author: Tom Glaze, Justice.

text:
    Lloyd COX, V.F.W. Post 7516 v. CITY OF CADDO VALLEY, Arkansas, et al.
    90-251
    806 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Q. Byrum Hurst, Jr., for appellant.

      Henry Morgan, for appellee.
   Tom Glaze, Justice.

This appeal concerns the validity of the Town of Caddo Valley’s ordinance number 80-5, which controlled the licensing and taxing of private clubs serving intoxicating liquors within the town. Ordinance 80-5 required a permit at an annual fee of $250.00 from private clubs serving alcoholic beverages and levied a five percent supplemental tax upon private clubs’ gross receipts derived from charges to members for alcoholic beverages. The ordinance was passed in 1980 pursuant to Ark. Stat. Ann. § 48-1410(b)(2) (Repl. 1977), which gave cities and incorporated towns the authority to levy a permit fee “and/or” supplemental tax in addition to the fee and tax levied by the state. When this statutory provision was codified in 1987, the “and/or” was replaced with “or”. Ark. Code Ann. § 3-9-223(f) (1987).

Because of this change, the appellant claimed that the town only had authority to collect either a permit fee or supplemental tax. The appellee, Caddo Valley, requested that the appellee Arkansas Beverage Control Commission assist in the collection of the appellant’s unpaid fees and taxes, and the Commission held a hearing and ruled to suspend the appellant’s license. Appellant filed suit against the appellees, and the parties stipulated that the town was entitled to the five percent supplemental tax leaving the sole issue of the validity of the permit fee before the trial court. The trial court ruled that the permit fee was valid and that the scriveners had omitted a portion of § 48-1410(b) (2) during the codification, so the original statute governed. We agree, and therefore affirm.

The original statute relied on by the Town of Caddo Valley provided in pertinent part the following:

(I)n addition to the fee and/or supplemental tax as levied herein, any city or incorporated town, or any county in which the permitted premises are located, if located outside the limits of a city or incorporated town, may levy an additional permit fee and/or supplemental tax not to exceed one half O/2) of the amount the fee or rate provided in this Section. . . . (Emphasis added.)

Act 1016 of 1976; Ark. Stat. Ann. § 48-1410(b)(2) (Repl. 1977). While other amendments were made to this 1976 Act in the years following, the language cited above was never changed. In fact, as late as 1987, the general assembly passed Act 949 which authorized a city or incorporated town to levy an additional permit fee and/or supplemental tax. However, after codification, the current provision reads “may levy an additional permit fee or supplemental tax”. Ark. Code Ann. § 3-9-223(f). Clearly, this wording change affects the meaning of the statute and provides the basis for appellant’s argument here that the town cannot charge both an additional permit fee and supplemental tax.

While it is stated that all acts and statutes in effect on December 31, 1987, were repealed by the codification and reenactment of the Arkansas laws, exceptions are provided, and when applicable, the law as it existed on December 31,1987, shall continue to be controlling. Ark. Code Ann. § 1-2-103 (1987). One such exception occurs if the act or statute is omitted, changed, or modified by the Arkansas Code Revision Commission in a manner not authorized by the laws or the constitutions of Arkansas in effect at the time of the omission, change, or modification. Ark. Code Ann. § 1-2-103(a)(3). The Arkansas Code Revision Commission’s use of “or” instead of the language of the Act “and/or” fits this exception. Accordingly, Ark. Stat. Ann. § 48-1410 is still controlling and under ordinance 80-5, the appellant must pay the town’s additional permit fee as well as the supplemental tax.

For the reasons stated above, we affirm.

       In passing Act 949 of 1987, the general assembly reenacted Act 1016 of 1976, because of this court’s holding in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), which questioned the validity of the extended session of the legislature in 1976.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Arkansas v. William P. “Billy” SWITZER
    CR 90-252
    806 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Ron Fields, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellant.

      Appellee, pro se.
   Tom Glaze, Justice.

This case arises from grand jury indictments against appellant, Crossett Municipal Judge William P. “Billy” Switzer, accusing him of the felony offense of public servant bribery, and the misdemeanor offense of hindering apprehension or prosecution. These offenses were alleged to have occurred on August 19,1983, and the indictments were returned on November 21, 1989.

Mr. Switzer moved to dismiss the charges against him, contending the statute of limitations, contained in Ark. Code Ann. § 5-1-109 (Supp. 1989), had run. The trial court agreed. The state appeals the trial court’s decision under A.R.Cr.P. Rule 36.10(b) and (c), stating that error has been committed to the state’s prejudice and that the correct and uniform administration of the criminal law requires review by this court. The state’s procedure complies with Rule 36.10(b) and (c), and we retain jurisdiction because the case presents an issue of significant public interest or a legal principle of major importance and also involves the interpretation of § 5-1-109. See Ark. Sup. Ct. R. 29(4)(b); see also State v. Block, 270 Ark. 671, 606 S.W.2d 362 (1980).

An interpretation and application of § 5-1-109 first requires a brief discussion of testimony given by two witnesses that led to Mr. Switzer’s charges. The first witness, Bennie Miles, testified that he operated four private clubs and sold marijuana for a Sam Phillips. Miles said that Phillips had Miles take thousands of dollars to Switzer every Monday. He also said that he delivered alcohol to Switzer as a gift from Phillips. Miles testified that Phillips always knew when the police were going to raid his clubs.

Glenda Long, a deputy municipal court clerk, also testified against Switzer. She was romantically involved with Switzer from 1981 to 1986, and worked as his employee from 1981 to 1987. Long testified that he physically and mentally abused her, and she was afraid she would lose her job if she ceased seeing him. She claimed she saw Switzer take bribes or whiskey from bootlegers in Ashley County. She added further that, in August of 1983, Switzer warned Sam Phillips that search warrants had been issued to search his business. Long testified that she prepared an affidavit for arrest warrant which covered her knowledge of these crimes. Other evidence, however, showed that she never gave this information to law enforcement authorities. Instead, she hid the affidavit at her residence. The affidavit was discovered nearly six years later in August of 1989 when a deputy sheriff, David Oliver, found it during his search of Long’s house. At the time, Oliver was investigating a homicide for which Long was apparently charged.

In view of the foregoing facts, the state argues that, while the crimes with which Switzer was charged occurred in 1983 and the indictments were not returned until 1989, the statute of limitations did not actually commence until Switzer’s alleged misconduct was discovered in 1989. The state relies on § 5-1-109 which in relevant part provides as follows:

(a) A prosecution for murder may be commenced at any time.
(b) Except as otherwise provided in this section, prosecutions for other offenses must be commenced within the following periods of limitation after their commission:
(1) Class Y and Class A felonies, six (6) years;
(2) Class B, C, or D or unclassified felonies, three (3) years;
(3) Misdemeanors or violations, one (1) year.
(c) If the period prescribed in subsection (b) has expired, a prosecution may nevertheless be commenced for:
(1) Any offense involving either fraud or breach of a fiduciary obligation, within one (1) year after the offense is discovered or should reasonably have been discovered by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense; and
(2) Any offense that is concealed involving felonious conduct in office by a public servant at any time within five (5) years after he leaves public office or employment, or within five (5) years after the offense is discovered, whichever is sooner, but in no event shall this provision extend the period of limitation by more than ten (10) years after the commission of the offense. (Emphasis added.)

After reading the foregoing provisions, the trial court held the one-year statute of limitations for misdemeanors and the five-year limitations for a public servant offense barred the state’s right to file the two offenses with which Switzer was charged. Although provisions (c)(1) and (2) allow additional time for the filing of offenses involving fraud, breach of fiduciary obligations and public servant bribery the trial court held those exceptions did not apply here because Long, as a deputy municipal court clerk, was a public officer sworn to uphold the laws of Arkansas and had personal knowledge on August 19, 1983, of the offenses with which Switzer was charged. In terms of provisions (c)(1) and (2), the trial judge found that Long “discovered” Switzer’s criminal conduct in August of 1983, and as a public official, she had the legal duty to represent the state, the aggrieved party, to assure timely prosecution was taken against Switzer. We must disagree.

Until now, this court has not been asked to define “aggrieved party” in the criminal law context or to determine who, under the language of § 5-1-109(c)(1), has a legal duty to represent an aggrieved party. In Blacks Law Dictionary, “aggrieved party” is defined as follows:

One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word “aggrieved” refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of a burden or obligation.

In considering the above definition in a criminal context, an aggrieved party would be the victim of the crime. Thus, under the circumstances here, Long clearly is not the victim. Instead, more appropriately, when considering the offenses involved, the state or public is the victim — or aggrieved party, as that term is used in § 5-1-109(c)(1). We then turn to the question reached by the trial court below and decide whether it was correct in deciding that Long had a legal duty to represent the state to see that appropriate charges were timely filed against Switzer.

First, Long did not discover the criminal misconduct information concerning Switzer in her capacity as court clerk, but instead learned of it as a result of her intimate relationship with him. Second, if she had discovered such information in her capacity as court clerk, her duties were merely ministerial or administrative in nature, and she had no duty or authority to investigate or prosecute criminal activities.

