text:
    Jonas Hoten WHITMORE II v. STATE of Arkansas
    CR 87-168
    756 S.W.2d 890
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      Gordon L. Humphrey, Jr., and Neal Kirkpatrick, by: Neal Kirkpatrick, for appellant.

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

The appellant, Jonas Whit-more II, was convicted of capital murder and sentenced to death by lethal injection. There is no need to detail the facts since the appellant does not question the sufficiency of the evidence to support either the verdict on guilt or on penalty. His arguments on appeal are that the trial court erred (1) in failing to exclude his incriminating statements in the guilt/innocence phase of the trial and (2) in failing to exclude evidence of a twenty-three-year-old conviction as an aggravating circumstance in the penalty phase of the trial. The trial court did not err in either ruling, and we affirm the judgment of conviction.

I.

Appellant’s first argument is that he was not properly advised of his Miranda rights, and the trial court erred in refusing to suppress his statements. For clarity of this opinion, we divide the point into its four sub-points.

(a) Appellant argues that the Miranda statements of rights given him by the police officers did not specifically warn him that if he could not afford a lawyer one would be appointed for him at no cost. See Mayfield v. State, 293 Ark. 216, 222-23, 736 S.W.2d 12, 15 (1987), cert. denied,_U.S__, 108 S.Ct. 1076 (1988). The argument has no factual basis.

The appellant was given two separate warnings before he gave his first incriminating statement. The first, given by F.B.I. Special Agent John Munis provided in pertinent part: “If you cannot afford a lawyer, one may be appointed for you before questioning, or at any time during questioning, if you so desire.” In response, appellant expressly waived his right to a lawyer by acknowledging in pertinent part: “I am ready and willing to answer questions or to make a statement without first consulting with a lawyer or without having a lawyer present during questioning.”

The second warning, given by Investigator Russell Welch of the Arkansas State Police provided: “Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning if you so desire?” Appellant’s response was “Yes.” The warnings together were sufficient to notify the appellant that if he could not afford a lawyer one would be appointed for him at no cost.

(b) Appellant next argues that the second Miranda warning was invalid because it was given at 3:00 a.m. when he was “in a condition of less than full awareness.” We could perfunctorily dispose of this argument by pointing out that the first warning was given at 5:15 p.m. the previous afternoon. However, we choose to discuss the matter, because the fact that a warning is given at 3:00 a.m. does not, as a matter of law, subject it to the exclusionary rule.

On September 22, 1986, Sheriff James Carmack of Montgomery County called the Sheriff of Musselshell County, Montana, and told him that he thought the appellant was in Musselshell County and that the appellant was wanted in Montgomery County for capital murder. Sheriff Carmack and investigators Russell Welch and Jack Ursery of the Arkansas State Police then left Montgomery County and began driving to Musselshell County, Montana. The appellant was arrested at about 5:00 p.m. on September 23 by the Musselshell County Sheriff and Special Agent John Munis of the F.B.I. The appellant was immediately given the first Miranda warning by the F.B.I. agent. Sheriff Carmack and the investigators from the Arkansas State Police arrived in Musselshell County, Montana, at about 10:00 p.m. on September 23. They first saw the appellant at the jail in Roundup, Montana, at about 3:00 a.m. on September 24. The Arkansas officers testified that they could have waited until later in the morning to warn the appellant, but they thought the sooner they gave the Miranda warnings the better it would be. There was no showing that they had any iniquitous purpose in waiting until 3:00 a.m., and they did not attempt to interrogate the appellant at that time. Since the police did not violate the Miranda procedural rules, and were not guilty of any police misconduct, the trial court correctly refused to apply the exclusionary rule on the basis of Miranda. Further, since the appellant did not give the statement until September 26, we are not concerned with the totality of the circumstances at 3:00 a.m. on September 24 in order to test the voluntariness of the statement. For a detailed discussion of the distinction between violations of the Miranda procedural rules and a determination of the voluntariness of a confession, see Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), cert. denied,_U.S__, 108 S. Ct. 1076 (1988).

(c) Appellant next contends that the trial court should have applied the exclusionary rule because the Miranda warning given by the Special Agent of the F.B.I. was occasioned by the federal charge of unlawful flight and not by the capital murder warrant from the State of Arkansas. Again, we could summarily dismiss the argument by reciting that the latter warning given by the Arkansas officers was occasioned by the Arkansas warrant, but we decline to base our decision on such a factual matter.

It is not a violation of the rather rigid Miranda rules for the police to give one valid warning and then question the suspect about two or more different crimes. Hall v. State, 242 Ark. 201, 412 S.W.2d 603 (1967). Further, and distinguished from the argued police violation of the Miranda rules, a suspect’s awareness of all the different charges in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege. Colorado v. Spring, 479 U.S. 564 (1987).

(d) As previously set out, Miranda warnings were given to appellant in Montana at 5:15 p.m. on September 23 and at 3:00 a.m. on September 24. No further Miranda warnings were given. On September 26, during the automobile trip back to Arkansas, appellant gave an incriminating statement to the Arkansas officers. After arriving in Arkansas the appellant gave another incriminating statement on September 27, and another on the 28th. Appellant now argues that all three incriminating statements should be excluded because of police misconduct in not re-warning him before each statement. We could dispose of the argument by pointing out that it is undisputed that the statements on the 26th and the 27th were spontaneous. In fact, the appellant was so talkative while in police custody that his attorney asked to be excused from defending him because he constantly ignored the attorney’s advice not to talk to the police. A suspect’s spontaneous statement, although made in police custody, is admissible against him. Scherrer v. State, 294 Ark. 287, 290-91, 742 S.W.2d 884, 885-86 (1988). However, even if the statements were not spontaneous, they would be admissible. In a case with facts almost identical to the ones at bar, we held the Miranda rules were not violated when a prisoner was given the Miranda warnings, made a spontaneous statement on the return trip to Arkansas, and was then questioned three or four days later without a new warning being given. O’Neal v. State, 253 Ark. 574, 487 S.W.2d 618 (1972). On the other hand, we have applied the exclusionary rule when the prisoner was warned, but the questioning did not take place until three months later. Scott v. State, 251 Ark. 918, 475 S.W.2d 699 (1972). The rationale for both cases is that the police must give the Miranda warning at a time close enough to the interrogation for the suspect to know that he is free to exercise his privilege at that point in time.

II.

The appellant next argues that the trial court erred in allowing a conviction dating from 1963 to be introduced into evidence as an aggravating circumstance during the penalty phase of the trial. For clarity, we divide the argument into sub-parts.

(a) He first argues that there was no substantial evidence to support the jury’s finding that the 1963 conviction was an aggravating circumstance because the judgment of conviction did not state that he used or threatened violence and, in fact, it recites that he was not armed with a dangerous weapon.

