text:
    Jerry COOK v. STATE of Arkansas
    CR 95-298
    906 S.W.2d 681
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Doug Norwood, for appellant.

      Winston Bryant, Att’y Gen., by; Clint Miller, Deputy Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Jerry Dean Cook was convicted in municipal court of driving while intoxicated and violation of the implied consent law for refusing to take a breathalyzer test. He appealed to circuit court and in a jury trial before a chancellor sitting in exchange, was again convicted of both offenses.

On appeal he challenges the authority of the chancellor to sit in exchange for the circuit judge and asserts the trial judge erred in three respects, by failing to declare the lower court system to be an unconstitutional violation of his right to both speedy and jury trial, by failing to declare the implied consent statute unconstitutional on equal protection grounds, and by failing to make the exchange agreement with the circuit judge a part of the record. All four points are without merit, and we affirm.

On July 25, 1993, the appellant was arrested in Benton County for driving while intoxicated and various other traffic offenses. On December 14, 1993, he was found guilty of driving while intoxicated and violation of the implied consent law, in the Rogers Municipal Court. Cook appealed the municipal court convictions to the Benton County Circuit Court by notice of appeal filed December 29, 1993.

A jury trial was conducted in the Benton County Circuit Court on November 4, 1994, before Chancellor Don Huffman, who was sitting in exchange for Circuit Judge Terry Crabtree; appellant was again found guilty of driving while intoxicated and violation of the implied consent law. His driver’s license was suspended for ninety days for DWI and for six months for violation of the implied consent law; he was also fined $1,000, ordered to pay court costs, sentenced to five days in the Benton County Jail, and ordered to complete a treatment program.

a. Speedy trial and jury trial

The appellant first contends that the trial court erred in not declaring the system of lower courts (municipal, city, mayor, and police) in Benton County to be an unconstitutional violation of his rights to speedy trial and jury trial. Appellant raised the issue in a pretrial motion to dismiss in which he argued that it was a violation of equal protection to require persons charged as he was in municipal court to undergo two trials in order to have a jury trial. He further argued that such persons must undergo two speedy trial periods rather than one, and the entire lower court system therefore systematically violates the speedy trial and jury trial rights of a substantial number of criminal defendants.

In arguing his motion to the trial judge, appellant’s counsel acknowledged that this court had ruled on the speedy trial issue in McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989), where we held that upon appeal of a municipal court decision to circuit court, the one year speedy trial period begins to run from the day the appeal is filed in circuit court. Appellant’s appeal was lodged on December 29, 1993; he was tried in circuit court within one year, on November 4, 1994. Appellant asks that we overturn McBride because it allows for unequal treatment of like situated individuals in violation of Ark. Const, art. 2, §§ 3, 7, 10, and 18. Because DWI citations may be filed in either circuit or municipal court, he asserts that only those persons cited to municipal court are required to undergo two speedy trial periods. He cites no further authority nor does he advance a convincing argument for his assertion of constitutional violation; it is well established that such arguments will not be considered on appeal. See Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995); Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994).

As to his contention that his right to jury trial has also been impermissibly infringed, this issue was addressed and decided in State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995), in which we held that the burden placed upon the right to a jury trial by requiring a proceeding in municipal court is not impermissible.

b. Chancellor sitting as circuit judge

For his next argument, Cook challenges the authority of a chancellor to sit as a judge in a criminal case. Prior to trial, the appellant filed a motion asserting that Chancellor Don Huffman had “no legal authority to sit as a circuit judge because he was not elected by the voters of the 19th Judicial District as a circuit judge.” According to arguments presented during the pretrial hearing, Chancellor Donald Huffman was sitting in exchange for Circuit Judge Terry Crabtree, both of the Nineteenth Judicial District. The appellant asserted the case should be transferred to a regular circuit judge because the chancellor had no legal authority to sit as a circuit judge in a criminal case.

In asserting that an exchange agreement between a chancellor and a circuit judge is unconstitutional, the appellant relies upon Ark. Code Ann. § 16-13-403 (Repl. 1994), Ark. Code Ann. § 16-13-2703 (Repl. 1994), and Ark. Const, art. 7, § 22. Section twenty-two of article seven of the Arkansas Constitution provides “The judges of the circuit courts may temporarily exchange circuits or hold courts for each other under such regulations as may be prescribed by law.” This Court has recognized that when a chancellor presides over a session of a circuit court, he or she does so as a circuit judge, and not as a chancellor. McEachin v. Martin, 193 Ark. 787, 102 S.W.2d 864 (1937). Further, we have commented that Ark. Code Ann. § 16-13-403 (Repl. 1994), as amended by Act 51 of 1992 (1st Ex. Sess.), authorizes exchanges between circuit judges and chancellors within the same districts-circuits. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993); See also Hewitt v. State, 317 Ark. 362, 877 S.W.2d 926 (1994). Finally, § 16-13-403 specifically provides it is the intent and purpose of the section to permit circuit judges to exchange districts or circuits with chancellors and to permit chancellors to exchange districts or circuits with circuit judges. Accordingly, the appellant’s argument is without merit.

c. Exchange agreement

The appellant next asserts the failure of the trial court to either make the exchange agreement a part of the record or require the prosecutor to do so is reversible error. During the pretrial hearing, counsel for the appellant admitted he was aware that Chancellor Huffman was hearing the case on exchange. After discussion of appellant’s three pretrial motions, the following exchange occurred between the counsel for the appellant and the trial court:

Trial Court: [a] re we ready to proceed?
Counsel: Yes, Your Honor, as far as I know. The only other thing is this issue about the exchange agreement. Now, I know that from prior cases with you that this exchange agreement, apparently is down in the Clerk’s office. And I want the — I don’t know who’s responsible for making that exchange agreement part of the record. I don’t know whether you are or whether the State is.
Trial Court: I am not. I’ve made my exchange agreement. It’s posted. It’s available. If you want, you can go get it.
Counsel: Okay. Well, my position is, I object —
Trial Court: Well, you can make it a part of the record.
Counsel: — to the fact that it’s not made a part of the record. I think that that’s a requirement.
Trial Court: I understand what you’re saying, but it’s not my practice to go and seek and provide.
Counsel: Thank you, Your Honor.

The exchange agreement is not included in the record on appeal.

Arkansas Code Ann. § 16-13-403(a)(2) (Repl. 1994) provides “The agreements shall be signed by the judges so agreeing and entered on the record of the court or courts so to be held.” We have held that § 16-13-403 mandates that the judges, sign the agreement and enter it “on the record.” Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). Although this Court has not addressed the consequences of the failure to enter the agreement on the record, we have commented that the failure to include the agreement is a non-jurisdictional error which may be waived. Id.

Clearly, § 16-13-403 requires that the agreement be “entered on the record of the court.” In the instant case, counsel for the appellant conceded that the agreement was “in the Clerk’s office” and was apparently objecting that the agreement was not included in the record of his case. However, the trial court informed counsel he could make it a part of the record. Since appellant was given the opportunity to make the exchange agreement a part of the record of his case, the relief requested was granted, and we need not consider whether any prejudice resulted. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995).

d. Implied Consent statute

For his fourth and final point, appellant argues the trial judge erred in not declaring the implied consent statute unconstitutional. The appellant filed a pretrial motion seeking to declare the implied consent statute, Ark. Code Ann. § 5-65-205 (Repl. 1993), unconstitutional. The appellant asserted the statute has three different penalty provisions depending on the state of residence of the offender and the status of the offender’s driver’s license, and the unequal penalty provisions violate the due process clause of Ark. Const, art. 2, § 8, and the equal protection clause of Ark. Const, art. 2, § 3 and § 18. The appellant’s motion was denied. The penalty provisions of Ark. Code Ann. § 5-65-205 (Repl. 1993) provide in pertinent part that the office of Driver Services shall:

(c)(1) Suspend the motor vehicle operator’s license for:
(A) A period of not less than six (6) months nor more than one (1) year if the person had not previously refused the test within three (3) years of the refusal in question and if the person had not been convicted of driving while intoxicated or driving while there was one-tenth of one percent (0.10%) or more of alcohol in the person’s blood within three (3) years of the refusal;
(d) If the person is a resident without a license or permit to operate a motor vehicle in this state, the Office of Driver Services shall deny to the person the issuance of a license or permit for a period of six (6) months after the date of the arrest.
(e) (1) If the person is a nonresident, that person’s privilege of operating a motor vehicle in Arkansas shall be suspended for not less than six (6) months.

(emphasis added.)

The appellant asserts that § 5-65-205 also allows for enhanced penalties for an Arkansas resident who has a valid driver’s license and prior convictions, but there are no enhanced penalties for subsequent offenses committed by a resident without a license or a nonresident. The statute does provide for different penalties depending on whether (1) the person is a resident of Arkansas with a valid state driver’s license, (2) the person is a resident of Arkansas without a valid state driver’s license, and (3) the person is not a resident of Arkansas. However, the Equal Protection Clause does not preclude all statutory classifications. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Indeed, we presume the statutes passed by the General Assembly are not unconstitutional and will uphold a classification in the face of an equal protection allegation if there is any basis for the classification. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994). A party challenging a statute must bear the burden of proving it unconstitutional. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). The appellant has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Reed v. Glover, supra.

