author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    George WEBB, J. Bill BECKER, Jimmy CLARK, Individually, and on Behalf of All Others Similarly Situated, and ARKANSAS STATE AFL-CIO v. WORKERS’ COMPENSATION COMMISSION
    86-270
    730 S.W.2d 222

    Supreme Court of Arkansas
    Opinion delivered June 1, 1987
    [Rehearing denied July 6, 1987.]

      Youngdahl & Youngdahl, P.A., by: James E. Youngdahl and Thomas H. McGowan, for appellant.

      Steve Clark, Att’y Gen., by: Frank J. Wills, Asst. Att’y Gen., for appellee.

       Justice Newbern’s opinion can be found at 733 S.W.2d 726.

   Robert H. Dudley, Justice.

The Workers’ Compensation Act, Ark. Stat. Ann. §§ 81-1301 to -1367 (Repl. 1976 and Supp. 1985), provides benefits to employees killed or injured in the course of their employment. The Workers’ Compensation Commission is charged with administration of the Act and with reviewing decisions of Administrative Law Judges concerning disputed claims. Ark. Stat. Ann. §§ 81-1325 to -1342. The Commission acts in a quasi-judicial capacity and its awards are in the nature of judgments. The Act provides a symmetry for the composition of the tripartite commission. The Governor appoints all three Commissioners. Ark. Stat. Ann. § 81-1342(a). One member is to represent employers’ interests, one member is to represent employees’ interests, and the third, the neutral chairman is to be an attorney with at least five years experience in the practice of law. Former Governor White appointed Melvin Farrar, an employer for 25 years, to serve as the employees’ representative on the Commission. Appellants sought to challenge the qualifications of Commissioner Farrar. The trial court dismissed the action. We reversed, reinstated the action, and remanded for trial. Webb v. Workers’ Compensation Commission, 286 Ark. 399, 692 S.W.2d 233 (1985). Both parties then filed motions for summary judgment. The trial court held that the governor had the authority to determine who is qualified to serve as the representative of employees and that Commissioner Farrar was not disqualified from serving even though he was an employer. We reverse.

In order to insure the balance between employers and employees, the Act plainly requires that the employee representative on the Commission satisfy two requirements: (1) five years of past union membership and (2) classification as a representative of employees. Ark. Stat. Ann. § 81-1342(a). These two requirements must be viewed in light of the members’ “previous vocation, employment or affiliation.” Ark. Stat. Ann. § 81-1342(a).

It is undisputed that Commissioner Farrar met the first requirement, five years of past union membership, as he was a member of a union from the early 1950’s until 1978. It is the second requirement which Commissioner Farrar fails to satisfy. In a supporting document to the motion for summary judgment, Commissioner Farrar admitted that the last time he was an employee was in 1957 and from that time until his appointment he was a small businessman who hired and fired his own employees.

The Commission does not dispute the fact that Commissioner Farrar was an employer for the 25 years preceding his appointment, but instead argues that the courts should not interfere with gubernatorial appointments unless the governor has abused his discretion. Admittedly, the gubernatorial power of appointment is vested with a reasonable latitude of discretion in classifying the persons to be appointed to the Commission, but that discretion is not without limit or restraint. The classification of appointees to the Commission must measure up to minimal legal standards in order to comply with the requirements of the Act. Whether such requirements have been met is subject to judicial review, and if they have not been met appropriate relief may be granted. Hogan v. Davis, 243 Ark. 763, 422 S.W.2d 412 (1967).

In light of his “previous vocation, employment, or affiliation,” Commissioner Farrar does not minimally meet the requirement of being “classed as a representative of employees” and, solely on that basis, is not qualified to hold that office.

Reversed.

Newbern, J., concurs.

David Newbern, Justice,

concurring. The majority opinion is correct in holding that Commissioner Farrar’s appointment to the Workers’ Compensation Commission was not in compliance with Ark. Stat. Ann. § 81-1342(a) (Repl. 1976). The Arkansas Court of Appeals reviews the decisions of the commission. Ark. Stat. Ann. § 81-1325(b) (Supp. 1985). As a member of that court in 1979 and 1980,1 began to question the wisdom of composing a quasi-judicial body, such as the commission, of advocates for the points of view always at odds in the cases before it. My skepticism has since grown, and I must take this opportunity to discuss a law that requires us to hold, as we do today, that a commissioner is disqualified because his background is not of the sort that will assure he is sufficiently partial.

The creation of an entity such as the commission, which is recognized to be an administrative body but which has one function which is purely adjudicative, brings on problems associated with courts. See C. Koch, Administrative Law and Practice, § 6.7 (1985). Although it is not a court per se, the commission has replaced the courts’ adjudicative function with respect to the claims of injured workers, at least at the first hearing and review levels.

The commission has the responsibility of adjudicating an enormous number of claims involving huge sums of money. In its Annual Report for 1984, entitled “Costs and Characteristics of Occupational Injuries and Illnesses in Arkansas” the commission reported that it had, in that year, closed 8,972 cases with $30.1 million in indemnity compensation and $25.2 million in adjudicated medical and other costs for a total of $55.2 million. In its Biennial Report for 1984-1986, the commission reported for the period from July 1, 1984 to June 30, 1985, total compensation expenditures of $91,751,878. For the period from July 1,1985 to June 30, 1986, the total was $89,582,074.

The adjudication of these claims begins with a hearing before an administrative law judge (ALJ). It is an adversary proceeding, but designed to be informal. The ALJ’s decision is then reviewed by the commission if one party or the other is dissatisfied with the result reached by the ALJ. There may have been a time when the commission actually heard witnesses give live testimony when its members wished to redo the work of the ALJ, Given the numbers of claims today, however, that would be impractical if not impossible. The commission has the power to, and presumably does, permit argument before it either orally or in the form of briefs and it may admit additional evidence in its de novo review of the decision of the ALJ. It would surely be wasteful, however, to hold the hearing with the live witnesses a second time, so the decision of the commission is much like that of an appellate court; it operates from a cold, or at best, warmed-over, record.

Thus the ALJ position has been upgraded. The ALJ is no longer just an aide to the commission or a referee. The title, “Administrative Law Judge” appears in the commission’s official publications. See the Biennial Report referred to above. Although Ark. Stat. Ann. § 81-1344 (Repl. 1976) refers to “referee,” the duty of that officer is “to hear and determine claims for compensation, and to conduct such hearings and investigations and to make such orders, decisions, and determinations as may be required by any rule or order of the Commission.” The evolution of the position is best described in Civil Service Commission v. Department of Labor, 424 Mich. 571, 384 N.W.2d 728, amended, 425 Mich. 201, 387 N.W.2d 384 (1986). Michigan has undertaken a formal restructuring of its commission similar to that which has taken place informally elsewhere. The Michigan Supreme Court noted the existence of a condition in that state like that which exists here specifically as a result of our §81-1345, that is, that our ALJs do not just render “findings” on behalf of the commission but render “decisions” to be reviewed by the commission.

Despite the fact that it is the ALJ who hears the witnesses and has the opportunity to see them face to face, we persist in holding that his or her decision is meaningless when a decision of the commission is on appeal. See Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207 (1981),Thatisthe view of the majority of the courts. See 3 Larson, The Law of Workmen’s Compensation, § 80.12(c) (1983). However, there is a growing minority view perhaps led by the Federal Longshoremen’s and Harbor Worker’s Compensation Act, P.L. 92-576, § 21(b) (3). It is now held in Florida, for example, that the commission cannot reverse the findings of fact made by a hearing officer unless the findings are not sustained by competent, substantial evidence, and on appeal from the commission the court must determine whether the commission observed the substantial evidence rule when it reviewed the officer’s findings and order. See United States Casualty Company v. Maryland Casualty Company, 55 S.W.2d 741 (Fla. 1951). See also Powell v. Industrial Commission, 4 Ariz. App. 172, 418 P.2d 602 (1966); Universal Cyclops Steel Corporation v. Workmen’s Compensation Appeals Board, 9 Pa. 176, 305 A.2d 757 (1973); R & R Well Service Company v. Industrial Commission, 658 P.2d 1389 (Colo. App. 1983); A.D. Braun v. Industrial Commission, 36 Wisc. 2d 48, 153 N.W.2d 81 (1967); Delesky v. Tasty Baking Company, N.J. Super. A.D. 420 A.2d 1022 (1980); Davol, Inc. v. Aguiar, 463 A.2d 170 (R.I. 1983).

In Florida it has been recognized that the Industrial Relations Commission, similar to our commission, exercises the functions of a court. Scholastic Systems v. LeLoup, 307 So.2d 166 (Fla. 1975). It has been held in Georgia and in California that the Code of Judicial Conduct applies to the officers who adjudicate these important claims. Delta Air Lines, Inc. v. McDaniel, 176 Ga. App. 523, 336 S.E.2d 610 (1985). Fremont Indemnity Co. v. Workers’ Compensation Appeal Board, 153 Cal. App. 3d 965, 200 Cal. Rptr. 762 (1984). We have yet to consider that issue.

Given the changes going on around us, and given the changes which have come about by necessity in our own workers’ compensation scheme since our commission was created by Initiated Act 4 of 1948, it occurs to me that we should be thinking of creating a system in which the decisions of the ALJs are like those of juries, to the extent that the factual determinations should be reviewed only to determine if they are supported by substantial evidence. An alternative would be to review them as the factual decisions of trial judges are reviewed in other civil cases, i.e., to determine if they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a).