The argument is without merit for two reasons. First, the crime for which the appellant was convicted under Section 211 of the California Penal Code could not have been committed in California in 1963 without the use of fear or force against the person of another. Thus, the threat of violence is inherent in the definition of the crime. See Henderson v. State, 281 Ark. 406, 410-11, 664 S.W.2d 451, 454 (1984). In California, attempted robbery is a crime of violence. People v. Thompson, 175 Cal. App. 3d 1012, 1220, 221 Cal. Rptr. 282, 287 (1986). Our interpretation of the California definition of the crime of attempted robbery in the first degree is confirmed by appellant’s answer to the prosecutor’s question on cross-examination:

Q. All right. Going back to the attempted robbery in California, is it not true that you were sitting in the back seat of a taxi, that you hit the driver over the head with a sixteen ounce Royal Crown Cola bottle and then ran?
A. No sir. It was not a Royal Crown bottle. It was a Coca Cola bottle.

Secondly, the recitation in the judgment that he was not armed with a deadly weapon related to whether enhanced punishment should be applied, and not to whether he used fear or force in committing the offense. Cal. Penal Code § 211 (Deering 1985); Cal. Penal Code § 969c (Deering 1983); Cal. Penal Code § 3024 (since repealed); and State v. Evans, 147 Ariz. 57, 708 P.2d 738 (1985).

(b) Appellant next argues that a twenty-three-year-old conviction was too old to be probative of appellant’s predisposition for violence, and its use violated fundamental fairness and due process.

The legislature has specifically set out those things which can be considered as aggravating circumstances, Ark. Code Ann. § 5-4-604 (1987), and those which can be considered as mitigating circumstances, Ark. Code Ann. § 5-4-605 (1987). Evidence of both types of circumstances is designed to give the jury a complete history of the defendant’s life in order to better allow the jury to determine whether the defendant should be given a sentence of death, or a sentence of life imprisonment without parole. Ark. Code Ann. § 5-4-602 (1987).

One of the aggravating circumstances which can be proven is that a defendant has “previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.” Ark. Code Ann. § 5-4-604(3) (1987). The legislature intentionally did not provide a time limitation on the past offense. Ark. Code Ann. § 5-4-602 provides: “In determining sentence, evidence may be presented to the jury as to any matters relating to aggravating circumstances enumerated in § 5-4-604. . . .” (Emphasis added.)

In his brief, the appellant does not tell us why he thinks that the statute allowing the jury to hear evidence of a defendant’s complete life during the penalty phase of a bifurcated trial violates due process. He gives us no citations of authority for the proposition, and no reason is readily apparent to us. Thus, we do not consider the issue. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

(c) Ark. Code Ann. § 5-4-602(4) provides that in determining the sentence, evidence concerning mitigating circumstances may be presented regardless of the rules of evidence, but “evidence relevant to the aggravating circumstances. . .shall be governed by the rules governing the admission of evidence. . . .” From that basis the appellant argues that the trial court erred in allowing the twenty-three-year-old conviction in evidence because A.R.E. Rule 609 prevents the use of prior convictions if more than 10 years has elapsed since the date of the prior conviction. The argument misinterprets the purpose of Rule 609 and the purpose of the aggravating circumstances statute, Ark. Code Ann. § 5-4-604(3).

A.R.E. Rule 609 prevents the use of prior convictions more than 10 years old for impeachment purposes. It is based upon the concept that a crime committed more than 10 years ago is no longer probative of a witness’s truthfulness at the time of trial.

On the other hand, the aggravating circumstances statute Ark. Code Ann. § 5-4-604 (1987), is not concerned with the defendant’s character at the time of trial, for the jury already knows the defendant has just recently committed a murder. Instead, this statute is concerned with disclosing whether the defendant’s history establishes such a propensity for violence that it will reoccur. Once the jury knows about a defendant’s past propensity for violence, it can weigh that against any mitigating circumstances. In striking this balance the jury determines if the defendant has such a marked propensity for violence that it would likely manifest itself again in the future. If the jury determines beyond a reasonable doubt that the defendant will strike again, it may sentence him to death. Given the special perspective of a jury in the sentencing phase of a capital trial, a twenty-three-year-old violent felony conviction is highly relevant. People v. Christiansen, 116 Ill. 2d 96, 506 N.E.2d 1253, cert. denied,_U.S_, 108 S. Ct. 208 (1987). Therefore, A.R.E. Rule 609 does not prevent the introduction of felony convictions more than 10 years old to show a propensity to violence in the penalty phase.

III.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas, we have made our own examination of the record and find no prejudicial error on points objected to below, but not raised in this appeal.

Finally, we must compare the wickedness, inhumanity, and heinousness of this capital case with other capital cases. Here, the victim was stabbed 10 times, her throat was cut, and there was an “X” marked on the side of her face. One hundred twenty-six dollars ($126.00) was taken from a kitchen drawer and one hundred fifty dollars ($150.00) was taken from the victim’s purse. The robbery-murder of the victim in this case is similar to the robbery-murders in Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), and Woodard v. State, 261 Ark. 895, 553 S.W.2d 259, cert. denied, 439 U.S. 1122 (1977), that were punished with the death penalty. The death penalty in the instant case was not freakishly or arbitrarily applied.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Doris Wynona CHAPPELL v. Harry Buckley McMILLAN
    88-22
    756 S.W.2d 895
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      Evans & Evans, by: James E. Evans, Jr., for appellant.
    No brief filed.
   David Newbern, Justice.

The question in this case is proper venue for a child support proceeding subsequent to a divorce. The appellant, Doris Wynona Chappell, and the appellee, Harry Buckley McMillan, were divorced in Clark County Chancery Court. McMillan was given custody of the parties’ two children. Chappell moved to Washington County and filed a petition with the Washington County Chancery Court for modification of the decree to give her custody of one of the children. Appellee McMillan did not contest the matter. The pleadings did not show that the original divorce and child custody decree were taken in Clark County. Thereafter, Chappell filed a petition in the Washington County Chancery Court seeking child support for the child whose custody she had obtained. McMillan contested the petition, stating that the divorce was granted in Clark County. The Washington County Chancellor dismissed the petition due to improper venue. We affirm.

Chappell cites Arkansas State Racing Comm. v. Southland Racing Corp., 226 Ark. 995, 295 S.W.2d 617 (1956), for the proposition, with which we agree, that the objection to improper venue, unlike the objection to lack of subject matter jurisdiction, is waived by appearance. See Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987), where we applied that concept in a divorce case. However, no case is cited where venue, once established, was held to have been changed by appearance, waiver, or consent of the parties. We hold that, to effect a change of venue for related proceedings subsequent to a divorce decree, there must be compliance with Ark. Code Ann. § 9-12-320(a) (1987), which provides specifically that the court in which the final divorce decree was rendered “may grant a change of venue for further action . . . when it is shown that both parties consent to a change of venue and the court of the chancery district to which the case is requested to be transferred is willing to accept the case for further proceedings.”

