author: George Rose Smith, Justice.

text:
    Thomas Winford SIMMONS v. STATE of Arkansas
    CR 82-18
    645 S. W.2d 680
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983
    [Rehearing denied March 14, 1983.]

      John W. Settle and Garner Taylor, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty.. Gen., for appellee.
   George Rose Smith, Justice.

Thomas Winford Simmons, age 37, was sentenced to death for capital murder, in that he shot four persons in the back of the head, one of them while handcuffed and helpless. Simmons, represented in the trial court and here by the public defender, argues 22 points for reversal. We find no prejudicial error of any kind. For convenience we discuss Point 16 first, the sufficiency of the evidence, requiring a narrative of the facts, then the three points on which counsel place particular emphasis, and finally the other 18 points, grouping them when appropriate.

First, a narrative of the evidence. Simmons was charged with having caused the deaths of (1) Larry Price in the course of kidnaping, (2) police officer Ray Tate acting in the line of duty, and (3 and 4) Jawana Price (Larry Price’s wife) and Holly Gentry in the course of kidnaping, robbery, and rape. We detail the events as they occurred, beginning on Saturday, January 3,1981, and continuing through the following Wednesday. We should note at the outset that Simmons has made no statement about the homicides either to the investigating officers or at the trial, resting throughout on the plea of not guilty and his right to remain silent.

Holly Gentry, who was Jawana Price’s employer, asked her to sell his car for him, a maroon-silver LTD. The Prices advertised the car for sale. On Saturday afternoon a witness who lived next to the Prices’ apartment in Fort Smith saw a man drive up in a small yellow car. (Simmons’s car was a small yellow Toyota.) The witness, who noticed the stranger looking at the LTD, told him that the Prices were away for the weekend and suggested that he come back during the week.

Early Monday morning a man came by to look at the LTD, according to statements made by Jawana Price when she went to the police that afternoon to report that her husband was missing. A neighbor testified that he saw Simmons, whom he identified at a lineup and in court, looking at the LTD with Larry Price. According to Jawana’s report, her husband and the visitor took a test drive together and were drinking coffee in the apartment when Jawana left for work in her own car.

At some time during the morning Simmons took to his branch bank in Van Burén a $350 check drawn on a Clarksville account that had been closed by the Prices some months earlier. Simmons received $50 cash and deposited the rest. The Price signature on the check was a forgery. The jury could have concluded that Simmons kidnaped Larry Price, killed him by shooting him in the back of the head, and hid the body in a wooded area not far from Simmons’s home at Kibler in nearby Crawford county. The fact that blood from Price’s head wound dripped into water just below where his body was hidden indicated that the wound was still bleeding when the body was concealed. The medical examiner testified that Price’s death could have occurred during the day at any time after 8:00 a.m.

That afternoon the witness Seaton, working at a parking lot used by Jawana, noticed a man in a yellow Toyota watching Jawana’s car for more than an hour. Seaton wrote down the license number, which was shown to be Simmons’s number, but Seaton did not report the incident to the jpolice until the next day, Tuesday.

Larry Price failed to meet Jawana for lunch as they had planned. She also learned that he did not show up for work that day. When she and Gentry left work that afternoon they drove in Gentry’s pickup truck to police headquarters, where they reported Larry to be missing. They talked to Officers Davis and Tate. At about 6:00 p.m. Gentry and Jawana left the police station to go to the Prices’ apartment, and Officer Tate left in his unmarked blue police car to meet them there. Shortly before that a man not clearly identified had engaged a taxicab and had been dropped off at the Prices’ apartment complex.

James Davis, a neighbor across the street, saw a man (apparently Officer Tate) arrive at the Prices’ apartment complex in a blue car. The man looked briefly at the truck and then went into an apartment. Shortly after that another man made three trips from an apartment to the blue car. The first time he brought out a man whose hands were tied behind his back and had him get in the blue car. Next, he brought out another man, also tied, who was put in the car. Third, he brought out a woman, who was crying, and drove off with all three. Officer Tate had reported in by radio when he arrived at the apartment complex; he was never heard from again. Late that night Tate’s police car and Gentry’s LTD were found parked in public areas in or near Fort Smith.

When the branch bank opened on Tuesday morning, Simmons was waiting to get in. He asked for the return of the check he had deposited the day before. The two bank employees connected the name on the check, Larry Price, with the missing-persons account that was already extensively in the news. They mentioned that fact to Simmons, but said they did not have the check at the branch. When Simmons drove away his license number was written down by one of the bank employees, whose husband was a police officer. She at once called her husband about the incident. A quick investigation traced the number, to Simmons, who had given his name and address at the bank. It was also learned that Simmons was on parole from a federal prison (a fact not disclosed to the jury), that he worked at a sand and gravel company near Fort Smith, that he had not been at work on Monday, having called in to say that he had an accident in his car, and that he was at work on Tuesday.

Several officers went out to the sand and gravel company to interview Simmons. According to them, he was cooperative and readily agreed to accompany them to headquarters for questioning about the check. At a suppression hearing the officers testified that Simmons explained he had encountered Larry Price on Sunday night and had received the check as payment for a sale of marihuana. He encountered Price at a later meeting on Sunday night, and Price said the check was bad. When the officers mentioned that Price was missing, Simmons refused to make any further statement and asked for an attorney. The officers then placed Simmons under arrest for violation of his parole, ceased their questioning, and called the public defender to represent him. None of the testimony about Simmons’s explanation was heard by the jury.

At about three o’clock on Tuesday afternoon a farmer working near Kibler, where Simmons lived, happened to find the bodies of Tate, Gentry, and Jawana Price, piled together in á big tractor tire in a field and partially concealed. Tate’s hands were fastened behind his back with his handcuffs. On the basis of their total information the police charged Simmons with the murders at about 5:40 p.m. Larry Price’s body was found by a deputy sheriff in the woods near Kibler on Wednesday, as a result of a telephone call.

Scientific testimony and other evidence provided much additional proof of Simmons’s guilt. As to robbery, missing from the three bodies were the three men’s wallets and Jawana’s purse. As to rape, Jawana’s body had slight bruises in the genital area, her pantyhose were on wrong side out, a belt was not through all its loops, and semen in her vagina matched Simmons’s blood type but not that of Larry Price. A pistol lying under the three bodies was positively identified as the murder weapon. Its serial number had been filed down, but the number could be determined. That pistol had been bought by a neighbor of Simmons’s, who had lost it in the woods some two years earlier and had reported the loss to the police. From the proof the j ury could have found beyond a reasonable doubt that a hair from Simmons’s body was discovered in Officer Tate’s shirt and another hair from Simmons’s body was found in Larry Price’s sock. We have no doubt about the sufficiency of the evidence, circumstantial though it was.

Point 1 assigns error in the trial judge’s denial of a requested change of venue. There was, understandably, much media publicity during the first few days, when the four victims were missing and after their bodies were found. Later the news coverage was not especially extensive. The affidavits submitted with the motion were conflicting, with the State’s outnumbering those of the movant’s. Most important, the twelve jurors and two alternates, without exception, were accepted as “good for the defense.” More than seven months elapsed between the original publicity and the trial. Only six of about sixty prospective jurors were excused because of their beliefs about Simmons’s guilt. We agree that Simmons would have been entitled to a change of venue beyond the two-county circuit had the proof required a change, but it did not. The court was right in denying the motion. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

Point 2 questions the denial of motion in limine by which defense counsel sought a ruling that if Simmons chose to testify the State could not impeach him by evidence of previous felony convictions if counsel first offered to concede that Simmons had previously been convicted of one felony.

Neither branch of counsel’s twofold argument can be sustained. Primarily, it is argued that when counsel admitted one felony conviction, Simmons would then be effectively discredited and could not be further impeached by proof of other convictions (of which he had several). Neither the common law nor Uniform Evidence Rule 609 supports the argument. The common law permitted impeachment by proof of any felony conviction; Rule 609 contains limitations as to the time and nature of the convictions and as to their comparative probative value, but none as to their number. If proof that a witness has been convicted of murder or theft or perjury is admissible to impeach his veracity, as it usually is, then proof that he has committed such offenses time and time again may fairly be considered by the jury as further impairing his credibility. Counsel misinterpret our holding in Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). There a State’s witness had been impeached by a felony conviction. Campbell, trying his own case, asked the witness “the actual date and time that you received, or were sent to the penitentiary?” The trial judge disallowed the question, as irrelevant. We affirmed, saying: “[I]t is the fact of conviction that impairs the witness’s credibility, not the date of the sentence or its length.” Our point was that the details inquired about were not relevant. We did not mean that the bare fact of a conviction of a felony precludes the cross-examiner from identifying that felony and others underlying the previous convictions. To the contrary, Uniform Rule 609, by requiring that probative value be weighed against prejudice and by admitting all convictions involving dishonesty, undeniably contemplates that the jury will know just what crimes the witness has been convicted of.

