author: David Newbern, Justice. Jack Holt, Jr., Chief Justice,

text:
    Roger Lewis COULTER v. STATE of Arkansas
    CR 90-126
    804 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991

      Allen & O’Hern Law Firm, by: Arthur L. Allen, for appellant.

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

Roger Lewis Coulter was convicted of capital murder. Ark. Code Ann. § 5-10-101 (Supp. 1989). It was alleged that he killed a five-year-old child during the course of, or in furtherance of, raping her. He was found guilty by a jury and sentenced to die by lethal injection. None of the seven points of appeal raised by Coulter warrants reversal of the conviction. As Coulter does not challenge generally the sufficiency of the evidence, we need not render a detailed statement of the facts.

Testimony disclosed that Coulter was living with the child and her mother. On the morning of April 12, 1989, he left the house where they lived. He was to deliver the child to a headstart program as he did from time to time. He returned to the house somewhat later than usual, telling the child’s mother that he had had car trouble and had injured his hand by striking the car.

Coulter bathed, ate, and then drove to his mother’s home where he borrowed some money. He was seen thereafter at the bank where he cashed a check from his mother.

When Coulter did not return the child home that afternoon, the child’s grandmother went to the headstart quarters and found the child had not been there that day. Upon being informed of the situation, the police began looking for Coulter and the child.

Based on reports that Coulter’s vehicle had been seen near a power line cut, a search of the area occurred. The child’s partially naked body was found stuffed in a hollow tree. An attempt had been made further to conceal her by covering her with branches and leaves. Examination of the body revealed many abrasions and that she had been raped. Hairs found on the body were consistent with Coulter’s.

Coulter was arrested in California five weeks after his and the child’s disappearance.

1. Improperly excused jurors

Coulter contends two jurors were improperly excused for cause, on the prosecution’s motion, because of their reservations about capital punishment.

Juror John H. Johnson responded equivocally to the prosecutor’s initial questions whether he would be capable of voting for the death penalty, and then said, “Well, to be honest and tell the truth, I don’t believe I could do it.” He then said again, “I don’t know.” Defense counsel asked Johnson to imagine a murder “involving one of [his] loved ones: your wife, your mother. Is there a case in which you would consider imposing the death penalty?”

A. Well, since you put it like that, I believe I could. You know, yes sir.
Q. And that’s all the law requires.
A. Yeah. All that is required.
Q. In an appropriate case —
A. Right.
Q. — that you’d at least consider the death penalty.
A. Right.

The prosecutor then asked if Johnson could go so far as to actually vote for the death penalty, and Johnson said, “I just couldn’t say I could. I don’t know.” He gave the same response to an inquiry by the judge who then excused him for cause.

Prospective juror Victor Mason began his voir dire responses by saying he did not believe in capital punishment. Like Johnson, he gave some equivocal responses but ultimately said he could vote for capital punishment in a case involving “close kin.”

Coulter argues these jurors should not have been excused for cause because neither of them made it unmistakably clear he would “automatically” vote against the death penalty, citing Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). In Wainright v. Witt, 469 U.S. 412 (1985), the United States Supreme Court acknowledged confusion resulting both from lower court application of the Witherspoon standard and its own variance from the Witherspoon standard in Adams v. Texas, 448 U.S. 38 (1980).

In Wainright v. Witt, supra, the Supreme Court declared the test stated in Adams v. Texas, to be correct.

That standard is whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” We note that, in addition to dispensing with Witherspoon’s reference to “automatic” decision-making, this standard likewise does not require that a juror’s bias be proved with “unmistakable clarity.” This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. [469 U.S. 424 - 426, footnotes omitted].

The Supreme Court then notes the deference which must be paid to the trial judge in making such decisions which will be informed by the judge’s observance of the prospective juror’s demeanor and credibility.

We have no hesitancy in holding the trial court did not err in excluding Johnson and Mason from the jury. Each of them expressed a definite negative attitude toward the death penalty. We defer to the trial judge’s finding that their equivocation did not sufficiently ameliorate those expressions to assure they could follow the law if instructed on the death penalty.

2. Aggravating circumstances

a. Constitutionality

In the sentencing phase of the trial, the prosecutor presented one aggravating circumstance. He asked the jury to conclude that Coulter committed the murder “for the purpose of avoiding or preventing an arrest or effecting an escape from custody.” Ark. Code Ann. § 5-4-604(5) (1987). Coulter contends the language of the statute is unconstitutionally vague. He asks that we so declare as we did with respect to the “cruel, heinous, and atrocious” language of Ark. Code Ann. § 5-4-604(8) (1987) in Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988). We decline to do so.

In Pickens v. State, 292 Ark. 362, 730 S.W.2d 230 (1987), cert. denied 484 U.S. 917 (1987), we considered a contention that § 5-4-604(5) was too “vague and overbroad as applied to the facts” of that case. We rejected the argument, pointing out that the appellant and his accomplice had remarked they would have to kill their victims because “if they get loose they will burn us.”

Coulter cites Walton v. Arizona,_ U.S. _, 110 S.Ct. 3047 (1990), for the Supreme Court’s statement that “[I]t is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face.” That decision upheld Arizona’s statutory aggravating circumstance, that the offense was committed in an “especially heinous, cruel or depraved” manner because the sentencing judge, rather than jury,- could apply the narrowing factors previously announced by the Arizona Supreme Court. The decision is of little use to us here, and Coulter has cited nothing in support of his contention that our statutory “avoiding or preventing an arrest or effecting an escape” aggravating circumstance is vague or overbroad.

While a jury may, as in this case, have to determine whether an accused killed to avoid or prevent arrest from circumstantial evidence, we find nothing vague or overbroad in the statutory description of that intent. Coulter has made no convincing argument on this point.

b. Evidence

Coulter argues he was being sought by the police the day the victim disappeared because he was the last person seen with her; therefore, the killing did not aid him in avoiding apprehension. That is irrelevant to Coulter’s intent. He further contends, without citation of authority, that the jury was required to speculate that the killing was committed to avoid arrest or apprehension. Again, we are not convinced by his argument.

The child obviously knew Coulter and would have been able to identify him as the man who raped her. The ends to which Coulter went in trying to hide the body, coupled with his almost immediate departure from the area where the offense occurred, is clear evidence of his other efforts to avoid arrest.

While the jury must determine the presence of an aggravating circumstance beyond a reasonable doubt, Ark. Code Ann. § 5-4-603(a)(l) (1987), we will review the sufficiency of the State’s evidence in the light most favorable to the State to determine whether any rational trier of fact could have found existence of the aggravating circumstance beyond a reasonable doubt. See Lewis v. Jeffers, _U.S__, 110 S.Ct. 3092, 3102-04 (1990), where the Supreme Court used this standard in a habeas corpus review to determine if Arizona courts had violated an accused’s rights to due process of law or protection of the Eighth Amendment. Applying this standard, we conclude the jury could have found beyond a reasonable doubt that Coulter killed to avoid being arrested for raping the victim.