We merely consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). It is clear that the legislature has created varying penalties for violation of the implied consent law; it is equally clear that possession of an Arkansas driver’s license carries with it the implied obligation to abide by state laws pertaining to driving. It is also significant that residents of Arkansas who drive without a valid driver’s license and nonresidents who drive while their driver’s license or driving privilege as a nonresident has been suspended are subject to additional punishment. See Ark. Code Ann. § 27-16-301 and § 27-16-303 (Repl. 1994). Section 27-16-301 provides it is a misdemeanor for any person to violate any provisions of the Uniform Motor Vehicle Driver’s License Act; the act states that no person shall drive any motor vehicle without a valid driver’s license. See Ark. Code Ann. § 27-16-602 (Repl. 1994). Section 27-16-303 provides that any person whose driver’s license or driving privilege as a nonresident has been suspended and who drives any motor vehicle upon the highways of this state is guilty of a misdemeanor. For these reasons, it cannot be said that Section 5-65-205, and its varying punishments, are completely devoid of a legitimate purpose.

The appellant further asserts the statute is unconstitutional because a nonresident’s driving privileges may be suspended indefinitely under § 5-65-205(e)(l); however, he does not have standing to challenge the validity of § 5-65-205(e)(l) because he has not suffered injury as a result of the provision, nor does he belong to a class which is prejudiced by the law. Hamilton v. Hamilton, supra.

Affirmed.


source: Caselaw Access Project

author: Andree Layton Roaf, Justice.

license: Public Domain

text:
    Chad Eugene JONES v. STATE of Arkansas
    CR 95-397
    907 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Andree Layton Roaf, Justice.

Appellant Chad Eugene Jones was convicted of first-degree murder and second-degree battery and was sentenced to thirty-two years imprisonment. On appeal, Jones contends that (1) the trial court abused its discretion by refusing to allow him to testify in rebuttal of evidence that he had previously been convicted of a felony and (2) the trial court abused its discretion by denying his amended motion for a new trial. We find no reversible error and affirm the judgment.

On December 18, 1993, Tim McGarity and two friends were riding in McGarity’s Subaru. Several other friends were following the Subaru in separate vehicles. The group entered a Taco Bell parking lot adjacent to Harvest Foods in Sherwood. McGarity thought he recognized a white truck parked in the Harvest Foods parking lot as the vehicle occupied by two young men who had made “gestures” at him earlier that evening. McGarity then drove into the Harvest Foods parking lot, and he and Clay Cochran got out of his vehicle and approached Shan Messer and James Gross, the two people standing near the white truck, with the stated intention of fighting them. After McGarity and Cochran began fighting, the other friends who were following them also entered the Harvest Foods parking lot and began getting out of their vehicles and congregating around the fight. A blue Honda Accord carrying friends of Gross and Messer then pulled in alongside the white truck, and shots were fired toward McGarity and his friends. Appellant Jones testified he was riding in the Honda with Jason Carter and Michael Webb. In all, approximately fifteen shots were fired. McGarity was wounded in the leg, and Jason Hatcher, who had been riding in one of the vehicles following McGarity’s Subaru, was fatally shot in the back.

Appellant Chad Jones, James Gross, Jason Carter, and Michael Webb were charged with first-degree murder and first-degree battery. At the appellant’s trial, several witnesses testified that they observed both the appellant and James Gross firing guns. Testimony also indicated that the Jones group had at least two handguns and a rifle that evening. The fragments recovered from the body of Jason Hatcher were too small to determine from which firearm the fatal bullet had been fired. Appellant testified that he did not fire or even hold a gun during the incident.

Appellant first argues the trial court abused its discretion by refusing to allow him to testify in rebuttal of evidence that he had previously been convicted of a felony. During direct examination, the appellant testified he had never been convicted of a felony. On cross-examination, Jones again denied having any felony conviction. The deputy prosecuting attorney then stated “Isn’t it true that in case number Eighty-nine One Thirty-five you were found guilty of breaking or entering?” Counsel for the appellant requested permission to approach the bench and, subsequently, he requested a brief recess to examine the state’s document and consult with his client. After the brief recess, counsel for the appellant stated there was no objection.

After the defense rested its case, the state sought to introduce evidence of the appellant’s prior conviction during rebuttal. During the discussion, the following exchange occurred:

Counsel for defense: Your Honor, we would certainly not object to any certified record [of the conviction].
Trial Court: All right.
Counsel for defense: However, we would ask for permission to call the defendant to the witness stand on that one issue.

The prosecution objected, stating, “They had an opportunity to address that while the defendant was on the stand.” After further argument, the trial court stated, “The court will permit him [Jones] to come back on that point. You can introduce that.” A certified copy of the judgment indicating the defendant pled guilty to breaking or entering in case number CR89-135 was then admitted into evidence, with the defendant’s stipulation. Jones had received a three year suspended sentence for the earlier conviction.

At the conclusion of the state’s rebuttal, counsel for the defense then sought to call the defendant as a witness. The state again asserted that the appellant lost any opportunity to explain the conviction when he denied having any prior convictions during direct examination. The following exchange then occurred:

Counsel for defense: Judge, what this would be about — first off, we’re not talking — well, I guess in a way we’re talking about prior inconsistent statements from the first statement he made when I asked him this final question to the last one. But at that point he wasn’t impeached. He was not impeached until they put on their proof. At that point, I am entitled — that is where — that is where — the state is at that point — that is where — they have to give him an opportunity to explain. And it was not done. That’s what it says under the rules, if the witness is afforded an opportunity.
Trial Court: Did he not have an opportunity before he left the stand?
Counsel for defense: We did not ask him. I admit we did not ask him any further questions.
Trial Court: But you had the opportunity, did you not?
Counsel for defense: Yes, we did, Judge.
Trial Court: On redirect?
Counsel for defense: Yes, we did, Judge.
Trial Court: And you chose not to pursue it on redirect. The Court’s not going to allow him either because he had the opportunity.
Counsel for defense: Thank you, your Honor.

The trial court may have misled appellant by its earlier statement that Jones would be allowed to testify in rebuttal of the conviction record; however, appellant did not proffer the substance of the excluded testimony after the court made a final ruling to disallow his rebuttal. For this reason, the issue is not preserved for appeal. It is well established that error may not be predicated upon a ruling which excludes evidence unless both a substantial right of the party is affected and the substance of the excluded evidence was made known to the trial court by offer of proof or was apparent from the context within which the questions were asked. Roe v. State, 310 Ark. 490, 837 S.W.2d 474 (1992); A.R.E. Rule 103(a)(2). Here, the appellant did not make a proffer of the excluded testimony, nor was the substance of the excluded testimony apparent from the context.

On appeal, the appellant asserts he was entitled to explain the conviction, but he does not indicate what testimony he would have presented. In his motion for new trial, the appellant asserted the conviction should not have been admitted because the appellant was entitled to have that conviction expunged. This argument, however, was not presented to the trial court during the appellant’s trial. An argument not presented to the trial court need not be considered on appeal. Richmond v. State, 320 Ark. 566, 899 S.W.2d 64 (1995).

For his second point on appeal, Jones contends the “trial court should have granted [him] a new trial because the court’s refusal to allow him to testify in rebuttal of the state’s evidence that he had previously been convicted of felony prevented him from having a fair trial.” In his motion for new trial, the appellant for the first time asserted he was entitled to answer that he had no prior felony conviction because he was eligible to have his prior conviction expunged.

We will not reverse the refusal to grant a new trial unless we find the trial court abused its discretion. Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). Since we find no reversible error in prohibiting the rebuttal testimony, it follows that the trial court could not have abused its discretion in denying the appellant’s amended motion for a new trial.

For the reasons stated, the conviction is affirmed.


author: Per Curiam.

text:
    Heather Patrice HOGROBROOKS v. Steve ROUTON, Forrest City Municipal Judge
    95-879
    906 S.W.2d 687
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      Appellant, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Deputy Att’y Gen., for appellee.
   Per Curiam.

Attorney Heather Patrice Hogrobrooks was held in contempt by Judge Steve Routon of the St. Francis County Municipal Court. A fine was assessed against her. Thereafter, Judge Routon refused to allow Ms. Hogrobrooks to represent clients before the Municipal Court on the ground that the fine remained unpaid.

On October 19, 1994, Ms. Hogrobrooks filed in St. Francis Circuit Court a document entitled “Writ of Mandamus, Writ of Prohibition, and Request Pursuant to Rule 37 for Post Conviction Relief’ in which she sought to have the Municipal Court Clerk file pleadings she had prepared on behalf of a client in a certain criminal case. She also sought relief from the Municipal Court ruling so she could participate as counsel in the case before the Municipal Court. In the alternative she asked for dismissal of the charges against her client. The case was assigned the number CIV-94-244 in the St. Francis Circuit Court.