Secondarily, counsel argue that proof of a prior conviction for kidnaping would have been inadmissible, because its prejudicial effect would have outweighed its probative value in this case, where kidnaping is also involved. Our holding in Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981), is cited, but it is not controlling. There the defendant, a grown man, was charged with having sexually molested a nine-year-old boy. We held that an earlier similar conviction involving another little boy was not admissible, because its prejudicial effect would clearly outweigh its probative value as bearing on credibility. It is common knowledge, however, that mature men who derive pleasure from sexual contact with very young boys are apt to repeat such conduct; so the prejudicial effect of the prior offense does overshadow its potential worth on the narrow issue of credibility. In Jones we pointed out that there may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible. Kidnaping, unlike sexual abuse of minors, is not the sort of offense that perverted people are apt to commit again and again. We cannot say that the trial judge abused his discretion in concluding that a prior conviction for kidnaping would be admissible if Simmons elected to testify.

As to such an election, we make a point for the future. A motion in limine, asking for an advance ruling that the defendant not be exposed to cross examination about certain convictions, is subject to abuse, in that the accused may not intend to testify at all and yet seek a ruling in the hope of leading the trial judge into reversible error, with the possibility of a new trial and a second chance of acquittal. Some courts have met the problem by denying review unless the defendant actually testifies at the trial. That has not been our position in the past, nor is it now. We do adopt, however, the rule approved by the majority in United States v. Cook, 608 F.2d 1175 (9th Cir. 1979), where the opinions on both sides discussed all aspects of the problem. The majority summed up its ruling as follows:

In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.

In adopting what we regard as the better rule we realize that in some instances a defendant may prefer not to outline his expected testimony at a pretrial hearing held before the prosecution’s witnesses have testified. In that situation the trial judge may postpone a ruling upon the motion in limine until the State has rested and the time has come for the defendant to reach his final decision about testifying. At that stage of the trial there would be scant basis for his refusal to outline the testimony he expects to give almost immediately.

In Point 12 counsel attack the admissibility of various physical exhibits introduced in evidence by the State, as being fruits of the poisonous tree, because (a) Simmons was illegally arrested at his place of work, (b) his consent to search his car was invalid, and (c) search warrants under which his house was searched and under which samples of his blood and hair were taken were not supported by sufficient affidavits.

Subpoints (a) and (b) may be discussed together, both turning on issues of fact. The undisputed testimony is that Simmons willingly accompanied the officers to the police station and that he willingly consented to the search of his car. As in Lascano v. State, 275 Ark. 346, 631 S.W.2d 258 (1982), the officers were not asked whether they told Simmons that he did not have to accompany them. It is argued that the officers should have told Simmons that he was a suspect in the disappearance of four persons, but that assertion is too sweeping. The officers knew that Simmons was on parole, that he had sought the return of a Price check he thought to be bad, and that he had not been at work on Monday. Innocent explanations were obviously possible. Simmons’s statements to the officers were not put before the jury. The only exhibits taken in the search of his car were the license plate, which was otherwise provable in countless ways, and a matchbook, the relevance of which is not clear. Thus on subpoints (a) and (b) the trial judge’s decision on issues of fact is not clearly erroneous, and even if it were no prejudice has been shown.

As to (c), we need not quote the detailed affidavits for the search warrants. The only really serious argument here is that the affidavits did not show the reliability of two informants: James Davis, who saw the three victims being taken from the apartment to Tate’s car, and Donald Seaton, who saw Simmons watching Jawana’s car at the parking lot. Davis and Seaton, however, were not confidential informants whose identity was being protected. They volunteererd information simply as good citizens. The police necessarily rely upon such information every day in the course of their work, without first exploring abstract issues of credibility. Hence no additional support for the reliability of Davis and Seaton was required. Hadley v. State, 391 So.2d 158 (Ala. Cr. App., 1980); People v. Bell, 96 Ill. App. 3d 857, 421 N.E.2d 1351 (1981); State v. Watson, 588 S.W.2d 178 (Mo. App., 1979).

Points 3, 4 and 13 have to do with pretrial decisions. In Point 3 it is argued that the defense should have been allowed more than $200 to conduct its investigation into possible defenses. Counsel, however, do not show that the amount was inadequate or even suggest any defense that might have been discovered. Their client, whether innocent or guilty, surely was aware of any fact that might establish his innocence. As to Point 4, the validity of our death penalty statute has been settled by many cases, beginning with Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878 (1977). Point 13, questioning the lineup procedure, is also without merit. From a lineup of men not greatly dissimilar to Simmons in general appearance, he was picked out by the witness Gilbert, who had talked to Simmons for about five minutes on Saturday, only four days before the lineup, and by the witness Kremen, the neighbor who had seen Simmons and Larry Price looking at the for-sale LTD only two days earlier. Under the various tests of reliability enumerated in Mayes v. State, 264 Ark. 283, 288, 571 S.W.2d 420 (1978), and other cases, thé trial judge’s decision was not wrong.

Points 5, 6, 7, and 8 concern the selection of the jury. Point 5 must be rejected, for we have often held that a death-qualified jury is constitutional. Points 6 and 7 complain of counsel’s having had to use peremptory challenges for prospective jurors after challenges for cause had been denied. The challenges for cause were properly denied, and in any event the defense was not compelled to accept any juror who was not pronounced good by counsel. Under Point 8 it is argued that the State should not have been allowed to peremptorily challenge two jurors who had already been accepted by both sides. That procedure was approved in Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981), where the defense had no peremptory challenges left when the State was allowed to excuse a juror already seated. By contrast, here the defense still had three challenges left when the two jurors were excused. In fact, the defense apparently did not suffer from a shortage of peremptory challenges, because (a) the prosecutor cooperated by making no objection to defense challenges for cause, (b) defense counsel mentioned more than once that they had to exhaust their peremptory challenges to preserve their objection to venue, and (c) no juror was forced upon the defense. No possible prejudice from the court’s procedure appears.

Five points relate to the admissibility of evidence. Point 9: The .prosecution did not unfairly withhold evidence merely because the deputy sheriff who received a telephone Call about the discovery of Larry Price’s body at first protected the caller’s request for anonymity, but disclosed the caller’s identity at the trial after the caller had given permission. There is no indication that the officer acted in bad faith, that he had disclosed the name to the prosecutor, or that the defense was handicapped by not knowing earlier the identity of the caller. There was no request for a continuance. Point 10: The court correctly refused to admit proof that some of Simmons’s relatives had blood type A, which was the Prices’ type and the type found on Simmons’s trousers. There was no proffer of proof that the relatives’ blood could in any way have gotten upon the trousers. Point 14: The four photographs complained of were relevant and in no manner whatever apt to inflame the jury. Point 15: Any possible gaps in the chain of custody of blood samples were inconsequential, and there was no substantial indication of possible tampering. Davis v. State, 275 Ark. 264, 630 S. W.2d 1 (1982). Point 18: During the penalty stage of the two-step trial the court correctly refused to allow the defense to introduce pictures of a gas chamber, a gallows, and an electric chair, none of which can be regarded as a mitigating circumstance. Such circumstances, as typified by the six listed in Ark. Stat. Ann. § 41-1304 (Repl. 1977), are applicable only to the particular defendant, not to capital punishment in general.

Five points relate to matters occurring after the parties had rested their case. Point 11: Whether to send the jury to the scene of the Prices’ apartment, to determine how well the witness Davis could have seen the three victims being taken to the car at some imprecise time after sunset, was a matter addressed to the trial judge’s discretion. Hogan v. State, 224 Ark. 191, 272 S.W.2d 312 (1954). No abuse of discretion is shown. Point 17: The court was right in submitting to the jury the various charges of capital murder, for we have already seen that there was substantial evidence to support each verdict. Points 21 and 22: The court refused to instruct the jury that it had to presume that if Simmons were sentenced to life imprisonment without parole he would spend the rest of his life in prison and refused to rule that if defense counsel made such an argument to the jury the prosecutor should be prohibited from mentioning in reply the possibility of executive clemency. Both rulings were right. For the reasons fully explained in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), the judge should not, and therefore counsel should not, attempt to explain matters of parole or other executive clemency to the jury.

Point 19 is novel. The verdict forms submitted to the jury in a capital case restrict the jury to certain aggravating circumstances, but the jury is not restricted in finding mitigating circumstances. Here the forms pertinent to the murder of Jawana Price, Tate, and Gentry, were returned with a notation that some of the jurors felt that “fear of detection” was a mitigating circumstance. Counsel asked for a mistrial, arguing that the jury must have misunderstood the court’s instructions, because fear of detection would be an aggravating circumstance, not a mitigating one. The court refused to declare a mistrial; an offer to poll the jury was declined by the defense.