Finally, the California Appellate Court in People v. Kronemyer, 189 Cal. App. 3d 314, 234 Cal. Rptr. 442 (1987), considered the meaning of its law in view of several other state statutes of limitations containing language (similar to Arkansas’s), referring to persons “with the legal duty to represent an aggrieved party.” The court construed that language to limit the class of persons who had a legal duty which could trigger the statute of limitations to those persons who are either the direct victim, a person with a legal duty to report the offense, or a person standing within a legal relationship to the direct victim which gives rise to a duty in law to act in the victim’s behalf. The California court further stated that such statute of limitations language is not designed to influence persons who are not otherwise motivated to report suspicious conduct to do so. Rather, it is to prevent persons directly affected by the crime, or those persons who have a legal duty to investigate and timely prosecute criminal activities, from denying a suspected criminal a speedy trial. Id.

As previously mentioned, Long is not authorized by law to represent the state in the context of § 5-1-109(c)(1), nor is she an aggrieved party under that provision. However, either Deputy Sheriff Oliver or the grand jury can be said to have had a legal duty to report or investigate Switzer’s possible criminal misconduct. As we read the record, Oliver, in August of 1989, was the first person who discovered information (Long’s affidavit) bearing on Switzer’s criminal culpability, and the grand jury was next in learning of this information through the testimony of Miles and Long on November 21, 1989. Either way, Mr. Switzer was charged well within the extended period of limitation provided under the terms of § 5-1-109(c)(1) and (2).

For the reasons stated above, we hold that the trial court erred in its construction of § 5-1-109 and dismissal of the state’s charges.


author: Robert L. Brown, Justice.

text:
    Laverne BOLSTAD and Nancy Bolstad v. Priscilla PERGESON
    90-361
    806 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Green & Cook, by: Don Lloyd Cook II, for appellant.

      Priscilla Pergeson, for appellee.
   Robert L. Brown, Justice.

This case comes to us on appeal from a judgment in favor of appellee Priscilla Pergeson for damages done to her car by a dog owned by the appellants Laverne and Nancy Bolstad. The amount of the judgment was $312.

The facts are these. On the night of October 21, 1989, the appellee was en route in her car to the V.A. Medical Center in Fayetteville with two relatives when she stopped at a stop sign in front of the hospital. While stopped, she saw a dog running toward her car in hot pursuit, apparently, of a squirrel. The dog jumped from the curb and crashed into the appellee’s side of the car, which resulted in a dent in the driver’s door about three or four feet from the ground. After her car was struck, the appellee and her companion saw a black-and-white dog running away from the car and back toward the hospital.

The appellee went into the hospital and told a hospital security guard what had happened. The guard had already been alerted to the fact that a dog was loose on the premises. The appellee and the guard went out into the parking lot and found a car with a black-and-white Boston bull terrier sitting inside. All of the car windows were down.

The security guard and the appellee waited for the owners of the dog. The Bolstads, who are husband and wife, eventually appeared. Both of the Bolstads work at the V.A. Medical Center and were there on a personnel matter. When told what had happened, Mr. Bolstad was incredulous and examined the dog for injuries. He found none.

Mr. Bolstad admitted that he had brought the dog to the hospital on occasion, and that he would let him out of the car and “he’d chase a squirrel a couple of times.” He further testified, “A lot of squirrels and a lot of dogs run through there [V.A. Medical Center premises] cause it’s open on both ends, and I worked up there.” According to the testimony of one of the passengers in the appellee’s car, Wilma Dobbs, the dog leapt from the car, again, and started chasing a squirrel, while she and the appellee (and perhaps others — the record is unclear) were examining the damage to the appellee’s car.

The appellee filed a claim for $500 for vandalism in the Prairie Grove Municipal Court on October 30, 1989. The municipal judge gave her a judgment in the amount of $312.23 on March 7, 1990, and the Bolstads appealed to circuit court. A bench trial was held on June 21, 1990, and the circuit judge entered judgment in favor of the appellee in the amount of $312.00. In rendering his decision from the bench, the circuit judge referred to the applicability of an old Washington County ordinance which, he said, “makes owners of dogs who cause damage that are running at large in effect strictly liable for the damages. . . .” According to the circuit judge this ordinance gave the appellee a cause of action. Earlier, the judge had made reference to a Fayetteville leash law which, according to the judge, requires that dogs at all times be kept within the owner’s property or restrained.

We affirm the circuit judge’s decision, but not on the legal theories espoused from the bench.

City and County Ordinances

The appellee, who appeared pro se at trial, was prepared to introduce the Fayetteville ordinance containing the leash law into evidence, when the circuit judge announced that he would take judicial notice of the ordinance as the applicable law and that introduction of it was not necessary. The Bolstads’ counsel did not object to the judge’s position on introduction.

We have held that courts cannot take judicial notice of city ordinances. See Asher v. City of Little Rock, 248 Ark. 96, 449 S.W.2d 933 (1970); see also Ark. Code Ann. § 14-55-402(a) (Supp.1987). The circuit judge was in error when he did so in this case. The net effect of the judge’s action is that there is nothing in the record showing what the Fayetteville leash law specifically says.

The circuit judge further was in . error when he referred to the applicability of a Washington County ordinance dealing with livestock “or any other animal” running at large and destroying crops. This ordinance is not in evidence, but, moreover, the application of a livestock ordinance to a domestic pet is tenuous at best.

The court finally erred in suggesting that strict liability was the legal theory for recovery in this case. Strict liability pertains only to situations where vicious animals, including vicious dogs, are involved. See Prosser & Keaton on Torts, § 76, pp. 538-543 (5th Ed. 1984). Ffere, that is not the case. Negligence, rather, is the appropriate legal theory.

Violation of the Fayetteville leash law would be some evidence of negligence. See Bridgforth v. Vandiver, 225 Ark. 702, 284 S.W.2d 623 (1955); see also AMI, Civil, §§ 601 and 903 (3d Ed. 1989). As already mentioned, we do not have that ordinance before us in the record. Nevertheless, we are mindful of the fact that the Bolstads’ counsel did not object to the judge’s taking judicial notice of that ordinance, and this court has previously held that failure to object to the manner in which an ordinance was presented to the court constituted waiver of a formal introduction. Sharp v. Booneville, 177 Ark. 294, 6 S.W.2d 295 (1928) (counsel handed the ordinance to the judge to read; it was never introduced into evidence). We further note that the appellee recited the pertinent parts of the ordinance in her brief, and we will consider that as a supplemental appendix offered by her. The ordinance prohibits animals, including dogs, from running at large within the Fayetteville city limits and states that it will be unlawful for animal owners to permit this activity. The ordinance, by Mr. Bolstad’s own admission, was violated in this case, and we consider that violation some evidence of negligence.

The Bolstads finally argue that the common law duty of reasonable care should apply to this case, and that they, in fact, exercised reasonable care. In addition, since the dog had never shown a propensity to damage vehicles, the accident to the appellee’s car was entirely unforeseeable, according to the Bolstads. We agree to the extent that a penchant for crashing into cars had not previously been exhibited by the dog. But certainly the dog had run at large before, chased squirrels and the like, all of which was contrary to the city’s public policy as set forth in the ordinance.

We have held as recently as this year that it is not necessary to foresee a particular injury, but only to foresee that the general act or omission is likely to cause injury. See Catlett v. Stewart, 304 Ark. 637, 804 S.W.2d 699 (1991). This state’s AMI civil instruction says an owner “has a duty to use ordinary care to keep his animals from running at large when he knows or reasonably should know that such animals are likely to cause injury or damage to others.” AMI, Civil, 1601 (3d Ed. 1989); see also Restatement (Second) of Torts § 518, Comment j (1977). It accurately sets forth the common law of negligence which applies to owners of animals running at large. Here we cannot say that a dog running at large and chasing squirrels, with all the disruption that entails, either in a parking lot or on a city street did not raise a reasonable likelihood of injury under common law.

It is clear to us in this case that the circuit judge reached the right result for the wrong reasons. Because he reached the right result, statement of the wrong rationale for the result does not prejudice the Bolstads but merely constitutes harmless error. See McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978).

Affirmed.

Holt, C.J., concurs.

Glaze, J., dissents.


text:
    James Marcus SMITH v. CITY OF LITTLE ROCK
    CR 91-53
    806 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991
    [Rehearing denied April 29, 1991.]

      Sherman and James, by: Paul J. James, for appellant.

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

The appellant, James M. Smith, appeals his convictions for driving while intoxicated and driving left of the center line. He raises two arguments for reversal: 1) the arrest was not valid because the arresting officer did not meet the minimum law enforcement standards and did not have his certificate of appointment with him at the time of arrest; and 2) the arresting officer was without authority to make the arrest.

We find no merit in the appellant’s arguments, and we affirm the trial court’s decision.

