to the admissibility of hearsay not falling within a recognized exception. The substance of this catch-all provision was added by Congress when it adopted the Federal Rules of Evidence. The provision was not intended to throw open a wide door the the entry of j udicially created new exceptions to the hearsay rule. To the contrary, the new exception is to be narrowly construed.

Poe claims that the Yons were unavailable declarants because they were working overseas. He contends that because the affidavits had been taken under oath and the Yons had no apparent motive to commit perjury, that the affidavits have the “equivalent circumstantial guarantees of trustworthiness” as required by Rule 804(b). We disagree.

Although it was argued that the Yons were unavailable, it was not shown what efforts were made to gain their presence, or why the state was not informed of the Yons’ availability when the affidavits were taken. Further, ordinary affidavits taken under oath do not carry the same trustworthiness as the exceptions to hearsay listed in Rule 804.

In conclusion, we find that the trial court was correct in excluding the affidavits and that the evidence supports its findings.

Affirmed.


author: Darrell Hickman, Justice. Robert H. Dudley, Justice, John I. Purtle, Justice,

text:
    William K. BALL v. Honorable Paul K. ROBERTS, Circuit Judge
    86-179
    722 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987
    [Rehearing denied February 23, 1987.]

      Petitioner, pro se.

      Samuel B. Pope, for respondent.

      Holt, C.J., and Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

The petitioner, William K. Ball, is a licensed attorney from Monticello, Arkansas. He was appointed by Judge Paul Roberts to represent Mary McKinley in a criminal case in Drew County, Arkansas. Ball filed a motion to void the appointment on two grounds. First, he relied on Ark. Stat. Ann. § 43-2419 (Supp. 1985) which provides in pertinent part:

An attorney shall not be so appointed by a court if the attorney certifies to the court in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and does not regularly engage in the practice of criminal law.

Ball certified to the court in writing that he had not attended an accredited school or taken a course in criminal law within the last 25 years, did not practice criminal law, and had not handled a criminal case since 1957. Second, he asserted he was simply not qualified to represent the defendant, and to accept the appointment would violate the Model Rules for Professional Conduct, because he could not competently represent a defendant in a criminal case.

The trial judge ruled Ark. Stat. Ann. § 43-2419 unconstitutional because it violated the 14th Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution as a deprivation of the defendant’s right to counsel. The trial judge discussed the existing situation in Drew County, which has no public defender. He observed that counsel have to be appointed from members of the local bar, Ball was a competent attorney and would be a capable defense counsel after familiarizing himself with recent criminal procedure. Ball petitioned us for relief.

The trial court correctly held that the statute was unconstitutional but gave the wrong reason. The statute violates the separation of powers provisions contained in Art. 4, §§ 1 and 2 of the Arkansas Constitution, which provide:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

According to the separation of powers doctrine". . .one department cannot interfere with, or encroach on, or exercise the powers of, either of the other departments, . . .”16 C.J.S. Constitutional Law § 111 (1984). The judicial power of Arkansas is, of course, in the appellate, trial and inferior courts. Ark. Const, art. 7, § 1. Amendment 28 also grants the Supreme Court the exclusive power to regulate the practice of law and the professional conduct of attorneys.

In McConnell v. State, 227 Ark. 988, 302 S.W.2d 805 (1957), the legislature passed an act requiring every court to grant a continuance upon request by a member or employee of the legislature within a specified period of time surrounding the legislative session. We found that the act violated the separation of powers doctrine because the act deprived the courts of the power to decide a judicial question. McConnell explained that the legislature could aid the courts in the execution of their judicial powers but cannot arbitrarily compel the use of that power. See also Weems v. Supreme Court Committee on Professional Conduct, 257 Ark. 673, 523 S.W.2d 900 (1975).

The right to decide whether an attorney, who regularly practices before a court, can be appointed to represent an indigent in a criminal case is a judicial question, not a legislative one. Ark. Const, art. 4, §§ 1 and 2; Ark. Const, amend. 28; see also Ark. Stat. Ann. § 43-1203 (Repl. 1977); A.R.Cr.P. Rule 8.2. The legislature invaded the province of the judicial branch of government in declaring certain attorneys could not be appointed as counsel in a criminal case.

Ball asks us for one of three extraordinary remedial writs: prohibition, mandamus, or certiorari. The first two are clearly not warranted because the trial court had jurisdiction and this was a discretionary act. The third writ, certiorari, is a writ which is discretionary on our part. Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974). On certiorari, we review only the face of the record and cannot consider questions of fact. McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); Martin v. Hargrove, 149 Ark. 383, 232 S.W. 596 (1921).

In McKenzie, we denied certiorari to review an order of the trial court authorizing an out-of-state attorney to appear as attorney of record. On the face of the record, the trial court had jurisdiction to enter the order. In this case on the face of the record, the trial court correctly held the statute unconstitutional so the appointment cannot be voided on the basis of the statute.

The second argument concerns the trial court’s discretionary act in appointing Ball as counsel in a criminal case. To grant certiorari in this case would be to review both the trial court’s discretionary act and questions of fact, which we cannot do. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). Ball is not precluded, however, from preserving for appeal in the criminal case the question of whether the trial court was wrong in appointing him counsel.

Denied.

Purtle, J., dissents. Holt, C.J., and Dudley, J., concur.

Robert H. Dudley, Justice,

concurring. I concur in holding that the power to decide which attorneys must represent indigent defendants resides in the courts and not in the legislature.

However, the majority opinion, without more, leaves open the real possibility that indigent defendants may have an attorney appointed to represent them who is not qualified to practice criminal law. Such a result is unfair to the indigent defendant as well as to the appointed attorney.

The statute expresses a common sense approach to the problem. It provides that an attorney should not be appointed to represent an indigent defendant when that attorney: (1) has not taken a law school course in criminal law in the last twenty-five years, and (2) does not hold himself out as practicing in the field, and (3) does not regularly engage in the practice of criminal law.

Under our rule-making authority, I would adopt the statute as a rule of this Court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986).

Holt, C.J., joins in this concurrence.

John I. Purtle, Justice,

dissenting. Even though the majority opinion declares Ark. Stat. Ann. § 43-2419 (Supp. 1985) to be unconstitutional, the real problem presented by this appeal is not solved. The real issue is the accused’s right to effective assistance of counsel as required by the Sixth Amendment to the United States Constitution and Article 2, Section 10 of the Constitution of Arkansas. I believe it is a denial of the accused’s constitutional right to counsel if the attorney appointed by the court justifiably certifies that he is unable to effectively represent the accused and the attorney is nevertheless required to continue with the appointment.

