author: Jack Holt, Jr., Chief Justice.

text:
    Kenneth Ray CLEMENTS v. STATE of Arkansas
    CR 91-160
    817 S.W.2d 194
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991

      Ray Hartenstein, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Kenneth Ray Clements, brings this interlocutory appeal alleging that the trial .court’s removal of his appointed attorney, Richard Atkinson, violated his sixth and fourteenth amendment rights to counsel under the United States Constitution and his right to counsel under Art. 2, Section 10 of the Arkansas Constitution. The State agreed with Clements and has waived its right to file a brief in response. We also agree, and reverse and remand.

This case involves the retrial of Clements for capital murder in the shooting death of police officer Ray Noblett. See Clements v. State, 303 Ark. 319, 796 S.W.2d 839 (1990). On April 23, 1991, Messrs. Richard Atkinson and Kenneth Suggs were appointed by Judge Floyd Lofton to defend Clements at his second trial. Judge Lofton was assigned to the case following the recusal of the Faulkner County judges. A trial date was scheduled for June 24, 1991.

At a pretrial hearing on June 17, Atkinson moved for a continuance of the June 24 trial date, citing the voluminous nature of the discovery, the time needed to review the transcript and documents from the previous trial, and the fact that a new theory of defense was being developed. Judge Lofton found both Messrs. Atkinson and Suggs negligent, held them in contempt of court, fined them $1,000 each, and removed them from the case. Judge Lofton appointed attorneys, Messrs. Ray Hartenstein and Blake Hendrix, as replacements. [Mr. Atkinson has filed a separate appeal with this court, challenging the contempt citation, Case No. 91-191, filed July 10, 1991.]

Clements now appeals, requesting the reinstatement of Mr. Atkinson. Clements stated that he was not pleased with Mr. Suggs’ representation, and the record reflects Mr. Suggs did not object to his discharge from the case.

In order to provide a full understanding of what occurred at the pretrial conference, we find it necessary to set out the entire record colloquy pertaining to Mr. Atkinson’s motion for continuance.

MR. ATKINSON: Your Honor, at this time I’d like to make an oral motion for a continuance —
THE COURT: We’ve already ruled on that.
MR. ATKINSON: — in this case. Your Honor, I’d like to make a record.
THE COURT: Your man says he’s ready to go. Says he’s satisfied with you.
THE DEFENDANT: I said I was satisfied with the attorneys. I never said anything about satisfied with the trial, your Honor.
THE COURT: Well, we haven’t even started the trial yet.
THE DEFENDANT: I know it. But you said I said I was satisfied with it.
THE COURT: Well, you told me you were satisfied with it.
THE DEFENDANT: With the attorneys.
THE COURT: Well, we’ll — we’ll —
THE DEFENDANT: I haven’t said anything about trial.
MR. ATKINSON: Your Honor, in all fairness, I think you were asking Mr. Clements to make conclusions that an attorney would have to make as far as readiness for trial.
THE COURT: Well —
MR. ATKINSON: I don’t think that he has the expertise to make those determinations. And from discussions prior to and up until this morning, it is Mr. Clements’ desire that this case be continued based upon —
THE COURT: Well, he hasn’t —
MR. ATKINSON: — his consultation with his counsel.
THE COURT: But he hasn’t told me why. He wants some things done but he doesn’t know what they are. And, Mr. Atkinson, are you telling me that you’ve been negligent?
MR. ATKINSON: No, your Honor, I am not.
THE COURT: Well —
MR. ATKINSON: I am telling you that sixty days has not been sufficient time to prepare for this case.
THE COURT: Why isn’t it?
MR. ATKINSON: Because the case is too complex. The discovery is too much. There are piles and piles of papers that need to be gone through. I was not privy to this trial the first time it was tried. I have a transcript of that trial —
THE COURT: Have you read it?
MR. ATKINSON: — which I have read.
THE COURT: Well.
MR. ATKINSON: I have read that transcript.
THE COURT: Well, that’s —
MR. ATKINSON: In all fairness to Mr. Suggs, Mr. Suggs has not read that transcript. It’s been in my possession. But Mr. Suggs has not read that transcript. Your Honor, the discovery has not been completely digested by Defense in order to completely develop the defense that’s been offered. This defense was not offered at the first trial.
THE COURT: Which is amusing to me. But go ahead.
MR. ATKINSON: I do not know why the defense was not offered at the first trial. I can’t answer for that. I was not defense counsel —
THE COURT: Well, you know, we don’t know that it will be offered at the next one either. We may find another one.
MR. ATKINSON: That’s very correct, your Honor. But there is no way that defense can be readied and properly presented fairly for this man on the twenty-fourth.
THE COURT: If that is so, Mr. Atkinson, then the Court will have no choice but to find you negligent and in contempt, and so with Mr. Suggs, because you represented to this Court that you could and would get ready. I sent notices out to you. You both concurred in this trial date. And all I hear you saying is that, “We’ve sat on our fanny and not done anything about this and we want a continuance.” But you can’t tell me what it is you want to do. And you have no assurance — I have no assurance that if I give you another thirty days you’ll do any more than you have in the last sixty.
MR. ATKINSON: I’ll tell you exactly what we want to do, your Honor. I have spent hours upon hours and almost bankrupted my law practice in trying to prepare for this case by the twenty-fourth. I have come to the conclusion within the last five or six days that it’s humanly impossible to be prepared to give this man a fair defense on the twenty-fourth of this month.
THE COURT: Why?
MR. ATKINSON: Because I have not been able to go through the discovery, much of it, more than one time. I have not had the time to do it. I have read the transcript. I have gone through the discovery as it has come in. Discovery was available but not produced to the Defense by the prosecution, much of it —
THE COURT: See, he’s not —
MR. ATKINSON: — until the last week.
THE COURT: He’s not dissatisfied with you. He thinks you’re doing a wonderful job. And you haven’t done a damn thing apparently. He’s just unhappy with Kenny.
MR. ATKINSON: Your Honor, the discovery has not been fully disseminated. The witnesses have not been — have not had opportunity to develop who all of the witnesses will be or to interview the witnesses that will be called. And this defense needs more time to be developed.
THE COURT: If I have to give you a continuance, I’m going to find you ill prepared and relieve you from the case and you will not try it at all. I’ll get somebody else to do it. That means you don’t take care of your practice apparently.
MR. ATKINSON: I understand, your Honor. But this man deserves a fair trial.
THE COURT: Well, why haven’t you been busy about it, Mr. Atkinson?
MR. ATKINSON: I have been very busy, your Honor.
THE COURT: Not very busy. If you can’t read a transcript and get prepared in sixty days, then you’ve got no business practicing this kind of law.
MR. ATKINSON: With all due respect, your Honor, we’re not trying the last trial. We’re trying a new trial —
THE COURT: I know.
MR. ATKINSON: — and we’re not trying that transcript again.
THE COURT: That’s why it’s not important for you to have read it. If there’s not anything in there, what difference does it make if you haven’t read it but one time?
MR. ATKINSON: I have read the transcript.
THE COURT: One time. And there’s nothing in there. You’re trying a new case. So. You should have found that out early on.
MR. ATKINSON: I never represented to the Court that there was nothing in the transcript. There’s very valuable information in the transcript.
THE COURT: You just told me you’re not trying that other case, you’re trying a new case.
MR. ATKINSON: That’s absolutely correct.
THE COURT: Mr. Hartenstein?
MR. HARTENSTEIN: Yes, your. Honor.
THE COURT: Can you represent this man?
MR. HARTENSTEIN: No way I can represent him by Monday.
THE COURT: I’m not asking about Monday.
MR. HARTENSTEIN: If the Court sees to —• wants to appoint me, I will accept the appointment.
THE COURT: But, now, when will you try it?
MR. HARTENSTEIN: All I have seen of this case thus far is a sixteen volume transcript and several huge boxes of paper.
THE COURT: Well, you can rest assured that’s not going to help you because they’re read it and they don’t know what they’s talking about —
MR. HARTENSTEIN: I may differ.
THE COURT: — and they’re not trying that other case. Huh?
MR. HARTENSTEIN: I may differ with them.
THE COURT: Well, I’m sure you will.
MR. HARTENSTEIN: I don’t want to —
THE COURT: Mr. Foster, I don’t really see much sense in pursuing this when we’ve got two lawyers admitting negligence on their part and dereliction of duty. I don’t see any sense in pursuing this. Do you?
MR. FOSTER: Pursuing the?
THE COURT: Trial.
MR. FOSTER: Your Honor, it’s — It’s our — We do resist the motion for a continuance, your Honor.
THE COURT: I understand. But, you know, if you’ve got two lawyers who admit their negligence and haven’t prepared this case and can’t represent this man, we’re just kidding ourselves. It’s going to be expensive for both of them. But, Ray, I tell you what I’ll do. I’ll recess this case until you can go back to your office and get your calendar back over here. And, if you will accept it, do you want some help?
MR. HARTENSTEIN: Certainly.
THE COURT: Who?
MR. HARTENSTEIN: Can I think about that while I
THE COURT: Sure. What time is it? Can you be back by noon?
MR. HARTENSTEIN: Yes, sir.
THE COURT: Let’s recess until 11:45. Gentlemen, you all stay in the courtroom. And, Mr. Clements, let me ask you this. Are you satisfied with Mr. Hartenstein?
THE DEFENDANT: Yes, sir.
THE COURT: There ain’t going to be no more, “I’m not satisfied.”
THE DEFENDANT: No, sir.
THE COURT: And your defense is, “I didn’t do it; somebody else did.”
THE DEFENDANT: Yes, sir.
THE COURT: All right. We’re in recess until 11:45..
(THEREUPON, court was in recess for approximately thirty minutes; then the following proceedings occurred:)
THE COURT: All right. Mr. Atkinson, the motion before the Court is for a continuance. I’ve asked Mr. Hartenstein if he can accept an appointment. Mr. Hartenstein, can you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: And you want Mr. Blake Hendrix to help you?
MR. HARTENSTEIN: Yes, your Honor.
THE COURT: You’re relieved, Mr. Atkinson. Do you want to be relieved?
MR. ATKINSON: No, your Honor.
THE COURT: Do you want to be relieved?
MR. SUGGS: Yes, I do.
THE COURT: Ken Suggs and Richard Atkinson relieved, held to be negligent and failing to prepare case and get ready for trial, and held in contempt of Court and assessed a fine of a thousand dollars each to be paid within ten days unless a Notice of Intent to Appeal is filed. Ray Hartenstein and Blake Hendrix are appointed. Mr. Clements, have you got any problem with what I’m doing?
THE DEFENDANT: No, sir. I was just hoping that Mr. Atkinson can stay.
THE COURT: Well, I wish you’d make up your mind. You weren’t happy with him. Now, you’re unhappy [sic] with him.
THE DEFENDANT: I told you earlier I was happy with him.
THE COURT: Well, he hasn’t done anything for you.
THE DEFENDANT: Well, I see that he has, your Honor.
THE COURT: Well, are you ready to go to trial with him Monday?
THE DEFENDANT: That’s up to the attorneys.
THE COURT: Now, wait a minute. Now wait a minute. I’m talking to you. If you’re happy with him, I’ll let him stay on the case and we’ll go to trial Monday.
(THEREUPON, Counsel for the Defense conferred privately with the Defendant; then the following proceedings occurred:)
THE DEFENDANT: No, sir.
THE COURT: No, sir, what?
THE DEFENDANT: I’m not happy with him.
THE COURT: Well, he just told you that.
THE DEFENDANT: Fm not ready to go to trial.
THE COURT: I know. You’re not ever going to get ready to go to trial. But that may not be an election that you have. Are you happy with Mr. Atkinson and you want to go to trial Monday?
THE DEFENDANT: No, sir, I don’t.
THE COURT: All right. When’s the trial date, Mr. Prosecutor?
MR. FOSTER: Your Honor, I believe that September 23rd the courtroom would be available in Conway.
THE COURT: September 23rd?
MR. FOSTER: I believe that’s correct, your Honor.
THE COURT: At nine a.m.
MR. FOSTER: Yes, sir.
THE COURT: Ray and Mr. Prosecutor, after you all have had some time, let me know when you want a hearing, an omnibus hearing, and get with Terry and Fll set it any time you all want it. Fm at your mercy. And Fll stay as late as you need. And I want this man represented and I don’t want to hear him complaining and fussing anymore, although Fm not really upset with him. If I had two lawyers that hadn’t done anything about it, I’d be upset, too. And they’re relieved and have no more responsibility in it. And Fll expect a check from them. You all let me know what you want to do.
MR. FOSTER: We’ll do so, your Honor.
THE COURT: All right. Thank you, sir. Court’s adjourned.

