text:
    J.W. BLACK LUMBER COMPANY, INC. v. ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOLOGY
    86-43
    717 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Gary Day Garland, for appellant.

      Martha M. Adcock, for appellee.
   Steele Hays, Justice.

Black Lumber Company, Inc. has operated a sawmill near Corning, Arkansas, since 1897. In 1966 it installed a teepee burner for the disposal of bark and other waste material produced by the mill. In 1983 the Arkansas Department of Pollution Control and Ecology filed suit against the lumber company for violation of the Arkansas Air Pollution Control Code, seeking to enjoin those operations of the mill which permit the emission of air pollutants in violation of the Code.

In trial before the chancellor the lumber company did not deny its operation was in violation of the Code, but defended on the ground that the Code, or portions of it, were unconstitutionally discriminatory, and that the cost of compliance was so exorbitant it would be tantamount to a taking of private property without just compensation, prohibited by the Fifth Amendment to the United States Constitution. The chancellor granted the injunction but stayed enforcement pending the outcome of Black’s appeal to this Court. Our jurisdiction arises under Rule 29(l)(a) and (c). We affirm the chancellor.

I

The Arkansas Water and Air Pollution Control Act, Ark. Stat. Ann. § 82-1901 et seq. (Repl. 1976 and Supp. 1985) originated in 1949 with respect to water protection, and was later amended to prohibit certain forms of air pollution. Rules and regulations were adopted by the Department to implement the aims of that legislation.

The Arkansas Air Pollution Control Code was adopted in 1969. Sections 4 and 5 of the Code prohibit visible emissions exceeding certain limits and the open burning of waste material in violation of prescribed standards. Under the provision of the Code various activities are exempted, e.g., burning to clear crop lands for agricultural purposes, applying base or surface materials to roads and pavements, the use of heating equipment and incinerators for small apartment buildings (four families or less), the use of non-commercial outdoor fireplaces and grills used in connection with a residence, land clearing operations, wood burning fireplaces, and so forth. Black maintains that to prohibit smoke production by a commercial entity while exempting the identical activity by agricultural and residential producers is a denial of the equal protection of the law under the Fourteenth Amendment and Article 2, Section 18 of the Arkansas Constitution.

The issue, however, is not whether regulations under the Code allow differences in the treatment of activities generally similar in character, but whether there is a rational basis for such differences. The equal protection clause does not require that all persons be dealt with identically, only that classifications rest on real rather than feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that the treatment be not so disparate as to be wholly arbitrary. Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Walters v. City of St. Louis, 347 U.S. 231 (1954); Skinner v. Oklahoma, 316 U.S. 535 (1942).

We have no difficulty in recognizing a rational basis for distinguishing between air pollution attributable to commercial incinerators for burning waste materials, on the one hand, and agricultural clearing and residential fireplaces and grills on the other. One is heavily concentrated and continuous, a high intensity contributor to air pollution. The other group is a low producer in comparison, and is dispersed throughout residential or agricultural areas. Too, burning within the latter class tends to occur only periodically.

The equal protection clause does not prohibit legislation that recognizes “degrees of evil,” Traux v. Raich, 239 U.S. 33, 43 (1915), nor require that things which are different in fact or opinion be treated in law as though they were the same. Tigner v. Texas, 310 U.S. 141 (1940). A state is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining its restrictions to “those classes of cases where the need is deemed to be clearest.” Miller v. Wilson, 236 U.S. 373, 384 (1915). “[T]he law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow.” Buck v. Bell, 274 U.S. 200, 208 (1927). “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426 (1961). The chancellor’s finding that the legislation is not unconstitutional was correct.

II

Black also takes the position its due process rights under the Fifth Amendment and under Article 2, Section 22 of the Arkansas Constitution are violated because it is deprived of its property without just compensation. The law recognizes a point at which regulation so restricts the use of property that it exceeds mere regulation and becomes a taking. When that line is crossed, both Constitutions require that the taking be in accordance with the laws of eminent domain. Mr. Justice Holmes summarized the pertinent principle of law in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922):

Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power.

Here, the proof was not sufficient to show that a taking effectively resulted from enforced compliance. Mr. John Black estimated the cost of bringing the waste burner into compliance at between $500,000 and $1,000,000 and said a debt of that magnitude would force the company to cease operations. But those were his own conclusions and, in view of his interest in the company, were not binding on the chancellor. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969). Assuming that estimate of the expense was accurate, there was no proof of the company’s net worth, nor anything to show a before and after value relative to the cost of compliance.

Moreover, there was proof that other options were open to the company: the generation of steam using the lumber waste, the generation of electricity, disposal of the waste to other industries for use in generating steam or electricity and disposal by use of a landfill. It was shown the company owned some 7,000 acres in the surrounding area and the waste amounted only to the equivalent of one truck load per day . The mere fact that a partial use of one’s property is burdened by regulation does not amount to a taking. Andrus v. Allard, 444 U.S. 318 (1979). In Goldblatt v. Town of Hemstead, N.Y., 369 U.S. 597 (1962), the court said:

There is no set formula to determine where regulation ends and taking begins. Although a comparison of values before and after is relevant. . . it is by no means conclusive, see Hadacheck v. Sebastian, 239 U.S. 394 (1915) where a diminution in value from $800,000 to $60,000 was upheld. How far regulation may go before it becomes a taking we need not now decide, for there is no evidence in the present record which even remotely suggests that prohibition of further mining will reduce the value of the lot in question. Indulging in the usual presumption of constitutionality, we find no indication that the prohibitory effect of Ordinance No. 16 is sufficient to render it an unconstitutional taking if it is otherwise a valid police regulation.

That language fits the state of this record in that the company has not shown compliance with the regulation would be commensurate to a taking of its property.

Ill

Ark. Stat. Ann. §82-1936 provides that in exercising its powers under the Arkansas Water and Air Pollution Control Act the Department shall consider a number of factors: prevailing wind directions and velocities, existing physical conditions and topography, temperatures, humidity and other atmospheric conditions, possible chemical reactions between air contaminants, the availability of air-cleaning devices and their economic feasibility, and other factors.

Black argues that because these were not specifically considered in connection with the Department’s inspection of Black’s operation and because there was little or no testimony concerning these factors it was error for the chancellor not to require the Department to make specific findings on each factor before granting an injunction.

We disagree with that interpretation. Black is correct in urging the Department is under a mandate to consider the factors set out in the act in adopting its rules and regulations, but we find nothing in the act suggesting the legislature intended these factors to be applied in each specific instance. We believe the factors were intended to have a general application, to apply to classes, rather than to individual cases.

IV

Black’s Lumber Company’s final contention is the chancellor erred in not finding it exempt under Ark. Stat. Ann. § 82-1934 (Repl. 1976) which excludes “agricultural operations in the growing or harvesting of crops and the raising of fowl or animals” from compliance with the act.

Black argues that trees are a crop, gathered much as other crops are harvested and the milling process simply changes them to a different form of raw material.

Our task is to determine the legislative intent from the language used, Lyon v. White River-Grand Prairie Irrigation District, 281 Ark. 286, 664 S.W.2d 441 (1984), which in this instance is simply “the growing or harvesting of crops. . . .’’“To harvest” is defined as “to reap or gather, as any crop, material or result, to gather in a crop.” Webster’s New International Dictionary, Second Edition. It seems clear a tree is harvested when it is cut and gathered at some point convenient to the purpose. But when the milling operation begins, the harvesting process has ended and the crop begins a transformation from raw material to marketable product. We cannot say the chancellor’s finding on this issue was clearly erroneous.

Since we uphold the constitutionality of the Arkansas Water and Air Pollution Act, we need not decide whether there was sufficient compliance with Ark. Stat. Ann. § 34-2510 (Repl. 1962). Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984).

The decree is affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Johnny Steve McFADDEN v. STATE of Arkansas
    CR 86-97
    717 S.W.2d 812
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Robert S. Blatt, for appellant.

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

The appellant was charged with rape of his stepdaughter, aged thirteen. On direct examination he testified he had not raped her or any of the other children who had been living with him and their now deceased mother. The only question presented is whether it was error to permit the prosecution to present rebuttal testimony from another, younger stepdaughter that she too had been raped by the appellant. We hold it was not error and thus affirm.

