author: Richard B. Adkisson, Chief Justice.

text:
    Idonia M. BROWN v. Jerry J. FORD and Alvin FORD, Jr., Doing Business as LAKESHORE MOTOR COMPANY
    83-96
    658 S.W.2d 355
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983
    [Rehearing denied October 31, 1983.]

      Legal Services of Arkansas, by: Gilbert L. Glover and Mary W. Cochran, for appellant.

      James W. Haddock, for appellees.
   Richard B. Adkisson, Chief Justice.

This appeal arises from a deficiency judgment rendered against appellant, Idonia Brown, on an installment sale contract representing the deferred purchase price of an automobile sold by appellee, Lakeshore Motor Company, hereinafter Lake-shore.

The points upon which Appellant Brown relies for reversal are that the trial court erred: (1) in ruling that Lakeshore disposed of the collateral in a commercially reasonable manner; (2) in finding the notice of private sale was sufficient; (3) in granting the full amount requested for repair and maintenance expense; and (4) in failing to award appellant damages on her counterclaim under Ark. Stat. Ann. § 85-9-507 (1) (Supp. 1983). On appeal we affirm.

On July 21, 1978, Brown bought a 1978 Ford Pinto automobile from Lakeshore. Brown executed an installment sale contract for the unpaid purchase price. Subsequently, Lakeshore assigned the contract to Ford Motor Credit Company, hereinafter Ford Credit. On July 2, 1980, Ford Credit repossessed the automobile after Brown failed to make the required payments. Brown received notice from Ford Credit on July 2, 1980, that the car was on Lakeshore’s lot, that it would be sold at private sale anytime after ten days from the date of notice, and that Brown would be liable for any deficiency arising from the resale of the car. On September 2,1980, Lakeshore repurchased the contract from Ford Credit for the amount due thereon, pursuant to the repurchase agreement.

When repossessed, the car had extensive physical damage to the grill, roof, hood, and doors. On repurchase, Lakeshore exhibited the car on its used car lot and tried to sell the car both at wholesale and retail in its damaged condition. After no bids were obtained, Lakeshore began necessary repairs in order to market the car. The car was eventually resold on October 31, 1981, approximately 16 months after the repossession.

Brown first argues that Lakeshore failed to sell the collateral within a commercially reasonable time. In determining the commercial reasonableness of a sale we must consider the reasonableness of method, time, place, and terms. Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1983). The uncontroverted testimony was that upon repurchase the appellee immediately began trying to sell the automobile to wholesalers and individual purchasers. After being unable to interest a buyer, the appellee began repairs on the car. Apparently, Lakeshore did everything it could do to sell the vehicle as quickly as possible. Brown offered no proof as to what other steps Lakeshore could have taken to sell the car. Therefore, we must affirm the trial court in its finding that the 16 month delay in reselling the car was commercially reasonble.

Brown next argues that the notice given by Ford Credit was insufficient for a sale held by Lakeshore 16 months later. We do not agree. The secured party has only a duty to give reasonable notice of the time after which any private sale will be made. A second notice is not required even though a significant period of time passes before resale. See Ark. Stat. Ann. § 85-9-504 (3) (Supp. 1983).

Brown also argues the notice was misleading in that it stated Lakeshore was to sell the car, but the car could be redeemed prior to sale from Ford Credit Company. We find no merit to this argument. Ford Credit was an assignee of the contract and was a secured party along with Lakeshore. Brown admits to receiving notice from Ford Credit. The fact that Brown went by and discussed with the dealer the possibility of getting the car back proves that the notice was sufficient to prevent her from being misled. This further shows that the notice was given in time to allow the appellant to exercise her right of redemption.

The third argument asserted by Brown is that the trial court erred in awarding the full amount of repair and maintenance expense. Ark. Stat. Ann. § 85-9-504 (1) allows a secured party to recover the cost of repairs “following any commercially reasonable preparation or processing . . . .” Therefore, recovery of any commercially reasonable cost in preparing the vehicle for resale would be allowed under this statute. The testimony given by Lakeshore shows that there was extensive physical damage done to the vehicle. Also, the carpet, tires, belts, and locks had to be replaced along with numerous other repairs and maintenance. These repairs were not started immediately after the repossession but were progressively done in order to make the vehicle marketable. Therefore, we cannot say the trial court committed error in its finding on this issue.

Brown further asserts that the award of $1,098.51 was error because the appellee only proved $ 1,024.64, a difference of $73.81. Since this issue was not raised in the trial court we will not consider it for the first time on appeal. Wilson v. Lester Hurst Nursery, Inc., 269 Ark. 19, 598 S.W.2d 407 (1980).

In her final argument Brown claims she is entitled to damages under Ark. Stat. Ann. § 85-9-507 (1). This section provides damages for the debtor if he can show that the secured party did not dispose of the collateral in a commercially reasonable manner. See Ark. Stat. Ann. § 85-9-501 et seq. Since we have affirmed the trial court’s finding that Lakeshore did dispose of the collateral in a commercially reasonable manner, there can be no merit to this argument.

The judgment is affirmed.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice, Frank Holt, Justice,

license: Public Domain

text:
    Robert M. THOMPSON v. STATE of Arkansas
    CR 82-133
    658 S.W.2d 350
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Jack T. Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

The appellant, Dr. Robert Thompson, was convicted of twenty separate offenses of carnal abuse occurring over a two-year period. The jury returned a verdict fixing his sentence at the statutory maximum of ten years imprisonment and a ten thousand dollar fine for each charge. At a separate sentencing hearing, the circuit judge ordered the sentences to run consecutively for a total of 200 years imprisonment and a $200,000.00 fine.

Appellant first argues that the evidence was insufficient to support the conviction. The victim, a child of barely twelve years, was taken by his father, Lynn Ross Wilmoth, known as Moe, to appellant’s house February 24, 1980, where appellant engaged in carnal abuse with him. The victim identified appellant and testified that his father had taken him there on 19-20 occasions from February, 1980, through January, 1982. He further testified that of those 19-20 occasions there were three or four times he did not have sex with appellant. Over this two year period, Richard Purifoy and other men were sometimes present at appellant’s house. As many as four or five different men were involved. The victim testified he had sex with the other men, but appellant always went first. The sexual acts the victim engaged in with appellant were sodomy, fellatio, and an act wherein one person uses his fist in a sexual way in the anus of another person. The victim identified a photograph depicting appellant having anal intercourse with him. The victim identified three other photographs depicting various sexual activity between him and appellant and testified the photographs were taken by appellant over the two year period. On one occasion he and his father stayed at appellant’s house all night. During the time that he engaged in sexual activities with appellant, his father either watched, watched a movie, or masturbated. The victim testified he did not enjoy the sex acts but participated in them because he was scared of his father who had whipped him, beat him, and abused him sexually. Finally, in February, 1982, he ran away from home. At the time of trial he was living in a foster home.

The victim’s testimony that he engaged in sex with appellant at least sixteen times is substantiated by names and notations in appellant’s handwriting on calendars and in a notebook minutely documenting his sex life. The evidence was sufficient to support appellant’s conviction for 16 of the 20 offenses. We therefore reverse and dismiss four of the twenty convictions.

Second, appellant argues that the penalties imposed on appellant violate both the United States and Arkansas constitutional prohibitions against cruel and unusual punishment. U.S. Const, amend. VIII; Ark. Const, art. 2 § 9. The Eighth Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment, prohibits not only barbaric punishments but also sentences that are disproportionate to the crime committed. Weems v. United States, 217 U.S. 349, 367 (1910).

The United States Supreme Court has recently stated that the type of inquiry a court should conduct to determine if a given sentence is constitutionally disproportionate is a case-by-case determination. Solem v. Helm, _ U.S. _, 103 S.Ct. 3001, 3012 (1983). The court in Solem further states:

[a] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id., 3010-11.