A defendant’s right to counsel of choice is grounded in the sixth amendment to the United States Constitution, and is also granted by Art. 2 Section 10 of the Arkansas Constitution. Applying this principal to court-appointed, as well as privately retained, attorneys we have held, however, that the. right to counsel of one’s choosing is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice. Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989). An example of such purposeful frustration occurs when a defendant requests new counsel merely in order to obtain a continuance of trial. See Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991). Certainly this was not the situation here, and, in fact, both Clements and Mr. Atkinson clearly expressed their desire for Mr. Atkinson to remain on the case. Clements only relinquished that request when the trial court literally forced him to choose between accepting new counsel, to whom he was opposed, in order to obtain the continuance, or retaining Mr. Atkinson, as he wished and immediately proceeding to trial unprepared.

This case thus presents the unique situation where a trial court removes an attorney from the case against the wishes of both the defendant and the attorney. Some courts have found this to be a violation of the accused’s sixth amendment right to counsel, and we find their logic compelling.

In Harling v. United States, 387 A.2d 1101 (1978), the trial court removed the defendant’s appointed attorney, over the protestations of both client and attorney, because the attorney stated that he could not be an effective advocate without access to the names of certain eyewitnesses. The trial court abruptly cut him off and construed the attorney’s statement as an attempt at making a record for ineffectiveness of counsel when, in reality, the attorney was simply trying to convince the court to grant his motion for discovery.

In reversing, the District of Columbia Court of Appeals recognized that an indigent does not have an unqualified right to counsel of his choice, and that substitution of counsel rests within the discretion of the trial court. The court concluded, however, that:

‘[0]nce counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial.’ The right to assistance of chosen counsel is not absolute, however. A trial judge may ‘in the interest of justice’ substitute one counsel for another. Gross incompetence or physical incapacity of counsel, or contumacious conduct that cannot be cured by a citation for contempt may justify the court’s removal of an attorney, even over the defendant’s objection.

Harling, 387 A.2d at 1105 (citations omitted). The appellate court found that there was no justifiable basis for the trial court’s removal of the appointed attorney:

Counsel’s efforts were within the bounds of reasonable advocacy. His conduct appears neither contemptuous, insolent, nor unprofessional. The court’s response to counsel’s persistence was both intemperate and unwise: Mere disagreement as to the conduct of the defense certainly is not sufficient to permit the removal of any attorney.

Id. Likewise, we find no support in the record for the trial court’s discharge of Mr. Atkinson.

Mr. Atkinson was appointed to the case only two months prior to the trial date. The case has a complex history, involving two other alleged accomplices. See Leach v. State, 303 Ark. 309, 796 S.W.2d 837 (1990); McMillen v. State, 302 Ark. 601, 792 S.W.2d 315 (1990). Mr. Atkinson was not only attempting to read and digest what must have constituted reams of documentation compiled during the first trial, but was conducting his own investigation as he is required to do. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988). The record reflects that he and Mr. Suggs had already filed numerous motions before they were released from their representation of Clements. Even assuming Mr. Atkinson to have been negligent, as the trial court charged, there was certainly no evidence of gross malfeasance, physical incapacity, or belligerent conduct, such as would justify his removal.

We have held that once competent counsel is obtained, any request for a change in counsel must be considered in the context of the public’s interest in the prompt dispensation of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). Certainly, the same consideration should apply to a trial court’s removal of appointed counsel. We find the holding of the Supreme Court of California particularly instructive:

[W]e must consider whether a court-appointed counsel may be dismissed, over the defendant’s objection, in circumstances in which a retained counsel could not be removed.
A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But the attorney-client relationship is not that elementary; it involves not only just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client’s life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney’s responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. It follows that once counsel is appointed to represent an indigent defendant the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.

Smith v. Superior Court of Los Angeles, 68 Cal. Rptr. 1, 440 P.2d 65 (1968). Accord, McKinnon v. State, 526 P.2d 18 (Alaska 1974); People v. Davis, 114 Ill. App. 3d 537, 449 N.E.2d 237 (1983); Matter of Welfare of M.R.S., 400 N.W.2d 147 (Minn. Ct. App. 1987.). Recognizing that each case must be examined on its own set of facts, we hold that where, as here, a trial court terminates the representation of an attorney, either private or appointed, over the defendant’s objection and under circumstances which do not justify the lawyer’s removal and which are not necessary for the efficient administration of justice, a violation of the accused’s right to particular counsel occurs.

Here, the trial court did not simply grant or deny Mr. Atkinson’s motion for continuance as it should have, rather it placed Clements in a catch-22 position that compelled him to accept new, unrequested counsel in order to gain a continuance or proceed immediately to trial against the advice of his previously assigned attorney, with whom he had developed a working relationship. In essence, the trial court attempted to barter with Clements for a continuance. This action on the part of the trial court is arbitrary and unacceptable. Granted, the public has an interest in the prompt disposition of justice, Leggins v. State, supra, however, it must be served in an even-handed manner. . .fair to the state, yet fair to the defendant. Under the circumstances of this case, Clements is entitled to retain Mr. Atkinson as his counsel.

