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

text:
    Gail GLADDEN v. ARKANSAS CHILDREN’S HOSPITAL, Cindy VAN WINKLE and Larry WOODARD and Loretta SAMPLES v. SALINE MEMORIAL HOSPITAL
    86-199 & 86-201
    728 S.W.2d 501
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Jim O’Hara, for appellants.

      Friday, Eldredge & Clark, by: James W. Moore and Michael S. Moore, for appellee Arkansas Children’s Hospital.

      Joe Kelley Hardin, for appellee Saline Memorial Hospital.
   Steele Hays, Justice.

These cases, Gladden v. Arkansas Children’s Hospital, et al., and Samples v. Saline Memorial Hospital are certified to us by the Court of Appeals under Rule 29(4)(b) and are consolidated for purposes of appeal. We are again asked to modify the employment at will doctrine. Neither case squarely presents the issue which we said in Gauldin v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92 (1984) and Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984) we would reexamine in light of current law, because in neither case was the employment for a definite term nor was there an express agreement that an employee would be dismissed only for cause. However, we take this opportunity to more fully explain our position with respect to the at will rule.

Samples v. Saline Memorial Hospital

Appellant Loretta Samples began working as a nurse at Saline Memorial Hospital in 1981. She was given a hospital manual dealing with a wide variety of administrative and personnel policies. A provision on probation stated that “no rights are guaranteed” during a six month probationary period and a provision on termination stated, “any of the following items constitute grounds for termination.” The list contains thirteen grounds ranging from public drunkenness to insubordination, including “chronic tardiness and/or absenteeism.” Two written warnings and two suspensions without pay were required before termination for absenteeism.

On a Monday afternoon in April, 1985 Ms. Samples was called to the office of the hospital controller, Ron Morris, where she was handed a check and told she was discharged for absenteeism. Ms. Samples protested the allegation and went to the office of the hospital administrator, Mr. Busby. Busby told her he would talk with Morris, that she should go home and wait for him to call. Busby called that afternoon to say she was reinstated, subject to a ninety day probation, and to report to work the next morning. On Tuesday morning Ms. Samples called Morris to say she was not well enough to come in. She described his attitude as entirely cordial and he told her the severance check would be voided. On Wednesday Ms. Samples spent most of the day trying to meet with Busby and Morris. When she finally saw Morris he told her Busby had overturned his decision and decided to reinstate her on ninety days probation. When Ms. Samples again denied being absent Morris referred her to Busby and she and Busby resumed the discussion with no understanding being reached. Ms. Samples persisted in her efforts to see Mr. Busby and on Friday she was told she could “either quit, or be fired or be on ninety days probation.” When Ms. Samples refused to accept probation Mr. Busby told her she left him no choice but to terminate her.

Ms. Samples filed suit against the hospital for $50,000 for past and future wages, alleging that her discharge was arbitrary and in bad faith and constituted a breach of her employment contract. At the close of the plaintiffs proof, Saline Memorial Hospital moved for a directed verdict which the trial court granted. Ms. Samples has appealed. We affirm the trial court.

In the foregoing statement of facts we have observed the rule that on appeal from a directed verdict we view the facts most favorably to the appellant. Goodnight v. Richardson, 286 Ark. 38, 688 S.W.2d 941 (1985); Stalter v. Coca-Cola Bottling Co., 282 Ark. 443, 669 S.W.2d 460 (1984).

On appeal Ms. Samples contends the personnel policy manual of the hospital constitutes a contract. She relies on Toussaint v. Blue Cross and Blue Shield, 292 N.W.2d 880 (Mich. 1980), Pine River Bank v. Metille, 333 N.W.2d 622 (Minn. 1983), Weiner v. McGraw-Hill, Inc., 443 N.E.2d 441, 33 A.L.R. 4th 110 (1982), Yartzoff v. Democrat Herald Publishing Company, 576 P.2d 356 (Or. 1978), Wagner v. Sperry Univac, 458 F. Supp. 505 (E.D. of Pa. 1978) and Osterkamp v. Arkhola Mfg., Inc., 332 N.W.2d 275 (S.C. 1983). But in those cases the discharge was in direct violation of an express provision of a personnel manual. In Toussaint the manual announced a policy of termination “for just cause only.” In Weiner, “for just and sufficient cause only.” In Osterkamp, “not without just cause.” In Metille discharge was subject to review by the Executive Officer. In Yartzoff, the manual assured the employee of written warning of unsatisfactory job performance and two temporary suspensions before discharge. In Wagner, a reduction in force was to be governed by seniority in determining who would be laid-off and Wagner’s discharge violated that provision.

We need not decide whether the hospital’s manual constituted an employment contract, as we find no proof to support the allegation the manual was breached. Ms. Samples submits the hospital promised to discharge her only for one of the thirteen reasons listed in the section on termination. We find no such provision. The manual simply lists conduct which could result in termination, with no implications that those infractions alone constitute cause for discharge. That does not meet what we have said we were willing to review. See Bryant v. Southern Screw Machine Products Company, Inc., 288 Ark. 602, 707 S.W.2d 321 (1986).

Ms. Samples also contends the hospital breached provisions of the manual guaranteeing certain steps would be followed before discharge for absenteeism. That might be said of the attempted discharge by Morris, but that was promptly rescinded by Busby and Ms. Samples was reinstated subject only to a ninety-day probationary period. The manual gave the hospital the power to place an employee on disciplinary probation at any time. Moreover, the manual also provided that an employee who is promoted or transferred to another position must complete a six-month probation and Ms. Samples had been promoted from D.R.G. Code to Utilization Review Coordinator five months earlier. In sum, there was no proof that the hospital failed to substantially comply with the provisions of the manual in placing Ms. Samples on probation. See Erickson v. Griffin, 277 Ark. 433, 642 S.W.2d 308 (1982).

Gladden v. Arkansas Children’s Hospital

After some 18 month’s employment, appellant Gail Gladden was terminated in August, 1984 by Arkansas Children’s Hospital. Initially Mrs. Gladden filed suit based on the tort of outrage against the hospital and against her supervisors, Cindy Van Winkle and Larry Woodard, alleging nightmares, crying spells, anxiety and depression resulting from wrongful discharge. She asked for compensatory damages of $50,000 and punitive damages of $50,000. The defendants moved for partial summary judgment, which was granted, and Mrs. Gladden amended her complaint to allege that personnel regulations of the hospital constituted a contract of employment between the parties which was breached by the defendants. The tort claim was not pursued. The defendants again moved for summary judgment and the motion was granted.

On appeal Ms. Gladden proposes that the employment at will doctrine be modified “to allow a written contract of employment to be enforced which limits the right of an employer to discharge an employee, in the absence of a definite term of employment.”

Discussion

It might be well to note at the outset that the claim of wrongful discharge in the context of these cases is readily distinguishable from M.B.M. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1981) where, without deciding the issue, we conceded merit in the argument that where an employee is discharged in violation of a well established public policy the law recognizes a cause of action. Counce, p. 273.

In Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 38 (1982) dictum of the opinion stated that the employment at will doctrine is deeply embedded in our case law. See St. Louis I.M and S.R. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897); Petty v. Missouri Pacific Railway Company, 205 Ark. 990, 167 S.W.2d 895 (1943); Tinnon v. Missouri Pacific Railroad Co., 282 F.2d 773 (1960); Smithey v. St. Louis Southwestern Railway Co., 237 F.2d 637 (1956), and Roberts v. Thompson, 107 F. Supp. 775 (E.D. Ark. 1952). Gridin further stated that the doctrine recognizes the right of either party to terminate at will even where the conditions of employment are that an employee would not be discharged except for good cause, quoting from St. Louis I.M. and S.R. Company v. Matthews, supra.

In cases following Erickson v. Griffin, we expressed a willingness to reexamine the principle in the light of more recent trends in the law. See Gauldin v. Emerson Electric Co. and Jackson v. Kinark Corp., supra. But we have said as well that the review will be based on employment for a particular length of time or where an employee is discharged arbitrarily or in bad faith in violation of an agreement to discharge only for cause. Bryant v. Southern Screw Machine Products Company, Inc., 288 Ark. 601, 707 S.W.2d 321 (1986). Gauldin v. Emerson Electric Co., supra.

Neither appellant claims she was employed for a definite length of time. Both contend the personnel manuals of the hospitals limit the right to discharge except for cause. We disagree. While the manuals contain provisions describing methods for dismissal under certain circumstances and specifying kinds of conduct that could result in summary dismissal, they do not contain provisions that an employee will not be discharged except for cause. That being so, the cases do not present the issues we defined.

We do, however, believe that a modification of the at will rule is appropriate in two respects: where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine.

We recognize that these cases bear some resemblance to Jackson v. Kinark Corp., supra, where we reversed the granting of summary judgment for a fuller development of the factual issues, noting a “possible implication” from Kinark’s manual that once probation was ended, an employee could be discharged only for cause. But we have considered several employment cases since Jackson and we realize Jackson may have given the impression that an implied provision would suffice. We have come to the conclusion that an implied provision against the right to discharge is not enough. The firm rule at common law is that either party can terminate at will and while the rule has been criticized, 24 Arkansas Law Review 729, 93 Harvard Law Review 1816, we are unwilling to replace it with a rule that subjects the employer to suit for wrongful discharge whenever an employee is terminated.

As neither manual contains an express provision that discharge will not be without cause we find no error in disposing of the cases by summary judgment and directed verdict.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is the appropriate time to keep our promise made in Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). After three years and several cases, we are again asked to soften the harshness of our prior decisions concerning the common law doctrine of “employment-at-will.” If we are ever to recognize and alter the harsh and unjust results of our past decisions, it should be now.

