author: Jack Holt, Jr., Chief Justice.

text:
    E. J. McGUIRE and Billy McGuire v. Jimmy BELL, Dr. B.C. Criswell, and J.R. Young
    88-136
    761 S.W.2d 904
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Martin, Vater, Karr & Hutchinson, by: Charles Karr, for appellants.

      Gant & Gant, for appellees.
   Jack Holt, Jr., Chief Justice.

In this action, the appellants, E.J. and Billie McGuire, challenge the trial court’s ruling that restrictive covenants limiting the use of property in the Vista Hills and Loch Lomond Additions of Van Burén, Arkansas, to single-family residences are applicable to the McGuires’ property, Tract 7, and question the trial court’s refusal to issue an order enjoining the appellees, who are property owners in the Vista Hills Addition and the adjoining Loch Lomond Addition, from interfering with the sale of the property. In addition, they take issue with the trial court’s failure to declare that the covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled. In the alternative, the McGuires argue that if the covenants do encompass residential facilities for the mentally retarded or developmentally disabled, the court should have declared that State enforcement of the covenants denies such persons equal protection of the law. We find no error and affirm the judgment of the trial court.

In the 1950’s Vista Acres, Inc., bought a 600 acre tract of land in Van Burén, Arkansas, for development of residential subdivisions and lots. In 1960, Vista Acres began developing a portion of the tract into two residential subdivisions, the Vista Hills and Loch Lomond Additions. Vista Acres developed the two subdivisions in stages.

On April 15,1960, Vista Acres filed a plat of Lots 1 through 62, Vista Hills Addition, and a bill of assurance for the platted lots (except Lot 16) containing, in pertinent part, the following language:

RESTRICTIONS FOR VISTA HILLS ADDITION TO THE CITY OF VAN BUREN, ARKANSAS
3. All lots in Vista Hills Addition shall be used for residential purposes only. No building shall be used or structure shall be erected, altered, placed, or permitted on any lot other than one single family dwelling unit, private garages for the occupants’ vehicles, and other out buildings incidental to the residential use of the lots.

On September 13, 1961, Vista Acres filed a plat of Lots 63 through 81 and 83 through 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition. On this date, Vista Acres also filed a bill of assurance for Lots 63 and 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition, containing essentially the same restrictions as the first bill of assurance.

On November 20, 1961, Vista Acres filed a plat for Lots 91 through 99, Vista Hills Addition, with a notation that Lots 91 through 99 are subject to all restrictions contained in the bills of assurance applying to Lots 1 through 15 and 17 through 62, Vista Hills Addition. The plat contains no acknowledgment.

On January 12,1962, Vista Acres filed an additional bill of assurance for Lots 63 through 90, Vista Hills Addition, and Lots 1 through 12, Loch Lomond Addition, containing virtually the same restrictions as the first two bills of assurance.

From March 16, 1962, to February 24, 1965, Vista Acres filed plats for Lots 13 through 21, Loch Lomond Addition, and Lots 100 through 102, and Tracts 2 through 6, Vista Hills Addition. These unacknowledged plats incorporate by reference the restrictions contained in the bills of assurance.

On December 13,1965, Vista Acres filed a plat for Tract 7, Vista Hills Addition, containing the following notation:

RESTRICTION
Tract 7 shall be limited to a maximum of three (3) residential dwellings.
Restrictive covenants are filed as separate documents. The covenants as filed for Lots 1 through 99, Vista Hills Addition, Lots 100 through 102, Vista Hills Addition, Lots 103 through 105, Vista Hills Addition, and Lots 1 through 21, Loch Lomond Addition, shall be applicable to Tract 7, Vista Hills Addition.

The plat contains no acknowledgment. Vista Acres did not file a bill of assurance for Tract 7.

On the same day, Vista Acres conveyed by corporation deed Tract 7, Vista Hills Addition, to E.K. Ragge, et ux. The corporation deed contains the following notation:

Tract 7, Vista Hills Addition to the City of Van Burén, Arkansas, as per plat filed December 13,1965. Subject to recorded easements and restrictive covenants.

On September 27,1972, the Ragges conveyed Tract 7, Vista Hills Addition, to Albert Williams, et ux. On July 31, 1974, the Williamses conveyed the property to Ed and Joyce Hopkins. On July 2, 1976, Ed and Joyce Hopkins conveyed the property to Joyce Hopkins. The deeds for these transfers do not refer to restrictive covenants.

On November 5, 1976, Joyce Hopkins executed and filed a document in the office of the Circuit Court of Crawford County entitled “Removal of Restriction by Sole Owner,” stating that the restrictive covenants contained in the plat for Tract 7 are hereby revoked and rescinded.

On July 14, 1978, Joyce Hopkins conveyed Tract 7 to appellants E.J. and Billie McGuire by a warranty deed containing no restrictive covenants.

Thereafter, the McGuires built a 17,000 square foot, four-level combination home and corporate headquarters on the property. In December of 1984, the McGuires contracted to sell the property to Mr. and Mrs. Smithson for $700,000.00. The Smithsons intended to convert the property into a residential care facility for the mentally retarded and developmentally disabled. When the Smithsons’ intended use became known, opposition in the neighborhood developed. At the conclusion of a public meeting where residents in the Vista Hills and Loch Lomond Additions expressed opposition to the sale of the property for use as a residential care facility, Mr. Smithson announced that he was abandoning his plan to use the property for a residential facility. Subsequently, the Smithsons breached their contract to buy the McGuires’ property.

After this transaction fell through, the McGuires found another prospective purchaser, Oman Ising, who was interested in using the property for purposes similar to that of the Smith-sons. Neighborhood opposition continued. Thereafter, Ising backed out of the proposed transaction. The McGuires have been unable to sell their property.

On June 10, 1985, the McGuires filed a class action suit against the appellees alleging among other things that (1) “[n]o restrictive covenants were ever established in a manner authorized by law; (2) [defendants have no standing to challenge Plaintiffs sale of Tract 7 or the development of Tract 7 in a manner inconsistent with the restrictive covenants for the Vista Hills and Loch Lomond Additions; and (3) [defendants have lost their right to enforce any restrictive covenants for Tract 7 by laches or acquiescence.” The McGuires prayed (1) that the court enter a declaratory judgment that the restrictive covenants for the subdivisions are not applicable to Tract 7 or, in the alternative, a decree cancelling the restrictive covenants because of changed conditions; and (2) that the court enter an order enjoining the appellees from interfering with the McGuires in their attempts to sell Tract 7.

In an amended complaint, the McGuires made two additional allegations:

(1) State enforcement of restrictive covenants through the courts to prohibit residential facilities for the mentally retarded or other developmentally disabled denies such mentally retarded or developmentally disabled persons equal protection of the laws in violation of the fourteenth amendment, the Constitution of Arkansas, and the public policy of Arkansas; and
(2) Even if the restrictive covenants were held applicable to Tract 7, such restrictive covenants do not prohibit a residential facility for mentally retarded or developmentally disabled.

The McGuires also asked that the trial court enter a declaratory judgment that the restrictive covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled.

At trial, Tommy Van Zant, the developer of the Vista Hills and Loch Lomond Additions, testified that he and the other partners in the development never intended Tract 7 to be used for other than single-family residential purposes.

In its decree, the trial court denied the McGuires’ request for a declaratory judgment that the restrictive covenants are not. applicable to Tract 7. In doing so, it concluded that the restrictive covenants are applicable to Tract 7 for the following reasons:

(1) There are no commercial enterprises or other buildings in the Vista Hills and Loch Lomond Additions.
(2) The McGuires purchased and acquired Tract 7 in a residential neighborhood fully aware of the restrictive covenants filed of record and the nature of the subdivisions being residential single-family dwellings.
(3) There is no question that the owner’s scheme or plan was to develop residential subdivisions with single-family dwellings.
(4) Joyce Hopkins’ action in endeavoring unilaterally to remove the restrictive covenants was null and void and of no effect in that there is no evidence that anyone involved in the litigation received notice of her action.

In denying the McGuires’ request for a decree cancelling the restrictive covenants, the trial court found that there was no proof of changed conditions or any other reason to cancel the covenants.

The trial court declined to make a ruling concerning the McGuires’ contentions that (1) State enforcement of restrictive covenants through the courts to prohibit residential facilities for the mentally retarded or other developmentally disabled persons denies such mentally retarded or developmentally disabled persons equal protection of the laws in violation of the fourteenth amendment, the Constitution of Arkansas, and the public policy of Arkansas and that (2) the restrictive covenants do not prohibit a residential facility for the mentally retarded or developmentally disabled on the grounds that the McGuires failed to present sufficient proof on these two issues and failed to establish that “there is presently a sale, program, or proposal of this kind involved between the parties.”

Finally, the court denied the McGuires’ request for injunctive relief, finding as follows:

(1) The respondent’s desire to keep the residential single-family scheme of the neighborhood intact is a legitimate concern.
(2) Respondents took no actions other than expression of their opinion at public meetings and in articles printed by the news media against the sale of the McGuires’ property for use as a facility for mentally handicapped persons.
(3) They have a right to freedom of expression and freedom to organize to do so.
(4) The proof in the case does not indicate that the respondents have prevented the sale of petitioner’s property. The prospective buyers have, for their own reasons rather than for any alleged prevention by respondents, withdrawn from the purchase of the property.
(5) The petitioners own and occupy their property and are free to sell or dispose of it without interference from anyone. That, however, in this case the opposition of respondents is not found to be such an interference as would prevent a sale or disposition by petitioners of their property.
(6) The petitioners have not suffered or shown any irreparable harm imminent or occasioned by the respondents.
From the trial court’s final decree, the McGuires appeal.