The court was right, for either of two reasons. The jury’s answers to the questionnaire must be interpreted by considering how they could have understood the question. Miller v. State, 269 Ark. 341, 355, 605 S.W.2d 430 (1980). Since the jury did not insert “fear of detection” as a mitigating circumstance in the death of Larry Price, which apparently occurred before the three other deaths, some jurors might have felt that fear of detection for the first murder mitigated the coldbloodedness of the other three. That view would have made their response a proper one. Second, if the verdict was ambiguous the judge could have sent the jury back for a further explanation of its intent. Clift v. Jordan, 207 Ark. 66, 178 S.W.2d 1009 (1944). Since counsel stood upon the motion for a mistrial and permitted the jury to be discharged without a clarification of the verdict, we cannot now resolve a highly doubtful speculation in the appellant’s favor. Reynolds v. Nutt, 217 Ark. 543, 230 S.W.2d 949 (1950).

Finally, the argument under Point 20 that the penalty was so severe as to indicate passion and prejudice cannot be sustained. In comparing this death sentence with similar cases, as is our practice, we know of no other case involving multiple murders so coldblooded, so brutal, so lacking in any trace of humanity, as those committed by Simmons. We cannot attribute the verdict to passion or prejudice or say that it is arbitrary in comparison with other cases. Nor do we find any prejudicial error in any other ruling adverse to the defendant.

Affirmed.


source: Caselaw Access Project

author: Frank Holt, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    TUCKER ENTERPRISES, INC., d/b/a MR. MOBILE HOMES and CENTURION HOMES CORPORATIONS v. George F. HARTJE, Judge, et al
    82-191 and 82-192
    _S.W.2d_
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983
    [Rehearing denied March 14, 1983.]

      Tom Forest Lovett, P.A., for petitioner Tucker Enterprises, Inc.

      Highsmith, Gregg, Hart ir Farris, by: John C. Gregg, for petitioner Centurion Homes Corporation.

      Stephen E. James, P.A., for respondents.
   Frank Holt, Justice.

These cases, which we consolidate, come to us on petitions for writs of prohibition. Petitioner Tucker Enterprises, Inc., is an Arkansas corporation with its place of business in Pulaski County, Arkansas. Petitioner Centurion Homes Corporation, which manufactures mobile homes, is a foreign corporation not qualified to do business in the State of Arkansas. The Lovettes, respondents, purchased from Tucker a mobile home manufactured by Centurion. Subsequently, the Lovettes filed a complaint against the petitioners in Van Burén Chancery Court, seeking a rescission of their contract and damages for breach of contract and warranties. Later, the Lovettes instituted an action against Tucker only in Pulaski Chancery Court seeking rescission and restitution. Tucker filed a third party complaint against Centurion. The Lovettes voluntarily dismissed these two actions with approval of the court but without written stipulation from the parties. Thereafter, the Lovettes instituted the present action in Van Burén Circuit Court against Tucker and Centurion seeking damages based upon the allegations of breach of contract and tort of misrepresentation. Petitioners filed motions to quash service of process and dismiss the actions alleging lack of venue and, further, that the two dismissals by the Lovettes operated as an adjudication on the merits according to ARCP, Rule 41. That rule provides that a second voluntary dismissal by the plaintiff of an action based upon or including the same claim as the previous action “operates as an adjudication on the merits.... unless all parties agree by written stipulation that such dismissal is without prejudice.” The respondent court denied the motions. Hence, these petitions for writs of prohibition.

Petitioners first argue that the two prior dismissals operated as an adjudication on the merits of the case, and thus writs of prohibition lie to prevent further litigation against them. It is well settled law in our state that when a trial court is proceeding in a matter where it is entirely without authority, the Supreme Court, in its exercise of supervisory control, has the authority to prevent the unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920); and Springdale School District v. Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981). However, the extraordinary writ of prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Skinner v. Mayfield, 246 Ark. 741, 439 S.W.2d 651 (1969). Here, the petitioners’ argument that the two prior dismissals operate as an adj udication on the merits constitutes an attack, hot on the court’s authority in this action, but on the correctness of its ruling with respect to the defense of res judicata. However, it is not the office of the writ of prohibition to test the correctness of the trial court’s ruling on the defense of res judicata. Robinson v. Merritt, Judge, 229 Ark. 204, 314 S.W.2d 214 (1958). In Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S.W.2d 3 (1952), the writ of prohibition was sought because the defendant contended that liability had been discharged by a satisfaction of judgment. We denied the writ saying:

In substance its motion to dismiss asserts only that it has a defense to the plaintiffs’ cause of action. If prohibition may be used to test the sufficiency of a defense, there is no reason why it could not also be used to review the trial court’s action in overruling a demurrer to the complaint. Of course that is not the office of the writ. Petitioner’s question must be raised by appeal ....

The rule is well summarized in 63 Am. Jur. 2d, Prohibition, §33:

The fact that the defense of res judicata based on a decision in a former action is available in a second action involving the same issues does not deprive the court in which the second action is brought of j urisdiction to try the case again, so as to warrant the issuance of a writ of prohibition to prevent such court from proceeding with the suit, and the only remedy of the aggrieved party is to set up the res judicata plea as a defense in that suit and to appeal from an adverse decision therein.

To the same effect is Annot., 159A.L.R. 1283, p. 1293(1945).

Nevertheless, we do agree with the petitioner that the writs of prohibition should issue inasmuch as venue is not properly located in Van Buren County. The Lovettes argue that the proper place for venue is in the county of their residence, Van Burén County, pursuant to Ark. Stat. Ann. §§ 27-610 and 27-611 (Repl. 1979). We must disagree. Section 27-610 governs venue for actions for personal injury or death, which are not alleged here. Section 27-611 governs venue for actions asserting property damage due to force or violence, which also is not alleged. See Beatty v. Ponder, Circuit Judge, 278 Ark. 41, 642 S.W.2d 891 (1982). Here, the trial court ruled that since Centurion, a non-resident corporation subject to the long-arm statute, could be sued in Van Burén County, venue also would be proper over Tucker Enterprises, an Arkansas corporation with its principal place of business in Pulaski County. We rejected that argument in Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977), where we said:

We must disagree, however, with the appellant’s contention that ‘long-arm’ service on a non-resident of this state is sufficient to fix venue so as to permit the ‘dragging’ of a resident from one county to another to defend that action.

Venue in this case is governed by § 27-613 which provides: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” Neither defendant resides or was summoned in Van Burén County. Venue in this case properly is in Pulaski County, where Tucker Enterprises has its principal place of business. This section is applicable to corporations. See International Harvester Co. v. Brown, 241 Ark. 452, 408 S.W.2d 504 (1966).

Additionally, Centurion Homes, which was served in Texas pursuant to our long-arm statute (Ark. Stat. Ann. § 27-2502 [Repl. 1979]), argues that a writ of prohibition should issue as to it because it does not have sufficient contacts with Arkansas to be subject to the jurisdiction of Arkansas courts. In the very recent case of Wise. Brick & Block Corp. v. Cole, Judge, 274 Ark. 121, 622 S.W.2d 192 (1981), we said:

Whether the “minimum contacts” test has been satisfied is a question of fact. In cases where jurisdiction depends upon the establishment of facts, the issue of jurisdiction must be decided by the trial court, and even if that decision should be wrong, we correct that error on appeal and not on prohibition. Robinson v. Means, Judge, 192 Ark. 816, 95 S.W.2d 98 (1936).

Writs granted.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result but concur to point out that in my opinion the facts in this case, reflected by this record, seem tailor-made for ARCP, Rule 41. While prohibition is not a remedy available to the appellants, ARCP, Rule 41, would appear to be a defense.


author: Frank Holt, Justice. John I. Purtle, Justice,

text:
    Robert Richard HEFFERNAN v. STATE of Arkansas
    CR 81-82
    645 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Andrew L. Clark, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of capital felonymurder [Ark. Stat. Ann. § 41-1501 (1) (a) (Repl. 1977)] and fixed his punishment at life imprisonment without parole. The state adduced evidence that the victim, a fourteen year old girl, was abducted from a laundromat in Benton, Arkansas, raped and shot four times on February 3, 1980. The body was discovered the next day near Benton. The appellant, along with a man named Joseph Michael Breault and two women, all transients, camped at a park near Benton on February 2 and left on February 5, though they had originally paid to stay through February 6. One of the women testified that the appellant and Breault were armed but they disposed of the guns. A .357 Magnum, owned by the appellant, was subsequently retrieved from a lake. Ballistics tests demonstrated that this was the weapon from which the fatal bullets were fired. Glitter and hair were found on pants in the truck driven by the appellant and Breault, matching glitter and hair found on the clothing of the deceased. Appellant and Breault were later arrested in Colorado. The appellant does not challenge the sufficiency of the evidence. Flis court appointed cousel raises two points for reversal. We affirm.