After the abolishment of slavery in 1865 the employment relationship became known as “master-servant.” As late as 1968 this Court determined that a “servant” is an employee whose physical conduct is subject to the master’s right of control. Hinson v. Culberson-Stowers Chevrolet, Inc., 244 Ark. 853, 427 S.W.2d 539 (1968).We have now elevated the relationship to one of “employer-employee.” Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976).

Our existing strict adherence to the employment-at-will doctrine is archaic and in need of revision. If an employee agrees to work and be bound by conditions and restrictions set out in a policy manual or employee handbook prepared by the employer, the employer should also be bound by the same guidelines. There is no equitable or just reason why an agreement such as this one should not be enforced. Our prior decisions have allowed the employer to do as he wishes in the employment relationship except that we have recognized that the employee has the right to quit at will. The employee’s right to quit at will is an unequal exchange for all he gives up for that single right. It is time to balance the equities.

In the present case Loretta Samples seeks only to have her contract of employment construed in accordance with the written declarations of the employee handbook. This is not too much to ask. According to testimony presented at the trial both parties considered these written terms to be binding. At the very least there was a jury question presented at the trial level. In Jackson we remanded the case for further proceedings. Jackson involved a fact situation almost identical to the present case.

We have said in the past that there must be mutuality of obligation to support the existence of a contract. J.L. McEntire and Sons, Inc. v. Hart Cotton Company, Inc., 256 Ark. 937, 511 S.W.2d 179 (1974). In the present case the pay received by the appellant for her work is ample consideration from the appellee. The employer received the following consideration from the appellant: (1) labor needed to efficiently operate the hospital; (2) dependable performance of her duties; (3) a probationary period of six months before permanent employment to determine her competence and dependability; (4) the right to discharge her if she did not abide by the rules stated in the manual; (5) the right to counsel and reprimand her or take other disciplinary action; (6) her participation in the retirement plan after one year of employment; (7) her signature acknowledging receipt and reading of the manual; and (8) a promise of a fifteen day written notice of intention to resign. It would appear that by requiring an employee to read and sign the policy manual at the beginning of employment, that such policies became terms of the employment contract. In addition, the employees were furnished copies of all changes in the handbook.

This manual was written and printed by the employer. At page three it stated: “No rights are guaranteed under any personnel policies until the probationary period is completed.” There was no reason to include this statement unless it meant that after six months the rights stated in the manual were to become enforceable. The heart of the problem before us is on pages sixty-five and sixty-six of the manual where it purports to implement an attendance policy. Step one provides that counseling will be given to any employee who has three incidents of unauthorized absences within a period of twelve weeks. Step two makes the same provisions for two or more additional incidents within the following twelve weeks. Step two makes the same provisions for two or more additional incidents within the following twelve weeks. Step three calls for a three day suspension, without pay, if there are two additional unauthorized absences. Step four provides for a five day suspension, without pay, for the next two days absence during the next twelve weeks. Step five provides for termination if there are two or more unauthorized absences following step four.

It is mandatory that employees comply with all portions of the manual. Employees read the manual at the time they are hired and sign a form stating that they have read it. The policy manual requires employees to give a written notice before resigning. The hospital administrator testified that he expected employees to follow the terms of the manual and that employees are justified in thinking that management will also follow the same policies.

The only way for the appellee to avoid the terms of the contract is to hide behind one of the six month probation clauses. There are two such clauses contained in the manual. The first one applies to initial periods of the employment and the second one applies to periods following a transfer or promotion. The second period of probation is for the purpose of evaluating the employee’s performance of new job responsibilities. The manual states: “During this probationary period, the employee will receive all benefits he/she was entitled to before the transfer or promotion [Emphasis added].” Therefore, it is reasonable and logical to interpret the second or successive period of probation as applying only to the new responsibilities of the position to which the employee has been transferred or promoted. To construe it otherwise would, in effect, deny the employee the rights acquired upon the completion of the initial six-month probation period.

The appellant did not receive the consultations as provided in the policy manual. In fact there is little, if any, proof that she violated policy. It is undisputed that she did not receive any of the benefits mandated by the five-step procedure. This five-step procedure was a part of the manual and was agreed upon before her employment began. The personnel manager for the appellee stated that after the six-month probation period the employees are guaranteed the rights stated in the manual. She also testified that employees were not told they could be fired for no reason.

The employee, the employer’s administrator, and the personnel manager all testified that the manual was binding upon both parties. The hospital administrator testified that he had never told an employee that he could be fired for no reason. It is logical then to assume that an employee could not be terminated without just cause. I must, therefore, conclude that there was a jury question presented and that the trial court improperly took away the jury’s right to decide the facts presented in this case. This is the appropriate case to change the harsh consequences of the common law doctrine of employment-at-will. The majority opinion is a well reasoned and well written opinion except for the disappointing conclusion and result.

Although this dissent is directed to Samples, it applies with equal force to Gladden. I would reverse and remand for a trial on the merits of the case.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Avery Nathan RICHARDSON v. STATE of Arkansas
    CR 86-223
    728 S.W.2d 189
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Mark A. Colbert, for appellant.

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

Appellant raises two points in his appeal from convictions for first degree murder and arson. First, he contends the trial judge erred in denying his motion for a change of venue. Second, appellant argues the court violated A.R.E. Rules 901 and 403 in admitting certain testimony. We disagree and, therefore, affirm.

Appellant has been tried and convicted three times on charges stemming from the murder of his uncle, Lester Richardson, and the arson of his home. All of the trials took place in DeWitt, the county seat of the Southern District of Arkansas County, and appellant received the maximum term each time, forty years for murder and twenty years for arson.

Before trial, appellant moved for a change of venue under Ark.Stat. Ann.§43-1501 (Repl. 1977), alleging “that the minds of the inhabitants of the Southern District of this county are so prejudiced against the defendant that a fair and impartial trial cannot be held in said District.” Appellant offered supporting affidavits from Thaddus Parker and Krista Lynch, jurors at his previous trial. In further support of his motion, appellant’s attorney submitted that a poll he took of prior jurors indicated a majority felt appellant could not get a fair trial in DeWitt but were unwilling to sign affidavits to that effect because they did not want to “help the defendant” in any manner. After reviewing the affidavits and hearing the testimony of the affiants, the trial judge denied the motion, finding there was no evidence of inflamed feelings against appellant.

A change of venue should be granted only when it is clearly shown that a fair trial is not likely to be had in the county. The burden of proof is on the defendant, and the decision of the trial court will be upheld unless it is shown there was an abuse of discretion in denying the motion. Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986); see also Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986).

While appellant offered affidavits of Parker and Lynch to support his motion, their testimony at the pre-trial hearing undermined that contained in their affidavits. Parker testified that he did not read the affidavit he signed, and thought his signing it meant only that he had no objection to having the trial in Stuttgart, the county seat of the Northern District of Arkansas County. Parker further stated that he thought twelve jurors could be found who would hear the case fairly. While Lynch testified that she thought too many people had formed an opinion on appellant’s guilt or innocence and that the case should be moved to Stuttgart, she also said she had not discussed appellant’s case with anyone and thought it would be possible to find twelve jurors in the Southern District who did not know anything about the case. Lynch further stated she had not encountered any prejudice or inflamed feelings against appellant anywhere in “this county.” In an effort to demonstrate the difficulty of obtaining affidavits, appellant offered the testimony of August Gardner, one of the former jurors who refused to sign an affidavit. However, here again, the witness testified that he did not think the minds of the people of Arkansas County were prejudiced against appellant and thought twelve jurors could be obtained from south Arkansas County as well as from the north part of the county.

We also have held that there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Berry, supra, and Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Here, the voir dire examination of the jurors reveals that those chosen testified they had no preconceived notions about the case and could base their decision on the evidence presented and the instructions from the court. Additionally, the abstract of record shows that appellant used only seven of his eight peremptory challenges—a further indication that the judge’s denial of a change in venue was proper.

In conclusion on the first point, appellant argues he could not make the required showing of prejudice because most people refused to sign affidavits. He relies on Hildreth v. State, 214 Ark. 710, 217 S.W.2d 622 (1949), but there, this court reversed the trial court because it refused to hear testimony on why no affidavits in support of the venue change could be obtained. Here, appellant presented affidavits, the court heard the testimony, participated in some of the examination, and denied the motion. The Hildreth case simply is inapposite to the situation here.

For his second point, appellant urges the trial court committed reversible error when it admitted testimony in which the witness could not identify one of two voices he heard. Delmar Schorstein, Lester Richardson’s neighbor, testified that a few months prior to the fire, he heard a loud argument going on at Lester’s house. Schorstein said one voice, the loudest one, was appellant’s, and he assumed the other voice was that of the victim who, the witness presumed, was inside the house.

Appellant objected on the basis of A.R.E. Rule 901, arguing that there was an insufficient basis for authentication and identification of Lester Richardson as being the other party to the conversation. He also reasoned that the testimony should not have been admitted because its prejudicial effect outweighed its probative value. A.R.E. Rule 403.

The trial judge never ruled on appellant’s objection. We have held numerous times that the burden of obtaining a ruling is on the movant and objections and questions left unresolved are waived and may not be relied upon on appeal. Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986).

Even if it could be said that appellant had done all he could to obtain a ruling so as to have preserved this issue on appeal, we would not reverse the trial court’s admission of Mr. Schorstein’s testimony because, if the court erred in this respect, it was harmless. The State offered Schorstein’s testimony to show animosity existed between the appellant and his uncle two months before the uncle’s death. Other, more compelling, testimony was given on this same point by Schorstein’s wife, Irene. Mrs. Schorstein testified that, the day before the fire, appellant told her he might have to kill his uncle. Obviously, Mr. Schorstein’s testimony pales in comparison with his wife’s revelation concerning appellant’s expressed ill will towards his uncle. Thus, even if we agreed that Mr. Schorstein’s testimony should have been excluded, the admission of that testimony was non-prejudicial error which is not a predicate for reversal. Stone v. State, 290 Ark. 204, 718 S.W.2d 101 (1986).