An amended version of the pleading was filed by Ms. Hogrobrooks on December 22, 1994. In it she complained that, despite notice to Judge Routon, no response to her earlier petition had been filed. The pleading also recited difficulty she had with respect to getting a hearing date on her petition. The record before us contains a letter, dated December 21, 1994, from a deputy prosecutor to Ms. Hogrobrooks pointing out that, rather than seeking mandamus and prohibition, her client should have appealed from the Municipal Court conviction. Also contained in the record is a letter from Circuit Judge Oily Neal, dated December 22, 1994, stating he had called Ms. Hogrobrooks’s office in an attempt to set a hearing on her petition but his call was not returned. He stated in the letter that he could hear the matter on January 13, 1995. The record does not show whether a hearing was held.

On August 11, 1995, Ms. Hogrobrooks filed in this Court a document styled, “Heather Patrice Hogrobrooks, Petitioner v. Forrest City Municipal Court, Respondent — Petition for Writ of Certiorari and Petition for Writ of Mandamus Directing Judges of the First Judicial District to Rule in St. Francis County Cause No. CIV. 94-244.” In her request for certiorari she asks this Court to prohibit Judge Routon from preventing her from practicing in the Municipal Court. She has since filed a motion in this Court asking that we stay proceedings in yet another Municipal Court case in which she has been denied the right to act as counsel. In her request for mandamus she asks that we order the Circuit Court to rule in CIV-94-244.

In its response on behalf of Judge Routon, the Attorney General correctly points out that the Supreme Court has held that it lacks supervisory jurisdiction to issue an extraordinary writ to a municipal court. Ex parte Dame, 162 Ark. 382, 259 S.W. 754 (1923). The Attorney General opposes the motion for stay on the same ground, citing in addition to the Dame case Howell v. Todhunter, 181 Ark. 250, 25 S.W.2d 21 (1930), in which we suggested the only way this Court may control the actions of a municipal court is through review of actions taken by a circuit court with respect to a municipal court. The Attorney General takes no position on the mandamus petition.

We deny the petition for certiorari to the Municipal Court and the motion to stay proceedings there.

We must also deny the mandamus petition. In his response, the Attorney General points out that the St. Francis Circuit Court has not been named as a party. We add to that statement that mandamus runs to a particular judge rather than a court, and no judge serving the St. Francis Circuit Court has been named as a party. See State v. Craighead County Board of Election Commissioners, 300 Ark. 405, 779 S.W.2d 169 (1989) (a Writ of Mandamus is directed to a ministerial officer). The record does not show that either Judge Neal or any other judge of that Court has been served with the pleadings in this original action before this Court. The Attorney General was served but filed no response until we asked him to do so.

Ms. Hogrobrooks recognizes the fact that Judge Neal was not named directly as a party in her mandamus petition but she states: “It should be no impediment for relief that the judges of the St. Francis County Court were not named as respondents. Neal v. Jimmie L. Wilson, [321 Ark. 70, 900 S.W.2d 177] (1995), Sup. Ct. No. 95-536 (June 12, 1995).” In that case, we were asked to issue certiorari to Judge Oily Neal who was not named as a party, and we said:

In conclusion we touch on respondent’s brief mention that Judge Neal is a necessary party to the request for certiorari proceeding. He cites no legal authority and even fails to cite or argue ARCP Rule 19, Arkansas’s rule concerning the joinder of persons needed for a just adjudication. We have held that, absent convincing argument or citation of authority, we decline to address the response or argument to a petition for certiorari. We would simply state that neither Judge Neal nor Judge Lineberger has an interest related to the subject of this action between petitioner and respondent, and those judges’ presence, as parties, has nothing to do with whether complete relief can be accorded in this case. Cf. Bridges v. Arkansas Motor Coaches Limited, Inc., 256 Ark. 1054, 511 S.W.2d 651 (1974); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973); State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W.2d 33 (1969)(where petitions for writs of certiorari actions were decided by the court without trial judges being joined as parties). We would also point our that Judge Neal has never requested to oe a party to this case.

The gravamen of that decision was the lack of convincing argument or authority. We point out that the remedy sought there was certiorari rather than mandamus. The result was the quashing of certain orders of the court rather than an order to a judge to perform his duty as is sought here. We do not issue mandamus to a judge who has not been made a party to the petition or served with the pleadings.

Petition denied.

Brown and Roaf, JJ., concur.


text:
    Charles Allen McGHEE v. STATE of Arkansas
    CR 95-368
    906 S.W.2d 677
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      William M. Howard, Jr., for appellant.
    No response.
   Per Curiam.

Appellant, Charles Allen McGhee, through his counsel, William M. Howard, Jr., moves to file a belated brief. Counsel Howard states by motion that he requested additional time to file the brief not realizing he had previously been granted a final extension resulting in a due date of September 1, 1995. The record in the Supreme Court Clerk’s office shows that the brief was indeed due on September 1, 1995, as the result of a final extension.

The motion for belated brief is granted. A copy of this opinion will be sent to the Committee on Professional Conduct.


text:
    Bruce Earl WARD v. STATE of Arkansas
    CR 93-823
    906 S.W.2d 685
    Supreme Court of Arkansas
    Opinion delivered October 2, 1995

      William R. Simpson, Jr., Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by; Oían W. Reeves, Senior Asst. Att’y Gen., for appellee.
   Per Curiam.

Bruce Earl Ward was convicted of capital murder and sentenced to death. The conviction was affirmed on appeal as to Mr. Ward’s guilt, but we remanded the case for resentencing. Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992). A resentencing trial was conducted on February 9, 1993, and Mr. Ward was again sentenced to death. A notice of appeal was filed, and a record filed with this Court.

Counsel for Mr. Ward asserted there were numerous errors in the transcript of the resentencing hearing. We stayed the appeal and remanded the case to the Trial Court to settle the record. The Trial Court held hearings in an attempt to settle the record and entered a long list of corrections based on testimony, primarily by the attorneys involved, as to misidentified speakers as well as omissions which could be reconstructed. The Trial Court, could not, however, reconstruct the record with respect to a number of bench conferences which were not recorded stenographically. The reporter has destroyed the tape recording of the trial.

In his order responding to our order to settle the record, the Trial Court states, in part:

5. That, in spite of the best efforts of both the court and counsel for both parties, and because of Ms. Davis’ [the court reporter] incompetence, significant errors and omissions remain in this record. Even though the court has been able to correct the errors and omissions listed in paragraph four, the errors and omissions which remain are such that the record has not been settled. These errors and omissions include, but are not limited to, the absence of transcripts of at least seven bench conferences during which discussions between counsel and the court took place.
* * t-
7. That the record of the trial in this matter has not been and cannot be settled.

In response to Mr. Ward’s motion for reversal of the death sentence and for a new trial the State cites Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988), in which we denied a new trial upon concluding that, despite omissions which apparently could not be cured, the record before us was sufficient. In that case, the matters missing, due to a courthouse fire, were recordings of pretrial hearings. We stated that the record before us was sufficient to establish what went on the hearings and pointed out that no one had requested that the hearings in question be recorded as was required by a statute subsequently omitted from the Code.

By contrast, in this case it is apparent that the omitted matters which cannot be reconstructed should have been recorded but were not. The State can point to nothing in the record before us which cures the error, and we have no means of ascertaining that the failure to have the missing matters in the record is not prejudicial to Mr. Ward. If a record of trial is insufficient to permit a full review of the proceedings from which an appeal has been taken, we have no alternative but to reverse and order a new trial. Holiday Inns v. Drew, 276 Ark. 390, 635 S.W.2d 252 (1982).

The death sentence is reversed, and the case is remanded for a new trial on sentencing only.


author: Bradley D. Jesson, Chief Justice. Robert L. Brown, Justice,

text:
    Patricia LOVE v. SMACKOVER SCHOOL DISTRICT et al.
    94-1338
    907 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995
    [Petition for rehearing denied November 20, 1995.]

      Mitchell, Blackstock & Barnes, by: Marcia Barnes, for appellant.

      W. Paul Blume, for appellees.

      Brown, L, would grant.

   Bradley D. Jesson, Chief Justice.

This case presents a question under the Teacher Fair Dismissal Act, codified at Ark. Code Ann. § 6-17-1501 to 1510 (Repl. 1993). Appellant Patricia Love claims on appeal that she was entitled to notice that her contract with the district would not be renewed for the 1993-94 school year. The trial judge determined that Ms. Love was not a “teacher” as contemplated by the Fair Dismissal Act and therefore not entitled to notice of nonrenewal. We reverse on that point and hold that Ms. Love was a teacher under the language of the Act. Since the trial judge did not expressly rule on the amount of compensation to which Ms. Love is entitled, we remand to allow that determination.

On December 11, 1992, district superintendent Russell Johnson wrote a memo to the school board indicating the need to hire a “half-time, long-term substitute” for the sixth grade at Smack-over Elementary School. The full-time teacher was being reassigned to new duties for half a day as assistant principal. The board met on December 16, 1992, and, according to minutes of that meeting, voted that the district hire a “half-time, long-term replacement.”