For a determination of the gravity of the offense, the court notes that comparisons can be made both in the light of the harm caused or threatened to the victim or society and in a consideration of the culpability of the offender. For example, nonviolent crimes are less serious than violent ones; stealing a million dollars is more serious than stealing a hundred dollars. As to the culpability of the offender, a court may consider the defendant’s intent or lack of intent and his motive in committing a crime. Id., at 3011. The court ki Solem adds that the above list of criteria for comparing the severity of different crimes is not meant to be exhaustive. Id.

Counsel for appellant argues that the offenses committed by appellant were nonviolent, that neither force nor coercion were used against the victim, and that appellant posed no particular threat to society. Counsel also points out that given appellant’s age, he has in effect received a life sentence, a punishment concomitant to that imposed for murder in the first degree and other violent crimes. Even though appellant’s crimes involved no violence, they were crimes against a young person. Given the victim’s testimony that he did not enjoy these acts and was afraid of his father, it could not really be said that his participation was consensual.

The sexual abuse of children is an abhorrent crime which clearly poses a threat to society. Appellant was found guilty by the jury which imposed the maximum penalty on each count. The trial court in turn exercised its discretion to order the sentences to be served consecutively. We have previously stated that the cumulative effect of consecutive sentences does not make punishment cruel and unusual. Clark v. State, 264 Ark. 630, 634, 573 S.W.2d 622, 624 (1978); Hinton v. State, 260 Ark. 42, 48, 537 S.W.2d 800, 804 (1976). We do not find the cumulative sentence of 160 years imprisonment and $160,000 fine to be barbarous, outside the law, or wholly disproportionate to the nature of the offense charged.

Third, appellant argues that the trial court erred in holding the affidavit sufficient to support the issuance of the search warrant. We do not agree. Heretofore, the Arkansas Supreme Court has applied the two-prong test of Aguilar v. Texas, 378 U.S. 108 (1964) codified at A.R.Cr.P. 13.1 (b). State v. Prue, 272 Ark. 221, 225, 614 S.W.2d 221, 223, cert. denied, 454 U.S. 863 (1982). The affidavit must reflect 1) some underlying circumstance showing the reliability of the informant and 2) some underlying circumstance from which the informant concluded that the items to be seized were where he said they were. Among the circumstances set forth in the affidavit indicating the reliability of the informant were: the informant’s correct information as to the appellant’s profession, place of employment and residence; the description of the young white male and the older white male later determined to be the victim and his father, Lynn Wilmoth, known as Moe; the positive identification of Lynn Wilmoth from a photographic spread of six unknown white males; and the informant’s admission to engaging in sodomy with appellant, an admission against interest which would subject him to criminal liability. Among the circumstances indicating that the items to be seized were located where the informant had said were: the informant’s possession of a key to the residence given him by appellant; and his intimate knowledge of the residence indicated by a sketch he had drawn.

The United States Supreme Court recently enunciated a new test for the review of search issues where an officer obtains a search warrant on the basis of an informant’s statement. The new test is a totality of the circumstances test whereby the issuing magistrate is to make a practical, common sense decision based on all the circumstances set forth in the affidavit. Illinois v. Gates, 103 S.Ct. 2317, 2332 (1983). Here, the affidavit meets both the Aguilar two-prong test and the new totality of the circumstances test. In the future we adopt and will apply the new, more flexible, totality of the circumstances test as is now permissible under Illinois v. Gates.

Fourth, appellant argues that certain testimony should have been excluded pursuant to Unif. R. Evid. 403. Defense counsel objects to the admission of evidence that the victim’s father was playing with his penis while appellant committed these offenses. We find that Wilmoth’s actions were part of the res gestae and are presumptively relevant and admissible. There is no showing of unfair prejudice to appellant by the admission of this evidence.

Fifth, appellant argues that the State failed to comply with A.R.Cr.P. 17.1 (a) (1) in that the State did not notify defense counsel that Richard Purifoy would be a witness until a few days before trial. Purifoy had been a co-defendant of appellant and had apparently entered into an agreement to plead guilty and to testify. The record reflects that defense counsel were informed that all co-defendants were potential witnesses. In light of this fact, we find no prejudicial error.

Affirmed in part, reversed in part.

Purtle, J., concurs.

Holt, J., dissents.

John I. Purtle, Justice,

concurring. Apparently this court has abandoned its old policy of not issuing advisory opinions set out in Stafford v. City of Hot Springs, 276 Ark. 466, 637 S.W.2d 553 (1982). In McCuen v. Harris, 271 Ark. 863, 611 S.W.2d 503 (1981) we stated we would not answer academic questions. I have advocated giving advisory opinions under certain special and limited circumstances but the majority has steadfastly refused until today to follow this course.

It was not necessary for the majority to include in its opinion the ruling handed down by the U.S. Supreme Court in Illinois v. Gates, _ U.S _, 103 S.Ct. 2317 (1983) nor do I consider it proper to state what tests this court will utilize in the future. The majority clearly states that the affidavit in the present case meets the two-prong test of Aguilar and Spinelli. However, since the matter has been gratuitously thrown in I will comment. The exclusionary rule is predicated on the 4th Amendment to the Constitution of the United States of America, which was finally ratified December 15, 1791, almost 200 years ago. The 4th Amendment states in part:

[N]o warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 4th Amendment was written because the framers of the Constitution despised the general searches and seizures existing in England at the time. General searches had also been conducted in the colonies by the government of England through what were known as writs of assistance. These writs generally authorized certain officials to search wherever they chose in attempting to locate goods which had been illegally smuggled into the colonies. Many of the warrants were attempts to quiet seditious publications and to put the publishers out of business. The people who framed our Constitution and the Bill of Rights thought they were protecting American citizens in providing that their papers, goods, and persons would be free from intrusion by those who would not observe or did not agree with their ideas. It was the 4th Amendment which gave rise to the fact that “a man’s home is his castle.” Any search of a person, his premises or possessions is obnoxious and a hinderance to his liberty. Our 4th Amendment wisely states that search warrants must be supported by oath or affirmation which particularly describe the place to be searched and the persons or things to be seized. This was to eliminate the general search. Any departure from this mandate is a taking away of the rights of all the people. The step the majority takes today may be the first step in the destruction of the 4th Amendment to the Constitution of the United States of America. To this end I will not be a part.

The anonymous informant in the Gates case merely supplied tips which were followed up by the officers and found to be true. So far as I know it has never been considered improper or illegal for police officers to investigate any tip received by them, whether reliable or not. The Gates opinion did not even hint that a tip from an unknown informant would support “probable cause” sufficient to justify the issuance of a warrant by a magistrate. In fact the court stated, “We agree with the Illinois Supreme Court that an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” The opinion further held that the Illinois court seemed to imply all of the foregoing relative factors were to be rigidly applied.

A.R.Cr.P., Rule 1.2 states: “These rules shall govern the proceedings in all criminal cases in the Supreme Court and in circuit courts of the State of Arkansas.” It is not the duty of this court to set forth tests which are to be used in the future, but rather, the existing rules are to be applied in the cases which come before us. This court has adopted rules relating to the issue of search and seizure. A.R.Cr.P., Art. IV. We are bound by our rules until such time as they are changed. A.R.Cr.P., Rule 13, specifically describes the circumstances upon which a search warrant may be issued. This rule has adequate protection for the public and plenty of authority for granting a search warrant within the confines of the 4th Amendment to the U.S. Constitution. I believe our rules conform to the requirements of Aguilar and Spinelli and would validate a warrant in circumstances such as Gates without the necessity of chipping away at the Constitution. A.R.Cr.P., Rule 13.1 (b) provides that the application for a search warrant shall meet a test as rigid as the test in Aguilar. We have no right to abrogate our own rule in favor of one offering less protection to our citizens. We are not bound to follow a decision of the U.S. Supreme Court which is more restrictive than our own rules and statutes.