Finding no abuse of discretion, we affirm.

Affirmed.


author: Per Curiam.

text:
    Steven D. HILL v. STATE of Arkansas
    CR 85-212
    728 S.W.2d 510
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Per Curiam.

This matter is before us on a petition for permission to proceed under A.R.Cr.P. Rule 37. The appellant was convicted of capital murder and sentenced to death. His conviction was appealed to this Court and affirmed in Hill v. State, 289 Ark. 387, 713 S.W.2d 233 (1986), cert. denied, —U.S.-, 107 S. Ct. 1331 (1987). The petition seeks permission to proceed under Rule 37 on the ground of ineffective assistance of counsel, at both the guilt phase and penalty phase of the trial.

In order to be entitled to proceed pursuant to Rule 37 the petitioner must show that defense counsel was not only ineffective, but that such ineffectiveness deprived him of a fair trial and produced an outcome which cannot be relied on as just. Strickland v. Washington, 466 U.S. 688 (1984).Thereisastrong presumption that the conduct of defense counsel is within the range of reasonable professional assistance. Allegations of mistakes in trial tactics and strategy are not normally grounds upon which we can grant post-conviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Mere error or unsound advice do not necessarily require a new trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

The first allegation concerning ineffective assistance of counsel is that counsel failed to file a motion to prohibit the state from seeking the death penalty because it is disproportionately imposed when the victim is white. This type motion is based upon the theory that blacks are disproportionately sentenced to death when the victim is white. The United States Supreme Court has recently rejected this argument. See McCleskey v. Kemp, - U.S. -, 107 S. Ct. 1756 (1987). Moreover, in the present case, both petitioner and the victim were white.

The second allegation of ineffective assistance of counsel is the failure to call witnesses in the penalty phase of the trial. Petitioner states that certain named witnesses would have “presented the varying conduct and circumstances of Hills’ upbringing and current age for the jury to properly weigh the mitigating factor.” Included among these witnesses was Dr. Roy Ragsdill, a psychologist, who would have testified that he diagnosed Hill as having an antisocial personality disorder. The objective in reviewing an assertion of ineffective assistance of counsel concerning the failure to call certain witnesses is to determine whether this failure resulted in actual prejudice which denied petitioner a fair trial. Isom v. State, 284 Ark. 427, 682 S.W.2d 755 (1985). The thrust of this argument was to emphasize the youthfulness of the petitioner. The petitioner’s age was already before the jury. The petitioner has failed to state what the witnesses would have testified to if called, or explain why this testimony would have been important. Therefore, this allegation of ineffectiveness is not sufficient to cast doubt on the outcome of the trial.

The chief argument on the above assertion is that it cannot be determined whether prejudice resulted from the failure to call these witnesses unless there is a hearing to develop their testimony. Rule 37 is not an exploratory procedure nor is it a license to take depositions. For the reasons stated earlier, the petitioner has not demonstrated that prejudicial error occurred as a result of his counsel’s failure to call these witnesses.

Another allegation is that the prosecutor was allowed to use the wrong gun in his argument and demonstration to the jury. This matter was disposed of on the first appeal.

Another argument is that petitioner was not advised of his right to testify during the penalty phase. We stated in Isom, supra:

Nevertheless a petitioner must do more than simply state that he was not allowed to testify. He must state specifically what the contents of his testimony would have been and demonstrate that his failure to testify resulted in actual prejudice to his defense.

The petitioner has not demonstrated that his failure to testify resulted in actual prejudice to him.

The final argument is that counsel was ineffective in failing to open the record to include a petition for writ of error coram nobis and the “confession” of a co-defendant that he, not Hill, shot the victim. Even if the record on appeal did not include this material, the petitioner has failed to show any prejudice resulted therefrom because such a petition was filed, and considered and denied by per curiam dated December 9, 1985. See Hill v. State, 289 Ark. at 398.

The petition to proceed pursuant to A.R.Cr.P. Rule 37 fails to demonstrate that the petitioner did not receive a fair trial. Most of the matters alleged in the petition were considered, or could have been considered, on direct appeal. We have discussed all of the other allegations and find that there is no basis for granting a hearing on the petition.

Petition denied.


text:
    Lee Duane JACOBS v. STATE of Arkansas
    728 S.W.2d 192
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Naif Samuel Khowry, for appellant.
    No response.
   Per Curiam.

Appellant, Lee Duane Jacobs, by his attorney, has filed for a rule on the clerk.

His attorney, Naif Samuel Khoury, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


text:
    Mark Allen MOCK v. STATE of Arkansas
    CR 87-66
    728 S.W.2d 513
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Robert E. Irwin, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

Mark Allen Mock was convicted of possession of a controlled substance in the Pope Circuit Court, receiving a ten year sentence. The judgment of conviction was upheld by the Court of Appeals on February 18, 1987. Pursuant to A.R.Cr.P. Rule 37.2 Mark Allen Mock brings this petition for permission to file for post conviction relief under Rule 37 based on ineffective assistance of counsel. We find no merit in his arguments.

The petition consists of two general allegations: 1) that a witness for the state was permitted to testify to prior amphetamine transactions with petitioner, but that defense counsel did not object or move for a mistrial until prejudice had resulted; and 2) that defense counsel objected to testimony by a witness at a suppression hearing who refused to answer questions based on self-incrimination but because counsel failed to preserve the point for review the Court of Appeals rejected the argument that Mock was denied the right to confront the witnesses against him.

Counsel is presumed to be competent and to overcome that presumption the petitioner must show by clear and convincing proof that some prejudice resulted which deprived him of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983). Bare allegations that counsel failed to object to certain questions, or failed to preserve some issue for review do not suffice. Id. The allegations of this petition demonstrate neither ineffective assistance of counsel nor prejudice so great as to deprive the accused of a fair trial. Accordingly, the petition is denied.


text:
    Larry Jack NATION v. STATE of Arkansas
    CR 87-40 & CR 87-41
    728 S.W.2d 513
    Supreme Court of Arkansas
    Opinion delivered May 4, 1987

      Appellant, pro se.
    No response.
   Per Curiam.

Appellant Larry Jack Nation pleaded guilty in 1983 to burglary and two counts of theft of property in cases No. CR 82-6 and CR 82-170. The circuit court suspended imposition of sentence in both cases. After he violated the conditions imposed when the guilty pleas were entered, appellant was sentenced to a total of forty years imprisonment. He appealed and this court affirmed. Nations. State, 283 Ark. 250, 674 S.W.2d 939 (1984). In 1985, appellant filed in circuit court a petition under Criminal Procedure Rule 37 to vacate the guilty pleas. He also filed a petition and amended petition pursuant to Rule 37 in this court, alleging that the guilty pleas should be vacated. We denied the petition. Nations. State, CR 84-28 (Ark. Feb. 10, 1986) (Order denying petition).

In November 1986, Nation filed in circuit court a petition for postconviction relief which he styled a “petition for writ of error coram nobis.” The petition, which covered both CR 82-6 and CR 82-170, again raised the allegations already raised in this court under Rule 37 with additional allegations which were also cognizable under Rule 37. As permitted by Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984), the trial court treated the error coram nobis petition as a Rule 37 petition since the grounds in the petition were covered by Rule 37 and were not within the purview of an error coram nobis action. See Williams v. State, 291 Ark. 255, 724 S.W.2d 158 (1987); see also Williams v. State, 289 Ark. 385, 711 S.W.2d 479 (1986). The trial court denied relief, and appellant appealed in each case. He now seeks appointment of counsel to represent him in the appeals from the denial of the petition.

The motions for appointment of counsel are denied and the appeals dismissed since it is clear that there is no merit to them. See Baker v. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986). There are several reasons why the relief sought should be denied. The most immediately apparent is that the petition filed in circuit court was procedurally barred by Rule 37.2(b). Rule 37.2(b) provides that all grounds for relief not raised in the original or amended Rule 37 petition are waived, unless the court which denied the original petition specifically did so without prejudice to filing a subsequent petition. This court denied appellant’s Rule 37 petition with prejudice; therefore, he was not entitled to file a second petition in this court or the trial court. The fact that he chose to label the petition a petition for writ of error coram nobis did not change the fact that the grounds raised were encompassed by Rule 37. Walker v. State, supra. A petitioner may not reassert issues or raise new ones which are properly addressed under Rule 37 by simply giving the petition a new name and filing it again.

Motions denied and appeals dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    CARROLL COUNTY v. EUREKA SPRINGS SCHOOL DIST. # 21 and The CITY OF EUREKA SPRINGS
    86-284
    729 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      David S. Clinger, Prosecuting Attorney, and Terri L. Harris, Deputy Prosecuting Attorney, for appellant.

      Epley, Epley & Castleberry, Ltd., by: Alan D. Epley, for appellees.
   Jack Holt, Jr., Chief Justice.

Carroll County brought suit against Eureka Springs School District #21 and the City of Eureka Springs (both appellees referred to herein as Eureka Springs) to recover overpayments mistakenly made from county tax settlements. The Carroll County Chancery Court limited Carroll County’s recovery to overpayments made within the three-year statutory period for implied contracts or liabilities. On appeal, Carroll County contends the five-year catch-all statute of limitations should apply. Eureka Springs cross appeals, urging dismissal of all claims, in that the county court is the only court with jurisdiction over a “county tax” matter, and Carroll County is not the real party in interest. The judgment is affirmed on both appeal and cross appeal.