Appellant first contends that the trial court erred in refusing to conduct a sequestered voir dire. He requested that the court, in the exercise of its discretion, allow him to question each prospective juror individually during a sequestered voir dire inasmuch as the state was seeking the death penalty. The court refused the motion. However, he did permit individual voir dire. A.R.Cr.P., Rule 32.2. Appellant argues that if he had been allowed to interview the jurors privately the jurors would have answered questions more candidly about their knowledge of the case based on pretrial publicity, their past experiences as crime victims and their opinion of the death penalty. He alludes to only one instance in support of this argument; i.e., venireman Lawrence stated that he had not formed an opinion about capital punishment before the voir dire began, because he had not thought about it or had to make that decision. He wasn’t sure what his opinion would have been if he had been the first juror questioned. However, he had decided that he believed in it under certain circumstances. The appellant did not receive the death penalty; therefore, he was not prejudiced by this recited occurrence. Hobbs v. State, 277 Ark. 271, 641 S.W.2d 11 (1982); and Van Cleave v. State, 268 Ark. 514, 598 S.W.2d 65 (1980). In his sequestration motion appellant acknowledges, as indicated, that sequestration of the jury for voir dire purposes is within the trial court’s discretion. In the circumstances we cannot say that appellant has met his burden of proof by demonstrating an abuse of that discretion.

The appellant next asserts that the trial court erred in denying his motion on the day of trial for a continuance. He premises this argument upon the asserted failure of the prosecution to comply with the court’s discovery order, contending, therefore, that he was entitled to a continuance pursuant to A.R.Cr.P., Rule 19.7, which provides that the trial court may, inter alia, grant a continuance for noncompliance with the court’s order. A.R.Cr.P., Rule 17.1 (d) requires that the prosecution “shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.”

Appellant first argues that he did not receive copies of certain lab reports until the day of the trial. However, the prosecutor himself did not receive the written reports until the day of the trial. It appears, however, that the analysis of the materials to be tested was made known to defense co-counsel by the prosecutor ten days before trial, at which time defense counsel responded, “Well, that doesn’t seem like that’s any problem.” The lab did not have the final results until the weekend before the trial. Defense counsel -were informed of the final results by phone at that time. The prosecutor, himself, did not receive the written reports until the day of the trial, and they were promptly given to the defense counsel. Admittedly, the delay was not the “fault” of the prosecutor.

Secondly, appellant argues that the prosecution did not furnish the defense with a copy of a letter dated November 10, 1980, from a prosecutor in Colorado to the local prosecutor allegedly giving the name and address of a psychiatrist there to whom Breault, who accompanied the appellant on the date of the Arkansas murder, had confessed that he had killed the victim, reciting the facts and circumstances. Appellant’s present counsel with co-counsel were substituted as appointed counsel on February 11,1981. Trial date was set for April 27, 1981. The appellant argues that the prosecution had possession of the letter from the Colorado prosecutor and had refused to produce a copy of it which prevented the Colorado psychiatrist from being timely subpoenaed by the defense. In response, the prosecutor stated to the court that his entire file, including the letter, had been made available to the defense in compliance with the court’s discovery order. Furthermore, appellant’s counsel acknowledged to the court that “[i]n looking through the files sometime back” counsel had discovered a letter from the Colorado prosecutor to the Arkansas prosecutor. Further, defense counsel filed a petition for a writ of prohibition in this court on April 27, 1981, the day of trial, and attached thereto a letter dated November 10, 1980, from the Colorado prosecutor making reference to the psychiatrist’s report. This certainly verifies the statement that he had discovered the letter in his files prior to the trial. The letter, inter alia, referred to the existence of the Colorado psychiatrist reports on appellant and Breault following their apprehension there on local charges. It was stated in the letter that Breault had admitted committing the alleged Arkansas offense. The prosecutor steadfastly maintained that the defense had been furnished a complete copy of its file, including the letter and, therefore, he had complied with the court’s discovery order.

No effort was made to contact the Colorado psychiatrist until a few days before the trial date. As we have said, a defendant in a criminal case cannot rely upon discovery as a total substitute for his own investigation. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981). Here, there is no showing of a purposeful or willful violation of the discovery order. Further, the prosecution represented to the trial court that it had promptly obeyed the court’s discovery order. The defense maintained that it had not. The action of the trial court in denying a motion for continuance will not be reversed in the absence of a showing of such a clear abuse of the court’s discretion as to amount to a denial of justice, and the burden rests upon appellant to show that there has been such an abuse. Kelley v. State, 261 Ark. 31, 545 S.W.2d 919 (1977). Here, it is not demonstrated that the trial court, in resolving the issue, clearly abused its discretion in denying the motion for a continuance which was based upon the asserted failure of the prosecutor to comply with the court’s discovery order.

We have reviewed the record and all objections decided adversely to the appellant pursuant to the requirement of Supreme Court Rule 11 (f), Ark. Stat. Ann. Vol. 3A (Repl. 1979), and find no prejudicial error.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not understand the reasoning behind the majority opinion any more than I understand the refusal of the trial court to allow individual sequestered questioning of proposed jurors. I recognize it takes time and expense to try a criminal case but it just so happens that both the Arkansas and Federal Constitutions provide for just that. In most cases the accused is a resident and citizen of the nation and many times of the state in which he is brought to trial. Therefore, such a person, being one of the people with whom the reserved power to change our laws lies, is entitled to due process and equal protection under the law. The right to trial by an impartial jury is one of the basic rights guaranteed to the people. Anything less is unacceptable. One needs but to read the majority opinion to see that the jury in this case was chosen in manner so as to allow potential jurors to be persuaded by questions put to the members of the panel being examined prior to them. The record is even more clear in regard to this point. The example of juror Lawrence, as cited in the majority opinion, is proof that at least one member of this particular jury panel changed his mind in listening to the examination of those questioned before him. I must ask: is a few more hours to process the panel too high a price to pay in order to provide an individual the basic rights guaranteed by our Constitutions? I think not. More often than not the price of expediency is the cost of a new trial. In such an instance not only the accused but the state and its people are the losers. In the present case the jurors took the witness stand and were questioned one at a time. The same procedure could have been followed by having voir dire conducted in the trial court’s chambers. The right to a trial by an impartial jury is the most priceless safeguard of individual liberty. Irvin v. Dowd, 366 U.S. 717 (1961).

I am of the opinion that fundamental fairness required a continuance when the state crime lab report made its first appearance on the date of the trial and a statement reflecting that another party had confessed to the crime for which appellant was being tried showed up shortly before. This most heinous and brutal crime occurred on February 3,1980. The appellant was charged with the commission of this crime on May 7, 1980. An attorney was appointed to represent the appellant prior to December 15, 1980, because it was on that date a motion was filed and an order of commitment to the state hospital issued. On January 5, 1981, an attorney representing the appellant filed a standard discovery motion pursuant to A.R.Cr.P., Rules 17 and 19. The record does not show that this information was ever furnished to the appellant. The court entered an order on January 22,1981, requiring the appellant to furnish the state certain information regarding reports and other information set out under A.R.Cr.P., Rule 18. On February 11,1981, the present attorneys were substituted for the original attorney. A motion was filed by the state on March 2, 1981, requesting discovery of the nature of any defenses and names and addresses of witnesses. On the same date a second order was entered requiring appellant to furnish the state with the usual discovery information. A motion for discovery of possible aggravating circumstances was filed by the appellant on March 26,1981. On the same date a motion in limine was filed objecting to the use and introduction of certain photographs at the trial. A motion for continuance was filed by the appellant perhaps on the same date. I am unable to read the filing date. The court denied the motion for continuance at the omnibus hearing which commenced on April 6,1981, and was continued to April 23,1981. The state promised to furnish the results of tests from the crime lab to the appellant in advance of the trial. The written report from the crime lab was not delivered to counsel for appellant until the morning of the trial. On that same day appellant filed a motion for further discovery and for a continuance, based on the fact that the report was not received until that day. Appellant’s attorneys first learned of the contents of the crime lab report from a telephone conversation at noon on Saturday, April 25, 1981.