3. Prosecutor's closing argument

Coulter contends his Eighth Amendment rights were violated by the prosecutor’s closing argument in the sentencing phase of the trial. Here is what the prosecutor said and how Coulter’s counsel objected:

BY MR. GIBSON [prosecutor]:
If it please the Court.
Mr. Allen. Ladies and gentlemen of the jury, I know you’re tired. We have talked and talked and talked today about the issues in this case, and I hope I don’t stay up here too much longer, but I do feel an obligation that I owe the state of Arkansas to seek the death penalty.
The death penalty is not something you impose; it’s not something I impose, nor His Honor. It’s the law in certain cases. It is in compliance with what justice requires in certain cases. And, if you return a verdict of death, it won’t be you putting him to death. It will be the law putting him to death.
MR. ALLEN: Your Honor, excuse me. I object to that. That’s improper argument. It IS the jury’s function to make a sentence of death.
MR. GIBSON: It’s a state function, Your Honor.
THE COURT: Just a minute.
MR. ALLEN: Your Honor, under Caldwell versus Alabama, [sic] that’s an improper argument. I object to Mr. Gibson trying to diminish the responsibility of this jury.
MR. GIBSON: I’m not trying to diminish the responsibility of the jury. I’m just trying to tell them it’s not them, personally, putting him to death. That’s all.
THE COURT: Ah, now here’s the ruling. The jury has a responsibility to carry out the law, and, ah, I think that is the law, Mr. Allen.
MR. GIBSON: That’s all I’m trying to say, Your Honor. I’m sorry. I won’t belabor that point.
THE COURT: I believe that’s the law.
MR. ALLEN: Yes, it is, Your Honor.
THE COURT: I believe it’s the jury’s responsibility to carry out the law as they see it.
MR. ALLEN: Right.
THE COURT: Okay?
MR. ALLEN: Yes, sir.
BY MR. GIBSON: (continuing)
And, if he is put to death, it will be the law being enforced in a proper case, You, as the Court has already instructed you, shall not be guided by sympathy, and that applies with any sympathy toward the defendant as well. You’ve got to rely upon the evidence in the case of mitigating circumstances. There’s got to be mitigating circumstance that justifies not imposing the death penalty, if you find that the aggravating circumstance exists, and there’s not any mitigating circumstances, then the death penalty is appropriate. And I would like for you to follow the law. I know you’ve said you’ll follow the law, and you have told me that you can follow the law.
Now, a little bit about the hypothetical that Mr. Allen brought up. What if you retired to deliberate and came back with the death penalty verdict, and when it was announced, Roger Coulter would fall over due to an apparent — or fall over with a heart attack? Certainly, everybody would run to his aid and try to keep him alive. Because, if we stood by and let him die, we would be violating all sense of humanity. We would be shirking a responsibility. That’s not the way he’s suppose to die as a result of this trial. And we shouldn’t do anything to aid him in dying or prevent, ah, or not try to keep him alive. If he’s put to — sentenced to death, it’s by legal injection after his right to appeal.
MR. ALLEN: Your Honor, I’m sorry, but I have to object. That, again, is improper argument, and Mr. Gibson knows that that’s improper argument.
MR. GIBSON: I’m responding to a proposition that if he fell over dead, everybody would run to his aid, and there’s a reason for that, Your Honor!
THE COURT: Mr. Allen, I don’t see anything basically wrong with that argument. Certainly the medics would attempt to help him, but that’s not the same situation, and he can argue that, I believe, sir.
MR. ALLEN: Your Honor, it’s not the medics helping or not helping. It’s bring — talking about the other issues that Mr. Gibson interjected into that.
THE COURT: Well, I think that’s an argument which is permissible, Mr. Allen. Proceed.
BY MR. GIBSON: (continuing)
What I’m trying to say is, we’ve got the value of life on one hand, and then we’ve got the law and due process on the other, and if he dies, it should be the result of all the protection of society, including due process. And that’s why he’s getting this very meticulous trial.
Roger Lewis Coulter will die in the Arkansas Department, of Correction. Whether it’s by lethal injection or after a normal life span depends upon the verdict today.

The prosecutor concluded his remarks by discussing the jury’s duty with respect to weighing the aggravating circumstances against any mitigating circumstance or circumstances it found to exist. He thanked the jurors for their service, acknowledging he did not envy their position and that they had a “tough job” to do.

The basis of Coulter’s Eighth Amendment claim is the Supreme Court’s opinion in Caldwell v. Mississippi, 472 U.S. 320 (1985). In that case a prosecutor had argued to the jury that, if the jury sentenced the defendant to death, there would be an automatic appeal, and he said “they [the defense] knew that your decision is not the final decision.” The Supreme Court reversed the conviction. Some statements in the opinion are as follows:

[W]e conclude that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere [472 U.S. at 328 - 329].
[M]any of the limits that this Court has placed on the imposition of capital punishment are rooted in a concern that the sentencing process should facilitate the responsible and reliable exercise of sentencing discretion [472 U.S. at 329],
In the capital sentencing context there are specific reasons to fear substantial unreliability as well as bias in favor of death sentences when there are state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court.
... for an appellate court, unlike a capital sentencing jury, is wholly ill-suited to evaluate the appropriateness of death in the first instance [472 U.S. at 330],
A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. They are confronted with evidence and argument on the issue of whether another should die, and they are asked to decide that issue on behalf of the community. Moreover, they are given only partial guidance as to how their judgment should be exercised, leaving them with substantial discretion. See e.g., Eddings v. Oklahoma, 455 U.S. 104 (1982); Tackett v. Ohio, 438 U.S. 586 (1978); Woodson v. North Carolina, 428 U.S. 280 (1976). Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role [472 U.S. at 333].

The Supreme Court concluded its opinion as follows:

This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with appropriate awareness of its “truly awesome responsibility.” In this case, the State sought to minimize the jury’s sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires. The sentence of death must therefore be vacated. Accordingly, the judgment is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings.

The Supreme Court’s specific concern in the Caldwell case obviously was with the attempt of a prosecutor to make jurors think that “others”, in that case an appellate court, would ultimately be responsible for the death of the person they were asked to sentence to that fate. That, of course, presents a major distinction of the Caldwell case from this one. While the prosecutor touched on this Court’s role when he said Coulter, if sentenced to death, would die by lethal injection “after his right to appeal,” that single remark does not purport to place the responsibility for death sentencing upon “others.” But that does not end the discussion.

The issue is whether by saying “The death penalty is not something that you impose; it’s not something I impose, nor his Honor” the prosecutor violated the Supreme Court’s admonition against attempting to make the jury less cognizant of the “gravity of its task” and less aware of its “truly awesome responsibility.”

Viewed in the context of the colloquy among the prosecutor, defense counsel, and the judge, the prosecutor’s remarks do not, in our opinion, violate the standard set in the Caldwell case. When the objection was raised, the judge responded by saying “the jury has a responsibility to carry out the law.” That deflected the prosecutor’s references which might have been perceived as suggesting the jury’s responsibility was diminished. The prosecutor then agreed, “That’s all I’m trying to say Your Honor,” Defense counsel then concurred in the judge’s statement that it was the jury’s responsibility to “carry out the law as they see it.”

After the fleeting reference to the “right of appeal,” the prosecutor definitely focused his argument on the responsibility of the jurors, sympathizing with them in the performance of a “tough job.”

While some of the prosecutor’s remarks were on the borderline of diminishing the jury’s role in returning a death sentence, when the judge’s remarks, those of defense counsel, and the prosecutor’s concluding statements are added, we conclude the jury was made well aware of its duty and no error occurred.

4. Overlap with first degree murder

Coulter argues that first degree felony murder, described in Ark. Code Ann. § 5-10-102(a)(1) (1987), is the same as capital felony murder which is described in Ark. Code Ann. § 5-10-101(a)(l)(1987).He argues that, as first degree murder carries a lesser sentencing range, the discretion to charge one offense or the other violates the Eighth and Fourteenth Amendments. He acknowledges that this Court has consistently rejected the argument and does not suggest a reason why this case differs from the earlier ones he cites, i.e., Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Wilson v. State, 271 Ark. 682, 611 S.W.2d 739 (1981).

As the State points out, our repeated rejection of this argument has continued in recent cases, such as White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989); McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), where we have found no constitutional or other impediment to the discretion conferred by the “overlap” upon the State to choose between the two laws in charging a particular homicide.