An anonymous informant is a person who is unwilling to appear before a magistrate or other official and give a sworn statement in support of his allegation. The word anonymous by definition implies nothing is known about the person’s “veracity,” “reliability” or “basis of knowledge.” In the absence of information that an anonymous informer would in some manner suffer harm or injury if his identity were revealed I would treat such information as being worthy only of being checked out. Information from a nameless, faceless individual about whom we know nothing concerning personal honesty and integrity is not sufficient within itself to support the issuance of a search warrant. To so act upon the unverified tip of an unknown informant is a step in the direction of the despicable general search warrant. Justice Douglas stated in a dissenting opinion in Draper v. United States, 358 U.S. 307 (1959): “A rule protective of law-abiding citizens is not apt to flourish where its advocates are criminals. Yet the rule we fashion is for the innocent and guilty alike.” We are living in a time where there is a hue and cry for more and harsher punishment for criminals. Perhaps this has some justification, but we should be mindful of the words of Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443 (1971), when he said: “In time of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.”

A long journey commences with one step and if it be in the wrong direction the intended goal may never be achieved. We must be ever mindful that this is a time of conflict and fear. Keeping this in mind we should make certain that when we take such a step, it is in the right direction. Though it may appear that my step be to the beat of a different drummer, I am convinced that it is in the right direction, and toward the direction the framers of our Constitution held dear in fashioning the language of the 4th Amendment. It is for these reasons I respectfully concur in the present case, agreeing with the majority’s result, but disagreeing with the language restricting the people’s right to be free from unreasonable searches and seizures.

Frank Holt, Justice,

dissenting in part. I dissent to that part of the majority’s opinion which holds there is substantial evidence to support the jury’s verdict on sixteen of the twenty counts. As I construe the evidence it is sufficiently substantial to support a conviction on ten counts only.


author: George Rose Smith, Justice.

text:
    William C. MALCOM v. Cynthia Ann THOMASON
    83-77
    658 S.W.2d 357
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

      Wright br Chaney, P.A., by: William G. Wright, for appellee.
   George Rose Smith, Justice.

William C. Malcom brought this suit against Cynthia Ann Thomason for personal injuries and property damage resulting from a traffic collision at the intersection of State Highway 51 and Mount Zion Road in Clark county. In appealing from an adverse verdict and judgment Malcom argues a single point: State police officer Jim Jenkins should have been permitted to state his opinion about the proper point on Highway 51 for a person to turn to the left onto Mount Zion Road.

The highway runs east and west at the intersection in question. Mount Zion Road angles off from the highway in a northeasterly direction. The intersection is at the crest of a hill so steep that drivers approaching from opposite directions on the highway cannot see each other until they are nearly at the intersection.

The accident happened after dark on a November evening in 1979. Malcom testified that as he approached the intersection from the east he saw the reflection of the other vehicle’s headlights, up in the air, before he reached the top of the hill. When he first saw the vehicle itself it was in his lane, turning into Mount Zion Road. He could not stop and struck the side of the other vehicle. The point of impact was just over the hill, on the west side of the crest.

Officer Jenkins, a witness for Malcom, investigated the accident and was quite familiar with the intersection, having lived two or three blocks from it. He said that as Mount Zion Road comes in to the highway it has a large apron that extends out on both sides of the hill. The plaintiff’s theory was that the defendant began her turn too soon. As abstracted, Officer Jenkins described the situation in this language: “A driver going east on Highway 51 could go up to the crest of the hill and cut back, or make a zig, into Mount Zion Road. To make a zig means you can’t just turn like at a normal intersection and proceed on about your business. You’ve got to make a little maneuver there.”

On redirect examination the officer was asked this question: “Where is the point on Highway 51 that would be a proper point to turn into Mount Zion Road?” The only argument for reversal is that the court should not have sustained an objection to this question. This argument is unsound, for two reasons.

First, we cannot tell from the abstract of the record just exactly what the witness’s answer would have been, and trial counsel failed to make a proffer of proof. In this situation the objection to the exclusion of evidence is not properly preserved. Riddell v. Little, 253 Ark. 686, 488 S.W.2d 34 (1972). It is argued, however, that the expected answer was apparent to the jury from the context of the question; so no offer of proof was needed. Univ. R. Evid. 103 (a) (2). Perhaps so, but if the proof before the jury was sufficient to make known to them exactly what the witness would have answered, there was no need for the officer to repeat what he must already have said.

Secondarily, Miss Thomason later testified that she was looking for the turn in the dark, that she had never turned left there before, and that she did not know that the apron existed or “that you could go down and turn across the crest of the hill and turn back into Mount Zion Road.” Officer Jenkins’s testimony about the need to make a zig and a maneuver assumed the driver’s familiarity with the intersection and thus was not really relevant to the question of negligence on the part of a person in Miss Thomason’s position. We cannot order a new trial on the basis of a ruling not shown to be erroneous.

Affirmed.


author: Frank Holt, Justice.

text:
    Charles ROWLAND and Verna ROWLAND v. GASTROENTEROLOGY ASSOCIATES, P.A.
    83-59
    657 S.W.2d 536
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      David Hodges, for appellants.

      Friday, Eldredge & Clark, by: Laura A. Hensley and William M. Griffin, III, for appellee.
   Frank Holt, Justice.

The issue presented is whether an attorney’s client, the appellee, is liable to another party, the appellants, for the alleged tortious acts of the attorney. The court granted appellee’s motion for a summary judgment on the basis that the appellee’s attorney was an independent contractor and, therefore, appellee was not liable for his action. Hence this appeal.

Appellant, Verna Rowland, received medical services from the appellee. The appellee referred her delinquent account for collection to Josh McHughes, an attorney. When attempts at collection failed, a suit to recover $468.39 was filed against the appellant by McHughes on behalf of the appellee. Appellants contend that during the pendency of the action they reached a settlement agreement with appellee’s attorney which was binding on appellee and that they paid $453.38 in full settlement by check to the attorney. The appellee disputes appellants’ version of the purported settlement contending there was no settlement agreement and, even if there was, it did not include the court costs and the agreement was not binding on it. The $453.38 check tendered by appellants and accepted by appellee’s attorney was marked “Paid in Full.” After the receipt of the check, a default judgment on the debt was rendered in favor of appellee in the amount of $468.39 plus costs. When no payment was made by the appellants to cover the court costs, McHughes garnished the appellants’ bank account for $39.20 for court costs plus the costs of the garnishment which were $14. The bank responded by paying into the court registry $172.02, the entire balance of the appellants’ account, and then closing the account. McHughes subtracted $53.20 ($39.20 plus $14 as costs for the writ of garnishment) and the balance of $118.32 was sent to the appellants. The closing of appellants’ account by the bank resulted in several of appellants’ checks to third parties being returned because of insufficient funds. The appellants filed suit against the appellee, the creditor, on the theory that the damages suffered by them were caused by the “agents, servants, and employees of” appellee, alleging abuse of process and tort of outrage. They sought compensatory and punitive damages based upon appellee’s negligence. As indicated, the trial court made a determination that the appellee’s attorney represented it in the capacity of an independent contractor and, therefore, granted appellee’s motion for summary judgment. We reverse.

Summary judgment is appropriate only when the pleadings, depositions, and answers to interrogatories, together with the affidavits, show there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. ARCP Rule 56; Davis, Adm’x v. Lingl Corp., 277 Ark. 303, 641 S.W.2d 27 (1982). Evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Dodrill v. Ark. Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). The object of a summary judgment is not to determine an issue but to determine whether there is an issue to be tried. If there is any doubt, the motion should be denied. Trace X Chemical v. Highland Resources, 265 Ark. 468, 579 S.W.2d 89 (1979).