The effect of the majority opinion is to force an able and outstanding lawyer in the field of civil litigation to undertake a criminal defense, which he readily admits he is not qualified to do. William K. Ball will, if required, likely do a better job than many self-proclaimed defense lawyers. But an honorable and decent attorney may eventually be placed in the position of being forced to admit that he was ineffective. If a Rule 37 petition is granted at some point in the future, his career and public image will be tarnished by the fact that he was held to be ineffective.

I believe the criteria set out in Ark. Stat. Ann. § 43-2419 provide a sound standard for determining when an appointed attorney should be allowed to withdraw as counsel. There is no requirement that the standard for withdrawal of counsel be statutory. Since the majority opinion has declared the statute unconstitutional, I believe we should adopt this standard as precedent or as a rule of this Court. The statute contains a good common-sense solution to the dilemma presented in this appeal.

In my opinion we should allow appellant to withdraw as counsel for the accused.


author: Darrell Hickman, Justice.

text:
    LEGISLATIVE JOINT AUDITING COMMITTEE v. David R. WOOSLEY
    86-140
    722 S.W.2d 581
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Steve Clark, Att’y Gen., by: Jeffrey A. Bell, Dep. Att’y Gen., and Kay J. Jackson Demailly, Asst. Att’y Gen., for appellant.

      David M. Olive, Asst. General Counsel, Donrey Media Group, for appellee.
   Darrell Hickman, Justice.

This is a Freedom of Information Act case. The trial judge ruled that the “working papers” of state auditors, conducting an audit of the Benton County Circuit Clerk’s office for the Legislative Joint Auditing Committee, were not exempt from public inspection under the act. The legislative committee appeals, making four arguments why the documents are not subject to public inspection. The trial court was right, and we affirm the judgment.

David R. Woosley, the appellee, is the business manager and part-time editor for the Northwest Arkansas Morning News in Rogers, Arkansas. On January 20, 1985, Woosley asked the auditors for permission to see certain records, worksheets, and their notes of the audit. The auditors showed Woosley the circuit court records at the prosecuting attorney’s direction. But the auditors declined to show Woosley the notes, records, and working papers which they compiled in connection with the audit. The prosecuting attorney subpoenaed these documents on January 30, 1986. The next day Woosley petitioned the circuit court for an order granting access to these records under the act. The trial court first found the working papers were public records and not exempt from disclosure under the FOIA. However, these documents were ruled exempt while held by the prosecuting attorney under subpoena. Only the first ruling is questioned on appeal.

For a record to be subject to the FOIA and available to the public, it must be possessed by an entity covered by the act, fall within the act’s definition of public record, and not be exempted by the act or other statutes. Watkins, Access to Public Records Under the Arkansas Freedom of Information Act, 37 Ark. L. Rev. 741 (1984). It is not disputed that the records were possessed by the appellant.

Public records are defined in the act as “. . . writings, recorded sounds, films, tapes, or data compilations in any form (a) required by law to be kept, or (b) otherwise kept and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.” Ark. Stat. Ann. § 12-2803 (Supp. 1985).

The working papers in this case are required by law to be kept. Ark. Stat. Ann. § 13-1507 (Repl. 1979) makes that requirement:

The Legislative Auditor shall keep, or cause to be kept, a complete, accurate and adequate set of fiscal transactions of the Division of Legislative Audit. He shall also keep a complete file of copies of all audit reports, examinations, investigations, and any and all other reports or releases issued by him or his office, and a complete file of audit work papers and other evidence pertaining to work of the Division of Legislative Audit.

The appellant first argues that these documents are exempt because they are the working papers of legislators. The act does exempt the working papers of certain officials. Ark. Stat. Ann. § 12-2804 (Repl. 1979) provides:

. . . It is the specific intent of this Section that. . . unpublished memoranda, working papers, and correspondence of the Governor, Legislators, Supreme Court Justices, and the Attorney General. . . shall not be deemed to be made open to the public under the provisions of this Act [§§ 12-2801 — 12-2809].

The argument is made that since the legislature created the Legislative Joint Auditing Committee to perform audits for the legislature, the working papers of the auditors are the equivalent of working papers for the legislators.

The working papers of an auditor who is a state employee, cannot be deemed the private papers of individual legislators without completely disregarding the plain and simple language of the FOIA. The act does not exempt working papers of employees of a legislative committee, only those of the legislators.

To agree with the appellant would be to ignore the plain and simple language of the act and deny the public access to these public records. We have never taken a narrow view of the FOIA but have always interpreted it to promote free access to public records and most favorably to the public. Arkansas Gazette Co. v. Southern State College, 273 Ark. 248, 620 S.W.2d 258 (1981); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968); Watkins, supra.

The appellant next argues that the auditors’ working papers are exempt under “other laws” because Ark. Stat. Ann. § 13-209(D) (Repl. 1979) declares audits are public when the final audit report is filed and sent to the legislature. The appellant argues these working papers are confidential until the final report is filed.

The FOIA requires a statute to specifically provide for nondisclosure in order to qualify as an exemption to the act. Ark. Stat. Ann. § 12-2804; Watkins, supra. Recently, in Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986), we ruled if the legislature fails to specify that particular records are to be excluded from inspection, or if its intention to do so is not clear, then the records are subject to inspection. Ark. Stat. Ann. § 13-209(D) does not specifically provide that the working papers are confidential or exempt from public disclosure under the FOIA. Under the plain language of the FOIA and our decisions reconciling the act with other statutes, this argument fails.

The appellant’s third argument is that the Code of Ethics of the American Institute for Certified Public Accountants requires working papers of accountants be kept confidential. The appellant overlooks the fact that these accountants work for the public, not private clients. The legislature decides what will be made public and it has spoken with the Freedom of Information Act.

Finally, the appellant argues that the working papers are exempt because of the law enforcement exception to the act. Ark. Stat. Ann. § 12-2804. Ark. Stat. Ann. § 13-508 (Repl. 1979) requires the legislative auditor to turn over to the prosecuting attorney evidence of illegal transactions. The appellant argues by its audits, it assists the prosecuting attorney’s investigations, and premature disclosure of the working papers would interfere with the investigation.

The law enforcement exemption does not apply to the appellant. The exemption includes only agencies which investigate suspected criminal activity under the state penal code and have enforcement powers. Appellant is not a law enforcement agency within the act.

We find the trial court was correct in holding the working papers were, according to FOIA, public records and not specifically exempt from examination.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    W.T. CARTER, et al. v. Harry PHILLIPS, et al.
    86-128
    722 S.W.2d 590
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Tarvin & Byrd, by: John R. Byrd, for appellant.
    No brief filed.
   Robert H. Dudley, Justice.