Given the lack of argument distinguishing this case from the others, we find no error.

5. Lack of meaningful means to obtain post-conviction relief

In Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), we abolished our former Ark. R. Crim. P. 37 which was our rule on post-conviction relief. In an accompanying per curiam order we amended Rule 36.4. to require a person convicted of a crime to be notified he had 30 days in which to move for a new trial on the ground of ineffective assistance of counsel. In the Matter of the Abolishment of Rule 37. and the Revision of Rule 36. of the Arkansas Rules of Criminal Procedure, 299 Ark. 573, 770 S.W.2d 148 (1989).

We subsequently reinstated Rule 37. in a modified form, but Coulter’s case came under Rule 36.4. He argues the Rule allowed him neither practical means nor opportunity to obtain counsel to help determine whether he had reason to complain of his trial counsel.

During the 30-day period after he was sentenced, Coulter filed a motion styled “Notice of Non-Waiver of Any Claim of Ineffective Assistance of Counsel” in which he stated he planned to raise any claim of ineffective assistance of counsel he might have at the first “meaningful opportunity.” He did not move for a new trial or ask the court to appoint counsel to assist him in making a timely decision whether to move for a new trial.

As we have no court order to review on this point, and the motion made by Coulter has no bearing on the finding of guilt or the sentence, we discuss it no further.

6. Funds for independent psychiatric evaluation

Coulter sought from the trial court funds to pay for expert testimony about his mental condition as it related to mitigating circumstances. Possible mitigating circumstances include the defendant’s being “under extreme mental or emotional disturbance,” “unusual pressures or the domination of another person,” and lost capacity “to appreciate the wrongfulness of his conduct or to conform ... to the requirements of the law . . . as a result of mental disease or defect, intoxication, or drug abuse.” Ark. Code Ann. § 5-4-605(1), (2) and (3) (1987). The trial court refused the request.

Coulter’s appointed defense counsel hired a clinical psychologist to examine Coulter and testify. A $1000 fee to the psychologist was paid personally by defense counsel.

The Supreme Court in Ake v. Oklahoma, 470 U.S. 68 (1985), clearly held that where a defendant’s sanity is to be a significant factor in his defense, he is entitled to the assistance of a psychiatrist as a matter of due process. The Supreme Court went further and said such a defendant is also entitled to professional assistance if an issue as to his mentality arises in the penalty phase of the trial.

With respect to the question of a defendant’s sanity at the time an oifense was committed and competency to stand trial, we have held that the statutorily provided review by the Arkansas State Hospital is sufficient. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). We have no such holding with respect to additional psychiatric testimony on the matter of mitigating circumstances.

In Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), the trial court allowed $840 for independent psychological testimony provided by a clinical psychologist on the question of mitigation. Our opinion does not indicate the trial court’s authority for making the payment. We declined to reverse despite the appellant’s argument that he needed more than $840 for the purpose.

Psychiatric examination of a defendant is provided in Ark. Code Ann. § 5-2-305 (Supp. 1989). Subsection (a)(1) makes the psychiatric examination mandatory if the defendant files notice that “there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause. . . .” Other subsections cover the mechanics of obtaining the examination, and subsection (d) states the matters to be included in the report of the examination:

(1) A description of the nature of the examination;
(2) A diagnosis of the mental condition of the defendant;
(3) An opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense;
(4) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the alleged conduct. . . .

A report on these four items is obviously not broad enough to cover everything a defendant might raise as a “mental defect” basis of mitigation, but it could be expanded by the General Assembly to cover it. That, of course, is not our concern here. Coulter’s argument is that he is entitled to a reversal because of the trial court’s unwillingness to provide the requested funds.

Coulter got the benefit of the assistance he sought through his appointed counsel’s generosity and sense of professional obligation. He makes no argument that the testimony given on his behalf by Dr. William Martin, a clinical psychologist, does not meet the Ake case standard of mandatory “psychiatric” assistance.

While there was obviously prejudice to Coulter’s defense counsel resulting from his payment of the fee, the prejudice did not extend to Coulter, and we thus will not reverse on this point. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

7, Appointed counsel fee cap

Coulter’s attorney made a motion to have the $1000 cap for attorney’s fees for appointed counsel in capital cases, Ark. Code Ann. § 16-92-108(b)(2) (1987), declared unconstitutional. He presented a petition for fees which sought recompense for 186 hours of his professional time, $23,250, and out of pocket expenses of $2068. The trial court denied the motion but after further discussion decided to take it under advisement.

A growing number of states have struck down similar fee cap statutes on various constitutional grounds. In DeLisio v. Alaska Superior Court, 740 P.2d 437 (Alaska 1987), the Alaska Supreme Court held that requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney by disproportionately placing the cost of a program intended to benefit the public upon the attorney rather than the citizenry as a whole. It was said to constitute a taking of property in violation of the state constitution and the Fifth Amendment to the United States Constitution.

In State Ex. Rel. Stephan v. Smith, 242 Kan. 336, 747 P.2d 816 (1987), the petitioners advanced a Sixth Amendment challenge which argued that:

[T]he system for appointing counsel adopted by the State violates the right to effective assistance of counsel for two reasons: (1) it creates an inherent conflict of interest between the attorney and client because the more hours an attorney spends on the case, the greater the personal cost to the attorney; and (2) it requires attorneys who are without criminal law experience or expertise to represent indigent criminal defendants.

Another argument raised the Fifth Amendment taking theory challenging the constitutionality of the Kansas statute which provided for compensation of no more than $1000 to $5000 in most serious cases. The court found the system not to be invalid on its face but conceded that some of the problems with the application or administration of the system could render it unreasonable and arbitrary. The central problem identified was that of unequal operation of the statute because it affected attorneys differently depending on where they lived. After extensive discussion of the state law on the question the court concluded:

Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes and bridges, or physicians to treat the indigent without compensation. When attorneys’ services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property, and are thus subject to Fifth Amendment protection.
When the attorney is required to advance expense funds out-of-pocket for an indigent, without full reimbursement, the system violates the Fifth Amendment. Similarly, when an attorney is required to spend an unreasonable amount of time on indigent appointments so that there is genuine and substantial interference with his or her private practice, the system violates the Fifth Amendment.

In addition, an equal protection violation was argued. The respondents:

[C]ontend[ed] that the present system violates the equal protection clause in three respects: (1) it treats attorneys differently from other professionals by requiring them to subsidize indigent criminal defense; (2) it treats attorneys differently depending upon their geographic location; and (3) the quality of defense available to indigents depends on geographic location.

Equal protection violations were found to exist in each of the areas identified under the system in place at the time. A Thirteenth Amendment challenge (involuntary servitude) was rejected on a finding that a condition of servitude is within the Amendment’s proscription only when the individual is subjected to physical restraint or threat of legal confinement as an alternative to service. The court concluded that, as no Kansas attorney had been imprisoned for failure to accept an appointment under the statute, there was no violation.

In Makemson v. Martin County, 491 So. 2d 1109 (Fla. 1986), the Florida maximum fee statutes were found unconstitutional as applied when cases involving extraordinary circumstances and unusual representation were presented. The Florida statute allowed a $1000 cap for representation of juveniles and misdemeanants which is the same amount the Arkansas law allows for a death sentence case. The court found the statute to be an infringement of the inherent right of trial courts to ensure adequate representation and to create a conflict between the rights of the accused to competent representation and the need to protect the treasury. In competition between the two interests the Court concluded that the right to competent representation must win. Finally, the Court concluded that the system unfairly placed the burden of representation of indigent defendants upon a small number of appointed attorneys.