Ms. Love, who has a degree in elementary education, had been student teaching at Smackover Elementary. Upon being informed that the half-time teaching position was available, she visited the office of superintendent Johnson on December 19, 1992, and signed a contract. The contract provided that the district, by a majority vote of directors present at the December 16 meeting, agreed to employ Ms. Love as a “half-time elementary teacher” for a period of 89 days at a salary of $4,005.00. The contract further provided as a condition of employment that Ms. Love have a state teaching certificate. The contract was signed on behalf of the district by use of rubber stamp signatures of the board president and secretary.

During the eighty-nine days of her contract, Ms. Love signed in daily on the teacher, rather than the substitute, sign-in sheet. She was given a form for the teacher retirement program, her own lesson-plan book, and sick leave. Other teachers considered her a member of the teaching staff. On occasion she also substituted for other teachers on her afternoons off for which she was paid by separate check.

The contract period was completed in June of 1993. Ms. Love learned in July that she would not be rehired for the position in the coming year. In April of 1994, she filed suit in Union County Circuit Court. She alleged that, because she had not received notice of nonrenewal by May 1, as mandated by Ark. Code Ann. § 6-17-1506(a) (Repl. 1993), her contract was automatically renewed.

A hearing was held at which superintendent Johnson and school board members testified that they had only intended to hire a long-term substitute, not a full-fledged teacher. The trial court agreed with the district, finding that Ms. Love was not a teacher covered by the Fair Dismissal Act. In ruling from the bench, the court found that the district had no intention of hiring anyone other than a substitute and that those portions of the contract which indicated otherwise were simply clerical errors.

The term “teacher” is defined simply and precisely by the language of the Act. Any person, other than a superintendent or assistant superintendent, employed in an Arkansas public school district, who is required to hold a state teaching certificate as a condition of employment, is a teacher. Ark. Code Ann. § 6-17-1502(a)(l) (Repl. 1993). Ms. Love was employed by the district and required to be certified. She therefore met the Act’s two criteria and was, for its purposes, a teacher. It does not matter if she was denominated a part-time teacher, a half-time teacher, or a replacement. The Act makes no such distinction in its definition. It simply provides that if any person is employed by the district and required to be certified, that person is a teacher, and the applicable provisions of the Act are triggered. See Western Grove Sch. Dist. v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994). In that case, we considered the certification requirement in determining whether a coach was a teacher under the Act.

Arkansas Code Annotated § 6-17-1506(a) (Repl. 1993) provides that every contract between a teacher and the board shall be renewed for the next school year unless the teacher is notified of nonrenewal by May 1 of the contract year. It is undisputed that Ms. Love did not receive this statutory notice. Therefore she is entitled to the remedies provided by the Act.

The district argues that Ms. Love’s contract should be void because there was either a mistake among the parties as to her status or that Ms. Love knew she was only to be a substitute. There is disputed evidence on this point. But ultimately, what the parties thought about the longevity or renewability of the contract is of little consequence in this instance. Arkansas law requires that school districts strictly comply with the notice provisions of the Act. Ark. Code Ann. § 6-17-1503 (Repl. 1993); Hamilton v. Pulaski County Sp. Sch. Dist., 321 Ark 261, 900 S.W.2d 205 (1995). As a matter of law, once Ms. Love was employed by the district and required by the terms of her contract to be certified, she was covered by the Act.

The district further argues that superintendent Johnson did not have the authority to enter into the contract with Ms. Love. This argument is based upon the provisions of Ark. Code Ann. § 6-13-620(4)(A) (Repl. 1993), assigning to school boards the power to employ and make contracts with teachers. The school board, it is claimed, did not in this instance hire Ms. Love because Ms. Love’s name was not mentioned at the board meeting or in the minutes. It is true that Ms. Love was not hired at the school board meeting by name. However, the board approved a recommendation that a half-time replacement be hired. Ms. Love was employed for that position three days later. The superintendent executed this decision using a standard teacher form contract bearing the rubber stamped signatures of the board president and secretary. (The use of these stamped signatures was authorized by the board.) Nothing in the law requires the board to actually name the person it purports to employ. In fact, superintendent Johnson and board members testified that, while the board, as a matter of custom, usually designated the teachers it would hire by name, there were exceptions. In short, Ms. Love had a written contract signed by board members containing provisions which entitled her to assert her rights under the Teacher Fair Dismissal Act.

Because the trial judge ruled that Ms. Love was not covered by the Act, she did not have the opportunity to address the question of damages. We remand the case so that this determination can be made in light of our ruling. See Carson v. Hercules Powder Co., 240 Ark. 887, 402 S.W.2d 640 (1966).

Reversed and remanded.

Brown and Roaf, JJ„ dissent.

Robert L. Brown, Justice,

dissenting.

The majority reverses without discussing these findings of fact by the circuit court: (1) Patricia Love was hired by the Smackover School District as a long-term substitute teacher and not as a teacher under the Teacher Fair Dismissal Act; (2) the School District had no intention of hiring Ms. Love as a permanent teacher; and (3) the evidence indicates that Ms. Love knew she was hired only as a substitute and not as a permanent teacher. The majority reverses without addressing the crucial issue in this case which is whether the circuit court’s factual findings are clearly erroneous. See Wood v. Corner Bank, 315 Ark. 200, 866 S.W.2d 385 (1993); Wilson v. Allen, 305 Ark. 582, 810 S.W.2d 42 (1992); Sturgis v. The Lee Apparel Co., 304 Ark. 235, 800 S.W.2d 719 (1990); Taylor's Marine, Inc. v. Waco Manuf., Inc., 302 Ark. 521, 792 S.W.2d 286 (1990); City of Crossett v. Switzer, 302 Ark. 239, 788 S.W.2d 738 (1990). It was the circuit court, of course, that heard all the evidence and observed witness demeanor. Moreover, on appeal we have stated time and again that we view the evidence in the light most favorable to the appellee. See, e.g., Rich Mountain Elec. Coop. v. Revels, 311 Ark. 1, 841 S.W.2d 151 (1992); City of Pocahontas v. Huddleston, 309 Ark. 353, 831 S.W.2d 138 (1992); Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989); McCartney v. McLaughlin, 296 Ark. 344, 756 S.W.2d 907 (1988). Despite this authority, the majority opinion does not explain why the clearly erroneous rule is not applicable.

What decides the case for the majority is a question of law — the existence of a written document entitled “contract.” The decision looks no further than that, even though the litigation at trial centered on whether the contract was a mistake and on whether Love knew that she was hired as a long-term substitute teacher and not as a regular teacher. While the majority’s approach has the appeal of simplicity, it discounts the considerable evidence that no permanent teacher contract was intended by the School District and Ms. Love and that Ms. Love was aware that she was hired solely as a substitute. A compendium of that evidence follows:

1. When Ms. Teri Philyaw moved into a half-time administrative position with the school in January 1993 due to increased enrollment, a long-term substitute teacher was needed for Ms. Philyaw’s morning classes. That is the position that Ms. Love filled.

2. There was uncertainty about whether the increased enrollment would continue into the 1993-94 school year.

3. Ms. Love was hired from January 25, 1993, to June 4, 1993, to teach half days at one-half the pay of a long-term substitute teacher, which was $45 per day for total compensation of $4,005. This pay was less than the pay for a half-time regular teacher.

4. The School Board never voted to hire Ms. Love as a regular teacher.

5. Ms. Love knew that the half-time position she was filling might not exist for the following school year.

6. On May 21, 1993, Ms. Love applied to the Smackover School Superintendent for a half-time sixth grade teaching position “currently available” or “any other half-time and/or full-time positions that may become available in the future.” She was not hired.

7. On August 19, 1993, Ms. Love applied to the Smackover School Superintendent for a teacher’s aide position as well as any other position that might be available. She was not hired.

8. On April 4, 1994, Ms. Love filed suit in circuit court for declaratory relief and a writ of mandamus.

The majority decides the issue of teacher status solely as a matter of law because Ms. Love was issued a “contract.” I cannot submit to that rigidity. The facts must control this case. But under the majority’s rationale, it would make no difference how vast and conclusive the facts were supporting Ms. Love’s substitute status or how egregious the error was in issuing the contract.

The federal district court has recognized that the mere issuance of a contract did not control in an analogous situation. See Gillespie v. Board of Educ. of North Little Rock, 528 F.Supp. 433 (E.D. Ark. 1981), affirmed 692 F.2d 529 (8th Cir. 1982). In Gillespie, a guidance counselor for the school was mistakenly issued a counselor contract. She had previously been informed that the guidance counselor position would be eliminated due to declining enrollment at the school and that she would be employed as a regular teacher at less pay. She sought to enforce the guidance counselor contract under the Teacher Fair Dismissal Act. The district court and court of appeals, however, recognized that a clerical mistake had been made in issuing the contract and held in favor of the school district. That type of analysis, where the facts are examined, should be followed in the instant case.