Appellant further contended that the state had information which would tend to exculpate him. This was a letter dated November 10, 1980, from a prosecuting attorney in Colorado. The letter contained information that a man named Breault had admitted to an unnamed psychiatrist that he had committed the crime for which appellant was being tried. The state contended this information had been furnished to the original attorney but there was no contention that it had been furnished to the present attorneys. Appellant stated that the prosecutor refused to produce a copy of the psychiatrist’s report. In any event, appellant’s counsel did not make contact with the psychiatrist until just before the trial date, at which time he said it would be impossible for him to rearrange his schedule to appear at trial as scheduled. If necessary material is not furnished, it matters little to the accused whether it was the state or someone else who failed to furnish it. It matters only that he did not get it. Appellant came to this court asking for a writ of prohibition on the day of trial and it was denied. Trial commenced on Monday, April 27,1981, and was finished on April 29, 1981.

I must disagree with the majority’s statement that the appellant’s attorneys had this information ten days before trial. I am of the opinion that appellant’s attorneys used due diligence and that appellant was entitled as a matter of right to a continuance. It may have been indicated that the state’s attorney was not at fault for the delay but it does not matter because the information was in possession of police officers which is considered possession of the prosecuting attorney. Williams v. State, 267 Ark. 527,593 S.W.2d8 (1979). It is true that the matter of a continuance is generally a matter within the sound discretion of the trial court. However, we stated in Thrasher v. State, 270 Ark. 322, 604 S.W.2d 931 (1980), that the defense counsel was entitled to all material information in sufficient time to permit counsel to make beneficial use thereof. In Thrasher the state depended upon the fact that it had furnished the information to co-counsel for appellant. However, we held that the trial court abused its discretion in failing to grant a continuance when the information had not been received three days before the trial. We had the same problem in Williams v. State, supra, and Williamson v. State, 263 Ark. 401, 565 S.W.2d 415 (1978). In Williamson the state’s attorney deliberately failed to make a disclosure on the theory that the accused was not entitled to some of the material. This material included a taped recording of a conversation which the accused had with investigators. In passing upon the question we stated:

We are persuaded that Rule 17.1 imposes a duty upon the state to disclose to the defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the con trary would indeed make a farce of a rule which has as its purpose to reduce delays during trial and taken as a whole lending more conclusiveness and completeness in the disposition of criminal cases and disclosure, indeed, alleviates docket congestion and permits a more economical use of judicial resources.

In Williams we held that the failure of the prosecuting attorney to timely furnish evidence pursuant to a discovery motion required the exclusion of the evidence or a continuance. As I view the facts in the present case, there is a clear abuse in the failure to grant the continuance. What could be more important to an accused than to have information before the jury that someone else had admitted committing the crime for which he was being tried?

The majority correctly states one rule regarding the granting of a continuance being within the sound discretion of the trial court. However, the Kelley case setting forth the rule did not complete it, the next sentence being:

Absent a showing by the moving party that he has exercised due diligence, the trial court will not be held to have abused its discretion in refusing to grant the motion.

Figeroa v. State, 244 Ark. 457, 425 S.W.2d 516 (1968). There has in this case been a showing that the moving party exercised due diligence.

I would like to respond to the oft repeated statement of the majority in regard to the Witherspoon doctrine that “the appellant did not receive the death penalty; therefore, he was not prejudiced by this recited occurrence.” I recognize that we have said this many times but upon reflection it occurs to me that the statement is not true. The appellant has indeed suffered the prej udice which he claims is forced upon him by the Witherspoon doctrine. The argument is based upon the allegation that a death qualified jury is more apt to convict than a jury not so qualified. Therefore, the statement by the majority would apply only to the penalty stage and not to the guilt or innocence stage of the trial.

It is my sincere opinion that the appellant has been denied due process. It does not matter that he may be guilty of the crime for which he is charged. We cannot rightfully say this is so until he has had a fair trial by an impartial jury and due process of law. Unless these criteria are met, I will always insist that the case be retried.


author: Darrell Hickman, Justice.

text:
    James David SIMPSON, Jr. v. STATE of Arkansas
    CR 82-126
    645 S.W.2d 688
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Lessenberry ir Carpenter, by: Thomas M. Carpenter; and Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this case. We ordered a new trial the first time because the defense was limited in its cross-examination of a witness. Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981).

James David Simpson, Jr. was again convicted, this time on two counts of capital murder and sentenced to life without parole on each count.

The evidence of Simpson’s guilt was overwhelming. The State produced an eyewitness to the double execution-style murders. Simpson and another man came to a trailer in North Little Rock on March 4, 1979, where Carl Gilmore, his girl friend, Cecelia Pigg Marks, and Larry Gilmore, Carl’s brother, lived. Carl, Larry, their brother Grealing, and Cecelia were all there. All four were shot by Simpson and the other man. Larry and Grealing Gilmore were killed; Carl survived as did Cecelia Pigg Marks, although she had been shot three times. She was the State’s main witness, and identified Simpson as one of the killers.

In this appeal three arguments are raised for reversal. Two of them may be disposed of quickly. The State’s proof of robbery, the underlying felony to the capital murders, is questioned. Marks said she saw one of the men counting money from a billfold and testified that “Larry or Carl one said that Grady [Grealing] didn’t have any more money.” This was sufficient evidence to support the robbery allegation. It is also argued that capital murder and first degree murder charges overlap and the instructions for the similar crimes allow a jury to arbitrarily choose between the two. We adhere to our prior decisions which hold that the statutes are constitutional. Simpson v. State, supra; Earl v. State, 272 Ark. 5, 612 S. W.2d 98 (1981); Cromwell v. State, 269 Ark. 104, 598 S.W.2d 733 (1980).

The other argument is that a policeman gave an unresponsive, prejudicial answer to a question during cross-examination. David Jones, a policeman from Memphis, who arrested Simpson, mentioned Simpson’s “rap sheet” during cross-examination by Simpson’s counsel. Policemen, prosecution and defense attorneys know that a “rap sheet” is a police document that lists the arrests and sometimes the convictions of an individual. See Shaddox v. State, 243 Ark. 55, 418 S.W.2d 780 (1967). A mistrial was requested and denied. The trial court declined to give an admonition finding that counsel had invited the answer.

While the mention of “rap sheet” is not per se prejudicial, its mention under certain circumstances has been deemed prejudicial error. For example, in Shaddox v. State, supra, during cross-examination of the defendant by the State, the defendant was questioned about his convictions and arrests. At the same time the prosecuting attorney was examining the defendant he was holding a sheet of paper and repeatedly referred to it. We observed, “The reference to the notes undoubtedly could influence members of the jury to feel that the State’s attorney was holding irrefutable evidence of previous convictions, and could well have been prejudicial.”

In a civil case, a plaintiff’s lawyer mentioned the defendant’s “rap sheet” during cross-examination of the defendant. After he asked the defendant whether he kept a room in his hotel available for prostitution, the lawyer said he had a “rap sheet” on the defendant. Shroeder v. Johnson, 234 Ark. 443, 352 S.W.2d 570 (1962). Again we ruled that the manner in which the reference was made was prejudicial.

The facts in this case are unlike those in Shaddox and Shroeder. Here the defendant’s lawyer was questioning a State’s witness on cross-examination. No reference at all was made as to what a rap sheet is or what it might contain. The transcript of the critical testimony reveals that neither the questions nor answers were models of directness or clarity. Jones had briefly testified that his office had received a telephone number from Arkansas authorities and it led to a residence occupied by Simpson. The residence was placed under surveillance. When two or three men helped Simpson load a U-Haul and Simpson tried to leave, he was arrested. The following exchange occurred in the cross-examination of Jones:

Q Now, when you use the word surveillance that is j ust kind of a technial term meaning we were watching the house because we were asked to watch the house. Isn’t it?
A Well, after we had this James David Simpson identified and found that he did have an alias of Little Dave, we did put the residence under surveillance until we could get warrants from Little Rock.
Q Little Dave?
A Yes, sir.
Q You mean that his friends call him Little Dave, also?
A That was the name that was on his rap sheet from the police department.

The appellant argues there were only three possible responsive answers to the last question: Yes, no, or I don’t know. Obviously the officer thought the question meant how he knew Simpson was called “Little Dave,” and he answered how he knew. The trial court found the answer was invited and that decision has to be discretionary under the circumstances. See Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); and Ark. Stat. Ann. § 28-1001, Rule 611 (Repl. 1979).

It is suggested that the question which evoked the reference to the rap sheet was an effort by the defense to play-down or diminish the use of the word “alias” by the officer in one of his prior answers. No doubt the appellant hoped for a brief answer but he left the door open for the answer given. Watson v. State, 277 Ark. 197, 640 S.W.2d 447 (1982). Certainly the answer was not unquestionably unresponsive as the appellant argues.