The facts are these. On October 17, 1989, at 1:56 a.m., the appellant was arrested and ticketed by Gregory Birkhead, a campus patrolman employed by the University of Arkansas at Little Rock. The patrolman came in contact with the appellant at the intersection of 26th Street and Fair Park Boulevard within the city limits of Little Rock. Fair Park Boulevard runs adjacent to UALR. The appellant was driving north on Fair Park Boulevard at a slow rate of speed, according to the patrolman, and then stopped in the street without a stop sign. The patrolman further observed him “weave left of the center line a couple of times,” while proceeding down the street at a rate of speed of between five and ten miles per hour. The patrolman activated his blue lights, and the appellant turned east on 29th Street. After traveling for one more block, the appellant stopped at 29th Street and South Tyler, which was off campus and on a street not adjacent to the campus. The patrolman testified that the appellant almost fell when he got out of his car. He also testified that the appellant smelled strongly of alcohol and admitted his guilt. The appellant was later administered a blood-alcohol test and registered .25%.

The patrolman did not radio the city police or the Pulaski County Sheriff’s Department for assistance in the arrest. He also did not have his certificate of appointment with him, though it was in his personnel file. Because his FBI fingerprint check had not been completed, he had not satisfied the minimum law enforcement standards when he arrested the appellant.

The patrolman issued a ticket and complaint to the appellant for driving while intoxicated (first offense) and driving left of center. On December 12, 1989, the appellant was convicted of both offenses in Little Rock Municipal Court. Appealing his convictions to Pulaski County Circuit Court, the appellant was found guilty after a bench trial on May 11,1990, and sentenced to one day in jail and fined $500 plus court costs. The trial court also suspended the appellant’s driving privileges for ninety days and ordered him to complete an alcohol education program. From that judgment, this appeal arises.

The appellant first argues that failure to meet the minimum standards rendered the arrest an invalid act under Ark. Code Ann. § 12-9-108(a) (1987). We do not agree.

Act 44 of 1989 enacted by the Arkansas General Assembly provides that actions taken by non-qualified officers “shall not be held invalid merely because of the failure to meet the standards and qualifications.” We have recently held in a case involving a DWI arrest by an unqualified officer that Act 44 did not violate the ex post facto doctrine of either the state or federal constitution. Ridenhour v. State, 305 Ark. 90, (1991); see also Collins v. Youngblood,_U.S__, 110 S.Ct. 2715 (1990).Our opinion in Ridenhour decides the issue of the arrest’s validity in the city’s favor, and we affirm the trial court on that point.

The appellant asserts, as well, that Act 44 of 1989 is unconstitutional because retroactive application of the legislation violates his due process rights. This argument, however, was not raised below, and we do not address issues, including constitutional issues, for the first time on appeal. See Kittler v. State, 304 Ark. 344, 802 S.W.2d 925 (1991).

We also find no merit in the appellant’s contention that the patrolman’s failure to have his certificate of appointment with him was fatal to the arrest. To be sure, the Code requires that a security officer carry on his person the certificate at all times. Ark. Code Ann. § 25-17-304(e)(1) (1987). Yet at the time of arrest the patrolman’s authority as a peace officer was not in question. He activated the blue lights on his patrol car, which resembled a standard police car. He had been issued a badge and nameplate and, presumably, was wearing both when the arrest occurred. He was also carrying an identification card with him. Though he was technically in violation of the statute, the error was harmless because the appellant failed to demonstrate any prejudice to him resulting from the certificate’s absence. See Kittler v. State, supra. We affirm the trial court’s holding on this issue.

The final question is whether the patrolman was within his jurisdiction, when he first observed the appellant, and whether that justified the arrest. The relevant statutes limit the patrolman’s authority to certain property in and around the campus. “Property” is defined as that “owned by or under the control of the institution and shall include all highways, streets, alleys, and rights-of-way that are contiguous or adjacent to the property owned or controlled by the institution.” Ark. Code Ann. § 25-17-301(1) (1987). [Emphasis ours.] A campus patrolman is further authorized to maintain order as a peace officer, with accompanying arrest powers, on the grounds and streets “under the control of the institution employing him.” Ark. Code Ann. § 25-17-305 (1987).

At trial the appellant introduced a map of the UALR campus as an exhibit. The map shows two University buildings adjacent to Fair Park Boulevard: the Children’s Center at 26th Street and the University Court Apartments at 32nd Street. Because these buildings form part of the campus in the record before us and because Fair Park Boulevard runs adjacent to the buildings (indeed, the patrolman first observed the appellant at the intersection in front of the Children’s Center), we hold that the patrolman was within his jurisdiction at the time he first observed the appellant.

The arrest, however, was made one block off Fair Park Boulevard on a street not adjacent to the campus. Arkansas statutes, nevertheless, do contemplate arrests made in fresh pursuit for any criminal offense committed in the presence of any peace officer. Ark. Code Ann. § 16-81-301 (1987). The doctrine of fresh pursuit at common law enabled an officer to pursue a felon into another jurisdiction. 5 Am. Jur. 2d, Arrests, § 51, p. 743 (1962). Arkansas law expands the definition to pursuit of a person who has committed “any criminal offense in this state in the presence of the arresting officer. . . .” Ark. Code Ann. § 16-81-303 (1987). This definition is easily broad enough to embrace misdemeanors.

A campus patrolman is a peace officer under Arkansas law. See Ark. Code Ann. § 25-17-305(b) (1987). In the case before us the pursuit began within the patrolman’s jurisdiction, that is, on a street adjacent to UALR. Traffic offenses had been committed in his presence with the appellant stopping his car on the street and then weaving left of the center line. See Ark. Code Ann. §§ 27-51-301, 27-51-302 (1987). But, more importantly, under such circumstances the patrolman could form a reasonable belief that the appellant was intoxicated and legitimately detain him under our rules. See A.R.Cr.P. Rule 3.1; see also Dacus v. State, 16 Ark. App. 222, 699 S.W.2d 417 (1985) (officers had reason to suspect intoxication due to erratic driving.)

With this firsthand information and because he began pursuit within his jurisdiction, the patrolman was well within the bounds of his authority when he pursued the appellant for four blocks and made the arrest. We conclude that his actions constituted fresh pursuit and that the convictions should stand.

The trial court’s decision is affirmed.


text:
    WAL-MART STORES, INC. v. Edith Ann KELTON and Dale T. Kelton
    90-343
    806 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Daily, West, Core, Coffman & Canfield, by: Ben Core, for appellant.

      Stephen M. Sharum, for appellees.
   Robert L. Brown, Justice.

This is an appeal of a slip and fall case. Appellant Wal-Mart Stores, Inc. asserts that there was insufficient evidence for the trial court to award appellee Edith Ann Kelton judgment for $20,973 for medical expenses following a jury trial.

We affirm the trial court’s judgment.

On September 3, 1988, at 10:10 a.m. appellees Edith Ann Kelton and Dale T. Kelton, who are married, purchased a few items at a Fort Smith Wal-Mart store. The Keltons were accompanied by Edith Ann Kelton’s sister, Martha Sue Nichols. It was raining and, according to the Kelton and Nichols, a puddle of water had collected inside the store between the checkout counter and the exit door. Edith Ann Kelton slipped on the water when leaving (her sister said she fell) and injured her shoulder and lumbar back.

The Keltons and Nichols left the store after the accident, went to their car in the parking lot, but then returned minutes later and told the assistant manager on duty what had happened. The water was still there, according to Mrs. Kelton. The Keltons gave their address and telephone number to the assistant manager. No customer incident report was completed by any WalMart personnel. After the Keltons filed a complaint in court some five months later, Wal-Mart conducted its first investigation into the incident.

A jury trial was held on July 31, 1990. Edith Ann Kelton described the collected water on the floor: “It was all spread out. It looked like tracks had been run through it.” Later she said the water was “spread out around me . . . like it had been trampled in or something, it was all around there.” She also testified that Wal-Mart employees knew the water was there. Her sister testified that she felt a drop of water hit her face inside the store at the time of the incident. Dale Kelton said at trial that she saw that people had walked through the water “and splashed it around.” He added: “I seen tracks leading to the door.” A Wal-Mart witness did verify that Wal-Mart employees came into work through the exit door of the store. A tile was missing in the store’s ceiling, according to Mr. Kelton. Wal-Mart employees contradicted this testimony.

At the trial’s conclusion, one verdict form completed and signed by the jurors found for the defendant Wal-Mart and against the Keltons. A second verdict form awarded Edith Ann Kelton $20,973 for medical expenses. The trial court polled the jury on the two verdicts and the seeming inconsistency. The jury returned to the jury room and later submitted the first verdict with the names of all three parties crossed out. The verdict awarding Mrs. Kelton damages was resubmitted unchanged. No further objection was made by Wal-Mart’s counsel to the two verdict forms.

Sufficiency of the Evidence

Wal-Mart moved for a directed verdict at the close of the appellees’ case and then again at the close of all the evidence. Both motions were denied. Wal-Mart then moved for a new trial after the jury verdict and alternatively requested other post-judgment relief as well. That motion was never decided. In the directed verdict motions and motion for a new trial and other post-judgment relief, questions about the sufficiency of the evidence were raised.

In addressing the sufficiency issue we must first view the evidence in the light most favorable to the party against whom the verdict is sought and give that evidence the highest probative value, taking into account all reasonable inferences that can be derived from it. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Id.; see also Green v. Gowan, 279 Ark. 382, 652 S.W.2d 624 (1983). Amotion for a directed verdict should be denied only when there is a conflict in the evidence, or when the evidence is such that fair minded people might reach different conclusions. Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984). Under those circumstances a jury question is presented and a directed verdict is inappropriate. Id.