No matter what standard of review is chosen, however, the reviewing body need not be poised to recreate the adversarial arguments and adversarial positions taken and protected at the hearing level. Requiring management and labor representatives on such a reviewing body, so analogous to a court, is like assuring that our court of appeals or this court be composed of equal numbers of plaintiffs’ advocates and defendants’ advocates in tort cases. In any body exercising the function of legal review, the public is entitled to, and should, demand the putting aside of social philosophies which are the stuff of legislation. That may not be entirely possible, but at the very least, we should not encourage the advocacy of such points of view when we are empowering a tribunal to interpret the law and apply it to facts rather than to make the law to be applied.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Earl S. BRANHAM v. STATE of Arkansas
    CR 87-12
    730 S.W.2d 226
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Pruitt & Hodnett, by: Roger T. Jeremiah, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

In 1985 Earl Branham was charged with nineteen counts of possession of a controlled substance, dilaudid, with intent to deliver. A plea bargain was accepted by the trial court and in accordance with its terms one of the charges was dropped and Branham pled guilty to the remaining eighteen counts, receiving a sentence of twenty years in the Department of Correction with five years suspended.

Six months later Branham filed a petition for post-conviction relief under A.R.Cr.P. Rule 37. He alleged that Ark. Stat. Ann. § 82-2617 (Schedule II) under which he was charged had been repealed, that a search warrant served on him was illegal, that defense counsel’s ineffectiveness deprived him of a fair trial, including the failure to notify him of certain rights as a first offender, and failing to subpoena a physician who had prescribed the drugs.

The trial court ordered an evidentiary hearing on the Rule 37 petition at which several witnesses testified, including Branham and the public defender who had defended him on the charges. Following the hearing the trial court made detailed findings of fact and conclusions of law. He found that Ark. Stat. Ann. § 82-2617 had not been repealed, that the allegation concerning the search warrant pertained only to the charge that was dropped, that Branham was not a first offender, that evidence adduced at the hearing established that acts by Branham while in California in shipping drugs from California to be delivered in Arkansas constituted a violation of Arkansas law, that the evidence established “overwhelmingly” that Branham received effective representation in that counsel was prepared to defend the charges and was prevented from doing so because Branham elected to plead guilty for a twenty year sentence with five years suspended. The trial court found there was a factual basis for the guilty pleas and that Branham’s pleas were made voluntarily and with a full understanding of the charges and of the consequences.

Earl Branham has appealed from the denial of his Rule 37 petition. He assigns two points of error: 1) the trial court erred in accepting his guilty plea by failing to have Branham state whether there was a factual basis for the plea; and 2) defense counsel was ineffective in failing to demand sentencing as a first offender, failing to communicate with defendant’s physician, failing to move to suppress tape recorded conversations and failing to move for a continuance. We find no merit in the arguments.

It must be remembered that on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review— one, whether the plea of guilty was intelligently and voluntarily entered, two, were the pleas made on the advice of competent counsel. Huff v. State, 269 Ark. 404, 711 S.W.2d 801 (1986); Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982); Williams v. State, 273 Ark. 371, 620 S.W.2d 277 (1981). We are satisfied on both counts.

The burden is on the petitioner to prove his allegations for post-conviction relief, Porter v. State, 264 Ark. 272, 570 S.W.2d 615 (1978) and we do not reverse the trial court’s findings unless they are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).

It must be conceded that at the hearing on the guilty pleas the trial court asked defense counsel if there was a factual basis for the pleas rather than addressing the defendant directly as the rule requires. A.R.Cr.P. Rule 24.6. With that exception the trial court spoke directly to the defendant; he carefully went through each charge, asking the defendant if he understood the charge, if he had any questions about it and how he pled to it. To the extent that the original hearing was deficient, the testimony at the post-conviction hearing established the factual basis for the pleas and that is sufficient. Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987); Thomas v. State, supra. Sergeant Dale Best of the Arkansas State Police testified that he arranged for two individuals to place calls to the defendant in California to purchase drugs to be shipped to addresses in Arkansas in exchange for money wired to the defendant by Western Union. The packages arrived as expected and in some instances Branham’s fingerprints were identifiable. The findings of the trial court that Branham’s pleas of guilty were based on fact and were voluntarily and intelligently made were fully supported by the evidence.

Turning to the remaining issue—ineffective assistance—we note that counsel is presumed to be competent, Rightmire v. State, 275 Ark. 24, 627 S.W.2d 10 (1982), and a defendant assumes a heavy burden in asserting that counsel’s advice was lacking in competence. United States v. Cronic, 466 U.S. 648 (1984). Branham argues that because he has never been convicted of a felony he was eligible for first offender treatment under Ark. Stat. Ann. § 82-2623 (Repl. 1976), and the state contends Branham is ineligible for the alternative sentencing procedures provided under the act because he is 58 years old and the act is limited to those 26 and under at time of the offense, and because he pled guilty to numerous counts of possession with intent to deliver, whereas the act is limited to mere possession. We decline to reach the issue because, as in the case of parole procedures, defense counsel is not required to advise about post-sentencing alternatives in order to render effective assistance to a defendant facing criminal charges. Brown v. State, 291 Ark. 393, 725 S.W.2d 544 (1987); Haywood v. State, 288 Ark. 266, 704 S.W.2d 168 (1986).

Branham contends the public defender should have subpoenaed his California physician to testify that he prescribed dilaudid for his back pain, thereby explaining that the dilaudid found in his briefcase and suitcase were for his own use. But the proof was that the charges arising from these particular drugs were dropped and so Branham could not have been prejudiced by the absence of Dr. Siggers.

Branham’s two final points are that counsel should have moved to suppress recorded telephone conversations between Branham and persons in California discussing the sale and transportation of drugs from California to Arkansas. Branham contends the taping of the conversations is a violation of Arkansas law. Ark. Stat. Ann. § 41-4501 (Supp. 1985). While there is passing reference to the tapes at the post-conviction hearing, there is nothing in the record concerning the nature of the evidence so obtained, nor what the state intended to prove, nor even whether it was subject to suppression. We will not speculate over possible issues which might have arisen had the case been tried. As to the contention defense counsel should have moved for a continuance Settle testified he was ready for trial and Branham has failed to show how a continuance would have improved his situation.

In order for an appellant to prevail on an ineffective assistance argument, he must show that counsel’s performance was so deficient as to deprive him of the opportunity for a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). Appellant has failed to meet that burden.

The order is affirmed.


author: David Newbern, Justice.

text:
    HCA MEDICAL SERVICES OF MIDWEST, INC., d/b/a DOCTOR’S HOSPITAL v. Darrell W. RODGERS and Sally RODGERS
    86-307
    730 S.W.2d 229
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987

      Gayle Windsor, Jr., for appellant.
    No brief filed for appellees.
   David Newbern, Justice.

The sole issue in this case is whether Act 638 of 1983 violates the constitutional equal protection of the laws requirement. The act provides that claims for charges for medical services performed or provided prior to April 1,1985, must be brought within eighteen months. In 1985, the general assembly added a provision, not applicable here, that the limitation would be two years for such claims arising after March 31, 1985. Act 894 of 1985. These acts are codified as subsections (a) and (b) of Ark. Stat. Ann. § 37-245 (Supp. 1985).

The stipulation and testimony before the court left no doubt that the claim was brought after the applicable eighteen-month limitation period. The appellant argues that the legislation created an inferior class of medical services creditors by imposing upon them a shorter limitation than had been imposed upon other creditors similarly situated. Thus, it contends, Ark. Const, art. 2, § 18, and the Fourteenth Amendment to the United States Constitution have been violated by this deprivation of equal protection of the laws.

We upheld Act 638 of 1983 against the same constitutional argument in Ballheimer v. Service Finance Corporation, 292 Ark. 92, 728 S.W.2d 178 (1987), citing Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976), and Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970). While the Owen case did not involve a reference to the equal protection provisions of the constitutions, the Carter case did, and there, in a thorough opinion by Special Chief Justice Roy Penix, this court noted that “ [a] lmost every statute or law serves to work for some and against others,” but that if the law is neither unreasonable nor arbitrary, it will not be struck down as unconstitutional.

The appellant argues that the Carter case is distinguishable because there the opinion noted differences between the classes of persons affected by different limitation periods at issue. The contention here is that there are no such differences. The appellant has, however, not convinced us of that proposition. The appellant’s evidence and the stipulation before the trial court were insufficient to prove that there were no differences between medical service providers and others which would make the limitations distinction reasonable. Rather, the appellant provided only evidence tending to show that the short period had caused problems for patients and for medical service providers working with insurance claims. No evidence was presented to show that the general assembly did not have or could not have had a reasonable basis for finding, in the words of the trial judge, “that medical services are traditionally provided under special circumstances deemed . . . sufficient for medical providers to be in a different category from other creditors who perform services and sell goods to the public.” Before we will declare an act of the general assembly unconstitutional, there must be clear and strong evidence that it is incompatible with the Constitution, and we will resolve all doubts in favor of the constitutionality of the act in question. Phillips v. Giddings, 278 Ark. 368, 646 S.W. 2d 1 (1983). See also Eason v. State, 11 Ark. 851 (1851).

Affirmed.


author: Tom Glaze, Justice. Darrell Hickman, Justice,

text:
    Edward Charles PICKENS v. STATE of Arkansas
    CR 86-42
    730 S.W.2d 230
    Supreme Court of Arkansas
    Opinion delivered June 1, 1987
    [Rehearing denied June 29, 1987.]

      Achor & Rosenzweig, by: Jeff Rosenzweig, for appellant.

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

       Hickman, J., would grant rehearing.

   Tom Glaze, Justice.