We cannot say under the circumstances that the trial court clearly abused his discretion or that in view of the evidence of Simpson’s guilt, that the trial court erred. Harrington v. California, 395 U.S. 250 (1969); See Chapman v. California, 386 U.S. 18 (1967).

We find no other prejudicial errors in the record.

Affirmed.


author: John I. Purtle, Justice.

text:
    Gerald Dean McCLUSKEY and Evelyn McCLUSKEY v. Joyce KERLEN
    82-263
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      David M. Clark of Hively, Ketz if Clark; and Josephine L. Hart of Highsmith, Gregg, Hart if Farris, for appellants.

      Skinner if Heuer, for appellee.
   John I. Purtle, Justice.

On May 9, 1981, appellee gave birth to an illegitimate male child. Prior to the birth of this child she had consulted with family and friends concerning adoption once the child was born. She also consulted her doctor on the matter and on two occasions consulted an attorney who had represented her previously in a divorce. Approximately eleven hours after the birth of the child she signed a consent to adoption giving the child over to appellants. They named the child Gerald David McCluskey and have kept him with them since that time. On July 14, 1981, a petition to adopt the child was filed in Jackson County Probate Court. A temporary decree of adoption was entered on August 31, 1981, allowing the McCluskeys to adopt the child. The appellee filed a petition on October 28, 1981, in the Probate Court of Jackson County asking that she be allowed to withdraw her consent to adoption. On March 8, 1982, the probate judge of Jackson County ruled that appellee’s consent was not valid and ordered custody of the child be returned to the natural mother which order was stayed pending appeal.

Appellants rely on three points for reversal: (1) that the probate court erred in allowing appellee to withdraw her consent after entry of the interlocutory decree; (2) the court erred in finding that appellee’s consent was not valid; and, (3) the court erred in finding that it would be in the best interest of the child to allow appellee to withdraw her consent. We agree with appellants’ first point and thus will not discuss the other two points in detail. The General Assembly of Arkansas enacted the Revised Uniform Adoption Act (Act 735 of 1977) to clarify the law in regard to adoption procedures. This act is codified in Ark. Stat. Ann. §§ 56-201 through 56-221 (Supp. 1981).

Prior to enactment of the Revised Uniform Adoption Act consent could be withdrawn before the entry of an interlocutory order almost as a matter of right. Combs v. Edmiston, 216 Ark. 270, 225 S.W.2d 26 (1949). After the entry of an interlocutory order in an adoption, but prior to a final order, consent could be revoked at the court’s discretion depending upon the circumstances. Siebert v. Benson, 243 Ark. 843, 422 S.W.2d 683 (1968); Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955).

Ark. Stat. Ann. § 56-209 states:

(a) A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
(b) A consent to adoption may be withdrawn prior to the entry of a decree of adoption if the Court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing a child for adoption, that the withdrawal is in the best interest of the individual to be adopted and the Court orders the withdrawal.

The wording used in this statute caused a great deal of litigation thus this court delivered a per curiam on November 22, 1982, in which we stated:

In order to put an end to the confusion, we shall prospectively construe any decree of adoption to be a final decree, no matter whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree.

In the instant case the probate court’s interlocutory order was filed August 31, 1981, and stated:

. . . that from this date forward for all legal purposes said child shall be the child of the petitioners; that upon the entry of a final decree consistent herewith, a substituted birth certificate shall be issued showing the name of the adopting parents as the parents of said child and showing the name of the child to be Gerald David McCluskey.

The court found that it was in the best interest of the child that the adoption be made and did not provide for a subsequent hearing by the terms of the decree. Ark. Stat. Ann. § 56-213 provides that an interlocutory decree of adoption does not become final until the child has lived in the adoptive home for at least six months after the petition for adoption is filed.

The need for uniformity in construing adoption statutes is of paramount interest to this court. Cases in which two families battle for the right to have custody of a child are sometimes the most intense and heated cases that exist. The line of cases goes back at least as far as Solomon and still provides no easy answers. In view of our pronouncements on the subject, as well as the intent of the Revised Uniform Adoption Act, we feel that the probate judge erred in allowing the appellee to withdraw her consent after the temporary order of adoption had been entered. In making this ruling we do not imply that consent could not be withdrawn after an interlocutory order upon a proper showing of fraud, duress or intimidation. In Re: Adoption of Graves, 481 P.2d 136 (Okl. 1971). These issues were addressed neither in the court below nor in the appeal.

The natural mother in the case before us was 39 years of age and had three other children at the time of the hearing on her motion to withdraw consent. She testified that her sole means of support was her ex-husband who worked in Saudi Arabia. She was divorced from her husband both at the time of the birth of the child and at the time the hearing was held in the probate court. The record reflects that appellee’s consent was valid and that she made deliberate and careful plans to arrange for the child to be adopted in advance of the birth of the child.

One further note may be enlightening concerning withdrawal of consent. The commissioner’s note following § 8 of the Uniform Adoption Act (the exact same wording appears in Ark. Stat. Ann. § 56-209, previously quoted in this opinion) states: “This section limits the opportunity of a person to withdraw his consent. No withdrawal is permitted after entry of an interlocutory or final decree of adoption.” 9 ULA 33 (1979). It is obvious from this language that the intent of § 56-209 was to prevent untimely challenges to a consent to adoption form.

Based on the foregoing, we must conclude that the judge’s order of March 8, 1982, was in error and remand the case to that court with instructions to reinstate the temporary order of adoption in favor of the appellants and otherwise proceed in a manner not inconsistent with this opinion.

Reversed and remanded.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Wallace E. FLOYD v. STATE of Arkansas
    CR 82-99
    645 S.W.2d 690
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983
    [Rehearing denied March 14, 1983.]

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was found guilty of attempted rape and burglary and of being an habitual criminal. He was sentenced to 50 years for attempted rape and 30 years for burglary. On appeal he argues: (1) that his fingerprints were illegally seized; (2) that the court erred in allowing the state to enumerate his prior felonies; and, (3) that the state was allowed to appeal to the passion and prejudice of the jury in closing argument. We do not agree with any of the points urged for reversal.

Appellant was being held on an unrelated charge when his fingerprints were taken for use in comparison to prints which had been found at the scene of an attempted rape and burglary. As a result of a “suspicion” that appellant may have been the party involved in the attempted rape and burglary, the police department took the fingerprints here in question. These prints turned out to be the link connecting appellant to the crime for which he was convicted and which is the subject of this appeal.

During the course of the trial the appellant elected to testify in his own behalf. On direct testimony he admitted that he was a convicted felon. On cross-examination the state, over appellant’s strenuous objection, was allowed to ask him if he had been convicted of nine felonies. The court required him to answer. He responded that he had. In closing argument the state, while arguing to the jury, stated, “We can’t continue in this community or any community to have these people commit crimes...” Counsel for appellant interrupted and objected to this argument. A motion for a mistrial was denied.

Appellant’s first argument relates to the taking of the fingerprints while he was in custody on an unrelated charge. We agree with appellant’s argument that fingerprints are protected by the Fourth Amendment and are subject to the provisions of the amendment. We abide by the holding in Wong Sun v. United States, 371 U.S. 471 (1963), subsequently followed by us in Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). In Scroggins, we held that it was the state’s burden to prove that the motel room which had been searched without a warrant was not subject to constitutional protection. We also held that the Fourth Amendment prohibited warrantless seizures of persons as well as property and cited as authority therefor the case of Davis v. Mississippi, 394 U.S. 721 (1969). Our exact language on this subject in Scroggins was:

... it is elementary that the State must prove that a warrantless intrusion, in this case an arrest, was not in violation of the fourth amendment.

We do not have an illegal intrusion or seizure in the case before us. The appellant was legally in custody of the state and the giving of the fingerprints is a routine matter which is within the discretion of the police department. It is not illegal for an officer to have a suspicion, and the fact that the appellant was not an actual suspect at this time has no relationship to the allowable investigative procedures employed by police officials. Had appellant been picked up solely on suspicion, without probable cause, and his fingerprints taken, then we would have a different situation. See Davis v. Mississippi, supra.

The second argument for reversal is that the trial court erred in allowing the state to ask about several prior felony convictions. In this case the appellant took the stand and upon direct questioning admitted that he had been convicted of a felony. On cross-examination the trial court allowed the state to ask if he had not “been convicted of nine previous felonies.” Appellant argues that when he took the stand and admitted he had been convicted of a felony he had been impeached and the state should not be allowed to further impeach him. This argument is based upon Uniform Rules of Evidence, Rule 609. This rule has been considered by this court and the Court of Appeals many times. The wording of the statute is of no help in deciding whether the intention was to allow more than one conviction. The case of Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981) dealt with Rule 609 (a). In Jones we stated:

The Uniform Rule is specifically directed to the conviction’s probative value with respect only to credibility, because under both our common law and the Uniform Rules proof of an earlier crime is not admissible merely to bolster the prosecution’s case by showing that the accused is a person of bad character, addicted to crime.