Our law in this area is fairly sparse. In State v. Ruiz, 269 Ark. 331, 602 S.W.2d 625 (1980), we overturned a trial court’s finding of valid constitutional challenges to the fee cap. At that time $350 in fees and $100 for investigation were allowed by the statute. In reversing we discussed the lack of payment’provisions at the common law, the presumption of validity attendant to legislative enactments and the obligations of attorneys to provide service without consideration of “lucre.”

We alluded to the issue in another case which raised the “taking” argument. We cited a federal court of appeals case which rejected that particular argument on the way to concluding that the statute was valid and the inadequacy of the fees was something to be addressed by the legislature. While this case could be said to have closed the door on any “taking” or due process argument, in Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990), we implied that we might reconsider the argument. There we distinguished State v. Ruiz, supra, saying that the fact that Pickens’ counsel volunteered for representation left him with no due process argument. We also stated the statute did not infringe on the inherent power of the trial court to regulate the practice of law and that there was no evidence that the limit affected the right to effective assistance of counsel. In concluding the opinion we wrote, “whatever the trend may be to hold such fee limits unconstitutional, this is not the case in which we will reconsider the issue.”

In this case, Mr, Arthur L.. Allen, a Little Rock attorney was appointed because no local counsel in the Bradley or Ashley County area could be found to take the case. It required extensive time and more out of pocket expenses than will be covered by the statutory fee. Mr. Allen’s arguments and citations of authority seem to have merit on the general issue of the constitutionality of the fee cap statute. It may indeed be unconstitutional for any or all of the reasons espoused in the cases cited. We give notice that, in an appropriate case, we will reconsider our earlier decisions on the issue. This is not the case. No facts are stated showing that Coulter was affected by any conflict of interest the fee cap could have created between Coulter and his appointed counsel. No argument is presented to this court showing how Coulter was in any manner prejudiced.

It is instructive to note the manner in which the matter of unconstitutionality of fee cap legislation reached the appellate courts which have declared it unconstitutional. In De Lisio v. Alaska Superior Court, supra, it began as a contempt citation of a lawyer who refused a court appointment to represent an indigent defendant. In Makemson v. Martin County, supra, a Florida trial court awarded fees in excess of the statutory cap, and the county which would have to pay the fees sought certiorari. In State Ex. Rel. Stephan v. Smith, supra, the Kansas Attorney General sought to force two judges to follow the statute by seeking a writ of mandamus. In none of the cases was a criminal defendant’s conviction reversed because of prejudice caused by an unconstitutional fee cap. That is not to say that there may not have been such a case or that there may not be one in the future. The point here is that Coulter has neither shown nor even argued to this Court any specific prejudice resulting from the fee cap statute.

Even if an error of constitutional dimension was made by the trial court in refusing to hold the statute invalid, we will not reverse absent a showing of prejudice. Goldsmith v. State, 301 Ark. 107, 782 S.W.2d 361 (1990); Berna v. State, supra.

8. Comparative review and Rule 11(f) review

In accordance with our policy of comparing death sentence cases to assure that no “freak” or otherwise uncalled for sentence to death is imposed, we have assured ourselves that this is not such a case. See Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977); Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983) (concurring opinion of Hickman, J.); Wilson v. State, 295 Ark. 682, 751 S.W.2d 734 (1988), supplemental opinion on reh. (1988).

We also have, as required by our Rule 11(f), reviewed the rulings made against the defendant by the judge during the trial, and we find no error. In the course of the latter review, we were given pause by the photographs introduced by the State into evidence to which Coulter objected. They fully displayed the brutality of the rape committed upon a five-year-old girl and the physical wounds she suffered. We find the photographs were not unduly cumulative, see Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), or otherwise unfairly prejudicial.

The offense was committed viciously and warrants, perhaps as much as any we have seen, the severest penalty.

Affirmed.

Holt, C.J., concurs.

Jack Holt, Jr., Chief Justice,

concurring. I concur with the majority in its well-reasoned opinion; however, I would feel remiss if I did not comment upon the present cap of $1,000 for attorney’s fees for appointed counsel in capital cases, Ark. Code Ann. § 16-92-108(b)(2) (1987), and the Supreme Court’s mandate in Ake v. Oklahoma, 470 U.S. 68 (1985), which provides, in essence, that a defendant is also entitled to professional assistance if any issue as to his mentality arises in the penal phases of his trial.

Appointed counsel fee cap

It is unfortunate that the manner in which § 16-92-108(b) reaches our court does not permit us to rule on its constitutionality.

As mentioned, several states have recently struck down similar fee cap statutes on various constitutional grounds. The majority has cited, at length, portions of opinions from the Alaska, Kansas, and Florida Supreme Courts. Their findings are sound and have merit.

The $1,000 attorney’s fee paid to Mr. Allen as appointed counsel in this capital case is a mere pittance. Granted, our state and counties can ill afford to recompense attorneys for their professional time while serving on an appointment on an hour per hour basis, or with fees comparable to those received by attorneys in the private sector who have a criminal/trial practice. Flowever, appointed attorneys should receive much more than token payment for their services.

Under our system of justice, the state and counties fully fund all aspects of the criminal trial; prosecution, trial court, court personnel, jurors, everything except counsel for indigent defendants. When a party is indigent, we provide an incomplete public defender system which renders services in limited areas. Otherwise, the courts call upon attorneys who make their living through their services to perform, and perform well, with little or no compensation, and quite often, to advance expense funds out of their pockets for preparation and trial without any reimbursement. This is necessary so that the defendant can have his day in court.

Under these present arrangements, it is obvious that our judicial system is not complete, and will not be, until funds are provided to reasonably compensate the attorneys who are required to represent truly indigent defendants. This could be accomplished by the creation of a state-wide public defender system for both trial and appellate work. Hopefully, the General Assembly of Arkansas will readdress this issue expeditiously; otherwise, the burden and responsibility will soon fall upon the courts to erase this blotch on our system.

Funds for independent psychiatric evaluation

Another matter of “funding” is also before us. It arose during the course of trial when Coulter’s appointed counsel petitioned the trial court for funds to pay for expert evaluation and testimony about appellant’s mental condition as it related to mitigating circumstances. Counsel was merely discharging his duty of effective assistance by attempting to comply with the Supreme Court’s mandate in Ake v. Oklahoma, 470 U.S. 68 (1985), to provide professional assistance to the appellant as the issue of his mentality was to be an issue during the penalty phase of his trial.

Upon the trial court’s failure to fund psychiatric evaluation and testimony, counsel hired a clinical psychologist. As noted in the majority opinion, a $1,000 fee was paid personally by defense counsel to the psychologist, thereby providing the defendant his entitlement under Ake, but at the expense of counsel rather than the state. This was not right.

In sentencing under a capital murder charge, our General Assembly has specified procedures and standards pursuant to which a sentencing body must conform in making a determination as to whether or not a sentence of death is to be imposed. Under Ark. Code Ann. § 5-4-603 (1987 and Supp. 1989), a jury must unanimously return written findings that the aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist. Ark. Code Ann. § 5-4-605 (1987) provides that mitigating circumstances shall include, but are not limited to, the following: (1) that capital murder was committed while the defendant was under extreme mental or emotional disturbance; (2) that capital murder was committed while the defendant was acting under unusual pressures or influence of the domination of another person. Obviously these two examples of mitigating circumstances should be presented through competent psychiatric evaluation and testimony. Ake, supra, requires as much.

We should not compel counsel to fund a necessary ingredient to trial when a defendant is indigent. The state should either provide the resources for examination through its mental health services, or simply provide funds for counsel to obtain these services. It would be very simple for the General Assembly to expand the responsibilities of the Arkansas State Hospital, when evaluating a defendant, to require that the evaluation also include evaluation as to mitigating circumstances as prescribed by Ark. Code Ann. § 5-2-305 (1987 and Supp. 1989). This could be done, in the first instance, if the defendant is committed to the Arkansas State Hospital for a general evaluation, see generally section 5-2-305(d)(l)-(5), or if there has been no previous evaluation, then after the conclusion of the first phase of the bifurcated trial.