Now Ms. Love presumably will be reinstated to serve 89 days as a half-time teacher at some point in the school year irrespective of whether Ms. Philyaw has returned to the classroom full time or not, or paid an equivalent amount. The awkwardness of such a remedy points up the fact that the Teacher Fair Dismissal Act simply did not contemplate the automatic renewal of long-term substitute teachers for successive school years where contracts are erroneously issued.

I would look to the facts to decide this case and respectfully dissent.

Roaf, J., joins.


author: Bradley D. Jesson, Chief Justice. Glaze, J., Robert L. Brown, Justice, Donald L. Corbin, Justice,

text:
    Timothy Allen OLIVER v. STATE of Arkansas
    CR 94-113
    907 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995
    [Petition for rehearing denied November 13, 1995.]

      Dana A. Reece, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.

      Corbin and Brown, JJ., would grant.

   Bradley D. Jesson, Chief Justice.

The appellant, Timothy Oliver, was convicted of two counts of capital murder and sentenced to life without parole. On appeal, he asserts three points of error: (1) the trial court erred in refusing to hear all the evidence for his motion to suppress hearing and in admitting his confession into evidence when he could not have knowingly, voluntarily, and intelligently waived his constitutional rights; (2) the trial court erred in admitting his confession because it was the fruit of an unlawful arrest; and (3) jury misconduct, of which he was unaware until after trial, prejudiced his chances for a fair trial. We find no merit to his arguments and affirm.

On March 24, 1992, the bodies of Bobby and Charlene Friend were discovered in the bedroom of their home in DeQueen, Arkansas. Both husband and wife were victims of bludgeoning and multiple stab wounds. The Arkansas State Police attempted to locate the couple’s adopted son, Michael, to inform him of the event. Charlene Friend’s car, a silver Dodge Conquest, was missing from the residence and was later located in Hot Springs at a home where George Rhoades, a friend of Michael’s, was living. At approximately 3:00 a.m. on March 25, 1992, Investigator Hayes McWhirter of the State Police stopped Rhoades and the appellant, Timothy Oliver, age fifteen, in Hot Springs. Both boys voluntarily went to the Hot Springs Police Department, where Oliver initially told McWhirter that he did not know where the city of DeQueen was located. A short while later, in the presence of his mother, Oliver gave the following statement in the absence of Miranda warnings:

This is taken at 4 a.m. in the Hot Springs Police Department. On Saturday afternoon (March 21, 1992) around 5 p.m., me, Mike Friend, Mo-Jo (George Rhoades) and Ricky Dawson were in Mo-Jo’s truck and went to DeQueen and the first place we stopped was at the skating rink. I went in to skate, Ricky was outside and Mo-Jo, or George, took Mike home. He was gone about 30 minutes. Mo-Jo came in and started skating. We got ready to leave the skating rink around 11 p.m. When I got outside, Mike was in the silver car. Me, Mo-Jo, Vickie and James Watson who lives in DeQueen went to the Pizza Hut. Mike wasn’t with us. We ate pizza and had told Mike to meet us at the gas station. We met Mike at the gas station at DeQueen. We followed Mike back to Hot Springs. He was driving the silver car. He turned off when we got to Hot Springs. We saw Mike Sunday afternoon and he spent the night at Mo-Jo’s house Sunday night.

Oliver signed this statement and left the police station shortly after the interview. Later on the same date, Friend confessed to the double homicide of his parents and also implicated his three friends, Oliver, Rhoades, and Ricky Dawson. Oliver was arrested pursuant to a warrant the next day, March 26, 1992. After being verbally advised of his Miranda rights and signing a waiver-of-rights form, Oliver gave a detailed confession to police, which included the following:

Sometime back, Mike Friend talked to me, Mo-Jo, George Rhoades, and Ricky Dawson about wanting to kill his dad, Mike’s dad. Mike has talked to all of us at different times about how to kill his step-father, Bobby. We have talked about using poison and shooting him. Friday night, 3/20 of ’92, we were at George’s house talking about going to DeQueen Saturday night. Saturday afternoon we were at George’s house. We talked about how we were going to kill him and what everyone was going to use. I decided I would use the ball bat, George would use some type of two-bladed knife, sharp on both sides. Ricky was going to use a large stick about the length of a baseball bat and Mike was going to be using an aluminum sword, a practice sword. It was only sharp on the end. We all loaded up in George’s truck and went to DeQueen. We hadn’t been smoking or using any drugs or drinking. We got to DeQueen, and me and George got out at the skating rink. Mike and Ricky were in the truck riding around. Around 11 p.m., Mike and Ricky picked me and George up. We all went to Pizza Hut and had a pizza. After we left the Pizza Hut, we went straight to Mike’s house. On the way out there, Mike told everyone what he wanted them to do. Mike had already told us in Hot Springs that his father had 3,000 dollars in his billfold, and that he would split the money with us to help him kill his dad. Mike told us he would go in the house first because he knew his dad had a gun under the mattress and would keep him from getting it. Mike went in the house first, then George, then me, and Ricky last. Mike went to his father’s side of the bed. I was behind Mike. George was at the end of the bed by his mother’s side, and Ricky at the end of the bed. Ricky turned the light on and Mike started stabbing Dad as fast as he could. The end of the sword bent. His dad raised up and I hit him in the left side of the head above his eye. Mike took the bat from me and hit his dad in the head. I got the bat back and hit him in the head three more times while his head was laying on the nightstand. Ricky took the bat from me and hit the lady with it. She was face down when Ricky hit her. George hit the man in the head with the bat also before Ricky took the bat. I saw Ricky hit the lady twice with the bat. I guess George cut her throat because he had talked about it before we got to the house, and he had the razor blade or whatever it was. Mike was screaming at his dad. I guess he was cussing him out. Mike told Mo-Jo to hand him his. mother’s purse. Mike got the keys to the Chrysler out and some money. Mike already had some money in his hand from his dad’s billfold. We then went to the front room, living room, Mike knocked the end table over and I knocked the VCR off the T.V. Me and Ricky ran down to the truck. I forgot to tell you earlier that we parked the truck down the road when we first got there and walked to the house. This way no one would see the truck at Mike’s house. Mike and George ran around the side of the house for something, then I saw the headlights come on in the silver Conquest car. Mike flagged us down and told us to follow them to the gas station. I think we went to the gas station at the four way stop in DeQueen. When George got out of the car, he had changed pants. He had on a pair of shorts. While he was in the house, he had on long pants. Between DeQueen and Hot Springs we pulled over and threw everything in the woods. We threw the broken stick, sword, razor blade, and George’s gloves in the woods. Everything is on the right hand side of the highway. I forgot to tell you, George had on a pair of gloves while he was in the house. We all then went back to Hot Springs to George’s house. We didn’t talk about it because every time it was mentioned, someone would say not talk about it. I know the baseball bat is at George’s house. It is black with a brown handle. Later Sunday, we talked about how everyone did what. Mike said he was sorry that there wasn’t any money. We said that we would say nothing to no one. Mike said if we got caught he would take the blame.

Oliver filed a motion to suppress both statements. Following a Denno hearing, the trial court suppressed the first statement, but held the second statement was admissible. Prior to trial, the trial court ruled that the State was prohibited from seeking the death penalty under Thompson v. Oklahoma, 487 U.S. 815 (1988), as Oliver was less than sixteen years of age at the time of the commission of the offense. At trial, Oliver was found guilty of two counts of capital murder and sentenced to life without parole. While Oliver filed a motion for new trial, neither the abstract nor the record reflects whether the trial court ruled on the motion. Oliver filed a timely notice of appeal.

I. Admission of confession

Oliver asserts that the trial court erred in refusing to hear the testimony of his expert, Dr. Douglas Stephens, at a proposed re-opened Denno hearing. The original Denno hearing was held on May 17, 1993. After hearing testimony of all the witnesses, the trial court denied the motion to suppress. However, at the request of Oliver’s counsel, the trial court agreed to reopen the hearing to permit Oliver to present the testimony of Dr. Stephens, who was absent from the scheduled hearing. One month after the original hearing, Oliver’s counsel sent a letter to the trial court, in which she enclosed Dr. Stephens’s report.

On the first day of trial, June 21, 1993, during the prosecutor’s opening statement, Oliver’s counsel realized that the trial court had not yet reopened the suppression hearing, and approached the bench. Due to the fact that Investigator McWhirter, whom Oliver’s counsel needed present for the hearing, had been released for the day, the trial court agreed to recess for the day and hold a re-opened Denno hearing the following morning. The trial court instructed the parties:

I want the lawyers here by 8:30. I may be five minutes late. We are usually here by 8:35. We have had a lot of people tardy today and it delays everything, so I want y’all to put your watches on tonight and be here on time so we won’t have so many delays and we won’t have to look for you between every break. Does everybody understand that? Let’s get started at 8:30 in the morning. Somebody tell Officer McWhirter to be here at 8:30 in the morning.

According to counsel for Oliver, she arrived around 8:45 a.m. the following morning. The record indicates that the trial court conducted an in camera hearing at 8:55 a.m. Noting that counsel had been late for every hearing the preceding day, the trial court held her in contempt, fined her $100.00, and refused to allow Oliver to reopen the Denno hearing to present the testimony of Dr. Stephens.