The appellant argues that Arkansas Rules of Evidence 608(b), prohibits the admission of extrinsic evidence of the misconduct of a witness, and that our decision in Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), said we would give the rule a restrictive interpretation. We agree with both statements, but neither applies in a case where the accused has testified that he has not engaged in certain misconduct extrinsic to the offense with which he is charged.

In Gustafson v. State, supra, and in Cameron v. State, 272 Ark. 282, 613 S.W.2d 593 (1981), also cited by the appellant, the issue was the propriety of cross examination about prior bad acts. There is no question here about the propriety of the prosecution’s cross examination. The prosecution did ask the appellant, as he had been asked on direct examination, about the other children, but no objection was made to the questions, and the appellant’s responses did not vary from his testimony on direct examination.

In Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982), reh. den. 275 Ark. 259A, 631 S.W.2d 4 (1982), the accused’s mother testified in his trial for rape and burglary that he “worshipped” his former wife. On cross examination both the accused and his father testified that the accused loved his former wife. The prosecution then called the former wife who testified the accused had pulled a gun on her, tried to run her off the road, knocked her against a brick wall, and struck her. We held this evidence of other crimes was not proper rebuttal evidence. In its argument for rehearing the state cited Howell v. State, 141 Ark. 487, 217 S.W.2d 457 (1920), for the proposition that when an accused gives direct evidence it may be impeached by contradictory testimony. In response, we clearly distinguished Kellensworth v. State, supra, from Howell v. State, supra, by pointing out that the situation would have been like the Howell case if Kellensworth had testified that he had never mistreated his wife by striking or beating her. We said the evidence given by Kellensworth’s mother in direct examination on Kellensworth’s behalf was no more than “a statement of opinion as to general character, not specific instances of good conduct.” In the case before us now, the appellant testified on direct examination that he had molested neither the prosecutrix nor any of the other children. It was exactly the kind of testimony so carefully distinguished upon rehearing in Kellensworth v. State, supra, from that of Kellensworth’s mother.

The state has cited Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), and Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986), cases in which we held that by giving direct evidence of good character a party opens the door to rebuttal evidence showing bad character. In Wilburn v. State, supra, we pointed out that by thus opening the door, that which might have been inadmissible became admissible. The same principle applies here. Rule 404(b) would have precluded introduction of the evidence of another crime by the state just for the purpose of showing that the appellant was a person of bad character, “or to show that he acted in conformity therewith.” The rule does not preclude evidence showing the commission of another crime if there is some other, proper purpose for its admission into evidence. In Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980), we held evidence of other crimes could be admitted when it was relevant to the main issue of the guilt or innocence of the accused other than to show the accused’s character or action in conformity therewith. Here there is the same kind of independent relevancy although it is not on the main issue but goes to rebuttal of the accused’s direct testimony.

When evidence of the commission of a crime by the accused is produced, it is highly prejudicial to the accused, whether it is evidence that he committed the crime charged or some other crime. If it is of some other crime, we must consider whether the prejudice is unfair. In Price v. State, supra, we said:

Although Rule 404(b) does not expressly provide for a balancing test with respect to the prejudicial effect of other crimes evidence where independent relevancy is established, the primary reason for excluding such evidence in the first instance is its prejudicial nature. Since an objection to the admission of other crimes evidence inherently raises an issue of prejudice, it is mandatory for the trial judge to also review the objections under the evidentiary standards prescribed by Rule 403. Therefore, other crimes evidence will be admitted only if it has independent relevancy and its relevancy is not “substantially outweighed” by the danger of unfair prejudice. These are issues which the trial judge has wide discretion in deciding, and he will not be reversed on appeal unless he has abused such discretion. [268 Ark. at 539, 597 S.W.2d at 599-600.]

Here counsel for the appellant objected specifically on the basis of Rule 403, and the trial court overruled the objection.

In determining the weight to be given the probative value of rebuttal evidence that the accused committed a crime other than the one for which he is being tried, the judge may consider the fact that if the evidence is not admitted the accused may lie with impunity. This has been called “fighting fire with fire.” Pursley v. Price, supra; C. McCormick, Evidence, § 57 (3rd ed. 1984). A good example appeared in Walder v. United States, 347 U.S. 62 (1954), where the Supreme Court held it was not error to admit evidence that an accused had committed another crime to rebut testimony in which he said he had not done it. The other crime was one with which the accused had been charged, but the charge had been dropped when it was ruled that the search and seizure leading to the charge was illegal. Noting that the doctrine of Weeks v. United States, 232 U.S. 383 (1914), and the Fourth Amendment protected the accused against the admission of unlawfully seized evidence, Mr. Justice Frankfurter wrote:

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility. [347 U.S. at 65, footnote omitted.]

See also, People v. Westek, 31 Cal. 2d 489, 190 P.2d 9 (1948); State v. Barnett, 156 Kan. 746, 137 P.2d 133 (1943). Cf. State v. Johnson, 94 Ariz. 303, 383 P.2d 862 (1963).

Just as in the Walder case it would have been a perversion of the Fourth Amendment to have excluded the evidence, in the case before us it would be a perversion of Rules 403 and 404(b) to say the state could not rebut testimony of an accused, given on direct examination, about his not having committed other crimes.

Although it is not argued, we should note that the appellant would have been entitled to an instruction limiting the jury’s consideration of the testimony in question to the issue of his veracity. See Price v. State, supra, and Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). However, he sought no such instruction. Rather, his counsel announced that no such instruction could cure the prejudice resulting from the testimony. The burden is on the accused to seek an admonitory instruction. Price v. State, supra; Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980).

We find the trial judge was correct, and he did not abuse his discretion by admitting the testimony of the sister of the prosecutrix that she too had been raped by the appellant.

Affirmed

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because not only does it hold directly contra to our recent decision in Lasiter v. State, 290 Ark. 96, 717 S.W.2d 198 (1986), more importantly, it further erodes the landmark case of Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). In Alford this Court stated:

No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that that the prisoner is a man of bad character, addicted to crime.

The fundamental rule of exclusion has not changed with the enactment of A.R.E. Rule 404(b). However, the exceptions have so proliferated that Alford is no longer a citadel; it is only a skeleton. I do not want to see it obliterated.

In the Lasiter case this Court held that it was prejudicial error to allow the accused’s daughter to testify against him at the trial of the allegation that he raped his niece. The daughter testified that her father had raped her on earlier occasions. Relying on Alford, we held that the failure of defense counsel to object to such testimony amounted to ineffective assistance of counsel.

In the present appeal the accused was on trial for raping his stepdaughter. Evidence that he had raped another stepdaughter was admitted over the appellant’s objection. In both this appeal and Lasiter, the evidence was introduced to rebut the direct testimony of the accused that he had not committed an extrinsic offense.

By any fair standard an accused is entitled to be tried only for the offense under consideration. No matter how nice an exception may be carved out, it is usually just another invasion of this fundamental rule of fairness. Soon it will be the practice of the state to ask an accused about any and all convictions, crimes and rumors. This decision today has a chilling effect on the right of an accused to take the stand.

How can it be said that the testimony of another of appellant’s stepdaughters that she too had been raped by her father had independent relevance which was not substantially outweighed by the danger of unfair prejudice? See A.R.E. Rule 403.

This opinion relies upon the cliché that the state was “fighting fire with fire,” as this evidence was used in rebuttal of the appellant’s direct testimony. The appellant was not on trial for the prior bad act, and I think defense counsel properly objected on the basis of Rule 403. It’s hard to think of any evidence which could have been more prejudicial. See Lasiter, supra.

The majority opinion announces a broad and sweeping general statement of law which will no doubt be used in the future to admit the testimony of any other person who is willing to testify that he or she has had sexual relations of any sort with the accused. Presently it is required that the accused must first take the stand and deny such an act before it can be introduced against him. How far is that from allowing such evidence after appellant pleads not guilty? Given the speed with which we are making exceptions to A.R.E. 404(b), it will not be long until we completely eliminate the rule and its intended purpose.

In my opinion the majority is using slick words to disguise yet another exception to the fundamental rule of exclusion which prohibits the state from introducing evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and “therefore likely to be guilty of the charge under investigation.” Alford, supra. I believe the exceptions should be restricted rather than enlarged. Soon there will no longer be a rule to exclude the introduction of prior bad acts if offered for the purpose of showing that the accused did it before and he, therefore, probably did it again this time.