I. DECLARATORY RELIEF.

A. THE RESTRICTIVE COVENANTS ARE NOT APPLICABLE TO TRACT 7.

The McGuires contend the trial court erred in failing to grant a declaratory judgment that the restrictive covenants are not applicable to Tract 7. We disagree.

On appeal we consider the evidence in the light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987). Although we try chancery cases de novo on the record, we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987).

“Courts do not favor restrictions upon the use of land, and if there is a restriction on the land, it must be clearly apparent.” Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). See also Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970). In construing covenants, the intention of the parties, as shown by the covenants, shall govern. White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972).

The ordinary method of establishing restricted districts when new subdivisions are surveyed and platted is to file a plat and bill of assurance, whereby the owner obligates himself not to convey except in conformity with the restrictions imposed in the bill of assurance. Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971); Moore v. Adams, 200 Ark. 810, 141 S.W.2d 46 (1940). However, it is not always essential that there be a bill of assurance filed with the plat of the subdivision; the restricted use may be annexed to the conveyances of the land. Harbour, supra. The theory upon which these restrictions are imposed is that one taking title to land with notice that it is subject to restrictions upon its use will not, in equity and good conscience, be permitted to violate its terms. Moore, supra.

Where no general plan of development exists, restrictive covenants in either a bill of assurance or a deed conveying the land are not enforceable. Constant, supra. See Harbour, supra. The test of whether such a plan exists is whether substantial common restrictions apply to all lots of similar character or similarly situated. Id.

The McGuires do not contest the trial court’s finding that a general plan of development for the Vista Hills Addition exists. Instead, they argue that the restrictive covenants in the three bills of assurance filed on April 15, 1960, September 13, 1961, and January 12,1962, are not applicable to Tract 7 for the following reasons: (1) the bills were not executed by the owners as required by Ark. Code Ann. § 18-12-103 (1987), and, therefore, the bills and restrictive covenants contained therein are invalid; and (2) the plat filed for Tract 7 was not acknowledged as required by Ark. Code Ann. § 16-47-101 (1987), and, therefore, the developer’s attempt in the plat to incorporate by reference the covenants contained in the bills of assurance filed on April 15, 1960, September 13, 1961, and January 12, 1962, was invalid.

The McGuires first argue that the bills of assurance and restrictions are invalid because the bills were not executed by all of the owners of the property.

Ark. Code Ann. § 18-12-103 provides as follows:

No restrictive or protective covenants affecting the use of real property nor any instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser or owner of real property unless the restrictive or protective covenants or instrument purporting to restrict the use of the real property is executed by the owners of the real property and recorded in the office of the recorder of the county in which the property is located.

The fee owner of the two subdivisions, Vista Acres, Inc., executed the three bills of assurance in question. It is the McGuires’ contention, however, that the failure of the mineral owners to join in the execution or filing of the bills of assurance renders the bills invalid. We decline the invitation to construe the phrase contained in § 18-12-103, “owners of said real property,” to require mineral owners to join in the execution of bills of assurance before covenants can affect the use of real property. The requirements of the code provision were sufficiently met by the execution by Vista Acres of the bills. The McGuires’ argument is without merit.

The McGuires’ contention that no covenants are applicable to Tract 7 because the plat filed with the circuit court was not acknowledged is also meritless.

An instrument affecting real estate must be acknowledged before it shall be admitted to record. Ark. Code Ann. § 16-47-101 (1987). No instrument purporting to restrict the use of real property shall be valid or effective against a subsequent purchaser unless the instrument is recorded. Ark. Code Ann. § 18-12-103 (1987) [originally enacted as 1965 Ark. Act 395]. Prior to the enactment of Act 395, we held that restrictive covenants in an instrument were binding upon a subsequent purchaser with actual knowledge even though the instrument was not properly acknowledged or recorded. See Prince v. Alford, 173 Ark. 633, 293 S.W. 36 (1927). We have not considered whether this holding is still sound in light of Act 395. However, we need not consider this issue in the case at bar since the McGuires were placed on notice independent from the unacknowledged plat.

A subsequent purchaser of land is charged with notice of restrictions contained in every recorded deed in his chain of title. See 1 G. Thompson, Commentaries on the Modern Law of Real Property, § 3170 (Repl. 1962). See also Webb v. Robbins, 77 Ala. 176 (1884); Morris v. Tuscaloosa Mfg. Co., 83 Ala. 565, 3 So. 689 (1888). A landowner is bound by restrictions that appear in a properly recorded deed in his chain of title even though the instrument conveying title to him does not contain the restrictions. See Buffalo Academy of the Sacred Heart v. Boehm Bros., Inc., 267 N.Y. 242, 196 N.E. 42 (1935); Oak Lane Realty Corp. v. Trinity Evangelical Church, 13 Misc. 2d 708, 172 N.Y.S.2d 95 (1958); Cleveland Realty Company v. Hobbs, 261 N.C. 414, 135 S.E.2d 30 (1964).

A properly acknowledged and recorded deed in the McGuires’ chain of title from Vista Acres to E.K. Ragge, et ux., contains the following notation:

Tract 7, Vista Hills Addition to the City of Van Burén, Arkansas, as per plat filed December 13,1965. Subject to recorded easements and restrictive covenants. [Emphasis added.]

In light of evidence presented at trial that the developer of the Vista Hills Addition intended Tract 7 to be subject to single-family-residential use restrictions, we conclude that the phrase, “[s]ubject to recorded easements and restrictive covenants,” encompasses single-family-residential use restrictions contained in plats or bills of assurance for the Vista Hills Addition. The only instruments for the Vista Hills Addition explicitly containing such restrictions are the bills of assurance filed on April 15,1960, September 13, 1961, and January 12, 1962, all of which were properly acknowledged and recorded.

Accordingly, we hold that the language in the deed in the McGuires’ chain of title from Vista Acres to the Ragges effectively incorporates the single-family-residential use restrictions in these bills of assurance. Thus, it is immaterial that the plat for Tract 7 was not acknowledged or did not validly incorporate the restrictions. The McGuires are charged with constructive notice of these restrictions and are bound by them notwithstanding the fact that the deed conveying title to the McGuires does not contain any reference to restrictive covenants. See Buffalo Academy of the Sacred Heart, Inc., supra; Oak Lane Realty Corp., supra; Cleveland Realty Company, supra; Morris, supra; Webb, supra.

B. THE RESTRICTIVE COVENANTS DO NOT PROHIBIT THE USE OF TRACT 7 AS A RESIDENTIAL FACILITY FOR THE DEVELOPMENTALLY DISABLED.

The McGuires argue that the trial court erred in failing to grant a declaratory judgment that the restrictive covenants limiting the use of their property to single-family residences do not prohibit a residential facility for the mentally retarded or developmentally disabled. We have not addressed the question of whether and under what circumstances a residential care facility or group home for the mentally retarded or developmentally disabled can be considered a residence or, more narrowly, a single-family residence. However, we do not consider this point on appeal because, as the trial court found, the McGuires did not present proof at trial that at the present time there is a proposed sale of the property for use as a residential care facility. Without detailed information concerning a pending sale of the property and the specific use for which it will be purchased, any ruling on whether the restrictive covenants applicable to the McGuires’ property prohibit its use as a residential facility for the developmentally disabled would be subject to speculation and conjecture, especially in light of the analysis required by the applicable authority of other jurisdictions which have dealt with this question. Jackson v. Williams, 714 P.2d 1017 (Okla. 1985); Clark v. Manuel, 463 So.2d 1276 (La. 1985); Gregory v. Dept. of Mental Health, 495 A.2d 997 (R.I. 1985); City of Livonia v. Dept. of Social Services, 423 Mich. 466, 378 N.W.2d 402 (1985); Omega Corp. of Chesterfield v. Malloy, 228 Va. 12, 319 S.E.2d 728 (1984); J.T. Hobby and Son, Inc. v. Family Homes, Etc., 46 N.C. App. 741, 266 S.E.2d 32 (1980). We will not undertake to declare the legal effect of case law upon a set of facts which is hypothetical, future, contingent, or uncertain. See Andres v. First Arkansas Development Finance Corp., 230 Ark. 594, 324 S.W.2d 97 (1959). See also Caldwell v. Gurley Refining Co., 755 F.2d 645 (8th Cir. 1985); Cummings v. City of Fayetteville, 294 Ark. 151, 741 S.W.2d 638 (1987).

Moreover, even if the Smithsons or Oman Ising presently had a contract with the McGuires to buy the property for precisely the use described in the record, we would not reach the issue because the McGuires failed to present evidence at trial as to (1) the extent of the educational training or medical and nursing care that the proposed center would provide, (2) the function of a housekeeper, if one would be provided, and (3) whether the counselors would serve on a rotating or permanent basis. See Jackson, supra; Clark, supra; Gregory, supra; City of Livonia, supra; Omega Corp. of Chesterfield, supra; J.T. Hobby and Son, Inc., supra. In sum, we do riot have the appropriate facts before us to resolve this issue.