Affirmed.


author: Tom Glaze, Justice.

text:
    Kathy Wright JUMPER and Bob Jumper v. L & M TRANSPORTATION, INC.
    88-46
    756 S.W.2d 901
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      Dave Wisdom Harrod, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze, Justice.

This case involves a question in the law of torts. One issue is presented; whether the trial court erred in granting appellee’s motion for directed verdict by finding there was no substantial evidence that the driver, who was allegedly an employee and agent of appellee, was acting within the scope of his employment when he was involved in an accident while driving a tractor-trailer rig. Because the evidence reflects the driver was neither an agent nor an employee of the appellee, we uphold the trial court’s ruling on appeal and therefore affirm.

Appellants originally filed suit against the appellee and the owner of the tractor-trailer rig, Jimmy Sellers. The undisputed facts underlying the appellants’ action reflect that the rig was driven by Charles Jumper, a brother-in-law to one of the appellants. On his return trip to Blytheville, Arkansas, from having carried or picked up loads in Texas and Louisiana, Jumper met the appellants outside North Little Rock and followed them in their vehicle, when the rig collided into the rear end of their car. Appellants were apparently leading Jumper to their house where he could shower and clean up before resuming his trip to Blytheville.

Before trial, appellants dismissed Jimmy Sellers from the lawsuit and focused on the appellee as the culpable party, alleging that the driver and rig were under the appellee’s authority and control. Specifically, appellants contended at trial, and now on appeal, that Jumper was an agent and employee of the appellee. We cannot agree.

As stated in Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985), this court has adopted the definition of agency contained in the Second Restatement of Law of Agency, §1 Comment a, which provides that the relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control and that the other consents so to act. In other words, the two essential elements of the definition are authorization and right to control. Id. We also pointed out in Evans, that while agency is ordinarily a question of fact to be determined by the trier of fact, it becomes a question of law when the facts are undisputed, and only one inference can reasonably be drawn from them.

In viewing the evidence in the light most favorable to the appellants, HCA Health Services of Midwest, Inc. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988), we must conclude that Charles Jumper, the driver of the rig, was not an employee or agent of the appellee. In fact, the record clearly reflects Jumper was never under appellee’s control but was, instead, the employee of Jimmy Sellers, who leased the rig to the appellee. The proof shows the following: (1) Sellers owned the truck and under an equipment lease, leased the truck to the appellee; (2) Sellers employed Jumper, who drove the truck during the period of the lease agreement and when the accident occurred; (3) Sellers was responsible for qualifying Jumper as a driver; (4) appellee had no authority to hire or fire Jumper, but it had the right to terminate the equipment lease agreement with Sellers if an unacceptable driver was not removed; (5) appellee did not pay Jumper’s wages or social security; (6) appellee paid worker’s compensation coverage for a primary driver but only when the owner-operator was not the primary driver; (7) Sellers dispatched Jumper on the trips involved in this cause; (8) Sellers told Jumper the routes he was to drive and that Jumper, as a driver, had no discretion to deviate from them, as he did in this case by going to North Little Rock instead of traveling directly to West Memphis and then to Blytheville from Florien, Louisiana, and Pine Bluff, Arkansas; (9) under the Sellers/appellee lease agreement, appellee had the exclusive control and use of the equipment and had responsibility for the operation of the equipment.

As can be seen from the above, appellee’s involvement in this case emanated from its relationship with Sellers. At trial, appellants neither developed nor argued that relationship, but instead focused on Jumper’s respective connections with Sellers and appellee, arguing Jumper was subject to appellee’s control. While appellee apparently had control over the leased equipment, the proof supports no other inference except that Jumper, himself, was Sellers’s employee and subject only to Sellers’s control and instructions. Accordingly, we conclude the trial court was correct in directing a verdict for the appellee.

       Appellants’ theory is somewhat confusing in that on appeal they argue that the driver was under the control of the appellee, not Sellers. In fact, appellants argue that the driver had not been dispatched by Sellers and that he was not subject to the trip routes specified by Sellers. In sum, although appellants at one time in their complaint alleged that Sellers was an agent of the appellee, they fail to argue the legal relationship between the two and instead argue the driver’s servant relationship to the appellee, claiming they established a fact question for the jury on that point. Concerning the relationship issue between Sellers and appellee not argued by the parties, we note that Sellers actually signed the lease agreement (not abstracted on appeal) as an independent contractor.

       In their argument, appellants incorrectly argue inferences by stating the appellee had dispatched Jumper. Their argument also erroneously leaves the impression that the appellee had the responsibility to prescribe routes and had not done so for Jumper. While appellee’s owner testified his company did dispatch trucks and under normal circumstances did not specify routes for its drivers, there is no evidence that contradicts Sellers’s testimony that, in this case, Sellers was the one who dispatched Jumper and specified his routes.


text:
    Edward Eugene OWENS v. STATE of Arkansas
    CR 88-55
    756 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      Sherman and James, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This case involves a Rule 37 petition. On February 29, 1984, a jury found the appellant, Edward Eugene Owens, guilty of rape and he was sentenced to twenty years imprisonment. The court of appeals affirmed in an opinion not designated for publication. Owens v. State, No. 84-921 (Ark. App. November 14, 1984). On May 26, 1987, this court granted appellant’s Rule 37 petition and directed the trial court to hold an evidentiary hearing concerning appellant’s allegations that he was denied effective assistance of counsel. We limited the hearing to appellant’s allegations that counsel’s failure to investigate denied the appellant the opportunity to call four witnesses and to introduce into evidence purported notes written by and exchanged between the witnesses and the victim. Owens v. State, 292 Ark. 292, 729 S.W.2d 419 (1987).

Specifically, appellant alleges that his attorney, Arthur Allen, first visited him less than one week before trial and that, during his visit, appellant told Allen that four men, J.C. Cash, Arthur Cash, Carl Stewart and Ossie Jones, were present at the time of the alleged rape. He alleges that, if called as witnesses, the four men would have testified that the prosecutrix, who is a deaf mute, wrote the men several notes in which she willingly offered them sex in exchange for drugs and money. Petitioner claims that counsel’s late visit provided insufficient time to contact and subpoena the men as witnesses. Appellant also argues counsel was ineffective in failing to secure possession of the notes that the prosecutrix exchanged with the men so that the notes could be introduced at trial.

At an evidentiary hearing, the trial court denied petitioner’s claims, finding that his attorney had thoroughly investigated the case, had gone to the crime scene, talked with and subpoenaed witnesses and effectively represented the petitioner. We affirm.