On October 20, 1975, several people were shot in a robbery of a grocery store in Arkansas County. Three people were charged in the case, one being appellant. Venue for appellant was changed to Prairie County, where appellant subsequently was convicted of the capital felony murder of Wesley Noble, one of the customers in the store. Appellant was sentenced to death. The conviction and sentence were upheld in Pickens v. State, 261 Ark. 756, 551 S.W.2d 212 (1977). In Pickens v. Lockhart, 714 F.2d 1455 (8th Cir. 1983), appellant’s death sentence was vacated because of ineffective assistance of counsel, and remanded to state court to permit it to reduce appellant’s sentence to life without parole or to conduct a new sentencing procedure. A resentencing trial took place in Prairie County Circuit Court in September 1985, and appellant was again sentenced to death. He appeals this new sentence, listing ten points for reversal. Some of these ten points include an additional number of sub-issues or reasons why appellant claims this cause should be reversed. Because we agree with appellant’s first argument, we decide and discuss only those points which are required for the remand and retrial of this case.

Appellant’s first argument centers on his having been found guilty of capital murder, after which, the jury, during the penalty phase, unanimously imposed the death sentence. In doing so, the jury was required to find that the aggravating circumstances of the murder outweighed all mitigating circumstances found to exist and the aggravating circumstances justified a sentence of death beyond a reasonable doubt. Ark. Stat. Ann. §§ 41-1301 (3)(4) and-1302(l) (Repl. 1977). Appellant argues that the trial court erred in limiting appellant’s proof concerning mitigating circumstances to those circumstances that existed in October 1975, the time of the murder. In this respect, appellant contends that the trial judge should have allowed him to introduce the testimony of various witnesses regarding character, rehabilitation, adjustment to prison and good works he had undergone or performed since the murder occurred.

In support of this argument, appellant relies upon the Supreme Court’s recent holding in Skipper v. South Carolina, 476 U.S__, 106 S.Ct. 1669 (1986). In Skipper, the trial court excluded the testimony of two jailers and a “regular visitor” regarding the defendant’s good behavior while he was in jail for seven months awaiting trial. The Supreme Court held the trial court’s exclusion of such testimony denied Skipper his right to place before the sentencer relevant evidence in mitigation of punishment. The Court said: “Although it is true that any such inferences would not relate specifically to petitioner’s culpability for the crime he committed, [cite omitted], there is no question but that such inferences would be ‘mitigating’ in the sense that they might serve ‘as a basis for a sentence less than death.’ ” 106 S.Ct. at 1671.

The State argues the Skipper decision should be limited to its facts and suggests a temporal limit exists that precludes a defendant from offering mitigating circumstances which arise after the jury decides the defendant is guilty of capital murder. The State submits to construe the Skipper holding otherwise would permit defendants, who are able to extend their appeals and post-conviction relief processes the longest, an opportunity to collect evidence in mitigation that, in time, is far removed from the circumstances of the crime, as well as from what their characters were when they committed the offense. Such an open-ended procedure, the State suggests, bestows on some death-row inmates the opportunity to accumulate mitigating evidence while others may not be so fortunate. In sum, the State concludes that to permit such erratic opportunities to present additional, post-sentence mitigation would produce capricious, arbitrary and freakish results in the application of the death penalty in Arkansas for years.

While the State’s argument seems based on sound logic and reason, its position is not unlike the one argued to and rejected by the Court in the Skipper case. The Skipper majority Court’s holding, and its effect on the mitigating evidence issue before us now, can best be understood by first reading Justice Powell’s concurring opinion, joined in by then-Chief Justice Burger and Justice Rehnquist. Those concurring Justices clearly stated that they joined in reversing the South Carolina trial court not because it excluded “relevant mitigating evidence” but only because the petitioner was not allowed to rebut evidence and argument used against him. Otherwise, the concurring Justices strongly disagreed with the majority Court holding that a defendant’s conduct after the crime should be considered “mitigating evidence” and that the sentencer must consider such conduct under the Constitution. Justice Powell concluded:

I see no reason why a State could not, consistent with these principles, exclude evidence of a defendant’s good behavior in jail following his arrest, as long as the evidence is not offered to rebut testimony or argument such as that tendered by the prosecution here. Such evidence has no bearing at all on the “circumstances of the offense, ” since it concerns the defendant’s behavior after the crime has been committed. (Emphasis supplied.)

Again, the majority Court in Skipper rejected Justice Powell’s expressed views that a state should have the right to exclude evidence of a defendant’s conduct while awaiting trial or sentencing. In doing so, the majority placed emphasis not on the defendant’s culpability for the crime he committed, but instead it held the sentencer should be able to consider any aspect of a defendant’s character or record or any of the circumstances of the offense that the defendant proffers “as a basis for a sentence less than death.” It said further that evidence that the defendant would not pose a danger if spared (but incarcerated) must be potentially mitigating.

We believe the Skipper decision mandates, in clear terms, that any relevant mitigating evidence concerning a defendant’s character should not be excluded. That evidence may include, as the situation here, the defendant’s behavior and conduct that existed not only before and at the time of the crime, but also that which occurred before sentencing and during the period of post-conviction relief, should a later resentencing occur. Accordingly, we reverse and remand this cause for resentencing to be conducted consistent with the Skipper holding and this court’s opinion.

Appellant raises one other meritorious argument. In this respect, appellant argues the trial court erred in refusing to excuse certain jurors for cause, two of them because they indicated they would automatically impose the death penalty if appellant were convicted of murder. The State made every effort to rehabilitate one of those two jurors by leading him to say, “No, sir,” when asked, “Now, we have to be fair, so in the other vein, life without parole is also a possible penalty, so you haven’t got your mind made up at all that all capital murder deserves [the] death penalty?” Even after such efforts by the prosecutor, this witness repeatedly said that if appellant (or anyone) was guilty of murder (or rape), “I would burn them” or “be for the death penalty.” As we pointed out in Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980), a prospective juror’s candid answers cannot be overcome merely by routine responses, and there is a point beyond which such a juror cannot be rehabilitated. We believe that situation occurred here and, accordingly, presents another reason why this cause must be reversed.

The Supreme Court has said that a venireman should not be excluded unless he is irrevocably committed to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. See Rector v. State, 280 Ark. 385, 659 S.W.2d 68 (1983) (quoting from Davis v. Georgia, 429 U.S. 122 (1976)). By the same token, a venireman who is automatically committed to imposing the death penalty is, for the defense, good cause for that juror’s exclusion from service. Clearly, proper inquiry on voir dire in the matter would be to ask the veniremen if they would first consider and weigh the aggravating and mitigating circumstances involved when determining whether death or life imprisonment without parole should be imposed.

Before turning to appellant’s other points, we mention briefly those we do not reach. Appellant argues that the jurors, in rendering appellant’s sentence, erroneously found the appellant had presented no evidence of mitigating circumstances. If error occurred in this instance, such error may readily be avoided at the retrial and we need not discuss it.

Similarly, we need not reach appellant’s contention that the trial court erred in permitting the jury to consider the aggravating circumstance that appellant committed capital murder for pecuniary gain. Appellant presents a two-pronged argument: (1) the jury, which determined appellant’s guilt at the original trial, also found that the murder the appellant committed was not for pecuniary gain, and appellant urges that to allow another jury, upon resentencing, to consider pecuniary gain as an aggravating circumstance violates the principle of double jeopardy; and (2) citing Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 106 S.Ct. 546 (1985), appellant argues his conviction was for robbery-murder, a crime that included pecuniary gain as an element, and he suggests that if the court permits the State to prove the aggravating circumstance of murder for pecuniary gain for sentencing purposes, the court improperly permits the double counting of one aspect of the evidence. Because this cause is reversed on other grounds and three other aggravating circumstances remain available to the State, we need not presume or anticipate that this issue will arise at the resentencing trial.

Appellant does attack one of the other remaining three aggravating circumstances, and we do dispose of that argument 'since we conclude it is wholly without merit. The jury found the appellant committed capital murder for the purpose of avoiding or preventing an arrest or effecting an escape from custody—an aggravating circumstance under Ark. Stat. Ann. § 41-1303(5). Appellant contends this circumstance is vague and overbroad as applied to the facts of this case. We consider this contention spurious in view of the overwhelming evidence that the appellant and his accomplices repeatedly shot their victims during the robbery while they laid helplessly on the floor of the store. One victim, Harold Goacher, testified the appellant and his accomplices asked if there was a room in which they could lock up their victims and when they were told no, Goacher said, “they turned around and said well, hell, we were (sic) just going to have to do away with them because if they get loose they will burn us.” Unquestionably, the record supports the conclusion the appellant and his cohorts intended to kill their victims in order to avoid identification, apprehension, arrest and conviction for the robbery.

Appellant next argues the unconstitutionality of Ark. Stat. Ann. § 41-1358 (Supp. 1985), contending that its retroactive application here violates (1) the ex post facto clause, (2) the equal protection clause and (3) the double jeopardy prohibition. He argues further that the provision is a special law forbidden by Ark. Const, art. 5, § 24.