Obviously, the dispute here over whether the account had been fully settled is a material factual issue and should have been submitted to the factfinder rather than disposed of on summary judgment. Further, another issue of a material fact exists. Appellants base their claim against the appellee on the agency theory of the liability of a principal for the torts of his agent when those acts are within the scope of that agent’s apparent authority. Appellee denies the agency relationship and instead asserts McHughes was an independent contractor and as such his actions are not imputable to the appellee. On this issue the court, in Walker v. Stephens, 3 Ark. App. 205, 626 S.W.2d 200 (1982), aptly stated:

... [A]n attorney’s contract of employment implies that he is authorized to take those procedural steps deemed by him to be necessary and proper in the conduct of the litigation whether in pursuit or defense of the claim. His actions in those matters, in the absence of fraud, are regarded as the acts of his client who is bound by those actions, but the mere fact that counsel is retained does not, in and of itself, carry an implication of authority to compromise his client’s claim and to hold otherwise would vest the attorney with far more power than his retainer requires or implies. McCombs v. McCombs, 227 Ark. 1, 295 S.W.2d 774 (1956). . . .
The question of whether or not an agent is acting within the scope of his actual or apparent authority has always been held to be a question of fact for the jury or trier of fact to determine. Babbitt v. Gordon, 251 Ark. 1112, 476 S.W.2d 795 (1972).

Here, there being disputed facts on material issues with respect to the purported settlement agreement as well as the apparent authority of appellee’s attorney, the granting of summary judgment was erroneous.

Reversed and remanded.

Adkisson, C.J., concurs.


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

text:
    Donald FINK v. STATE of Arkansas
    CR 83-59
    658 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983
    [Rehearing denied October 31, 1983.]

      Hubbard, Patton, Peek, Haltom 6- Roberts, by: John B. Greer, III, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.

      Purtle, J., would grant rehearing.

   Frank Holt, Justice.

Appellant was convicted of raping his two minor children and sentenced to life in prison. We affirmed. Fink v. State, 265 Ark. 865, 582 S.W.2d 3 (1979). Subsequently, appellant petitioned this court for permission to proceed under A.R.Cr.P. Rule 37. We granted appellant permission to proceed on the allegations contained in points I, II, and III of his petition relating to ineffective assistance of counsel, who is now deceased. After an evidentiary hearing and a review of the trial transcript, the court made specific findings and denied the requested relief. We affirm.

In the circuit court proceeding and in his arguments on appeal, appellant has enlarged upon the three grounds which this court granted review. Rule 37.3 provides:

(a) If the conviction in the original case was appealed to the Supreme Court, then no proceedings under this rule shall be entertained by the circuit court without prior permission of the Supreme Court.
(b) All grounds for relief available to a petitioner under this rule must be raised in his original petition unless the petition was denied without prejudice.

Clearly, this rule limits the trial court in postconviction proceedings to that authorized by this court.

We have recognized that the trial court is limited to a consideration of those allegations in the petition in making a determination of appellant’s entitlement to postconviction relief. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); and Stanley v. State, 258 Ark. 480, 527 S.W.2d 613 (1975). Consequently, here, we consider only those allegations of ineffective assistance of counsel which appellant raised in his petition and which we granted permission to consider. We granted an evidentiary hearing on three allegations only: (1) ineffective assistance of counsel during ‘ ‘pretrial preparation;” (2) ineffective assistance of counsel resulting from the failure of appellant’s trial attorney to object to prejudicial testimony by two of the state’s witnesses and to the prosecutor’s closing argument; and (3) ineffective assistance of counsel based on the attorney’s failure to argue “reasonable doubt” to the jury.

The Sixth Amendment to our federal constitution guarantees an accused the right to have effective assistance of counsel for his defense. This does not guarantee any degree of success by such counsel inasmuch as competent counsel may sometimes lose a case. Therefore, a successful result is not a proper gauge to determine counsel’s competency. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). There, we also said that there is a presumption of effective assistance by counsel, and the burden is upon the appellant to overcome this presumption and demonstrate by clear and convincing evidence that he was prejudiced by the representation of his counsel to such an extent he did not receive a fair trial.

On point I appellant merely observes that the deceased trial counsel “apparently” did not interview the children before trial. We do not consider this a convincing argument. Point III was not addressed by the appellant on appeal. Issues not argued on appeal are considered abandoned. Burks Motors v. Int’l. Harv. Co., 250 Ark. 641, 466 S.W.2d 945 (1971).

Under point II appellant presents three arguments relating to ineffective assistance of trial counsel. The first instance related to certain testimony, without objection, by appellant’s former wife on redirect by the state. On cross-examination, the appellant’s counsel had questioned Mrs. Fink about why she delayed taking her children to a doctor after she discovered her husband’s actions. On redirect Mrs. Fink testified that the appellant had once pulled a loaded gun on her and told her he was going to kill her. It is argued that this testimony was prejudicial. As a response to this attempt by appellant to discredit Mrs. Fink for remaining silent, the state properly elicited evidence on redirect to rehabilitate her. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). Here, her answer on rebuttal goes to the question of her fear of the appellant which allegedly caused her to remain silent.

The appellant also claims that his deceased trial counsel should have imposed an objection when a local physician, who had no expertise in psychology or psychiatry, was allowed to testify that the sex crimes would have an emotional impact on the two minor children. This doctor’s experience included serving a local social service center in his professional capacity. The doctor conducted physical examinations on the two minor children and took a case history from each one. This evidence, coupled with the extent of the physical injuries suffered by the children being forced to engage in deviate sexual activity with their father, understandably justified the doctor to conclude that some emotional trauma to the children could be anticipated.

Appellant’s third assertion, under point II, of misconduct concerns two statements made by the prosecutor during his closing argument to which there was no objection. The prosecutor first asked the jury, “How long will you provide these kids, your kids, my kids, people in Hempstead County with protection from Donald Fink?” The other statement was made by the prosecutor, without objection, in his rebuttal closing argument. The prosecutor in effect asked the j ury to impose the maximum punishment by saying, ‘‘If he is not guilty of rape, I would appreciate it if you would send him home free today.” The jury was instructed that closing arguments are not evidence and should be disregarded. We have found this instruction to be significant in removing any claimed prejudice because of the state’s closing argument. Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982). We have held that “[t]he state may argue for the maximum punishment in sensible language just as a defendant may argue for the minimum punishment.” Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980).

Taking into account all of appellant’s allegations on which we granted permission to proceed in an evidentiary hearing, concerning ineffective assistance of counsel, we are of the view that he has failed to demonstrate by clear and convincing evidence that he did not receive a fair trial as a result of the alleged prejudicial conduct of his trial counsel.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because it limits our review of effectiveness of counsel. We granted the petition for the purpose of determining whether counsel was ineffective in three specific instances. However, the hearing developed many other instances of what I feel amounted to ineffective assistance. Looking at the record as a whole it is obvious that petitioner in effect had no counsel at his trial, and certainly not an effective one.

Counsel for the defense did not voir dire the jury; made no opening statement; made only one objection during the entire trial; did not object to any statements or evidence which the state desired to present; did not interview a single witness before trial; did not make a motion for a directed verdict at the close of the state’s case nor after all evidence was presented; and, failed to object to appellant’s wife testifying that he threatened her with a gun many times or to the testimony of the doctor stating in effect that appellant was guilty.

So far as I am concerned the appellant was sent to prison without effective assistance of counsel. Perhaps he is guilty and maybe he would have been found so had he had the best counsel on earth. Nevertheless, he was entitled to effective counsel at his trial, under the 6th Amendment to the United States Constitution and Art. 2, § 10 of the Arkansas Constitution. When this court reviews the record in a claim of ineffective assistance of counsel, we should consider the record below in its entirety and base our judgment thereon. To limit our review of these genre of cases is to do a disservice both to the individual petitioners who may have suffered injustice within the confines of our system of justice and to the legal profession as a whole.


text:
    Fred Lee HOGAN v. STATE of Arkansas
    CR 83-83
    657 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Ken Cook, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted of two counts of rape and sentenced to life in prison on each count with the sentences ordered to run consecutively. The sole issue argued on appeal is that the procedure used at a pretrial photographic identification of appellant by the rape victims was so impermissibly suggestive that it tainted the in-court identification of appellant. Consequently, the court should have suppressed the in-court and the pretrial identification of appellant. Appellant’s argument is directed at the imperfection or inadequacy of the pretrial identification procedure.