This case involves an internal dispute among members of a congregationalist church over the use of a church building. The Chancellor held all parties are equal members of the church, denied relief to either side, and dismissed the complaint. We affirm.

In 1902, two grantors, who are not parties to this suit, deeded 2.4 acres of land to the deacons of the Unity Baptist Church in Ashley County for so long as the land was used for church and cemetery purposes. A building was constructed and regular church services were held for many years. The church had no written rules or by-laws. By 1976, the membership had dropped to the point that the congregation felt it was no longer practical to keep the church open for regular worship services. At that time, a majority voted to discontinue conducting regular worship services, but to conduct funerals, homecomings, and, on special occasions, singing events. At the time the members voted to cease holding regular worship services, W.T. Carter was a deacon of the Unity Baptist Church.

In 1982, a new group of worshipers held a meeting to determine whether the Unity Baptist Church should be reorganized. At the meeting were a few of the old members and some new worshipers who had never attended that particular church. Ultimately, they decided to reorganize the church and formed a non-profit corporation with a board of trustees. They have no deacons and do not claim title to the real estate.

In 1984, some of the members of the original congregation filed suit in Chancery Court against members of the new congregation. The complaint was labeled “Petition to Quiet Title, For Injunction and Ejectment,” but did not allege possession. The defendants, members of the new congregation, in their answer, did not question the jurisdiction of chancery court and did not question the title in the name of the deacon.

We first discuss the propriety of trying the case in chancery court. Ejectment is a possessory action to be filed in circuit court, while a quiet title action is an action to be filed in chancery court by one in possession. Our most often quoted statement on the subject is contained in Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064 (1920):

The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury.

In Ralston v. Powers, 269 Ark. 63, 598 S.W.2d 410 (1980), we wrote:

The jurisdictional requirement that a party be in possession to quiet title to land in equity has been approved by this court many times. Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175 (1921); Rice v. Rice, 206 Ark. 937, 175 S.W.2d 201 (1943); Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892 (1946).

If the jurisdiction of the chancery court had been questioned, and the court had acted on the merits, we would have reversed because the plaintiffs had an adequate remedy at law. Hesser v. Johns, 288 Ark. 264, 704 S.W.2d 165 (1986). But jurisdiction was not questioned, and the parties tried the case. As we pointed out in Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631 (1984) and Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), when the issue is whether the chancery court has jurisdiction because the plaintiff lacks an adequate remedy at law, we will not allow it to be raised for the first time on appeal. It is only when the court of equity is “wholly incompetent” to consider the matter that we will permit the issue to be raised for the first time on appeal or that we will raise the issue. Since a court of equity is competent to try quiet title actions, we will not question jurisdiction. Even so, the Chancellor was faced with a mutually exclusive complaint, and the practical problem of deciding what the suit was about. In his finding of fact, he stated:

The Plaintiffs have asked that the title be quieted and confirmed in the surviving deacon, W.T. Carter but that is not necessary. There is no attack on the title. The original deed placed title in the deacons of Unity Baptist Church with the possibility of reverter. There is no attempt by Defendants to claim title as against the deacons of the church.
There is no question but that Mr. Carter was a deacon of the church in 1976. The Court cannot determine if he is still a deacon within the meaning of Ark. Stat. Ann. § 50-210, 202. The manner of election and appointment is unknown.
The real issue involves an internalfight as to who will control possession of the building and cemetery with ill will on both sides.

The appellants, plaintiffs below, in five of their points of appeal contend that the trial court erred in failing to find that title was vested in W.T. Carter, in trust, and in failing to grant ejectment, either by summary judgment or by trial on the merits. We find no error. Pleadings are to be liberally construed so that effect is given to the substance of the pleading rather than the form. Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Ass’n, Inc., 285 Ark. 284, 686 S.W.2d 418 (1985). The court correctly construed the pleadings and the issues raised at trial to be nothing more than the internal fight within a congregationalist church over which group would control the use of the building. The Chancellor did not abuse his discretion in so ruling.

The Chancellor also ruled, “The Southern Baptist Convention has no legal right whatsoever in this controversy and their regulations and rules do not control the actions of Unity Baptist Church in any respect insofar as this lawsuit is concerned.”

The appellants argue:

Because the trial court failed to recognize that the traditional baptist rules and regulations are the controlling rules and regulations of the religious society in this case it committed reversible error. The trial court’s finding that the baptist denomination and baptist rules and regulations have nothing to do with this case is clearly erroneous and a basis for reversal.

The trial court was correct. This dispute involved a Baptist church, and a Baptist church is a congregationalist church. Monk v. Little, 122 Ark. 7, 182 S.W. 511 (1916). In congregational churches, the affairs of a particular church are determined by the vote of the majority of the members of that church and not by some other hierarchical form of church government. Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662 (1945).

Appellant next argues that the trial court erred in holding that both groups were equal members of the Unity Baptist Church. The Chancellor was correct. The older group had no written rules, regulations, or by-laws governing the church operation. The Chancellor found they had a “loose knit open-door policy.” The new members came in that open door and are now members of the Unity Church. All members, old and new, agree that the present church is a Baptist church and is a part of the cooperative organizational structure of the Southern Baptist Convention. All voting members of that democratic church are equal members.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    James Welton “Spike” JACKSON v. STATE of Arkansas
    CR 86-167
    722 S.W.2d 831
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Clint Huey, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant appeals from a conviction for possession of a controlled substance. On motion, the Court of Appeals certified the case to this Court pursuant to Rule 29(4) (b) of the Rules of the Supreme Court and Court of Appeals. We affirm the judgment of conviction.

Appellant sets out three points of appeal, and the appellee reorganizes them into two, but there is really only one issue, whether the admission of evidence, obtained with a search warrant, was proper.

A deputy sheriff went before the issuing magistrate and executed an affidavit for a search warrant, and, in addition, he and a confidential informer gave sworn oral testimony which was recorded by the magistrate. The state later refused to disclose to appellant the recorded testimony because the prosecutor did not want to reveal the name of the informant.

A.R.Cr.P. Rule 13.1 (c) requires recordation of such oral testimony. The purposes of such a rule are to facilitate subsequent review for the existence of probable cause and to avoid the possibility of justification for a search becoming based upon facts or evidence discovered in the course of execution of the warrant, and, in the event the probable cause is based upon hearsay, explaining the reliability of the informant. These considerations are particularly appropriate for the review of ex parte proceedings involving the valued right of privacy. They also serve to minimize the necessity of calling issuing magistrates to prove what can easily be documented. State v. Russell, 293 Or. 469, 650 P.2d 79 (1982); 2 W. LaFave, Search and Seizure § 4.3(b) (1978). Because the state refused to disclose the recorded oral testimony, the very purposes of the rule were defeated, and we will not consider that testimony in deciding this case. The sufficiency of the application for the search warrant must be decided solely on the basis of the written affidavit.