C. STATE ENFORCEMENT OF RESTRICTIVE COVENANTS TO PROHIBIT RESIDENTIAL FACILITIES FOR THE MENTALLY RETARDED OR DEVELOPMENTALLY DISABLED DENIES SUCH PERSONS EQUAL PROTECTION OF THE LAWS IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE CONSTITUTION.

The McGuires argue that they are entitled to a declaratory judgment that enforcement of restrictive covenants to prohibit residential facilities for the mentally retarded or developmentally disabled denies such persons equal protection of the law. Because they have not supported this point on appeal with convincing authority or argument, we do not address it.

In support of their contention, they make the following statements:

The decision by the United States Supreme Court in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), must be considered when examining the enforcement of restrictive covenants to prohibit residential facilities for the developmentally disabled. In Shelley the Court invalidated a private Restrictive Covenant that discriminated on the basis of race because judicial enforcement of the covenant would constitute state action within the meaning of the 14th Amendment. In this regard, the case of City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), is helpful. There the United States Supreme Court held that requiring a special use permit for a proposed group home for the mentally retarded violated the equal protection clause in that the requirement, in the absence of any rational basis in the record for believing that a group home would pose any special threat to the city’s legitimate interest, appeared to rest on an irrational prejudice against the mentally retarded. The zoning ordinance as applied was, therefore, struck down.

The McGuires cite no other cases besides Kraemer and City of Cleburne in support of their equal protection argument. These cases are not germane to the facts of the instant case. Moreover, they make no convincing argument in support of their position. We do not consider arguments on appeal that are unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. Cummings, supra.

II. INJUNCTIVE RELIEF.

The McGuires contend that the trial court erred in refusing to issue an order enjoining the appellees from interfering with the sale of the property because (1) no valid restrictive covenants were ever adopted in accordance with applicable law; (2) appellees have lost their rights to enforce the covenants as to Tract 7 by abandonment or laches and acquiescence; (3) the restrictive covenants do not prohibit the use of Tract 7 as a residential facility for the developmentally disabled; and (4) the appellees have no standing to enforce the restrictive covenants as to Tract 7. For the reasons stated below, we do not address this argument.

The McGuires fail to explain how their contentions relate to the issue they have asked us to consider: Whether the trial court erred in denying their request for any injunction. Moreover, they do not address the trial court’s findings regarding the injunction. Accordingly, we will not consider their contention that the trial court erred in refusing to issue an order enjoining the appellees from interfering in the sale of the property or their arguments regarding standing and laches in support of this contention. We note that we addressed the other two arguments in section I of this opinion.

It appears that the McGuires also ask us to rule on the issues of standing and laches for purposes unrelated to the trial court’s failure to grant an injunction. However, they did not ask the trial court nor do they ask this court for declaratory relief on these issues. Instead, they simply alleged at trial and now allege on appeal that the appellees lack standing and are barred by abandonment or laches and acquiescence. In addition, they do not link the issues of standing and laches to their requests for declaratory relief on appeal, nor did they at the trial level. Under the circumstances, we do not consider these issues.

Affirmed.


source: Caselaw Access Project

author: Jack Holt, Jr. Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Gary MOORE, Jenni Moore, Kenneth Haskett, Paula McCray, and Nathaniel Billings v. STATE of Arkansas
    CR 88-58
    761 S.W.2d 894
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Boyd Tackett, Jr. and Kenneth G. Fuchs, for appellants Gary Moore, Jenni Moore and Kenneth Haskett.

      Marva Davis and Phil Stratton Casey Jones, Ltd., by: Phil Stratton, for appellants Paula McCray and Nathaniel Billings.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellees.
   Jack Holt, Jr. Chief Justice.

Appellants Gary Moore, Jenni Moore, and Kenneth Haskett appeal their convictions on charges of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Appellants Paula McCray and Nathaniel Billings appeal from their convictions on charges of possession of drug paraphernalia. Trial was by jury; all five appellants were tried jointly and each elected not to testify.

On appeal, the Moores and Kenneth Haskett argue that the court erred: (1) in not granting a motion to sever based upon the introduction of incriminating statements by one or more of the codefendants; (2) in not directing a verdict when the State failed to make an in-court identification of defendants as the individuals having committed the crimes charged; (3) in failing to grant a continuance when the State did not produce its confidential informant; and (4) in not suppressing evidence obtained pursuant to an allegedly unlawful search conducted at the residence occupied by all five appellants. Only Haskett and Jenni Moore argue that the trial court erred in not directing a verdict in their favor based upon insufficiency of the evidence.

In a separate brief, appellants McCray and Billings argue only two issues. They contend that the court erred in not granting a motion to suppress which challenged the validity of the search warrant as to their separately rented room and that the court should have dismissed the charges because the term “paraphernalia” was impermissibly vague.

We find that the evidence was insufficient as to Jenni Moore and therefore reverse and dismiss her convictions. Next, throughout the proceedings below appellants sought a severance and at one point joined in a motion for mistrial (the severance and mistrial motions were renewed at the close of the State’s case) in response to the State’s introduction of testimony concerning incriminating statements by nontestifying codefendants. While the arguments on this issue by the Moores and Haskett tend to focus primarily on the trial court’s failure to sever appellants’ trial, the arguments by their very nature challenge the court’s related failure to grant a mistrial. Because we find that prejudicial error occurred on this point, we reverse and remand as to appellants Gary Moore and Kenneth Haskett. We comment on their remaining arguments only to the extent they are relevant to a retrial.

Notwithstanding that appellants McCray and Billings joined in the severance and mistrial motions, the trial court’s failure to grant those motions has not been raised as an issue by them on appeal. Because we find no merit to the points they have raised, we affirm their convictions and address their arguments separately.

JENNI MOORE AND KENNETH HASKETT SUFFICIENCY OF THE EVIDENCE

After the State had rested its case, appellant Kenneth Haskett moved for a directed verdict on grounds that there was insufficient evidence to convict him on charges of possession with intent to deliver and possession of drug paraphernalia. A similar motion was made by appellant Jenni Moore. The trial court denied both motions.

Where there is a challenge to the sufficiency of the evidence, we must decide that issue on appeal even though the case is being reversed and remanded on other grounds. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In considering the issue, we disregard other possible trial errors. Harris supra; Birchett v. State, 289 Ark. 16, 708 S.W.2d 625 (1986).

The question on appeal is whether the verdict is supported by substantial evidence. Whether direct or circumstantial, the evidence must be of sufficient force that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee State, and it is permissible to consider only that testimony which supports the verdict of guilt. Id.

At trial, the State introduced testimony that Kenneth Haskett occupied the northeast bedroom of the Moore residence. A search of that bedroom produced a red and black plaque depicting a marijuana leaf, a paper bag with two baggies containing between fifteen and sixteen ounces of marijuana, and a can containing a roach clip with a partial marijuana cigarette, straws and a razor blade. The evidence against Kenneth Haskett was clearly sufficient to support his convictions.

The same cannot be said of appellant Jenni Moore. The search warrant in this case specified that it was for the residence of “Gary Moore . . . also occupied by a Kenneth Haskett.” No mention is made of a Jenni Moore. At trial, one of the State’s witnesses testified that the southwest bedroom of the Moore residence was occupied by appellants McCray and Billings, the northeast bedroom by Gary Moore, and the northwest bedroom by Kenneth Haskett. Again, there is no mention of Jenni Moore. Further testimony revealed that when the warrant was served, a “white female” was sitting in the living room. At times this individual is identified as “she” or the “lady.”

While the record discloses that marijuana and drug paraphernalia were discovered in the living room, nowhere is there any reference to appellant Jenni Moore as the person seated in the living room. In fact, it does not appear that any of the State’s witnesses ever mentioned Jenni Moore’s name in connection with the evidence introduced at trial.

It is axiomatic that substantial evidence must force or induce the mind to pass beyond suspicion or conjecture. Gardner, supra. Where, as here, there is no evidence from which the jury could find the defendant guilty without resorting to surmise or speculation, a directed verdict is proper. We find it inconceivable how appellant Jenni Moore could have been convicted of the crimes charged absent pure conjecture that she was the individual in the living room. Accordingly, we reverse and dismiss her convictions for possession with intent to deliver and possession of drug paraphernalia.

GARY MOORE AND KENNETH HASKETT SEVERANCE — MISTRIAL

Before trial, appellant Haskett filed a motion to sever because it was expected that the State would try — despite each codefendant’s desire not to testify — to introduce evidence of statements made by one or more of the codefendants which implicated everyone at the Moore residence. The motion was joined by each appellant but was denied by the court.

The State’s intent was to introduce the contents of an oral statement by appellant Paula McCray which implicated Gary Moore and Nathaniel Billings and the contents of another statement by Gary Moore in which the investigating officer quotes Moore as admitting that “they” obtained the marijuana discovered at the residence from some named individual. At trial, Haskett’s counsel renewed the severance motion and cited Rule 22.3(a) of the Arkansas Rules of Criminal Procedure, which provides:

When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court shall require the prosecuting attorney to elect one (1) of the following courses:
(i) a joint trial at which the statement is not admitted into evidence;
(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant, have been deleted, provided that, as deleted, the statement will not prejudice the moving defendant; or
(iii) severance of the moving defendant.

Upon renewal of Haskett’s motion to sever, the State opted to proceed under subsection (ii) of Rule 22.3(a), and the court once again denied the severance motion.