The two rape victims were walking across a Mississippi River bridge sometime about midnight when a black male came from behind them, put an arm around each girl’s neck, stated he had a gun, and ordered them to continue walking with him or he would kill them. The bridge was well lighted and the three apparently walked some distance to the end of the bridge in Arkansas. The rapes took place there underneath a dark portion of the bridge. One month after the rapes, the two girls were shown six photographs by a police officer. They were sitting at table approximately three feet from each other when each looked at the photographs. They were instructed by the officer not to communicate or indicate their choice to each other. The first girl complied. The pictures were then passed to the second girl. The first girl then stood behind the second girl. When the second girl almost instantly announced her choice, the first girl said that was her choice also. However, there was conflicting testimony at the pretrial hearing conducted on the appellant’s motion to suppress the identification. The second girl said that she saw the first girl select two pictures, neither of which was the defendant. The first girl disagreed. She explained that although she had selected two possibilities, one of them was the defendant, and before the second girl announced her choice, she had already made up her mind which one of the photographs depicted her attacker. The thrust of appellant’s argument is that the identification by the second girl suggested an identification to the first girl, making the photographic lineup impermissibly suggestive and thereby tainting the in-court identification of appellant.

Any conflict in the testimony of the witnesses was for the trial court to resolve. The trial court obviously accepted the version or the testimony of the first girl. We have held that a trial court’s decision on the admissibility and reliability of an identification will not be reversed unless, under the totality of the circumstances, it is clearly erroneous. Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982); Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1983); and Harrison v. State, 276 Ark. 469, 637 S.W.2d 549 (1982). In Glover we also said that “[a]t a hearing on a motion to suppress the trial judge must first determine the reliability of identification”; and the reliability of the evidence “is the linchpin in determining its admissibility.” Further, in assessing reliability, there are several factors to be considered:

We have articulated several factors to be considered in assessing reliability. They include: prior opportunity of the victims to observe the crime and its perpetrator; the lapse of time between the crime and the lineup procedures; discrepancies between descriptions given the police and the defendant’s actual description; the occurrence of pretrial misidentification; the certainty of the witness in identifying the accused; the facts and circumstances regarding the identification and all matters relating to the identification.

The pretrial identification procedure occurred about a month following the alleged offenses. The testimony showed that when the victims were walking across the Arkansas portion of the bridge span, a black man overtook them; he walked in between the two girls for several minutes; he was “clearly” visible to the victims; the three conversed with the occupants of a passing car when it stopped and inquiry was made about the need for assistance; a third person who knew the defendant from high school testified that he saw the appellant in the area about the time of the attacks, and he was able to identify the appellant as the man described by the two girls shortly after the attack. Although the simultaneous viewing of photographs, as here, by two witnesses is an issue of first impression in Arkansas, it has been ruled on elsewhere. In United States ex rel Smith v. Redman, 414 F. Supp. 61 (D.C. 1976), the court said that although “simultaneous viewing of one suspect by several witnesses should be avoided,.. . under the circumstances of this case, the Court cannot conclude that the method employed for identification was constitutionally impermissible.” Likewise, we think the simultaneous viewing of photographs should be avoided. However, under the totality of the circumstances, we cannot say that the trial court’s refusal to suppress the pre-trial identification as being impermissibly suggestive is clearly erroneous.

We have considered all objections brought to our attention which were decided adversely to appellant. Ark. Sup. Ct. R. 11 (f). We find that none were prejudicial to appellant.

Affirmed.


text:
    Arthur J. WALLS v. STATE of Arkansas
    CR 83-90
    658 S.W.2d 362
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983
    [Rehearing denied October 31, 1983.]

      Felver A. Rowell, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant’s conviction and four year sentence for the crime of possession of a controlled substance with intent to sell and/or deliver was affirmed by the Arkansas Court of Appeals with three judges dissenting as to the trial court’s refusal to grant appellant a continuance. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983). We granted his petition for review.

At trial the appellant offered the affirmative defense of entrapment. The pertinent facts upon which that defense was based are that prior to the alleged sale, the appellant became acquainted with John Robert Robbins. During several months preceding his arrest, Robbins and appellant became “good friends.” Robbins and his wife spent the night at appellant’s house, loaned appellant their car, went fishing and ate meals with appellant and, on one occasion, Robbins painted the appellant’s truck free of charge. Eventually Robbins began to ask the appellant to obtain some marijuana for him. After twenty-five or thirty such requests, the appellant drove to Sweet Home, Arkansas, and returned with three ounces of marijuana. Upon his return, Robbins and Harvey George, an undercover agent with the Arkansas State Police, arrived to pick up the marijuana. This transaction led to appellant’s arrest.

Appellant first argues that the trial court erred in denying his motion for a continuance and forcing him to proceed to trial without Robbins as a witness inasmuch as Robbins’ absence precluded appellant from fully developing his entrapment defense. The appellant orally moved for a continuance on the date of trial based on the unavailability of Robbins.

A.R.Cr.P. Rule 27.3 provides:

The court shall grant a continuance only upon a showing of good cause and only for so long as is necessary, taking into account not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case.

A motion for a continuance is addressed to the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion amounting to a denial of justice. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). The burden is upon the appellant to demonstrate the trial court erred in denying a motion for continuance. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983). We have held that the fact that the motion is not made until the day of trial, as here, is an important consideration. Tyler v. State, 265 Ark. 822, 581 S.W.2d 328 (1979). We have also held that a defendant cannot rely on discovery as a total substitute for his own investigation. Thomerson v. State, 274 Ark. 17, 621 S.W.2d 690 (1981). Appellant cites Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978), as controlling on the issue of continuance. There we said:

Where there is an admitted informer who was a participant in transactions in controlled substances, the state should make every effort to produce him or to assist an accused in doing so.

In an effort to obtain Robbins’ presence at trial, the appellant made inquiries in the area as to his whereabouts and had subpoenas issued on two occasions between March 18 and April 8 for him in both Pulaski and Faulkner Counties. The Pulaski County subpoenas were directed to the Arkansas State Police. The subpoenas were returned unserved. The last ones were returned the day before the trial began. The state objected to appellant’s oral motion for a continuance on the day of trial, observing that appellant had had about three months to locate Robbins. It appears that in answer to appellant’s bill of particulars and discovery motion, an inspection date of the state’s file was set for January 13, 1982. Upon inspection of the state’s files, the appellant was advised that Robbins would not be called as a witness for the state, Robbins was not an employee of the State Police, and his whereabouts were unknown. At a hearing on various motions on March 12, the state reminded defense counsel that it would not use Robbins as a witness; also, Robbins’ whereabouts were unknown to the state. On March 18, at a pretrial session, the state’s position was again made known to the appellant. Thereafter, appellant had subpoenas issued, as discussed above, for Robbins’ attendance at the trial, which was set for April 8. In the circumstances, we hold that the trial court did not abuse his discretion in denying a continuance based upon his finding that appellant did not exercise due diligence or act in a timely manner.

Next, appellant asserts that the trial court erred by limiting the cross-examination of officer Harvey George as to the identification of the informant in that his testimony was necessary to make the existence of entrapment more probable. Any evidence having any tendency to make the existence of entrapment more probable is admissible. Unif. R. Evid., 401. “The accused should be allowed a reasonable latitude in presenting whatever facts and circumstances he claims constitute an entrapment, subject to ordinary rules of admissibility.” Spears v. State, supra.