It is not this court’s province to try (or retry) issues of fact. Instead, this court examines the record to determine if there is substantial evidence to support the jury verdict. B-W Acceptance Corp. v. Norman Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Substantial evidence is defined as “that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture.” Kinco., Inc. v. Schueck Steel, Inc., 283 Ark. 72, 76, 671 S.W.2d 178, 181 (1984).

We have previously described the proof necessary for a plaintiff to prevail in a slip and fall case. The plaintiff must prove:

. . .either (1) that the presence of a substance upon the floor was the result of the negligence on the part of the appellee or (2) that the substance has been on the floor for such a length of time that the appellee’s employees knew or reasonably should have known of its presence and failed to use ordinary care to remove it.

Dye v. Wal-Mart Stores, Inc., 300 Ark. 197, 198, 777 S.W.2d 861, 862 (1989).

Wal-Mart vehemently argues that there was no proof of a foreign substance on the floor due to its negligence and further no proof that a substance, if any, remained on the floor for a length of time to evidence its failure to use ordinary care. Wal-Mart cites two other cases in support of its argument — Mulligan’s Grille, Inc. v. Aultman, 300 Ark. 544, 780 S.W.2d 554 (1989); and Skaggs Companies, Inc. v. White, 289 Ark. 434, 711 S.W.2d 819 (1986). Both cases are distinguishable. In Aultman there was no proof of any foreign substance presented to the jury. In White the plaintiff did testify about a mystery substance on the floor, but there was no testimony of what the substance was or how it got there. Moreover, in Dye v. Wal-Mart Stores, Inc., supra, there was no testimony by the plaintiff that there was any substance on the floor at the time and place she fell.

Testimony was presented at trial to support the Keltons’ claim. It was raining on the day in question. Water was on the Wal-Mart floor between the counter and the exit door. Wal-Mart employees entered the store through this door. There were foot tracks through the water on the floor. One witness felt a water drop hit her face. Another saw that a tile was missing in the ceiling. The water was still there when the Keltons returned. No incident report was completed by Wal-Mart personnel. No investigation was done by Wal-Mart until five months later.

Though some of this testimony was contradicted by WalMart witnesses, it collectively constitutes substantial evidence. The jury could readily infer that water had collected inside the building on the floor for an undue period of time and failure to wipe the floor clean or warn of its presence was a breach of ordinary care and, therefore, negligence.

We have examined the record to determine if there is substantial evidence to support the jury verdict, as we are required to do. See B-W Acceptance Corp. v. Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Based on the evidence presented to the jury, we cannot say as a matter of law that the jury erred.

Instructions

Wal-Mart advances additional error based on the refusal of the trial court to give two of its proffered instructions:

Proffered No. 13
No presumption of negligence arises from the mere fact that a person sustains a fall while in a business establishment.
Proffered No. 14
A business establishment is not an insurer of its patrons or business invitees against any and all hazards which might be encountered on its premises.
The trial court did give AMI 603 at Wal-Mart’s request:
AMI 603
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.

Though Wal-Mart is correct that its proffered instructions accurately reflect two of our case decisions, failure to give those instructions is not error when an AMI instruction covering the same subject matter is on point. See Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971). There is, too, our longstanding preference in favor of AMI instructions over non-AMI instructions. Per Curiam Order (April 19,1965). AMI 603 clearly preempts Wal-Mart’s proffered No. 13 and is arguably broad enough to cover proffered No. 14 as well. Reference, furthermore, to an insurer’s status in No. 14 could have been confusing to the jury. The trial court did not abuse its discretion in refusing to give either instruction.

The trial court did give two AMI instructions that, in part, are duplicative:

AMI 1104
In this case Edith Ann Kelton was a business invitee upon the premises of Wal-Mart Stores, Inc.
Wal-Mart Stores, Inc., owed Edith Ann Kelton a duty to use ordinary care to maintain the premises in a reasonably safe condition.
AMI 1105
Edith Ann Kelton contends that she slipped on a watery substance which was present on Wal-Mart Store, Inc.’s premises. Wal-Mart Stores, Inc., owed Edith Ann Kelton a duty to use ordinary care to maintain the premises in a reasonably safe condition. To establish a violation of this duty, Edith Ann Kelton just prove either that the presence of the substance upon the floor was the result of negligence on the part of Wal-Mart Stores, Inc., or that the substance had been on the floor for such a length of time that Wal-Mart Stores, Inc. knew or reasonably should have known of its presence and failed to use ordinary care to. move it.

Wal-Mart contends the double reference to the duty of ordinary care was prejudicial. We do not agree. At worst any prejudice to Wal-Mart was minimal and the error harmless. It certainly does not warrant reversal of the jury’s verdict.

Inconsistent Verdicts

There is, finally, the issue of dual verdicts which are alleged to be facially inconsistent: one verdict form appears to be a defendant’s verdict; the second awards Edith Ann Kelton $20,973 for medical expenses. When told by the trial judge to resolve this inconsistency, the jury returned to the jury room and struck the parties’ names in what had appeared to be a verdict in favor of Wal-Mart. The verdict awarding damages for medical expenses to Edith Ann Kelton was returned unchanged.

It appears to us that the jury attempted to void the verdict form for Wal-Mart and uphold its damage award to Edith Ann Kelton. In any case, counsel for Wal-Mart did not object after the jury returned a second time, and the time to correct or clarify an irregularity in the verdict is before the time that the jury is discharged. See Center v. Johnson, 295 Ark. 523, 750 S.W.2d 396 (1988). This issue is not appropriately before us on appeal.

The judgment of the trial court is, therefore, affirmed.

Affirmed.

Dudley and Corbin, JJ., not participating.


text:
    James Ross WEAVER, Jr. v. STATE of Arkansas
    CR 90-203
    806 S.W.2d 615
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Greene Law Offices, by: Bill Luppen, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This is .an appeal by appellant James Ross Weaver, Jr. from a conviction for capital murder and a sentence of life without parole in connection with the death of John Rogers. In December 1989 the appellant, who is age 19, and Rogers and a third party, Alan Hubbard, were roommates in a house in Little Rock. Ill will developed among the three, apparently relating to money and Rogers’ failure to pay rent for several months. On the evening of December 13,1989, the appellant and Hubbard went to the Catón residence to borrow an instrument which, according to the testimony of Al Catón, Sr., was for the purpose of “doing some collecting.” Catón, Sr. says the appellant made that statement. A baseball bat was first requested, but Catón, Sr. refused. It is not clear whether the appellant or Hubbard made the request, but the appellant was present. Either Hubbard or the appellant then took a tire knocker owned by the Catons.

The appellant and Hubbard returned home that same night at about nine or ten o’clock and found Rogers socializing with a few friends. What happened after that is not altogether clear but the salient points which are not disputed are that Hubbard, during the early morning hours of December 14, 1989, beat Rogers to death with the tire knocker, while Rogers was asleep on the couch. Hubbard then dragged the body to his car and placed the body in his trunk. What is in dispute is the extent of the appellant’s help. The appellant says he did not see the beating but only heard it and saw Hubbard holding the instrument; Hubbard says the appellant was on the couch when it happened. The appellant says he did not assist Hubbard in dragging or carrying the body to Hubbard’s car. Hubbard disputes this.

The appellant did drive with Hubbard to Cabot to dispose of the body and then helped Hubbard clean the house of bloodstains. He also took the tire knocker back to the Catons. The two men then moved out of the house and into an apartment, also in Little Rock.

On December 20, 1989, at approximately 11:30 p.m. two homicide detectives, Stafford and Oberle, and another police car arrived at the new apartment of the appellant and Hubbard and said they were investigating a missing person’s report on Rogers. The detectives had been alerted to Rogers’ absence by his girlfriend, who had contacted the Little Rock Police Department four or five days earlier. The detectives had also received a call from Rogers’ employer who had seen blood on the front porch and front yard of the house and then returned the next day to find that the blood was no longer there. The detectives had investigated the premises earlier on the evening of December 20 before accosting the two men at their new apartment and found articles in the front yard (wood chips and a doormat) with blood on them.

Prior to the visit, the detectives had done a warrant check on both men and found an outstanding traffic warrant, a misdemeanor, on the appellant. At the apartment the detectives told the men that they needed to come to the police station to discuss the missing Rogers, and the men agreed. The appellant was further told that there was an outstanding warrant for his arrest on a traffic charge. The appellant rode with the detectives because of the warrant, and Hubbard rode in his own car. Detective Stafford testified that the men “volunteered” to go to the station, but the detectives made sure the men went to the station separately so they could not develop “a story.” Both detectives admitted that the appellant was not free to leave, had he decided not to go to the station voluntarily. Hence, neither detective told the appellant that he was free to go.