Carroll County sought reimbursement of $21,953.53 from the school district and $ 1,972.93 from the City of Eureka Springs in the settlements for 1978 taxes collected in 1979; 1979 taxes collected in 1980; 1980 taxes collected in 1981; and 1981 taxes collected in 1982. As an affirmative defense, Eureka Springs pled the three-year statute of limitations in Ark. Stat. Ann. § 37-206 (Repl. 1962). Eureka Springs also contested the chancery court’s jurisdiction to hear a “county tax” case and alleged that the cities and school districts that were underpaid in the tax settlements were the real parties in interest under Ark. R. Civ. P. 17(a), rather than Carroll County.

The chancery court held that it had jurisdiction over the matter, that the county was the real party in interest, and that the three-year statute of limitation restricted Carroll County’s recovery to overpayments made after July 1, 1981. We agree.

1. CHANCERY COURT JURISDICTION

Eureka Springs maintains that the county court was the only court with jurisdiction to hear this case under Ark. Const, art. 7, § 28, which gives county courts “exclusive original jurisdiction of all matters relating to county taxes.” Although this case indirectly involves county taxes, this provision of our constitution should not be so broadly read as to prevent the recovery in chancery court of money that the county has mistakenly disbursed to Eureka Springs.

Eureka Springs cites cases which have protected the exclusive jurisdiction of county courts. These cases, however, were limited to issues concerning auditing, assessing and collecting county taxes. Jackson v. Elder, 187 Ark. 1094, 63 S.W.2d 991 (1933); C.R. Burgess v. Four States Memorial Hosp., 250 Ark. 485, 465 S.W.2d 693 (1971). The chancery court relied instead on our decisions in Marable v. State, 175 Ark. 589, 2 S.W.2d 690 (1927) and Big Gum Drainage District v. Crews, 158 Ark. 566, 250 S.W. 865 (1923), in which we held that the original jurisdiction of equity to correct mistakes gives the chancery court jurisdiction in actions to recover county money mistakenly paid or withheld. Although these cases did not address the constitutional question raised here under art. 7, § 28, they are of precedential value as to the jurisdiction of chancery courts to correct mistakes.

In scrutinizing art. 7, § 28, we agree with the chancery court that this case does not fall under the county court’s exclusive jurisdiction of matters involving “county taxes.” After the county had completed the collection of the tax receipts and disbursed county funds to the various cities and school districts within the county, an action to recover funds mistakenly paid to Eureka Springs was hot merely a “county tax” matter as such, but rather a matter of overpayment which addresses itself to the chancery court’s jurisdiction to correct mistakes.

2. REAL PARTY IN INTEREST

Eureka Springs asserts that under Ark. R. Civ. P. 17(a), the cities and school districts which should have received the funds are the real parties in interest rather than Carroll County. The chancellor accurately ruled that one “who mistakenly pays money to another is the real party in interest to maintain suit against the latter for the recovery of the money paid.”

Inasmuch as the county had the responsibility to disburse the money to the entitled parties, it logically follows that the county can best discharge claims of those entitled to the funds Eureka Springs was ordered to return. In House v. Long, 244 Ark. 718, 426 S.W.2d 814 (1968), we said:

The real property in interest, therefore, is generally considered to be that person who can discharge the claim on which suit is brought and not necessarily the person ultimately entitled to the benefit of the recovery.

Carroll County is the appropriate party to discharge the claim on which this suit is brought.

3. STATUTE OF LIMITATIONS

The two competing statutes of limitation are:

37-206. Actions which must be brought in three years — Contracts not in writing — Rent — Trespass — Libel — Injury to goods. — The following actions shall be commenced within three [3] years after the passage of this act, or, when the cause of action shall not have accrued at the taking effect of this act, within three [3] years after the cause of action shall accrue: First, all actions (of debt) founded upon any contract, obligation or liability, (not under seal [and not in writing]) excepting such as are brought upon the judgment or decree of some court of record of the United States, of this, or some other State; (second, all actions upon judgments rendered in any court not being a court of record;) third, all actions or arrearages of rent (not reserved by some instrument in writing, under seal;) fourth, all actions (of account, assumpsit, or on the case,) founded on any contract or liability, expressed or implied; fifth, all actions for trespass on lands, or for libels; sixth, all actions for taking or injuring any goods or chattels.
37-213. Actions not otherwise provided for — Five years. — All actions not included in the foregoing provisions shall be commenced, within five [5] years after the cause of action shall have accrued.

On ruling the three-year statute of limitation applies, the chancellor relied primarily on Futrall v. City of Pine Bluff, 87 F.2d 711 (8th Cir. 1937) and The Fidelity & Casualty County of N.Y. v. State, 197 Ark. 1027, 126 S.W.2d 293 (1939). In Futrall, a bank mistakenly paid too much money to the city upon liquidation of the bank. The city raised the statute of limitations as a defense to the bank’s action. In comparing these two statutes, the Eighth Circuit said:

The meaning of these sections of the statutes of Arkansas must be determined from the decisions of the Supreme Court of that state. An analysis of such decisions as throw light upon the question here involved has convinced us that an action to recover money paid or obtained through an honest mistake of fact or law, in the absence of fraud, corruption or willful diversion, is an action founded upon implied contract or liability, not in writing, and must be commenced within three years.

In Fidelity, this court followed the Futrall rationale where an action was brought by the county prosecutor on the bond of the county treasurer, alleging that the treasurer had paid money from the county funds on invalid warrants. In Board of Educ. of Ouachita County v. Morgan, 182 Ark. 1110, 34 S.W.2d 1063 (1931) and State, Use and Benefit of Garland County v. Jones, 198 Ark. 756, 131 S.W.2d 612 (1939), this court also applied a three-year limitation to suits to recover money mistakenly paid. In Morgan, an excessive commission was paid to the county treasurer and was then improperly credited to the general fund rather than the school funds from which the commission was taken. In an action by the school to recover the money from the general fund, the three-year limitation was applied by the trial court and we affirmed, stating:

The next and last question of law arising out of the pleadings and agreed statement of facts is whether any part of appellants’ cause of action is barred by the statute of limitations. It is conceded in the brief of appellants that the funds sought to be transferred to the county common school fund from the several county funds into which they were diverted, are not trust funds by virtue of an express trust. The general rule of law is that, while the statute of limitations will not run against an express trust until there has been a repudiation of the trust, the statute of limitations will run against implied, resulting and constructive trusts. There are some exceptions to the rule that the statute of limitations will run against implied, resulting and constructive trusts, but we think the instant case comes within the general rule and not within any exception thereto. The three years’ statute of limitations provided for in § 6950 of Crawford & Moses’ Digest is applicable to the claims of appellants for excess commissions and interest. It was not alleged in the complaint nor in the stipulated agreement of facts that funds claimed were wilfuly diverted by the officer apportioning them, hence § 6960 of Crawford & Moses’ Digest, providing for a five-year statute of limitations, has no application to the instant case.

Eureka Springs cites several cases in support of its position that the five-year limitation should be used in this situation, including Sims v. Craig County Treasurer, 171 Ark. 492, 286 S.W. 867 (1926); Yates v. State, 186 Ark. 749, 54 S.W.2d 981 (1932); Marable v. State, 175 Ark. 589, 2 S.W.2d 690 (1927); and Big Gum Drainage v. Crews, 158 Ark. 566, 250 S.W. 865 (1923). The chancellor declined to follow these decisions, commenting that the question of whether the three or five-year statute of limitation was appropriate was not in issue in these cases. He also noted that these cases preceded Fidelity and Morgan.

We find the chancellor was correct in characterizing this action as one falling within the implied obligation or liability provisions of § 37-206 and that Carroll County could recover only for overpayments made during the three years before this suit was filed.

Judgment affirmed.


text:
    Buddy TOWNSEND v. STATE of Arkansas
    CR 87-47
    728 S.W.2d 516
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987
    [Rehearing denied June 15, 1987.]

      Jeff Duty, for appellant.

      Steve Clark, Att’y Gen., by; Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant, Buddy Townsend, challenges the jurisdiction of the circuit court, when hearing a misdemeanor appeal from the municipal court, to grant a monetary judgment for restitution in excess of the constitutional limit for municipal courts in civil cases. We hold that the circuit court acted beyond its jurisdiction and reverse and dismiss the monetary judgment. Otherwise, Townsend’s conviction and sentence for driving while intoxicated and driving left of center are affirmed.

Townsend’s other arguments for reversal are that he was denied a speedy trial, that the trial court erred in allowing a police officer to testify as to what he had written on his report of the accident, and that the court should not have allowed two witnesses to give “opinion” testimony.

Townsend was found guilty of D.W.I. and driving left of center by the Siloam Springs Municipal Court. He was sentenced to one year in county jail, fined $1,000 and ordered to pay restitution of $5,894 to the victim of the automobile accident which resulted from his driving violations. Townsend appealed to the Benton County Circuit Court, where on trial de novo he was again found guilty in all particulars. The circuit court imposed the same sentence and fine, but entered a separate “civil judgment” increasing restitution to $25,877.25.

Arkansas Constitution art. 7, § 42 provides for appeal “from the final judgment of the justices of the peace to the circuit courts under such regulations as are now, or may be, provided by law.” Jurisdictional limits for justice of the peace courts carry over to the municipal courts. Ark. Const, art. 7, § 43; Ark. Stat. Ann. § 22-709 (Repl. 1962).