Under subsection (ii), the prosecutor replaced the pronoun “they” in Moore’s statement as given to the officer with the pronoun “he.” This had the effect of removing any reference in the statement to the remaining defendants because the statement now suggested that Gary Moore obtained the marijuana without the participation of the remaining appellants. The State then introduced the contents of Moore’s altered statement through the testimony of Officer A. J. Gary as follows:

Q. [D]id you ask Gary Moore where he had gotten or what he knew about those two sacks of what you identified to him as marijuana, when you asked him a question?
A. Yes, I did.
Q. All right. And, what did he say about where he had gotten the marijuana?
A. Gotten it from a girl by the name of Sissy Rogers.

On cross-examination by counsel for one of the appellants, the officer was asked,

[Y]ou said that he said that he got the. . . marijuana from a lady named Sissy Rogers?

The officer inadvertently responded,

He [Moore] advised that they had gotten it. [Emphasis ours.]

Haskett’s counsel immediately requested a mistrial since Officer Gary’s testimony which quoted Moore as saying “they,” as opposed to the agreed substitution “he,” shifted the incriminating effect of the statement from Moore to all of the appellants as a group. The trial court denied the motion.

There followed a protracted exchange between court and counsel as to the requirements of Rule 22.3, the purpose for the earlier motion to sever, and the significance of the officer’s use of the pronoun “they” instead of “he.” The net result of the exchange by court and counsel was a second motion for mistrial which was joined by all defendants but was denied by the court. The mistrial and severance motions were renewed at the close of the State’s case but were again denied.

Although labeled on appeal as error for failure to grant a severance, the claim by Moore and Haskett is in reality a claim of error for failure to grant a mistrial, and we treat it accordingly. Appellants’ motion for mistrial was part and parcel of the position maintained throughout the proceedings that a severance should have been granted and, at this juncture of the trial, the only manner by which the trial court could have perfected a severance would have been to grant appellants’ motion for a mistrial.

Where two or more defendants are tried jointly, the pretrial confession of one which implicates the other is not admissible against the other unless the confessing defendant waives his Fifth Amendment rights so as to permit cross-examination. Cruz v. New York, 481 U.S. 186 (1987).

In the case at bar, all five appellants had chosen not to testify. In Burton v. United States, 391 U.S. 123 (1968), the Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when a codefendant refuses to testify but the codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. In Cruz, supra, the Court applied the same rule where the defendant’s own interlocking confession had been introduced.

However, in Richardson v. Marsh, 481 U.S. 200 (1987), the Court held that admission of a nontestifying codefendant’s confession does not violate the defendant’s rights under the Confrontation Clause if the court instructs the jury not to use the confession in any way against the defendant, and the confession is “redacted” to eliminate not only the defendant’s name but also any reference to the defendant’s existence. The rationale of the Court’s holding in Richardson is reflected in our Rule 22.3.

Pursuant to Rule 22.3(a), where two defendants are tried jointly, neither testifies, and the State chooses to introduce the out-of-court statement of one which implicates the other, the court shall sever the trial upon motion by the latter defendant unless: (1) the prosecution decides not to introduce the statement; or (2) all references in the statement to the moving defendant are deleted, and the statement does not, as altered, prejudice the moving defendant. The rule is mandatory.

The prosecution chose to proceed under Rule 22.3(a) by changing the pronoun “they” in Moore’s statement to “he” in order to limit the statement to Moore and avoid any reference to the other defendants. We commend the effort to comply with 22.3. However, the State’s effort to comply with Rule 22.3 collapsed when the officer inadvertently used the pronoun “they” — reflecting Moore’s statement as recorded but not as altered by the State during trial pursuant to the rule. The rights sought to be protected by the holdings in Bruton and Richardson were jeopardized, and it is clear that the appellants who raise this issue on appeal were prejudiced.

In an effort to protect their respective clients at the time of the mistrial motion, several of the attorneys argued that cross-examination of the officer should be permitted to show that “they” did not refer to any of the various codefendants other than Gary Moore. Counsel for Moore, however, argued that a reasonable inference to be drawn from Moore’s actual statement that “they” obtained the marijuana was that the appellants as a group, excluding Moore, got the marijuana from Sissy. Accordingly, Moore’s counsel argued that he should be permitted to question Officer Gary in that regard and further determine why on direct examination the officer had used the substituted pronoun “he” when his notes said “they” and the officer later said “they” on cross-examination.

How can we expect jurors to dispell the inference that appellants obtained the marijuana as a group when the attorneys themselves could not sort out the implications of altering Moore’s statement to “he” — when in fact Moore had said “they” — and the officer testified both ways on the stand? The situation was further prejudicial to appellant Gary Moore by virtue of the inference that “they” could have included or excluded Moore from those who allegedly obtained the marijuana. Under the circumstances, we conclude that it was error not to sever the cases and grant the motion for mistrial at the time that request was entered.

Relying on Bruton, Gary Moore and Haskett also contend that the trial court should have sustained an objection to statements introduced at trial in which Paula McCray implicated Gary Moore and Nathaniel Billings. Appellants are correct. This is so even if Gary Moore’s allegedly interlocking confession had been properly introduced earlier. Cruz, supra.

Accordingly, we reverse and remand as to appellants Gary Moore and Kenneth Haskett but not as to appellants Paula McCray and Nathaniel Billings since on appeal they have elected not to contest the court’s failure to sever or the failure to grant a mistrial.

DIRECTED VERDICT IDENTIFICATION

At the close of the State’s case, Haskett’s counsel moved for a directed verdict on the grounds that at no time had any of the State’s witnesses actually identified the various defendants present in court as those who participated in the crimes charged. The motion was joined by all five defendants but was denied by the court.

Our examination of the record discloses that during the State’s case several witnesses identified by name those individuals arrested in the residence where the marijuana and drug paraphernalia was discovered. However, the record is not clear as to whether at any time during trial (in the presence of the jury) the State explicitly identified the defendants in court with the named individuals to whom the State’s evidence related.

It is beyond dispute that “an element to be proved in every case in that the person who stands before the court in the position of defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate.” United States v. Fenster, 449 F. Supp. 435 (E. D. Michigan, 1978); McClard v. United States, 386 F.2d 495 (8th Cir. 1967) (Lay, Judge, dissenting), cert. denied, 393 U.S. 866 (1968).

Since we reverse and remand as to appellants Gary Moore and Kenneth Haskett on another ground and because it is unlikely that the State’s proof would be presented in the same fashion in the event of retrial, we do not address this point further.

CONTINUANCE

On April 2, 1987, the Moores filed motions requesting that the State’s confidential informant be produced and that a continuance be granted until the informant could be made available for examination. At a pretrial hearing, the court ruled on the motion by stating, “motion to produce confidential informant, granted.” However, appellants’ case was brought to trial four days later without the informant having been located. An objection (later overruled) was filed on the grounds that this prejudiced appellants’ right of cross-examination and constituted an abuse of discretion in light of the earlier ruling.

Our case law governing the State’s obligation to disclose the identity of its confidential informants controls the issue before us. That law supports the trial court’s decision.

In McDaniel v. State, 294 Ark. 416, 743 S.W.2d 795 (1988), we noted that where an informant is present or participates in the crime with the defendant, his testimony would be relevant, and it would be prejudicial error for the State not to reveal the informant’s identity. When, however, there is no evidence that the informant participated in the crime, was a witness to the crime, or possessed any exculpatory information, failure to identify the informant is not in any way prejudicial to the appellant’s defense. See Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).

The informant in this case did not participate in the crime, and appellants have failed to establish that the informant would have been able to offer any relevant testimony. In fact, appellants’ stated purpose for calling the informant as a witness was to show that he had been paid for his information. We find no abuse of discretion by the trial court under these circumstances.

UNLAWFUL SEARCH

Under this heading the Moores and Kenneth Haskett contend that evidence seized pursuant to the warrant should have been suppressed because the officer who obtained the warrant failed to disclose the basis for his statement that the confidential informant was reliable. Appellants McCray and Billings raise the same point. The Moores and Haskett also argue that reversible error occurred in that the search was executed after dark whereas the warrant did not authorize a nighttime search. We find no error in the trial court’s refusal to suppress the evidence.

Rule 13.1(b) of the Arkansas Rules of Criminal Procedure provides that if an affidavit or testimony is based in whole or in part on hearsay, the affiant or witness shall set forth particular facts bearing on the informant’s reliability. The rule also requires that the affiant disclose, as far as practicable, the means by which the information was obtained.

The affidavit in support of the warrant issued by Chancery Judge Andre E. McNeil sets forth that an unnamed individual notified Officer Gary that he had recently observed a metal tray in the residence of Gary Moore containing what appeared to be marijuana and that he observed a black female rolling marijuana cigarettes from the material in the tray. The affidavit then states that the informant had been proven reliable and had helped in solving eleven burglaries and one controlled substance case.

The affiant, Officer Gary, testified at a pretrial hearing that the confidential informant had been referred to the Conway Police Department by the Faulkner County Sheriffs Department because the case involving appellants was within the city’s jurisdiction. Officer Gary was given the information concerning the informant’s reliability by Investigator Jerry Bradley of the sheriffs office who had worked directly with the informant on the burglaries. Bradley not only went with Officer Gary to Judge McNeil’s office to obtain the warrant but also went to the Moore residence and subsequently participated in the search.