Section 41-1358 provides that a capital case is remanded to the court where the defendant was originally sentenced when a death sentence is vacated, and the prosecutor may move the trial court to impose a life sentence without parole or to impanel a new sentencing jury. Appellant claims that, prior to § 41-1358 (enacted as Act 546 of 1983), he would have been allowed by law, when a penalty phase error occurred, to a reduction in sentence to life without parole or a retrial as to both the guilt and any resulting sentencing phase. On this point, appellant primarily relies upon Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). The State, in its argument, correctly distinguishes Miller from the instant case but the significant distinction is that this cause involves a remand by the federal court to the state trial court for resentencing, not a retrial on the guilt issue. Aside from such differences, the Supreme Court, in Dobbert v. Florida, 432 U.S. 282 (1977), held that a procedural change in a state’s death-sentencing law is not an ex post facto violation, nor does such a change deny a defendant the equal protection of the laws. In Dobbert, the Court concluded that the newly-enacted law there simply altered the methods employed in determining whether the death penalty was to be imposed and no change occurred regarding the quantum of punishment attached to the crime. The same can be said for the situation here. The crime for which appellant was charged, the punishment prescribed for it, and the quantity or degree of proof necessary to establish his guilt, all remain unaffected by § 41 -1358. In sum, the State’s position is in no way enhanced by § 41-1358, since it may not, under that new law, seek any greater penalty or punishment against the appellant for the crime he committed than that which was available under the prior law.

Appellant further urges § 41 -13 5 8 permitted the State at the- resentencing trial to present additional evidence not presented at the original trial; this, he suggests, violates the double jeopardy prohibition under the fifth amendment. In this connection, Jerry Lockridge, one of the robbery victims, testified at the resentencing trial, but had not testified at appellant’s first trial because Lockridge was in Europe at the time. A similar question of double jeopardy to the one presented here was considered in United States v. Shotwell Mfg. Co., 355 U.S. 233 (1957). The Court, in language that is particularly instructive here, said:

It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence.

355 U.S. at 243.

We are unaware of any reason why the State should be precluded from introducing additional relevant evidence on remand at a resentencing trial, especially when appellant’s guilt already has been established and when appellant has in no manner shown or demonstrated prejudice that would result from the admission of such evidence.

Finally, appellant asserts Ark. Const, art. 5, § 24 prohibits the General Assembly from passing any local or special law changing the venue in criminal cases, and the General Assembly, appellant says, did just that here since § 41-1358 effectively requires this case to be remanded to Prairie County and not Arkansas County, where the crime was committed in 1975. Appellant’s argument is far afield since the parties, themselves, agreed to a venue change to Prairie County when this cause was originally tried. Thus, § 41-1358 had nothing to do with fixing venue in this matter; instead, it merely reinvests venue for resentencing purposes in the county the parties agreed on in the first instance.

Next, appellant’s counsel argues the trial court erred in the application of Ark. Stat. Ann. § 43-2419 (Repl. 1977) which provides for fees for attorneys representing indigents in criminal matters. Counsel, without offering sufficient reason or argument, requests that this court strike the $1,000.00 limitation provided under § 43-2419 as being a violation of due process and of appellant’s right to the effective assistance of counsel. We reject appellant’s request to reach the question concerning the constitutionality of § 43-2419, but we do recognize counsel’s entitlement to the maximum award under that provision. Thus, because the trial court allowed only $650.00 for the actual trial on resentencing, we direct the trial court to award an additional amount in the sum of $350.00.

Appellant raises two additional points we recently addressed and decided in Duncan v. State, 291 Ark. 521, 721 S.W.2d 653 (1987), viz., that Arkansas’s sentencing laws for capital murder are death-mandatory provisions prohibited by Woodson v. North Carolina, 428 U.S. 280 (1976), and that the prosecutor is not entitled to a second closing argument under such sentencing laws. In Duncan, supra, we rejected the contention that Arkansas’s statutory scheme provides for a mandatory death penalty when the jury finds the aggravating circumstances outweigh mitigating circumstances. See Ark. Stat. Ann. §§ 41-1301 to 41-1304. As we pointed out there, the jury, irrespective of its findings under these provisions, can still return a life verdict without parole simply by rejecting the death penalty. See also Hilly. State, 289 Ark. 387, 713 S.W.2d 233 (1986). We also held in Duncan, supra, that the prosecutor had the right to close the argument in the penalty phase because the State had the burden of proof. Because we have already disposed of these points in Duncan, supra, no further discussion is required.

Appellant concludes his argument for reversal of this cause by listing a mixture of issues captioned “other claims.” None of these claims have merit.

Appellant first argues that he was prejudiced because he was led into the courthouse in handcuffs. To note the obvious, appellant’s case was one of resentencing, only, and the jury was quite aware that appellant was guilty of capital murder since that was the very crime for which the jury was convened to impose a penalty. We fail to see how prejudice would result from a juror’s view of appellant in handcuffs when that juror already knows the appellant had been convicted of murder nearly nine years earlier. As was said by the court in United States ex rel. Stahl v. Henderson, 472 F.2d 556 (5th Cir.) cert. denied, 411 U.S. 971 (1973), “No prejudice can result from seeing what is already known.” See also Glick v. State, 286 Ark. 133, 689 S.W.2d 559 (1985).

Next, appellant contends the prosecutor erred in referring to himself as representing “the people” and arguing to the jury that the death penalty is a deterrence and making other remarks appellant considers were designed to prejudice his case. Appellant submits no case authority and little argument to convince us these matters were errors, requiring the reversal of this cause. Neither do we find merit in appellant’s expressed attempt to preserve his argument that death-qualified juries are unconstitutional since that issue has been decided against him. Lockhart v. McCree,_U.S__, 106 S.Ct. 1758 (1986). The same can be said for his contention that the death penalty is cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153 (1976) and Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984).

As previously mentioned, we reverse and remand for resentencing consistent with the directions and holdings set out herein.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the majority decision; we have no alternative but to reverse this case. However, I would go further and address the question raised by Collins v. Lockhart, 754 Fed. 258 (8th Cir.) cert. denied — U.S. —, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). I would not follow the rationale of that decision which has been rejected by other federal and state courts. Glass v. Blackburn, 791 F.2d 1165 (5th Cir. 1986); Wingo v. Blackburn, 783 F.2d 1046 (5th Cir. 1986); Evans v. Thigpen, 631 F. Supp. 275 (S.D. Miss. 1986); State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986). The Eighth Amendment to the United States Constitution simply says “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Circuit Court of Appeals has indeed strayed a long way from that principle by finding that simply because an element of capital felony murder will be an aggravating circumstance, such a circumstance makes the death penalty unconstitutional.

If a state decides to limit the death penalty, as Arkansas has done to those who commit murder during the commission of certain felonies, in this case robbery, that is not such an arbitrary, broad category of criminal misconduct that fails or should fail the guidelines laid down by the United States Supreme Court. Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia, 428 U.S. 153 (1976); Lockett v. Ohio, 438 U.S. 586 (1978). A jury may still decide not to impose the death penalty.

It is ironical that the few death penalty cases which will slip through the interminable appeal process will mean that those defendants are simply unlucky. The reason for their fate will not be because they deserve the death penalty more than the great majority who are spared that penalty, but because there are no technical reasons left to throw out the death penalty in their case. Is this a fair way to decide who will get the death penalty? It seems a far more freakish way to impose the death penalty than to leave that decision to juries within reasonable guidelines.

       We note the appellant peremptorily excused the veniremen discussed here, but appellant preserved his record on this point by showing an objectionable juror was later forced upon him because he had exhausted all his peremptory challenges. Cf. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982).

       Appellant also contends on appeal that it was error to permit the State to prove this aggravating circumstance because it was not found by the jury in his co-defendant’s sentencing trial. Although he raised this issue below, we find nothing in the record, nor does he offer any citation of authority, to support his argument.


author: Jack Holt, Jr., Chief Justice.

text:
    Ruth BAERLOCKER and Bernadine DEAN v. Sam HIGHSMITH, Executor of the Estate of Luella M. TURNER, & the Estate of Luella M. TURNER
    86-298
    730 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      David M. Clark, for appellants.

      Highsmith, Gregg, Hart, Farris & Rutledge, by: John C. Gregg, for appellees.
   Jack Holt, Jr., Chief Justice.

Luella Turner’s will divided her estate equally between the Arkansas Chapter of the American Cancer Society and Ouachita Baptist University. Appellants Ruth Baerlocker and Bernadine Dean, Mrs. Turner’s sisters, contested the will in probate court, alleging Mrs. Turner was incompetent to execute a will and that she was under the undue influence of persons unknown. After the appellants presented their proof, the probate judge ruled in favor of appellee Sam Highsmith, executor of Mrs. Turner’s estate. We agree that the appellants failed to meet their burden of proof and affirm.

Mrs. Turner executed her will at Highsmith’s office on April 18, 1978. Highsmith, whom Mrs. Turner knew through her friendship with his mother, drafted her will which nominated him as executor. Mrs. Turner died on January 15,1986, leaving four sisters and one brother as survivors.

The appellants contested the will on the basis that Mrs. Turner was not competent to execute a will because of the trauma and continuing grief caused by the death of her husband, who died of cancer in October of 1977. They also contended that Mrs. Turner had a strong personal objection to giving money to institutions and would not have executed a will leaving her estate to the cancer society and to the university absent the undue influence of persons unknown.

Probate and chancery cases are tried de novo on appeal. This court does not reverse unless the findings of the probate judge are clearly erroneous, giving due deference to the superior position of the judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). The party contesting the validity of a will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity or was unduly influenced at the time the will was executed. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). “If the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without promptings, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such instrument.” Id. Influence by a person over the maker of a will “becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.” Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984).

The appellants offered very little evidence in support of their allegations. John Davies, who drove Mrs. Turner to Highsmith’s office to execute the will, testified that she was still grieving over the death of her husband. He also said she was just like any other widow who had lost her husband. Appellant Baerlocker, who lived in California and had not seen her sister in 27 years, testified that Mrs. Turner spoke of her husband often in her letters. Baerlocker also said that she did not notice any change in Mrs. Turner in their correspondence after the death of Mrs. Turner’s husband.