Arkansas Stat. Ann. § 26-1308 (Repl. 1962), provides for appeal from justice of the peace courts to circuit courts to determine the cause “anew” on the merits. However, the jurisdiction of the circuit court is derived from and is dependent upon the appeal. The circuit court can render no judgment that the justice of the peace is not authorized to render. Whitesides v. Kershaw & Driggs, 44 Ark. 377 (1884). See also Combined Insurance v. Dreyfus, 244 Ark. 1011, 428 S.W.2d 239 (1968); Markham v. Evans, 239 Ark. 1154, 397 S.W.2d 365 (1965).

Townsend claims that the circuit court had no jurisdiction to render the civil judgment against him. To resolve this question, we must decide whether the judgment of the municipal court was in fact a “civil” judgment, and if so, was the municipal court authorized under its jurisdictional limit of $100 to render a judgment for restitution in the amount of $5,894.

The municipal court ordered Townsend to pay restitution under the authority of Ark. Stat. Ann. § 43-2351 (Supp. 1985), which provides:

If a defendant pleads guilty or is found guilty of a criminal offense, the trial court of criminal jurisdiction shall, in addition to imposition of sentence, enter a monetary judgment against the defendant in an amount of restitution or reparations from the offender to the victim that will totally or partially compensate the victim for his personal injury or loss of or damage to his property caused by the criminal act of the offender. The court shall specify the total amount to be compensated, the rate of compensation, if periodic payments are provided, to whom it is to be paid; and, if personal service to the victim is the compensation, establish a reasonable value or rate of value for the services rendered.

Section 43-2354 addresses the effect of the restitution judgment:

The monetary judgment, as provided herein, shall become a judgment against the offender and shall have the same force and effect as any other civil judgment recorded in this State.

The state argues that the municipal court’s constitutional limit on civil judgments does not apply in this instance because the municipal court was exercising its criminal jurisdiction when it found Townsend guilty of the criminal offenses and ordered him to pay restitution. We disagree. Section 43-2351 provides for the entry of a monetary judgment against the defendant in an amount that will compensate the victim for loss of or damage to property caused by the criminal act of the offender. Section 43-2354 states that this judgment shall have the same force and effect as any other civil judgment recorded in this state.

Although labeled “restitution,” the money judgment assessed by the municipal court was in fact a civil judgment subject to the municipal court’s jurisdictional limit of $100 for loss or damages to personal property. Ark. Const, art. 7 §§ 40 and 43. This court has no authority to construe a statute that is plain and unambiguous to mean anything other than what it says. Hinchey v. Thomasson, 292 Ark. 1, 727 S.W.2d 836 (1987); Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (1975).

The legislature obviously designated restitution as a civil judgment. We treat it accordingly and find that the municipal court, and therefore the circuit court on appeal, exceeded its jurisdiction. That part of the judgment as to restitution is reversed and dismissed.

Townsend also argues that he was denied his right to a speedy trial in both the municipal and circuit court trials. The applicable dates are as follows:

October 26, 1984............... Date of arrest
June 5, 1985..............Municipal court trial
July 2, 1985 .............Notice of appeal filed in circuit court
March 12, 1986 .............Circuit court trial

The state had eighteen months from Townsend’s arrest to bring him to trial in circuit court. Ark. R. Crim. P. 28.1 (c). He was tried in less than seventeen months in the circuit court, thus, there was no violation of Rule 28.1. Townsend has not argued that he was prejudiced by any delay.

Townsend next contends that the trial court erred in allowing the investigating police officer to testify as to what he marked on his accident report as contributing factors to the accident. When Townsend objected to the use of the report, the trial court ruled that the report could not be introduced into evidence, but that the officer could use it to refresh his memory. Townsend argues that we held in Hogue v. Ameron, Inc., 286 Ark. 481, 695 S.W.2d 373 (1985) that this is a violation of the hearsay rule, A.R.E. Rule 803. In Hogue, we simply stated that the officer could not testify from his writings as to what was told to him by persons with whom he spoke during his investigation. Hogue did not involve an officer refreshing his memory from notes as to what he observed at the scene, which is permissible. Black and White, Inc. v. Love, 236 Ark. 529, 367 S.W.2d 427 (1963).

Finally, Townsend argues the trial court erred in allowing two witnesses to give opinion testimony. One was an eye witness who was driving in front of Townsend prior to the accident. She testified she drove into the ditch alongside the road when Townsend attempted to pass her immediately before the accident, and estimated Townsend’s speed at more than seventy miles per hour. She determined Townsend’s speed by comparing her speed of fifty miles per hour to the speed of Townsend’s vehicle, which she said came up behind her very quickly. The witness was a mail carrier and said she drives more than 100 miles a day. The other witness was the investigating officer who testified that the road, which was straight and flat, did not play a part in the accident.

A lay witness may give testimony in the form of opinions or inferences if they are rationally based on the perception of the witness and helpful to a clear understanding of a fact in issue. A.R.E. Rule 701; Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983).

We do not accept Townsend’s statement, without explanation, that the testimony did not fall within Rule 701. The first witness was an experienced driver who was in a position to observe the speed of Townsend’s vehicle relative to her own. The officer investigated the accident and observed the causes of the accident and the condition of the road. Their testimony was relevant in determining the extent of Townsend’s fault and whether he “constituted a clear and substantial danger to himself and other motorists,” our definition of intoxicated under Ark. Stat. Ann. § 75-2502 (Supp. 1985). The testimony was properly submitted.

Reversed in part and affirmed in part.


author: Darrell Hickman, Justice.

text:
    James SMITH v. STATE of Arkansas
    CR 86-205
    729 S.W.2d 5
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Law Offices of Kevin Wyrick, by: Matt Keil, for appellant.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

James Smith was convicted of rape and sentenced to life imprisonment. He raises two arguments on appeal: his confession should have been excluded, and the evidence of his guilt was insufficient. Smith concedes that if the confession is found to be admissible, there is sufficient evidence. We find the confession admissible and affirm his conviction.

Smith was arrested and jailed for loitering on April 4,1986. Three days later, police officers questioned him about a rape that occurred on April 1,1986. After he was advised of his rights and stated he understood them, he signed a waiver of rights form and then confessed to the rape. Smith now argues that his confession was not voluntary. He says he confessed because of threats made to him by police officers, and also he did not knowingly and intelligently waive his rights because of his low intelligence level, his lack of education and his inability to read.

Smith’s confession was detailed. He stated he walked by the victim’s home in Texarkana on March 30,1986, and asked her for an Easter egg. He then went on his way. The next evening at approximately 11 p.m. he returned to the victim’s house, saw a night light on and heard a fan blowing. He checked a window, and it was locked; he then checked the back door, found it open, and entered the house. He was scared that the victim’s husband might be there, so he got a knife from the kitchen. He saw the victim and her son asleep in a bedroom. He was scared to go into the room but remembered how his “old lady was messing around on him.” This made him mad, so he entered the room with the knife in hand and touched the victim. She awoke, and he told her he was not going to hurt her; he just wanted to make love to her. He tried to put the knife down, but the victim grabbed it and cut her finger. He had sexual intercourse twice with her, and then he told her he was sorry. He also told her he loved her and wanted to marry her. He then left and went home.

In reviewing the admissibility of a confession on appeal, we consider the totality of the circumstances. Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Although Smith was found to have an IQ of 62 and to be functioning three levels below the average expected for his age, and had attained only a third grade education (although he finished 10 grades), the trial judge found that there was sufficient evidence that showed Smith understood his rights and what was happening. The officers denied Smith was threatened. The taped confession in the record appears to be spontaneous and unrehearsed; there is no hint of any heavy-handed or deceptive procedures.

The trial judge determines the credibility of the witnesses, and this was essentially a question of credibility. Williams v.State, 281 Ark. 91, 663 S.W.2d 700 (1983); Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). We cannot say the trial judge was clearly wrong in determining the confession was voluntary.

At the Denno hearing and during the trial, Smith contradicted his confession. He said the officers made up what he said. He said the victim initiated all of the contact, consented to have intercourse with him and asked him to come back later. He denied raping her. Also, during the trial, Smith said for the first time that the police made two tape recordings of his statement: one tape the way they wanted him to confess and another the way it actually happened. Smith said the first tape was admitted into evidence, and he did not know what happened to the other tape.

The victim’s testimony closely paralleled the version in Smith’s confession. The police officers denied that two tapes were made. There was substantial evidence to support the verdict.

Smith also raises a question about the Miranda rights form used to advise him of his rights. Specifically, he argues that it does not tell an indigent, accused of a crime, that a lawyer will be appointed to represent him without cost. He points out that an identical version of the Miranda warning used in this case by the Texarkana Police Department was critized by us in Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). In discussing the warning we said:

Number four on the rights form states: ‘Do you understand that if you cannot afford a lawyer, one will be appointed for you by the court before any questioning if you so desire?’ Appellant maintains that the form of this statement does not meet the standards of Miranda because it does not provide that the appointed lawyer will represent him without cost.
* * * *
Had the sheriff not augmented the form with his own comments that counsel would be provided at no cost to the defendant, we would have to find the advice given appellant was inadequate. . .We caution, however, against the use of this and similar forms when informing a defendant of his rights. It must be made clear to a defendant that he has access to an attorney at absolutely no cost to him before he agrees to waive his right to counsel.

We were wrong in Trotter. Such a warning does comply with Miranda v. Arizona, 384 U.S. 436 (1966). There are four separate references to that specific right in the Miranda decision. They are as follows:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed, p. 444
* * *
In order fully to apprise a person interrogated of the extent of his rights under this sytem then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. p. 473
* * *
[I]f police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation, p. 474
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires, p. 479 (Italics supplied.)