If the state does not care to utilize its own resources, then, the responsibility falls on the court to order adequate funding to satisfy the Ake requirements.

In sum, appointed defense counsel should no longer be required to assume the burden of defending an indigent for little, if any, compensation or be called upon to fund the necessary elements of his indigent defendant’s trial out of his own pocket.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Carroll GRAVETT, Sheriff of Pulaski County, Arkansas v. Meyer MARKS, Individually and On Behalf of All Others Similarly Situated
    90-314
    803 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991

      Larry D. Vaught, for appellant.

      Central Arkansas Legal Services, by: Griffin J. Stockley
      and Lynn Pierce, for appellees.
   David Newbern, Justice.

The chancellor held that Sheriff Carroll Gravett had no authority to cure a constitutionally deficient post-judgment execution statute by requiring notice to garnishees not required by the statute. The chancellor was correct. The decision is affirmed.

The Sheriff designed a notice form to supply the constitutional deficiency in Ark. Code Ann. §§ 16-66-211 and 16-66-401 (1987). The form was used in conjunction with service of judgment execution documents upon appellee Meyer Marks. The chancellor held the service on Marks was invalid due to the invalidity of the statute on which it was based, and the constitutional deficiency was not supplied by actual notice to Marks of items constitutionally required.

The Sheriff appeals relying on two cases. In Duhon v. Gravett, 302 Ark. 358, 790 S.W.2d 155 (1990), the decision declaring our post-judgment execution law constitutionally deficient for lack of a requirement of proper notice, we wrote “it is the lack of a requirement of notice to the judgment debtor that makes statutory provisions constitutionally deficient. With proper notice to the judgment debtor, that aspect of the due process mandate of the 14th amendment is satisfied.” In Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988), we held that a garnishee had no standing to challenge the garnishment law on the basis of violation of the debtor’s constitutional entitlement to notice. In the process of reaching that holding we discussed Davis v. Paschall, 640 F.Supp. 198 (E.D. Ark. 1986), and the consent decree approved in that case which related to the manner of supplying constitutionally sufficient notice in post-judgment garnishment proceedings.

The holdings in the Duhon and Kennedy cases remain correct. We did not intend, in obiter dicta or otherwise, to suggest that a property seizure proceeding based on a statute which has been declared unconstitutional may succeed. We have held in many cases that “when a statute is declared unconstitutional it must be treated as if it had never been passed.” Green v. Carder, 276 Ark. 591, 637 S.W.2d 594 (1982); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). Actual notice is insufficient where a notice statute is constitutionally insufficient. Wuchter v. Pizzuti, 276 U.S. 13 (1928).

Affirmed.


text:
    Robert WORTHINGTON v. Bruce ROBERTS and Carolyn Roberts
    90-119
    803 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991

      Butler, Hicky & Long, by: Fletcher Long, Jr., for appellant.

      Mooney & Boone, for appellee.
   David Newbern, Justice.

This is a negligence case in which the main issue is whether the court erred in granting a new trial on the ground that the jury verdict was clearly against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6). We affirm because the judge did not abuse his limited discretion in granting a new trial. We also address a damages issue which is not necessary to the decision here, but which may arise upon retrial.

The appellant, Robert Worthington, is a pilot who was hired by Earl Watkins to spray a chemical known as STAM on Watkins’s rice field. The field is located south and across a road from a four-acre wooded tract upon which the residence of the appellees, Bruce and Carolyn Roberts, is located.

Bruce Anthony Roberts, the son of the appellees, who was living with them, testified that on the morning of June 4, 1984, Watkins came to the Roberts’s door and asked if Bruce could help Watkins hold some tarps over the Roberts’s tomato plants because a crop duster was about to spray. Bruce testified that he tried to help hold the tarps over the plants but the wind was blowing hard enough to make it difficult. The tarp kept “flying up.” He also testified, without objection, that Watkins told him he had not thought the spraying would occur that day because the wind was so bad. The wind was blowing from the southwest, and the chemical burned his eyes. Bruce testified that since that date there have been large quantities of leaves and limbs in their yard which he did not remember being there before.

Bruce’s sister, Tracey Roberts, who was also living in the home, said she went into their yard to watch the attempt to cover the tomato plants and heard Mr. Watkins.say “he had told the pilot not to fly if the wind was blowing hard.” She testified that the wind was blowing hard. She said “You could smell the chemical in the house real bad, and we left the house. A day or two later I broke out in a rash.”

Arthur Mullins, an employee of the Federal Aviation Administration, testified that on June 4,1984, between nine and ten a.m., the wind was blowing from the southwest from six to eight knots. While he did not state a conversion formula,- Mullins said that wind velocity in knots is faster than the same number in miles per hour.

Finis Burns, an employee of the Arkansas State Plant Board, testified that he went to the Roberts property in response to a complaint about the chemical damage to shade and fruit trees and flowers. He observed that they were damaged by chemical drift which caused “a burning effect — browning of the leaves — defoliation.” The damage was “moderate to severe.”

Appellee Carolyn Roberts testified that they had purchased the land as the location for their house because of the trees. They built the house in the middle of the tract in such a way as to displace as few trees as possible. She recalled June 4, 1984, and the fact that the wind was blowing hard. She also stated that the home smelled of the chemical spray which was so strong that the family spent the night elsewhere. She said the trees lost their leaves and some branches and became ugly.

Appellee Bruce Roberts testified that on the date in question he was working away from home on a construction project involving sheet metal, and the wind was blowing so hard the metal sheets were difficult to handle. When he arrived home and learned of the spraying problem he inspected his trees and found that the leaves were “curling.” He testified that of the 10 or 12 fruit trees he had planted none survived. The oak trees had become “sparse” because of dying limbs which had to be picked up every time the yard was mowed. He testified that the property was devalued because the trees are “continually dying.”

Ed Dickey of the Dickey Tree Service testified that he had inspected the Roberts’s trees. He found 107 oak trees, all of which had been damaged, and 12 of which had died. Fie said the damage would be progressive, and in his opinion, in the second year after the spraying larger branches would begin to die toward the tips of the branches. In the third year entire limbs would die, and in the fourth year some trees would die with only the strongest surviving.

Mr. Watkins testified that he was present when his rice land was being sprayed by Worthington. He saw the chemical drift onto the Roberts property, and he recalled covering the tomato plants and the gusts of wind. He also testified that some of the Roberts’s trees were already damaged, and that he had used STAM many times and had never seen it destroy mature oak trees.

Appellant Robert Worthington testified that he had been applying STAM to rice fields since 1968. It is a “contact” herbicide rather than a hormonal one. It is designed only to kill plants it touches and not get into the root system. It is used to kill grass growing in a rice field. Worthington testified that when he sprayed Watkins’s field the wind was blowing three to five miles per hour but he could not argue with someone who said it blew faster. He calculated the wind speed and tried to stop spraying in a manner to prevent drift out of the field he was spraying.

Worthington also testified that he had previously flown over the Roberts property and had seen dead limbs in the trees, and that he saw only a small amount of “burn” on the trees after the spraying. He stated that he had seen trees on which STAM had been sprayed over the years, and no mature trees were killed by the chemical. The ones damaged came back the following year.

Albert Lee Frasure, Jr., an agricultural consultant, testified as an expert for the defense. He had examined the Roberts situation on July 6, 1984, and discovered it was “very evident” that STAM had drifted from the Watkins farm onto the Roberts’s property. A number of the trees had evidence of “burn” on the leaves and there was partial defoliation but not as much as three fourths defoliation.