Highsmith testified that Mrs. Turner did not specifically discuss with him how much money she had, nor did she tell him she had a box with $31,000 in cash hidden in her home. Highsmith said, however, that Mrs. Turner was emphatic about leaving her estate as specified. She told him she wanted the cancer society to get half because her husband had died of cancer, and wanted the university to get half because she had some affiliation with the Baptist church and wanted to help young people with their education. Mrs. Turner also told him she had a brother and sisters, but that she did not want to leave them anything. Highsmith stated that he did not notice any change in Mrs. Turner after her husband’s death. In going through Mrs. Turner’s home after her death, Highsmith said he found business records dating back to the 1960’s, recent bills she had paid and the cancelled checks that went with them, tax returns for the previous six or seven years, a list of her certificates of deposit, bank statements and other records. Highsmith said this indicated to him that she was a meticulous person.

The only other proof regarding Mrs. Turner’s competence was a neighbor’s testimony that she became eccentric after her husband died. The fact that a testator is peculiar or eccentric does not establish the lack of capacity to make a will. See Harwell v. Garrett, 239 Ark. 551, 393 S.W.2d 256 (1965).

The appellants produced no evidence to show that Mrs. Turner was unduly influenced in the making of her will, other than testimony that she did not believe in giving to institutions, that she did not like children, and that she had no contact with the cancer society or the university.

The evidence clearly failed to prove that Mrs. Turner lacked the capacity to make a will or was unduly influenced in any manner.

Affirmed.


text:
    Jerrie L. WILLIAMS v. SMART CHEVROLET CO. AND GENERAL MOTORS CORP.
    86-304
    730 S.W.2d 479
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      James L. Hall, Jr., for appellant.

      Wright, Lindsey & Jennings, for appellee Smart Chevrolet Co.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee General Motors Corporation.
   Jack Holt, Jr., Chief Justice.

The appellant, Jerrie L. Williams, was driving her new car when the door swung open and she fell out, injuring herself. She filed a lawsuit against appellee Smart Chevrolet Co., from whom she bought the car, and against appellee General Motors Corp., the manufacturer of the car, on product liability and tort theories. The trial court granted both appellees’ motions for directed verdicts at the close of Williams’ proof. It is from that order that this appeal is brought. We affirm.

William argues on appeal that there was sufficient evidence to submit to the jury the questions of negligence, breach of express and implied warranties, and strict liability for the manufacture, design, material, assembly and repair of the automobile door, door latch mechanism and component parts.

When a directed verdict has been granted, on appeal we take that view of the evidence that is most favorable to the party against whom the verdict was granted and give it its highest probative value, taking into account all reasonable inferences Reducible from it. Dan Cowling & Assoc. v. Clinton Bd. of Educ., 273 Ark. 214, 618 S.W.2d 158 (1981). The granting of the motion is upheld only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Id. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id. Bare conclusions without supporting facts, are not substantial evidence. Substantiality is a question of law. Pickens-Bond Const. Co. et al. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).

Looking at the evidence in the light most favorable to Williams, there was testimony by Williams that she purchased her new Chevrolet Camaro Z-28 from Smart on September 12, 1984, and noticed after a few days that the driver’s side door was difficult to close and would work loose after being shut and locked. She returned the car to Smart for repairs and told them about the problem with the door. Smart returned the car to her and, according to Williams, told her the car was fixed. The door continued to work loose. On October 4, 1984, Williams was driving about 10 miles per hour down a straight, level, gravel road when her door, which she testified she specifically remembered shutting and locking with the power locks, suddenly came open. Williams said she fell out of the car, injuring herself. The car went into a ditch but was not damaged. Immediately after the accident, Williams noticed that the driver’s door latch mechanism had one of the three securing screws hanging partially out. She returned the car to Smart to be fixed. The door, however, continued to work loose, but it never came open again. She sold the car some fourteen months later.

Williams also offered the testimony of her mother, her sister, and a friend that they rode in the car before and after the accident and noticed that the door would work loose.

Mike Keller, assistant technical director of American Interplex Corp., was Williams’ expert witness. He testified that he worked on the car for two or three days in July, 1985, and test drove it on all types of roads and was never able to get the door to come all the way open, including when he tried to force it open. He testified he found no defective parts which would cause the door to fail and come open. He explained that the word “defective” excludes parts which had been abraded or otherwise damaged by external factors. Keller stated that the driver’s side striker bolt, as compared to the striker bolt on the passenger door, had one or two additional shims and had two separate wear patterns, as opposed to one on the passenger side. Keller said this indicated to him that the latch mechanism had engaged at different places on the striker bolt. In addition, the driver’s side door latch was abraded and the jaws of the rotor were flared wider, which he believed was caused by uneven contact of the striker bolt with the rotor jaws. Keller testified that this all resulted in an alignment problem with the door. He explained, however, that his examination of the vehicle did not indicate anything that would have allowed the door to come open and he could not document that it had ever previously been in a condition that would cause that to occur.

Williams argues the foregoing was sufficient proof of negligence to submit that question to the jury. “In an action for negligence, the evidence is sufficient to show proximate cause if the ‘facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.’ ” Cockman v. Welder’s Supply Co., 265 Ark. 612, 580 S.W.2d 455 (1979), quoting St. Louis-San Fran. Ry. Co. v. Bishop, 182 Ark. 763, 33 S.W.2d 383 (1931). In Cockman, the distributor of a grinding disc was sued when the disc exploded while being used. Cockman was dependent on his expert testimony to demonstrate a fact issue and that witness admitted there was nothing in his examination of the disc fragment which would lead him to a conclusion that the disc was defective when it was sold by the distributor to Cockman’s employer. He could not say why the disc exploded. This court held:

Viewing appellant’s evidence most favorably, we cannot say that it negates all possibilities sufficiently to remove the asserted issue of liability from the realm of speculation and conjecture so as to entitle him to have the question presented to the jury.
Here, although there was evidence that the explosion of the disc caused appellant’s injuries, there was no evidence from which it could be fairly inferred that any action by appellee. . .was the proximate cause of the exploding disc and appellant’s resulting injuries. Appellant’s evidence as to proximate cause is not sufficient to remove it from the realm of conjecture or speculation.

Here, too, viewing Williams’ evidence most favorably, it does not negate all possibilities so as to remove the question of negligence from the realm of speculation and conjecture. There was evidence that the door came open and that Williams fell out of the car and injured herself, but there was no evidence from which it could be fairly inferred that any action by Smart or General Motors was the proximate cause of the accident. The trial court correctly granted the directed verdicts as to this issue.

Williams also objects to the granting of directed verdicts on the question of a breach of an express warranty. In support of this allegation, she testified she purchased her car and received a 12,000 mile warranty and that she also purchased an extended warranty for 36,000 miles. She admits on appeal that she produced no further evidence as to the details of the warranty and that she did not offer the warranty itself into evidence. Without any evidence of an express warranty covering the parts of the car in issue, Williams’ argument on this point must fail because of her failure to meet her burden of proof.

The final argument offered by Williams is that it was error to direct verdicts on the issues of strict liability and implied warranty. We reject both theories. Inasmuch as they require similar proof, we will discuss this argument in terms of strict liability. Higgins v. General Motors Corp., 287 Ark. 390, 699 S.W.2d 741 (1985).

Arkansas has adopted the strict liability doctrine in torts in products liability cases. Arkansas Stat. Ann. § 85-2-318.2 (Supp. 1985) provides:

A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(c) the defective condition was a proximate cause of the harm to person or to property.

The doctrine of strict liability does not change the burden of proof as to the existence of a flaw or defect in a product, but it does do away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). The plaintiff still has the burden of proving that a particular defendant has sold a product which he should not have sold and that it caused his injury. Id. “The mere possibility that this may have occurred is not enough, and there must be evidence from which the jury may reasonably conclude that it is more probable than not.” Id., quoting Prosser, The Fall of the Citadel, 32 ATL L.J., p. 21 (1968). We further explained in Southern Co., quoting Prosser, Torts, § 102, p. 672 (4th Ed. 1971):

The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are not less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt ... [I] t is enough that he makes out a preponderance of probability. . . .
[I]n the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raises a reasonable inference that the defendant as argued here, is responsible for the defect.

The plaintiff is not required to prove a specific defect when common experience tells us that the accident would not have occurred in the absence of a defect. Harrell Motors, Inc. et al. v. Flanery, 272 Ark. 105, 612 S.W.2d 727 (1981). The mere fact of an accident, standing alone, does not make out a case that the product was defective, nor does the fact that it was found in a defective condition after the event. But the addition of other facts tending to show that the defect existed before the accident may make out a sufficient case. Id., quoting Prosser, Torts § 102 pp. 672, 673.

This court affirmed a directed verdict for the same appellees, General Motors and Smart, in an analogous case, Higgins v. General Motors Corp. supra. In Higgins, the appellant stepped on the accelerator after a traffic light changed, and the car shot across the intersection and onto the median. He blamed the accident on a malfunction in the transmission, but presented no direct proof of a defect or of the cause of the accident. Instead he relied on circumstantial evidence, primarily his own testimony, as did Williams in the case before us now. This court stated:

Initially, we could not say that when a car moves suddenly, even swiftly, into an intersection common experience tells us that it would not have happened absent a defect. Therefore, we examine the evidence to see to what extent appellant negated other causes of the accident.
Appellant offered proof to negate several possible causes, testifying he was in excellent health prior to the accident, that the weather was good on that day and there had been no misuse or abuse of the car. Our difficulty comes in finding appellant adequately negated any cause of the accident due to driver error or control.
As to the proof of the defect itself appellant testified the car had had transmission problems intermittently from the time he bought it. The trouble was manifested in the car’s hesitation before going into gear. He had taken it to the dealer on several occasions but he continued to have the same problem. The car was about four months old and had approximately 6,000 miles on it.
After the accident appellant had a mechanic completely disassemble the transmission to look for any defect. The mechanic testified as an expert for appellant. . . . However, he could not say whether these defects would cause the car to behave as appellant described. . . . The expert’s testimony was inconclusive as to the existence of any defect and even tended to support the theory that the accident was due to driver error.