We do not consider the warrant and underlying affidavit at issue defective merely because the officer executing the affidavit was not a member of the law enforcement agency directly acquainted with the informant’s reliability. Baxter v. State, 262 Ark. 303, 556 S.W.2d 428 (1977). While the affidavit in Baxter actually contained the statement that the informant had proven reliable to some outside law enforcement agency, which was not disclosed here, even that statement was found not to be sufficient in and of itself, and this court emphasized those factors which we considered more relevant to a determination of the informant’s reliability. Here, we find that the affidavit states the informant had helped in solving eleven burglaries and one controlled substance case and that he personally witnessed the events at the Moore residence.

Also, the record shows that Officer Gary testified before Judge McNeil in the presence of Investigator Bradley as to the exact information contained in the affidavit. While it may have been better practice under Rule 13.1(b) had Officer Gary specified to Judge McNeil that Bradley was the one directly acquainted with the informant, we cannot say that the circumstances dictate the conclusion that the affidavit, warrant, and subsequent search were invalidated by his failure to do so.

In any event, the facts in the case at bar clearly come within the “good faith” exception announced in United States v. Leon, 468 U.S. 897 (1984). See also Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987).

Appellants further contend that the court should have granted the motion to suppress because the search was commenced after dark. See A.R.Cr.P. Rule 13.2(c). The argument is without merit. Officer Gary testified that the search was commenced before 8:00 p.m., which complies with Rule 13.2(c). James v. State, 280 Ark. 359, 658 S.W.2d 382 (1983).

PAULA MCCRAY AND NATHANIEL BILLINGS INVALID WARRANT

Under this heading, separate appellants McCray and Billings contend that the trial court erred in not suppressing the fruits of the search conducted in one bedroom of the Moore residence. It was shown that McCray and Billings occupied that bedroom as tenants, and the warrant failed to authorize a separate search for that particular room. Appellants’ position on this issue has been decided adversely to them on similar facts in Maryland v. Garrison, 480 U.S. 79 (1987). We find that decision controlling.

In Maryland, officers obtained a warrant to search the person of Lawrence McWebb and the premises known as “2036 Park Avenue third floor apartment.” When the officers applied for the warrant they had reason to believe that there was only one apartment on the floor described in the warrant. In fact, the third floor was divided into two apartments, which the officers did not realize until heroin, cash, and drug paraphernalia had been found in the second apartment (occupied by someone other than McWebb).

In Maryland the Supreme Court considered both the validity of the warrant and the manner in which it had been executed. It was determined that the first issue was governed by the information available to the officers at the time the warrant was obtained. The officers had no reason to suspect that the third floor contained more than one apartment, and the warrant was therefore valid when issued. The same is true here. The Moore residence, from all appearances, was a single family dwelling. Nothing within the knowledge of the officers executing the warrant suggested otherwise.

The second issue in Maryland, execution of the warrant, was upheld because nothing occurred prior to discovery of the evidence in the second apartment which would have or should have alerted the officers that the third floor contained more than one apartment. The Court specifically noted that nothing McWebb did or said at the time of the search would have suggested to the officers that there were two apartments. Again, the same is true here. Notwithstanding that it later developed that the Moore residence contained several “leased” bedrooms, nobody in the residence at the time of the search (including appellants McCray and Billings) brought that fact to the attention of the officers. Accordingly, we find no error on this point.

VAGUENESS

McCray and Billings also argue that the term “paraphernalia” is unconstitutionally vague as it relates to our code provisions which make possession with intent to use drug paraphernalia a criminal offense. Ark. Code Ann. § 5-64-403(c)(l) (1987). Appellants contend that our code provisions fail for want of “certainty” or “definiteness” and that they do not give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Nothing could be further from the truth.

Ark. Code Ann. § 5-64-101 (y) (1987) defines the term “drug paraphernalia.” The definition is exhaustive. Not only are the kinds of materials which constitute drug paraphernalia specified, but well over twenty terms are given which classify the activities relevant to a determination of whether an item is considered drug paraphernalia. Subsection (y) is followed by twelve subdivisions which list dozens of items and circumstances further defining drug paraphernalia. Virtually every item confiscáted as drug paraphernalia from the Moore residence and the bedroom occupied by McCray and Billings is included on the list — by name.

Subsection (12) alone specifies fourteen items considered drug paraphernalia and provides additional relevant explanations. Ark. Code Ann. § 5-64-101 is then further divided to assist in the determination of whether an item is drug paraphernalia by emphasizing the proximity of the object to controlled substances, whether there is any residue of controlled substances on the object, or whether there are any descriptive materials accompanying the object which explain its use. Section 5-64-403(c)(l) provides an additional list of twenty terms which describe the activities prohibited in connection with drug paraphernalia.

The challenged code provisions clearly give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Appellants’ position on this issue is entirely without merit. See also Garner v. White, 726 F.2d 1274 (8th Cir. 1984).

We note that at the conclusion of the brief filed on behalf of appellant Nathaniel Billings, counsel asks this court to award an adequate fee for services rendered. Apparently, counsel was appointed by the court below and his client is indigent. The proper motion in such cases should be filed in accordance with the requirements of Rule 28 of the Rules of the Supreme Court and the Court of Appeals.

Reversed and dismissed as to appellant Jenni Moore; reversed and remanded as to appellants Gary Moore and Kenneth Haskett; affirmed as to appellants Paula McCray and Nathaniel Billings.

Purtle, J., dissents in part.

John I. Purtle, Justice,

dissenting. The arrests in this case were set up by a paid informant (a convicted felon) who took the police’s money, snitched on the Moores, and vanished. His whereabouts are still unknown. He had never been used by the Conway Police Department before and they had no information on his reliability except through a conversation with a deputy sheriff who did not furnish any factual information concerning the reliability of the informant. There is simply no proof of the reliability of the informant. Moreover there is nothing in the record which could be considered substantial evidence to uphold the convictions against Paula McCray and Nathaniel Billings.

McCray and Billings rented a room at the residence apparently owned or at least occupied by Gary and Jenni Moore. Also, another guest or boarder named Kenneth Haskett was present at that address. Although the informant apparently did not give the Moores’ exact address, he did give enough information for the police to locate the Moores’ residence.

At the time the officers arrived with the warrant, which I consider invalid, there was no mention of the name of McCray or Billings. They were, in fact, inside their rented room with the door locked. They responded only under duress. After illegally searching the room, the police recovered some items called drug paraphernalia — namely, a couple of pipes which could be used to smoke marijuana, or for that matter, tobacco.

A search warrant, serves a high function and should be examined very closely and not issued in a cavalier fashion. The protection of the home is still sacred to the people of America. One’s privacy in his dwelling place should be zealously guarded and invasion of this right should not be viewed lightly by the courts. As the United States Supreme Court stated in McDonald v. U.S., 335 U.S. 451 (1948):

The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to constitutional requirements and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

In the present case the dwelling place of McCray and Billings was invaded without a search warrant naming them or describing what was to be sought. There was a complete absence of compliance with the requirements of the Fourth Amendment prior to issuance of the search warrant, and then the warrant itself did not authorize the search of McCray’s and Billings’ rented quarters. It was in fact a warrantless search with respect to these two individuals.

The United States Supreme Court has further discussed such searches in the case of Stoner v. California, 376 U.S. 483 (1964), where it stated:

No less than a tenant of a house, or the occupant of a room in a boarding house,... a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures. That protection would disappear if it were left to depend upon the unfettered discretion of an employee of a hotel. It follows that this search without a warrant was unlawful. Since evidence obtained through the search was admitted at the trial, the judgment must be reversed.

I am most puzzled by the majority opinion because it affirms the conviction of the only two people who were obviously not guilty of the charge for which they were convicted. Certainly without the evidence produced by the search the state would have no case against these two. Jenni Moore, who at the time of the raid was seated in the living area of the house amidst drug paraphernalia, has been discharged by this court. Her renters, who were in their private bedroom behind locked doors, have been left to suffer the penalties pronounced.

There was no warrant issued which permitted a search of the rented room of these two appellants. Nevertheless, by force, the officers intruded into their locked bedroom and searched it. There was no evidence found showing that McCray and Billings possessed drug paraphernalia. Moreover, no one, not even the so-called confidential informant, provided probable cause to search the room rented by McCray and Billings.

This is clearly a case where severance should have been granted. The failure to do so was prejudicial to all of the defendants in this case and it violated both our rules and our prior decisions. See A.R.Cr.P. Rule 22.3, which requires a severance when the statement of one codefendant is to be used in a trial against all of them. The effort to “Brutonize” the prior statement of Gary Moore resulted in prejudice to all the others. This stage of the trial was a complete fiasco, as revealed by the majority opinion. Why the reversal should not apply to all of the defendants is something I cannot understand.

I believe the case should also be reversed and remanded as to Paula McCray and Nathaniel Billings with directions to suppress the evidence against them.


author: John I. Purtle, Justice.

text:
    Robert ASHBY v. STATE of Arkansas
    CR 88-98
    761 S.W.2d 912
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Sexton Law Firm, P.A., by: Sam Sexton III, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This is an appeal from the denial of a Rule 37 petition by the Sebastian County Circuit Court. For reversal the appellant argues that the trial court erred in determining that there was a factual basis for the court to have accepted the appellant’s plea of nolo contendere. The record reveals that a factual basis for the plea was indeed established before its acceptance by the trial court. The decision of the trial court is therefore affirmed.