1. New trial

The jury, responding to an interrogatory, determined there had been no negligence. The Robertses moved for a new trial, and the court granted the motion, stating that “the defendants’ verdict in favor of defendant, Robert Worthington, is clearly contrary to the preponderance of the evidence and, therefore, should be set aside.”

Prior to the adoption of the Arkansas Rules of Civil Procedure in 1979, the grounds for granting a new trial were found in Ark. Stat. Ann. § 27-1901 (Repl. 1962). The grounds found in Rule 59(a) were taken verbatim from the statute with one exception. In 1982 the word “clearly” was added so that the ground now found at Rule 59(a)(6) states that a new trial may be granted by the trial court if “the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.”

The change in the rule came in conjunction with our decision in Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982), where we explained:

The trial court is vested with discretion in acting on such a motion because the trial judge’s opportunities for passing upon the weight of the evidence are superior to those of this Court. On appeal, the trial court will not be reversed absent an abuse of discretion. Abuse of discretion in granting a new trial means a discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Freeman v. Morrilton Water Co., 274 Ark. 419, 625 S.W.2d 492 (1981).

In view of the consistency of the testimony in this case to the effect that the wind was blowing at the time the spraying occurred and that at least some injury was caused to the trees and other vegetation on the Roberts property, we cannot hold that the trial court abused his discretion in granting a new trial. Even the expert testifying for the defense observed that the STAM had drifted onto the Roberts land and had caused some injury there. The appendix contains no testimony about precautions taken by Worthington to keep the STAM off the Roberts’s trees other than his attempt to calculate how far the STAM would drift. Although Worthington testified about the mechanism used in the plane to keep the STAM from dripping from the spraying booms after it was shut off, that had nothing to do with the drift caused by spraying on a windy day but was a mechanism used to see to it that when the plane flew over land other than that to be sprayed no STAM would be released.

The evidence seems to us to be strong that there was negligence which was the proximate cause of a loss suffered by the Robertses. While there was some evidence on the other side, including Watkins’s statement that he saw no need to call off the spraying due to the wind and some evidence that STAM could not cause the kind of damage reported by the majority of the witnesses, we cannot fault the trial court for finding that the preponderance was clearly in favor of the Robertses. The very wording of Rule 59(a)(6) contemplates that there will be some evidence on both sides of the issue. Otherwise the rule would permit granting a new trial only when all of the evidence, rather than a clear preponderance of it, favored the moving party.

Worthington has argued that by granting the motion the trial court, in effect, took the case from the jury and found there was negligence as a matter of law. That is not the case. As we pointed out in Turrise v. Crane, 303 Ark. 576, 798 S.W.2d 684 (1990), “showing of abuse is more difficult when a new trial has been granted [as opposed to refused] because the party opposing the motion will have another opportunity to prevail.” A new trial is hardly the equivalent of a directed verdict.

2. Damages

While it is not necessary to the decision of this case, we review the court’s instruction on damages for the purpose of guidance upon retrial. The court instructed the jury on damages as follows:

If any interrogatory requires you to assess the damage to the property of the plaintiffs, you must then fix the amount of money which will reasonably and fairly compensate them for the following element of damage if proximately caused by the negligence of Robert Worthington. . . .
The difference is the fair market value of the land and its improvements before and after the occurrence. In determining the amount of damage you may consider replacement value, cost of future treatment, aesthetic value, or benefit of shade trees or ornamental trees in assessing such damage.

Worthington argues that the instruction was improper because it does not limit the possible damages solely to “The difference in the fair market value of the land [and its improvements] immediately before and immediately after the occurrence” which is the language of AMI 2222.

The instruction given was apparently a combination of AMI 2222 and language based upon the damages award in Bowman v. McFarland, 1 Ark. App. 235, 615 S.W.2d 383 (1981). In the Bowman case, the court of appeals dealt with intentional destruction of trees in violation of a contractual duty and held that “the cost of replacement” value rule permissible in contract cases was appropriate.

The instruction contained elements of both “cost of replacement” rule and the “difference in value of the land’’ rule. To allow both would, of course, result in double recovery. While cost of treatment or replacement could possibly be of some help in guiding the jury to determine the difference in the value of the land immediately before and immediately after the occurrence, Floyd v. Richardson, 211 Ark. 177, 199 S.W.2d 754 (1947), we regard the combination of rules in the instruction given here as presenting a danger of double recovery. If the court intended to limit damages to the difference in the value of the land before and after the injury, it should have given AMI 2222 without alteration.

While AMI 2222 states the only rule of damages we have approved in cases such as this, by our approval of the model instruction as well as by our opinion in Cy Carney Appliance Co., Inc. v. True, 226 Ark. 962, 295 S.W.2d 768 (1956), we do not regard the law as limiting recovery solely to the measure stated there. Modern cases recognize that the use to which an owner puts land may sometimes be considered. In some instances, for example, tortious destruction of trees resulting in the clearing of land might increase its market value but decrease the value of the land for the use made of it by its owner. See, e.g:, Milozar v. Gonzales, 619 S.W.2d 283 (Tex. App. 1981). Where the market value of the land remains the same or is increased by the allegedly tortious conduct, an instruction to the jury to award as damages the difference between the before and after market value of the land (decrease) would result in no recovery by the owner. That would be unfair to a landowner who has suffered a loss with respect to the use being made of the land.

The cost of restoration of land is recognized as a measure of damages in Restatement of Torts 2d, § 929.(l)(a) (1977). The following appears in comment b. to that subsection:

. . .when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value of the premises has not been decreased by the defendant’s invasion.

Professor Dobbs discusses the problem, concluding that where ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. “The landowner is entitled to keep his land in whatever condition he likes, short of a nuisance, and this interest is protected only if the owner is sufficiently compensated so that he can restore it.” D. Dobbs, Remedies, p. 316 (1974). He cites Samson Construction Co. v. Brusowankin, 218 Md. 458, 147 A.2d 430 (1958), in which a plaintiff was allowed to recover for replacement of destroyed trees with ones as large as practical. Where, as in this case, many of the trees have not been destroyed but may have been injured to the extent they require treatment to help restore them to their former condition, we see no reason why reasonable cost of treatment might not be recoverable as alternative to cost of replacement.

Whether AMI 2222 or an instruction on cost of restoration is to be given will depend on the evidence. The evidence here justified the giving of an instruction allowing reasonable replacement cost of the destroyed trees or other reasonable cost of restoring the property, as nearly as possible, to its condition prior to the alleged tortious act.

Affirmed.


author: Tom Glaze, Justice.

text:
    Keith Emmanuel MOORE v. STATE of Arkansas
    CR 90-199
    803 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991

      William R. Simpson, Jr., Public Defender, Thomas B. Devine III, Deputy Defender, by. Jerry J. Sailings, Deputy Public Defender, for appellant.

      Mary B. Stallcup, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals his conviction for aggravated robbery, criminal attempt to commit murder, felon in possession of a firearm and his sentence as a habitual offender which totals 112 years imprisonment. At trial, appellant moved to suppress a photo lineup used by the victims, and the court denied his motion. The victims also made an in-court identification of appellant as their assailant. His sole issue on appeal is that the trial court erred in denying his motion to suppress the in-court identification. Appellant’s argument is meritless, and we affirm.

As stated recently, it is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence and then it is for the jury to decide what weight the identification testimony should be given. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Further, we do not reverse a trial court’s ruling on the admissibility of identification evidence unless it is clearly erroneous, and do not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Id. Finally, we have also held that even if the identification technique used is impermissibly suggestive, testimony concerning it is admissible if the identification in question is reliable. The following factors must be examined to determine reliability: (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; (4) the level of certainty, and (5) the time lapse between the crime and confrontation. Id.