This case is reversed and remanded with instructions to the trial court to proceed consistent with this opinion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Joe BRAWLEY v. STATE of Arkansas
    CR 90-59
    816 S.W.2d 598
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991
    [Supplemental Opinion on Denial of Rehearing November 25, 1991.]

      Henry J. Swiff, and Sloan, Rubens & Peeples, by: Kent J. Rubens, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

      Glaze, J., concurs.

   David Newbern, Justice.

The appellant, Joe Brawley, was convicted of murder and sentenced to life imprisonment in connection with the shooting death of his stepfather-in-law, Ray Tittle. He was arrested at the scene of the shooting on May 3, 1988. The evidence showed he had been involved in an on-going altercation with his estranged wife throughout the day, and the couple had exchanged threats. At 9:00 p.m. they were involved in a scuffle at a liquor store broken up by a police officer called to the scene. Brawley was obviously under the influence of intoxicants at that time and was told by the officer to go home. Instead he followed his wife and son to the home of her parents and waited outside in his truck with a 30.06 rifle. When she and her stepfather came out of the house to obtain items from her car Brawley fired in their direction. The bullet struck Mr. Tittle who fell injured behind the car. Brawley’s wife ran into the home where her mother was in the process of calling the police. Brawley broke into the house with the rifle. The two women grabbed the gun, and they were all struggling for it when the police arrived. Brawley and the gun were taken into custody. Before being taken away in an ambulance, Mr. Tittle identified Brawley as his assailant. Brawley admitted firing the fatal shot in a statement given shortly after his arrival at the county jail. Some two hours later a blood alcohol test was administered, and Brawley’s blood alcohol measured .11%.

On September 27,1988, Brawley filed a motion requesting a psychiatric evaluation. He could not make bail and had been held in custody since his arrest. The Court granted the request, and an appointment was made for Brawley at the George Jackson Mental Health Center for October 5, 1988. Brawley was not taken to the appointment. A second appointment was set for October 28, 1988. Again, he was not taken to meet the appointment. He was not taken for an evaluation until May 9,1989, and he was returned to jail on the same day. The report finding him competent for all purposes was received by the Court on July 24, 1989. Brawley remained incarcerated.

Before his trial on September 12, 1989, Brawley made an oral motion in chambers to dismiss the charges due to a violation of his right to a speedy trial. The motion was denied. He also asked the Court to suppress his confession on the ground that he could not, due to his intoxication, make a knowing and voluntary waiver of his rights. Both requests were renewed in a post-trial motion for new trial filed by new counsel. Following a hearing the Trial Court held that, because Brawley requested the psychiatric evaluation, the entire period of time between his request and the receipt of the report was excludable and that he was not too intoxicated to waive his rights and make a voluntary statement.

Brawley contends the Court erred in denying his motion to dismiss for violation of his right to a speedy trial and that the court erred in finding his custodial statements admissible. We affirm the conviction, as there was no violation of the speedy trial guarantee, and the totality of the circumstances indicates that the custodial statement was voluntarily made.

In accordance with our Rule 11(f), the record has been examined to determine the Court made no error prejudicial to the defendant.

1. Speedy trial

Brawley was arrested on May 3,1988. He argues that he was entitled, pursuant to Ark. R. Crim. P. 28.1(c) and 28.2(a), to be brought to trial by May 3, 1989. Instead he was tried in September, approximately 132 days in excess of the one year period. He contends that, as he was not brought to trial within the speedy trial period set out in Ark. R. Crim. P. 28.1, the State had the burden to show that any delay was the result of Brawley’s conduct or was otherwise legally justified. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). At a hearing before trial and on the new trial motion the State argued the delay was the result of Brawley’s request for a psychiatric examination.

We have held that under Ark. R. Crim. P. 28.3(a), a period of delay resulting from an examination and hearing on the competency of the defendant is excludable. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). In the case now before us, the motion granting the evaluation was entered on September 27,1988, and the report was filed on July 24, 1989. That is the period the Trial Court excluded. Brawley argues that the period of 9 and 3/) months from the granting of the request to receipt of the report is not excludable because he was not responsible for the fact that he missed his appointment set for October 5, 1988. He argues that the burden of justifying the delay beyond that date shifts back to the State as he was incarcerated at that time and had no control over the matter of keeping the appointment. He points out that there is no explanation offered for the failure of the State to ensure that he arrived at his appointment.

In response to this argument the State asserts that as the oral motion was not made a part of the record and this specific argument was not included in the motion for new trial it is waived and should not be considered. It is clear from the reconstructed record that the Trial Court found to the contrary and ruled that the argument was made in the pretrial motion and again in the new trial motion.

As there is no procedural bar to consideration of this issue, we proceed to consider the argument that the State did not meet its burden by merely raising the period after the motion for psychiatric examination as an excludable period. Brawley’s argument continues that once he presented proof that the appellant missed the scheduled appointments, and the Trial Court found that the delay was not attributable to him personally, the burden shifted back to the State to come forward with an explanation. The literal language of Rule 28.3(a) states simply that the period required by a competency examination is excluded. Brawley cites no authority for his assertion that the burden should shift back to the State, and we are not persuaded by his argument.

2. Suppression of the statement

Brawley argues the blood alcohol test administered some two hours after he gave his statement, and showing that his blood contained .11% alcohol, showed he was too intoxicated to waive his rights voluntarily and intelligently or to make a statement.

All the officers involved in his arrest and in the taking of the subsequent statement testified that, while Brawley had been drinking and the odor of alcohol did emanate from his person, he appeared lucid and to understand what was going on. Their testimony was unequivocal that Brawley did not show any signs of intoxication, that he was completely responsive and coherent, and that there was no coercion or deception involved in the obtaining of the statement.

The test for voluntariness of both the waiver and statement are essentially the same in this case. When a custodial statement is challenged, the State has the burden of proving by a preponderance of the evidence that the statement was voluntarily given. Baker v. State, 299 Ark. 430, 711 S.W.2d 816 (1986). On appeal we make an independent determination of this issue considering the totality of the circumstances and affirm the trial court’s ruling unless it is clearly wrong. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984). In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court recognized the inherently coercive nature of custodial waivers and held that a suspect’s waiver of rights is valid only if it is made voluntarily, knowingly, and intelligently. The voluntariness requirement is concerned with any sort of coercive or deceptive police activity. The knowledge and intelligence requirements are concerned with the level of comprehension of the accused. Only if the “ ‘totality of the circumstances surrounding the interrogation reveals’ both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989); Moran v. Burbine, 475 U.S. 412, at 421 (1986).

In our review of the totality of the circumstances, we defer to the trial court with respect to the credibility of witnesses. Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).

Brawley argues that he was so intoxicated that he does not recollect his statement at all nor does he recall signing the waiver. In a similar case, Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981), the appellant claimed he had taken drugs prior to the time he was interrogated and was unable to remember being questioned or signing the confession. We found the State’s evidence that the appellant appeared to be lucid and understood his rights was sufficient and concluded that it was for the Trial Court to weigh the evidence and resolve the credibility of the witnesses. The testimony here suggests that Brawley was sober enough. There is no evidence of any sort of duress. We cannot say the Trial Court was wrong in refusing to suppress the statement.

Affirmed.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. Arkansas R. Crim. P. 28.1(a) provides that an incarcerated defendant is to be tried within nine (9) months or released from incarceration. There is no provision in our Rules stating directly that an incarcerated person is entitled to be tried within one year or discharged absolutely. At least one of our decisions, however, suggests that the provision of Rule 28.1 (c), requiring trial within one year of a person “held to bail, or otherwise lawfully set at liberty,” applies as well to an incarcerated person. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).

Although Brawley is not “at liberty,” the State’s brief concedes he must be tried within one year unless there are excludable periods. I raise the issue here solely to suggest that our Committee on Criminal Practice may wish to consider reviewing the Rules with a view toward suggesting a change to specify the period within which an incarcerated person must be tried or discharged.

819 S.W.2d 704

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING NOVEMBER 25, 1991

Henry J. Swift and Kent J. Ruebens, for appellant.

Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

Per Curiam. The petition for rehearing is denied.

Tom Glaze, Justice,

concurring. I agree with the court’s denial of appellant’s petition for rehearing. However, appellant voices his concern that the court’s opinion can be read to mean that, once a defendant requests a psychiatric evaluation, all delays in obtaining that evaluation are chargeable to the defendant for speedy trial purposes regardless of who caused the delays. I would not agree with such a proposition, and I believe a close look at the record dispels such a notion.

The state had twelve months to bring the appellant to trial, but appellant was tried sixteen months and nine days after his arrest and incarceration. Thus, the state had the burden of showing the delay was legally justified. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).