I would reverse and remand.


author: Per Curiam.

text:
    Richard Wayne SNELL v. STATE of Arkansas
    CR 85-206
    717 S.W.2d 818
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Attaway & Shumaker, by: Rick C. Shumaker; and Dowd, Harrelson & Moore, by: Marshall Moore, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant was convicted of the capital felony murder of William Stump and sentenced to death by lethal injection. Among his many points of error is a claim that information was withheld in violation of A.R.Cr.P. Rule 17.1(d) tending to negate the guilt of the appellant. The information was allegedly contained in a statement of John Thomas Holmer. The state denies the claim.

During the trial the state produced the Holmer statement for the trial court’s inspection. When the trial judge pronounced the statement free of exculpatory information the defense asked that it be appended to the record so that it could be reviewed on appeal. That request was denied.

In view of the nature of the case, we think the proper course would have been to include the material in the record and we now order that the record on appeal be supplemented to include the statement of John Thomas Holmer. See Rule 6(e), Arkansas Rules of Appellate Procedure. The parties may petition this Court for permission to file a supplemental brief.


text:
    Jim Arthur WARD v. STATE of Arkansas
    717 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered October 20, 1986

      Bill E. Ross, for appellant.
    No objection.
   Per Curiam.

Appellant, Jim Arthur Ward, by his attorney, Bill E. Ross, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late because the ninety-day limit for filing the record in this Court, see Ark. R. App. P. 5(a), was not extended by a new trial motion with respect to which no record was made. See Ark. R. App. P. 4(c).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


author: Jack Holt, Jr., Chief Justice.

text:
    Ethel L. FRASER and Jennings B. FRASER v. HARP’S FOOD STORES, INC.
    86-59
    718 S.W.2d 92
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      Wilson, Engstrom, Corum & Dudley, by: Gary D. Corum, for appellant.

      Penix Law Firm, by: Bill Penix and Richard Lusby, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Ethel Fraser, 85, suffered serious injuries when she fell and struck her head in the appellee’s food store. She alleges to have tripped over a shopping cart which an employee for the appellee negligently pushed into her path. The jury denied any recovery. The appellant argues on appeal that the trial court erred in not admitting into evidence two customer accident reports made by a store manager of a different store owned by the appellee, and in prohibiting the use of prior inconsistent statements to impeach a witness. Jurisdiction is pursuant to Sup. Ct. R. 29 (l)(b) and (o). We agree with the rulings of the trial court and affirm.

Before the trial, the appellee made a motion in limine to prevent the admission into evidence of two customer accident reports from its store in Fort Smith; the appellant’s fall occurred in the Mountain Home store. One report states a customer “turned around and fell over a grocery cart” and the other one notes a customer “tripped over a shopping cart.” Neither customer required medical attention. No other details of the accidents were given in the reports and the appellant offered no other evidence to establish any similarity between the Fort Smith accidents and the Mountain Home accident. These two reports, dated 1983 and 1984, are the only reported customer accidents relating to “carts” in the sixteen store chain operated by the appellee during a thirty year period.

The appellant contends that these reports are relevant to show the appellee was put on notice that the shopping carts had caused customers to be injured and the appellee was negligent in not remedying the situation. The appellant alleged the shopping carts are dangerous because the basket portion of the carts lifts up when they are not in use, leaving the bottom part sticking out a few feet and just a few inches above the ground, making them easy to trip over. The appellee contends the previous accidents were not relevant because they occurred in another store and there was nothing in the reports to indicate what caused the customers to trip over the carts. The appellee further argues that two reports of minor accidents were not sufficient to put appellee on notice of a dangerous condition.

There is no rule of evidence which specifically addresses the issue of admitting proof of prior accidents to show negligence or notice in the case at issue. We have adopted the rule that where notice of a danger or defect is in issue, evidence of similar occurrences is admissible, but “only when it is demonstrated that the events arose out of the same or substantially similar circumstances.” Houston General Ins. Co. v. Arkla Gas Co., 267 Ark. 544, 592 S.W.2d 445 (1980). The burden of proving the necessary similarity of conditions rests on the party offering the evidence. Id. The trial court is given wide discretion in determining whether this burden has been met. Arkansas Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976).

The only similarity shown between the accidents in the two reports and the appellant’s accident was that a cart was involved in some way. Standing alone, evidence of this nature does not have a tendency to prove the proposition alleged by the appellant. The jury would have been left to speculate as to what preceded those accidents and whether the same type of shopping carts were used in the other store. The Fort Smith reports do not constitute relevant evidence, and are not admissible. A.R.E. Rule 402. The trial court did not abuse its discretion in refusing admission of the reports.

During the course of the trial, the appellant sought to utilize the same accident reports to impeach the testimony of the Mountain Home store manager inasmuch as he testified that he did not write down the names of store employees who witnessed the fall on his accident report because he had been trained otherwise. Conversely, the Forth Smith store reports named only store employees as witnesses. The Mountain Home manager testified that he did write down employees as witnesses when there were no other witnesses to the accident. Therefore, the Fort Smith reports did not conflict with his testimony. Likewise, since the Mountain Home manager had nothing to do with the Fort Smith reports, they obviously could not be used to impeach his testimony.

Finally, the appellant argues that the trial court erred in preventing the use of prior inconsistent statements to impeach the testimony of a store employee called by the appellee. The appellant questioned the witness about several statements which the witness made over the phone to an employee of the appellant’s attorney. After several questions, the appellee objected to further reading of the prior statements. The court first sustained the objection, but upon argument by the appellant, stated: “If there is an inconsistent statement, I think you may question her about inconsistent statements.” The appellant asked one more question and passed the witness. The trial court’s ruling was not adverse to the appellant and therefore there was nó reversible error.

Affirmed.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Mary CATHEY, Individually and as Guardian v. Ronald N. WILLIAMS, et al.
    86-60
    718 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      Hixon, Cleveland <fc Rush, for appellant.

      Tatum & Sullivan, by: Tom Tatum, for appellees.
   George Rose Smith, Justice.

This is a medical malpractice suit brought by the appellant, individually and as guardian of her husband, Raymond Cathey, now incompetent. The defendants are the appellees, Dr. Ronald N. Williams and his associates, neurological surgeons. After a two-week trial the verdict and judgment were for the defendants. Without objection the appellants designated an abbreviated record and listed a single point for appeal: The court erred and abused its discretion in allowing physicians who are not neurosurgeons to testify as to the standards of care that a neurosurgeon should provide a patient in Little Rock, and similar localities. The case comes to this court as a tort action. Rule 29(l)(o).

On December 17, 1981, Raymond Cathey fell and injured his head while at work for the Corps of Engineers. He had headaches which became increasingly severe. On December 26 he consulted a doctor in Plainview, who recommended that he be taken to the Baptist Medical Center emergency room in Little Rock, which was done on December 28. There he was referred to Dr. Williams, who examined him and found no abnormal neurological signs. Dr. Williams released him for the night and scheduled a CT scan for the next morning. During the night, however, Cathey suffered a massive intercranial hemorrhage. He was taken back to the medical center, where Dr. Williams ordered an emergency CT scan. That scan disclosed a large isodense subdural hematoma on the right side. An operation was performed, but Cathey has remained helpless and comatose, a permanent condition.

The plaintiffs cause of action is based on the assertion that Dr. Williams was negligent in not ordering a CT (computerized tomography) scan at once instead of postponing it until the next day. We are told that experts in neurological surgery testified, but the argument on the abbreviated record is confined to the cross-examination of Dr. Martin, who practices family medicine at Ola. Dr. Martin had been Cathey’s physician for years and testified at some length. The appellant’s argument narrows down to her insistence that this excerpt from Dr. Martin’s cross-examination was inadmissible under our medical malpractice statute:

Q. My question then, Dr. Martin, is this: Based on what you know to be good medical practice and good medical judgment, do you have an opinion as to whether Dr. Williams followed good and sound medical practice and reasonable medical judgment in not ordering a CT scan for Mr. Cathey on an emergency basis on December 28,1981, when he found no abnormal neurological signs?
A. Yes, I have an opinion.
Q. What is that opinion, sir?
A. It is my opinion that given the fact that he did not find any abnormal findings which could indicate brain injury, and based on the fact that he was also seen by other physicians prior to that who did not find those findings, I would say, in my opinion, he acted appropriately.