Compare these statements with the language used in the warning in this case: “. . . If, you cannot afford a lawyer, one will be appointed for you, before any questioning, if you wish.” The language is virtually word for word from Miranda and completely complies with Miranda. Our cautionary remarks in Trotter about such a warning and our statement about augmentation were a mistake and are overruled.

Affirmed.


author: John I. Purtle, Justice.

text:
    Robert BLOUNT, Steve MENZIE, and Michael IVES v. Thomas HUGHES, City Judge for Police Court in Beebe, Arkansas
    86-254
    728 S.W.2d 519
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987
    [Rehearing denied June 8, 1987.]

      Paul Petty and Robert Meurer, for appellant.

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

      Hickman, J., not participating.

   John I. Purtle, Justice.

This case involves an appeal from the decision of the White County Circuit Court, rejecting the appellant’s petition for mandamus. The petition sought to compel the transfer of criminal prosecutions from the Beebe Police Court to the Municipal Court of Searcy, Arkansas. The appellants objected to the jurisdiction of the Beebe Police Court, alleging that the Beebe city ordinances were invalid. They argued that since the ordinances of the city were invalid, that they were entitled to be tried in a municipal court in the same county.

The appellants assert that the Beebe ordinances are invalid because they violate the provisions of Ark. Stat. Ann. § 22-725 (Repl. 1962), in that they contain more than one subject matter. It appears that portions of each ordinance are argued in the briefs of counsel; however, the ordinances are not abstracted. Since this Court does not take judicial notice of city ordinances, we are unable to determine whether the ordinances questioned herein are, in fact, invalid. Pursuant to Arkansas Supreme Court Rule 9(e)(2), we therefore affirm the decision of the circuit court.

Hickman, J., not participating.


text:
    James Burt TAGGART v. W.H. MOORE and Polly MOORE
    86-271
    729 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Southern, Allen, James & Jones, for appellant.

      Hoofman & Bingham, by: Clifton H. Hoof man, and Friday, Eldredge & Clark, by: George Pike, Jr., for appellee.
   John I. Purtle, Justice.

The Pulaski County Circuit Court, Second Division, dismissed appellant’s complaint for damages for breach of an alleged oral contract not to collect on a judgment. The trial court dismissed the complaint stating that the action was barred by the doctrines of res judicata and election of remedies and was not in compliance with the opinion of the Court of Appeals in the appeal of a previous action growing out of the same dispute. The appellant argues four points for reversal: (1) the trial court erred in dismissing the complaint on the doctrine of res judicata; (2) the court erred in dismissing on the doctrine of election of remedies; (3) the court erred in dismissing the case because the appellee did not plead the doctrines of res judicata and election of remedies; and (4) the trial court erred in holding that the Court of Appeals’ opinion precluded the present action. For reasons stated herein, we find that none of the four arguments requires reversal.

The history of this case is very complex. The dispute arises out of a judgment obtained by the Moores (appellees) in an action on a contract brought by third parties against both Taggart (appellant) and the Moores in which the Moores had cross-complained against Taggart and other codefendants. The appellant bases his complaint on the allegation that he agreed to codperate with the Moores in the litigation in return for their promise not to collect any judgment which might be rendered against him. The suit against both Taggart and the Moores proceeded to trial and judgment was entered on September 10, 1981. Judgment was rendered against Taggart on the cross-complaint in the amount of $32,903.16.

The Moores attempted to collect the judgment from Taggart, and he filed a complaint in the Pulaski County Chancery Court on February 18, 1982, in which he sought to enjoin enforcement of the judgment based upon the alleged oral agreement not to enforce the judgment. (This judgment has subsequently been paid by the appellant.) The complaint was amended twice. The answers raised several defenses, including lack of jurisdiction, limitations, laches, estoppel, and res judicata. On May 24,1982, the chancery court transferred the case to circuit court upon the motion of appellees. Notice of appeal from the order of transfer was filed on June 4, 1982.

The appellant stood upon his pleadings after the case had been transferred to the circuit court. The Moores moved for dismissal, and on June 25, 1982, the circuit court dismissed the complaint. The court dismissed the complaint stating that it had no jurisdiction to enjoin enforcement of the judgment and that the remedy sought “is a separate remedy independent of the action giving rise to the judgment itself; such action . . . is a chancery matter. . . .” Notice of appeal was given on July 1, 1982.

The Court of Appeals affirmed on May 4,1983. See Taggart v. Moore, 8 Ark. App. 160, 650 S.W.2d 590 (1983). Rehearing denied at 164. The Court of Appeals stated that the appellant was entitled to be heard and concluded that the proper forum was the court which entered the original judgment, “but only upon pleadings and a prayer for relief which that court is authorized to grant pursuant to Rule 60(c)(4), Rule 60(d), Rule 60(j) and Rule 62(b), Arkansas Rules of Civil Procedure.” Upon petition for rehearing, the Court of Appeals noted again that after the transfer of the case from the chancery court that “there was no amendment of the complaint seeking either modification or vacation of the order or showing a meritorious defense.” (Emphasis in original.) See A.R.C.P. Rule 60.

The complaint in the present appeal was filed in the circuit court on June 29,1983. The prayer for relief sought damages for breach of contract. The contract relied upon was the alleged oral agreement by the appellees not to collect any judgment in their favor against the appellant. The case was transferred to the division of circuit court which entered the original judgment. On August 22, 1986, the original trial court granted appellees’ motion to dismiss. In dismissing this second complaint the court held that the action was barred by res judicata and election of remedies and was “not in compliance with the opinion of the Court of Appeals. . ..” The present appeal is from this order of the original trial court dismissing the complaint for damages for breach of contract.

As the arguments are so interwoven that it is impractical to discuss them separately, they will be addressed together in this opinion.

The question presented is whether a post-trial motion to set aside a judgment pursuant to A.R.C.P. Rule 60 is included within the meaning of “previous litigation” in the context of whether it is an issue which was litigated, or could have been litigated, under the doctrine of res judicata. Under the facts and pleadings of this case we hold that it is.

The appellant was under a duty to present any meritorious defense to the cross-complaint in the original action. Instead of defending on the merits, he entered into an agreement to aid the appellees in exchange for their promise not to enforce any judgment rendered against him. The alleged secret agreement was neither reduced to writing nor was it revealed to the other parties or the trial court. The agreement comes precariously close to collusion between the parties. Such an agreement is quite similar to a “Mary Carter” agreement. See Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 693 S.W.2d 726 (1982). Firestone required full disclosure to all parties and the court of such agreements. We do not express an opinion on this issue because it was not argued in the briefs.

Both parties agree that the doctrine of res judicata is accurately set out in Wells v. Arkansas Public Service Commission, 272 Ark. 481, 616 S.W.2d 718 (1982), where it states:

We first consider the question of res judicata and when it is applied. Generally speaking, it applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated. [Emphasis supplied.]

The Wells opinion goes on to state: “It is res judicata even though not adjudicated if the matters were necessarily within the issues and might have been litigated in the former suit.” One of the main purposes of the doctrine of res judicata is to put an end to litigation by precluding a party who has had the opportunity for one fair trial from drawing the same controversy into issue a second time before the same or a different court. A plaintiff who deliberately selects the forum is bound by an adverse judgment. Wells, supra, Robertson v. Evans, 180 Ark. 420, 21 S.W.2d 619 (1929). Res judicata applies even if the issue was not litigated in the first trial if it should have been included in the former trial. Timmons v. Brannan, 225 Ark. 220, 280 S.W.2d 393 (1955).

The issue is clear in the present case and no exception to the res judicata doctrine is involved. The appellant had the opportunity, if not the duty, to obtain a full and fair hearing in the original suit on the basic issue of his liability to the Moores. Instead of answering the cross-complaint by denying liability or asserting an affirmative defense, he entered into a very questionable oral agreement to aid the appellees. This agreement was not revealed until the appellee started efforts to collect on the judgment.

When appellee sought enforcement of the judgment, the appellant deliberately chose the chancery court as the forum to raise the issue of the oral agreement between the parties. Over appellant’s objection the case was transferred to the division of the circuit court which granted the judgment. The circuit court was the proper forum to challenge the judgment. However, specific defenses and prayers for relief must be raised in the proper forum or be barred by res judicata. The complaint was not amended after the transfer to circuit court and the trial court dismissed the complaint. The decision was appealed to the Court of Appeals and affirmed. The opinion of the Court of Appeals specifically stated that the appellant was entitled to be heard in a proper forum. The opinion went on to spell out that the appellant was entitled to relief only upon proper pleadings and prayer in a court that “is authorized to grant [relief] pursuant to Rule 60(c)(4), Rule 60(d), Rule 60(j) and Rule 62(b), Arkansas Rules of Civil Procedure.”

The appellant did not follow the suggestion of the Court of Appeals; rather, he filed a new cause of action for breach of contract. Having had new life breathed into his claim by the decision of the appellate court, the appellant selected the correct forum, but instead of trying to set aside the original judgment, he deliberately chose to seek a new remedy on the theory of damages for breach of contract. Moreover, the correct course of action was clearly available to the appellant when the case was transferred in the first instance from equity to law.

We hold that the issue presented in the complaint filed after the Court of Appeals decision contained issues which were included, or should have been included, in the original action. Certainly the prayer for relief prescribed by the appellate court could have been heard in the circuit court where the first suit was filed.

It is not necessary to discuss the other arguments because the doctrine of res judicata compels affirmance. There must be an end to litigation at some point and this case is ended now.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Kenneth Ray KENDAL v. STATE of Arkansas
    CR 86-222
    729 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Leon N. Jamison, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

A jury found the appellant guilty of burglary, rape, and aggravated robbery. The appellant contends that the evidence was insufficient to support the verdicts. We affirm the convictions.