In its opinion, this court, citing Ark. R. Crim. P. 28.3(a), excluded the entire period it took for appellant to be evaluated. In so holding, the court rejected appellant’s argument that his evaluation had been delayed through no fault of his and that the state should have been charged with the period of delay from the two dates he was not taken to his appointments in October 1988, until his evaluation was obtained in May 1989, or when the report was submitted in July 1989. The trial court found that the appellant did nothing to prevent his attending the two scheduled appointments in October 1988, but neither did the trial court find the state at fault. Appellant’s position, however, is the period of delay was still chargeable to the state because it had the burden to show the delay was legally justified.

Appellant’s argument assumes that he did nothing to delay his evaluation in this matter. I cannot agree. Appellant ignores the fact that the prosecutor, in February 1989, was the one who recognized that appellant’s evaluation had been delayed, and the prosecutor petitioned well within the designated twelve-month period (about nine months) for the trial court to appoint a private psychiatrist to evaluate appellant. In his petition, the prosecutor specifically mentioned the state’s inability to have appellant evaluated at the George W. Jackson Mental Health Center and his concern that the speedy trial period could expire if action was not taken. The prosecutor offered that the state would pay the expense of an independent psychiatric evaluation. The trial court, in settling the record for appeal purposes, related in the following what occurred at the February 22, 1989 hearing on the prosecutor’s petition:

There was colloquy about who was responsible, why it was taking so long, what could be done and et cetera. And I believe I informed Mr. Swift and the prosecutor to look into the matter, to get it straightened out, to proceed with it, and that if he wasn’t having any luck, to file a motion for habeas, and that I would rule on it promptly.
Then he asked for a continuance, and I granted at that time the motion for private evaluation. There was never an order filed apparently. But the case was continued on defense motions at defense request for the term.

From the above, it is clear to me that the prosecutor petitioned the trial court in an attempt to show the state was not responsible for the delay in appellant’s evaluation, and, in doing so, he actually sought a private evaluation to avoid any further delay. Appellant, on the other hand, moved for a continuance which was granted, thus, cutting off any further consideration of the prosecutor’s petition. The appellant, strategically suspect, chose not to proceed further at the hearing held on the prosecutor’s petition and the trial court was obviously left with the impression that both the state and the appellant would work matters out. If they could not, the trial court would expect appellant to file a habeas corpus petition, which the court would promptly rule on. Instead, appellant raised no speedy trial issue until after trial when he filed a motion for new trial.

The entire dispute over appellant’s failure to obtain an evaluation could have been resolved at the February hearing if appellant had not chosen to ask for a continuance. Appellant cannot be expected to have it both ways, i.e., he cannot charge the state with the extended period of time after appellant missed his October 1988 appointments and at the same time frustrate the state’s efforts to obtain appellant’s evaluation. There was some confusion over whether appellant’s continuance was until March or August 1989, but regardless of the length of time requested by appellant, he simply did nothing related to an evaluation after the February hearing. While it is true the state has the burden to bring a defendant to trial within the twelve-month period required under Rule 28, the defendant cannot benefit from actions he takes that frustrate the state’s efforts that are designed to achieve a speedy trial for the appellant. In my view, appellant’s action at the February hearing did just that and he then chose to lie behind the log while time accrued past the required twelvemonth period. The appellant should be charged with all the time that transpired from the February 22, 1989 hearing until the evaluation report was submitted on July 24, 1989.

This time alone, when excluded, brings appellant’s trial date within the required twelve months. While I agree with the majority that sufficient excludable time exists in this case under Rule 28.3 (a), I also believe that, in light of appellant’s actions and inactions, such excluded time is warranted under Rule 28.3(h), which covers other periods of delay for good cause.

For the foregoing reasons, I concur with the court’s decision denying appellant’s request for rehearing.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    Curtis Bernard EASTER v. STATE of Arkansas
    CR 91-130
    816 S.W.2d 602
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991

      The Lowber Hendricks Law Firm, P.A., by: Lowber Hen-ricks, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Curtis Bernard Easter, was convicted of first degree murder and sentenced to forty years imprisonment in connection with the shooting death of Darin Waymack. On appeal, Easter contends the Trial Court erred by (1) failing to grant a directed verdict because there was no evidence he had the purposeful mental state necessary for the offense, (2) admitting evidence of a conversation between Easter and his roommate, Buddy Arnold, about Easter “pulling his own weight around the house,” (3) instructing the jury that Easter’s prior convictions could be considered for impeachment purposes although not introduced to impeach a witness, and (4) not instructing the jury on the lesser included offense of manslaughter.

We affirm the conviction. (1) There was evidence from which the jury could infer Easter had the purposeful mental state necessary for first degree murder. (2) The Trial Court did not abuse its discretion in admitting evidence of a conversation between Easter and his housemate because the evidence was probative of Easter’s motive for committing the crime. (3) Easter was not prejudiced by the instruction to the jury that his prior crimes could only be used for impeachment purposes. (4) As the jury found Easter guilty of first degree murder, not second degree murder, any error resulting from the failure to give a manslaughter instruction was cured.

Buddy Arnold and Easter lived together in a trailer outside Jacksonville. Arnold owned the trailer and Easter lived there as a tenant. About 7:30 p.m. one evening, Darin Waymack brought a half-gallon of whiskey and some marijuana cigarettes to the trailer. Chris, Kim, and Joe Wuneburger came to the trailer around midnight, and Dwain Foreman, Waymack’s half-brother, arrived shortly thereafter. Everyone except Joe Wuneburger was either drinking alcoholic beverages or smoking marijuana that night. Easter testified that he, Waymack and Arnold also took LSD. Arnold denied taking LSD, and the autopsy revealed no evidence of LSD in Waymack’s system. Arnold testified Easter was not acting normally and was staying to himself. Kim Wuneburger stated something was wrong with Easter that night.

Easter disappeared from the trailer for a time, and Arnold found him on his hands and knees, apparently ill. Arnold asked him what was wrong, and Easter said he didn’t feel good and wanted a gun. Easter then came back inside the trailer, but left again. Arnold followed Easter and again asked him what was wrong. Easter said “Can’t you see what’s going on?” and “Man, could you just get me a gun?”

Easter was later found sitting in Waymack’s car, and Waymack told Easter to get out. Easter got out of the car, walked up the front steps of the trailer, went inside, and pulled a loaded 12-gauge shotgun from beneath a couch. Easter cocked the gun twice, walked outside, and shot Waymack twice in the head and once in the shoulder in the presence of four witnesses. Joe Wuneburger testified that when Easter was entering the trailer to get the gun, he was in a “mad rage” and said “Darin is a . . . narc.” Kim Wuneburger stated Easter looked “furious.”

To provide a possible motive for the crime, the prosecutor elicited testimony from Arnold that he and Easter had a conversation about Easter doing more work around the house. Arnold further testified he had allowed Waymack to store some furniture in the trailer. As a result of the drugs and alcohol, Easter might have killed Waymack because he believed Arnold was moving him out of the trailer and Waymack in. Ken Richardson, a drug abuse counselor for the State, testified Easter had an extensive drug abuse history. Easter admitted to Richardson he had a drug addiction.

Easter testified in his own defense and stated that, as a result of taking LSD, he didn’t remember shooting Waymack. He did remember feeling nervous and sick that night. Easter stated he and Waymack were friends and had never argued before. He also explained he told Arnold he wanted a gun because he felt nervous and did not want to go back inside with a gun in the trailer.

Dr. Henderson, who examined Easter at the county jail, diagnosed him as having a chronic substance abuse problem. It was his opinion that, at the time of the shooting, Easter had a diminished mental capacity caused by taking drugs. Dr. Henderson testified Easter was experiencing delusional thinking that Waymack had a gun and was threatening him.

The judge instructed the jury on murder in the first degree and murder in the second degree. He refused to instruct on the lesser included offense of manslaughter. The jury found Easter guilty of murder in the first degree.

1. Directed verdict

A person commits first degree murder if he purposely causes the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Supp. 1991). “Purposely” is defined by Ark. Code Ann. § 5-2-202(1) (1987) as follows: “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.” Easter contends the only evidence regarding his mental state at the time of the offense was that he was heavily drugged, experiencing delusions, and acting under a diminished mental capacity.

On appeal from a denial of a directed verdict, this Court views the evidence in the light most favorable to the appellee, in this case the State, and affirms if there is any substantial evidence to support the verdict. Evidence is substantial to support the verdict if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion or conjecture. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991).

Intent is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The intent necessary for first degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987).

Kim and Joe Wuneburger testified that Curtis Easter shot Darin Waymack twice in the head and once in the shoulder with a shotgun. There was testimony that at the time of the killing, Easter was in a “mad rage” and “furious.” Easter had twice asked Arnold for a gun. The State’s Chief Medical Examiner testified Waymack was shot twice in the face and once in the right shoulder. Based on the type weapon used, the manner of its use, and the location of the wounds, the jury could reasonably have inferred Easter purposely killed Waymack.