Whether the opinion of a family doctor upon the question put by counsel was admissible in this case depends upon the wording of the malpractice statute, the wording of A.R.E. 702, and the proof of Dr. Martin’s qualifications to testify as he did.

The pertinent part of the malpractice statute, Ark. Stat. Ann. § 34-2614 (Supp. 1985), reads as follows:

(A) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and
(2) That the medical care provider failed to act in accordance with such standard ....

It will be seen that this section of the act specifies the degree of skill and learning which the plaintiff must prove, a matter not now in issue, but the section does not attempt to specify how the plaintiff" must prove that standard and its violation. The next section of the act, Section 34-2615(A), provides the answer: “Rule 702 of the Uniform Rules of Evidence [now the Arkansas Rules of Evidence] shall govern the qualifications of expert witnesses.” We quote Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Whether a witness is qualified to testify as an expert upon a particular question is a matter to be decided within the discretion of the trial court. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).

The appellant takes the position that no general practitioner is qualified to testify with regard to the standard of skill that must be met by a specialist such as a neurosurgeon. We do. not find that broad statement to be supported by the three cases cited on the point. Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Scarono v. Schnoor, 158 Cal. App. 2d 612, 323 P.2d 178 (1958); Orcuttv. Miller, 595 P.2d 1191 (Nev. 1979). On the other hand, we agree with both the reasoning and the result in Evans v. Ohanesian, 38 Cal. App. 3d 125, 112 Cal. Rptr. 236 (1974). There the trial court excluded the expert testimony of one specialist and two general practitioners in the field of dentistry, for various reasons. In reversing the case the appellate court said:

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent. [Citation.] The reason for not requiring specialization in a certain field is obvious. Physicians are reluctant to testify against each other. [Citations.] Consequently, when an expert can be found, it is immaterial whether he is a general practitioner or a specialist providing he has knowledge of the standard of care in any given field; otherwise, the plaintiff could never prove a case against a specialist unless he had an expert of the particular specialty, and the plaintiff would never be able to sue a general practitioner unless he had a general practitioner who was willing to testify as an expert. [Citation.]

In the case at bar the issue was not whether Dr. Williams had met the required standard of skill in performing neurological surgery. Rather, it was whether he had exercised the required skill in deciding not to order an immediate CT scan. Dr. Martin had been Cathey’s physician since 1970. Dr. Martin testified that as part of his regular practice he had to decide whether or not to recommend CT scans. He explained that various neurological tests are used to determine whether there are neurological abnormalities. Those tests are taught in medical school; every physician is taught to perform them. He demonstrated his own knowledge of the tests. He said that he had never seen a subdural hematoma in which there were no neurological deficits. Additional testimony about the tests used to determine the need for a CT scan was given by Dr. Liebovich, whose specialty was emergency medicine, not neurological surgery.

In a somewhat analogous case we held that an anesthesiologist could testify by affidavit that a surgeon was negligent in a procedure auxiliary to the actual surgery. Slayton v. Brunner, 276 Ark. 143, 633 S.W.2d 29 (1982). From that opinion:

Appellee Brunner argues that Dr. King, an anesthesiologist, is not qualified to testify as an expert in the specialty of surgery. However, both are medical school graduates licensed to practice in their respective states. Appellant does not allege that appellee was negligent in performing the actual surgical procedure used to repair the ventral hernia and remove the marlex mesh. Negligence is alleged in procedures performed or omitted before and after the actual surgery.

No branch of the medical practice can be isolated from all other branches. Some overlapping is unavoidable. It is common knowledge, for example, that family doctors routinely deliver babies, even though obstetrics is a specialty. We are not holding that general practitioners are qualified to give opinion testimony about matters as to which a specialist’s knowledge and skill are essential. We do hold that when the particular issue relates to a question lying within the general practitioner’s own area of expertise, he is not prohibited by the malpractice statute from testifying upon that question as an expert.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Brenda Lee DIFFEE v. STATE of Arkansas
    CR 86-69
    718 S.W.2d 94
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986
    [Rehearing denied December 8, 1986.]

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.

      PurtIe, J., would grant rehearing.

   George Rose Smith, Justice.

On March 8, 1982, the appellant pleaded guilty to having obtained drugs by fraud. Ark. Stat. Ann. § 82-1017 (Repl. 1976). The circuit court entered an order taking the plea under advisement, fining the defendant $500 and costs of $75, and placing her on probation for three years, on specified conditions. In 1983 the prosecuting attorney sought revocation of the probation. In October, 1984, after a hearing, the court entered a judgment revoking the probation and sentencing the defendant to five years in prison. The appellant took an appeal, arguing only that the proof did not support the revocation. The Court of Appeals affirmed the judgment on June 12, 1985, in an unpublished opinion.

In September, 1985, the appellant filed in the circuit court the present petition, which we must treat as having been filed under Criminal Procedure Rule 37. See Deaton v. State, 283 Ark. 79, 671 S.W.2d 175 (1984). The court, after a hearing, denied the petition but amended the earlier order by changing the fine to an assessment of $500 as administrative costs. Since we find the denial of the petition to be correct, it is immaterial whether the court had the power to change the nature of the fine.

The appellant submits three reasons for reversal of the judgment. It is first argued that the court acted beyond its statutory authority in assessing a fine and at the same time placing the defendant on probation. This argument is based on a sentence in Ark. Stat. Ann. § 41-803(4) (Repl. 1977), which was in effect at the time of the offense and therefore governs. Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983). The sentence relied upon reads as follows:

If the offense is punishable by fine or imprisonment, the court may sentence defendant to pay a fine and suspend imposition of sentence as to imprisonment or place him on probation. [Italics supplied.]

The appellant argues that the word “or” divides the entire sentence into two parts, so that the court can either fine the defendant and suspend imposition of sentence or place him on probation. Hence, it is argued, the court made its choice when it fined the appellant and could not simultaneously place her on probation.

The argument is decidedly unconvincing. That interpretation would mean that the court could never impose a fine and at the same time place the defendant on probation rather than sending him to prison. We can think of no good reason for the lawmakers to have intended such an impractical result. To the contrary, Section 41-1201(3)(a) recognizes the procedure followed by the trial court. The natural interpretation of the statute is that the court may fine the defendant and either suspend imposition of the sentence or place him on probation. That reading of the language is in harmony with our holding in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). There we noted that throughout the Criminal Code, which includes the statute now in question, the word “or” and not “and” is uniformly used to separate suspending the imposition of sentence from placing the defendant on probation. That careful use of the disjunctive “or” was necessary, for the Code does not permit the court to suspend the imposition of sentence and simultaneously place the defendant on probation, because the former is “without supervision” and the latter requires “supervision of a probation officer.” Culpepper, supra. We think it beyond doubt that the word “or” was used in the section now in question in the same way as it was used repeatedly elsewhere in the Code.

The appellant’s second argument is based on Ark. Stat. Ann. § 43-2332 (Supp. 1985), which provides that upon revocation of probation the court may require the defendant to serve “the sentence imposed, or any lesser sentence which might have been originally imposed.” It is contended that the $500 fine levied in the first instance was the “sentence imposed.” That fine was paid in full, in $50 installments; so the appellant contends that her sentence has already been served, precluding the court from sentencing her to prison upon the revocation of probation.

The above section 43-2332 was originally enacted in 1973, before the Criminal Code became effective on January 1, 1976. If the section had not been re-enacted in 1979, it would have been impliedly repealed by the Code under the settled rule that when the legislature takes up a subject anew and covers the whole field, existing statutes upon the subject will be impliedly repealed even though there is no express repeal. McLeod v. Shaver, 198 Ark. 56, 127 S.W.2d 258 (1939). The Code contains this sweeping declaration: “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article [§§ 41-[ XXX-XX-XXXX ]].” Furthermore, the pertinent sections of the Code, §§ 41-801 — 41-804 and 41-1201 — 1211, completely re-cover the law applicable to suspension of the imposition of sentences and to probation. Hence, although the earlier statutes are still applicable to crimes committed before the Code went into effect, the Code is a new starting point for crimes committed after the Code became effective.

We turn to Section 43-2332, relied on by the appellant. That section contains seven paragraphs. The first five paragraphs are not relevant to this case; they pertain to probation officers and to probationers who move from one county to another. The sixth paragraph provides for the arrest of probationers who violate the conditions of their probation.