The victims’ testimony reflects no doubts that appellant was the person who pulled a gun and demanded the victims’ valuables on the night of September 20,1989. The victims, Lucky Thompson and Kelly Barbee, both related essentially the same story. They were outside in front of Lucky’s house, sitting on Kelly’s car, when appellant walked up and engaged them in conversation. During the conversation, appellant referred to himself as the devil’s son, pulled a gun and asked for all of the victims’ valuables. Appellant was about five feet from them and the street light was sufficient to distinguish appellant’s face and clothes. Lucky and Kelly testified that the appellant had a mustache and wore a blue cap, a light gray sweatshirt with cut off sleeves and baggy white or khaki pants. After Lucky and Kelly failed to give the appellant their valuables, appellant backed away, pointed his gun at them, pulled its trigger about five times without its firing and then ran away. They saw appellant fire a shot in the air as he ran. Both victims agreed they observed appellant for about ten to fifteen minutes. Shortly afterwards, appellant was found in the same neighborhood by the police. In this connection, an officer testified that he was driving his car when he saw appellant run from two subjects (Lucky and Kelly) and the officer further related that appellant aimed and shot his pistol at him. Apparently, other officers joined pursuit and arrested appellant. Appellant was conveyed to the police station where his photograph was taken for photographic line-up purposes.

About one and a half hours after their encounter with appellant, Lucky and Kelly were asked to view a photographic lineup of six black males with mustaches. Lucky and Kelly viewed the lineup separately and without prompting from police officers, and they both selected appellant’s picture as the person who confronted and threatened them. They said that they recognized appellant immediately because of their encounter just one and a half hours before. Lucky described the perpetrator as being 5T0” to 6’ tall, but appellant was actually 5’7”. Lucky explained this difference was probably due to the appellant standing on the sidewalk while they were standing in the street when the encounter between them occurred. Given the victims’ strong and compelling testimony identifying the appellant, we cannot conclude the trial court was clearly erroneous in determining that testimony to be reliable.

Appellant complains that the photograph taken of him was suggestive because when compared to the other five, his picture was a close-up, showing more of his head and face. He also argues appellant’s photograph showed him in clothing that closely matched descriptions given the police by Lucky and Kelly immediately after the incident. From our review of the photographs, we find nothing to show they were impermissibly suggestive. Instead, we conclude those photographs were very well selected and offered largely shoulder-to-head shots of six black males with mustaches. Appellant’s photo barely reflected a white shirt but several other pictures revealed men in white or light-colored shirts, although two had some colored trim in their shirts. Appellant closed his eyes and had to be restrained when the photograph was taken, but those officers were not included or revealed in the picture. We fail to see how any of appellant’s complaints tainted the photographic lineup. We should also mention that Lucky Thompson, by his testimony, left no doubt that he quickly selected appellant from the photographic lineup only because Lucky “knew who [he] was” and because “I recognized the guy.”

Because the trial court correctly refused appellant’s motion to suppress the in-court identifications, we affirm.


author: Donald L. Corbin, Justice.

text:
    EGG CITY OF ARKANSAS, INC., and Ricky Robert Freeman v. Harold E. RUSHING
    90-122
    803 S.W.2d 920
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991.

      Atchley, Russell, Waldrop, & Hlavinka, by: R. Victor Hlavinka and Louise Tauscla, for appellant Egg City of Arkansas.

      Smith, Stroud, McClerkin, Dunn, and Nutter, by: Gary R. Nutter and Carol J. Dalby, for appellant Ricky Robert Freeman.

      Gary Eubanks and Associates, by: Darryl E. Baker and James Gerard Schulze, for appellee.
   Donald L. Corbin, Justice.

Appellee, Harold E. Rushing, brought suit against appellants, Ricky Robert Freeman and Egg City of Arkansas, Inc., for damages arising out of a vehicle accident occurring on July 21, 1986. Appellee claimed he was injured when the vehicle he was driving was struck from the rear by a truck driven by appellant Freeman and owned by appellant Egg City. Appellants admitted liability and the case was tried to a jury on the sole issue of damages. Appellee presented evidence of medical expenses, past and future lost wages, and damage to his vehicle. The jury awarded appellee $450,000.00 as compensatory damages. Appellants filed a motion for remittitur or new trial, which the trial court denied. Appellant Egg City also filed a motion to set aside the judgment claiming that newly discovered evidence indicated fraud had been committed. The trial court denied the motion to set aside the judgment. From the jury verdict and the orders of the trial court denying the post-trial motions comes this appeal.

As the first claim in this appeal, both appellants assert the trial court erred in denying the motion for remittitur or new trial. They argue the damages award was not only contrary to the preponderance of the evidence, but was also excessive and awarded under the influence of passion or prejudice.

We will first consider the motion for new trial as it relates to the question of the preponderance of the evidence. On appeal, when a motion for a new trial has been denied, we will affirm if there is substantial evidence to support the verdict; in determining whether substantial evidence exists, the evidence is viewed in the light most favorable to appellee. Johnson v. Cross, 281 Ark. 146, 661 S.W.2d 386 (1983).

A review of the evidence presented at trial, as viewed most favorably to appellee, reveals that appellee encountered medical expenses of $6,800.00; damages to his vehicle of $2,150.00; and lost earnings, both past and future, of $339,883.47. From the $450,000.00 verdict, this leaves $101,166.53 as damages for pain and suffering.

Appellee presented this evidence through the testimonies of his general physician, Dr. Goins, his chiropractor, Dr. Manus, and his psychologist, Dr. Stevens. Dr. Goins testified that appellee suffered neck and back injuries, namely a bulging disc and extensive muscle spasms. Dr. Manus testified that appellee would have chronic pain for the remainder of his life. Both of these witnesses testified that appellee was disabled. Dr. Stevens testified that appellee’s post-accident condition was consistent with a brain injury. Dr. Stevens diagnosed appellee as suffering from severe depression resulting from the injuries he received in the accident. Appellee presented evidence of his lost earnings by way of an expert in economics. Appellee and his wife testified as to his pain and his unsuccessful attempts to work.

Appellants’ basis for challenging the verdict is grounded in the evidence which they presented at trial to refute appellee’s evidence. Appellants presented the testimony of an expert, Dr. Lasher, a neuro-psychiatrist, who performed psychiatric and medial examinations of appellee. Dr. Lasher concluded that appellee suffered injuries, but was not permanently and totally disabled.

Appellee presented the aforementioned evidence to the trier of fact which, from its superior position, judged the credibility of all the evidence and rendered its verdict accordingly. We find that, although the evidence was disputed, there was indeed substantial evidence to support the verdict.

As for appellants’ claim that the damages award was excessive and rendered under the influence of passion and prejudice, which they allege would justify relief in the form of either a remittitur or a new trial, we find no merit. When considering a claim that a verdict should be reversed because it is excessive, we must decide whether the award of damages is so great as to shock our conscience. Bill Davis Trucking, Inc. v. Prysock, 301 Ark. 387, 784 S.W.2d 755 (1990). While the $450,000.00 verdict awarded in this case may be somewhat generous, it is clear that the amount of economic loss, as opposed to the amount of pain and suffering, makes up the overwhelming majority of the total award. The verdict was therefore not excessive. It is also clear that the jury was not motivated by passion or prejudice toward appellee in that they refused to award his wife any damages for her loss of consortium claim. Accordingly, we find the award of damages is not so great that it shocks our conscience.

We find there was substantial evidence to support the verdict which was not excessive nor motivated by passion or prejudice. Therefore, we affirm the trial court’s denial of the motion for remittitur or new trial.