The trial court’s refusal to reopen the hearing can be likened to a denial of a motion for continuance. Failure to exercise due diligence alone can be the basis to deny a motion for continuance. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). Arkansas Criminal Procedure Rule 27.3 provides for a grant of a continuance “only upon a showing of good cause”; the denial of a motion for continuance is within the sound discretion of the trial court and will not be reversed absent a showing of abuse. Id.

The State incorrectly asserts in its brief that even if the trial court’s decision in disallowing Oliver to reopen the hearing constituted an abuse of discretion, any error was harmless, as the testimony of Dr. Stephens was admitted during his casein-chief. While it is true that the jury was able to hear Dr. Stephens’s testimony that Oliver had a mental age of 12, an IQ of 74, and that his abilities to premeditate and to weigh the consequences of his actions were limited, the admission of this testimony at trial would not remedy the failure to admit this testimony at the Denno hearing. We need not reach this issue, however, as we cannot conclude, in light of the facts before us, that the trial court committed error under the circumstances. In light of counsel for Oliver’s tardiness and lack of diligence in offering Dr. Stephens as a witness, we hold that the trial court’s refusal to reopen the suppression hearing during the trial did not constitute an abuse of discretion.

Oliver further asserts that the trial court erred in admitting his confession when he could not have knowingly, voluntarily, and intelligently waived his constitutional rights. When reviewing the voluntariness of confessions, we make an independent determination based on the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995). In determining whether a confession was voluntary, we consider the following factors: “age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment.” Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985), quoting Barnes v. State, 281 Ark. 489, 665 S.W.2d 263 (1984).

Two factors are pertinent when considering the totality of the circumstances: (1) the statements made by the interrogating officer, and (2) the vulnerability of the defendant. Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987), citing Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Oliver concedes that, with regard to the first factor, the statements made by Investigator McWhirter, little weighs in his favor, as the officer made no threats or promises to Oliver in exchange for his statement. McWhirter merely informed Oliver that the other defendants who had been arrested were making statements, and inquired as to whether Oliver wished to make a statement as well. In contrast, Oliver asserts that the second factor, his vulnerability, precluded him from making a knowing and intelligent waiver of his constitutional rights.

Oliver was fifteen years old at the time of his arrest and subsequent confession. Although youth is a factor, it alone is not a sufficient reason to exclude a confession. Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985). See also Smith v. State, supra; Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977). While officers contacted Oliver’s mother to be present during his first statement, she was not present during his second incriminating statement. We have recognized, however, that “[a] minor is capable of making an admissible voluntary confession, there being no requirement that he have the advice of a parent, guardian, or other adult.” Douglas v. State, supra, citing Mosley v. State, 246 Ark. 358, 438 S.W.2d 311 (1969).

Oliver also claims that his intelligence level made comprehension of his Miranda rights impossible. There was evidence presented at trial that, at the time of his confession, he was in the seventh grade after having failed three grades, and had a second-grade reading level, an IQ as low as 74, and a mental age of a twelve-year-old. We have held many times that a low intelligence quotient, in and of itself, will not render a waiver of rights involuntary where the evidence shows the waiver was knowing and voluntary. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992); Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990); Hart v. State, 312 Ark. 600, 852 S.W.2d 312 (1993).

At the Denno hearing, Detectives Terry Threadgill and Jerry Cotton of the Hot Springs Police Department both testified that they verbally advised Oliver of his rights at the scene of his arrest. Investigator McWhirter testified that, prior to his March 26 interview of Oliver, he explained the waiver-of-rights form to him, and Oliver appeared to understand it. McWhirter and Little River County Chief Deputy Ken Sutton witnessed Oliver initial each response and sign the bottom of the form. McWhirter testified he was aware that Oliver was fifteen years old and in the seventh grade, but that Oliver told him that he could read and write. McWhirter listened as Oliver related his version of the murders, then handwrote a statement as Oliver repeated the story. McWhirter then gave the written statement to Oliver to read. At the end of the statement, Oliver had McWhirter add the following change to the end of the statement, “The razor is on the left side of the road.” In contrast, the statement had earlier indicated that the razorblades and other evidence had been thrown on the right side of the highway.

While no experts testified at the Denno hearing, Oliver’s aunt, Kimberly Hill, testified that Oliver read on a fourth- or fifth-grade level, and had failed the first, third, and fifth grades. She reviewed the written confession and concluded that it “didn’t sound like Tim.” Additionally, she described her nephew as capable of being influenced very easily.

At the conclusion of the testimony, the trial court denied the motion to suppress the March 26 statement, finding that:

I don’t think there’s any doubt he was a little slow, but it’s obvious from the first statement he gave that he was smart enough to know that he didn’t want to be implicated in this murder. Just because he is a little slow doesn’t mean he doesn’t have enough sense to understand all of his rights and what he was doing. I find that that second statement was proper in all regards and is (sic) admissible.

When reviewing the totality of the circumstances, we hold that the trial court’s decision was not clearly erroneous.

II. Fruit of unlawful arrest

For his second assignment of error, Oliver asserts that his confession was the fruit of Michael Friend’s illegal arrest, see Friend v. State, 315 Ark. 143, 865 S.W.2d 275 (1993), and, thus, the trial court erred in admitting his statements. In response, the State asserts that Oliver lacks standing to raise Friend’s illegal arrest and subsequent tainted confession. We can easily dispose of this point of appeal, as Oliver did not raise this argument in his motion to suppress. We rejected a similar argument raised by George Rhoades in a companion case. In Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994), we said:

the State contends that Rhoades has no standing to raise Michael Friend’s tainted statement due to a violation of Friend’s Fourth Amendment rights. We will not address the argument of an arrest tainted by Friend’s statement, however, because the argument of an arrest tainted by Friend’s statement was not made to the trial court as part of Rhoades’s motions to suppress. The two motions filed sought to suppress Rhoades’s statements on the basis that it resulted from an arrest without “probable cause” and due to Miranda deficiencies. No mention of a tainted statement from Michael Friend is made and no argument to that effect exists in the record. It is well established that we will not address issues raised for the first time on appeal.

319 Ark. at 49-50, 888 S.W.2d at 657. (Citations omitted.)

In Oliver’s motion to suppress, he asserted that (1) his interrogation on March 25, 1992, followed his illegal arrest without probable cause; (2) officers did not read him his Miranda rights; (3) he did not knowingly, intelligently or voluntarily waive his constitutional rights; (4) he was denied his Sixth Amendment right to counsel; and (5) any statement taken during custodial interrogation was the result of coercion, physical intimidation, and/or unauthorized promises of leniency by police. As was the case in Rhoades, Oliver made no mention of a tainted statement from Michael Friend in his motion to suppress, and no argument to that effect exists in the record. Thus, we cannot address Oliver’s second argument on appeal.

III. New trial improper contact between trial judge and jurors

For his final point on appeal, Oliver asserts that jury misconduct, of which his attorney was unaware until after the jury had returned its verdict, prejudiced his chances for a fair trial. Following his judgment and commitment on June 28, 1993, Oliver filed a motion for new trial on July 23, 1993. Attached to this motion were the affidavits of Sherrel Hibbs and Kimberly Hill, each of whom had testified on Oliver’s behalf at trial. According to Hibbs, during a trial lunch break on June 24, 1993, she was seated at a restaurant with Oliver’s aunt, Kim Hill, and his mother and step-father, Linda and Jack Echols, when she overheard a conversation between the trial judge, Honorable Ted Capeheart, his court reporter, Pat Motes, and a Texarkana Gazette reporter. According to Hibbs, the trial judge stated to the court reporter and the newspaper reporter, “I fined her,” to which the court reporter replied, “But she was late, judge.” The trial judge then mentioned something about a photograph of Charlene Friend with her throat cut. Seated at an adjacent table were two jurors and an unidentified woman. Also seated at a table to the left of the trial judge’s table were three other jurors and an unidentified person. One of the jurors responded to the trial judge’s comment about the photograph, stating, “But it’s circumstantial, judge.” At this point, according to Hibbs, everyone in the whole area began laughing. She and Oliver’s family then left the restaurant. Hill’s affidavit related similar information.

The record reflects the trial judge, by letter dated August 9, 1993, set the motion for hearing on September 13, 1993. Also included in the record are subpoenas issued by the circuit clerk’s office on September 8 and 10, for the following witnesses to appear for the September 13 hearing: Carolyn Smith, juror James Best, court reporter Pat Waldrop, affiant Sherrel Hibbs, affiant Kimberly Hill, and James Bischof of the Texarkana Gazette. The record also contains an order from the trial judge commanding the Sevier County Sheriff’s Office to pick up Oliver from the Department of Correction for the purpose of the September 13 hearing. On September 10, 1993, Oliver filed amended and second amended motions for new trial. The record does not indicate whether the September 13 hearing was ever held. Oliver filed a timely notice of appeal on September 15, 1993, as the amended motions “related back” to the date of filing the original motion. See Williams v. Hudson, 320 Ark. 635, 898 S.W.2d 465 (1995).