The victim testified that late one night while watching television she fell asleep on a couch in her home. She was awakened by an intruder who held a knife at her throat. The intruder never allowed her to see his face. He raped her, took her car keys, money, and handgun. Police officers testified that the appellant had the victim’s handgun in his possession when he was arrested. The appellant later confessed to the crime. Police officers testified that the confession was freely and voluntarily given.

Appellant argues that the victim failed to identify him as the assailant and, therefore, the proof was insufficient. There was substantial evidence even though the victim could not positively identify the appellant. The confession coupled with the proof by the victim that the crimes were actually committed was sufficient to sustain the conviction. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984). Appellant next contends that the evidence was insufficient because his confession lacked credibility. It was for the trier of fact to resolve questions of credibility. Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984). Here, there was substantial evidence from which the jury could find that the confession was freely, voluntarily, and truthfully given.

Affirmed.


text:
    Ray SCOTT, Director, Arkansas Department of Human Services, et al. v. Griffin SMITH, Jr.
    86-249
    728 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Debby Thetford Nye, for appellants.

      John J. Watkins, for appellee; Smith, Smith & Duke, Of Counsel.
   Robert H. Dudley, Justice.

The appellee, Griffin Smith, Jr., sought to inspect and copy documents maintained by the appellant, a state agency which is subject to the Freedom of Information Act, Ark, Stat. Ann. §§ 12-2801 to -2807 (Repl. 1979 and Supp. 1985). Appellee was allowed to inspect most of the documents, but was not allowed to inspect the agency’s documents which were in the files of the agency’s deputy general counsel or the documents which the agency had given to an assistant attorney general. Appellee filed suit over the failure to disclose the requested records. A part of the trial court’s ruling was that a letter, a memorandum, and trial notes prepared by the assistant attorney general were exempt from disclosure because they were “unpublished memorandum, working papers and correspondence of the Attorney General” within the meaning of Ark. Stat. Ann. § 12-2804. There is no appeal from that part of the order. The trial court further held that the agency’s records which were in the possession of its deputy general counsel and the assistant attorney general were subject to public disclosure. In the sole assignment of error the appellant agency argues that the trial court erred in holding, that the Freedom of Information Act applies to the litigation files maintained by attorneys representing a state agency. The assignment of error is without merit.

The appellant agency’s argument is grounded in the contention that the attorney-client privilege, as set out in A.R.E. Rule 502 and ARCP Rule 26 (b)(3), provides an exception to the Freedom of Information Act. We first addressed the question of whether the attorney-client privilege should provide such an exception in Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). There, we held that the Freedom of Information Act should be broadly construed in favor of disclosure, and that under the evidence statutes then in effect, there should be no exception for the attorney-client privilege. We do not find any changes in the present rules which provide a specific exception as required by Ark. Stat. Ann. § 12-2804 (1979) and Laman.

Unlike the Freedom of Information Act, the attorney-client privilege has been narrowly construed since it prevents the dissemination of truthful information. Vittitow v. Burnett, 112 Ark. 277, 165 S.W. 625 (1914). A.R.E. Rule 502 is an evidentiary rule limited to court proceedings in this state. A.R.E. Rule 101. ARCP Rule 26(b)(3) is a procedural rule limited to discovery. Neither Rule 502 nor ARCP Rule 26(b)(3) specifically provides that it should have application outside of these limited areas, and we have previously held that a statute dealing with admission of evidence and discovery should not create a specific exception to the Freedom of Information Act. Baxter County Newspapers, Inc. v. Medical Staff of Baxter General Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981).

The agency argues that policy considerations favor reversal, but we have already addressed that issue. “Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood. Our duty is simply to give effect to its mandate.” Laman v. McCord, 245 Ark. at 406, 432 S.W.2d at 756. Laman has stood as our interpretation of the act on this subject for nineteen years, and through those years the General Assembly has not exercised its option to amend the act to create a specific exception for the attorney-client privilege. Accordingly, we affirm the decision of the trial court.

Affirmed.

Newbern, J., not participating.


author: Steele Hays, Justice.

text:
    Millard COX, Jr. v. Marian E. FARRELL
    87-61
    728 S.W.2d 954
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Butler, Hicky, Hicky & Routon, Ltd., by: Preston G. Hicky, for appellant.

      Doddridge M. Daggett, Lee County Child Support Enforcement Unit, for appellee.
   Steele Hays, Justice.

This appeal is from a judgment in a paternity suit finding that the appellant is the father of a child born to appellee on June 3,1983. The case is certified to us by the Court of Appeals because the interpretation of a statute is involved. Rule 29(c).

Appellee Marian Farrell filed a verified complaint in the Lee County Court alleging that she had delivered a child out of wedlock fathered by appellant Millard Cox, Jr. Cox denied the accusation and Ms. Farrell moved for an order requiring the parties to submit to blood tests. The tests were ordered but were never taken. A special referee heard the case and found Cox was not the father of the child. An order consistent with that finding was entered by the county court.

On appeal the circuit court denied Ms. Farrell’s motion for a non-jury trial, finding that Ark. Stat. Ann. § 34-701.1(b) (Supp. 1985) was unconstitutional as depriving the litigants of their right of trial by jury. However, the constitutionality of § 34-701.1(b) was recently upheld by this court in Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987). No objection to a jury trial was preserved.

Ms. Farrell testified that she became pregnant in September 1982 and carried the baby to full term, June 3,1983. She said she and Junior Cox drank beer together at the Marianna VFW Club and then drove to his home in her truck where they had sexual relations. She was certain Cox was the father and denied having relations with any other individual during August, September or October. She admitted giving contradictory accounts to Social Services and that she did not tell Cox she was pregnant until after the child was born.

Millard Cox denied having had sexual relations with Ms. Farrell. He admitted having been with her at the VFW Club, contending it was around October 10. He said he had been drinking heavily and he left his vehicle at the club and she drove him home. He went to bed and when he awoke next morning she was gone. He testified that he had been married three times without having fathered a child, but was uncertain of his sterility.

On cross-examination and over the objection of defense counsel Cox acknowledged that the child support unit had offered to pay for a blood test, that he had been asked to take a blood test but had refused. The jury returned a unanimous verdict finding Cox to be the father.

Cox has appealed on three grounds: it was error to permit counsel to question him about a blood test, the jury was incorrectly instructed and the trial court should have granted a motion for a new trial. We find no merit in the points.

Ark. Stat. Ann. § 34-705.1 (Supp. 1985) includes a provision that if blood tests are ordered in paternity cases and one party refuses to submit to the test, that fact shall be disclosed at trial unless good cause is shown. The issue is whether, in a trial de novo, one party may make reference to an event which occurred as the result of an order made by the court which conducted the first trial. Cox asserts that because counsel for Ms. Farrell was allowed to question him about his refusal to take a blood test which had been ordered by the referee prior to the first trial in the county court he was denied a trial de novo in circuit court.

Arkansas Const. Art. 7, § 33, provides that “[a]ppeals from all judgments of county courts may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.” For many years, statutes have provided that the appeal from various kinds of county court proceedings would be by trial de novo in the circuit court. See, e.g., Ark. Stat. Ann. § 27-2006 (Repl. 1979), and Ark. Stat. Ann. § 34-709 (Repl. 1962), the latter referring to a statute which has now been deemed superseded, Ark. Stat. Ann. § 26-1308 (Repl. 1962), which provided for appeal from justice of the peace court to circuit court “anew on its merits.” Interpreting these statutes we have said that the trial in the circuit court must be as if the case had been brought in that court in the first instance. Gocio v. Harkey, 211 Ark. 410, 200 S.W.2d 977 (1947); Carpenter v. Leatherman, 117 Ark. 531, 176 S.W. 113 (1915). See also Bigelow v. Union County, 287 Ark. 486, 701 S.W.2d 125 (1985).

In Batesville v. Ball, 100 Ark. 496, 140 S.W. 712 (1911), we said:

When a cause is appealed from the county court to the circuit court, the latter court obtains jurisdiction over the matter to the same extent as if it had been originally brought in that court, and it must proceed to fully try and determine the cause. It does not pass upon the question as to whether or not the county court has committed error in any of its rulings, either of law or of fact, but it must try the cause upon its merits, both of law and of fact, just as if it had been originally brought in the circuit court. It does not either affirm or reverse the findings or judgment of the county court, but tries the cause alone upon its merits, and determines the same by the exercise of its own discretion and judgment. [100 Ark. at 499, 140 S.W. at 714].

In the case before us now, the referee, acting for the county court, exercised the discretion provided to him in Ark. Stat. Ann. §34-705.1 (Supp. 1985) which says he “may” order blood tests to determine paternity or lack of it on the part of the defendant. Had Ms. Farrell asked the circuit court to enforce the referee’s order, it is clear the circuit court would not have been bound by the discretionary ruling of the county court referee, and the circuit court could have made its own order, or declined to make one, as it deemed proper. However, that is not the issue with which the circuit court was presented.

Cox moved in limine to prohibit references to the blood test order as a result of being informed Ms. Farrell intended to introduce testimony of a physician to demonstrate the accuracy of such tests. That testimony was to be presented in response to Cox’s anticipated testimony that he did not believe the tests accurate and for that reason had refused to submit to one. The circuit judge ruled that Cox could be asked about his refusal to submit to a blood test because it was a “factual” matter. That was exactly correct. No reference was to be made to the testimony taken in the county court nor was the circuit court to be bound in any manner by factual conclusions reached in the county court or any ruling made by the referee. It was simply a fact that Cox had refused to take a blood test, and that fact was made admissible in evidence by Ark. Stat. Ann. § 34-705.1 (Supp. 1985).