Voluntary intoxication is not a defense. It is neither a statutory affirmative defense nor a common law defense negating intent in crimes requiring a purposeful mental state. Cox v. State, 305 Ark. 244, 808 S.W.2d 306 (1991); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986).

2. The conversation evidence

On direct examination, the prosecutor asked Arnold whether he recalled a conversation in which he told Easter he should start “pulling his weight around the house.” Easter argues that this question was improper under A.R.E. 608(b), 404(b), and 403; however, the basis of the objection at trial was that the testimony was irrelevant.

The judge ruled the conversation between Arnold and Easter was relevant in showing a possible motive for the killing. We find no error. A ruling on the relevancy of evidence is discretionary, and we will not reverse absent an abuse of discretion. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Willett v. State, 18 Ark. App. 125, 712 S.W.2d 925 (1986). We find no abuse of discretion.

3. AMCI 203

Defense counsel asked Easter during direct examination about his previous convictions for two counts of delivery of marijuana and one count of theft by receiving. The Trial Court instructed the jury that “evidence that the defendant has previously been convicted of a crime may be considered by you for the purpose of judging the credibility of the defendant, but not as evidence of his guilt.” AMCI 203. Easter argues that because the evidence was not introduced to impeach a witness, the jury instruction was erroneous.

Easter cites no authority and makes no argument convincing us he has suffered prejudice as a result of the instruction. This Court does not reverse without a showing of unfair prejudice. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985).

4. Manslaughter as a lesser included offense

In his last point, Easter contends that it was reversible error for the Trial Court to decline to instruct on the lesser included offense of manslaughter. The Trial Court instructed on first and second degree murder. When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); Harris v. State, 291 Ark. 504, 726 S.W.2d 267 (1987). This is commonly referred to as “the skip rule.”

Affirmed.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. I agree with the majority opinion on all points except its reasoning on the trial court’s refusal to give an instruction on manslaughter as a lesser included offense. This case, factually, does not lend itself to a manslaughter instruction in my opinion, because there was not sufficient evidence in the record to support it. For that reason the trial judge did not abuse his discretion in denying the instruction.

The majority, however, bases affirmance in point four on the “skip rule.” The rationale for the skip rule, as explained by the majority, troubles me. What the majority is saying is if a jury convicts a defendant of an offense two grades more serious than the lesser offense, this “cures” the failure to give an instruction on that lesser offense. Such reasoning fails to consider the effect that an instruction on the lesser offense, not to mention defense counsel’s closing argument, could have on a jury and its verdict. The skip rule suggests after-the-fact rationalization and for that reason is a concept this court needs to examine more closely when the circumstances warrant it.


author: Tom Glaze, Justice.

text:
    Doyle David BRADLEY, Brent Clifton Clayton, and Elton Williams v. STATE of Arkansas
    CR 91-145
    816 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991

      William M. Hoard, Jr., for appellants.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is an interlocutory appeal from the trial court’s denial of the appellants’ motion to transfer their case to juvenile court. The state charged the appellants with aggravated assault arising out of a shooting that occurred while the appellants were in a crowd of people at Riverfest. At the time of the incident, appellant Bradley was seventeen years old and appellants Clayton and Williams were sixteen years old. During the hearing on the motion to transfer, the appellants presented no evidence and the state relied solely on the information charging the appellants. On appeal, the appellants contend that the trial court erred in denying their motion to transfer when the state offered no evidence other than the charge. We find no merit in the appellants’ argument, and therefore affirm.

In making his decision on whether to transfer a case to juvenile court, the trial judge is required to consider the following factors;

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Supp. 1991). The trial judge need not give equal weight to each factor and proof on all factors need not be against the defendants. Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986). Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect. Ark. Code Ann. § 9-27-318(f).

In Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), we held that the party moving for transfer to juvenile court has the burden of proof to show that he or she meets the criteria of the statute to warrant transfer. If he or she meets the burden, then the transfer is made unless there is clear and convincing countervailing evidence to support a finding that the juvenile should remain in circuit court. A trial judge may consider the criminal information as evidence. Walker v. State, 304 Ark. 402-A, 805 S.W.2d 80 (1991) (supplemental opinion denying rehearing). However, the state’s mere filing of the information will not qualify as sufficient evidence in every case. Id.

Here, as stated earlier, the appellants presented no evidence, mistakenly believing that the state had the burden of proof. The state relied on the information, which provided the following:

The said defendant(s), in Pulaski County, on or about May 25, 1990, unlawfully, feloniously, under circumstances manifesting extreme indifference to the value of human life, did purposely engage in conduct that created a substantial danger of death or serious physical injury of several unarmed victims, and did have in his possession the following deadly weapon, a revolver, against the peace and dignity of the State of Arkansas.

Also, the trial judge was informed of the ages of the appellants and that appellant Williams had a previous juvenile record. In denying the appellants’ motion to transfer, the trial judge relied on the seriousness of the alleged offense — the appellants were sixteen and seventeen years old, possessed a gun, and shot it into a crowd of people.

Appellants here simply failed to meet their burden. Thus, based upon the record before us, we cannot say that the trial court’s finding by clear and convincing evidence that the appellants should be tried as adults under § 9-27-318 is clearly against the preponderance of the evidence. Walker, 304 Ark. 402-A, 805 S.W.2d 80 (supplemental opinion denying rehearing).

At this point, we take the opportunity to clarify our standard of review in these cases. In our original opinion in Walker, we inappropriately applied an abuse of discretion standard, and we repeated that measure of review in Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). However, we then subsequently and correctly applied the clearly erroneous standard in our supplemental opinion in Walker, but failed to mention that correction in Pennington. We do so now. Accordingly, the original opinion in Walker and the Pennington opinion are modified to the extent those opinions fail to recite the clearly erroneous standard.

For the reasons stated above, we affirm.


author: Robert L. Brown, Justice.

text:
    Larry VAN PELT v. STATE of Arkansas
    CR 90-275
    816 S.W.2d 607
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991

      Killough, Ford & Hunter, by: S. Kyle Hunter, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

The appellant, Larry Van Pelt, was convicted of capital murder and sentenced to life without parole for the shooting death of a store clerk, Bernice Henyard, in Parkin, Arkansas. The appellant raises five arguments on appeal. The arguments have no merit, and we affirm the conviction.

On October 24, 1989, between 11:00 p.m. and 11:30 p.m., Henyard was working at P.J.’s Country Store in Parkin. Her fiance, Anthony Dinwiddie, was in the store eating chicken at a booth and visiting with her. While there, Dinwiddie noticed a man in a white cowboy hat walking down the sidewalk toward the store. The man pushed his hat down over his head as he passed the store window. He then stopped and returned to his car. Dinwiddie’s next recollection was of the man in the store talking to the victim. Dinwiddie heard the sound of money in the cash register, and then Henyard screamed his name. The man pointed a gun at Dinwiddie and said, “Get your ass up here.” Dinwiddie went to the counter and was within six to eight feet of the man, who said to Henyard, “Give me all your money, bitch.” She handed him a stack of bills. The gunman pointed the gun at her head and shot her in the right eye, killing her instantly. Dinwiddie immediately raced to the door, and the gunman fired a shot at him which missed but shattered the glass in the door. Dinwiddie ran across the parking lot, turned, and saw the man get into his white car. Because of the lighting Dinwiddie was able to get part of the license number. He gave chase in his car, encountered a police officer, told him the story, and the officer continued pursuit. The license number and car description were dispatched over police radio, and a man in a white Lincoln was stopped and arrested within the hour. The arresting deputies seized a white cowboy hat, a baseball cap containing money, and a .22 automatic pistol from the suspect’s car. Dinwiddie, meanwhile, had returned to P.J.’s Country Store, and then went to his uncle’s house, his own home, and finally to the Parkin police station.

While at the station Dinwiddie heard a report from the radio dispatcher that a suspect had been arrested. When the sheriff and car with the suspect arrived, Dinwiddie looked out the window and saw the handcuffed man. At that point he said, “Yeah, that’s the son-of-a-bitch that did it.” When the suspect was escorted into the room where Dinwiddie was sitting, Dinwiddie struck him in the face with his fist. Dinwiddie was shown no photographs, and no line-up was conducted.

At the trial, which took place from July 30 through August 2, 1990, Dinwiddie identified the appellant in court as the gunman. The shell casings found at the country store were also identified by expert testimony as having been fired from the pistol found in the appellant’s car.

For reversal of his conviction the appellant first argues that the death penalty as set out at Ark. Code Ann. § 5-10-101 (Supp. 1991) constitutes cruel and unusual punishment under the Eighth Amendment. We dismiss this argument. Case authority is clear that the appellant, having received a sentence of life without parole, has no standing to challenge the constitutionality of the death penalty. See Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979).