On the way to the police station, the appellant told the detectives “the whole story.” There is a conflict in testimony, however, as to when the appellant received his Miranda warnings. The appellant does not recall receiving them at all in the squad car or ever being told he was a suspect for murder. Detective Oberle first testified that Detective Stafford advised the appellant of his rights “while we were in the car” and then testified, “Stafford told him his rights before we started talking to him about it orally.” Oberle further said the appellant was advised of his rights even though they “really didn’t know what crime had been committed.” He admitted that it was not standard procedure to give Miranda warnings for a traffic violation. Detective Stafford’s testimony is less precise:

Counsel: When you got him in the car, you said you read him his Miranda Rights.
Detective: I didn’t immediately. I’d say about 65th and somewhere on 65 th Street, between Butler Road and Geyer Springs.
Counsel: What crime did you say that he was — had been charged with?
Detective: Well, I noticed his demeanor about him. He was very nervous. I did ask him when was the last time he saw John. His statement, I forget, didn’t coincide with what I already knew, and then about that time, I felt like there was foul play. Yes, and at that time I did advise him of his rights.
Counsel: Did he first deny knowing anything about this?
Detective: He said — He made a statement first that him and somebody got into a fight on Young Road that evening. He didn’t know who was involved in the fight, but they took John with them.
Counsel: Did you tell him, then, that you really knew what had happened?
Detective: I said I felt like I know better than that. Because I said there was other evidence at the house that disproves what you’re saying. And I can’t remember all the exact words, but between the time we got on the interstate and the time we got down to the police station, I mean, we knew the whole story.
Counsel: He then made a statement?
Detective: Yes, sir.
Counsel: In the car?
Detective: Yes, sir.

When he advised the appellant of his Miranda rights in the car, Detective Stafford said he considered him under arrest from that point forward.

At the station shortly after midnight, the detectives gave the appellant his Miranda rights and the appellant said he understood his rights and signed a waiver form. He then made a twenty minute taped statement. The statement at the station occurred within an hour of the initial visit to the appellant’s apartment. Hubbard gave a statement to the detectives about thirty minutes later. Then the appellant, Hubbard, and several additional detectives traveled to Cabot and retrieved Rogers’ body.

The appellant was charged with capital murder on January 5, 1990, and was tried two months later on March 6,1990. Prior to trial the appellant filed a motion to suppress his taped statement on grounds that it was tainted by a pretextual arrest and an earlier confession where Miranda was violated. The motion was denied. He also sought a continuance the day before the trial due to the unavailability of Hubbard, a prospective witness, who was undergoing a psychiatric evaluation at the State Hospital. That motion also was denied.

At trial, the prosecutor said in his opening remarks to the jury that they would hear the statement given by the appellant. The defense counsel did not object to the prosecutor’s remark. Defense counsel then described the contents of the appellant’s confession in his opening statement. The prosecutor, however, later informed the court that he did not intend to introduce the appellant’s statement at trial, and he did not do so. The only reference to the appellant’s statement during the state’s case was Detective Stafford’s testimony that the appellant had directed him to where the body was. Defense counsel, again, did not object to this testimony.

Defense counsel did agree with the prosecutor to make Hubbard’s statement to the police a joint exhibit. That gave Hubbard’s version of the events and contradicted the appellant on whether he was in the room when Hubbard bludgeoned Rogers to death and whether he helped carry out the body.

The appellant was convicted of capital murder and sentenced to life without parole. On April 5,1990, he filed a motion for a new trial arguing 1) insufficiency of the evidence and 2) the unconstitutionality of the capital murder statute. That motion was denied on June 12, 1990.

The appellant makes several arguments for reversal. We find that none of them has merit, and we affirm the conviction.

Pretextual Arrest

The appellant first argues that the arrest for a traffic violation was pretextual and effected by the detectives only as a sham to interrogate him. There is no question in this case that the warrant was valid. There is dispute, however, over whether the appellant was arrested on that warrant on the evening of December 20. Regardless of whether he was or not, in light of what the detectives knew before contacting the appellant, they could readily have formed a reasonable suspicion that the appellant had committed a felony under A.R.Cr.P. Rules 2.1 and 3.1. Rogers was missing. Rogers’ employer had seen blood on the appellant’s front porch and yard which was gone the next day. The detectives themselves had found blood on the premises. The appellant and Hubbard had changed residences, shortly after Rogers’ absence. The two men were definitely suspects in the eyes of the detectives.

Under these circumstances and based on what the detectives knew, they had grounds to detain the appellant without arrest for a reasonable time under Rule 3.1 as part of their investigation into foul play. Accordingly, the detectives’ failure to make it clear that the appellant did not have to go to the station for questioning and was free to go at any time is largely irrelevant.

Since the traffic warrant, Which might have been pretextual under different circumstances, was not necessary for detention, the warrant did not taint or color the events that followed. We hold the appellant could have been legitimately detained under A.R.Cr.P. Rule 3.1 for a reasonable period of time and the time detained before arrest was reasonable in this case.

Custodial Statement

We have held that a police inquiry is purely investigatory and proper until the suspect is restrained in some significant way. Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985). We have further said, “[C]ustodial interrogation means not only actual arrest but also any conduct that deprives a person of his freedom of action in any way.” Reeves v. State, 258 Ark. 788, 794, 528 S.W.2d 924, 927 (1975). Custodial statements are presumed involuntary, and the state has the burden of demonstrating their admissibility. Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990); Rose v. State, 294 Ark. 279, 742 S.W.2d 901 (1988); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985). In determining admissibility we review the totality of the circumstances and will reverse only when the trial judge’s finding of voluntariness is clearly against the preponderance of the evidence. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1988).

In the Shelton case, we repeated the test that the United States Supreme Court had recently announced:

It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.” ... A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.

287 Ark. at 328-329; 699 S.W.2d at 731; quoting from Berkemer v. McCarty, 468 U.S. 420, 440, 442 (1984).

The facts of the Shelton case are similar to the facts of this case in many important respects. In that case the defendant, who was age 17, a friend of his, and an older man had burglarized a church, and the defendant and his friend had then watched the older man murder a police officer. The older man was killed in a later shootout with the police. In the meantime investigating officers visited the boys and told them that the older man had killed a policeman. They asked the boys to show them where their parents lived and at one house, the defendant was left in the police car alone with one officer. Miranda rights were not mentioned. The officer urged the defendant to help them locate the older man, whereupon the defendant confessed what he had seen. Later at the police station, the defendant was read his Miranda rights, which he waived in writing, and he then gave a second statement to the police. There was no appreciable lapse of time between the two statements and no substantial change in environment, so as to interrupt or alter the conditions existing during the first statement.

In our decision in Shelton we focused on the place of the questioning and the age and the intelligence of the defendant, and we noted that a police car is a significant factor in finding that a person was undergoing custodial interrogation. We then held that statements by the defendant after the police officer encouraged him to talk were not properly admitted. We further held that the second statement given at the police station should also be excluded. We said on that point, “When the original confession has been made under illegal influence, such influence will be presumed to continue and color all subsequent confessions, unless the contrary is clearly shown.” 287 Ark. at 331; 699 S.W.2d at 733.

In a case similar to Shelton, a teenage defendant, age 19, was not advised of his Miranda rights in advance of the first confession made in his home, but only subsequently in connection with a second confession. Oregon v. Elstad, 470 U.S. 298 (1985). The United States Supreme Court upheld the second confession, saying:

We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

470 U.S. at 314.

In the case before us, unlike Shelton and Elstad, Miranda warnings were given according to the detectives. The two detectives did contradict one another on when this happened, though both testified that it occurred in the squad car. Detective Stafford, who was in a better position to remember because he did the questioning, said the warnings were not given immediately but only after the appellant lied about the whereabouts of Rogers.

The appellant testified that he was never read his rights in the car. He did recall that Stafford referred to bloodstains on the carpet, and, after that, he confessed:

Counsel: Had he read you any Miranda Rights at that point?
Appellant: No, I don’t remember if he had. He did ask me if I knew anything about the disappearance of John Rogers, and at first I did lie to him, and I told him that I didn’t know where he was. And he said that he knew that there was something, you know, there was something else. Because of— He stated that there was bloodstains on the carpet. At that time, I confessed, and I told him the truth.
Counsel: Then what happened? Did they read your Miranda Rights then? In the car?
Appellant: No, I don’t remember that.

The appellant, nevertheless, admits that he was advised of his Miranda rights at the police station minutes later, and he gave a second taped confession which lasted twenty minutes.

In examining the totality of the circumstances, as we are required to do, we cannot say that the appellant’s second confession, which was taped, was tainted by the events surrounding the first. The questioning in the squad car did constitute custodial interrogation and the appellant was 19 at the time and nervous. Moreover, the taped confession followed only minutes later in the police station, which does not suggest a significant interruption in custodial circumstances. Balanced against those circumstances is the testimony of Detective Stafford regarding Miranda and the appellant’s own admission that he confessed after Stafford mentioned the bloodstains on the carpet and said the appellant was not telling the truth about where Rogers was. Stafford says at that point he advised the appellant of his rights and considered him under arrest.

The Shelton case differs from these facts in two respects. First, no warnings were given in Shelton before the first statement. Detective Stafford, however, testified he gave the Miranda warnings. The appellant denies this, but the trial judge gave credence to Stafford’s testimony. Secondly, nothing in the record even suggests that the appellant, though only slightly older than Shelton (19 versus 17), was of marginal intelligence and maturity as Shelton was. That factor was troublesome in Shelton to both the trial judge and this court in deciding the admissibility of the boy’s confession.