It is well-settled that this court will not reverse a trial court’s ruling denying a Rule 37 petition unless the findings are clearly erroneous. Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987). Significant here, we also adhere to the rule that conflicts in testimony are for the trial judge to resolve, and the judge is not required to believe any witness’s testimony, especially the testimony of the accused, since he has the greatest interest in the outcome of the proceedings. Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

Appellant’s counsel, Mr. Allen, testified that the appellant had never mentioned the names of the four men that he now claims should have been called as witnesses. The record also reflects letters written to the trial court soon after his conviction, and in those letters, he detailed his discontentment concerning the trial, but he made no mention of the four men nor the purported notes that he now asserts could have exonerated him. Allen said that he did introduce at trial certain notes obtained from appellant that had been exchanged between the prosecutrix and the appellant. Although the jury apparently disagreed, Allen opined that he had thought those notes were clear evidence that no rape had occurred. Allen further related that, shortly after the appellant’s arrest, the police had searched the house where the rape was alleged to have occurred and found no other notes.

The state’s evidence clearly contradicted the appellant’s claims that his attorney failed to contact witnesses and to retrieve relevant notes which could have shown his innocence. The trial court simply was not required to accept the appellant’s version. Hudson, 294 Ark. 148, 741 S.W.2d 253. Appellant’s counsel is presumed competent, and the appellant had the burden of overcoming that presumption. Franklin v. State, 293 Ark. 225, 736 S.W.2d 16 (1987). Because we are unable to say the trial court’s findings are clearly against the evidence, we affirm.


text:
    Donnie Ray PETERSON v. STATE of Arkansas
    CR 88-17
    756 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      Allen Law Firm, by: Arthur L. Allen, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals the trial court’s denial of his Rule 37 petition, and contends the court violated A.R.Cr.P. Rule 24.4(c) by not informing him that the possible sentences in Case No. 84-3378, which included guilty pleas to burglary and theft, could be ordered consecutively. He further argues that his counsel was ineffective because his counsel misrepresented the length of sentence that appellant might expect. We find appellant’s claims unmeritorious, and therefore affirm.

In June 1985, the appellant, as required by A.R.Cr.P. Rule 24.4, was fully advised of the consequences of pleading guilty, except that, after informing him of the maximum sentences on the two counts in Case No. 84-3378, the court failed to mention the length of time possible if consecutive sentences were imposed. See Rule 24.4(c). At the same hearing and because appellant had four other cases pending against him, the trial court granted appellant’s request that sentencing on the counts in Case No. 84-3378 be postponed until after the other cases were tried or otherwise concluded.

In the following September, appellant pled guilty to felony charges in three of the cases, and on the morning of October 15, 1985, he pled guilty to counts in the fourth case, No. 85-2478, which involved two felonies and a misdemeanor. Later that same day, the court imposed sentences in all five of appellant’s cases. In doing so, the trial judge ran the sentences imposed in 85-2478 and the other three cases concurrently, but stacked the two sentences imposed in Case No. 84-3378. Appellant challenges only the consecutive sentences given in 84-3378.

This court has held that compliance with Rule 24 is mandatory. McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986). We have also held that a substantial, though not technical, compliance with Rule 24.4 is sufficient. Clark v. State, 271 Ark. 866, 611 S.W.2d 502 (1981). Of course, the polestar when a guilty plea is. challenged is to determine whether the plea was made intelligently and voluntarily. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982).

There is little to distinguish the situation posed here from the one described in Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981), wherein Williams claimed his guilty plea was not a knowing and intelligent one because he thought the sentences would run concurrently, not consecutively as the trial court imposed. There, this court held Williams could not have been misled by the prosecutor or court, and in so holding, we listed many of the same factors that are evident here. For example, in reviewing the record before us, we note the appellant’s concession that he is no newcomer to the judicial system since he had had “about thirteen” prior felonies to the ones considered here. As was the case in Williams, we consider this factor when assessing whether a defendant is aware of the consequences of a guilty plea.

Next, the record reflects that, at his June 17, 1985 plea hearing, the appellant was fully advised pursuant to Rule 24, with the noted exception that the trial court specifically failed to mention that the possible maximum sentences could be stacked. The court did, however, advise the appellant that he could receive twenty to forty years on the burglary charge and ten to thirty years on the theft of property charge. Later, at the October 15 sentence hearing and before sentences were imposed, the prosecutor clearly stated, “its time for [appellant] to go to the pen for a very long period of time and would request the máximums in each case to run consecutive.” Appellant’s only response (by counsel) was an effort to offer mitigating circumstances. The court then proceeded, without objection or further remarks, to announce the sentences in each case, imposing them concurrently except for the two counts in 84-3378.

Furthermore, we note the appellant, on the morning of and before the court imposed sentences in all of his cases, had entered his pleas in Case No. 85-2478 at which time the trial court specifically informed the appellant that the sentences in 85-2478 could be ordered consecutive. Clearly, the appellant was made freshly aware of the trial court’s authority to order concurrent or consecutive sentences well before all his sentences were actually imposed.

And finally, the record reveals that the appellant’s attorney, in testifying at the Rule 37 hearing, stated that he was sure he had informed his client that consecutive sentences were possible. In sum, we believe the record fails to support the appellant’s claim that he was unaware he could receive the consecutive sentences imposed in this cause.

We also find no merit to appellant’s second argument that he was misled by counsel on the length of sentence which would be imposed. Appellant was made well aware of the minimum and maximum sentences which could be imposed. He was also made aware that there was no negotiated plea agreement with the prosecutor. Even if counsel’s estimate proved erroneous, appellant has not shown that his guilty pleas were not voluntarily entered with the advice of competent counsel.

Affirmed.

       Appellant could have received a total of 110 years if all sentences had been stacked but instead, his total is 70 years. There were other counts included in these cases that the court merged into the crimes for which the court imposed sentences.


author: Jack Holt, Jr., Chief Justice.

text:
    Harless Dale MAULDING v. STATE of Arkansas
    CR 87-54
    757 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      Chet Dunlap, for appellant.

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

The appellant, Harless Dale Maulding, was convicted of rape, kidnapping, and burglary and sentenced to life plus forty years imprisonment. For reversal he argues that the trial court erred in failing to suppress evidence of a pretrial lineup identification and an in-court identification, commenting on the evidence, and citing defense counsel with contempt in the presence of the jury. In addition, he asserts that there was insufficient evidence to support the jury verdict. We find no error and affirm the judgment of the trial court.

At approximately 2:00 a.m. on September 12,1986, a person broke into the eighty-seven-year-old victim’s home in Trumann, Arkansas, and raped her. He then took her in her car to a junk pile outside of town and raped her again in the front seat of the car. At about 9:00 a.m., he drove back to town, where he made an unsuccessful attempt to have her withdraw money from her account at a local drive-in bank. Then, around 3:00 p.m. he drove her to a local manufacturing plant and released her. She immediately drove home and called relatives, who took her to the hospital.

Later in the day, she described her abductor to police as follows: tall, slim build, wavy brown hair, mustache, a light beard, wearing blue jeans and a brown plaid shirt. On September 13, 1986, the police showed the victim a single photograph of Maulding depicting him with a mustache but without a beard. She positively identified him as the perpetrator. The police arrested Maulding the next day.