The appellant next asserts that the trial court erred in denying his motion to prohibit the prosecutor from qualifying the jury for consideration of the death penalty, which denied him an impartial jury under the Sixth Amendment. This argument has been raised many times and has also been decisively disposed of by both the United States Supreme Court and this court. See Lockhart v. McCree, 476 U.S. 162 (1986); Bell v. State, 296 Ark. 458, 757 S.W.2d 937 (1988). The appellant gives us no compelling reason to reexamine the issue.

For his third argument the appellant contends that the capital murder statute overlaps impermissibily with our first-degree murder statute. See Ark. Code Ann. §§ 5-10-102(aX2) and 5-10-101 (a)(4) (Supp. 1991). This overlapping occurs, according to the appellant, with the degree of purposeful action required in the two statutes. Capital murder requires “the premeditated and deliberated purpose of causing the death of another person” while first-degree murder mandates “the purpose of causing the death of another person.” We have held repeatedly that while the two statutes may appear to overlap on the degree of required intent, this does not render them unconstitutional due to vagueness or arbitrariness. See Smith v. State, No. CR 91-71 (September 23, 1991); Weaver v. State, supra; Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990). As we said in Hill, our case law regards first-degree murder as a lesser included offense subsumed in the capital murder offense. The appearance of overlap raised by the appellant does not deny the appellant his right to due process, and we affirm yet again the constitutionality of both sections of our Criminal Code.

The appellant’s principal argument centers on the trial court’s decision to allow Dinwiddie’s in-court identification, irrespective of his prior encounter with the appellant at the police station. The appellant’s theory is that the “show-up” procedure with the deputies’ escorting only the appellant into the police station was unduly suggestive and tainted any further identification by Dinwiddie. We disagree. We will not reverse a trial court’s ruling on the admissibility of an in-court identification unless that ruling is clearly erroneous under the totality of the circumstances. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). In determining whether an in-court identification is admissible, we first look at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect. Maulding v. State, 296 Ark. 328, 757 S.W.2d 916 (1988); Bowden v. State, supra. It is the appellant’s burden to show that the pre-trial identification procedure was suspect. Shuffield v. State, 23 Ark. App. 167, 745 S.W.2d 630 (1988).

In the case before us, although Dinwiddie was present at the time of the appellant’s arrival in custody, there is no evidence suggesting that the police brought the appellant to the station to facilitate an identification by Dinwiddie. Dinwiddie made his initial identification spontaneously and before the appellant was brought inside the building. Moreover, he could not have known for certain that the person who was getting out of the sheriffs car was indeed the suspect in that crime.

We have previously recognized that witness identification of a suspect at a police station, when the police have not orchestrated a pre-trial identification, does not invalidate a subsequent in-court identification. Murphy v. State, 269 Ark. 181, 599 S.W.2d 138 (1980); Pollard v. State, 258 Ark. 512, 527 S.W.2d 627 (1975); see also Coleman v. Alabama, 399 U.S. 1 (1970), which involved a spontaneous identification of a suspect as he stepped onto the stage in the line-up room. In Murphy, the witness saw a suspect get out of a police vehicle at the station after having seen the man outside her bedroom window a short time before. In Pollard, a witness who was waiting for a line-up identified the suspect as he walked with other line-up participants from the jail-cell area. We upheld the identifications in both cases.

Even had the pre-trial identification been impermissibly suggestive, the taint of an improper “show-up” was removed by the clear and convincing evidence that the in-court identification was based upon Dinwiddie’s independent observations of the suspect. See Bowden v. State, supra. Reliability is the linchpin in determining the admissibility of identification testimony, and in determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pre-trial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pre-trial identification procedure. Id.

Here, Dinwiddie was at the store when the person he identified as the appellant entered, ordered him to approach, took money from the victim, and shot her. For approximately thirty seconds the appellant had his gun trained on both Dinwiddie and the victim, and Dinwiddie stood within six to eight feet of him. He could see the uncovered face of the appellant clearly and later described him as a white male about forty years of age, clean-shaven with two-tone blond hair, who was wearing a light shirt, dark pants, and a white cowboy hat. This description fit the appellant at the time of his arrest. Dinwiddie never identified another person as the culprit, and his identification of the appellant after arrest was certain and unwavering. Furthermore, the time between the murder and the identification was relatively brief. The murder occurred at about 11:30 p.m., the arrest was effected between 11:30 and 12:00 midnight, and the identification at the station followed soon thereafter.

It is for the trial court to determine whether there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and it is then for the jury to decide what weight should be given to the identification testimony. McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). Under the facts of this case, the in-court identification was reliable, and we affirm the trial court’s ruling.

For his last point the appellant argues that a substantial break in the chain of custody of the two spent shell casings occurred which warranted suppression of those casings. Evidencing this break, according to the appellant, was a lack of testimony at trial by the person who physically received the items from the investigator and by the person who took them to the firearms expert.

The record does not support the appellant’s assertions. The Crime Lab investigator testified that he received the box of physical evidence, which included the casings, from the police officer who retrieved the evidence at the crime scene. The investigator further testified that, though he did not place his initials on the box, he had it exclusively in his custody until he delivered it to the State Crime Lab where it was placed in the evidence vault. He stated that standard procedure was for the Chief Morgue Technician to transfer the evidence to the Central Receiving Area. From there it would be taken to the Firearms Section. He further testified that though he did not put his initials on the evidence box, the box presented to him at trial appeared “similar” or “identical” to that received from the Parkin police. Nothing in the record before us indicates that this routine procedure was disrupted.

We have held that it is necessary for the prosecutor to demonstrate that the evidence has not been altered in any significant manner before it reached the Crime Lab expert. See Holbird v. State, 301 Ark. 382, 784 S.W.2d 171 (1990). It is not necessary, however, that every possibility of tampering be eliminated; it is only necessary that the trial court, in its discretion, be satisfied that the evidence presented is genuine and has not, in reasonable probability, been subjected to tampering. Id; Munnerlyn v. State, 264 Ark. 928, 576 S.W.2d 714 (1979). It is not required, moreover, that every moment, from the time the evidence came into the possession of a law enforcement officer until it is introduced at trial, be accounted for by every person who could have conceivably come in contact with the evidence during that period. Phills v. State, 301 Ark. 265, 783 S.W.2d 348 (1990).

We acknowledge that there were gaps in the testimony concerning the movement of the box with the casings from the time it left the custody of the Crime Lab investigator to the time the casings came into the custody of the firearms expert. These relatively minor discrepancies, though, are committed to the trial court’s discretion for weighing. The court found that the gaps were not substantial enough to warrant suppression. We agree and will not reverse the trial court’s ruling absent some evidence of tampering, which the appellant did not produce. On this point we note that though the Crime Lab investigator did not put his initials on the sealed evidence box containing the casings, he was sufficiently certain that box presented to him at trial which contained the casings was the same box he placed in the evidence vault.

An examination of the record has been made in accordance with Ark. Sup. Ct. R. 11 (f) and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


author: Per Curiam.

text:
    Zealous Allen JONES a/k/a Zealouse Allen Jones v. STATE of Arkansas
    CR 91-134
    819 S.W.2d 683
    Supreme Court of Arkansas
    Opinion delivered October 7, 1991

      Edward T. Ogelsby, for appellant.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant, Zealous Allen Jones, was found guilty of murder in the second degree on October 12,1990, during that window of time when Rule 37 of the Arkansas Rules of Criminal Procedure was not in effect. Appellant was represented at trial by John Kearney who filed a timely notice of appeal on November 9, 1990. On November 12, 1990, after the notice of appeal had been filed but within the time for filing a timely petition under Rule 36.4, a new attorney, Tim Womack, filed a motion under Ark. R. Crim. P. 36.4, claiming ineffective assistance of counsel. Rule 36.4 provided that claims of ineffective assistance of counsel could be raised in a motion for new trial filed within thirty days of the date the judgment was entered.

After a hearing on the motion for new trial, the trial court denied relief. A second notice of appeal, this one filed by Mr. Womack, was filed, expressing the intention to appeal from both the judgment of conviction and the order denying the motion for new trial.

When the appellant’s brief was filed in this court, Mr. Womack argued only that the trial court erred in denying the motion for a new trial. He did not abstract the trial record; instead, he simply stated that there was no reversible error in the trial proper. Assuming that Mr. Womack can be considered attorney-of-record, he was obligated under Sup. Ct. R. 11(h), and in accordance with Anders v. California, 386 U.S. 738 (1967), to ask to be relieved with respect to that portion of the appeal which he contends is meritless and to support the motion with “a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court and of all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers the points thus raised would not arguably support an appeal.”

In an analogous situation, where an attorney contended there was merit to the appeal of the judgment but not of an order denying post-conviction relief, we required the attorney-of-record to file a motion to be relieved as counsel with respect to that part of the case in which he contended there was no merit. A copy of the motion and counsel’s brief, which complied with Rule 11(h) and Anders, were mailed to the appellant so that he could respond, if he desired to do so, within thirty days.