Oliver asserts, as he did in his new trial motion, that his case falls under an exception to the general rule that errors raised for the first time on appeal will not be considered. In support of his argument, he cites Hughes v. State, 295 Ark. 121, 746 S.W.2d 557 (1988). As reviewed in Hughes, the very narrow exceptions to this court’s general rule that it will not consider errors raised for the first time on appeal were set out in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). They are: (1) death-penalty cases where prejudice is conclusively shown by the record and the court would unquestionably require the trial court to grant relief under Ark. R. Crim. R 37; (2) where error is made by the trial judge without knowledge of defense counsel; (3) where the trial court should intervene on its own motion to correct a serious error; and (4) where evidentiary errors affect a defendant’s substantial rights although they were not brought to the court’s attention. Oliver maintains the second exception applies in this instance. Additionally, we require that a claim of jury misconduct raised for the first time in a motion for new trial be accompanied by an affirmative showing that the defense was unaware of the misconduct until after the trial. See Hendrix v. State, 298 Ark. 568, 768 S.W.2d 546 (1989). While Oliver’s attorney submitted an affidavit with the motion for new trial, the affidavit related to the issue of whether the trial court erred in refusing to reopen the Denno hearing. She did not state in the affidavit when she first learned of the alleged improper conduct of the trial judge and certain jurors. However, in the motion for new trial, Oliver does assert that his attorney was unaware of the misconduct until after the jury had returned its verdict, and thus had no opportunity to file an objection with the trial court.

Suffice it to say, it would have been highly improper for the trial judge and jurors to have engaged in such discussions. However, mere allegations contained within pleadings are not evidence from which we can determine whether error occurred. Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987). While Oliver asserts in his brief that no hearing was ever held, we cannot determine from the record before us whether the scheduled hearing took place or not. If the hearing did not take place, then why not? These significant questions have no answers in the record. As the moving party, it was Oliver’s burden to obtain a ruling on his motion for new trial. See Aaron v. State, 319 Ark. 320, 891 S.W.2d 364 (1995). He did not. Under these circumstances, we cannot reach the merits of Oliver’s argument.

IV Compliance with Ark. Sup. Ct. R. 4-3(h)

As Oliver received a sentence of life imprisonment without parole, we must examine all objections decided adversely to him. See Ark. Sup. Ct. R. 4-3(h). Prior to trial, Oliver filed a motion for change of venue. The trial court denied the motion.

A change of venue should be granted only where it is clearly shown that a fair trial is not likely to be had in the county. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992), citing Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). We will not reverse a trial court’s decision denying a change of venue unless an abuse of discretion is shown. Id. Oliver did not file accompanying affidavits from county residents stating that he could not receive a fair trial. It was Oliver’s burden to prove that a change of venue was necessary, and he failed to meet that burden. Moreover, Oliver did not exhaust all twelve of his peremptory challenges prior to the seating of the jury and therefore has not demonstrated prejudice. Meny v. State, 314 Ark. 158, 861 S.W.2d 303 (1993). Thus, we cannot say that the trial court abused its discretion in denying the motion.

We have examined the record and find that there are no erroneous rulings adverse to Oliver that cause reversal.

Affirmed.

Glaze, J.,

concurs as to Point 1. Even assuming the trial court erred in refusing to reopen the Denno hearing to permit Dr. Stephens’ testimony, that error became harmless when Dr. Stephens was permitted to testify at trial and his testimony merely reflected that it was a jury question as to whether appellant had the ability to premeditate and weigh the consequences of his actions.

Brown, J., concurs in part, dissents in part.

Dudley, J„ dissents as to Point 1.

Corbin, J., dissents.

Robert L. Brown, Justice,

concurring in part, dissenting in part.

I have two concerns about what transpired in the trial of this matter. First, as part of the contempt sanction against defense counsel for being 15 minutes late to court, the circuit judge refused to allow the defendant to present the last witness which would have completed the testimony for the Denno hearing. Contempt sanctions for attorney misconduct should be directed against the offending attorney, not the client. In this case, Oliver was punished by the exclusion of evidence, and that was error. The issue is whether the error was rendered harmless by the trial testimony of the previously excluded witness in light of the jury’s ability to determine the reliability of the confession at trial. See Jackson v. Denno, 378 U.S. 368 (1964). I believe that it was and for that reason, I concur with the majority on this point. See Crane v. Kentucky, 476 U.S. 683 (1986).

Secondly, an ex parte communication was alleged between the circuit judge and jurors at a local restaurant during the course of the trial. Affidavits substantiating the event were attached to a new trial motion. The motion itself asserted that defense counsel did not learn about the communication until after the trial. The motion for new trial was filed on July 23, 1993. The circuit judge set the matter for hearing to be held on September 13, 1993, and subpoenas were issued for witnesses. Nevertheless, under our rules the motion was deemed denied on August 23, 1993, and from the record it appears that no hearing was held.

The seriousness of the matter requires resolution. Otherwise, a cloud remains over these proceedings. The majority concludes that defense counsel should have obtained a ruling. What appears to have happened, however, is that the circuit judge set the hearing too late, and the motion was deemed denied after 30 days. There is nothing to suggest that this was done intentionally by the circuit judge; indeed, it appears that the judge was proceeding towards a hearing in good faith. But under these unique circumstances where an improper communication between judge and juror is the basis for the new trial motion and it is supported by affidavit, and where the judge must accept part of the responsibility for not deciding the motion within 30 days, I would remand the case for a hearing on the motion.

Donald L. Corbin, Justice,

dissenting.

Reluctantly, I must dissent to that portion of the majority’s opinion disposing of appellant’s assigned error of improper conduct between trial judge and jurors.

Appellant appears to have timely filed his motion for new trial and a hearing on the matter was set by the trial judge. No record was made of this hearing that was set for September 13, 1993, nor was any explanation for the lack thereof advanced by the state or appellant, except appellant’s allegation without explanation that the hearing was never held.

The majority asks the question, “If the hearing did not take place, then why not?” The majority then goes on to assert: “These significant questions have no answers in the record. As the moving party, it was Oliver’s burden to obtain a ruling on his motion for new trial. . . . Under these circumstances, we cannot reach the merits of Oliver’s argument.” This ruling contravenes our Arkansas Rules of Appellate Procedure because Rule 4(c) provides that “if the trial court neither grants nor denies the motion” for new trial within thirty days of its filing, it is deemed denied. (Emphasis added.) Subsection (f) of ARCP Rule 59 provides that a motion for new trial is not necessary to preserve for appeal an error which could be the basis for granting a new trial. If there was no hearing then there was no means available for trial counsel to make his record. Appellant was faced with an impossibility of performance. Moreover, appellant was lulled into a false sense of security because, although the trial court “did not grant nor deny” the motion within thirty days, the trial court did act on the motion within the thirty days by setting it for a hearing.

I would remand this one issue to the trial court to conduct the hearing previously set for the 13th day of September 1993. At the very minimum, I would send it back to have a hearing so the parties may present evidence that may explain the failure to conduct the September 13, 1993 hearing.

       We affirmed the trial court’s denial to transfer Oliver’s case to juvenile court in Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993).


author: Robert H. Dudley, Justice.

text:
    IN RE: PETITION of Kurt BUTCHER for Reinstatement to the Bar of Arkansas
    95-749
    907 S.W.2d 715
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      John Skaggs, for petitioner.
    No response.
   Robert H. Dudley, Justice.

Kurt Butcher was admitted to the Bar of Arkansas in 1974. Ten years later, in August 1985, because of complaints of former clients filed against him with the Committee on Professional Conduct, he asked us to accept the surrender of his license. We accepted the surrender of his license by per curiam order on September 30, 1985. Nine years later, in January 1994, he petitioned the Board of Law Examiners for reinstatement to the Bar. The Board conducted a hearing to determine whether petitioner was “of good moral character and mentally and emotionally stable.” See Rules Governing Admission to the Bar XIII. The Board, by a six-to-five vote, recommended to this court that it reinstate petitioner. We deny the petition for reinstatement.

I.

At the time petitioner surrendered his license he admitted in a verified pleading to this court:

1. That he had represented Donald and Lela Faye DeShields and told them he was waiting for a trial date. In truth, their case had been dismissed.
2. That Franklin G. and Geraldine Roth employed him to dissolve a corporation. He accepted service of process for a suit filed against his clients and did not tell them they had been sued.
3. That Aaron Don Gaylor employed him in two separate legal matters and paid fees for both. Petitioner apparently did nothing.
4. That Joseph C. Fisher employed him in a contested case. He failed to notify Fisher that he was to give a deposition. The trial court imposed sanctions against Fisher, and it was necessary for Fisher to employ other counsel.
5. That Clarence A. and Betty I. Leis employed him for some corporate law work, but he did not timely complete the work. The Leises alleged that consequently they were forced to file a Chapter 11 petition in bankruptcy court. Petitioner’s actions were such that the bankruptcy court entered a $10,000 nondischargable judgment against petitioner.
6. That five counts of felony theft of property by deception were filed against petitioner by former clients in the Circuit Court of Yell County.
7. That two counts of felony theft by deception were filed against petitioner in the Circuit Court of Washington County.