On September 15, she viewed a lineup at the station. When asked if she saw the individual who had molested her, she stated, “He’s in here, but he’s shaved.” She then positively identified Maulding. Later at trial she made an in-court identification of him. In addition, evidence concerning the photographic and lineup identifications was introduced, together with supplemental eyewitness testimony connecting Maulding to the crimes.

I. ADMISSIBILITY OF LINEUP AND IN-COURT IDENTIFICATIONS.

Maulding argues that the trial court erred in failing to suppress evidence of the pre-trial lineup identification and the in-court identification on the basis they were tainted by the single photographic display. We disagree.

We do not reverse a trial court’s ruling on the admissibility of an identification unless, under the totality of the circumstances, it is clearly erroneous. Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983). See Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The threshold question before us under Manson v. Brathwaite, 432 U.S. 98 (1977), is whether the showing of the single photograph of Maulding to the victim was an impermissibly suggestive procedure. The showing of a single photograph, in the absence of exigent circumstances, is an impermissibly suggestive identification procedure, United States v. Williams, 616 F.2d 759 (5th Cir. 1980); United States v. Bubar, 567 F.2d 192 (2nd Cir.), cert. denied, 434 U.S. 872 (1977); United States v. Dailey, 524 F.2d 911 (8th Cir. 1975); Nassar v. Vinzant, 519 F.2d 798 (1st Cir.), cert. denied, 423 U.S. 898 (1975), and highly suspect. However, this determination does not end our inquiry.

Even if an identification technique is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. Manson, supra. Reliability is the linchpin in determining the admissibility of identification testimony. Id.; Hogan, supra. In determining reliability, we examine the following factors: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. Id.; Robinson v. State, 293 Ark. 51, 732 S.W.2d 159 (1987). See also Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson, supra.

We turn, then, to the facts of this case and apply the Manson analysis:

1. The opportunity to view. The victim was with the perpetrator from 2:00 a.m. until 3:00 p.m., a total of thirteen hours, a large percentage of which was in daylight. She testified that during this time she “made a point to study his features.”

2. The degree of attention. The victim was not a detached observer as so often is the case with eyewitness identification, but instead an observant victim of crime.

3. The accuracy of the description. The victim’s description included the color and texture of the perpetrator’s hair, his height, build, what he wore, and the presence of facial hair. No claim has been made that the defendant did not and does not possess a substantial number of these physical characteristics. The defense did dispute the victim’s testimony that Maulding had a beard on the day of the crime. However, the testimony at trial does not conclusively establish whether he did or did not.

4. The witness’s degree of certainty. The victim was positive in her photographic identification of Maulding.

5. The time between the crime and confrontation. The photographic identification occurred only a day after the crime.

These indicators of the victim’s ability to make an accurate identification outweigh the corrupting effect of the challenged identification. We find no evidence in the record that there was any pressure on the victim to make an identification of Maulding. Under the circumstances of the case, we cannot say there was a “very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). Accordingly, testimony concerning the reliable photographic identification cannot be said to have tainted the subsequent lineup and in-court identifications. The trial court was correct in refusing to suppress the identifications.

II. SUFFICIENCY OF THE EVIDENCE.

Maulding contends that the evidence was insufficient to support the jury verdict. This argument is meritless.

We affirm if there is substantial evidence to support the jury verdict. Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we view the evidence in a light most favorable to the State. Id. Substantial evidence is evidence which is of sufficient force to compel a conclusion one way or another. Id.

The victim testified at trial concerning the details of the rape, burglary, and kidnapping and identified Maulding as the perpetrator. Her testimony alone is sufficient to support the verdict. Cope v. State, 292 Ark. 391, 730 S.W.2d 242 (1987); Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Moreover, there was additional eyewitness testimony and physical evidence linking Maulding to the crimes.

Maulding’s argument essentially is an attack on the credibility of the witnesses, in particular the victim’s. Credibility, of course, is for the jury to decide. Lewis, supra. We find there is substantial evidence to support the verdict.

III. COMMENTS BY THE TRIAL JUDGE.

Maulding argues the trial court committed reversible error by commenting on the evidence. We disagree.

As defense counsel on cross-examination was attempting to introduce a prior statement of the victim for impeachment purposes, which the trial court had previously ruled inadmissible, he and the trial judge had the following exchange:

Mr. Dunlap: Your Honor, with all due respect can I present the statement that she made to him again?
The Court: I would suggest, Mr. Dunlap, that you make the statement, mark it for identification only, make it part of the record so that your theory can be reviewed by the Supreme Court if they care to review this matter. And let’s move it along and quit wasting so much time on it. It is not contradictory. [Emphasis added.]

Defense counsel then moved for a mistrial. The trial court denied the motion. Thereafter, the trial judge, defense counsel, and the prosecution entered into a lengthy and heated discussion (most of it being out of the presence of the jury) concerning the admissibility of the statement. Almost immediately thereafter, the trial court instructed the jury as follows:

Before we resume cross-examination of Mrs. Jordan, I do have one cautionary instruction which I feel would be appropriate at this time in view of the exchange and colloquy between the attorneys and the court.
I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling upon any objection to remarks of the attorneys to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness who testified. If anything that I have done or said has seemed to so indicate to you, you will disregard it.

It is well settled that a trial judge should not express his opinion on the guilt or innocence of a defendant. Pride v. State, 285 Ark. 89, 684 S.W.2d 819 (1985). See also Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). Maulding contends that the trial judge’s remark, “make it part of the record so that your theory can be reviewed by the Supreme Court if they care to review this matter,” inferred to the jury that the trial judge believed that Maulding was guilty and would be found guilty. The possibility that the jury may have interpreted the judge’s remark in this manner is remote. The remark is subject to multiple interpretations. It just as likely would be interpreted as one informing counsel that he should make a record in case the defendant is found guilty or in case the Supreme Court “cares to review the matter.”

In any event, even if we assume that Maulding suffered prejudice from the trial judge’s remark, reversal is not warranted in light of the convincing evidence of guilt and the judge’s admonition to the jury. We will not reverse for errors which do not affect the essential fairness of a trial. Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988). A defendant is entitled to a fair trial, not a perfect one. Id.

We do caution the trial judge to be guarded when making any remarks concerning appellate review in the presence of the jury.

IV. CONTEMPT.

Maulding asserts that his right to a fair and impartial trial was undermined and unduly jeopardized when the trial judge held his counsel, Mr. Dunlap, in contempt of court in the presence of the jury. We hold to the contrary.

It was necessary during the course of the trial for the court to rule unfavorably against Maulding’s counsel in matters relating to jury selection, expert testimony, hearsay testimony, and inadmissible evidence. There was frequent exchange between the court and counsel, both in chambers and before the jury.