On July 9, 1987, the appellant entered a plea of nolo contendere to charges of robbery and theft of property. He was sentenced to a term of twenty years in the Arkansas Department of Correction with five years suspended. The appellant subsequently filed a petition with the circuit court in which he sought to have his nolo contendere plea set aside, alleging that there was not a factual basis for the acceptance of the plea by the trial court.

On March 16, 1988, the trial court conducted a hearing on appellant’s motion for post-conviction relief. It is admitted by the parties that the court did make an inquiry into the factual basis for the appellant’s plea of nolo contendere. At the time of the entry of the plea the court inquired of appellant’s attorney (not the attorney for this appeal) whether there was a factual basis for the court to accept the plea and the attorney responded in the affirmative. The deputy prosecutor was then called upon to give the court the factual basis for the charges. The deputy prosecutor then recited facts to the court which, if proven, would without question have supported a conviction on the charges. After the factual basis to support acceptance of the plea was presented to the court, the court addressed the appellant as follows:

COURT: Are you contesting those facts? Are you saying they are not true?
MR. ASHBY: No, sir, I am not saying they are not true and I am not saying they are true. I don’t know.

The appellant admitted in open court, at the time of the entry of his plea, that he had been with a co-defendant on the night of the crime. He further admitted that he was aware what witnesses had said about his participation in the crime, and that if the witnesses testified at trial and were believed, that their testimony would constitute sufficient evidence to support a conviction.

The appellant’s argument primarily is that the factual basis to support the acceptance of a plea of nolo contendere must come from the accused personally. In support of this argument the appellant relies upon A.R.Cr.P. Rule 24.6 and several Arkansas cases including Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986); Reed v. State, 276 Ark. 318, 635 S.W.2d 472 (1982); and Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980).

Rule 24.6 provides:

The court shall not enter a judgment upon a plea of guilty or nolo contendere without making such inquiry as will establish that there is a factual basis for the plea.

We have many times held that this rule is mandatory upon the trial court. See Jones v. State, supra. However, substantial compliance is all that is required. Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977).

In Jones we commented:

Although we find the trial court in substantial compliance with Rule 24.6, this court has observed a growing trend among trial judges to make casual and indirect inquiry as to the factual basis for pleas. Inasmuch as Rule 24.5 requires the trial court to address the defendant personally to determine whether or not any force or threats, or any promises apart from the plea agreement were used to induce the plea, the trial court could, and should, comply with Rule 24.6 by continuing a direct inquiry of the defendant as to the factual basis for his plea. This would, for all practical purposes, eliminate problems of compliance with this rule requiring inquiry as to the factual basis for a plea.

288 Ark. at 380.

Rule 24.6 applies to either a guilty plea or a plea of nolo contendere. No distinction is made between the two in this rule. Unlike Rule 24.5, which requires that the court address the defendant personally before accepting a plea, Rule 24.6 only requires that the court shall make “such inquiry as will establish that there is a factual basis for the plea.” We have held that the factual basis to support the plea does not have to come from the accused himself. Smith v. State, 291 Ark. 496, 725 S.W.2d 849 (1987). We stated in McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613 (1986):

We have held, and we continue to hold, that compliance with Rule 24 is mandatory. [Citations omitted.] In Shipman v. State, 261 Ark. 559, 550 S.W.2d 424 (1977), we held that substantial compliance was sufficient. In that case the prosecutor stated the details of the crimes to the court, but our opinion points out:
The judge determined, by inquiring of appellant himself, that appellant knew that he was waiving his right to a jury trial, was voluntarily entering a guilty plea to the charges, and was in fact guilty and that he knew that the judge was not bound to accept the terms of the plea bargain.
Here there was no substantial compliance, as the court did not inquire of the appellant whether he was in fact guilty.

McDaniel held that an inquiry by the court of the prosecutor whether there is a basis for the charge against the accused does not standing alone satisfy the requirements of Rule 24.6. However, it did not hold that the prosecutor may not supply the factual basis for a guilty plea provided the defendant personally admits to the court that he did in fact do the things recited to the court in his presence.

Our most recent case concerning the requirement that the trial court establish a factual basis before accepting a guilty plea is Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). There we stated:

A factual basis requires the existence of sufficient evidence from which a judge may fairly conclude that a defendant could be convicted if he chose to stand trial. . . .A factual basis is most commonly established by inquiry of the accused, of the prosecutor and an examination of the presentence report. . . . Significantly, Rule 24.6, unlike Rule 24.4 and Rule 24.5, contains no requirement that the accused be addressed personally by the trial judge in determining the factual basis for a guilty plea. . . . The evident purpose of the factual basis requirement is to prevent an accused from unwittingly pleading guilty on the mistaken assumption that his conduct was unlawful unless in fact it was not.

In Snelgrove v. State, 292 Ark. 116, 728 S.W.2d 497 (1987), we considered the standard which a trial court must use in order to establish a factual basis for a plea of nolo contendere. We stated: “The record from the plea hearing and the post-conviction hearing establish that there was a factual basis for the pleas and there was sufficient evidence from which the trial court could conclude that appellant would be found guilty if he elected to proceed to trial.” The opinion stated that in the future the rationale utilized in McDaniel v. State, supra, would be applicable to pleas of nolo contendere. We specifically suggested in Snelgrove that “[a]fter the prosecutor makes a proffer of the facts which he would prove, the judge can ask the accused: ‘Are these the facts which you do not contest?’ ”

The record clearly demonstrates in the present case that the accused “did not contest” the facts which were presented to the court, and admitted that these facts would sustain a conviction had the appellant elected to go to trial. The record is clear that the appellant knew that he was waiving a jury trial and the right to appeal and that he knew the range of penalties. Furthermore, he knew what the recommendation of the prosecutor would be regarding his sentence. The appellant’s only argument is that he did not know whether the facts were true or not. Appellant stated that his lack of knowledge was based upon the fact that he had been drunk for two years.

Trial courts are required to treat a plea of nolo contendere the same as if it were a plea of guilty. See Rule 24.6. There is no distinction in the factual inquiry required for acceptance of a guilty plea and a plea of nolo contendere. After all, the purpose of making a factual inquiry, from whatever source, is to be certain that the accused could be found guilty of the offense and is not entering his plea based upon a misunderstanding of the law. The evidence is abundant in the present appeal that there was a factual basis for the acceptance of the plea of nolo contendere.

Affirmed.

Hickman, J., concurs.


text:
    Alma BLUNDELL v. The ESTATE of Georgia COX, Deceased, et al.
    88-113
    760 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Raymond C. Smith, P.A., by: Raymond C. Smith, for appellant.
    No brief filed.
   John I. Purtle, Justice.

This is an appeal from a decision of the Washington County Chancery Court confirming title to a certain tract of land in the lineal heirs of A.F. Cox. The trial court held that the will of A.F. Cox had never been probated. Nevertheless, the chancellor, applying the provisions of Ark. Code Ann. § 28-40-104 (1987), confirmed title in tjhe heirs of the decedent, A.F. Cox, as though the terms of the will had been followed. The heirs of A.F. Cox are the appellees, and the appellant is the mother of the widow of John Cox, one of the sons of A.F. Cox. The appellant advances three arguments for reversal: (1) the chancellor erred in finding that the will of A.F. Cox had never been probated; (2) the chancellor erred in applying the provisions of Ark. Code Ann.§ 28-40-104 (1987); and (3) the chancellor erred in ruling that appellant had no interest in this tract of land. We hold that the chancellor ruled correctly, albeit for the wrong reason. The chancellor’s decision is therefore affirmed.

A.F. Cox died in 1936. He was survived by his wife, Minnie Bell Cox, and five children. A.F. Cox left a will dated October 19, 1934. The will designated the widow as the beneficiary of his estate during her lifetime. Upon her death the tract of land here in question was to pass to one of his sons, John Cox, and if John Cox died without issue, the property was then to pass to other heirs of the decedent.

At the time of the death of A.F. Cox, he was survived by his widow and five children, Ila Faye Holden, Laura Cox, Lacy Cox, Wayne Cox, and John Cox. Faye Holden died in 1974 and was survived by a husband (since' deceased) and four children, Margaret Loftin, Denton Holden, Eugene Holden (now deceased), and Dennis Holden (also deceased without issue). Lacy Cox died without marriage or children. Wayne Cox died in 1976, survived by his wife, Georgia Cox, who died in 1986. Wayne and Georgia had no children, but Georgia had children by a former marriage. John Cox died in 1981 without children and was survived by his widow, Mary Cox, who died in 1986. The appellant is the mother of Mary Cox.

We first consider the matter of the probate of the will of A.F. Cox. The will was admitted to probate on August 5,1936. Proof of execution of the will was submitted and letters testamentary were issued to the widow, Minnie Bell Cox, and she was permitted to serve as administratrix without bond. However, the estate was never closed. She never formally completed administration of the estate. By the terms of the will, his widow was given a life estate in this property. Since her estate ended with her death, it was not necessary to probate her estate because her husband’s will provided that upon her death, the property was to pass to John Cox and then to his issue. A.F. Cox’s will further provided that in the event John Cox had no issue, the property was to pass to the other designated heirs of A.F. Cox.