Here, too, we cannot say that when a car door suddenly flies open while the car is travelling on a gravel road at 10 miles per hour common experience tells us that it could not have happened absent a defect. Therefore, we examine the evidence to see to what extent Williams negated other causes of the accident. Williams stated that she is positive she shut and locked the door and that she was driving slowly and the road was straight. She testified she was not wearing her seat belt and that, when she saw the door open, she turned to her left and hit the brakes and her left hand came off of the steering wheel. She then fell to the ground, landing on her left hip and the left side of her face. The foregoing does not adequately negate any cause of the accident due to driver error or control. Furthermore, she had an expert examine the car, but he could not say that any of the problems he found were defects or that they would cause the door to come open. The expert’s testimony was inconclusive as to the existence of any defect and tended to support the theory that the accident was due to driver error.

This court in Higgins concluded by finding that appellant’s proof does not go beyond suspicion or conjecture nor raise a reasonable inference that the defect was the cause of the accident. We reach the same conclusion in this case and accordingly affirm the trial court’s action in granting the motions for directed verdict.


author: Darrell Hickman, Justice.

text:
    Carl WIDMER v. Raymond WIDMER, Executor of the Estate of Walter WIDMER, Deceased
    86-302
    729 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987
    [Rehearing denied July 13, 1987.]

      Appellant, pro se.

      Hardin, Jesson & Dawson, by: Bradley D. Jesson, for appellee.
   Darrell Hickman, Justice.

This is the third appeal in this case. Widmer v. Widmer, No. 85-217 (Ark. App. February 26, 1986); Widmer v. Widmer, 288 Ark. 381, 705 S.W.2d 878 (1986). In the last appeal, we held that the fees received by the attorney for the estate could not be retained for services which he performed while his license was suspended for failure to pay his license fee. On remand, appellant argued the attorney knew that his license was suspended at the time of the hearing admitting the will into probate. Therefore, the attorney practiced deceit and fraud upon the probate court. A motion was filed to vacate the order admitting the will to probate. After a hearing the probate judge found that the motion was barred by the doctrine of law of the case and res judicata.

The appellant, Carl Widmer, argues that he had no proof or knowledge that the lawyer Tuohey acted with deceit and fraud until the matter was last remanded. Therefore, his motion to dismiss should not be barred by res judicata. The judge found otherwise; he correctly found that the motion could have been filed.

Affirmed.


author: John I. Purtle, Justice.

text:
    Larry G. THURSTON v. Ada Thurston PINKSTAFF
    86-264
    730 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987
    [Rehearing denied July 13, 1987.]

      Patten & Brown, for appellant.

      Rowland & Templeton, by: Randell Templeton, for appellee.
   John I. Purtle, Justice.

The chancellor modified an earlier child support order which had modified an agreement between the parties relating to child custody and support. In the new order the trial court based his decision on support payments upon the family support chart found in the Domestic Relations Handbook of the Arkansas Bar Association. The appellant argues the chancellor used the support chart improperly and also erroneously changed the agreement between the parties relating to the disposition of a part of the child support. The record does not disclose that the chancellor’s finding of a “sufficient change in circumstances” was clearly erroneous. The decree must therefore be affirmed.

The appellee petitioned for an increase in child support and appellant petitioned for a reduction in support payments due to the fact that one of the two children had reached majority. The order here in question was entered based upon the petition, other pleadings, the agreement between the parties and financial affidavits filed by the parties. No testimony or other evidence was presented to the court.

The original decree of divorce was entered on May 7,1976. It incorporated by reference the agreement between the parties relating to child custody and support. The terms of the agreement provided, among other things, that the appellant would pay the sum of $250 per month to the appellee for the support of their two minor children. The agreement also provided that, upon appellee’s remarriage, forty percent of the support payments were to be deposited in a separate fund. Several subsequent orders were entered changing the terms of visitation and arrangements for support payments prior to entry of the order here in dispute. The child support under the parties’ agreement had reached $290 per month for the two children when the appellee remarried and the support was frozen.

The order from which this appeal arises was entered on April 10, 1986. The notice of appeal attempts to have the prior orders and the separate agreement reviewed and modified or reinstated. The main argument is that the court used the child support chart in an arbitrary and discriminatory manner. The court followed the chart precisely to the top income figure and when the appellant’s income went beyond the chart the chancellor started all over again. The result was that instead of the current payments of $290 per month for two children, the appellant was ordered to pay $338 per month for one. The chancellor also eliminated the provision which provided for forty percent of the support to be deposited in a separate fund.

Apparently the parties agreed that the chancellor would decide the case without benefit of testimony or other additional evidence. Since the appellant contends the chancellor erred, it was his duty and responsibility to present to this Court sufficient evidence, argument, and citation of authority to prove his argument. He has not done so. Neither has he shown that there was no evidence to support the chancellor’s decree.

We first discuss the proper use of the family support chart found in the Domestic Relations Handbook published by the Arkansas Bar Association. It is referred to in Ark. Stat. Ann. § 34-1211(a) (Supp. 1985), which states:

In determining a reasonable amount of support to be paid by the non-custodial parent, the court shall refer to the most recent revision of the family support chart found in the Domestic Relations Handbook . . . and may use such in determining the amount of support to be ordered.

Although we have not previously discussed the extent to which the support chart should be considered by the trial courts, we have no hesitancy whatsoever in holding that the courts are required to refer to the chart but are not bound to set support payments in accordance with the exact terms thereof. The statute clearly states the courts “may” use the chart in determining the amount of support. This is simply another manner of stating that the degree of dependence upon the chart is left to the sound discretion of the chancellor. There are numerous other matters which have a strong bearing in determining the amount of support. It is error to change the amount of support where there is no evidence submitted to show a change in circumstances. Meeks v. Meeks, 290 Ark. 563, 721 S.W.2d 653 (1986).

By statute the chancery courts are required to make such orders touching upon the care and support of children as from the circumstances of the case shall be reasonable. Ark. Stat. Ann. § 34-1211(a). This Court stated the basic considerations for establishing child support in Barnhard v. Barnhard, 252 Ark. 167, 477 S.W.2d 845 (1972). There we stated:

In considering the amount to be contributed for child support, the court should consider the needs of the children, the assets of each parent, their respective ages, earning capacities, incomes and indebtedness, state of health, future prospects and any other factors which will aid the court in reaching a just and equitable result.

The law has not substantially changed since Barnhard. This Court and the Court of Appeals have continued to apply the standard criteria used in Barnhard. See Perkins v. Perkins, 15 Ark. App. 82, 690 S.W.2d 356 (1985), and concurring opinion of Glaze, J.

There is an argument by the appellant that certain remaining conditions of the agreement between the parties should have not been changed by the chancellor. However, he admits that Williams v. Williams, 253 Ark. 842, 489 S.W.2d 774 (1973), among others, holds that such separate agreements, even if incorporated into the decree, cannot diminish the power of the court to modify support upon a determination of a change of circumstances. Williams is still sound law.

What change of condition is required before the amount of child support should be changed? In Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980), we affirmed the chancellor’s refusal to find a change of conditions and in doing so stated:

The decree recited that the “defendant is paying considerably less than the support chart recognizes as equitable based on his net earning capacity.” However, [the chancellor] found that the appellant was not entitled to an increase in child support. Obviously, the chancellor recognized that any reference to “a chart” is only one factor in making his decision.

Clifford v. Danner, 241 Ark. 440, 409 S.W.2d 314 (1966), holds that no order for child support is ever res judicata or so final that the obligations of a parent to the child are not subject to modification. The decisions of this Court have for many years adopted the rule that a trial court always has the right to review and modify child support payments in accordance with changing circumstances and may increase or reduce the payments as warranted in each case. Johnston v. Johnston, 241 Ark. 551, 408 S.W.2d 885 (1966) and Lively v. Lively, 222 Ark. 501, 261 S.W.2d 409 (1953).

Without attempting to enumerate all of the various matters which should be considered in determining whether there has been a change in circumstances warranting adjustment in child support, we have considered such things as: remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change of custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child support chart.

We cannot say on the record whether the court felt bound by the amounts listed in the child support chart or whether he merely used it as a guide. The support chart is to be considered by the trial court along with other relevant factors. However, the chart is only a guide and the amount of support is a matter within the reasonable discretion of the chancellor after consideration of all relevant information. The decree in the present case stated that all of the necessary considerations were taken into account by the chancellor. The record does not reflect the considerations relied upon by the chancellor. The case apparently was submitted to him based upon the pleadings, affidavits, and the file. Therefore, we cannot say the chancellor was clearly wrong.

Affirmed.


author: Steele Hays, Justice. John I. Purtle, Justice,

text:
    Vernon Ray COPE v. STATE of Arkansas
    CR 87-13
    730 S.W.2d 242
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      Val P. Price, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Vernon Ray Cope was convicted of two counts of raping his daughters, Jennifer and Debra, between December 1,1984 and August 12,1985. Cope was convicted and received two consecutive life sentences in the Arkansas Department of Correction. On appeal, four assignments of error are presented. We affirm the judgment.