The conflicts between the trial court and Maulding’s counsel came to a final conclusion when counsel, through leading questions, elicted from a defense witness that a police officer, conducting an investigation, had come to her house and “propositioned” her. After the trial court sustained an objection by the state to this testimony, the following exchange occurred:

Mr. Dunlap: Your Honor, I will pass the witness.
The Court: Do you want any part of that stricken?
Mr. Hunter [prosecutor]: Your Honor, we are prepared to call Officer Bland back on rebuttal.
The Court: The question and answer is stricken from the evidence and the jury is admonished not to consider it.
Mr. Dunlap: Your Honor, in all due respect would the Court consider assisting the defense every now and then, when the defense needs itl [Emphasis added.]
Mr. Hunter: I object to those remarks, Your Honor.
The Court: That is a contemptuous statement, Mr. Dun lap, and you are in contempt of court. [Emphasis added.]

Immediately thereafter, the trial court, by general instruction, advised the jury that the only issue for its consideration was the guilt or innocence of the defendant.

Before we proceed, we should note that a question exists as to whether or not the jury heard the judge hold counsel in contempt. For the purposes of appeal, we will assume the jury heard the judge’s remarks.

We have found reversible error where a trial judge made an unmerited rebuke or a disparaging retort to defense counsel in the presence of the jury on the basis that such actions unduly prejudice the defense. Davis v. State, 242 Ark. 43, 411 S.W.2d 531 (1967) (opinion on granting of rehearing); McAlister v. State, 206 Ark. 998, 178 S.W.2d 67 (1944); Jones v. State, 166 Ark. 290, 265 S.W. 974 (1924). See also Divanovich v. State, 271 Ark. 104, 607 S.W.2d 383 (1980); Chapman & Pearson v. State, 257 Ark. 415, 516 S.W.2d 598 (1974). In Jones, we found error when the defense counsel stated that “he was just trying to facilitate matters,” and the judge retorted, “Yes, facilitate like a crawfish does, backwards.” In Divanovich, we found error where, the trial judge, during a heated exchange with defense counsel, threatened counsel with incarceration, stating, “I’ll put you right down there where he is,” referring to the defendant.

In the present case, however, the record is devoid of any disparaging remarks made by the trial judge to defense counsel. In addition, defense counsel does not deny that the rebuke by the judge was warranted. Thus, we must decide whether holding defense counsel in contempt in the presence of the jury, standing alone, is reversible error.

It is the better practice, except in extreme cases, for a trial court to discipline lawyers out of the presence of the jury. See Davis, supra. However, disciplining or rebuking counsel in the presence of the jury does not automatically constitute reversible error unless this action denies the defendant a fair trial.

In Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), we noted that trial judges by necessity are granted great power and discretion to preserve the order of their courtrooms and have at their command an arsenal of sanctions to see that the rules are followed, including admonishment of the attorney at the bench or before the jury. [Emphasis added.] See Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987).

Under the totality of the circumstances, the trial court did not err in admonishing Maulding’s counsel in the presence of the jury. In citing defense counsel with contempt, the trial judge did not address or refer to Maulding, did not express his opinion on the issue of Maulding’s guilt, and did not assess sanctions in front of the jury. In addition, the judge admonished the jury immediately after holding defense counsel in contempt. Moreover, the evidence of Maulding’s guilt is convincing. Where evidence of guilt is convincing, we have affirmed convictions despite improper conduct by the trial judge. See Rogers v. State, 257 Ark. 145, 515 S.W.2d 79 (1974), cert. denied, 421 U.S. 930 (1975).

Pursuant to Ark. Sup. Ct. R. 11(f), we have examined all other objections made at trial and find no reversible error.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Carl WIDMER v. Robert C. TAYLOR, et al.
    88-84
    756 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      Carl Widmer, for appellant.

      Douglas, Hewett and Shock, by: J. Randolph Shock, for appellee Raymond F. Widmer.

      Jones, Gilbreath, Jackson & Moll, by: Robert L. Jones III, for appellees Robert C. Taylor; Warner, Warner, Ragon & Smith; and Warner & Smith.
   Darrell Hickman, Justice.

This is the sixth appeal regarding this case. Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987); Widmer v. Widmer, 292 Ark. 486, 731 S.W.2d 209 (1987); Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987); Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986); Widmer v. Widmer, No. CA85-217 (Ark. App. February 26, 1986).

This time Carl Widmer has sued Robert Taylor. Taylor is the lawyer who prepared Widmer’s father’s will which has been the subject of so much litigation. The suit sounded in tort for legal malpractice, fraud and wrongful death.

The trial judge dismissed the complaint for failure to state a claim, the statute of limitations, and res judicata/collateral estoppel and law of the case.

On appeal, we affirm. The appellant’s abstract, which consists of extensive verbatim reproduction of the record, clearly violates Ark. Sup. Ct. Rule 9(d). Added to that shortcoming, which leaves us without an impartial abridgement of the record, is the appellant’s brief. It is an incoherent conglomeration of statements and arguments which cannot be fairly characterized as a legal brief.

Several times we have dismissed arguments because they are not convincing or lack authority. Reed v. Alcoholic Beverage Control Division, 295 Ark. 9, 746 S.W.2d 368 (1988), Eddleman v. Estate of Farmer, 294 Ark. 8, 740 S.W.2d 141 (1987).

In this case we affirm the court’s decision for that reason and for failure to comply with Rule 9(d).


author: John I. Purtle, Justice.

text:
    I.B. ARNOLD and Ruth Arnold, Husband and Wife v. Mark LEE
    88-78
    756 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      William A. Storey, for appellant.

      Estes, Estes & Gramling, by: Peter G. Estes, Jr., for appellee.
   John I. Purtle, Justice.

A jury verdict, in the sum of $6,508.00, was trebled by the trial court pursuant to the treble damages provision of Ark. Code Ann. § 18-60-102 (1987), involving trespass to property. The appellants argue on appeal: (1) that there is insufficient evidence to sustain the finding that they were trespassers; (2) that there is insufficient evidence to support the damages awarded by the jury; and (3) that, as a matter of law, it was error for the trial judge to treble the damages under the circumstances of this case. We do not agree with the appellant on any of these arguments and therefore affirm the judgment.

At the time the incident in question occurred, the appellants and appellee were neighbors in a rural area in Washington County, Arkansas. These parties used a road which ran along the east side of the appellee’s property and into the southeast corner of the appellants’ property. Other property owners, and presumably the public, also used this road when they wished to travel in the area.

The appellants decided to improve the road and trim the brush along the right-of-way in order to make travel more convenient. The matter was discussed between appellants and appellee and it was agreed that the trees and bushes along the road could be pruned and trimmed. The appellants employed a bulldozer operator who leveled not just the road but also a row of trees along the east boundary of the appellee’s property near the road. In the process of widening and leveling the road, the embankment on the eastern boundary of appellee’s property was also leveled and all of the trees, except one, were destroyed. Approximately a hundred small trees and much undergrowth, as well as an old fence, were eliminated by the project. The primary allegation of damages was for the loss of the privacy provided by the foliage. Additionally, the appellee sought damages for destruction of the trees and brush, erosion of his land and inconvenience caused by the project.