As a second claim on this appeal, appellant Egg City asserts the trial court erred in denying its motion to set aside the judgment based on newly discovered evidence indicating appellee had committed fraud in obtaining the judgment. Appellant made its motion pursuant to Ark. R. Civ. P. 60(c)(1), (c)(4). The evidence appellant Egg City claimed to have newly discovered was the testimony of Wesley Burris relating that appellee had staged the accident and thus committed fraud.

At the hearing on the motion, both appellants and appellee presented evidence concerning the alleged fraud. There was conflicting evidence by numerous witnesses. Mr. Burris testified that on the day of the accident appellee told him the next time they saw each other appellee would be in the hospital and would probably be getting a lot of money. Mr. Burris also testified that appellee told him he was not even in his truck when the accident occurred. Appellant Freeman testified that appellee was in his truck when the accident occurred. Appellee testified at the hearing and denied that the accident was staged. There was also testimony from disinterested parties that after the accident, appellee was lying in the floor of his truck and was removed only after the steering wheel and door were pried out of the way.

After hearing all the evidence presented at the hearing, reviewing briefs submitted by counsel, and reviewing the law on his own, the trial judge ruled that appellant had not met its burden of proving either fraud or newly discovered evidence. Accordingly, the trial judge denied appellant’s motion to set aside the judgment. We cannot say the trial judge abused his discretion. See Big Rock, Inc. v. Missouri Pac. R.R., 295 Ark. 495, 749 S.W.2d 675 (1988).

Appellee has included in his brief an assertion that the trial court erred in denying his motion for sanctions. This assertion requires us to speculate that appellee intended to appeal the trial court’s order, which summarily denied without explanation, his motion for sanctions made pursuant to Ark. R. Civ. P. 11. However, we are unable to find anywhere in the record where appellee filed a notice of cross-appeal as required by Ark. R. App. P. 3. Where there is no notice of cross-appeal, we will not consider the issue raised by appellee. Elcare, Inc. v. Gocio, 267 Ark. 605, 593 S.W.2d 159 (1980).

Because we feel it is important to do so, we note that “notwithstanding the language in ARCP Rule 52 that makes findings of fact and conclusions of law unnecessary in decisions on motions, we believe the better practice is for the trial court to give an explanation of its decision on Rule 11 motions sufficient for the appellate courts to review.” Bratton v. Gunn, 300 Ark. 140, 143-44, 111 S.W.2d 219, 221 (1989). Even if appellee had properly filed a notice of cross-appeal, we note that, as the moving party, he has not met his burden of providing us with a record sufficient to show prejudice or error with respect to the denial of his Rule 11 motion.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Luis Manuel MIRANDA, Carlos Aquileo Benavidez Guzman and Marlen Esmit Figueroa v. STATE of Arkansas
    CR 90-246
    803 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered February 18, 1991.

      Larry J. Steele, for appellant.

      Mary B. Stallcup, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This case involves the legality of a cash bond forfeiture ordered by the trial court for failure of appellants to appear at trial. Appellants Miranda, Guzman, and Figueroa were each charged on November 3,1989, with theft of property over $2,500. Individual bond was set in the amount of $10,000, and each appellant posted a cash bond in that amount. The municipal judge set November 27,1989, as the trial date, and on that date appellants failed to appear for trial. The trial court ordered the immediate forfeiture of the three bonds.

On March 9,1990, defendants filed a motion to set aside the court’s order to forfeit the bonds due to lack of compliance with Arkansas statutes which, according to appellants’ theory, require an order of the court setting a show-cause hearing not less than ninety days from the date of the order. The trial court held a hearing on April 9, 1990, on the motion for reinstatement of the bonds, and the appellants again failed to appear at the hearing. The trial court denied the motion and in that order directed the appellants to appear for a show-cause hearing on May 30, 1990. The hearing was held on May 30, 1990, and defense counsel presented for the first time two death certificates purporting to evidence the deaths of appellants Guzman and Figueroa on February 28, 1990. Neither document contained certification of the genuineness of the signatures. (The documents were presumably introduced to support a defense to the bond forfeiture.) The trial court denied the admission of the two death certificates and again refused to reinstate the cash bond money which previously had been forfeited.

Appellants filed a petition for writ of mandamus and prohibition in this court on May 21, 1990, to compel the trial court to set aside the bond forfeiture and to require proper notice prior to conducting a show-cause hearing on the forfeiture. That petition was denied by this court without prejudice to appellants’ right to appeal on May 29, 1990.

Appellants now assert on appeal: 1) that the trial court erred in failing to reinstate the bond forfeiture; and 2) that the trial court erred in refusing to admit the two death certificates into evidence. We affirm the trial court’s decision.

For their first argument appellants rely on an Arkansas statute which requires the trial court to order a show-cause hearing on a potential bond forfeiture not less than ninety days after the issuance of the order. See Ark. Code Ann. § 16-84-201 (Supp. 1989). Appellants, however, misread that statute. The statute reads:

(a) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.

Id. (Emphasis ours.)'

According to the specific language of the statute, it is the surety, or bail bondsman, who undertakes the obligation and who is entitled to the order setting the show-cause hearing, not the defendants/appellants. In addition to the clear language of the statute, the court of appeals interpreted a similar Arkansas statute in 1984 which required summons to be issued against unspecified individuals requiring “them” to appear within twenty days to show cause why judgment shall not be rendered against them for the sum specified in the bail bond. See Flynn v. Greene County, 12 Ark. App. 386, 676 S.W.2d 766 (1984); see also Ark. Stat.Ann. §43-727 (Repl. 1977), now codified at Ark. Code Ann. § 16-84-203 (1987). As in this case, the appellant in Flynn contended that his cash bond was forfeited before he was given twenty days notice. One issue concerned to whom notice was to be given — the bail bondsman or the defendant. In answering appellant’s argument, the court said:

The summons required by § 43-727 is intended to inform those who post bail for others that unless they produce the defendant within twenty days (who has, of course, already forfeited his bail by his own nonappearance), they will be liable for the defendant’s bail.
Appellant’s interpretation of the requirement of notice of a show cause hearing would produce results unintended by the Arkansas General Assembly. According to appellant, the purpose of the statute is to require the State to notify defendants who posted their own bail but did appear in court that they must return to court to show cause why judgment should not be rendered against them for the bail. Such defendants are of two types: (1) those who never intend to make it to the court on time - that is, those who “jump” bail, and (2) those who truly intend to appear in court but cannot for some reason. The first group, those who forego their day in court, forfeit their bail when they fail to appear and by operation of § 43-723 judgment is automatically entered against them. Obviously, § 43-727 is not intended to protect them. The second group, those defendants who in good faith intend to make their court appearances, will undoubtedly explain their absences to the court without a reminder from the State that they need to do so.

Flynn v. Greene County, 12 Ark. App. 386, 390, 676 S.W.2d 766, 768 (1984). The Flynn reasoning applies with equal cogency to the facts of this case.

For the foregoing reasons, the appellants’ first point on appeal has no merit.

Appellants further contend that the trial court erred in not admitting into evidence the alleged foreign death certificates of appellants Guzman and Figueroa. In light of our decision affirming the trial court’s order not to reinstate the bond forfeiture, it is not necessary to reach this issue, especially since the deaths allegedly occurred on February 28, 1990 — some three months after appellants’ failure to appear at trial on November 27,1989. The trial court, nevertheless, was correct in refusing the death certificates, because they were not properly authenticated as required under A.R.E. Rule 902(3). In addition to the formal deficiency, the defense counsel confronted the prosecuting attorney with the death certificates on the morning of the hearing on May 30, 1990, and because of this the prosecutor did not have reasonable opportunity to investigate the authenticity of the documents as required under Rule 902(3).

The decision of the trial court is therefore affirmed.

Affirmed.