In addition to the foregoing violations of the Rules of Professional Conduct, a civil judgment in the amount of $5,000 was outstanding against appellant. However, that judgment, unlike the nondischargable bankruptcy judgment, implies no breach of responsibility to a client.

The two counts of felony theft by deception filed against petitioner in Washington County were subsequently dismissed upon a request by the prosecuting attorney. The prosecutor’s request was based on the opinion of Dr. Roy Ragsdill of the Arkansas State Hospital that petitioner lacked capacity to appreciate the criminality of his conduct.

Petitioner pleaded nolo contendere to the five counts of felony theft in Yell County and was given a suspended imposition of sentence and one year’s probation.

Both civil judgments against petitioner remain unsatisfied. Upon learning that petitioner had applied for reinstatement, Clarence Leis, one of petitioner’s former clients, wrote the Board, in part, as follows:

What makes me think that he has not learned his lesson or is sorry for what he has done is that he has asked someone else to call me to drop charges on him. If he had any compassion or was sorry, he would have called me or other members of my family and talked to us about it himself.

II.

As early as 1977, petitioner was diagnosed as having a bipolar disorder, formerly known as a manic-depressive disorder, and essential hypertension. He took lithium and thorazine to control the disorder, but in 1983, upon advice of a physician who was not his treating physician, he discontinued the medication. He lapsed into a manic depressive psychosis by early 1984. Petitioner testified to the Board that he has been generally stable since 1985, and that he has strictly followed the treatment prescribed by his treating physiatrist. He states that he now has a full awareness of his affliction and its possible effect upon potential clients should he be allowed to return to the practice of law.

Dr. Edwin C. Jones, petitioner’s treating physiatrist, states that petitioner is presently competent to practice law from the perspective of treatment of the bipolar disease. Petitioner states that he desires to remain free of the adverse effects of his disorder and that he will follow the prescribed plan of medication. He has submitted a substantial number of letters supporting his reinstatement. The letters are from judges, business people, and friends.

III.

The separation of powers provisions of the Constitution of the State of Arkansas inherently places the responsibility of regulating the practice of law in this court. Hurst v. Bar Rules Comm., 202 Ark. 1101, 1108, 155 S.W.2d 697, 701 (1941). In addition, Amendment 28 expressly places the responsibility in this court. Ark. Const, amend. 28.

The standards governing readmission are settled. A practice of law is a privilege and not a right. In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). The lawyer who has lost his or her license has the burden of proof at the readmission hearing. Rules Governing Admission to the Bar XIII. Once a lawyer has lost his license to practice law, either through surrender or disbarment, there is a presumption against readmission. In re Admission of Anderson, 312 Ark. 447, 851 S.W.2d 408 (1993). The protection of the public and the honor and integrity of the legal profession are the “overriding” considerations in readmission cases. Rehabilitation of the disbarred lawyer is given only “due” consideration. Hurst, 202 Ark. at 1109, 155 S.W.2d at 701. A position of trust, and sometimes an actual fiduciary relationship, exists in an attorney-client relationship. For our legal system to function properly, a client must be able to have trust in his or her counsel, and it is the responsibility of this court to see that the public can have that trust. Anderson, 312 Ark. at 453, 851 S.W.2d at 411.

Petitioner has made good progress in the rehabilitation of his disorder, and we commend him in those efforts. His medical testimony shows that, from the perspective of his bipolar disorder, he is now competent to practice law. However, there was no direct proof that a bipolar disorder causes one- to act in deceptive or dishonest manner. The proof showed that petitioner’s mental stability is restored while he is on medication, but there was no proof that he is morally fit to practice law. Petitioner’s proof before the Board fell short of overcoming the presumption against readmission.

Even if petitioner’s proof can be said to constitute some proof of restored moral fitness, it would be given only due consideration. The public trust and integrity of the Bar would be given overriding consideration, and we are not convinced that the public trust would be satisfied by the readmission of petitioner.

Finally, for the guidance of the Board and the Bar we note that even if petitioner had overcome the presumption against readmission and had made a strong showing of moral rehabilitation, it would not mean that he was competent to practice law, or that we would necessarily approve immediate reinstatement. The Board can recommend conditions upon which an attorney might be reinstated. Rules Governing Admission to the Bar XIII. The Board might make a recommendation such as reinstatement upon receiving favorable continuing medical reports, or some other appropriate condition. However, when a former attorney has been out of the law practice for a considerable amount of time, ten years in this case, it is not likely that we would order immediate reinstatement to the Bar. Rather, it is more likely that he or she would only be deemed morally fit to take the bar examination once again and, if he or she passed the exam, then the license could be reinstated.

Petition denied.


author: David Newbern, Justice.

text:
    Charles Arwood HAILE, David Haile, and Brian Haile, d/b/a Haile’s Dairy v. ARKANSAS POWER and LIGHT COMPANY
    95-355
    907 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered October 9, 1995

      Odell Pollard, P.A., by: Odell Pollard, for appellants.

      Friday, Eldredge & Clark, by: Scott J. Lancaster, for appellee.
   David Newbern, Justice.

The appellants, Charles Arwood Haile, David Haile, and Brian Haile (the Hailes) seek reversal of a partial summary judgment entered in an action brought by them against Arkansas Power and Light Company (AP&L). We must dismiss the appeal because the Trial Court’s order is not a final order.

Depositions before the Trial Court when the partial summary judgment order was entered showed the following. In 1984 the Hailes built a new milking parlor at their dairy farm. Electricity for the parlor was supplied by AP&L. After milking operations commenced in the new milking parlor, the Hailes began to experience a decrease in milk production. Their herd suffered from an increase in mastitis and breeding difficulties.

The Hailes discovered in 1989 that stray electrical voltage in the new milking parlor was shocking the cows and was responsible for the decrease in productivity. The Hailes requested assistance from AP&L in identifying the source of the stray voltage. AP&L advised that there was nothing wrong with its service and that the problem must stem from improper wiring in the building.

The Hailes found nothing wrong with the wiring, and the problem continued. When, in November of 1992, AP&L installed an isolator device between its primary line and the Hailes’ secondary line, the stray voltage in the milking parlor was virtually eliminated.

The Hailes sued AP&L on August 16,1993, for damages suffered as a result of the shocks to the cattle allegedly caused by AP&L’s negligence. They also alleged that AP&L misled them by telling them that the problem was in the wiring of the milking parlor, and they sought damages under a strict product liability claim.

AP&L moved for summary judgment on the product liability claim and full or partial summary judgment on the negligence claim. The Trial Court granted the motion with respect to the product liability claim. The Trial Court overruled the motion on the negligence claim but ruled that, due to the three-year statute of limitations, the Hailes could not recover for damages suffered prior to August 16, 1990.

The Hailes moved for reconsideration and, alternatively, asked permission to introduce evidence of AP&L’s negligence and their damages prior to August 16, 1990, apparently for comparison purposes. The motion was denied. The Hailes then non-suited their negligence claim.

Lack of a final order

We confronted a similar situation in Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973), in which partial summary judgment was entered as to one count in each of the seven complaints. The plaintiffs then took a voluntary nonsuit on the two remaining counts. We said, “The controlling question is whether a plaintiff, by taking a voluntary nonsuit with respect to two counts in his complaint, can thereby convert an adverse partial summary judgment with respect to a third count into an appealable order.” We sustained a motion to dismiss the appeal for lack of a final order.

When the Ratzlaff case was decided, the law restricting appeals to those from final orders was found in Ark. Stat. Ann. § 27-2101. Today it is found in Ark. R. App. R 2(a) which permits appeal of final orders and other categories constituting exceptions not applicable here. The order must be final for this Court to have jurisdiction, thus it is a matter we will consider even though the parties do not raise it. Wilburn v. Keenan Cos., 297 Ark. 74, 759 S.W.2d 554 (1988); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984).

Discussing the statutory provision on the finality required for an appeal in the Ratzlaff case, we said:

Here the appellants seek to circumvent the policy of the statute by holding two counts of their complaints in abeyance while they seek our opinion upon the validity of a third count. If that procedure is permissible, litigants may appeal from various interlocutory orders by taking a non-suit with respect to the rest of the case.

A voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal. Ark. R. Civ. P. 41(a).

No doubt the Hailes intend to pursue their negligence claim if the issues they seek to present in this appeal are decided in their favor, and perhaps even if they are not. Their counsel candidly stated during oral argument before us that he pursued this appeal because he was left with just a “shell” of a lawsuit because the issues he seeks to present to us were decided adversely to his clients. It is, therefore, clear that this is an interlocutory appeal which we have no authority to entertain under Rule 2(a). As we said in the Ratzlaf case, when we are convinced an appellant pursues an unauthorized interlocutory appeal, the appeal will be dismissed. See also Cowan v. Schmidle, 312 Ark. 256, 848 S. W.2d 421 (1993).

Appeal dismissed.