The seventh paragraph is relied upon by the appellant. Whether the legislature actually intended to rewrite that paragraph when the whole section was re-enacted, with a deliberate revision of the fourth paragraph, is an interesting question. The answer is not decisive in this case, because the appellant’s position cannot be sustained no matter which of two answers to the question is the right one. It is necessary, however, for us to explain why neither answer helps the appellant.

To show how the question arises, we insert a photocopy of the seventh paragraph as it is printed in the 1977 replacement volume of our statutes, Section 43-2332:

As speedily as possible, the probationer shall be taken before the court having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and if sentence was not imposed, the court may impose any sentence which might have been originally imposed. [Acts 1973, No. 818, § 2, p. 2083; 1975, No. 602, § 1, p. 1657.]

The only change made by the 1979 re-enactment of this paragraph was the omission of the words we have underlined. It can be seen that, owing to the position of the word “sentence” as the next to the last word in both the third line and the fourth line, the typist who copied the whole section in the bill to be introduced in the legislature could easily have omitted the underlined words, by inadvertence. If so, the legislature did not actually intend the change. Two considerations support that view. One, the sole purpose of the measure, Act 326 of 1979, as shown by its emergency clause, was to conform the fourth paragraph to a judicial redistricting that went into effect on January 1, 1979. That purpose was accomplished by a complete revision of the fourth paragraph. And two, the change would drastically alter the meaning of the seventh paragraph, without any discernible reason.

If it were absolutely clear that the critical words were omitted by inadvertence, we could supply them in order to give effect to the legislative intent. Cernauskas v. Fletcher, 211 Ark. 678, 201 S.W.2d 999 (1947); Snowden v. Thompson, 106 Ark. 517, 153 S.W. 823 (1913). That action on our part would not help the appellant, for then the section would provide that if sentence was not originally imposed, as was true in this case, the court could impose any sentence which might have been originally imposed. The five-year sentence imposed upon the appellant is within the statutory limits for this offense. Ark. Stat. Ann. § 82-1020.

It is, however, not absolutely clear that the change made in the statute in 1979 was inadvertent, because the revised paragraph is in itself complete and intelligible. Even so, the appellant cannot prevail. In McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980), we passed upon the same argument that is now presented (without mentioning the possibility that the 1979 change might have been unintentional). There as here no sentence was imposed when the defendant was placed on probation. We do not regard the $500 fine as a “sentence imposed,” because the statute is directed to a revocation of probation and thus is referring to the possible sentence to imprisonment that gave rise to the probation. In McGee as here the defendant pleaded guilty and was placed on probation for three years. There as here the court revoked the probation and imposed a five-year sentence. We held that Section 43-2332, as revised in 1979, did not apply, because no sentence had been pronounced when the defendant was placed on probation. The opinion closed with this analysis:

Unquestionably, the legislature did not intend Ark. Stat. Ann. § 43-2332 (Supp. 1979) to effect a basic change in probation procedures or prohibit a court from releasing a defendant on probation for a prescribed period of time without pronouncing sentence. The words, “sentence imposed,” therefore, presume that a sentence has been pronounced. In the appellant’s case, none was pronounced until his four year probation was revoked. Therefore, since no sentence was imposed at the time appellant was placed on probation, the language in Ark. Stat. Ann. § 43-2332 (Supp. 1979) has no application and provides him no relief.

That case governs this one.

In her third argument the appellant insists that when the court revoked her probation and imposed a five-year sentence, she was unconstitutionally subjected to double jeopardy. Her theory is that by paying her fine in installments she had begun serving her sentence, after which the sentence could not be increased. The fallacy in the argument is that the original order must be construed as a whole, not piecemeal. The court was authorized by the statute to impose a fine and simultaneously place the defendant on probation, as we held in answering the appellant’s first argument. The appellant paid the fine, but she violated the conditions of probation. No authority is cited by counsel for the notion that every time a court accompanies a fine with probation, double jeopardy occurs when the probation is revoked. The argument is so lacking in merit that we do not discuss it at length. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion primarily because I believe the sentence had already been “imposed.” In the case of Adams v. State, 269 Ark. 601, 599 S.W.2d 437 (Ark. App. 1980), the Arkansas Court of Appeals considered the same argument presented in this appeal. The court stated: “[w]e believe the trial judge did not have the authority to impose a greater sentence than was originally imposed pursuant to Ark. Stat. Ann. §41-803 (Repl. 1977).” The court held that the trial judge was authorized to suspend imposition of a sentence or place the defendant on probation. Citing Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), the Court of Appeals further held that “suspension of execution of sentence” was no longer authorized because Ark. Stat. Ann. § 43-2326 (Repl. 1977) was repealed by implication by the enactment of 41-803(1) of the Criminal Code. (It should be noted at this point that, as of April, 1985, the trial court is once again authorized to suspend the execution of sentence. See Ark. Stat. Ann. § 43-2326.1 (Supp. 1985).) Therefore, having pronounced and imposed sentence, the trial judge could not thereafter impose a greater sentence than was originally imposed.

In Culpepper, supra, this Court stated:

There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with § 41-803 by the suspension of the imposition of sentence, rather than by the suspension of the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, as is authorized by Ark. Stat. Ann. § 43-1208(6) ....
Reference is made throughout the Code to suspending imposition of sentence or placing the defendant on probation, but in no instance do we find provision for both.

In Culpepper the court acknowledged that Ark. Stat. Ann. § 41-1208(6) was partially repealed by implication in 1979. In that year, the legislature amended Ark. Stat. Ann. § 43-2332 (Repl. 1977) and limited the sentence authorized on revocation of probation:

Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed. [A.S.A. § 43-2332 (Supp. 1985)].

To me it is quite clear that the trial judge in this case has attempted to retroactively announce that he was suspending imposition of the sentence, when, in fact, the sentence had already been imposed. The docket entry dated March 8, 1982, reflects, “Fine $500.00 and costs, plea of guilty taken under advisement for 3 years probated term — [conditions of probation and payment of fine were enumerated].” The appellant paid the fine in full. There should have been no misunderstanding that the appellant was required to pay the $500.00 and meet the probation terms for a period of three years.

Obviously the court attempted to suspend imposition of sentence for three years and place the appellant on probation at the same time. The majority opinion correctly states, “the Code does not permit the court to suspend the imposition of sentence and simultaneously place the defendant on probation. . . .’’The trial court in this case used terminology that could only fit probation and in express terms attempted to suspend imposition of sentence. Arkansas Statutes 41-801 (Repl. 1977) defines “suspension” as a procedure whereby a defendant, who pleads or is found guilty, is released without pronouncement of sentence and without supervision. It defines “probation” as a procedure whereby a defendant, who pleads or is found guilty, is released without pronouncement of sentence but subject to supervision. The two cannot occur simultaneously.

I agree with the majority that the court could have fined her and placed her on probation or it could have fined her and suspended imposition of sentence. See A.S.A. § 41-803(4) (Repl. 1977). It could not do both. Such action is no longer authorized. Culpepper, supra.

In McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980), we clearly stated that the sentence had not been imposed. I believe that in the present case sentence had been imposed and executed. The payment of the fine amounted to execution of a part of the sentence, thereby precluding the trial court upon revocation of probation from imposing a greater sentence than that originally imposed.

I see no reason why Ark. Stat. Ann. § 43-2332 (Supp. 1985) should not be given its plain meaning as it relates to revocation of probation. It simply limits the term of a sentence imposed upon revocation of probation to the term which was originally imposed. It is clear that the trial court is this case sentenced the appellant to pay a fine and placed her on probation. Upon revocation of that probation, the court is precluded from imposing a greater sentence than that originally imposed.

Furthermore, if we had decided that the trial court had suspended three years of the sentence, we would be required to follow our decision in Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981). In Queen we stated, “[s]ince the court originally imposed a five year sentence and suspended three years of that sentence, it could only revoke the three year suspended sentence.” We reduce Queen’s sentence to the term of the suspended sentence.

I would modify the decision of the trial court to limit the term of imprisonment to that originally imposed, as we did in Culpepper.


author: Darrell Hickman, Justice.

text:
    Mark STONE v. STATE of Arkansas
    CR 84-175
    718 S.W.2d 108
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      William A. Lafferty, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

After the appeal of Mark Stone’s conviction was submitted to us for resolution, he filed a petition for a writ of error coram nobis, requesting we stay the appeal. We are contemporaneously affirming his conviction on appeal and denying this petition. See Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986).