The written affidavit is deficient. A.R.Cr.P. Rule 13.1(b), in part, provides:

If an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.

On the issue of the reliability of the informant, the affidavit only provided:

Reliable informant advised affiant that he gave another boy $20.00 to get him some marijuana and watched him go to Spike Jackson’s house. When he came out he have him a bag of green leafy sub. and he returned this bag to me.

The affidavit did not provide the issuing magistrate any particular facts bearing on the informant’s reliability as required by Rule 13.1 (b). The conclusory language “reliable informant” is not sufficient to satisfy the particular facts requirement. See State v. Bradbury, 269 Ark. 215, 599 S.W.2d 721 (1980).

The state contends that, even though the affidavit is deficient, we should apply the good faith exception to the exclusionary rule enunciated in United States v. Leon, _ U.S. _, 104 S.Ct. 3405 (1984) and adopted by this court in McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). Leon holds that objective good faith reliance by a police officer on a facially valid search warrant will avoid the application of the exclusionary rule in the event the magistrate’s assessment of probable cause is found to be in error. Under this rationale the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish for errors on the part of magistrates, and admitting evidence seized pursuant to a defective warrant will not reduce incentives on the part of judicial officers to comply with the dictates of the Fourth Amendment. State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985). We have considered the application of the Leon doctrine in six cases.

In determining whether to apply the Leon rationale, we must be guided by our own A.R.Cr.P. Rule 16.2(e). McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985). That rule provides:

(e) Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this state. In determining whether a violation is substantial the court shall consider all the circumstances, including:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party’s ability to support his motion, or to defend himself in proceedings in which such evidence is sought to be offered in evidence against him.

In interpreting our rule since Leon was decided, we have found the following three violations were substantial and we refused to apply the rationale:

(1) There was no affidavit or recorded testimony in support of the warrant. State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985).
(2) The affidavit contained no indication whatsoever of the date the criminal activity was supposed to have been seen. Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985).
(3) The police did not act in good faith and the issuing magistrate wholly abandoned his judicial role. Stewart v. State, 289 Ark. 272, 711 S.W.2d 787 (1986).

On the other hand, we have found the three following violations to be only technical in nature, and applied the Leon doctrine:

(1) Failure to return the executed warrant to the issuing magistrate in violation of A.R.Cr.P. 13.4(b). McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985).
(2) Confidential informant affirmed that she had directly obtained contraband, when she should have affirmed that she obtained contraband from an intermediary, but such statement was not of significance in view of other details. Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985).
(3) The confidential informant was not alleged to be reliable and the directions on the warrant were impossible to follow. Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985). However, the reliability of the informant was not a primary issue, and the case was decided on other facts.

In State v. Anderson, supra, there was no affidavit or recorded testimony in support of the warrant. The Constitution of Arkansas requires an oath or affirmation before a search warrant may be issued. Article 2, Section 15. Here, there was an affidavit, and so, this case is clearly distinguishable from State v. Anderson, and we can apply the Leon good faith exception to the case before us. The officer who executed the warrant did act in good faith, in this case, and we apply the exception.

We recognize that some of the language in State v. Anderson provides that A.R.Cr.P. Rule 13.1 is a “threshold requirement before we consider the question of good faith on the part of the police.” That language is overruled to the extent it conflicts with this opinion.

Affirmed.

Purtle, J., dissents.

Glaze, J., not participating.

John I. Purtle, Justice,

dissenting. The majority opinion is an excellent statement of the law with the exception of its reliance on Toland v. State, 285 Ark. 415, 688 S.W.2d 718 (1985), and McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985) in affirming the present appeal. The majority misinterprets Toland, and McFarland is not on point. I believe that the case before us is controlled by State v. Anderson, 286 Ark. 58, 688 S.W.2d 947 (1985) which we held was controlled by the “good faith” exception established in Leon.

In Anderson there was no affidavit or recorded testimony to support the search warrant. The officer executing the search warrant was the same officer who applied for the warrant. He knew that there was no affidavit on file, therefore, he could not have been acting in good faith under the Leon doctrine. We stated in Anderson'.

Leon holds “objective good faith reliance” by a police officer upon the acceptance of affidavit by a detached, neutral magistrate will avoid application of the exclusionary rule in the event the magistrate’s assessment is found to be in error. Under this rationale the exclusionary rule is designed to deter misconduct on the part of the police rather than to punish errors of judges and magistrates, and admitting evidence seized pursuant to a defective warrant will not reduce incentives on the part of judicial officers to comply with the dictates of the Fourth Amendment. 104 S.Ct. 3418. Massachusetts v. Sheppard, [104 S.Ct. 3424] a companion case to Leon, applied the Leon rule to technical deficiencies in the warrant and found the officers had acted in objectively reasonable reliance on a warrant which was technically inadequate.

The above quoted statement is a fair summary of the Leon opinion. However, we anchored the Anderson opinion upon the basic procedural safeguards afforded a defendant under the Arkansas Rules of Criminal Procedure. In Anderson, this Court stated: “We review that particular section [A.R.Cr.P.] Rule 13.1 as a threshold requirement before we consider the question of good faith on the part of the police.” The pertinent part of the rule concerns the reliability of the information furnished by informants. If an affidavit for a search warrant is based upon hearsay the affiant or witness “shall set forth particular facts bearing upon the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.” A.R.Cr.P. Rule 13.1 (b). No facts bearing on the reliability of the informant were contained in the affidavit in this case, neither were they presented to the magistrate. Therefore, the threshold requirement was not satisfied.

Neither the rule nor the law has changed since we decided Anderson. The affidavit in the case at bar is absolutely silent as to the particular facts bearing upon the reliability of the informant. The affidavit in this case stated: “Reliable informant advised affiant that he gave another boy $20.00 to get him some marijuana and watched him go to Spike Jackson’s house. . . .” In fact neither boy was ever identified, thereby making it impossible for the appellant to investigate the informant’s reliability. There were no reasons given why the informant should remain unknown.

The affiant in the present case was a deputy sheriff. There is no reason to believe that the officers who executed the search warrant did not know that the supporting affidavit must state facts bearing upon the informant’s reliability. The warrant itself clearly reveals that it was based upon the hearsay information of a “confidential informant.” Such information should have been a warning to the executing officers. There can be no “good faith” reliance by an officer on a warrant which he knows is invalid. This type of action does not come within the Leon “good faith” exception.