Appellant’s counsel, however, admitted to the trial court that he was not concerned about the informant’s identity, but only wanted to develop his role in the transaction. Both appellant and his girlfriend were permitted to testify extensively at the trial on the informant’s conduct and activities. Therefore, this case is distinguishable from Spears where evidence of the informant’s activities and conversations, and not merely his identity, were excluded. Also, the appellant was permitted to cross-examine the officer about the marijuana sale. The appellant, himself, was permitted to testify about the informant’s statement to him and others in appellant’s presence. The appellant has not shown any prejudice by the limitations placed on the cross-examination and, therefore, no error was committed by the trial court.

Appellant next contends that the trial court erred in denying appellant’s motion for a mistrial following the undercover agent’s reference at trial to a subsequent purchase from appellant of controlled substances. The declaration of a mistrial is a drastic remedy to be resorted to only when the prejudice is so great that it cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979). Unif. R. Evid. 404 (b), relied on by appellant, provides that “[E]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of the motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Such actions may be admissible if they are so interrelated in time and substance as to form one transaction or are relevant to the main issue in the sense of tending to prove some material point rather than merely to prove the defendant is a criminal. Setters v. State, 4 Ark. App. 46, 627 S.W.2d 263 (1982).

Here, appellant testified on direct examination that George had been at his house twice and on one occasion had offered to sell the appellant some quaaludes which offer appellant refused. The state then called George as a rebuttal witness, who testified that he returned to the appellant’s house later the same day the marijuana purchase was made to make another purchase. Rebutting evidence may be offered following evidence for the defense. Ark. Stat. Ann. § 43-2114 (Repl. 1977). The introduction of evidence by way of rebuttal by the state lies within the sound discretion of the trial court. Decker v. State, 255 Ark. 138, 499 S.W.2d 612 (1973). Impeachment of defendant’s testimony is properly within the scope of rebuttal evidence. Swindler v. State, 267 Ark. 418, 592 S.W.2d 91 (1979). The appellant, here, opened the door to rebuttal by stating on direct and on cross-examination that George had been at his home on two occasions. The testimony was properly admitted to rebut appellant’s entrapment defense, and the motion for mistrial, therefore, was properly denied.

Appellant’s final point for reversal is that the trial court erred in denying appellant’s motion for a directed verdict. Appellant argues that the trial court should have found that he was entrapped as a matter of law and was not predisposed to commit the crime. Ark. Stat. Ann. § 41-209 (Repl. 1977) provides: “Entrapment occurs when a law enforcement officer or any person acting in cooperation with him, induces the commission of an offense by using persuasion or other means likely to cause normally law-abiding persons to commit the offense.” Here, Officer George testified that although the informant “paved the way” for him to make the alleged purchase, to his knowledge the informant was not employed or compensated in any way by the Arkansas State Police. Ordinarily, entrapment is a fact question which is properly submitted to the jury. Mullins v. State, 265 Ark. 811, 580 S.W.2d 941 (1979). Entrapment as a matter of law is only established if there is no factual issue to be resolved. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978). Appellant has the burden of establishing the existence of entrapment by a preponderance of the evidence. Ark. Stat. Ann. § 41-110 (4) (Repl. 1977); and Brown v. State, 248 Ark. 561, 453 S.W.2d 50 (1970). In the case at bar, suffice it to say that several facts were in dispute. For instance, conflicting testimony was given as to the status of Robbins as an informant, and the circumstances surrounding the alleged sale and delivery of marijuana. When we view the evidence most favorably to the appellee, as we must do on appeal, we hold there is substantial evidence to support the jury’s verdict. Therefore, the trial court properly denied appellant’s motion for a directed verdict.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I would reverse and remand this case for a new trial for the reasons set out in the majority opinion. Robbins (either a policeman or an informant) persuaded appellant to get him (Robbins) some marijuana. Obviously Robbins was an assumed name and he was probably living at the taxpayers’ expense. Whomever or whatever he was, he was a party to the transaction set up by him. He was an essential witness to the defense. The defense tried in vain to locate Robbins. The state refused to help. It is likely the state knew where Robbins was and what his real name was. There is a good chance that if Robbins had appeared as a witness and told the truth he would have proven appellant’s defense of entrapment. Were we merely joking in Spears v. State, 264 Ark. 83, 568 S.W.2d 498 (1978)? The majority opinion sets the stage for unknown persons to entrap people who would not otherwise violate our laws. I think I detect a goosestep in our cadence.


author: Darrell Hickman, Justice.

text:
    Dennis L. YOUNG and Virginia M. YOUNG v. Gerhard W. STAUDE and Elsie M. STAUDE
    83-81
    657 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Smith & Kelly, by: Michael E. Kelly, for appellants.

      J. F. Atkinson, Jr., for appellees.
   Darrell Hickman, Justice.

This chancery case is reversed and remanded because the trial court, on its own, ordered reformation of a promissory note and deed of trust when the only matter before the court was a motion for summary judgment on the issue of usury.

The appellants, residents of Texas, sued the appellees, residents of Louisiana, to cancel a land transaction concerning property in Marion County, Arkansas. The suit was for rescission or, in the alternative, to declare the note void for ususry. The note provided for 10-1/2 percent interest on its face.

The appellants filed a motion for summary judgment asking the court to declare the note usurious and, therefore, void. The trial court denied summary judgment but went on to reform the agreement to provide for 10% interest. That relief was not asked for in the motion for summary j udgment and could not be granted. The appellees did have an informal brief arguing for reformation apparently after the court asked the parties to submit briefs on the issue. A trial court cannot grant relief beyond that prayed for in the motion for summary judgment in ruling on that motion. See Evans v. U.S. Anthracite Coal Co., 180 Ark. 578, 21 S.W.2d 952 (1929); Danco Construction Co., Inc. v. City of Fort Smith, 268 Ark. 1053, 598 S.W.2d 437 (1980).

Reversed and remanded.


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

text:
    Barney Lee DOLES v. STATE of Arkansas
    CR 83-63
    657 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Danny P. Rodgers, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is the second appeal of this case. In Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982), we ordered a retrial because the trial court had refused to instruct the jury on justification, commonly known as self-defense. Doles shot James “Sonny” Harris either in the doorway or on the front porch of the house where Doles and his father both lived in Amity, Arkansas, located in Pike County. At his first trial Doles was convicted of second degree murder and sentenced to 20 years imprisonment; the judgment was exactly the same in his second trial.

This time Doles argues that his conviction should be reversed because there was insufficient evidence to support the charge because Doles was in his own home and any killing there is presumed to be justified; he also argues that the trial court should have admitted a statement taken from Lisa Dean who was present at the killing and was unavailable at the first and second trials. We find no error and affirm the judgment.

Whether the killing was justified was a jury question. The jury was instructed on a recent Arkansas statute although it was not in force at the time of the killing. That statute is Ark. Stat. Ann. § 41-507.1 (Supp. 1983), which essentially provides that there is a legal presumption that any force used in one’s home is justified unless overcome by clear and convincing evidence. This statute has not legalized murder. The jury undoubtedly found from the evidence Doles knowingly caused the death of Harris under circumstances manifesting extreme indifference to the value of human life — conduct which constitutes second degree murder.

Doles and Harris were acquaintances and on the day in question they were arguing about Lisa Dean and Harris’ treatment of her. Doles had originally picked Dean up as a hitchhiker, but she was living with Harris at the time of the killing. Harris was drunk that day. The autopsy showed he had a blood alcohol content of .28 — a very high content. Doles said he knew Harris was drunk. When all the parties finally arrived at the home of Doles’ father, about 1:00 a.m., the argument continued. Lisa Dean was present. Doles’ father, hearing the argument, came out of the home and pulled a knife. Doles took the knife away. Later, his father got the rifle with which Harris was shot, and Doles took that from him.