The rule grants the trial court discretionary power to determine whether the probative value of admitting evidence of a prior felony outweighs the prejudicial effect on an accused or a witness. We applied the provisions of the rule in Jones when we stated:

On the facts of this case the prejudicial effect of the previous conviction clearly outweighed its value as bearing on credibility. There may be instances in which proof of an earlier conviction for the same crime as that on trial may be admissible, but there are sometimes strong reasons for excluding such proof because of the pressure on lay jurors to believe that “if he did it before he probably did so this time.” [Cite omitted.] That is especially true in the case at bar, because sexual abuse of a child is a particularly shameful and outrageous crime.

In Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), we were concerned with whether the crimes introduced at the trial were within the 10-year limitation of Rule 609. Appellant there did not question the introduction of multiple convictions. In Jones v. State, supra, the question was whether an earlier conviction could be considered under the discretionary powers of the trial court. The Court of Appeals considered this question in Williams v: State, 6 Ark. App. 410, 644 S.W.2d 608 (1982), and stated, we think correctly, that the probative value must be weighed against prejudicial effect on a case by case basis. We stated in both Jones and Smith that the probative value must be weighed against the prejudicial effect when evidence of prior convictions is admitted. We still hold this to be the rule. Only one prior conviction was considered in the case of Campbell v. State, 264 Ark. 372, 571 S.W.2d 597 (1978). We see nothing wrong with the holding in Campbell that the fact of conviction impaired the witness’s credibility. The state there did not go into the nature of the evidence surrounding the conviction for the prior crime. To have gone into the details of prior convictions would be to defeat both the purpose and plain wording of Rule 609. The state asked the appellant only one question: “How many felonies have you been convicted of?” The question in this form is not impermissible but would be better stated in words such as: “Were you convicted of the crime of burglary on a certain date?” The same question could have then been asked of each of the prior convictions. In this manner the j ury would be made aware of the number and nature of prior convictions while impermissible details remained undisclosed.

Appellant took the stand and admitted he had been convicted of a felony. He then insisted that he had been impeached. To allow either party to head off the testimony of the other in such a manner would not be in keeping with the standard of fairness with which a trial should be conducted. We do not believe that Rule 607 was intended to allow either party to prevent the other party from testing the credibility of a party or witness in such a manner. Therefore, we hold that when an accused, or a witness, takes the stand he may be asked on cross-examination how many times he has been convicted, within the applicable restrictions set forth under Rule 609.

Finally, appellant argues the state was improperly allowed to appeal to the passion and prejudice of the jury when the state’s attorney stated in closing argument: “We can’t continue in this community or any community to have these people commit crimes ...” Appellant objected to the statement and moved for a mistrial which was denied. The court stated to the jury: “The jury is well aware of what offenses the defendant has been charged with;” It is appellant’s contention that the statement by the state tended to focus the jury’s, attention to crime in general in the community. This may be true. However, this interpretation strains the plain wording of the statement. We are not able to see any prejudice to the appellant especially since the court issued an admonition to the jury. Appellant is correct when he says that the fundamental rules of trial practice as related to closing arguments must be confined to the question in issue and the evidence and reasonable inferences deducible therefrom which have been presented during the course of the trial. Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). Likewise, we agree with appellant that the state’s attorney acts in a quasi-judicial capacity and it is his duty to use fair, honorable, reasonable and lawful means to secure a conviction in a fair and impartial trial. We cannot see in this remark by the state’s attorney any improper inducement or conduct on the part of the prosecutor to secure an unfair trial against the appellant. Before a mistrial is granted it must appear that justice cannot be served by continuation of the trial. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). We would hardly expect the state to argue in favor of the appellant in its closing argument. Under the circumstances in this case we do not find the incident to have resulted in prejudicial error.

Affirmed.

Darrell Hickman, Justice,

concurring. Quite often our review of records reflects that many lawyers do not know how to impeach a witness.

In this case the prosecuting attorney asked the defendant: “Actually, Mr. Floyd, you have nine previous felony convictions, do you not?” That is an improper question. 2 CRIMINAL DEFENSE TECHNIQUES § 26.09 [2] (1982); See 3 GOLDSTEIN TRIAL TECHNIQUE § 20.80 (2d ed. 1969). The effort to discredit the witness was being made by showing the witness had been convicted of certain crimes. Ark. Stat. Ann. § 28-1001, Rule 609 (a), defines just what criminal convictions may be used to discredit a witness’ testimony. There are two categories of crimes generally described as (1) felonies and (2) crimes involving dishonesty or false statements.

If a conviction falls within category 2, the trial judge does not decide whether the information is more prej udicial than probative since a conviction that contains an element of dishonesty obviously will bear directly on the veracity of the witness. But a conviction for a crime that does not involve an element of dishonesty may not necessarily show that a witness is a liar. For example, a conviction for manslaughter would not necessarily prove a person would lie under oath. Therefore, the trial judge must weigh the evidence of convictions before the witness can be asked about such convictions.

It is the nature of the crime the witness was convicted of that relates to the veracity of the witness. A jury that knows a witness has been convicted of robbery, which is a form of thievery, may well decide such a witness would unhesitatingly lie. The question should be: “Isn’t it true you were convicted of robbery in the Circuit Court of Pulaski County, Arkansas in 1980?” It would not be proper to ask, “Have you been convicted of a felony,” or “nine felonies.” That is meaningless to a jury which must decide how that information bears on one’s propensity to tell the truth. The appellant’s argument is equally wrong. The appellant wants the State to only be able to ask, “Have you ever been convicted of a felony?”, and, in this case, not be allowed to mention that the defendant has nine felony convictions. This is a confused application of the rule that, ordinarily, the details of the offense cannot be mentioned. See McCORMICK ON EVIDENCE § 43 (2d 1972).

Both attorneys miss the meaning of the rule and the way it may be used in court. If the State does have evidence of nine convictions that qualify for use under Rule 609, then the State can ask the proper question nine separate times.


author: Robert H. Dudley, Justice.

text:
    Emma RICHERSON v. Roy BEARDEN et al
    82-178
    645 S.W.2d 946
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      James F. Lane, for appellant.

      Henry ér Walden; Frierson, Walker, Snellgrove ir Laser; and Armstrong, Allen, Braden, Goodman, McBride ir Prewitt, for appellees.
   Robert H. Dudley, Justice.

Appellant, a taxpayer, filed a complaint seeking a declaratory judgment. She pleaded that appellees had entered into a contract involving the sale of county property which constituted an illegal exaction in violation of Article 16, § 13 of the Constitution of Arkansas (1874). In response, appellees filed a motion for summary judgment which was accompanied by supporting affidavits. No counter-affidavits or other controverting evidence was offered by appellant. The trial court found that no genuine issue existed as to any fact, that appellees by their affidavits had made a prima facie showing that no illegal exaction had taken place and that a summary judgment should be granted. We affirm. Jurisdiction is in this Court because the constitutionality of a county ordinance is involved. Rule 29 (1), (a) and (c).

From the affidavits and attached exhibits the following evidence is established. Prior to 1976 the citizens of Craig-head County voted to finance and construct a county hospital. General obligation and revenue bonds were issued and the construction of buildings was completed in January, 1976. The county judge appointed a seven member Board of Governors who operated the 98 bed hospital until January, 1978. At that time the Board of Governors leased the hospital buildings for ten years to appellee Craighead Hospital Association, Inc., a private nonprofit corporation. The nonprofit corporation borrowed a substantial amount of money, purchased equipment, entered into contracts with physicians and other medical staff personnel, established employee benefit programs including a pension plan, obtained accreditation and is seeking a certificate of need for governmental approval of 62 additional beds. The ten year lease will not expire until 1988.

In 1981, the quorum court voted to sell the hospital buildings. The hospital was leased until 1988 so the quorum court chose to request bids, not j ust on the lessor’s interest in the buildings but on the complete going business. Obviously, such a procedure required the agreement of the lessee.

On November 20, 1981, the county issued a 15-page request for bids which among many other things, required an offeror to do the following:

Retain employees for at least six months.
Retain employee benefit programs for at least 5 years.
Retain existing contracts with physicians and surgeons.
Retain emergency room service, intensive care services and other named specialty fields.
Accept for payment Medicare, Medicaid .and other governmental supported programs and provide limited uncompensated care for indigents.
Continue to seek governmental approval for 62 additional beds.
Maintain accreditation.
Assume all of the indebtedness of the nonprofit corporation.