There has been no compliance with Rule 11 (h) in this case, nor any listing of objections made by the appellant and overruled by the court, nor of the motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points would not arguably support an appeal. Thus, to comply with Rule 11 (h), appellant’s counsel is required to rebrief the case. Once a motion to be relieved and brief have been filed in conformance with the rule, the motion and brief will be mailed to the appellant with a letter advising him of his right to respond to the “no merit” portion of the case.

This case is removed from the list of cases under active submission, awaiting further briefing in accordance with this per curiam.

       November II, 1990, was the thirtieth day, but as it fell on a Sunday, the motion filed Monday, November 12, 1990, was timely.

       The record does not reflect that John Kearney ever asked to be relieved as counsel by this court which he was obligated to do under Sup. Ct. R. 11 (h), once the notice of appeal had been filed or that Womack ever asked this court to be declared attorney-of-record. This court has never had occasion to decide whether an attorney under these circumstances must ask this court to declare him attorney-of-record.


author: Robert H. Dudley, Justice.

text:
    David FELTY v. STATE of Arkansas
    CR 91-132
    816 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered October 14, 1991

      Robert N. Jeffrey, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant raped the prosecutrix in Hot Spring County, and then, only a short distance away and a short time later, raped her in Garland County. He was charged by separate informations with the crime of rape in each county. On his motion both offenses were joined, as part of a single scheme or plan, in Hot Spring County. He was tried there and found guilty of both charges. He appeals and argues five (5) points for reversal. None of them has merit, and we affirm both judgments of conviction.

The prosecutrix, a fourteen-year-old girl, was at the Pizza Hut Restaurant in the City of Hot Springs at about 11 p.m. and sought a ride home. The appellant responded that he would drive her home. Two (2) other men were with him. The four (4) of them got in appellant’s car, and appellant drove toward Malvern. Along the way, he turned his car into a cemetery which is located in Hot Spring County. The two (2) other men got out of the car. Appellant remained in the car with the prosecutrix and twice forced her to have sexual intercourse with him. The prosecutrix and both of the other men were eyewitnesses and testified to the above facts.

The four (4) of them left the cemetery in appellant’s car, and appellant drove back to the City of Hot Springs and let the two (2) men out. He then drove the victim to a location near Carpenter Dam in Garland County and again raped her. The prosecutrix testified to this crime. Appellant’s car ran out of gasoline and, when he went to get more gasoline, the prosecutrix got away and went to a friend’s home. The friend’s mother described the prosecutrix as upset and reporting that she had been raped. She was taken to the hospital. She had abrasions on her back and buttocks and had a tear in the external area of her vagina. The examining physician concluded there had been trauma to the area. After hearing ail of the testimony, the jury found appellant guilty of both charges.

Appellant argues that there was insufficient evidence to convict him. We affirm a conviction if substantial evidence exists to support it. Evidence is substantial if the jury reaches its conclusion without having to resort to speculation or conjecture. The testimony of a rape victim satisfies the substantial evidence requirement in a rape case. The testimony of the victim alone was sufficient to support the verdict.

However, in this case, unlike most rape cases, there were two (2) eyewitnesses to one of the crimes. The testimony of the examining physician provided further proof of rape. Appellant questions the testimony of some of these witnesses by pointing out alleged discrepancies in their testimony. However, the credibility of witnesses and any discrepancy in testimony are for the jury to resolve. Wilkins v. State, 292 Ark. 596, 600, 731 S.W.2d 775, 778 (1987).

Appellant next argues that the trial court erred by not granting a mistrial after an allegedly prejudicial statement was made by the prosecutor on voir dire. The statement and the discussion which ensued between the prosecutor, defense counsel, and the trial judge were as follows:

THE DEPUTY PROSECUTOR: The charge against [the appellant] is a Class Y Felony that carries from 10 to 40 years or life. He’s charged with two counts of that. Is there anyone here, that if they found that he committed these acts, that could not sentence him to a long term in the penitentiary? If you can’t do that, even though the law requires it based on the facts, is there anyone here that can’t—
THE DEFENSE ATTORNEY: Objection, Your Honor, may we approach the bench.
BY THE COURT: Sure.
THE DEFENSE ATTORNEY: Your Honor, I move for a mistrial. Mr Scrimshire [the deputy prosecutor] has inappropriately stated the law, that it requires a long sentence, and that is incorrect. The sentence is 10 to 40 to life, not a “long sentence.”
BY THE COURT: [Directed to Mr. Scrimshire:] You may ask them if they will consider the full range of sentences, but don’t try to commit them to a particular length of sentence.
BY PROSECUTOR: Sure.
BY THE COURT: [Directed to Mr. Becker:] Your motion for a mistrial is denied.

Appellant argues that he was prejudiced by the prosecutor’s use of the phrase “long sentence” since it suggested to the jury that it was not possible to impose a minimum sentence. We have previously addressed prosecutorial inquiry on voir dire into jurors’ feelings about the penalties applicable to the particular crime or crimes. In Haynes v. State, 270 Ark. 685, 606 S.W.2d 563 (1980), we held that it was prejudicial error for the prosecutor to repeatedly ask jurors if they would impose the maximum penalty upon a finding of guilt. We expressed concern that the jury may have felt obligated in advance of hearing the evidence to impose the maximum penalty upon finding the defendant guilty. Id. at 690-91, 606 S.W.2d at 565. In Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982), we revisited the issue presented in Haynes. There, we held the prosecutorial conduct was distinguishable from that in Haynes because the prosecutor, after stating the minimum and maximum penalties, merely asked the prospective jurors whether they would consider the maximum sentence. Id. at 115, 640 S.W.2d at 95. We wrote, “Unlike the situation in Haynes, no juror was in this case asked to commit to a possible penalty or to express an opinion on whether such a penalty would be suitable.” Id. We found such an inquiry to be proper on voir dire. Id.

The prosecutor’s statement in this case is similar to that in Stephens. Here, the prosecutor gave the minimum and maximum sentences for the crime committed and then asked the potential jurors whether any of them could not sentence appellant to a “long term in the penitentiary.” The prosecutor was essentially asking the jurors whether they could impose the maximum sentence. In Stephens we sanctioned such questioning. Thus, appellant’s second argument is without merit.

Appellant further contends that the trial court erred by not allowing the attorneys to strike members of the jury panel in chambers. Voir dire of jury panels is provided for by Ark. Code Ann. §§ 16-33-101 and 16-33-301 to-308 and by A.R.Cr.P. Rule 32.2. Sections 16-33-303 to -308 give the number of peremptory and “for cause” challenges each party shall have and the manner in which they are to be exercised. Nothing is mentioned in any of these Code sections nor in Rule 32.2 concerning exercising one’s challenges in chambers as distinguished from open court. The customary procedure has been to strike jurors in open court.

An analogous request for a particular voir dire procedure is the request for a sequestered voir dire. In Heffernan v. State, 278 Ark. 325, 327, 645 S.W.2d 666, 667 (1983), we said that sequestration of a jury for purposes of voir dire is within the discretion of the trial court. In Heffernan, a death penalty case, we found no abuse of that discretion by the trial court’s refusal to allow sequestered voir dire. Id. The trial court did permit individual voir dire in Heffernan to alleviate the defendant’s concern that the jurors would not be as candid in the presence of one another. Id.

We have discussed the issue of conducting voir dire in chambers. In Commercial Printing Co. v. Lee, 262 Ark. 87, 93, 553 S.W.2d 270, 273 (1977), we held that a court order which excluded the public from voir dire was invalid. We based our decision on the fact that voir dire is an essential part of the trial and that the defendant is guaranteed a right to a public trial. “[T]here is nothing in our constitution or the federal constitution which guarantees a private trial.” Id. at 94, 553 S.W.2d at 273. In Commercial Printing Co. it was the defendant who requested that voir dire be held in chambers. In Taylor v. State, 284 Ark. 103, 679 S.W.2d 797 (1984), it was at the State’s request that voir dire was conducted in chambers, and it was the defendant who asserted his right to public voir dire. See also, Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990).

In sum, sequestration of the jury for voir dire purposes and the conducting of voir dire in general is within the broad discretion of the trial judge. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989). The appellant has not shown that the trial court abused that broad discretion by refusing to allow him to strike members of the jury panel in chambers.

Appellant’s next argument is an evidentiary one. He argues that the trial court erred by admitting testimony of two (2) lay witnesses because “their statements were a conclusion by each witness which could not be supported by personal knowledge.” The alleged conclusory testimony of one of the male witnesses was as follows: “—and [the victim] was like sitting against Joe, away from [appellant], whenever all this was going on. She was like scared of [appellant], and he was like insisting—.” Appellant also objected to the following testimony of the other male witness: “Well, they really didn’t stay down there that long. I mean, you know, he really—when he was up by the car is when it really all was going on. You know, she was just trying to get away from him, and she went down—.”