The result reached in the majority opinion is partially based on a misunderstanding of our decision in Toland v. State, supra. We upheld the warrant there under the totality of the circumstances test stated in Thompson v. State, 280 Ark. 265, 658 S.W.2d 350 (1983), and opined that the search could also have been upheld under the Leon rule. The decision in Toland is inapposite to the present appeal because the search warrant in that case was not based upon information furnished by an informant. Toland had cultivated an outdoor patch of marijuana. The investigating officer was the affiant and his information was based upon his own personal knowledge. True, an informant furnished the officer information which was used in investigating the case. However, the reliability of the informant was no longer at issue after the officer confirmed, by land and air, that Toland was indeed growing marijuana.

In my opinion both Anderson and Toland were correctly decided. We have established a line of cases interpreting Leon and we should hold to those decisions. All of the reasons stated in the majority opinion require reversal.

The majority opinion effectively emasculates A.R.Cr.P. Rule 13.1(b) without any warning. The purpose of the rule is to provide built-in safeguards against unreasonable searches. The majority today holds that as long as the police are “acting in good faith,” it is irrelevant whether the Arkansas Rules of Criminal Procedure have been complied with. The bench and bar of this state should be able to rely upon our own rules until they are prospectively changed. The rules should not be changed during the game.

I would reverse.


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

text:
    Robert Keith MEADOWS v. STATE of Arkansas
    CR 86-166
    722 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      Terry L. Crabtree, Public Defender, and N. Michael Yarbrough, Asst. Public Defender, for appellant.

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

The principal issue in this case is whether an unborn viable fetus is a “person” as that term is used in the manslaughter statute. There is little dispute about the facts. The appellant, while intoxicated, drove his car in a reckless manner, veered across the center line of the highway and struck an oncoming car being driven by Randy Waldrip. As a result, Randy Waldrip was killed and an unborn viable fetus, carried by Vanessa Weicht, a passenger in appellant’s car, was also killed. The appellant was charged with, and convicted of, two counts of manslaughter; one for killing Randy Waldrip and the other for killing the unborn fetus.

Appellant’s first argument is that reckless killing of an unborn viable fetus is not included within the purview of the manslaughter statute. The argument has merit. Our statute provides that one commits manslaughter if he “recklessly causes the death of another person.” Ark. Stat. Ann. § 41-1504(l)(c) (Repl. 1977). The word “person” is not defined.

The applicable rule of construction is that the common law in force at the time the statute was passed is to be taken into account in construing undefined words of the statute. State v. Pierson, 44 Ark. 265 (1884). The quoted statute, which is a part of the Criminal Code, was enacted in 1975, while a pre-code manslaughter statute goes back to the revised statutes which became effective in 1839. Ark. Stat. Ann. § 41-2201 and § 41-2209 (Repl. 1964). The revised statute used the term “human being” rather than the presently used “person,” but the terms are synonymous in common law.

In ascertaining the common law, we look not only to our own cases, but to early English cases, early writers on the common law, and cases from other states. Ark. Stat. Ann. § 1-101 (Repl. 1976); Baker v. State, 215 Ark. 851, 223 S.W.2d 809 (1949). In so looking, we find that at common law, in both 1839 and in 1975, an unborn fetus was not included within the definition of a “person” or “human being,” and therefore, the killing of a viable unborn child was not murder. Rex v. Brain, 6 Carr. & P. 349, 172 Eng. Rep. 1272 (1834); Rex v. Sellis, 1 Carr. & P. 850, 173 Eng. Rep. 370 (1836); and Rex v. Crutchley, 1 Carr. & P. 814, 173 Eng. Rep. 355 (1836); Clarke v. State, 117 Ala. 1, 23 So. 671 (1898); Keeler v. Superior Court, 2 Cal. 3d 619, 625-27, 470 P.2d 617, 40 A.L.R.3d 420 (1970); Ranger v. State, 249 Ga. 315, 290 S.E.2d 63 (1982); People v. Greer, 79 Ill. 2d 103, 37 Ill. Dec. 313, 402 N.E.2d 203 (1980); State v. Winthrop, 43 Iowa 519 (1876); Hollis v. Commonwealth, 652 S.W.2d 61 (Ky. 1983); State v. Gyles, 313 So. 2d 799 (La. 1975); People v. Guthrie, 97 Mich. App. 226, 293 N.W.2d 775 (1980); State in the Interest of A.W.S., 182 N.J. Super. 278, 440 A.2d 1144 (1981); State v. Willis, 98 N.M. 771, 652 P.2d 1222 (1982); People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23 (1949); State v. Sogge, 161 N.W. 1022 (N.D. 1917); State v. Dickinson, 28 Ohio St. 2d 65, 275 N.E.2d 599 (1971); State v. Amaro, 448 A.2d 1257 (R.I. 1982); Harris v. State, 28 Tex. App. 308, 12 S.W. 1102 (1889); State v. Larsen, 578 P.2d 1280 (Utah 1978); Bennett v. State, 377 P.2d 634 (Wyo. 1963); Annot., 40 A.L.R.3d 444 (1971). State ex. rel. Atkinson v. Wilson, 332 S.E.2d 807 (W. Va. 1984). See also W. LaFave & A. Scott, Criminal Law § 67 (1972); 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.1(c) (1986); R. Perkins & R. Boyce, Criminal Law § IB (3d ed. 1982); 2 C. Torcía, Wharton’s Criminal Law § 114 (14th ed. 1979); F. Bailey & H. Rothblatt, Crimes of Violence: Homicide and Assault § 576 (1973); 40 Am. Jur. 2d Homicide § 9; and 40 C.J.S. Homicide § 2(b).

In its brief the State acknowledges that the common law is as set out above, but urges us to alter it. Thus, the critical issue is whether a court ought to create a new common law crime.

In their book entitled Criminal Law, supra, at 57-69, LaFave and Scott discuss at length the issue of whether courts can create new common law crimes. They indicate that the modern view finds diminished authority for courts doing so. They conclude:

It is only natural that judges should create crimes from general principles in medieval England, because such legislature as there was sat only infrequently and legislation was scanty. Today in the United States, as in modern England, the various legislatures meet regularly. The principal original reason for common law crimes has therefore disappeared.

We have recently said, “It is well settled that it is for the legislative branch of a state or federal government to determine the kind of conduct that constitutes a crime and the nature and extent of the punishment which may be imposed.” Sparrow v. State, 284 Ark. 396, 397, 683 S.W.2d 218 (1985).