John Cox died without issue and his widow remained on the property for the rest of her life. Had John Cox received the property in fee simple, the laws of descent and distribution in effect at the time of his death would have dictated that title to the property pass to his widow. Upon her death, her mother, as her closest surviving relative, would have received the property. However, John Cox’s estate was limited to his life under the terms of the will of A.F. Cox.

We had a somewhat similar situation in the case of Muldrew v. Dodson, 237 Ark. 852, 376 S.W.2d 672 (1964). In Muldrew the testator died on March 19, 1947, and the beneficiary of the will subsequently took it to the clerk’s office and filed it, together with the necessary proof of execution by the attesting witnesses. We explained in Muldrew that prior to the probate code there was no time limitation upon the filing of a will for probate. However, the code established a five year statute of limitations within which to file a will. This court held that it was the duty of the probate clerk to proceed with the probate of the will after the beneficiary had presented it together with proof of execution. The court pointed out that the probate code took effect on July 1,1949, but specifically provided that “when its application . . . would work injustice in particular proceedings then pending, the former procedure shall apply.” Therefore, under this exception the will here in question could have been probated more than five years after the death of the testator. However, the probate judge examined the will in 1937 and declared it to be the valid will of A.F. Cox and admitted it to probate. There was no objection to that order.

The chancellor gave effect to the provisions of the will which had been admitted to probate in 1936. Since the will was filed and admitted to probate in a timely manner, and there are no inequities resulting from the unusual delay in closing the estate, we see no reason to disturb the chancellor’s decision giving full effect to the will of A.F. Cox. Therefore, the order of partition entered by the chancellor is affirmed.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Jon SILVEY v. Cynthia BRENTS
    88-189
    761 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Gary Eubanks & Associates, by: James Gerard Schulze, for appellant.

      Lazer, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Ralph Wilson, for appellee.
   Robert H. Dudley, Justice.

The sole issue in this car-wreck case is whether an instruction on failure to give a turn signal was abstract. We hold there was sufficient evidence in the record which justified giving the instruction.

There is substantial evidence that the appellant, plaintiff below, was driving his pickup truck in a westerly direction in the inside lane of East Broadway Street in North Little Rock. He stopped to make a left turn onto Omega Street but did not give a turn signal. He was followed by an unknown person in a Buick who swerved suddenly to the outside lane, apparently to avoid hitting the appellant. About 50 to 60 feet behind the Buick, in the inside lane, was the appellee, the defendant below. As the Buick swerved to the outside lane, the appellee saw the appellant about 50 to 60 feet ahead, and began to slow her car. She looked to see if she could also swerve to the outside lane like the Buick had done, but there was a car in that lane. It was raining, the road was wet, and the appellee was unable to bring her car to a complete stop before hitting the rear bumper of appellant’s truck. If she had only a little more space she would have stopped before hitting the appellant.

The appellant argues that giving the instruction on failure to give a turn signal was error because it would not have made any difference if the appellant had given a turn signal, or, stated differently, there was no causation. The argument is without merit for at least two reasons.

First, the jury could have concluded from the evidence that if the appellant had given a turn signal, the unidentified driver of the Buick could have known that appellant was stopping in order to turn left and that driver could have made a timely stop instead of suddenly swerving to the other lane. If the Buick had made a timely stop, the appellee, following behind, could have, in turn, done the same.

Second, appellee testified that there were no lights on appellant’s car indicating either a stop or turn. If the appellant had given a turn signal the appellee would have known the appellant was stopped in order to turn left, and the appellee could have immediately started to brake hard rather than simply “slow my vehicle down.” Since appellee had almost gotten her car stopped before it hit appellant’s truck the jury could have concluded that the different braking actions could have been a contributing cause of the accident. Accordingly, the instruction was not abstract.

Affirmed.


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

text:
    Dale SMART v. STATE of Arkansas
    CR 88-132
    761 S.W.2d 915
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Gibbons & Walker, by: David L. Gibbons, for appellant.

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

Dale Smart was convicted of sexual abuse in the first degree for fondling an eight year old girl on June 27, 1987, in violation of Ark. Code Ann. § 5-14-108 (1987). Smart was convicted and sentenced to seven years, suspended to four, on the condition that he obtain counseling.

On appeal Smart argues that the use of the victim’s hearsay statements pursuant to A.R.E. Rule 803(25) and the victim’s live testimony at trial is cumulative and prejudicial. Additionally, Smart argues that the witnesses testifying to the victim’s hearsay statements under A.R.E. Rule 803(25) were allowed to testify about matters other than the alleged sexual abuse incident. Finding no merit in the arguments, we affirm the trial court’s judgment.

The state’s proof was that Dale Smart and his wife had a babysitting arrangement with the Thackers. Veronica Thacker and some of her cousins stayed with the Smarts while their parents worked. On the evening of June 27, 1987, Dale Smart came in from work and after a drink of whiskey retired to his recliner. Smart then called Veronica over to the recliner where he placed her in his lap. While Veronica was in his lap, he proceeded to unbutton and unzip her pants, and fondled the eight year old girl. Smart’s wife was not in the house when this incident occurred, and upon her return to the house, Smart obtained assurances from Veronica that she would not tell anyone about what just occurred. The following morning Veronica reported the incident to her mother and later in the afternoon Veronica told Ms. Paula Breashers, a volunteer SCAN worker and family friend. A week later Veronica spoke with Ms. Helen White, Deputy Sheriff of Pope County, about the incident.

At trial pursuant to A.R.E. Rule 803(25) the state notified Smart that Veronica’s statements to her mother, Ms. Breashers, and Ms. White would be offered at trial. The trial judge determined that these statements possessed a reasonable likelihood of trustworthiness and admitted them into evidence at the trial. Not only were these hearsay statements offered at trial, but Veronica Thacker herself testified.

A.R.E. Rule 803(25)(A) states that:

a statement made by a child under ten years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria . . .

A.R.E. Rule 803(25) provides an exception to the hearsay rule in cases of sexual crimes with children under ten years of age. While it is true that this exception was enacted to alleviate the trauma and distress of child victims by not requiring direct testimony from the child, there is nothing in this rule which prohibits a child from testifying. The appellant argues that when the legislature enacted this hearsay exception it meant to create “an either/or situation,” that is, the child may testify or the child’s hearsay statements to others may be introduced at trial, but not both. However, the rule does not state that either the statements or the live testimony may be admitted, nor does any commentary on this rule.

In Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988), we recently addressed this issue. The appellant was convicted of second degree battery inflicted upon a six year old. The child/victim’s hearsay statements as to the origin of his injuries were allowed under A.R.E. Rule 803(25), and the child also testified at trial. The appellant argued that the hearsay statements should have been excluded at trial because they were cumulative and prejudicial. We said:

Our court has held that the mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion.

Therefore, in this case the trial judge did not abuse his discretion in admitting both the hearsay statements of the victim and the live testimony.

The appellant argues that when hearsay statements of children are admitted under A.R.E. Rule 803(25) the rule permits only “a statement made by a child . . . concerning any act or offense . . .” (Our emphasis). The appellant asserts that the testimony of Ms. Helen White was not confined to the mere sexual act of fondling, but she was permitted to relate statements by the child as to how she felt the next day and how she described the incident to her mother. We find little of consequence in this testimony, certainly nothing that warrants reversal. Veronica said the incident made her “uncomfortable” and that she told her mother she had a stomach ache, not from anything she had eaten, but from something that had been done to her. Assuming, without deciding, that Rule 803(25) is as narrow as appellant contends, there is nothing in this proof that could be regarded as substantially affecting the rights of the appellant. A.R.E. Rule 103.

The dissenting opinion asserts that the majority “evades the question of the constitutionality of A.R.E. Rule 803(25)(A).” There are clear and cogent reasons. The argument was not raised in the trial court, nor was it argued on appeal. Either omission, according to literally hundreds of our cases, many of which are authored by the dissenting justice, obviates our dealing with issues that are not presented. If we undertook to answer arguments that were raised neither here nor in the trial court, the process of appellate review would doubtless collapse under its own weight. New principles of appeal and error are more widely followed or firmly entrenched than the rule that we do not address arguments not raised by the litigants.

The dissent discusses at some length the confrontation clause of the United States Constitution and is mystified by our failure to discuss Coy v. Iowa, _ U.S. __ (June 29, 1988). The same answer prevails. Beyond that, Veronica Thacker gave her testimony regarding the sexual abuse she had experienced at the hands of the appellant in open court while directly confronting the appellant. Just how the confrontation clause was breached in this case is not explained in the dissenting opinion.

AFFIRMED.

Newbern, J., concurs.

Purtle, J., dissents.

David Newbern, Justice,

concurring. The question of the validity of A.R.E. 803(25) was not raised in this case. In his concurring opinion in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), Justice Dudley noted that this court had asserted its authority to adopt the Uniform Rules of Evidence as rules of the court and that it has not adopted Rule 803(25). See also Justice Purtle’s dissenting opinion in Johnson v. State, supra.

We have, in this case, again escaped the separation of powers problem created by the legislative adoption of Rule 803(25) subsequent to this court’s adoption of the Uniform Rules of Evidence which did not contain that rule or anything like it.

I write separately only to restate the caveat contained in the opinion by Justice Dudley.