Rule 701 of the Arkansas Rules of Evidence governs opinion testimony of lay witnesses. It provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (1) Rationally based on the perception of the witnesses; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

A.R.E. Rule 701.

The Rule today is not a rule against conclusions, but it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 572, 798 S.W.2d 674, 675 (1990). It provides that a lay witness may give an opinion with two (2) limitations. Limitation (1) is the requirement of firsthand knowledge or observation. Limitation (2) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not an opinion or conclusion. For example, if a witness is asked, “What kind of day was it?” he might respond, “Beautiful.” It would be an admissible opinion. He would not have to state it was a clear skied, sunny, 72 degree spring day with a slight breeze. The witness can respond in everyday language which includes his conclusion about the type of day. However, if attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the Rule. See Advisory Committee’s Notes to Federal Rule 701.

In sum, opinion testimony by lay witnesses is allowed in observation of everyday occurrences, or matters within the common experience of most persons. Statements by eyewitnesses that the victim was “scared” and “trying to get away” easily fit within the limitations imposed on lay witness opinion. The trial court did not abuse its discretion in allowing the testimony.

Appellant’s final argument is that the trial court erred in overruling his objection to the introduction of a photo lineup into evidence. The basis of his objection was that the evidence was cumulative because it was presented after four (4) witnesses had testified and identified the appellant. We have said, “The mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion.” Beed v. State, 271 Ark. 526, 542, 609 S.W.2d 898, 909 (1980).

Affirmed.


author: David Newbern, Justice.

text:
    Vickie SCARBROUGH v. CHEROKEE ENTERPRISES
    91-54
    816 S.W.2d 876
    Supreme Court of Arkansas
    Opinion delivered October 14, 1991

      Anthony W. Bartels, for petitioner.

      Barrett, Wheatley, Smith & Deacon, by: Paul Waddell, for respondent.

      Winston Bryant, Att’y Gen., by: R.B. Friedlander, Solicitor Gen., for amicus curiae Arkansas Public Service Commission.

      The Bassett Law Firm, by: W.W. Bassett, Jr., and Gary Weeks, for amicus curiae Tyson Foods, Inc.

      Wright, Lindsey & Jennings, for amicus curiae Associated Industries of Arkansas, Arkansas State Chamber of Commerce, and Arkansas Self Insurers Association.

      Kemp, Duckett, Hopkins & Spradley, for amicus curiae Arkansas Motor Carriers Association.
   David Newbern, Justice.

This is a workers’ compensation case in which we review a decision of the Arkansas Court of Appeals. The parties and amici curiae have, at our request, submitted briefs on the question of the appropriate standard of review of fact determinations in such cases. Our decision leaves unchanged the “substantial evidence” standard but saves for another day the question whether a constitutional violation may result when the Workers’ Compensation Commission and a reviewing court are permitted to ignore the findings of an Administrative Law Judge, the only adjudicator to see and hear the witnesses.

Vickie Scarbrough was injured while working as a housekeeper for Cherokee Enterprises. She filed a workers’ compensation claim, and an Administrative Law Judge (ALJ) awarded temporary total disability benefits, but not permanent total disability benefits. Scarbrough later filed another claim contending she was entitled to permanent total disability benefits. The ALJ again found no permanent disability, and the Commission affirmed.

The Court of Appeals affirmed the Commission, holding there was substantial evidence to support the finding. Scarbrough v. Cherokee Enterprises, 33 Ark. App. 139, 803 S.W.2d 561 (1991). In its opinion, the Court of Appeals alluded to the problem of the lack of direct contact between the Commission and the witnesses, citing an earlier minority opinion which had raised the issue. Webb v. Workers’ Compensation Comm., 292 Ark. 349 at 352, 730 S.W.2d 222 at 726 (1987) (Newbern, J., concurring). See also Hamby v. Everett, 4 Ark. App. 52 at 55, 627 S.W.2d 266 at 267 (1982) (Glaze, J., dissenting). A petition for review was granted to address the question concerning the standard of review in workers’ compensation cases. Scarbrough urges this Court to reverse by adopting a new standard of review by which we would require a finding that the Commission’s decision is supported not just by “substantial evidence” but by “substantial evidence on the record as a whole.” The point of the suggestion is that the Court would be allowed to consider the record compiled by the ALJ and not ignore that Judge’s decision by reviewing only the findings of the Commission. We affirm the Court of Appeals decision.

1. The current standard

The General Assembly has provided that the Court of Appeals may reverse the Commission only on four bases. The one obviously pertaining to factual determinations is, “That the order or award was not supported by substantial evidence of record.” Ark. Code Ann. § 11-9-711 (b)(1)(B)(4) (1987). While the statute has not always been worded just that way, see Act 319 of 1939, § 25(b), the standard today is not different from that of 50 years ago. See, e.g., Williams v. Smith, 205 Ark. 604, 170 S.W.2d 82 (1943).

Prior to 1979, workers’ compensation cases were appealed from the Commission to Circuit Courts and then to the Supreme Court. In applying the substantial evidence standard to a decision of the Commission, this Court wrote that, upon review, “we give the law judge’s findings no weight whatever.” Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The General Assembly, in Acts 252, 253, and 597 of 1979, changed the appellate chain in such cases, eliminating the Circuit Courts from the review process and providing for appeal directly from the Commission to the Court of Appeals, which properly followed the lead we had established in reviewing only the Commission decision and ignoring the findings of the ALJs. See, e.g., Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982). While we have gone so far as to allow the Commission to rely on an ALJ’s stated perceptions of the “demeanor, conduct, appearance, or reaction at the hearing,” Wade v. Mr. C. Cavanaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989), it has not been held that a court may use an ALJ’s remarks to reverse a credibility determination made by the Commission.

2. The suggested new standard

In support of her suggestion that we adopt the “substantial evidence on the record as a whole” standard, Scarbrough cites two cases involving social security benefits, Thomas v. Sullivan, 876 F.2d 666 (8th Cir. 1989), and Gavin v. Heckler, 811 F.2d 1195 (8th Cir. 1987). These federal court cases relied on the standard of review applied by the United States Supreme Court in Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474 (1951). The United States Supreme Court held that in reviewing administrative findings, “[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”

The Gavin, Thomas, and Universal Camera cases were based upon 5 U.S.C. § 706 (1989) which requires federal courts to examine the whole record when reviewing administrative decisions. The Court in the Universal Camera case held Congress left no room for doubt as to the kind of scrutiny to be given Labor Board decisions. Because these cases are based upon a statutory requirement not applicable here, we do not find them persuasive.

In two other jurisdictions, the appellate courts have apparently also been troubled by the problem of ignoring the “credibility” findings of the initial hearing officer. The Supreme Court of Florida addressed the problem in U.S. Casualty Co. v. Maryland Casualty Co., 55 So. 2d 741 (1951), holding the Commission should not reverse findings of fact made by a Deputy Commissioner unless the findings were not supported by substantial evidence. In Powell v. Industrial Commission, 4 Ariz. App. 172, 418 P.2d 602 (1966), the Arizona Court of Appeals held that, when the Commission reversed a factual determination made by a referee, the Court would set aside the Commission’s decision when the weight of the evidence supported the referee’s finding. These cases were based upon the hearing officer’s superior vantage point in making factual findings and judging the credibility of witnesses.

Despite persuasive arguments in favor of the Florida and Arizona approaches, we feel the constraint of stare decisis, especially when dealing with legislative intent in the interpretation of a statute. Knapp v. State, 283 Ark. 346, 676 S.W.2d 729 (1984). Section 11-9-711 (b)(4) requires the Court to affirm the Commission’s decision if it is supported by substantial evidence. This Court and the Court of Appeals have interpreted substantial evidence consistently over the past fifty years. The General Assembly is presumed to have known of our decisions, J.L. McEntire & Sons v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974). It has even codified the language we have used. See Act 25 3 of 1979 and Act 631 of 1981. If we were to reinterpret the term “substantial evidence” at this point to include “on the record as a whole,” we would be overruling precedent without a compelling reason appearing in this case.

3. The due process issue

A reason which might indeed be compelling for holding that the initial fact finder’s determinations of facts where credibility is at issue cannot be ignored would be that it deprives a party of due process of law. One of the amicus curiae has suggested that issue and has contended it is exacerbated by the partisan nature of the selection process for the members of the Commission. One member of the Commission represents employees, another represents employers, and the third is an attorney with no specified further affiliation. Ark. Code Ann. § 11-9-201 (a) (1987). Our amicus cites statistics which, it contends, show how the system of partisan commissioners skews the decision making process, making it something other than an impartial determination of workers’ compensation claims.

The due process question as it relates to credibility issues is, however, not one we can decide in this case. There is no disagreement among the ALJ, the Commission, and the Court of Appeals with respect to the factor in this case.

Affirmed.