Sufficiency of the evidence as to Jennifer Cope

Cope contends there was insufficient evidence to support his conviction of raping Jennifer. He points out the state must prove the sexual intercourse was the result of forcible compulsion, or that it occurred after the effective date of Act 281 of 1985, neither of which, he urges, the state proved.

On March 7, 1985 Act 281 became effective. The act provides that one commits rape by engaging in sexual intercourse with another person either by forcible compulsion or, regardless of compulsion, if the other person is less than fourteen years of age. Previous to Act 281, the specified age was eleven. Since Jennifer was born on May 6,197 3 the state must prove that sexual intercourse occurred after March 7 or was accomplished by forcible compulsion. Cope insists that there was no proof of either.

We need not decide whether Jennifer’s testimony that her father would remove her clothes, have sexual intercourse with her, which was painful, and warn her not to tell anyone, meets the statutory requirement of forcible compulsion. Jennifer testified that her mother attended classes on Tuesday and Thursday nights and that these episodes regularly occurred during her mother’s absences. The classes ended in May 1985. Jennifer also testified the acts continued until she was removed to a foster home in mid-August 1985. We believe the evidence was sufficient that the offenses occurred after the effective date of Act 281 while Jennifer was less than fourteen years of age.

Sufficiency of the evidence as to Debra Cope

Cope submits the proof was insufficient to support his conviction of the rape of Debra. The child’s testimony contained a number of inconsistencies— she said her father had not touched her private parts but answered “yes” when the question was repeated. Nor was there any corroboration of her testimony, including any physiological evidence of intercourse.

We concede the inconsistencies in Debra’s testimony, but these flaws are relevant to credibility rather than substantiality. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). When asked what would happen after her father “threw her on the bed,” Debra answered, “He would put his private in my private.” The uncorroborated testimony of a rape victim is sufficient to support the verdict. Smith v. State, 277 Ark. 64, 638 S.W.2d 692 (1982). Debra’s testimony was corroborated to a degree by the statement of the appellant himself to the police. He admitted having sex with Jennifer “a lot more than 2 times” and said he might have “played with Debra’s [vagina], I don’t know. I am a sick man.”

Admission of Cope’s Third Statement

The third point concerns the admission of Cope’s third statement, given after he had taken a polygraph examination. Miranda warnings had been given twice previously, once just prior to the polygraph. However, the warnings were not repeated immediately following the test and Cope maintains this omission fatally taints the statement. We disagree. There is no requirement that the Miranda warnings, when properly given, must be repeated in each instance. Cope had twice been given the warnings, professed his understanding of them and gave his third statement shortly after the second warnings. Wyrick v. Fields, 459 U.S. 42 (1982).

The argument that the language of the statement is “dubious” was not made to the trial court and the argument that Cope did not understand his rights is refuted by the record, which we have reviewed independently on appeal. Williamson v. State, 277 Ark. 52, 639 S.W.2d 55 (1982).

Bill of Particulars

The final contention is that, the court should have granted a motion by the defense for a bill of particulars specifying the date, time and place the acts occurred. Cope relies on Bliss and Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984), where we reversed and remanded on several grounds, including the failure of the state to furnish a requested bill of particulars. In Bliss the defendants were charged with rape and deviate sexual activity and by their motion for a bill of particulars they sought to determine which of the two offenses they were alleged to have committed. Unlike Bliss, in this case the prosecutor informed defense counsel that the state’s case would consist of sexual intercourse with each child, accompanied by penetration and fondling. We have recognized that the trial court has some discretion under Ark. Stat. Ann. § 43-1006 (Repl. 1977) in granting motions for a bill of particulars and we are not shown that the denial of the motion worked to the prejudice of Vernon Cope. Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978).

The judgment is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent from that part of the opinion which affirms the conviction for the rape of Debra Cope, the younger daughter. Not only was there no substantial evidence that Debra had been raped, there was positive evidence that sometime later she was still a virgin — her hymen was still intact. The examining physician found no evidence of sexual abuse or intercourse. The only evidence was Debra’s testimony.

The rape of both girls is alleged to have occurred between December 1984 and August 12, 1985. When the girls were first interviewed, Jennifer said she had been raped and Debra stated she had not been raped or molested. However, after the videotaped statement of her sister was taken, Debra then stated she had been raped in exactly the same manner as her sister testified she had been raped.

In June of 1986 the video depositions of the girls were taken. Debra did not remember telling the investigators that the appellant had not raped her. She testified positively that the appellant would get on top of her and “put his private in my private.” Her testimony was clearly that the appellant had vaginal intercourse with her. There was never any other evidence offered to substantiate her statement. The examining physician found absolutely no evidence to support her story. Since she at first denied that appellant had even touched her private parts and only changed her story after Jennifer described how she had been raped, I believe that she was simply following the leader.

I have no disagreement with our cases which have upheld rape convictions on the testimony of the victim. In all those cases, however, there was also physical evidence that a rape had actually occurred. In this case no such evidence was presented. The appellant admitted that he had indeed had vaginal intercourse with Jennifer; however, he steadfastly denied any misconduct with Debra.

There is no question that child molesters and those who commit rape should and must be dealt with rather harshly. There is presently a hue and cry for vengeance in such cases. That is fine unless it goes so far as to automatically condemn anyone charged with such an offense. Young children are learning from the news media and other sources that accusing an adult with such a crime is one way of getting even with them for any grievance the child might have. An accused should still be considered innocent until reliable and positive proof of guilt is established. However, I fear society and the law is rapidly reaching the point where the mere accusation by a child that an adult has molested him or her is sufficient to send the accused to prison for life.

There is a substantial difference in the situation where a child reports being molested at the first opportunity and where the child reports such an offense many months later after a great deal of coaching. In the present case, other than the alleged victim’s testimony, there was no evidence that Debra had been raped. In fact, the doctor’s finding that her hymen was still intact indicates lack of sexual intercourse.

The appellant received a life sentence for raping Jennifer. Unless clemency is granted he will spend the rest of his life in prison. I do not feel that the second life sentence for raping Debra is founded upon substantial evidence.

       Ark. Stat. Ann. § 41-1803 (1985 Supp.)


author: David Newbern, Justice. Steele Hays, Justice,

text:
    Mary Katherine BASINGER v. Dixon BRIDGES, Executor of the Estate of Edna Greig, Deceased
    86-287
    730 S.W.2d 486
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987

      Walters Law Firm, P.A., for appellant.

      Michael J. Medlock, for appellee.
   David Newbern, Justice.

The appellant, Mary Katherine Basinger, is a niece and beneficiary named in the will of Edna Greig, deceased. The will provided, in part:

I give, devise and bequeath to my niece, Mary Katherine Basinger of Route 1 Box 185, Huntinton, Arkansas, my savings at First Federal Savings and Loan Association in Van Burén, Arkansas. Her name has been placed on this account.

Upon the death of Edna Greig there were three savings accounts at First Federal in Van Burén, but only one of them had the appellant’s name on it as a pay-on-death beneficiary. The appellant contended she was entitled to all three accounts. The probate judge held she was entitled only to the one with her name on it because the will was unambiguous in saying so. The appellant put on evidence tending to show that the decedent intended her to have all three of the accounts. We agree with the judge that the use of the term “this account” was unambiguously singular. Thus we affirm the probate judge’s decision.

There is no factual dispute. The appellant testified that the decedent told her on many occasions that she was leaving her enough money to build a house, the implication being that all three accounts would contain enough money to build a house, but that the one account did not. The other evidence the appellant produced included testimony by the lawyer who prepared the will. He did so from notes which had been prepared by the decedent. Those notes, in pertinent part, said:

I give & bequeath to my niece Mary Katherine Basinger Huntington, Ark. Rt 1 Box 185 Savings at 1st. Federal & loan co. Van Burén, Ark her name on my book.

The lawyer testified that the testatrix told him that the appellant would get a little more than the testatrix’s sister who was being given a $10,000 bequest, but “she [the sister] will understand.” The appellant argued that the evidence that she was to get more than the sister meant that the testatrix intended to give her more than the one account which was only $9,000 at the time the will was made. Considering the testatrix’s remark that the appellant would get a little more than the sister as a prediction, it turned out to be accurate. The testatrix lived long enough for the account with the appellant’s name on it, which was $9,000 at the time the will was made, to grow to over $12,000, while the bequest to the sister remained static.

The lawyer’s testimony was that when the will was made he did not know there was more than one account at First Federal of Van Burén. It is clear, however, that all three accounts were in existence when the will was prepared. Although he did not know of the other accounts, he did ascertain that there would be assets not disposed of if he followed the notes the testatrix had given him, so he suggested a residuary clause. Such a clause was added, and the residuary beneficiaries were named by the testatrix for inclusion.

The precedent signed by the probate judge said that the words, “her name on my book,” were and were meant to be singular, and thus applied only to one account. The order signed by the judge said the will was unambiguous and showed the testatrix’s intent to be that only one account was to pass to the appellant. The appellant argues that, had the testatrix merely said she was leaving her savings at First Federal of Van Burén to the appellant, there could be no question but that all three accounts were intended to go to her. However, the added words, “her name has been placed on this account,” negate the intention to bequeath more than one account to the appellant.