The basis of the petition is that the state withheld from the defense a memorandum of an interview with James Edward Collum which took place on October 22,1984. This was approximately two weeks before Stone’s trial. The memorandum stated that Collum was interviewed by the Arkansas State Police and stated that on Tuesday night (presumably the night the victim, Lisa Young, disappeared), Collum saw her at Lake Liquor Store in Morgan, Arkansas, getting into a black Chevrolet pickup, a 1979 or 1980 model. The time was 7:30 or 8 p.m.

Attached to the memorandum is what is asserted to be a transcript of an interview with Collum taken on June 6,1985, by the Conway Police Department. In this interview Collum states the day was Wednesday, not Tuesday. Lisa Young’s body was not discovered until 13 days after her disappearance. The defense focused on Young being with two men in a black pickup truck. Stone testified he left her at Protho Junction talking with these two men in the black pickup around 11:30. We have discussed this evidence in our decision in the Stone case issued today.

This petition is sought on the basis of our decision in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), which opened the door in exceptional circumstances, to allow defendants to seek appropriate relief through the writ of error coram nobis. Those circumstances were defined carefully and were limited to where there is newly discovered evidence in the form of a confession to the crime by someone other than the accused; the confession must be made after the defendant is found guilty; and relief will only be granted after the trial court has lost jurisdiction and before we have decided the case.

In only one other case besides Penn have we granted permission to file such a petition with the trial court. See State v. Scott, 289 Ark. 234, 710 S.W.2d 212 (1986).

The facts presented in this petition do not meet the criteria of Penn, and we are not disposed to alter in any way our ruling in Penn. Penn was decided to fill a void in the system.

The petitioner is not precluded from filing for postconviction relief.

Petition denied.


text:
    Mark D. STONE v. STATE of Arkansas
    CR 84-175
    718 S.W.2d 102
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986
    [Rehearing denied December 8, 1986.]

      William A. Lafferty, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

On July 24,1984, Mark Stone and Lisa Young spent the evening visiting some friends. After leaving the last friend’s house, Ms. Young was never seen again. Her mother reported her as a missing person. On July 29, 1984, Brenda Mitchell found Ms. Young’s driver’s license at Davis Ranch Subdivision in Faulkner County. She turned it over to the police on August 6,1984, after seeing the missing person posters. She showed the police where she found the license. Some remains of a body were found in that area and were later identified as those of Lisa Young. Mark Stone was arrested and interrogated. He confessed to killing Ms. Young, his brother’s girl friend, with a tire tool. He later recanted his confession. After a jury trial, Stone was found guilty of first degree murder and sentenced to 40 years imprisonment. On appeal he raises seven arguments for reversal, which we find meritless and, therefore, affirm his conviction.

Stone’s confession to the police reads as follows:

I left Conway with Lisa Young about 6:00 p.m. on the 24th of July. We went to North Little Rock. We went to the Iron Horse and started drinking and taking pills; they were my pills. They were some kind of downers. We then left there and went to James Paul’s house. We had some whiskey that I bought at the liquor store in Levy.
We left James Paul’s house and came up the freeway and got off at Cabot. We cut through to Highway 107 and headed towards Vilonia. We turned off 107 at Davis Ranch Subdivision. We stopped and got out and opened the trunk because I had some beer in the trunk. I was really messed up by this time. I don’t really know how I got there.
I lost my keys while I was getting into my trunk. I couldn’t find my keys. Lisa got all upset and started screaming and biting and clawing at me. She had a stick or something because she hit me a couple of times with it. We had started smoking another joint, and I dropped it near the truck.
I got the tire tool out of the trunk. She was still on my back. I just swung and hit her. She kept trying to get up and saying that she was going to kill me. I hit her two, three, maybe four times. I got my cigarette lighter and found my keys.
I went towards Vilonia and pulled over and went to sleep for a while. When I woke up, I went to Vilonia and stopped at the car wash. I threw the tire tool out in the field behind the car wash. I then went home.

The confession is significant because it provided three pieces of information which the police did not have at the time. One, it gave the location of the body. A positive identification of the remains had not been obtained at the time. Two, it recited the method of killing. The medical examiner’s preliminary observation was that the death was caused by a shotgun blast to the head. The police were operating on this theory. Stone confessed to beating Ms. Young on the head with a tire tool. This information was later confirmed by the state medical examiner’s final report — the cause of death was due to multiple blunt trauma to the head. This trauma was hard enough to break the skull. The date of death was determined to be July 24, 1984. Third, the confession provided the police with the location of the murder weapon. Stone stated he threw the tire tool in a field behind the Vilonia car wash. After his confession, he went to the car wash with the police where the murder weapon was recovered. It had blood on it which was later determined to be human blood.

After Stone confessed to the police and signed the statement, one of the officers suggested that Stone tell his parents. His parents went into the interrogation room. When his father asked him if he did it, Stone stated “I guess I did it.”

In recanting his confession, Stone said he was protecting his brother whom he suspected of wrongdoing. Stone said that a week after the incident, his brother told him, without any explanation, to get rid of the tire tool in his car. Stone’s brother denied this under oath. Stone’s story at the trial was that he was with Young until around 11 p.m. when he dropped her off at Protho Junction where she met two men in a black pickup truck. She was going to buy some marijuana. Stone called several witnesses who were at Davis Ranch Subdivision the night in question. They saw the black pickup truck there after midnight. According to one witness, a girl, who resembled Young, was with two men in the truck.

Stone first argues that the confession should have been suppressed because it was obtained by threats. Stone claims that during the questioning, the police officers yelled at him and threatened to throw him “in a tank with a little old commode for eight or nine months. . . .” Stone’s father corroborated this testimony. He testified that he stood outside the door and listened while his son was being interrogated. The father testified that one of the officers sounded angry when talking to his son. At one point, he heard one of the officers say that they could put Stone “in a room for eight or nine months if he wanted to and keep him there, and sooner or later he’d do just exactly like he wanted him to.” The father stated he kept hearing a slapping sound. He was convinced they were going to hit Stone.

At the hearing on the motion to suppress, both officers testified that no one physically threatened Stone or raised their voice during the interrogation. The trial judge questioned Stone about being threatened. Stone responded that no one hit him, used any physical force against him, or touched him during the interrogation. Stone stated the slapping sound his father heard was one of the officers hitting his own hand with a pen.

When reviewing the admissibility of a confession on appeal, we make an independent determination of the voluntariness of the confession based on the totality of the circumstances, and the trial court’s decision will be reversed only if it is clearly against the preponderance of the evidence. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). A confession based on threats of harm is inadmissible. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Whether or not Stone was threatened is a credibility issue. Since the trial court is able to observe the witnesses as they testify, it is in a superior position to determine their credibility. Walters v. State, 267 Ark. 155, 587 S.W.2d 831 (1979). The trial court’s decision in this case is not clearly against the preponderance of the evidence.

Stone next argues that the trial court refused to reduce the $50,000 bail or allow Stone to post ten percent of the bail if he could not raise the $50,000. Stone also argues that the county sheriff set the bail terms. The record does not reflect that the trial court authorized a ten percent bond or that the sheriff set the bail terms. Those conversations are not a part of the record. Stone has the duty to provide a complete record from which this court can determine the asserted error. City of Star City v. Shepherd, 287 Ark. 188, 697 S.W.2d 113 (1985). Based on the record before us, we find no error.

Stone filed a motion for a change of venue alleging pretrial publicity prejudiced the potential jurors. The motion was made on the basis of a news article which appeared in a local newspaper the Sunday before the trial began on Thursday. The article contained details of Stone’s confession. The motion was unsupported by any affidavits as required by Ark. Stat. Ann. § 43-1502 (Repl. 1977). The trial court has complete discretion in granting this motion. Perry v. State, 277 Ark. 387, 642 S.W.2d 865 (1982). If it is determined the defendant can receive a fair trial by an impartial jury in the county in which he is being tried, then the motion will be denied. Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). Since Stone failed to attach affidavits to his motion, there is no evidence that the jurors were prejudiced by the pretrial publicity. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Voir dire revealed no prejudice that would require a reversal. The motion was properly denied.