We hold, therefore, that the finding of the trial judge on the voluntariness of the taped confession was not clearly contrary to a preponderance of the evidence.

Compelled Testimony

The appellant asserts that the prosecutor’s comment (“You’ll hear the statement James Weaver gave as well”) compelled his counsel to disgorge the contents of the taped confession in his opening remarks. This compulsion, according to the appellant, ran afoul of our previous holding in Clark v. State, 256 Ark. 658, 509 S.W.2d 812 (1974). In Clark, however, the prosecutor referred to the defendant’s taking the stand, and when he did so, defense counsel moved for a mistrial. No reference was made to the defendant’s actually testifying at trial in this case, and a mistrial motion was not made. Defense counsel outlined the appellant’s statement to the jury, apparently, as a matter of trial strategy. He certainly was not required to do this. He had also agreed, before trial, to the joint introduction of Hubbard’s statement, which described Hubbard’s version of the murder, burial, and house cleanup. We find no compulsion to testify under these facts.

Narrowing of Capital Murder Statute

The appellant argues that the trial court should have granted his motion to dismiss, because the Arkansas capital murder statute is unconstitutional in that it fails to adequately narrow the category of death cases and distinguish that narrow category from “non-death” cases. The appellant did not receive the death penalty in this case. Therefore, he lacks standing to point to errors having to do with the jury’s consideration of the death penalty. See Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989).

Overlapping Statutes

The appellant also argues that the capital murder statute is unconstitutional because it makes criminal the same intent found in the first degree murder statute. This overlapping between “premeditation and deliberation” in the capital murder statute and “purpose” in the murder one statute renders the two statutes void for vagueness, according to the appellant. We have also dispensed with this argument in previous cases and uphold those cases today. See Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981).

Continuance

The appellant moved for a continuance the day before the trial on the basis that Hubbard, the actual perpetrator of the bludgeoning, according to the appellant, was undergoing a mental evaluation and was unavailable to testify. Under our criminal rules, the court shall grant a continuance only for good cause. A.R.Cr.P. Rule 27.3. Among the factors to be considered by the trial court are: 1) a movant’s diligence; 2) the probable effect of the testimony at trial; and 3) the likelihood of procuring the witness’s testimony in the event of postponement. See Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973). The decision of whether to grant a continuance lies in the sole discretion of the trial judge, and we will reverse only in cases of abuse. Id.

Here, there is no assurance that Hubbard ever would have testified about his role in the slaying in view of his Fifth Amendment rights against self-incrimination. Also, defense counsel seemed to suggest at the continuance hearing that Hubbard’s acquittal for lack of mental capacity or on some other ground might favorably impact the appellant’s trial. The appellant as an accomplice does not have the right to demand that the principal be tried first. Moreover, accomplices have been found guilty, when the principals have been exonerated. See, e.g., Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985); see also Ark. Code Ann. § 5-2-405(2) (1987).

Finally, the appellant did formally introduce Hubbard’s statement given to the detectives. Admittedly, the statement was not subject to cross-examination, and it further contained inculpatory comments for the appellant. Nevertheless, the defense counsel, on balance, considered Hubbard’s statement favorable to the appellant, and to some extent it brought to the jury’s attention the point that the defense counsel wanted to emphasize — that the appellant’s role was that of an accomplice.

We affirm the trial court’s denial of the continuance under these circumstances.

Sufficiency of the Evidence

The appellant moved for a new trial on the basis that the verdict was contrary to the weight of the evidence. The appellant, however, did not move for a directed verdict at the close of all the evidence. Our rules are clear that failure to move for a directed verdict at the conclusion of the state’s case and again at the conclusion of the case as a whole constitutes a waiver of any sufficiency of the evidence claim. A.R.Cr.P. 36.21(b); see also Hayes v. State, 298 Ark. 356, 767 S.W.2d 525 (1989).

All other objections decided adversely to the appellant have been reviewed under Ark. Sup. Ct. R. 11 (f), and no error has been found.

Affirmed.

Dudley, J., not participating.


author: Per Curiam.

text:
    Clarence HILL v. STATE of Arkansas
    CR 90-192
    805 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Clarence Hill, Pro Se.

      Steve Clark, Att’y Gen., by: John D. Harris, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Clarence Jerome Hill was convicted in the Circuit Court of Jackson County on March 27, 1990, of possession of cocaine, possession of marijuana, possession of drug paraphernalia, and the offense of felon in possession of a firearm. He was sentenced to four terms of six years imprisonment. The terms for marijuana possession, possession of drug paraphernalia and felon in possession of a firearm were ordered served concurrently with each other but consecutively to the term imposed for cocaine possession. Appellant’s retained attorney B. Richard Allen, who had represented him at trial, filed a timely notice of appeal in April. In July appellant filed a pro se motion, supported by affidavit, seeking to be declared indigent and requesting appointment of counsel. The trial court denied the motion, and appellant appealed the order to this court. On November 12,1990, this court issued a writ of certiorari to bring up the record of the hearing held in the trial court on the question of whether appellant was indigent. We subsequently remanded the case for a second evidentiary hearing because the first hearing did not cover all the factors which should be considered when assessing indigency. Hill v. State, 304 Ark. 348, 802 S.W.2d 144 (1991). The record of the second hearing is now before us.

As we said when we remanded this matter, the burden of establishing indigency is on the defendant claiming indigent status. In considering whether an appellant is indigent, which is a mixed question of fact and law, some of the factors to be considered are the following: (1) income from employment and governmental programs such as social security and unemployment benefits; (2) money on deposit; (3) ownership of real and personal property; (4) total indebtedness and expense; (5) the number of persons dependent on the appellant for support; (6) the cost of the transcript on appeal; and (7) the likely fee of retained counsel for the appeal. Hill, 304 Ark. 348, 802 S.W.2d 144. Ablebodiedness and the level of education of the appellant are also given some consideration as is whether the appellant himself paid the cost of the appeal bond or has control or complete discretionary use of funds raised by others for his defense.

Applying the factors for determining indigency to the evidence adduced at the two hearings held on appellant’s indigency, the record reflects that: (1) appellant was last employed at a wage of $ 3.3 5 per hour inl987asaj anitorial assistant as part of a work-release program; the employment ended when appellant completed the five-hundred hours he had been assigned to serve in the program; (2)the $552.00 per month the appellant customarily receives from Social Security was recently reduced to $48 5.00 per month so that the Social Security Administration could recover benefits paid appellant while he was incarcerated; (3) funds on deposit amounted to $13.03 in a checking account; (4) appellant owns a half interest in real property, which is in disrepair, appraised in 1985 at $19,500; (5) appellant’s total indebtedness is $24,712.87, which includes $9,520 for student loans and approximately $8,000 for legal fees and fines; (6) appellant has one daughter, aged nine, for whom he is in arrears $2,750.00 for child support; he is not currently paying child support; (7) the cost of the transcript on appeal is $153.00; (8) the attorney’s fee for the appeal was set by counsel at $2,500; (9) appellant was declared disabled in 1988 because of arthritis and obesity (the person or entity which made the determination of disability was not designated); and (10) when the original appeal bond was set, most of the money was provided by relatives and friends with appellant paying $500.00 himself; the second bond was provided entirely by others. Based on these findings, the trial court concluded at the close of the hearing that appellant was not indigent for the purposes of the appeal of his criminal convictions. After a review of the record of the two hearings held on the question of whether the appellant is indigent, we find cause to reverse the trial court’s determination.

While appellant is not in abject poverty, a defendant need not be destitute to quality as an indigent. Hill, 304 Ark. 348, 802 S.W.2d 144. Appellant’s liabilities far exceed his assets to a degree that it would be unreasonable to assume that he could pay the cost of the appeal and still meet other living expenses. For the purposes of the appeal to this court only, appellant is declared indigent. In his motion to withdraw as counsel, B. Richard Allen states that the partial record designated on appeal has been prepared by the court reporter. A writ of certiorari shall issue this day to bring up the record for lodging within thirty days.

Returning to retained counsel’s motion to withdraw, we find good cause to relieve counsel and grant counsel’s pro se motion for appointment of counsel. Counsel notes that appellant has filed a complaint against him with the Committee on Professional Conduct which is pending. While the filing of a complaint does not in itself warrant relieving an attorney of his obligation to represent a convicted defendant on appeal, there appears to be a history of considerable rancor between counsel and appellant such that it is in the best interest of justice to permit counsel to withdraw. Elizabeth Huggins is appointed to represent appellant.

Reversed; writ of certiorari issued; motion for appointment of counsel granted.


text:
    IN RE PETITION FOR REINSTATEMENT OF Law License of R. Wayne LEE
    90-345
    806 S.W.2d 382
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Cliff H. Hoofman, for petitioner.

      Stephen A. Mathews, for respondent.
   Per Curiam.

The petitioner, R. Wayne Lee, was denied reinstatement to practice law by the Arkansas State Board of Law Examiners (Board) on December 3, 1990. On appeal, Lee claims that the Board’s findings of fact and conclusions of law were clearly erroneous and that he should be reinstated to practice law. We disagree and affirm the Board’s decision.