There are two fundamental policy reasons which make it appropriate for this Court to defer the creation of new crimes to the legislature. First, aside from having the primary authority to create new crimes, the General Assembly is composed of members, proportioned according to population and geography, who are elected at more frequent intervals than are members of this Court. The General Assembly is more closely attuned and more representative of the public will than is this Court. Second, the General Assembly has committees which conduct hearings -in a non-adversary manner in order to anticipate all factual situations which may prospectively occur, and it is able to make more distinctions as to the degrees of offenses and to graduate the penalties to match the severity of the offenses. This Court would be limited to making a ruling solely on the adversarily developed facts before it. State ex rel. Atkinson v. Wilson, 332 S.E.2d 807, 810 (W. Va. 1984); Aldisert, The Nature of the Judicial Process: Revisited, 49 U. Cin. L. Rev. 1 (1980). Accordingly, we decline to create a new common law crime by judicial fiat, but, instead, defer to the legislative branch.

The highest courts of our sister states overwhelmingly agree with our philosophy. Twenty-four states have held, under facts similar to the ones at bar, they would not create new common law crimes. See, e.g,: Clarke v. State, 117 Ala. 480, 23 So. 67 (1898); Keeler v. Superior Court, 2 Cal. 3d 619, 87 Cal. Rptr. 481, 470 P.2d 617 (1970); State v. McCall, 458 So. 2d 875 (Fla. Dist. Ct. App. 1984); White v. State, 238 Ga. 224, 232 S.E.2d 57 (1977); People v. Greer, 79 Ill. 2d 103, 37 Ill. Dec. 313, 402 N.E.2d 203 (1980); Hollis v. Commonwealth, 652 S.W.2d 61 (Ky. 1983); State v. Gyles, 313 So. 2d 799 (La. 1975); Smith v. State, 33 Me. 48 (1851); People v. Guthrie, 97 Mich. App. 226, 293 N.W.2d 775; State v. Soto, 378 N.W.2d 625 (Minn. 1985); State v. Doyle, 205 Neb. 234, 287 N.W.2d 59 (1980); State in the Interest of A.W.S., 182 N.J. Super. 278, 440 A.2d 1144 (N.J. Super. Ct. App. Div. 1981); State v. Willis, 98 N.M. 771, 652 P.2d 1222 (N. M. Ct. App. 1982); People v. Hayner, 300 N.Y. 171, 90 N.E.2d 23 (1949); State v. Sogge, 36 N.D. 262, 161 N.W. 1022 (1917); State v. Dickinson, 28 Ohio St. 2d 65, 275 N.E.2d 599(1971); State v. McGee, 1 Add. 1 (Pa. 1791); State v. Amaro, 448 A.2d 1257 (R.I. 1982); Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923); Harris v. State, 28 Tex. App. 308, 12 S.W. 1102 (Tex. 1889); State v. Larsen, 578 P.2d 1280 (Utah 1978); Lane v. Commonwealth, 219 Va. 509, 248 S.E.2d 781 (1978); Huebner v. State, 131 Wis. 162, 111 N.W. 63 (1907); Bennett v. State, 377 P.2d 634 (Wyo. 1963). On the other hand, only two states have created a new common law crime under facts similar to those of the case at bar. In its brief the State asks us to follow the holding of those two states. We decline to do so. In State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984), the South Carolina court, without discussing its power to create a new common law crime, prospectively held that the murder of a viable unborn fetus would be a crime. In Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), the Massachusetts court, by a 4-3 vote, held that a viable fetus was a “person” for purposes of that state’s vehicular homicide statute. The court relied on and extended an earlier holding in the civil case of Mone v. Greyhound Lines, Inc., 368 Mass. 354, 331 N.E.2d 916 (1975), which held that a viable fetus was a “person” within that state’s wrongful death statute. In doing so, the Massachusetts court stressed that its vehicular homicide statute was enacted shortly after the Mone decision. Because of that unusual fact the court reasoned: “Despite the fact that Mone was a civil case, we can reasonably infer that, in enacting [the vehicular homicide statute], the Legislature contemplated that the term ‘person’ would be construed to include viable fetuses.” Id. at 1326.

We do not have such a holding in a civil case. In fact, in a somewhat comparable case our holding was just the opposite. In Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), we held that a viable fetus born dead was not a “deceased person” within the meaning of the probate code. In addition, we clearly stated that any attempt to expand the probate code to include fetuses would require action by the General Assembly.

An even more compelling reason dictates that we cannot infer, as the Massachusetts court did, that legislative intent was for the term “person” to include a viable fetus. An early feticide statute, Ark. Stat. Ann. § 41-2223 (Repl. 1964) provided that “the willful killing of an unborn, quick child, by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be adjudged manslaughter.” Under the statute one could be convicted of voluntary manslaughter for intentionally driving an automobile in such a manner that it struck a pregnant woman, killing the fetus. Tiner v. State, 239 Ark. 819, 394 S.W.2d 608 (1965). However, that manslaughter statute, specifically relating to unborn children, was expressly repealed by Act 928 of 1975. Obviously, the legislative intent shown, if any, is that the killing of a viable fetus is not manslaughter.

Finally, even if we chose to follow the holdings of the South Carolina and Massachusetts Courts, we could not affirm this case. Both of those courts, in their respective opinions, recognized that their opinions could only be applied prospectively or else there would be a deprivation of due process. See Bouie v. City of Columbia, 378 U.S. 347 (1964). Accordingly, we must reverse and dismiss the manslaughter conviction for killing the unborn fetus.

We do not address appellant’s second point of appeal because it goes only to the case involving the reckless killing of the unborn fetus and is therefore moot.

Appellant’s third point of appeal concerns the reckless killing of Randy Waldrip, driver of the oncoming car. During opening statement, the prosecutor outlined the state’s evidence and then, with clear reference to the defendant asked, “What’s he going to say after all this evidence is presented?” The question was highly improper. The constitutional prohibition against the prosecutor commenting on the right of a defendant to remain silent applies to opening statement. Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). Appellant did not move for a mistrial, but his assignment of error is, “The trial court erred in not declaring a mistrial based upon an improper prejudicial comment by the prosecution during the State’s opening to the jury.” Clearly, the comment in opening statement, without more, was not such a prejudicial statement that it required the court, on its own motion, to declare a mistrial. Indeed, a mistrial, even if requested, was not warranted as no further reference was made to appellant’s post-arrest silence and the proof of guilt was overwhelming. For our most recent review of the harmless error rule in cases involving violation of the federal constitutional right to remain silent, see Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987).