Stone also moved for a continuance based on the same grounds. The denial of a motion for continuance is within the sound discretion of the trial court. The trial court’s ruling will be reversed only if there is an abuse of discretion. Orsini v. State, supra. Since Stone did not prove the pretrial publicity prejudiced his case, the trial court properly denied the motion for a continuance.

Stone next argues that the trial court should have granted a directed verdict of acquittal. Stone contends without his confession, there was insufficient evidence against him to send the case to the jury. The confession was evidence, and together with other evidence, the trial court properly denied the motion.

Stone argues for the first time that the state refused to supply the names of witnesses whose testimony was favorable to Stone’s case. These were the witnesses who were at Davis Ranch Subdivision on the night in question and testified for the defense. This argument was not presented to the trial court, and we do not consider arguments raised for the first time on appeal. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

A rebuttal witness, who was present in the courtroom during part of the testimony, was called by the state. The defense objected because the court had imposed the rule requiring all witnesses to be excluded from the courtroom during the testimony. However, Stone stated that the testimony was not “particularly detrimental” to his case. Prejudice must exist in order to reverse a conviction. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984).

Finally, Stone argues there was insufficient evidence to support the jury’s verdict. A review of the evidence shows the evidence was sufficient. He confessed to the crime, and the confession was admissible; he was with Young on the day and evening she disappeared; he located the murder weapon for the police; and his brother disputed the story which Stone told the jury. This evidence and more satisfies the requirement of substantial evidence.

Affirmed.


author: John I. Purtle, Justice.

text:
    Willie BARHAM v. RUPERT CRAFTON COMMISSION COMPANY
    86-49
    718 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      McDaniel & Wells, P.A., by: Bobby McDaniel, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   John I. Purtle, Justice.

At the conclusion of the trial of a tort claim involving an automobile accident the jury returned verdicts for both parties. The trial court reconciled the verdicts in favor of the defendant. Appellant’s motions for judgment n.o.v. and for a new trial were denied. The argument on appeal is that the verdict is not supported by substantial evidence and, therefore, the court erred in refusing to set the verdict aside and grant a new trial. We do not find reversible error.

The automobile collision occurred at an intersection in Blytheville, Arkansas, on March 2,1983. The vehicle the appellant was driving was struck from behind by appellee’s vehicle. The driver for appellee gave one version to the investigating officer and another at the trial. Although the appellant did not appear to be injured at the time of the accident, later in the same day she was examined by a physician. There was testimony introduced into evidence at the trial that appellant incurred considerable medical expense and underwent a great deal of pain and suffering. The appellant and her witnesses testified that her injuries and expenses were a result of the collision. Her testimony, as an interested party, is considered disputed as a matter of law. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973).

Even if appellant had undisputed proof that her injuries and expense were a direct result of the accident, she must still overcome the jury verdict finding that appellee was not at fault. Therefore, we do not discuss the issue concerning injuries.

We think the trial court was correct in reconciling the verdict forms before the jury left the box. The two verdict forms might well have been considered inconsistent had the trial court not acted to correct the mistake. The verdict forms returned by. the jury were as follows:

We, the Jury, find for the plaintiff, Willie M. Barham, and fix her damages at $ 0 .
and
We, the Jury, find for the defendant, Rupert Crafton Commission Company.

Addressing the jury after the return of these seemingly inconsistent verdicts, the court asked the following question, “[s]o I take it your finding is for the defendant and the plaintiff recovers nothing.” The jurors responded in the affirmative and were dismissed. It was clearly the intent of the jury that the plaintiff not recover any amount.

Neither party has cited precedent for the present facts and we have not found such ourselves. We have long held that if the meaning of the jury can be clearly discerned from the verdict it ought not to be set aside. Russell v. Webb, 96 Ark. 190, 131 S.W.2d 456 (1910). In Russell, we stated:

[I]f the issue presented by the pleadings has been substantially decided by the jury, and their meaning can be satisfactorily collected from their verdict, then it is the duty of the court to mould it into proper form by its judgment.

We find the case of Schumock v. Merrian, 259 P.2d 173 (1953), to be persuasive. There the jury, as here, signed both the plaintiff and defendant verdict forms. The Kansas court stated:

It is true the jury was guilty of a technical mistake in returning both forms submitted to it, but it also is very obvious as to what its intentions were, namely, that plaintiff should recover nothing for personal injuries and loss ....

It was the duty of the appellant to prove by a preponderance, a greater weight, of the evidence that the appellee was guilty of negligence which proximately caused her injuries. See AMI 202 and 203. It was also her duty to prove she was less at fault than the defendant. See AMI 2102. The driver of appellee’s vehicle testified that the appellant started through the intersection, on a green light, and then came to a sudden stop and that he could not avoid the collision. It was the prerogative of the jury as to which witness to believe. See Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). On review of a trial court’s denial of a motion for a new trial, we determine only if the verdict is supported by substantial evidence and, if so, we do not disturb the trial court’s action. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982); Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981).

We find that the trial court properly corrected any inconsistencies in the verdict forms and that the verdict, as corrected, reflected the clear intent of the jury. We further hold that there was substantial evidence to support the verdict and the refusal of the trial court to grant a new trial.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Sammy TUMBS v. STATE of Arkansas
    CR 86-124
    718 S.W.2d 105
    Supreme Court of Arkansas
    Opinion delivered October 27,1986

      Michael Everett, for appellant.

      Steve Clark, Att’y Gen., by: Robert A. Ginnaven, III, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty of violating the Omnibus DWI Act of 1983, and his sentence was enhanced because of three prior convictions. On appeal he contends the judgment should be reversed because: (1) There was no substantial evidence to prove that he was driving, and (2) two of his prior convictions were entered by the Municipal Court of Tyronza, a court which was defectively created. The case was certified to this Court by the Court of Appeals under Rule 29(l)(c). We affirm the conviction.

Appellant admits that he was intoxicated and was in one of two cars involved in an accident, but contends there was no substantial evidence to prove that he was driving. The argument is without merit. An eyewitness, Gary Norcross, testified that immediately after the accident, the appellant was in the driver’s seat under the steering wheel, and his wife was on the passenger’s side of the front seat leaning against the door. Appellant’s wife first told the investigating officer that she was driving, but then changed her statement and said she was not driving. She added that the appellant asked her to take the blame for him. The appellant took the witness stand and, in an inherently improbable account, testified that his wife was driving and he was the passenger immediately before the collision, but the impact was so great that it threw him across the seat to the driver’s side and, at the same time, knocked his wife across the seat into the passenger’s side. He had little to say about the arm rest between the seats.

The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but we, not having the advantage of seeing and hearing the witnesses, are bound to uphold the verdict if it is supported by substantial evidence. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). Here, there was evidence that immediately after the impact, appellant was in the driver’s seat behind the steering wheel. That evidence alone constitutes substantial evidence to support the finding that appellant was driving seconds before the time of impact. Circumstantial evidence alone may be sufficient to support a conviction.

Appellant’s second point of appeal is more substantial. In the punishment phase of the bifurcated trial, the trial court allowed into evidence two prior judgments of conviction from the Municipal Court of Tyronza. The Tyronza court, as well as the Marked Tree Municipal Court, was created pursuant to Act 616 of 1975. After appellant’s two convictions in the Tyronza Court, but before the case at bar was tried, we declared that Act 616 of 1975 was unconstitutional because it was a special and local act in violation of the Fourteenth Amendment to the Constitution. Littleton v. Blanton, 281 Ark. 395, 665 S.W.2d 239 (1984).

Appellant contends that the judgments of the Tyronza Court are void judgments which can be collaterally and retroactively attacked, and that the trial court erred in admitting them into evidence.

The early leading case on the subject was Norton v. Shelby County, 118 U.S. 425 (1886). In that case the Supreme Court of the United States held that the members of a county board of commissioners were not de facto officers so as to give validity to county bonds issued by them before the statute purporting to create the board was declared unconstitutional. The Court utterly repudiated the contention that an unconstitutional legislative act may create an office which will make its incumbent a de facto officer. The Court wrote: “An unconstitutional act . . . is, in legal contemplation, as inoperative as though it had never been passed.” Id. at 442.