Harris had no gun. He was merely advancing on Doles when Doles shot him. Harris’ arms were at his side. Doles shot him, probably as he reached the doorway of the home. When the police arrived, Doles’ father at first lied, saying he had shot Harris. The body was found outside the door on the porch; the officers testified that, in their judgment, it had not been moved. Harris was five feet four inches and weighed about 125 pounds; Doles was six feet two inches and weighed 170 pounds. Harris was drunk, Doles evidently was not. Doles claimed that he shot Harris out of fear. The j ury found the killing unjustified. We cannot say there is not substantial evidence to support the verdict, which is our test on review. Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983).

Lisa Dean disappeared. She could not be located for the first trial and the parties stipulated she could not be found for the second trial. The appellant argues that since Lisa Dean is unavailable, he is entitled to either an indefinite continuance or, in the alternative, that the State must admit the veracity of Dean’s statement. We ruled in the first case the statement was hearsay and not entitled to admission as an exception to the hearsay rule because it did not qualify under the usual exceptions, and did not have “equivalent circumstantial guarantees of trustworthiness.” Unif. R. Evid. 804. That ruling applies to this case. The appellant concedes that but contends the constitutional right to compulsory attendance of witnesses requires that Dean’s statement be introduced and that the State admit its veracity or, in the alternative, that he be granted an indefinite continuance. That is not the law. A person is not entitled to an indefinite continuance simply because a potential witness cannot be located. The elements of the diligence of the defense and the cooperation, or lack of it, on the part of the State are highly relevant in such cases, as is the likelihood of the movant ever procuring the witness. Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973). The State had tried to locate this witness, and the parties agreed that she could not be found and there was no basis for believing that she could ever be located. The court issued a subpoena but it was obviously a futile effort. Where there is no evidence that a witness can ever be procured, denial of a continuance is proper. See Thacker v. State, supra; McCarthy v. State, 90 Ark. 384, 119 S.W. 646 (1909).

The constitutional right to the compulsory attendance of witnesses is the right to have the force of the judicial process available to secure a witness’ presence. Ark. Const, art. 2, § 10. See Graham v. State, 50 Ark. 161, 6 S.W. 721 (1889). Doles cites Arkansas cases where the State agreed to admit the truth of the facts in affidavits in order to avoid delays. See, e.g., McCarthy v. State, supra; Graham v. State, supra. See also Ark. Stat. Ann. § 27-1403 (Repl. 1979). That principle cannot be distorted to compel the State to admit facts favorable to the defense’s theory where a defense witness is unavailable. Doles had the force of the judicial process available to him and that is all the constitution requires.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I do not know whether Barney Lee Doles is guilty or not. Given only the evidence presented to the jury I probably would concur in their judgment. However, the problem is that the trial court refused to allow a statement of an eye-witness to the homicide to be considered by the jury. The statement was taken by police officers while they were investigating this incident. Mary Lisa Dean, who was the decedent’s roommate at the time of the homicide, gave a statement which was very exculpatory to the appellant. In her statement she said: “Barney was already in the house and I assumed the door was locked,”; “I heard Mr. Doles tell Sonny not to come any further.”; “The whole time he was begging Sonny to go home and leave him alone.”; “... Sonny kept walking in the house and looked at me and said, ‘I don’t give a damn.’”; “Sonny turned around and groaned at me and j ust fell on the stairs. ’ ’ I quote only small segments of the statement but one can readily see the effect it could have had on the jury. It should have been admitted pursuant to Uniform Rules of Evidence, Rule 804. This rule exempts certain hearsay testimony from exclusion under Uniform Rules of Evidence, Rule 802 (the hearsay rule). It is my opinion that the statement was admissible under Rule 804 (b) 5. It was evidence of a material fact; it was more probative than any evidence the appellant could procure through reasonable efforts; and I think that it tended to further the interest of justice and should have been admitted into evidence. Furthermore, the statement was taken by police officers during their investigation of the shooting and thus should be considered as having “equivalent circumstantial guarantees of trustworthiness” as required under this rule.

It is undisputed that both the appellant and the state made reasonable and sincere efforts to locate the witness. It is probable she was or is in Canada. In any event she was unavailable to testify in this case. In fact it was stipulated that she was unavailable for this trial. I would not have granted a continuance but would have admitted the statement under the belief that the interests of justice would be best served by admission of the statement into evidence. In my opinion it was prejudicial error to refuse to allow the statement to be considered by the jury.


text:
    Frank ASKEW v. STATE of Arkansas
    CR 83-68
    657 S.W.2d 540
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Julius D. Kearney of Kearney Law Offices, for appellant.

      Steve Clark, Atty. Gen., by: Velda P. West, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Frank Askew was convicted of three counts of forgery and three counts of theft of property. He had eight prior convictions for various offenses, including sale of heroin and sale of cocaine, possession of stolen mail, interstate transportation of stolen false securities, forgery, uttering, and criminal attempt to obtain drugs by fraud. He was sentenced to twenty years imprisonment on each count to be served consecutively.

His convictions must be reversed and the charges dismissed because the State failed to provide elementary proof that the checks were forged. Askew evidently represented himself as Archie Shirley, Jr., in presenting checks at three stores in Pine Bluff, Arkansas: two different Otasco stores and a Mad Butcher supermarket. In each instance he received cash back in addition to the merchandise purchased. In court Askew was identified as the man passing the checks in the Otasco stores and the checks were identified, but the State did not prove the checks were forged under Arkansas law. The state conceded that it had not proved that Askew signed the checks but argued that Askew “passed” a forged instrument which is a violation of the general forgery statute. Ark. Stat. Ann. § 41-2302 (Repl. 1977).

The checks were printed checks in the name Cash for Cans, an establishment in Little Rock. The checks were drawn on the First National Bank of Little Rock. The signatures on the checks were by a person named Jerry R. Pate on two checks and James J. Pate on the other check.

A Pine Bluff detective was called and generally testified to his role in the matter; but he could not say the checks were forged, or “unauthorized.” An officer for the Simmons First National Bank in Pine Bluff was called and he also generally testified about the checks. The checks were stamped “unauthorized signature” and returned to Simmons. But the bank officer could not say in fact that the signature was unauthorized. His testimony was only received as evidence of a bank custom. The exact testimony in this regard reads:

Prosecuting Attorney:
Q And quite simply what does it state, sir?
A It says unauthorized signature on all three checks.
Q And in banking terminology, explain that type of stamp there.
A Well, whoever is authorized on an account can sign. If it is four or five names, or if it is one name, that is an authorized signature. If one comes in, John Jones and Joe Blow are on the account and George Jones comes in, that is an unauthorized signature.
Defense Attorney:
Your Honor, I’m going to object. I believe someone from Cash for Cans will have to testify as to whether the signature was authorized in this case. Mr. Scaife, with all due respect, does not know whether it was authorized.
Prosecuting Attorney:
Your Honor, these are.
Witness:
Well, these checks would have come to us in this capacity.
The Court:
You responded to the objection?
Prosecuting Attorney:
No, sir, I didn’t. He made his objection. I’m not asking him if someone from Cash for Cans authorized that signature. I was asking him to explain what the phrase stamped on the check means, “unauthorized signature” in common banking terms.
Defense Attorney:
Your Honor, I continue my objection. Unless someone is going to be here today to say that check was not authorized, then I don’t believe he can talk about the check at all.
The Court:
I’m going to overrule the objection. He can ask what the common practice is, but I agree with your motion that that’s not proof that it is authorized. That part would be objectionable. [Emphasis added.]
Prosecuting Attorney:
We are not saying that it is, your Honor.

The State never proved the checks were indeed unauthorized, simply that the checks were returned to the merchants stamped “unauthorized signature.” This does not provide the evidence necessary to sustain the convictions. No one from Cash for Cans was called to testify about the account; no one testified who could or could not sign the checks. No one testified that indeed the checks were signed by an unauthorized person or that the signatures were forged. The State utterly failed to prove the most basic part of its case. The theft of property convictions were dependent on proof of forgery, so those also must be reversed.