The probate judge recognized the unambiguity of the reference to a single account, and stated in the precedent for the order that the words of the decedent, “her name on my book” supported the appellees’ contention that the decedent intended that only one account pass to the appellant. That was the judge’s conclusion, and we cannot disagree. When the language of the testatrix is unambiguous and leaves no doubt as to her intent, we need not look beyond that language in construing the will. Mills’ Heirs v. Wylie, 250 Ark. 703, 466 S.W.2d 937 (1971); Quattlebaum v. Simmons National Bank of Pine Bluff, 208 Ark. 66, 184 S.W.2d 911 (1945).

Affirmed.

Purtle and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. I believe the will was ambiguous and hence, the trial court should have taken proof of the intent of the testatrix. Her will makes an unqualified bequest of “my savings at First Federal Savings and Loan Association in Van Burén, Arkansas.” Whether those savings are in one account or in several accounts, the language is all inclusive. The following sentence— “Her name has been placed on this account”— creates the problem, as it cannot be squared with the fact there were three accounts as opposed to one. The two sentences cannot be reconciled and appellant was entitled to offer proof as to what the testatrix intended. In Martin v. Simmons First National Bank, 250 Ark. 774, 467 S.W.2d 165 (1971) we summarized the law:

“Whenever there is uncertainty as to the intention of a testator, which cannot be clearly ascertained when the words of his Will are considered in their ordinary sense, the court must read the language employed by the testator in the light of the circumstances existing when the Will was written and in order to put itself in the place of the testator, as nearly as possible, may consider all surrounding facts and circumstances known to him, including the condition, nature and extent of the testator’s property, his relations with his family and other beneficiaries named, the motives which may reasonably be supposed to influence him, the subject matter of the gift, the financial condition of the beneficiary and other such matters.” Murphy v. Morris, Executor, 200 Ark. 932, 141 S.W.2d 518, Rufty v. Brantley, 204 Ark. 32, 161 S.W.2d 11; Thompson v. Arkansas National Bank of Hot Springs, Trustee, 220 Ark. 802, 249 S.W.2d 958; Eagle v. Oldham, 116 Ark. 565, 174 S.W. 1176.”

I would reverse and remand.

Purtle, J., joins.


author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    Mahlon A. MARTIN, Director, Department of Finance and Administration, et al. v. RIVERSIDE FURNITURE CORPORATION
    86-273
    730 S.W.2d 483
    Supreme Court of Arkansas
    Opinion delivered June 8, 1987
    [Rehearing denied July 13, 1987.]

      Timothy J. Leathers, Joseph V. Svoboda, Wayne Zakrzewski, Kelly S. Jennings, Ann Kell, Joe Morphew, Philip Raia, and Robert Jones, by: John Theis, for appellant.

      Don A. Smith and Thomas Harper, for appellee.

       Hickman, J., would grant rehearing.

   David Newbern, Justice.

This appeal challenges a use tax imposed on advertising materials. Riverside Furniture Corporation is an Arkansas corporation, located in Fort Smith, which manufactures furniture for sale throughout the United States. An audit was conducted of Riverside’s records and books by the Department of Finance and Administration for the period of 1979-1982. The auditor found invoices for advertising materials, catalog inserts, photographs, and ad slicks. These materials were purchased from out-of-state companies for Riverside to distribute to its sales representatives and dealers outside Arkansas. The materials were delivered to the Fort Smith office where they were collated, packaged, and mailed to the sales representatives and dealers located outside Arkansas.

On July 7,1982, Riverside received a notice of assessment of use tax, penalty, and interest. After exhausting its administrative remedies, Riverside filed suit alleging the advertising materials were exempt from taxation. The parties stipulated that some of the advertising materials were incorrectly included in the assessment. The tax paid on those items would be refunded. The chancellor determined that the remaining items were exempted because they had not “finally come to rest” in Arkansas. We disagree.

The standard of review for tax exemption cases is trial de novo upon the record, and we will not reverse the chancellor’s findings of fact unless they are clearly erroneous. Western Paper Co. v. Qualls, 272 Ark. 466, 615 S.W.2d 369 (1981); S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980). The party claiming the exemption has the burden of proving that he is entitled to the exemption beyond a reasonable doubt. Ragland v. K-Mart Corp. 274 Ark. 297, 624 S.W.2d 430 (1981); Western Paper Co. v. Qualls, supra. Tax exemption provisions must be strictly construed against exemption with any doubt justifying taxation. Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835 (1975).

Ark. Stat. Ann. § 84-3105(a) (Repl. 1980) provides for the imposition of a use tax. That statute reads:

There is hereby levied and there shall be collected from every person in this State a tax or excise for the privilege of storing, using or consuming, within the State, any article of tangible personal property . . . purchased for storage, use or consumption in this State. . . . This tax will not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this State until the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State. . . .

The last sentence of the statute recognizes the constitutional limitation of a state’s imposition of a tax on goods in interstate transit. If the goods have not “come to rest” within the state, they are still in the stream of interstate commerce, and a tax may not be levied. The question we are presented with here is whether the advertising materials came to rest within this state. If so, a tax on the materials does not impermissibly burden interstate commerce.

We have considered this exemption on two previous occasions. First, in American Television Co. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973), a television station contracted with an out-of-state firm to furnish movies for broadcasting on the station. After the movie was shown, it was returned. A use tax was imposed on the video tapes. We determined the tapes had come to rest within the state for the intended use — to be broadcast.

In Skelton v. Federal Express Corp., 259 Ark. 127, 531 S.W.2d 941 (1976), Federal Express purchased eighteen Falcon Jet airplanes. These planes were delivered to Federal Express offices in other states, but the planes were transported to the Little Rock office for modifications before they could be used for delivery service. It took about fifty days for each plane to be modified, then the planes were sent to Memphis. A use tax was imposed on the planes. We upheld the imposition of the use tax because the modifications were not incidental to the transportation of the aircraft.

The advertising materials did “finally come to rest” in Arkansas within the meaning of the statute. The materials were purchased by Riverside for mailing to its sales representatives and dealers who are all outside the state.

The materials were shipped to Fort Smith where they were, albeit for a short period, removed from interstate commerce for the purpose of packaging, addressing, mailing, and, in the case of the catalog inserts, collating, before being sent on to the sales representatives. The evidence also showed that Riverside retained a number of the items in Fort Smith to meet increased demand or emergencies.

We hold therefore that the advertising materials are not exempted from the use tax. The materials came to rest within the state and, during the time they were processed for dispersal from Fort Smith, were not a part of interstate commerce. The use tax may properly be imposed. Southern Pacific Co. v. Gallagher, 306 U.S. 167 (1939); Inter-State Nurseries, Inc. v. Iowa Dept. of Revenue, 164 N.W.2d 858 (Iowa 1969).

The citation to the Gallagher case leads us to consider a point that was not addressed by either party. The case of Burlington Northern Railroad Company v. Ragland, 280 Ark. 182, 655 S.W.2d 437 (1983), implies that Gallagher is no longer good authority for determining whether an item is within the stream of interstate commerce. That implication is based on the United States Supreme Court decision of Complete Auto Transit Inc. v. Brady, 430 U.S. 274 (1977), which we said set out a new test for determining such matters.

We take this opportunity to recognize that Brady does not address that question of whether an item’s transit through interstate commerce is continuous or sufficiently interrupted so as to come to rest. Brady involves the question of whether a foreign entity has a sufficient connection with the state to allow the state to impose a tax on the entity’s activities. Any language in Burlington that extends the Brady holding beyond this point is incorrect.

The dissenting opinion cites no authority for its stark and incorrect proposition that this decision encroaches on the legislative function. The error of the dissent becomes apparent when one asks how it would be any more “interpretive” and less “legislative” if we were to reach the opposite result. If the suggestion is meant to be that the result we reach is an unreasonable interpretation, we simply must disagree. Advertising materials are “used” when they “come to rest” long enough to be sent to those sought to be influenced by them. We are interpreting § 84-3105(a) in the manner we think intended by the general assembly.

Reversed.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I would affirm the chancellor because the advertising material was not used in Arkansas and it did not finally come to rest within the state for taxation purposes.

Goods and merchandise purchased in Arkansas are generally subject to a sales tax. Goods and merchandise purchased outside Arkansas and brought into the state for use in the state are subject to the use tax. The legislature has recognized, and rightly so, that goods merely passing through the state, not used here, should not be taxed. In fact Ark. Stat. Ann. § 84-3105(a) (Repl. 1980) says:

This tax will not apply with respect to the storage, use or consumption of any article of tangible personal property purchased, produced or manufactured outside this State until the transportation of such article has finally come to rest within this State or until such article has become commingled with the general mass of property of this State. . . .

The advertising materials here did not finally come to rest in Arkansas. The only “use” was the packaging and mailing of the material out-of-state.

In Burlington Northern Railroad Co., et al v. Ragland, 280 Ark. 182, 655 S.W.2d 437 (1983), we denied the application of the use tax to railway cars loaded for the first time in Arkansas. In American Television Co. v. Hervey, 253 Ark. 1010, 490 S.W.2d 796 (1973), we upheld the use tax on video tapes used by a television station. Both of these decisions were right in my judgment. The case of Skelton v. Federal Express Corp., 259 Ark. 127, 531 S.W.2d 941 (1976), is wrong in my opinion. A use tax was applied to airplanes transported to Arkansas, not for use, but for modifications. The airplanes were never used in Arkansas, nor intended for use here, and to tax them at their market value was, in my judgment simply to rewrite the use tax law. Courts are often accused of “legislating.” There is, of course, a difference between interpreting legislative acts and simply changing them. The former is permissible — the latter is an abuse of power for which there is no direct remedy. The majority decision in this case is a clear encroachment by this court on the power of the legislature.