It is undisputed that the discussion between the appellants and the appellee related to “pruning and trimming” along the right-of-way as well as leveling the road itself. The first day the bulldozer operator was in the area he completed the appellants’ driveway. He was instructed to come back the next day and work on the road. He was told to prune the brush and grade the embankment along the eastern edge of the appellee’s property. At this point the bulldozer operator informed one of the appellants that he could not perform the task because of the four-foot embankment upon which the trees and fence were located. The operator suggested that the appellee’s permission should be obtained before starting this work. The next day the operator explained to Mrs. Arnold that he would have to level the bank, the trees, the undergrowth, the fence row and all in order to accomplish the appellants’ objective. After being so informed, Mrs. Arnold said, “Do it.” He did.

There was never any assertion that the appellants had any interest in the appellee’s land outside of the roadway itself. Likewise, it is undisputed that the operator bulldozed about twenty-five feet onto the appellee’s land for a distance of some two or three hundred feet. Although the appellee had agreed to the work on the road and even had promised to pay for part or all of the gravel used, the removal of the appellee’s “privacy fence” (the small trees and brush along the embankment) was never discussed.

During the trial the appellee testified that he had incurred out-of-pocket expenditures of $1,908.00 in making repairs and restoring his property. Appellee also presented the testimony of an expert witness that it would cost an additional $4,600.00 to completely restore the property to the condition it was in before the road was “repaired.” There was some testimony concerning the value of the appellee’s property before and after the work was accomplished, but it is clear that the jury did not use this testimony as the basis for the award of damages.

The applicable law is Ark. Code Ann. § 18-60-102(a) (1987), which in part provides:

If any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade ... on the land of another person; shall dig up, quarry or carry away any stone, ground, clay, turf, mold, fruit, or plants;. . .the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.

There is clearly substantial evidence that the appellants, or their agent, entered upon the appellee’s land and destroyed growing trees and underbrush. It is equally clear that the appellants knew the bulldozer operator was going to enter upon the appellee’s land and take out the row of trees and the old fence. Although the appellants and the appellee had indeed discussed the road work and the “pruning” of the growth along the road, there was never any discussion concerning entry onto the appellee’s property. The work that had been discussed could have been accomplished from the existing roadway without such a major alteration of the landscape.

The appellants argue that they had appellee’s “implied consent” to enter upon his lands and accomplish the work on the road. This issue was submitted to the jury by instruction number 11 and was decided against the appellants. The instruction was given without objection. It provided that if the jury found, from a preponderance of the evidence, that the appellants committed the trespass complained of, the verdict should be in favor of the plaintiff. The verdict was by interrogatory and the jury unanimously found that the appellants had committed a trespass. The jury answered “yes” to the following interrogatory:

INTERROGATORY NO. 3: Do you find that the damages were done by the Arnolds or their agent intentionally and without probable cause for belief that the Arnolds owned the trees and land so damaged?

The trial court also instructed the jury in instruction 11 as to the procedure to be used in assessing appellee’s damages. Without objection the jury was instructed as follows:

You may consider the reasonable expenses of necessary repair to any property which was damaged, taking into consideration its usable value during the time that plaintiff was deprived of its use, and the difference in the value of the land with the trees and ground undisturbed and the value of the land with the trees and ground removed as complained of, the purpose for which the owner intended to use the trees and ground and their reasonable value to him for such purposes, if any have been shown by the testimony.

The jury returned a verdict in favor of the appellee in the amount of $6,508.00. The court trebled this figure in accordance with the provisions of the code.

The appellant, for the first time, now argues that the trial court erred in giving instruction number 11 to the jury. This court has stated many times that we will not consider arguments presented for the first time on appeal. Harrod v. State, 286 Ark. 277, 691 S.W.2d 172 (1985).

Both parties rely on Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979). This decision does indeed contain support for both arguments. Stoner held that “the good faith argument by Ms. Stoner was a question of fact for the jury.” The opinion approved the giving of an instruction defining malice as “the intentional doing of a wrongful act without justification or excuse.” The opinion also stated that, in a proper case, either the jury or the court could treble the damages, but that it was preferable for the court to do so. We reversed because both the trial court and the jury trebled the compensatory damages suffered by the complaining party.

Both parties also cite Foran v. Molitor Ford, 279 Ark. 121, 649 S.W.2d 177 (1983). Again, we find support for both parties in that opinion. However, we held in Foran that the alleged tortfeasor had an “interest and right” to be upon the land. Foran also involved the repair and “improvement” of a rural road. It differs from the present case in that the appellants here did not assert an interest in or right to be upon the property of the appellee.

After reviewing the evidence presented to the jury, we are of the opinion that there is substantial evidence to support the award of compensatory damages in the amount of $6,508.00. Moreover, we hold that the trial court properly trebled the damages awarded by the jury. Finding no prejudicial error, the case will be affirmed.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Timothy Marc McCARTNEY v. Virginia McLAUGHLIN
    88-79
    756 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      Matthews, Campbell & Rhoads, P.A., by: Johnnie Ember-ton Rhoads, for appellant.

      Curtis E. Hogue, for appellee.
   Robert H. Dudley, Justice.

The trial judge, sitting as the trier of fact in this car-wreck case, found that the appellee, defendant below, was not guilty of negligence. Appellant, plaintiff, appeals and argues that the finding of fact was clearly erroneous. The argument is without merit.

In reviewing a finding of fact by a trial judge we consider the evidence, and all reasonable inferences therefrom, in the light most favorable to the appellee. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). The trial court obviously believed appellee’s testimony, and that testimony developed the following scenerio. The appellee, defendant, was driving her car at about ten miles per hour in an easterly direction on Backus Street in Springdale. The street was covered with ice and was extremely slick. Her car slid to the right shoulder, but as her wheels gained traction on the shoulder, the car straightened out. She did not cross the center line of the street. At the same time, the appellant, plaintiff, was driving his car in the opposite direction at about twenty-five miles per hour and skidded off the road to his right. There was no impact.

We cannot say that the finding of the trial court that there was no negligence on appellee’s part was clearly erroneous.

Affirmed.


text:
    Charles WATKINS v. STATE of Arkansas
    CR 88-65
    756 S.W.2d 907
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      William R. Simpson, Jr., Public Defender and Bret Qualls, Deputy Public Defender, by: Susan Wilson, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Charles Watkins, was convicted of aggravated robbery. While being pursued by the armed owner of a store he had just robbed, Watkins attempted unsuccessfully to enter a vehicle which was parked outside the store, after which he escaped. When the police arrived, they noted that the car Watkins had attempted to enter had two license plates, one on top of the other. The police checked the outer plate and found no car registered to the number. They then checked the inner plate which showed the car was owned by a rental car company. They then checked with the company and obtained the name of the renter. That name turned out to be an alias which, according to police records, had been used previously by Watkins. Watkins contends it was a violation of his rights guaranteed by the Fourth Amendment for the police to have “searched” his rental car without having first obtained a warrant. We affirm the conviction.