Appellant’s final point is that his conviction for the manslaughter of Randy Waldrip must be reversed because of the prejudice caused by the evidence adduced in the jointly tried case involving the viable fetus. Indubitably, some of the evidence concerning the fetus could have inflamed the jury. The State introduced evidence concerning the viability of the fetus at various stages of gestation, and then presented detailed evidence about the death of the fetus as a result of “slow asphyxiation” caused by a “shearing” of the umbilical cord, much like an astronaut might die in outer space if he lost his “lifeline” to his orbiting space vehicle. Under Ark. Unif. R. Evid. Rule 401, such a vivid and detailed explanation of the death of the fetus was neither relevant, nor properly admissible, in the Waldrip case. However, the erroneous evidence would not have influenced the jury on the question of guilt or 'innocence, but could have improperly influenced the jury in fixing the sentence. Because of this possible prejudice in the fixing of the sentence, we affirm the judgment of conviction but reduce the sentence to the minimum the jury could have set for the offense of which the appellant was convicted. Rogers v. State, 260 Ark. 232, 538 S.W.2d 300 (1976). The sentence is thus reduced to three years confinement. See Ark. Stat. Ann. § 41-1504(3) (Repl. 1977) and Ark. Stat. Ann. § 41-901 (Supp. 1985).

Accordingly, should the Attorney General decide, within 17 days, to accept this reduction of sentence, the judgment will be affirmed as modified. Otherwise, the judgment will be reversed and the cause remanded for a new trial. See Rogers v. State, supra.

Affirmed in part as modified at the option of Attorney General and reversed in part.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I do not share the majority’s concern that this court would be “creating a common law crime” by holding that an unborn, fully viable fetus is a “person” within the meaning of our manslaughter statute.

This is not a “new crime.” This court would not in any sense be “creating” a crime. The crime was created legislatively as part of the Revised Statutes, which took effect in 1838. What we would be doing by affirming the trial court is what courts traditionally and necessarily do — interpret an act of the legislature for the purpose of giving effect to what we perceive to be the legislative intent.

The act, Ark. Stat. Ann. § 41-1504(l)(c) (Repl. 1977), is quite clear:

Manslaughter — (1) A person commits manslaughter if: (c) he recklessly causes the death of another person.

Prior Arkansas law specifically included in the offense “the driving of any vehicle in reckless, willful or wanton disregard of the safety of others. . .” See Commentary, § 41 -1504. No intent is required. Seabourn v. State, 236 Ark. 175, 365 S.W.2d 133 (1963).

The issue then is simply whether the legislature intended “person” to include a full term unborn child in 1975 when our current statute was framed to take effect on January 1, 1976.1 submit that logic and common sense weigh on the side of the affirmative.

I concede the weight of authority holds that an unborn child is not a “person” under the common law view of homicide. The division among the states seems to stand at 22 to 9. See LaFave and Scott, Substantive Criminal Law, § 7.1(c) (1986) and 40 A.L.R.3d 444 (1971). But a number of those cases cited by the majority date from the turn of the century and before: Clarke v. State, 117 Ala. 480, 23 So. 67 (1898); Smith v. State, 33 Me. 48 (1851); State v. Sogge, 36 N.E. 262, 161 N.W. 1022 (1917); State v. McGee, 1 Add. 1 (Pa. 1791); Morgan v. State, 148 Tenn. 417, 256 S.W. 433 (1923); Huebner v. State, 131 Wis. 162, 111 N.W. 63 (1907). Some involve homicide of a higher degree than manslaughter, crimes involving specific intent as opposed to wanton conduct, where the malice was not directed toward the fetus and the issue of transferred intent complicated the decisional process.

More importantly, the principle which gives commonality to those cases on which the majority relies is based on the “born alive rule,” that is, that there could be no liability under the common law for crimes against a fetus unless the child was born alive. The rule is outmoded and entirely discredited. It had its origins in the fourteenth century (see 40 A.L.R.3d at p. 446) and gained acceptance during an age in which still births exceeded live births and medical knowledge concerning viability was nonexistent. Justice James L. Ryan, of the Michigan Supreme Court, dissenting in People v. Guthrie, 417 Mich. 1006, 334 N.W.2d 616 (1983) describes the rule:

The “rule” is generally understood to derive from the impossibility, 300 years ago, of determining whether and when a fetus was living and when and how it died, and the consequent necessity to preclude the fundamental inquiry whether a fetal death was a human death.
To hold as a matter of law in the waning years of the twentieth century that the question of the personhood or humanity of a viable unborn child in the ninth month of gestation is governed by a common law rule of proof invented by the venerable but fallible Sir Edward Coke in the seventeenth century, to accommodate the medical and scientific impossibility of then proving the viability of a fetus, is disingenuous reasoning in the extreme.

We are not bound by outmoded notions founded on a lack of information when scientific knowledge now provides clear and reliable information. The exact cause of the death of this fetus was fully provided by the proof and was shown to be directly attributable to the collision. It seems patently illogical to me to hold that if an infant dies immediately before birth it is not a “person,” but if it dies immediately after birth it is a “person.”

I believe we should reject the born alive rule and follow the course taken by the recent cases of State v. Horne, 282 S.C. 444, 319 S.E.2d 703 (1984); State v. Burrell, 699 P.2d 499 (Kan. 1985) and Commonwealth v. Cass, 392 Mass. 799, 467 N.E.2d 1324 (1984), where it was said:

We think that the better rule is that infliction of prenatal injuries resulting in the death of a viable fetus, before or after it is born, is homicide. If a person were to commit violence against a pregnant woman and destroy the fetus within her, we would not want the death of the fetus to go unpunished. We believe that our criminal law should extend its protection to viable fetuses.

As to Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), we declined to decide whether an unborn fetus has a cause of action because the probate proceeding was wholly ex parte. On the issue of civil liability, it might be noted that the Supreme Court of Pennsylvania lists thirty jurisdictions as recognizing survival and wrongful death actions on behalf of stillborn children. See Amadio v. Levin, 50 A.2d 1085 (1985).

Nor would I hold that the appellant is entitled to fair warning that his conduct in this instance should not be criminalized based on a narrow interpretation of “person.” The cases cited by the appellant have no bearing on the type of culpable misconduct demonstrated by this record and warrant no extended discussion. The mother whose child was killed and who lived with the appellant at the time of the collision and trial, testified the appellant had been drinking all day and had smoked marijuana cigarettes. Large amounts of beer were consumed and appellant’s blood alcohol level was. 18 following the collision. While the exact consequences may not have occurred to appellant, the criminality of his conduct could hardly have been in doubt. On that basis Bouie v. City of Columbia, 378 U.S. 347 (1964) bears no similarity to the facts before us. In Bouie conduct which reasonably could have been thought lawful was held to be subject to fair warning prior to the applicability of a broader statutory construction which would have rendered such conduct unlawful.

I would affirm the judgment.