Lee received a license to practice law in 1978. Between 1984 and 1985, Lee participated with then city attorney R. Jack Magruder III in a scheme to defraud the City of Little Rock (City) by submitting, on at least five occasions, false billing statements for unperformed legal services. The City paid Lee approximately $20,000 in legal fees, which Lee divided with Magruder.

Lee was indicted by a federal grand jury on one count of conspiracy to violate the Federal Mail Fraud Statute and ten counts of violation of the same statute. Lee pled guilty to the conspiracy count, and the latter ten counts were dismissed. This court granted Lee’s subsequent petition to surrender his license on March 3,1986, in which Lee acknowledged he had violated the federal law and Model R. Prof. Cond. 8.4.

Lee was sentenced to imprisonment for twenty months; however, he was released after six months in prison, transferred to a half-way house, and he obtained work as a paralegal and investigator for a law firm in Conway County.

On April 20,1990, Lee filed an application for reinstatement with the Board. The chairperson determined that she was unable to make a decision as to Lee’s eligibility for reinstatement and, pursuant to the Arkansas Rules Governing Admission to the Bar Rule XIII, referred the matter for a hearing. In accordance with our rules, the hearing was conducted before a three member panel, and the transcript was submitted to all Board members for a vote.

The Board, after considering the entire record de novo and with two members voting for reinstatement, one member abstaining, and eight members voting against reinstatement, determined that Lee was not eligible for reinstatement to his license to practice law. Rule XIII; Scales v. State Bd. of Law Examiners, 282 Ark. 578, 669 S.W.2d 895 (1984).

The Board made various findings of fact and conclusions touching on the questions of whether or not Lee had received a pardon, restoration of his rights, and restitution of all monetary losses sustained by third parties. In addition, the Board considered numerous recommendations from responsible persons as to Lee’s current good moral character and mental and emotional stability. In making its final resolution, the Board keyed on Lee’s personal behavior in relation to Rule 8.4 and its commentary, which provides in pertinent part as follows:

It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
* * * *
COMMENT:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud. . . . However, some kinds of offense carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving ‘moral turpitude.’. . . . Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.
* * * *

The Board observed that “the conduct of R. Wayne Lee, for which he was convicted, involved dishonesty, breach of trust, and seriously interfered with the administration of justice and that such conduct undermined the confidence of the public in our system of justice and the legal profession” and concluded:

* * * *
Rule 13 of the Rules Governing Admission To the Bar provides that every applicant for reinstatement of license to practice must be of good moral character and mentally and emotionally stable. The burden of establishing eligibility shall remain with the applicant. The overriding considerations in the question of readmission are the public interest and the integrity of the Bar and the Courts, with due consideration to the rehabilitation of the Petitioner with respect to good moral character and mental and emotional stability. In re Shannon, 274 Ark. 106, 621 S.W.2d 853 (1981). . . . Based upon the record as a whole and considering all of the factors set out in Rule 13 and the Supreme Court’s decision of In re Shannon, supra, R. Wayne Lee has failed to meet his burden of establishing eligibility for reinstatement. . . .

We treat this matter de novo as each case must be examined on its own set of facts. We continue to adhere to the guidelines ennunciated in In re Shannon, supra, and in doing so, we note that Lee violated Rule 8.4 on at least five separate occasions. In each instance, Lee dishonestly received money, breached the trust bestowed upon him as a special attorney for the City of Little Rock, tendered false statements for services rendered, and interfered with the administration of justice by conspiring with the then city attorney to defraud the City and the public, which supports the City with its tax monies. It is hard for us to envision any activity on the part of an attorney or public official that could be more damaging to the administration of justice or more undermining of the confidence of the public in our legal profession.

Lee’s responses to these acts of misconduct and statements as to his “mens rea” during the time frame in question, leaves us with vague and deceptive answers. In reading the record, we are unable to find any real signs of responsibility on his part. For example:

Q When you submitted the first — we’ll describe it as erroneous bill, did you know it was wrong?
A I probably, to be honest with you, didn’t think about it, Chris. I probably didn’t — I probably had — I’ve gone back over that question in my mind a thousand times. And I don’t have any idea. I just don’t know.
Q Well, if you didn’t know it then, then when did you come to the realization — as you’ve indicated, it went on for a period of maybe a year. So you had to submit several erroneous bills.
A Actually, Mr. Magruder just give me the bills to send back to them.
Q However, you knew they were erroneous?
A Right.
Q When did it occur to you that what you were doing was wrong?
A I don’t know that I can answer that. I just didn’t do it after the fifth billing, you know.
Q When did you become aware that you were under investigation?
A The best I remember, at the point that the investigation started, Mr. Magruder had already left the City Attorney’s Office and had been elected Municipal Judge. And they had indicted him. And he came to see me about representing him. And I went to the United States Attorney’s Office and told them, “I’m going to be representing Mr. Magruder in this instance.” And the U.S. Attorney said, “You can’t. You have a conflict.” And I said, “Well, if you’re trying to imply that I have any implication in any of this stuff you’re talking about with him, you’re wrong. I’ll show you all of the bills and give you names, addresses, and phone numbers of all people I’ve ever represented in Traffic Court,” and I did.

And the best of my knowledge, they talked to all of them. And then I couldn’t figure out why he was saying I had a conflict, and then I got a letter from the Federal Grand Jury saying, “You’re being investigated for mail fraud.” And, quite honestly, I hate to admit my stupidity, I didn’t know what mail fraud was. I thought that had something to do with pornography or something. And I couldn’t figure out what the deal was. And I was trying to call down there to find out.

Q At the time you went to talk to the U. S. Attorney, you had aleady submitted five eroneous bills. At that time did you know, in your own mind, that you had done wrong?
A I’m sure if I thought about it, I knew I did wrong, but I had no inkling that that’s — I mean, that was long since past. I had no inkling that that’s what they were talking about. I guess, are you asking me when did the realization hit me?
Q Uh-huh.
A When I got the letter from the Grand Jury and got in contact through my attorney’s office with — the United States Attorney’s Office, and they informed me as to what it was, that’s when I — when the realization hit me that whether or not that’s how, quote, “things are done,” that’s not the right way to do them, and that I had done wrong. That’s when it actually stuck with me that I had committed an error in judgment.

Simply put, we share the Board’s concern with the nature of the conduct for which Lee surrendered his license. This factor is implicit in our consideration of the public interest and the integrity of the bar and courts. The record supports the Board’s finding against Lee’s reinstatement, despite his proffer of evidence in support of his current “good moral character” and “emotional stability.”

The practice of law is a privilege, not a matter of right. Rule XIII provides that the burden of establishing eligibility shall remain with the applicant. The American Bar Association’s Standing Committee on Professional Discipline has stated that the presumption should be against readmission. Model Rules for Lawyer Disciplinary Enforcement’s Executive Summary (adopted in August 1989).

In light of the foregoing factors, we cannot say that the Board’s findings and conclusions of law were clearly erroneous. The decision not to reinstate Lee is affirmed.

Corbin and Brown, JJ., not participating.


text:
    Anthony MONTS v. Hon. Jack LESSENBERRY, Circuit Judge
    CR 91-29
    806 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered April 1, 1991

      Anthony Monts, Pro Se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

On March 22,1989, a felony information was filed in the Circuit Court of Pulaski County charging Anthony Monts with three felony offenses. He has been incarcerated on this, and other charges, since that time. On September 12,1990, Monts filed a pro se motion to dismiss the charges for failure to afford a speedy trial. On January 21, 1991, Monts filed a pro se petition for writ of mandamus in this court, contending that the trial court had failed to act within a reasonable time on the motion to dismiss. The case is scheduled for trial May 2, 1991.

The state acknowledges that a pro se “speedy trial” motion was filed by Monts but that he has no legal right to have the circuit court decide his motion because he was represented by counsel in the case before he filed it. The state attached to its response the trial judge’s affidavit in which he contends that Monts and his attorney have appeared before him since the motion was filed and they specifically informed the court that there was no issue pending which required a pretrial hearing. The state relies on a United States District Court case, United States v. Durden, 673 F. Supp. 308 (N.D. Ind. 1987), which held that a defendant who has chosen to be represented by counsel is not entitled to file pretrial motions without the aid of counsel. We have not directly addressed the question of whether a defendant who has accepted counsel, either by retaining an attorney or by having one appointed, is entitled to have the court consider pro se pretrial motions.

The Arkansas Constitution, Art. 2, § 10, gives a defendant in a criminal case “the right to be heard by himself and counsel. . . .” This wording is typical of many state constitutions. Footnote 10 to the majority opinion in Faretta v. California, 422 U.S. 806 (1975), the prevailing case on the right of a defendant to self representation, indicates that twenty-six other states have constitutional provisions granting to the accused the right to be heard or to defend in person and by counsel. 422 U.S. at 813. The use of the conjunction “and” between “himself’ and “counsel” should not be interpreted as entitling a defendant to represent himself in part of the proceedings while accepting counsel’s representation in other parts. In State v. Whitlow, 13 Or. App. 607, 510 P.2d 1354 (1973), a case wherein the defendant who was represented by counsel asserted a right to personally address the jury with a closing argument, the court said:

The fact that the Oregon constitutional provision uses the conjunction between “defendant” and “counsel,” as do similar provisions in most state constitutions, has repeatedly been held not to mean defendant may intermittently use and then discard counsel, (citing cases). Numerous cases . . . hold that whether the court allows defendant to make a closing statement or, indeed, whether he shall be allowed to intermittently use counsel during the trial while he conducts his own defense is within the sound discretion of the trial court.