Even if looking at a license plate, after removing the covering one, could be said to constitute a “search,” we fail to find any expectation of privacy Watkins may have had which would prevent examination of the exterior of the vehicle. The very purpose of a license plate is to identify the owner of a car should the need arise. In Cardwell v. Lewis, 417 U.S. 583 (1974), a plurality of the Supreme Court approved the taking of paint scrapings by the police from a car left in a public place. The scrapings and observation of a tire tread on the car led to the conclusion that the car, and its owner, had been involved in a homicide. The plurality opinion stated: “Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments.” 417 U.S. at 592.

The four dissenting justices disagreed, not on the “search” point, but on the ground that the car had been seized and taken to the police impound lot where it was inspected. If the car had been scraped and inspected in the public parking lot where it was found, rather than seized and removed to police premises, presumably even the dissenting justices would have agreed with the conclusion we reach here that inspection of the exterior of a car in a public place does not violate the rights of the owner, or in this case the lessee, guaranteed by the Fourth Amendment.

Affirmed.


text:
    Douglas Keith SUMMERLIN v. STATE of Arkansas
    CR 88-101
    756 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered September 26, 1988

      Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., by; Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

The appellant was convicted on charges of attempted rape and kidnapping. He was sentenced to twenty years imprisonment and fined fifteen thousand dollars on the kidnapping charge and was sentenced to an additional and consecutive term of twenty years on the attempted rape charge. On appeal, appellant contends that the court erred in denying his motion for a directed verdict. He claims the state’s evidence was insufficient to support either the attempted rape or kidnapping convictions.

The victim testified that on June 25,1986, she was jogging on a park path in a wooded area near Lake Atalanta — a park in the city of Rogers, Arkansas. She related that, while she was jogging, a blue Honda Civic (appellant’s vehicle) passed her several times. As she was jogging around a curve in the path, she noticed the Honda parked by the roadside with the door open on the driver’s side, and she observed the appellant standing on the opposite side of the road. Appellant was described by the victim as being completely nude and holding his “male part” in one hand with a “funny grin” on his face. Appellant asked the victim whether she wanted to “go for a swim,” to which she responded “no.”

The victim further testified that, as she ran past appellant, “he came from behind me and enveloped me with both of his arms and he pulled me to the ground.” A struggle ensued during which the victim repeatedly screamed for help. At one point, the appellant stood at the victim’s feet, held one of her legs and tried to take off her shorts. The victim begged the appellant to let her go because someone was waiting for her in the park. Appellant seemed irritated at the victim’s pleas, but continued to tug at and rip her shorts. According to the victim, the appellant exclaimed “Whoa” upon seeing part of the victim’s body. She said that the appellant then got on top of her, but she managed to get him off and started to run. Although appellant grabbed at one of her legs, she was able to get away.

Appellant’s argument that the state’s proof failed to support his attempted rape charge is totally without merit. Appellant argues that he never voiced an intent to rape the victim, he never fondled her and the only evidence of any aberrant sexual behavior was his nudity when he confronted her. While the record supports the appellant’s claim that he actually voiced no intent to rape the victim, we can safely say that appellant’s actions speak louder than words when trying to assign a purpose to the conduct the appellant displayed in this matter. As this court said in Frederick v. State, 258 Ark. 553, 528 S.W.2d 362 (1975), proof of an assailant’s intention to have sexual intercourse with the victim is not sufficient, unless an intention to accomplish that purpose by force may be ascertained from acts or words connected with the assault and there is some overt act toward the accomplishment of that purpose. We have also recognized that intent to rape might be proved by circumstances surrounding the assault from which the intent may be inferred. Poole v. State, 234 Ark. 593, 353 S.W.2d 359 (1962).

A person commits rape if, by forcible compulsion, he engages in sexual intercourse or deviate sexual activity with another person. Ark. Code Ann. § 5-14-103(a)(l) (1987). A person attempts such an offense if he purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of rape whether or not the attendant circumstances are as he believes them to be. See Ark. Code Ann. § 5-3-201 (1987).

Here, the appellant was naked and holding his penis when he first accosted the victim. He then attacked her, threw her on the ground, climbed on top of her and ripped her shorts. It defies common sense, we think, to argue these circumstances fail to show appellant’s intent to rape the victim. To the contrary, we believe the evidence supports the conclusion that appellant did take a substantial step towards raping his victim. Therefore, we affirm his conviction for attempted rape.

Appellant’s argument concerning his kidnapping charge has merit and requires our careful analysis. Applicable to the facts at bar, a person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with her liberty with the purpose of inflicting physical injury upon her or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him. (Emphasis added.) See Ark. Code Ann. § 5-1 l-102(a)(4) (1987). As noted in the commentary to Ark. Stat. Ann. § 41-1702 (Repl. 1977), now Ark. Code Ann. § 5-11-102, the Criminal Code, in defining kidnapping, speaks in terms of restraint rather than removal. The commentary further explains that the exclusion of de minimus restraints from the definition of kidnapping is desirable since offenses such as rape or robbery necessarily contemplate restrictions on the victim’s liberty while the crime is actually committed. Thus, it is only when the restraint exceeds that normally incidental to the crime that the rapist (or robber) should also be subject to prosecution for kidnapping. Id.; Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988) (kidnapping, rape and aggravated assault upheld when victim was forced and kept in car and taken to an apartment where she was raped); Jones v. State, 290 Ark. 113, 717 S.W.2d 200 (1986) (kidnapping, rape and theft of property upheld when victim was forced to drive her car to a country, wooded area where she was raped and then tied to a tree before defendant stole the car); Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986) (kidnapping and rape upheld when victim was pulled into car, driven twenty-four miles to an adjoining county where she was raped); Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984) (kidnapping upheld when victim was ordered at gunpoint into her car, then threatened and struck several times before the defendant fled); Beed v. State, 271 Ark. 256, 609 S.W.2d 898 (1980) (kidnapping and rape upheld when defendant, armed with a pistol, took control of victim’s car with her in it, drove to a field off a highway, ordered her into the car’s back seat where he raped her).

In the instant case, the state’s proof shows the restraint employed on the victim by the appellant was no greater than that which the state was obliged to prove on its attempted rape charge against the appellant. In other words, that restraint used by the appellant did not exceed that normally incident to the crime of attempted rape, and therefore, cannot form the basis for the two separate crimes of kidnapping and rape.

In accordance with the foregoing, we affirm appellant’s conviction for attempted rape, but because the evidence is insufficient to sustain the kidnapping conviction, we must reverse and dismiss that charge. See Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980).