       The mother testified her child was two weeks overdue when the collision occurred. Her obstetrician estimated the age of the child, a boy, at 40 weeks at the time of death.


author: David Newbern, Justice.

text:
    Dolly BROWN v. Brenda BELL
    86-138
    722 S.W.2d 592
    Supreme Court of Arkansas
    Opinion delivered January 26, 1987

      John W. Cloer, for appellant.

      Vowell & Atchley, by: Russell C. Atchley, for appellee.
   David Newbern, Justice.

The appellant, Dolly Brown, is the widow of Lloyd I. Brown. The appellee, Brenda Bell, is the daughter of Lloyd I. Brown and executrix of his estate. The appellant contests the appellee’s inventory of the estate in three particulars. The appellant contends the estate contains (1) two promissory notes made in favor of the decedent secured by mortgages and the payments made on the notes since the decedent’s death, (2) $482.79 which was withdrawn by the appellee from a bank account of which the decedent was a joint owner, and (3) two farm tractors. None of these items were included in the inventory.

We do not reach the question whether the $482.79 should be included in the estate, as the appellee conceded in her testimony that it is to be included, and thus the court made no finding on that asset from which an appeal could be taken. The appellant made no objection to the court’s order in this respect. We concur with the court’s finding that the decedent had made inter vivos gifts of the notes as well as the two tractors, and thus we affirm.

1. The promissory notes

The decedent had apparently sold lands and taken mortgages and the notes, which are the subject of the appellant’s first point, in exchange. One was for $92,000 and the other was for $9,000. The appellee testified that her father, the decedent, delivered the notes to her at the office of an attorney just after the death of his wife, the appellee’s first stepmother, in December, 1981. She placed the notes in her personal safety deposit box. Her testimony was that her father had suffered five heart attacks, knew he was in poor health, and wanted her to have the notes. She thereafter received the payments on the notes and placed them in a joint checking account. Her father’s name was on the account, but she said her father wrote no checks on the account, and the ones she wrote were for her personal purposes.

In August of 1982, the decedent married the appellant. In 1984, he executed a “bill of sale” purporting to convey the notes, among other items, to the appellee for “love and affection.”

a. Undue influence

The appellant’s first assertion is that because the appellee was the decedent’s daughter, there was a special trust and confidence between them, and the appellee thus must show the gifts were made freely and voluntarily. Norton v. Norton, 227 Ark. 799, 302 S.W.2d 78 (1957.) She also cites Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973), for the proposition that when, in a confidential relationship, the evidence shows dominance on the part of one of the parties, there is a presumption that a gift by the dominated donor to the dominant donee is not freely and voluntarily given.

There is no evidence whatsoever that the appellee dominated her father. Her testimony showed that the notes were delivered to her by her father who intended to make a present gift of them to her. Even the appellant testified that the decedent told her he had given everything away except his tractors. Nothing in the appellant’s testimony or that of any other witness even hints at undue influence or overreaching of any sort.

b. Lack of indorsement

The appellant contends the court erred in holding the notes could be given or beneficially transferred absent indorsement of the decedent who was the payee of the notes. She contends that the bill of sale was an assignment of the notes which we held was prohibited by the Uniform Commercial Code in McIlroy Bank v. First National Bank of Fayetteville, 252 Ark. 558, 480 S.W.2d 127 (1972). In that case a bank took possession of a note made payable to its debtor as security for the debtor’s obligation to the bank. The bank returned the note to the debtor who held it for a year and reduced it to judgment without the knowledge of the bank. The bank claimed it had a valid equitable assignment of the note. We pointed out that assignment of notes is not permitted under Ark. Stat. Ann. §§ 85-3-201 through 85-3-208 (Add. 1961). We said that those sections permit a note to be transferred or negotiated but not assigned.

The argument of the appellant that indorsement of these notes was necessary to effect a gift of them is erroneous. Section 85-3-202(1) provides:

Negotiation. — (1) Negotiation is the transfer of an instrument in such form that the transferee becomes a holder. If the instrument is payable to order it is negotiated by delivery with any necessary indorsement; if payable to bearer it is negotiated by delivery.

Transfer of a negotiable instrument is covered by § 85-3-201 which provides:

Transfer — Right to indorsement.—
(1) Transfer of an instrument vests in the transferee such rights as the transferor has therein, except that a transferee who has himself been a party to any fraud or illegality affecting the instrument or who as a prior holder had notice of a defense or claim against it cannot improve his position by taking from a later holder in due course.
(2) A transfer of a security interest in an instrument vests the foregoing rights in the transferee to the extent of the interest transferred.
(3) Unless otherwise agreed any transfer for value of an instrument not then payable to bearer gives the transferee the specifically enforceable right to have the unqualified indorsement of the transferor. Negotiation takes effect only when the indorsement is made and until that time there is no presumption that the transferee is the owner.

Note 2 of the commentary under § 85-3-201 provides:

2. The transfer of rights is not limited to transfers for value. An instrument may be transferred as a gift, and the donee acquires whatever rights the donor had.

It is thus clear from the statutes and the commentary that while indorsement of a note payable “to order” is required to negotiate it in favor of one who becomes a holder in due course, a donor’s rights in such an instrument may be transferred by gift without indorsement. Adoption of the Uniform Commercial Code has done nothing to disturb our earlier holding that a promissory note may be the subject of a gift. Ammon v. Martin, 59 Ark. 860, 26 S.W. 826 (1894). See also Boling v. Gibson, 266 Ark. 310, 548 S.W.2d 14 (1979); Pyland v. Gist, 177 Ark. 860, 7 S.W.2d 985 (1928). 5 R. Anderson, Uniform Commercial Code, § 3-201:13 (1984).

2. The tractors

On January 14, 1982, which was about the same time the notes were delivered, the decedent conveyed land known as “the blueberry farm” to the appellee and her husband, Ronnie L. Bell. It is undisputed that the two tractors in question were on that land when the conveyance was made and were used by the appellee and Ronnie Bell to work the farm after the conveyance. The appellant’s testimony and that of two witnesses she presented was that the decedent had indicated his intent to retain ownership of the tractors despite having given the farm to his daughter and her husband.

The appellee testified that the decedent had made it clear to her “verbally” that all the equipment went with the farm. Her husband, Ronnie L. Bell, testified that when the conveyance was made the decedent told him the tractors were his “to run the farm and do what else you want.” He further testified that the appellee had paid the personal property taxes on the tractors “the past several years.”

Thus there was a factual issue as to the intent of the decedent to make a gift of the tractors. We will not reverse the court’s determination of donative intent on the part of the decedent unless the determination was clearly erroneous or clearly against the preponderance of the evidence. Gibson v. Boling, 274 Ark. 53, 622 S.W.2d 180 (1981); Ark. R. Civ. P. 52(a).

Affirmed.