Five offers to purchase were received. On February 1, 1982, the quorum court recommended that the county judge enter into a memorandum of sale with Methodist Health Systems, Inc., a subsidiary of Methodist Hospitals of Memphis. On February 5,1982, the county and Methodist entered into a memorandum of understanding and on March 5, 1982, the nonprofit corporate lessee and Methodist entered into an agreement restructuring the nonprofit corporation so that Methodist would be the sole stockholder of the corporation. Under this agreement the restructured corporation would retain title to all of its assets, including the lease. Methodist agreed to pay all of the debts of the nonprofit corporation which amounted to $1,642,243 and agreed to pay the county a total of $10,757,058.

Appellant brought the suit against appellees, who are the county officials involved, the nonprofit corporation and Methodist, alleging that the payment of the debts of the nonprofit corporation constituted an illegal exaction. The trial court ruled that there was no genuine issue as to any material fact, that appellees had made a prima facie showing in favor of the motion for summary judgment and therefore the motion should be granted. We affirm. Once a prima facie showing has been made in support of a motion for summary judgment, the opposing party must discard the shield of formal allegations and meet proof with proof to show a genuine issue of fact. Spickes v. Medtronic, Inc., 275 Ark. 421, 631 S.W.2d 5 (1982). In this case that genuine issue of fact was not shown to exist. The only proof is that the quorum court chose not to sell the buildings alone. The lessor, the county, and the lessee, the nonprofit corporation, combined to sell the whole interest as a fully functioning hospital with staff and equipment intact. The contested payment of the lessee’s outstanding debt is nothing more than a method to acquire all of the lessee’s assets, including the remaining six years of the lease. There is no proof of an illegal exaction solely because the county sold its interest at the same time the lessee sold its interest.

Affirmed.


author: Steele Hays, Justice.

text:
    KANSAS CITY SOUTHERN RAILWAY COMPANY v. ARKANSAS TRANSPORTATION COMMISSION
    82-204
    645 S.W.2d 944
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Hardin, Jesson & Dawson, by: Rex M. Terry, for appellant.

      Maddox hrMiller, by: Janis A. Richardson and David Maddox, for appellee.
   Steele Hays, Justice.

The Kansas City Southern Railway Company, as an economy measure, elected to close its station at Mena, Arkansas, and assign the station agent to another location. Pursuant to Ark. Stat. Ann. § 73-809 (Repl. 1979), the company filed its Notice of Discontinuance of Agency Station with the Arkansas Transportation Commission, asserting that the discontinuance would result in operating economies consistent with public convenience and necessity. The closing was opposed by Mena residents and railroad customers. After taking testimony the Commission found that the closing would not result in operating economies consistent with public convenience and necessity and denied the request. The denial was affirmed by the Circuit Court and the appeal is here under Rule 29 (1) (d). We affirm.

Ark. Stat. Ann. § 73-809 (Repl. 1979) provides that a railroad may discontinue an agency station by showing the Commission that it has operated the station at a financial loss for not less than one year, or that operating economies consistent with public convenience and necessity would result. The railway company conceded that its annual revenues had exceeded its expenses at Mena by an amount it declined to disclose, but it claimed that economies would be effected by eliminating direct station expenses, which exceeded $31,000.00 in 1980. The company said a time-and-motion study of the station showed only two and one-half productive hours of work being performed daily by the agent. The company said it was establishing a new way-billing system and taking all car orders by a toll-free telephone network at its customer service center in Shreveport. It argued that all the duties of the agency could be performed effectively through Shreveport and that the new arrangements would be just as satisfactory to railway customers as soon as they became used to it.

We have said that appeals from Circuit Court in cases of this type are heard de novo. Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S.W.2d 282 (1953). And that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable, as in chancery cases. Arkansas Commerce Commission v. St. Louis Southwestern Railway Company, 247 Ark. 1032, 448 S.W.2d 950 (1970). Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). But we have recognized that where the decision below is persuasive, or the evidence evenly balanced, full effect must be accorded factual findings and the views of the administrative agency must prevail. Arkansas Express Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S.W.2d 716 (1947).

Here, the Commission heard the testimony of six witnesses in opposition to the closing. Some of the testimony was general, but much of it attested to the need for an agent in Mena, that the town was growing and shipments were increasing. There was considerable complaint over the attempt to substitute telephone service to Shreveport in place of direct contact with an agent in Mena. Witnesses said it was difficult to reach Shreveport; frequently the caller got only a recording that the lines were busy, or would be put on hold for long periods. Often the caller was told the computer was “down” and to call back; sometimes a clerk would be unable to understand the instructions given; several witnesses described telephone service as very unsatisfactory. Other problems discussed were that without the agent, customers were required to do many of the functions normally performed by the agent. In short, the testimony fully supports the findings of the Commission that operating economies did not outweigh the inconvenience which would result from the closing.

In Louisiana and Arkansas Railway Co. v. Arkansas Commerce Commission, 235 Ark. 506, 360 S.W.2d 763 (1962) we upheld the Circuit Court in affirming the Commission’s denial of an application to eliminate a station agent upon a finding that the closing would result in undue inconvenience to the public, notwithstanding the fact that the expenses of the station substantially exceeded the revenues for two years in a row. We quoted from Alabama P.S.C. v. Atlantic Coast Line Railway Co., 45 So.2d 449 (Ala., 1950).

Another statement of the principle is that although the operation of the entire system yields a net profit, the loss resulting from the maintenance of a certain service on a particular branch must be of sufficient importance to outweigh the inconvenience which the public will suffer as a result thereof.

We cannot say the findings of the Commission in this case are not supported by the evidence and, therefore, the judgment of the Circuit Court is affirmed.


text:
    James Lee CAMERON v. STATE of Arkansas
    CR 82-131
    645 S.W.2d 943
    Supreme Court of Arkansas
    Opinion delivered February 7, 1983

      Ernie Witt, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of rape on April 19, 1982, and the jury recommended a sentence of forty years in the Department of Correction. After presenting the testimony of the seventy-six year old victim, the State rested and appellant moved for a directed verdict, claiming the proof of penetration was insufficient. The court denied the directed verdict and granted a motion by the State to reopen its case. The victim and her daughter then gave testimony which the appellant concedes was sufficient to support the charge.

On appeal, appellant argues a single point for reversal: The court erred in permitting the State to reopen its case after the appellant had moved for a directed verdict. Appellant recognizes the trial court’s broad discretion in permitting the prosecution to reopen a case after it has rested, but argues surprise and that the State should not have the advantage of having a weakness in its case pointed out by the defense.

We have affirmed the action of the trial court on many occasions when it has allowed the State to reopen its case after it has rested. It is within the trial court’s sound discretion in furtherance of justice to permit the State to present witnesses after resting, where a reopening does not work to the defendant’s prejudice through surprise or otherwise when the disadvantage cannot be overcome. See Rochester v. State, 250 Ark. 758, 467 S.W.2d 182 (1971). Here, while appellant claims surprise, he fails to demonstrate it. The victim’s testimony after she was recalled was nothing more than a fuller explanation of the defendant’s actions during the assault. Too, the appellant was aware through discovery that the victim’s daughter was to be a witness, and what the nature of her testimony might be. The advanced age of the victim and her difficulty in giving embarrassing details no doubt influenced the court in reopening the case. We find no abuse of discretion under the circumstances.

With reference to the argument that the State should not have weaknesses in the prosecution pointed out by the defense, we regard it as inconsequential whether alleged flaws are recognized first by the State or by the defendant. The appellant gives no explanation of how this is prejudicial to the defense and we can find none. We discussed prejudice under similar circumstances in McClendon v. State, 254 Ark. 902, 496 S.W.2d 428 (1973) when we responded to a claim that the defendant was prejudiced and disadvantaged:

It is difficult to perceive how the testimony complained of was a surprise or prejudicial when it could have been presented in the State’s original case. McClendon at 903.

The appellant also argues that during a one and one-half hour recess while his motion for a directed verdict was under advisement, appellant told the court and the prosecution that the defense would not put on any evidence, but would stand on its motion. Though it is not clear what difference it might have made, the record confirms none of this. (T. p. 55-61). It shows only that when the State rested the defendant asked to make a motion away from the jury. The court announced a fifteen minute recess and asked the jury to remain in the jury room. Counsel then argued whether the evidence was sufficient and the judge said he would take the matter under advisement while the defendant’s case was presented. There was no objection to this procedure, nor any suggestion that the defense would stand on the motion. The State then moved to reopen which the judge granted with the comment that he believed the defendant was not surprised and it would serve the ends of justice to allow the State to reopen. We believe he was fully justified under the circumstances.

The judgment on the sentence is affirmed.