John I. Purtle, Justice,

dissenting. This is yet another opinion in the phenomenal line of cases started by Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); Hughes v. State, 292 Ark. 619, 732 S.W.2d 829 (1987); and Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987). The majority opinion, like those in the cases cited above, evades the question of the constitutionality of A.R.E. Rule 803(25)(A). Apparently the appellant was of the opinion that we had unequivocally upheld the constitutionality of this act by the legislature.

The Johnson majority opinion stated:

If we were to terminate this portion of the opinion at this point, we might be interpreted as suggesting that in any case where the witness is present for the trial his prior out-of-court statements may be substituted for live testimony as long as there are indicia of reliability of the prior statement. We do not mean to do that.

I concurred in the Johnson decision because the case was reversed. We held in Johnson that a person may not express an opinion concerning the alleged sexual abuse of a child if that opinion is based upon nothing but the “history” given by the child. In other words, if the only basis of a witness’ testimony is what the child has told that witness or what the witness has heard the child tell others, then the testimony is inadmissible.

The amazing thing about all of these opinions is that they somehow manage to completely sidestep the Sixth Amendment issue.

The question before us concerns the hearsay rule. However, in Ohio v. Roberts, 488 U.S. 56 (1980), the Supreme Court held that the Confrontation Clause of the Sixth Amendment requires, as a prerequisite to an exception to the hearsay rule, that the witness whose out-of-court statement is to be discussed must be unavailable and there must be adequate indicia of the reliability of the statement. The Roberts opinion further stated:

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.
The second aspect operates once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rule.”

I also concurred in Cogburn. The dicta in the majority opinion seemed to hold that A.R.E. Rule 803(25) was constitutional, as applied in that particular case. The case was reversed “because of the error in admitting the videotaped statement of the victim.” The majority in Cogburn stated that the witness’ statement of opinion that the child had been sexually abused had not been challenged in the trial court or in the appeal and therefore “we need not address this issue in this case.” The Cogburn decision also noted that it had not been demonstrated that the declarant was unavailable before the out-of-court statement could be admitted. There seems to be no definitive ruling concerning Rule 803(25) in the Cogburn opinion.

The third case handed down on July 6, 1987, was Hughes. The majority opinion stated:

On appeal appellant does not question the constitutionality of A.R.E. Rule 803(25) under the Confrontation Clause, rather, he submits the in camera procedure under the rule requires that the child personally appear before the trial judge at the hearing to establish the reliability-credibility of his statements if they are to be introduced at trial. We sustain the argument.

None of these decisions (Johnson, Cogburn, and Hughes) uphold the constitutionality of A.R.E. Rule 803(25).

We have abolished our rules as enacted by the legislature and readopted the rules which had been promulgated by this court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). However, this court has never adopted Rule 803(25). That rule exists as a statute only. It is not within the province of the General Assembly to write rules of the court. My dissenting opinion in Hughes gives more detailed reasons behind this portion of my dissent. See State v. Superior Court, Pima County and Skala, 719 P.2d 283 (Ariz. App. 1986).

Several witnesses gave hearsay testimony purportedly restating allegations made by the victim. Some of them even added their own conclusions about the facts of the case. The taped deposition turned out well for the state, so it used the tape and also presented the alleged victim’s testimony in person at the trial. Neither the state nor our prior cases ever intended to allow such duplication of testimony.

The most puzzling aspect of the majority opinion in the present case is its complete failure to mention the case of Coy v. Iowa, _ U.S. _, 108 S. Ct. 2798 (1988). In Coy the United States Supreme Court considered a statute which attempted to protect child abuse victims by allowing them to testify in court behind a screen which shielded them from the accused. In Coy Justice Scalia quoted Acts 25:16 as follows: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges.” The opinion further stated: “We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face to face meeting with witnesses appearing before the trier of fact. See Kentucky v. Stincer, 482 U.S. _ (1987).” Justice Scalia then stated: “There is something deep in human nature that regards face to face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” The Coy opinion went on to discuss the fact that the procedure providing for the screen in front of the witnesses was specifically designed to enable the witnesses to avoid viewing the accused as they gave testimony. The opinion then stated: “It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.”

The Coy opinion is binding on this court. We therefore should go ahead and rule that the legislature acted illegally when it amended A.R.E. 803 to allow a witness to testify without being confronted. This statute clearly violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. Furthermore, it violates the doctrine of separation of powers. We should not continue to dance around the real issue presented in this case.


author:
David Newbern, Justice.
      John I. Purtle, Justice,

text:
    James C. MITCHELL v. Robert GOODALL
    88-223
    761 S.W.2d 919
    Supreme Court of Arkansas
    Opinion delivered December 12, 1988

      Robert E. Irwin, for appellant.

      Joe Cambiano, for appellee.
   David Newbern, Justice.

This is a breach of contract case. The appellee, Robert Goodall, alleged that the appellant, James C. Mitchell, orally agreed that Goodall could run cattle on Mitchell’s land indefinitely in exchange for improvements to be made on the land by Goodall. There was no written lease, but Mitchell testified Goodall was to have the land for three years. Goodall was in the process of being divorced. Goodall contended that Mitchell had maliciously instigated the sale of Goodall’s cattle, ostensibly under the authority of the divorce court, just to get his land back after Goodall had made substantial improvements on the land and had used it less than a year. The jury awarded damages based on testimony about the cost of improvements made by Goodall on Mitchell’s land as well as punitive damages. We affirm the judgment in favor of Goodall.

Mitchell’s first and second points of appeal are as follows: “There is No Substantial Evidence to Support the Claim that Appellant Sold Appellee’s Cattle;” and “Appellee’s Divorce Caused His Cattle Operation.to Fold.” At the close of Goodall’s evidence, Mitchell moved for a directed verdict with respect to Goodall’s punitive damages claim for lack of substantial evidence and on the ground that it was brought more than a year after the events alleged and was thus barred by a statute of limitations applicable to intentional torts. He did not cite any particular statute of limitations. The motion was renewed only on the statute of limitations ground at the end of all the evidence. No reference was made to insufficiency of evidence on the breach of contract claim either in the motion at the close of the plaintiffs case or at the close of all the evidence. We do not consider arguments made for the first time on appeal. Hooper-Bond Ltd. Partnership Fund III v. Ragar, 294 Ark. 373, 742 S.W.2d 947 (1988); Polnac-Hartman & Associates v. First National Bank, 292 Ark. 501, 731 S.W.2d 202 (1987); Puckett v. Puckett, 289 Ark. 67, 709 S.W.2d 82 (1986).

Mitchell’s third point is that his motion to set aside the verdict should have been granted because a juror improperly failed to reveal a disqualifying relationship to Goodall. The jury panel was asked by the court if any of them were related by blood or marriage or had any business or social relationships with Goodall. Juror Hern said her ex-husband and Goodall were cousins and that she knew Goodall but had not recently associated with him.

Mitchell’s motion alleged that Hern’s sister was married to Goodall’s brother. He argues that Hern was not a qualified juror according to the applicable statute. Arkansas Code Ann. § 16-31 -102(b)( 1) disqualifies a person from service as a petit juror if she “ [i] s related to any party or attorney in the cause within the fourth degree of consanguinity or affinity.” Obviously there was no blood relationship between Hern and Goodall, thus if she was disqualified it had to be on the basis of affinity.

In North Arkansas & Western Ry. Co. v. Cole, 71 Ark. 38, 70 S.W. 312 (1902), we defined “affinity” as “the tie which arises from marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.” We held, “[t]here is no affinity between the blood relations of the husband and the blood relations of the wife.” This definition and holding have been followed in later cases. McDaniel v. State, 228 Ark. 1122, 313 S.W.2d 77 (1959); Thornsberry v. State, 192 Ark. 435, 92 S.W.2d 203 (1936). Thus, while Hern’s sister may have been related to Goodall by affinity, Hern was not. The motion to set aside the judgment was properly denied.

Mitchell’s final point for reversal is that a directed verdict should have been granted with respect to the punitive damages claim. He argues that the evidence showed that Mitchell was acting only to protect the interest of the bank, of which he was chairman, as mortgagee of Goodall’s cattle. He also notes, again for the first time on appeal, that punitive damages are not normally granted in breach of contract cases.

By not raising it at the end of the evidence, Mitchell abandoned his argument that the evidence was insufficient to support punitive damages. Arkansas R. Civ. P. 50(a) permits a motion for directed verdict at the end of the plaintiff’s evidence and at the close of all evidence and requires that specific grounds be stated. Rule 50(e) provides that “failure to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support a jury verdict.” Here there was no motion for judgment notwithstanding the verdict, and the motion for directed verdict at the close of the evidence did not mention insufficiency of the evidence on punitive damages. The argument was waived. See Copelin v. Cortner, 291 Ark. 218, 724 S.W.2d 146 (1987).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot go along with the majority opinion on the matter of punitive damages. Not only did appellant preserve the record for appeal, there is clearly no evidence of malice or any other act which supports the award of punitive damages.

The majority recite A.R.C.P. Rule 50 but then disregard it. The rule clearly states that failure to move for a directed verdict “at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict” constitutes waiver of a challenge to the sufficiency of the evidence. In my opinion the motion made by counsel for the appellant at the close of all the evidence was broad enough to include the question of the sufficiency of the evidence when it stated that “the complaint on its face shows that it was more than one year before suit was filed.” Additionally, the appellant made a motion to set aside the verdict which is exactly the same as a motion for judgment notwithstanding the verdict. In either case we should reach the merits of this argument.