In 1903 this Court, without citing Norton, adopted that same strict view in the case of Caldwell v. Barrett, 71 Ark. 310, 74 S.W. 748 (1903). There, the regularly elected circuit judge was holding court in Bradley County and was unable to attend an adjourned term of court in Chicot County, so the attorneys present in Chicot County elected a special judge. In ruling that a special judge could not sit in a district while the regular judge was also acting, we wrote:

In order to be a de facto judge there must be a regularly constituted office and a vacancy therein before one appointed or elected to fill such office can be denominated a de facto officer. . . . When there is an office, and no de jure officer to exercise its functions, then one appointed under the form of law would be a de facto officer at least, and his acts are not to be called in question collaterally. The question is quite different where there is no de jure office,. . . for the foundation of the proceeding must be ... a lawfully created court, or there is a total want of jurisdiction in the court itself to hear and determine the case, and this jurisdictional infirmity will annul any proceedings therein on mere suggestion to the proper court. It would be beyond all precedent to term the judge presiding in a court which is not a court at all a de facto judge.

In 1907 New Jersey rejected the Norton strict view that an unconstitutional law creating an office is void ab initio. Lang v. Bayonne, 74 NJL 455, 68 A. 90 (1907). The New Jersey court wrote that the vice of the Norton doctrine was:

[I]t fails to recognize the right of the citizen, which is to accept the law as it is written, and not to be required to determine its validity. The latter is no more the function of the citizen than is the making of the law. ... To require the citizen to determine for himself, at his peril, to what extent, if at all, the Legislature has overstepped the boundaries defined by the Constitution in passing this mass of statutes, would be to place upon him an intolerable burden, one which it would be absolutely impossible for him to bear — a duty infinitely beyond his ability to perform.

This Court later refused to apply the Norton strict view in Eureka Fire Hose Co. v. Furry, 126 Ark. 231, 190 S.W. 427 (1916), and Board of Improvement v. Carman, 138 Ark. 339, 211 S.W. 170 (1919). We refused to apply the strict view in Eureka under the facts of the particular case and refused to apply it in Board of Improvement because of public policy.

In January 1948, the subject was before us again in two consolidated domestic relations cases. In Howell v. Howell and Stevens v. Stevens, 213 Ark. 298, 208 S.W.2d 22 (1948), we returned solidly to the strict view. Those cases held the statute establishing a second office of Chancellor and Probate Judge in Pulaski County was unconstitutional and the void statute allowed collateral attacks upon all judgments entered by the second division chancellor. The dissenting opinions pointed out the devastating effect on hundreds of litigants who thought their land disputes were adjudicated or thought they were validly divorced and, by then, had remarried. Three months later, in April 1948, we reversed Howell and Stevens by finding that the Chancellor was a de facto officer, but said we still adhered to the view that there could not be a de facto judge unless there was a de jure office.

Finally, in the case Landthrip v. City of Beebe, 268 Ark. 45, 593 S.W.2d 458 (1980), we squarely faced the public policy arguments so clearly advanced by the New Jersey court in the Lang case, supra. The salient facts were that the city had attempted to create a police court, but no ordinance creating the court had ever been published as required by statute. Thus, the court was not validly created and was not a de jure office. In declining to allow collateral attacks upon the judgments of the court we created an exception to the strict view and acknowledged the public policy arguments. We wrote:

There are exceptions to the rule that there can be no de facto officer unless there is a de jure office, where the office may be said to exist under color of law. State v. Bailey, 106 Minn. 138, 118 N.W. 676, 130 Am. St. Rep. 592, 19 LRA N.S. 775, 16 Ann. Cas. 338 (1908). It has been aptly said that great public mischief might well arise if the rule pertaining to de facto officers were not applied to recognize that there may also be de facto courts. Burt v. Winona & St. P.R. Co., 31 Minn. 472, 18 N.W. 285 (1884). When a court is organized under color of law, e.g., when its creation is authorized by law, but the proceedings creating it are irregular or defective, it is a de facto court, and its judgments and proceedings are not open to collateral attack. State v. Bailey, supra. See also, People v. Hanley, 106 Misc. 625, 37 N.Y.Cr. 430, 176 N.Y.S. 392 (1919); Marckel Co. v. Zitzow, 218 Minn. 305, 15 N.W.2d 777 (1944).
The rule governing validation of acts of a de facto officer is based upon public policy and its origin and history show that it is founded in comparative necessity. Adams v. Lindell, 5 Mo. App. 197 (1878). The doctrine rests upon the principle of protection of the public and third parties. It was engrafted upon the law as a matter of policy and necessity to protect the interest of the public and individuals involved in the acts of persons performing the duties of an officer without actually being one in law. 63 Am. Jur. 2d 939, Public Officers & Employees, § 493; Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425. See also, Howell v. Howell, 213 Ark. 298, 208 S.W.2d 22 (McHaney, J., dissenting). The reasons for introduction of the doctrine into the law are sufficient basis for extending it to courts whose creation is authorized by law, but defectively done.
The situation with which we are now faced is somewhat like that treated by the Supreme Court of New Mexico when the constitutionality of the act creating a juvenile court in that state was attacked. See In re Santillanes, 47 N.M. 140, 138 P. 2d 503 (1943). That court, facing the possibility of invalidating hundreds of judgments in the juvenile courts by a declaration that there was no juvenile court, and never had been, if the condition that there must be a de jure office before there can be a de facto officer were rigidly adhered to in every case, pointed out that it had previously held that, where uncertainty, chaos and confusion would result if the condition were rigidly adhered to, public policy forbids upholding that condition. We face a similar situation here. No doubt there have been hundreds of judgments rendered by the Police Court of the City of Beebe during the eight years intervening between the appointment of a judge and the judgment now being considered on appeal. Apparently the validity of the organization of that court has not heretofore been questioned. There was statutory authority for the creation of the court. We feel that public policy requires that we sustain the trial court’s holding that there was a de facto court until the date of the circuit court’s judgment.

Similarly, in the case at bar, the General Assembly clearly had the authority to create a municipal court in Tyronza pursuant to the general statutes governing municipal courts, even though the particular act under which the court was formed, Act 616 of 197 5, was defective as a special and local act. The fact that the legislature had the authority to create the court, coupled with the requirements of public policy, require that we hold that a de facto court was organized under color of law, and its judgment proceedings are not open to collateral attack.

The appellant next argues that the admission into evidence of the prior convictions from a defectively created court constitutes a taking of liberty without due process of law. Such an argument might have been valid if raised on direct appeal, but this is not a direct appeal. It is a collateral attack, and the convictions at issue are not subject to collateral attack.

Affirmed.

Hickman, J., concurs.


text:
    Donnie DOZIER v. STATE of Arkansas
    717 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      Richard A. Garrett, for appellant.
    No response.
   Per Curiam.

Appellant, Donnie Dozier, by his attorney, Richard A. Garrett, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a miscalculation of time on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Bobby FRETWELL v. STATE of Arkansas
    CR 85-208
    718 S.W.2d 109
    Supreme Court of Arkansas
    Opinion delivered October 27, 1986

      William J. Valek, for appellant.
    No response.
   Per Curiam.

Bobby Fretwell was convicted of capital murder and sentenced to death. On May 19, 1986, we affirmed. Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986). Fretwell, through his attorney William Velek, subsequently sought and was granted a stay of execution so that he could proceed under our postconviction rule, Rule 37. Velek now asks to be relieved as counsel and moves for appointment of counsel to represent Fretwell in his pursuit of relief under Rule 37. We find good cause to relieve Velek as counsel, but deny the request for appointment of another attorney.

The Arkansas Rules of Criminal Procedure, Rule 36.26, provides that an attorney will represent a convicted defendant through appeal to this court, unless permitted by the trial court or this court to withdraw. The right to counsel ends after the direct appeal of the original criminal trial is completed, Douglas v. People of State of California, 372 U.S. 353 (1963), and there is no obligation for counsel to continue representing the defendant in postconviction proceedings which are undertaken in this court after appeal. See Noble v. Sigler, 351 F.2d 673 (8th Cir. 1965), cert. denied 385 U.S. 853 (1966). As postconviction proceedings are civil rather than criminal in nature, there is clearly no constitutional right to appointment of counsel to prepare a petition under Rule 37. See Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975). We will not make an exception in a capital case.

Motion to be relieved as counsel granted; motion for appointment of counsel denied.