Our court in Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970), interpreting the Arkansas Constitution, Art. 2, § 10, where the defendant desired to make a portion of the closing argument personally, said that the question of whether to permit the defendant to address the jury was a matter best resolved by the sound discretion of the trial court in order that it may maintain order, prevent unnecessary consumption of time or other undue delay, and preserve its dignity and decorum.

In United States v. Durden, supra, the court addressed the question of whether a defendant may be required to choose between self-representation or representation by counsel with respect to pretrial motions:

A defendant in a criminal case has the right to represent himself or to be represented by counsel, but there is no right to both or a “hybrid” representation, 28 U.S.C. § 1654; McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 953-54, 79 L.E.2d 122 (1984); United States v. Anderson, 716 F.2d 446, 449 (7th Cir. 1983); United States v. Trapnell, 638 F.2d 1016, 1026-27 (7th Cir. 1980); in fact, courts have generally held that these two rights are mutually exclusive. See United States v. Mosely, 810 F.2d 93, 97 (6th Cir. 1987) (“ ‘The right to defend pro se and the right to counsel have been aptly described as ‘two faces of the same coin,’ in that waiver of one right constitutes a correlative assertion of the other.’ ”) (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir.) (citations omitted), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.E.d.2d 267 (1970)). See generally 2 W. LaFave, J. Israel, Criminal Procedure § 11.5(f) at 51-53 (1984 & Supp. 1987); 27 A.L.R.Fed. 485 (1976 & Supp. 1986). The circuits that have considered the question have held that the decision to allow hybrid representation is a matter committed to the sound discretion of the trial court. United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir. 1987); United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987); United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981); United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978); United States v. Williams, 534 F.2d 119, 123 (8th Cir.), cert. denied, 429 U.S. 894, 97, S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Hill, 526 F.2d 1019, 1024 (10th Cir. 1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976).
***
Although most of the cases discussing hybrid representation do so in the context of a trial (that is, examining what role a defendant should be allowed to play in conducting cross-examination and presenting arguments at trial before a jury), the court finds that the analysis contained in those cases is equally applicable to the pretrial stage of the present action.

We agree with the court in Durden that a defendant who invokes his right to counsel before trial by retaining an attorney or accepting appointment of counsel may be found to have waived his right to self representation at trial and also in pretrial proceedings. It is within the sound discretion of the trial court therefore to strike pretrial motions which are filed pro se without the knowledge or aid of the attorney-of-record. This is particularly true with regard to pretrial motions which involve matters of strategy and tactics which are said to be within the exclusive province of trial counsel. See Jones v. Barnes, 463 U.S. 745 (1983). As the Court acknowledged in Jones, counsel possesses the superior ability to examine the record, research the law and marshall arguments in the defendant’s behalf. With the exception of certain fundamental decisions such as whether a plea is to be entered, whether to waive jury trial and whether the client will testify, it is the attorney’s duty to take professional responsibility for the conduct of the case, after consulting with his client. Jones, 463 U.S. at 753 n. 6. While it may be said that a motion for speedy trial is not a matter of trial strategy and tactics, nevertheless, the trial court has the discretion to decide whether to hear the motion. Beverly v. State, 516 So.2d 31 (Fla. App. 1987). In the event that a dispute develops between counsel and his client such that the preparation and presentation of an adequate defense is jeopardized, the defendant may seek to retain or have appointed a new attorney.

Once a pretrial pro se motion is filed, the trial court should, exercise its discretion to either strike it on the ground that the defendant is represented by counsel and thus was not entitled to proceed pro se or otherwise make an appropriate ruling on the motion. In either event, disposition should be prompt and made a matter of record. We direct the trial court to either strike or act on the motion for speedy trial within ten days.

Petition granted.

Glaze, J., disagrees in part, would not require trial court to rule on pro se motion.


author: Jack Holt, Jr., Chief Justice.

text:
    Nathan T. MATTHEWS v. STATE of Arkansas
    CR 90-211
    807 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered April 15, 1991

      Richard Quiggle, P.A., by: James Long, for appellant.

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

On June 6, 1988, the appellant, Nathan Matthews, was charged in a felony information with rape. On April 21,1989, Matthews’ counsel at trial filed a joint motion to approve a stipulation; the stipulation was signed by the Prosecuting Attorney for the 20th Judicial District, Matthews, and Matthews’ counsel. It provided that the case would be tried to a jury solely on the issue of whether Matthews should be incarcerated or placed on supervised probation.

The trial court approved the stipulation on November 7, 1989, and Matthews subsequently entered a guilty plea. The case was then tried on the stipulated issue, the jury returned a verdict for incarceration, and the trial court sentenced Matthews to 35 years in the Arkansas Department of Correction.

Matthews alleges three points of error on appeal: 1) the trial court erred in accepting a guilty plea that was not entered knowingly, 2) the trial court erred by bringing the case before a jury solely on the issue of incarceration or supervised probation, and 3) ineffective assistance of counsel.

Matthews initially contends that his guilty plea was involuntary in that he did not enter the plea knowingly and intelligently, as evidenced by the joint stipulation that the case would be tried to a jury solely on the issue of whether he should be incarcerated or placed on supervised probation.

Rape is a Class Y felony, Ark. Code Ann. § 15-14-103 (1987), and the sentence for a Class Y felony “. . . shall be not less than ten (10) years and not more than forty (40) years, or life.” Ark. Code Ann. § 5-4-401 (1987). Additionally, a defendant convicted of a Class Y felony is not eligible to be placed on probation nor to receive suspended imposition of sentence. Ark. Code Ann. § 5-4-104(e)(1) (1987).

We have recognized many times that there is no right to appeal from a guilty plea. State v. Sherman, 303 Ark. 284, 796 Ark. 339 (1990) (citing Jenkins v. State, 301 Ark. 20, 781 S.W.2d 461 (1990) and A.R.Cr.P. Rule 36.1). The exception to this rule, not applicable in this case, is contained in A.R.Cr.P. Rule 24.3(b). Matthews entered a guilty plea to the offense of rape with which he was charged; consequently, he may not now directly appeal the validity of his guilty plea insofar as he wishes to appeal some aspect of the procedure followed at his guilty plea hearing that was an integral part of his plea. See State v. Sherman, supra; Henagan v. State, 302 Ark. 599, 791 S.W.2d 371 (1990). The voluntariness of a defendant’s guilty plea is a matter integral to the validity of a guilty plea. See generally Boykin v. Alabama, 395 U.S. 238 (1969).

Matthews next asserts that the trial court erred by bringing the case before a jury solely on the issue of incarceration or supervised probation. Not only has Matthews not preserved this issue for appeal, Smith v. State, 302 Ark. 459, 790 S.W.2d 435 (1990), he agreed to the bifurcation of his guilty plea hearing, and we have held that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. White v. State, 301 Ark. 74, 781 S.W.2d 478 (1989) (citing Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982)).

Finally, Matthews argues ineffective assistance of counsel as his third point of error. Arkansas R.Cr.P. Rule 36.4 applies to this case and provides in pertinent part as follows:

. . . The trial judge must address the defendant personally and advise the defendant that if the defendant wishes to assert that his or her counsel was ineffective a motion for a new trial stating ineffectiveness of counsel as a ground must be filed within thirty (30) days from the date of pronouncement of sentence and entry of judgment. . . .

Matthews did not file a motion for a new trial within 30 days alleging ineffective assistance of counsel and did not, therefore, comply with Rule 36.4. Matthews’ counsel at trial filed, contemporaneously with a notice of appeal and designation of record, a “Motion for Indigency Determination for Purposes of Transcript and Appointment of Counsel” that provided in part: “It is being contended that undersigned counsel provided ineffective assistance of counsel to Nathan T. Matthews and for that reason an attorney should be appointed to pursue the appeal in this matter. Otherwise, it would be a conflict of interest for undersigned counsel to pursue the appeal.”

Several months later, the trial court made a finding that Matthews was indigent and ordered a transcript prepared at public expense; however, the trial court made no rulings as to ineffective assistance of counsel or the appointment of new counsel. Even if we were to treat Matthews’ trial counsel’s motion as being in substantial compliance with Rule 36.4, trial counsel failed to obtain a ruling on the motion in order to preserve the issue for appeal. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990).

Consequently, Matthews, through new counsel, is precluded from raising this issue for the first time on direct appeal. Mays v. State, 303 Ark. 505, 798 S.W.2d 75 (1990); Williams v. State, 302 Ark. 356, 789 S.W.2d 732 (1990).

Affirmed.

       We again note that, effective January 1, 1991, the court reinstated Rule 37, in revised form. That revised rule provides, in pertinent part, that if an appeal was taken of the judgment of conviction, a petition, claiming post-conviction relief, must be filed in circuit court within 60 days of the date the mandate was issued by the appellate court. Rule 37.2(c). See Brown v. State, 305 Ark. 53, 805 S.W.2d 73 (1991).