While it may be contended that the admissibility of the appellant’s refusal to submit to the test is dependent, indirectly at least, upon the county court’s order and thus a reference to the county court record must be made, we are not troubled by such a reference. Section 34-701.1(b) requires the county court record to be filed with the circuit court when an appeal is taken. Thus the general assembly was aware that some reference to the record might occur in the de novo proceeding. Without reference to the county court record the circuit court would be unable to ascertain the cause of action below to which the appeal is limited. See Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1982). As long as the circuit court conducts a trial of the case appealed without reference to error in the county court and without being bound in any way by the county court’s conclusions of fact or law, the right of an appellant to a trial de novo has not been violated.

II

Millard Cox also urges the trial court should not have given this instruction to the jury:

“Court’s Instruction No. 7. Where relevant evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and that party fails to do so without satisfactory explanation, you may draw an inference that such evidence would have been unfavorable to that party.”

Cox submits that the instruction shifts the burden of proof from the plaintiff to the defendant. We disagree. The jury was instructed correctly on the burden of proof and nothing in the instruction alters the burden. The instruction merely tells the jury, in essence, that where one party fails to produce relevant evidence within his control, the jury may infer that such evidence would be unfavorable.

We have said more than once the instruction is a correct statement of the law and, where the circumstances support such an inference, it is not error to give the instruction. Harry & Acklin Ford v. Landreth, 254 Ark. 483, 494 S.W.2d 114 (1973), Jones v. Brown, et al., Trustees, 242 Ark. 537, 414 S.W.2d 618 (1967); Saliba v. Saliba, 178 Ark. 250, 11 S.W.2d 774 (1928). It was for the jury to decide whether the inference was proper.

III

The final contention deals with a motion for a new trial. After entry of the judgment Cox filed a timely motion for a new trial based on newly discovered evidence. ARCP Rule 59. An affidavit of Bobby Worley accompanied the motion stating that he had been dating and having sexual relations with Marian Farrell at the time she became pregnant, that she told him the baby was his and asked for $ 100 in child support, and that he had been working in Texas and only recently learned of the paternity suit against Millard Cox.

Following a hearing on the motion at which Worley testified more fully as to his relations with Ms. Farrell the circuit court denied the motion upon findings that the proof was cumulative and could have, with diligence, been discovered. We find no abuse of discretion by the trial court in denying the motion. Sellers v. Harvey, 220 Ark. 541, 249 S.W.2d 120 (1952); Arkansas Power & Light Co. v. Mason, 191 Ark. 804, 87 S.W.2d 988 (1935).

There were a number of discrepancies in Worley’s testimony. While he maintained he was having sexual relations with Ms. Farrell at around the time in question, he denied that the child was his. He said he and Ms. Farrell were living together at a trailer park close to where Cox lived from before she became pregnant until some months afterwards and everyone knew it. We cannot say it was error to find that, with diligence, the evidence could have been discovered.

Affirmed.


text:
    Willie JONES, III v. STATE of Arkansas
    CR 87-2
    729 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      William R. Simpson, Jr., Public Defender, Thomas B. Devine, III, Deputy Public Defender, by: Donald K. Campbell, III, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Willie Jones III was convicted and sentenced to 40 years for aggravated robbery and theft of property. On appeal he argues that the evidence does not support his conviction for aggravated robbery. He asks that the conviction be reduced to robbery and the judgment modified accordingly. See Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980).

Appellant’s argument that there was insufficient proof that a deadly weapon was used to effect the robbery is wholly without merit.

Charles Michael Downen testified that while he was removing change from coin operated car washing machines he received a “powerful blow” from behind. He turned to see the appellant wielding a five foot iron pipe like a batter. Downen took a step toward the appellant, who swung toward his head and said “come on, come on.” When Downen paused, appellant told his companion to grab the money bag, which was done. Appellant held Downen at bay a moment as the other man ran with the money, then threw the pipe at Downen. The pipe struck Downen’s left hand, breaking his thumb and causing him to fall to the ground. The two were later arrested with a third individual whose car was used in the escape.

Aggravated robbery occurs when a robbery is committed by an individual armed with a deadly weapon. Ark. Stat. Ann. § 41-2102 (Repl. 1977). A deadly weapon is anything that in its manner of use is capable of causing death or serious physical injury. Ark. Stat. Ann. § 41-115(4)(b) (Repl. 1977). It can hardly be doubted that a five foot length of iron pipe is capable of causing death or serious injury. One well placed blow would suffice. A number of articles less lethal than iron pipe have been held to be deadly weapons: a flashlight (Jackson v. State, 214 Ark. 194, 215 S.W.2d 148 [1948], People v. Buford, 244 N.W. 351, 69 Mich. App. 27 [1976]), a walking cane (People v. Lee, 360 N.E.2d 1173, [111. Ct. App. 1973]), a stone, 2x3x9 inches (Acers v. United States, 164 U.S. 388 [1896]), an unloaded pistol used as a striking object (Else v. State, 555 P.2d 1210, [Alaska 1976]), a broomstick (People v. Buford, supra), boots (Thomas v. State, 229 S.E.2d 458 [Ga. 1976]), and even fists, depending on the manner of usage. (People v. Rumaner, 357 N.Y.S. 2735 [1974] and People v. Buford, supra), and see dissenting opinion of Justice Frank G. Smith in Wilson v. State, 162 Ark. 494, 258 S. W. 972 (1924) on the issue of whether ordinary shoes constitute a dangerous weapon.

We conclude that the testimony as to the object itself and the manner of usage by the appellant fully supported the verdict with respect to aggravated robbery.

The judgment is affirmed.


text:
    Roger Stephen SHUFFIELD v. STATE of Arkansas
    CR 87-19
    729 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered May 11, 1987

      Wilson, Engstrom, Corum & Dudley, by: Wm. R. Wilson, Jr., and Timothy O. Dudley, for appellant.

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

After being convicted of aggravated robbery and kidnapping on June 19,1984 Roger Steven Shuffield replaced his appointed counsel, Mr. Paul K. Lancaster, with retained counsel, Mr. Ron Heller. Notice of appeal was filed and on February 4,1985 Heller tendered the record to the clerk of this court for filing. Since more than seven months had expired the clerk properly refused to file the record. See Arkansas Rules of Appellate Procedure Rule 5.

Nothing material occurred thereafter until September 12, 1985 when Heller filed a Rule 37 petition in the trial court alleging ineffective assistance of trial counsel. On October 21 a hearing was held during which Heller represented to the trial court that he had filed a motion for a rule on the clerk of the Supreme Court. On that representation the trial court set an appeal bond and Shuffield was released pending the appeal.

Some eight months later the state moved for a revocation of Shuffield’s appeal bond alleging that no motion for a rule on the clerk had been filed. At a hearing on revocation Heller conceded that he had never filed a motion for a rule on the clerk. Shuffield’s bond was revoked and Heller was found to be in contempt of court and fined $50.

At this point Shuffield retained new counsel and on August 20,1986 a second Rule 37 petition was filed charging ineffective assistance by Ron Heller in the handling of Shuffield’s appeal. The motion was denied on October 20 and this appeal followed. Shuffield also filed in this court a motion for a belated appeal on March 27, 1987.

Neither the motion for a belated appeal nor the Rule 37 petition are cognizable. The filing of a motion for belated appeal is limited to eighteen months from the date of commitment. A.R.Cr.P. Rule 36.9. This record does not give us the exact date of the commitment but since Shuffield was not released on an appeal bond until the October 21,1985 hearing he was doubtless committed following his conviction. Nor may Rule 37 be used to revive an appeal that is out of time. In Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985) we addressed this issue squarely:

[Lomax] was committed in February, 1982, and therefore could have filed a motion for belated appeal in this court at any time between that date and August, 1983, which was eighteen months after date of commitment. Rule 36.9. He did not file such a motion. Instead, [Lomax] raised the question of whether counsel was ineffective for failure to appeal in his Rule 37 petition, filed April 11, 1984. Rule 37, however, is not a means of by-passing a motion for belated appeal. If it were construed to be so, an appellant could simply ignore the rule limiting the time for filing a motion for belated appeal in favor of filing a Rule 37 petition which may be filed at any time up to three years from the date of commitment. See Rule 37.2(c). (Our italics).

It is clear that Shuffield sought to appeal his conviction and that he retained counsel in timely fashion to process the appeal. Through no fault of his own the appeal was permitted to lapse by the failure of Mr. Heller to tender the record within the seven months allowed for lodging the record on appeal. Gibson v. State, 272 Ark. 345, 614 S.W.2d 234 (1981).

There is, however, a solution available to remedy these omissions, i.e. a motion for a rule on the clerk under Rule 5, Rules of the Supreme Court and Court of Appeals, based on an admission by counsel that the failure to lodge the record after the notice of appeal was filed was due to his own neglect. That procedure has been established and frequently followed since Harkness v. State, 264 Ark. 561, 572 S.W.2d 835 (1978), and In Re: Belated Appeals in Criminal Cases, Per Curiam, February 5, 1979, 265 Ark. 964. Where counsel assumes responsibility the motion for a rule on the clerk is granted routinely. Where counsel fails to accept responsibility, but it is plain from the record where the fault lies, we have granted the rule on the clerk upon a finding that counsel’s neglect was the occasion for the failure to tender the record in a timely manner. In both instances the Committee on Professional Conduct is informed of the occurrence.

In this case it is evident that the failure to bring a timely appeal was the fault of Attorney Ron Heller. Under these circumstances the motion for belated appeal is treated as a motion for a rule on the clerk to lodge the record on appeal. The motion is granted and a copy of this opinion is referred to the Supreme Court Committee on Professional Conduct.

Motion granted.