Reversed and dismissed.


author: John I. Purtle, Justice.

text:
    William Claude HUNTER v. STATE of Arkansas
    CR 83-102
    657 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Joel W. Price, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted on a charge of burglary and found to be an habitual offender. He was sentenced to a term of 25 years in the Arkansas Department of Correction. He argues three grounds for reversal on appeal: 1) the court erred in admitting defendant’s written confession into evidence; 2) the court erred in refusing to grant a mistrial; and, 3) the court erred in utilizing the procedure mandated by Ark. Stat. Ann. § 41-1005 (Supp. 1983). We fail to find any prejudicial error and affirm the conviction.

Sometime during appellant’s confinement he gave a statement to a detective. The statement given was a confession of guilt of the crime charged in this case. Evidence was presented which revealed that the detective told the appellant that it would be to his benefit if he gave the statement. However, the officer stated that before taking the statement he received permission from appellant’s attorney and from appellant himself. It was argued at the Denno hearing that the detective spoke to the appellant not only as a policeman, but as a friend and neighbor.

At the trial’s commencement the court instructed the state and the defendant to list any witnesses who might be called to testify. The request by the court for the names of witnesses was in the presence of the jury. The appellant moved for a mistrial. His argument was that the request by the court was a violation of his state and federal constitutional rights. The court not only denied the motion for mistrial but refused to give a requested cautionary instruction. The court, in chambers, also heard evidence and determined that appellant had three prior convictions. The jury was so instructed.

Appellant’s first argument for reversal is that the trial court erred in refusing to suppress appellant’s confession. The argument is based on the theory that the detective, a friend and neighbor to appellant, led the appellant to believe that a confession would be beneficial to him. The argument on appeal is primarily that appellant’s former attorney gave appellant ill advice when he instructed him to give the statement. Appellant had been in jail several days and had refused to give a statement. He had received the Miranda warning on two previous occasions. We do not find that the trial court’s ruling was clearly erroneous. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

The second argument concerns the court’s remarks in asking the appellant to list his possible witnesses. When the court asked for the names of appellant’s witnesses an objection and request for a mistrial were made. The argument is that such comment might well have implied that the burden of proof was shifted to the appellant and further that such comment infringed on appellant’s right to remain silent. The jury was subsequently instructed that the defendant had an absolute constitutional right not to testify. This instruction was given at the request of appellant’s attorney. We think the present situation is analogous to the case of Newberry v. State, 261 Ark. 648, 551 S.W.2d 199 (1977). In Newberry the trial court asked defense counsel if he wished to have his client sworn at the time other witnesses were administered the oath. A motion was made for mistrial and refused by the court. On appeal we held that even if such procedure were error it was harmless. We adhere to the same principle in the present case.

Appellant’s final argument is that Act 252 of 1981, Ark. Stat. Ann. § 41-1005 (3), is unconstitutional. After an in camera hearing the trial court determined, and subsequently instructed the jury, that appellant had three prior felony convictions. This act changed the former statute on the procedure in handling habitual criminal charges. Formerly the jury made the determination of how many prior convictions an accused had. We do not find in the abstract of the record that the constitutionality of this statute was presented to the trial court. Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983); Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981).

Appellant also argues under this point that the sentences relied upon by the trial court were not prior convictions. His argument seems to be an attack on the method of sentencing and that the convictions were had without effective assistance of counsel. We have reviewed the record and found that appellant was convicted in all three cases and the sentences have not been vacated. We find no merit in this argument.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Ralph KUBIK v. Joe W. IGLEHEART
    83-91
    657 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Laser, Sharp, Haley, Young ér Huckabay, by: Ralph R. Wilson, for appellant.

      Gardner ¿r Steinsiek, by: Charles J. Gardner, for appellee.
   Robert H. Dudley, Justice.

The issue in this tort suit is whether an instruction on comparative negligence was properly refused by the trial court. The appellee, plaintiff below, was operating his motorboat in close proximity to appellant’s boat dock on Lake Norfork. Appellee testified that he was running the boat in a prudent manner when the appellant shot him. To the contrary, appellant’s testimony was that the appellee was driving the boat at a fast speed which caused wakes or waves that could cause progressive damage to his dock and that such conduct on the part of the appellee caused him to fire a warning shot which inadvertently struck the appellee in the head. Appellant argues that he was entitled to an instruction on comparative negligence because (1) violation of a safety statute is some evidence of negligence and (2) his testimony was substantial evidence that appellee violated the following statutes:

(a) No one shall operate a motorboat in a reckless manner so as to endanger the property of another person. Ark. Stat. Ann. § 21-229 (a) (Repl. 1968).
(b) No one shall operate a motorboat so as to create a hazardous wash or wake. Ark. Stat. Ann. § 21-232 (d) (Repl. 1968).
(c) No one shall operate a motorboat at more than five miles per hour within 100 feet of a designated area or dock. Ark. Stat. Ann. § 21-232 (e) (Repl. 1968).

The trial court refused to give appellant’s requested instruction on comparative negligence. We affirm. Jurisdiction is properly in this Court. Rule 29 (1) (o).

The trial court was correct because, even though plaintiff’s action may have been negligent, that negligence was not the proximate cause of his damages. The fault sought to be compared must be a proximate cause of the damages sustained by a party. Ark. Stat. Ann. § 27-1763 (Repl. 1979). In Arkansas proximate cause is defined in terms of direct causation. H. Woods, The Negligence Case Comparative Fault, § 5:4, at 108 (1978); Prosser, Law of Torts, § 43, at 264 (4th ed. 1971). Proximate cause is a cause which “in a natural and continuous sequence, produces damage.” AMI 501; Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959). In his book Judge Woods gives the following example of lack of causal negligence: “Assume that D entrusts his car to A, who is almost blind. A has an accident, but his blindness played no part in it. Simple causation is here lacking. Woods, supra, at 92.

Testing the case at bar by our definition, it is apparent that, even assuming all of appellant’s testimony to be true, appellee’s negligent operation of the boat would not present an issue for the jury, since the act did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to the appellant’s intentional act of firing the shotgun which caused the damages. See Hartsock v. Forsgren Inc., 236 Ark. 167, 365 S.W.2d 117 (1963).

Affirmed.


author: Per Curiam. Darrell Hickman, Justice,

text:
    Carl Albert COLLINS v. STATE of Arkansas
    CR 75-110
    657 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered September 26, 1983

      Thomas M. Carpenter, for petitioner.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for respondent.
   Per Curiam.

In 1974 petitioner Carl Albert Collins was employed at the rural home of John and Gertrude Welch. On the morning of August 13, petitioner attacked Mrs. Welch and beat her on the head with some object. Her screams apparently alerted Mr. Welch who had been outside. Mrs. Welch lost consciousness when her husband entered the house. She awakened to find him with a mortal shotgun wound. She saw petitioner running out of the house with a shotgun and a box of shells. Mr. Welch told his wife that petitioner had shot him and taken his wallet. She crawled into the bathroom where she again lost consciousness. After several hours a telephone repairman found the couple. Mr. Welch was dead, but his wife recovered and testified at petitioner’s trial. Petitioner was convicted of capital murder and sentenced to death.

Even without Mrs. Welch’s testimony, the proof of petitioner’s guilt was conclusive. The Welch’s truck was found abandoned in Madison County. Nearby were a hacksaw and the sawed-off end of a shotgun. The day of the murder, a Volkswagen was stolen in Madison County. That night a police officer saw petitioner standing by the stolen car in Little Rock. Petitioner’s fingerprints were found in the car and a sawed-off shotgun was found in the back seat. The shotgun was identified as the one taken from the Welch home. Its barrel matched the sawed-off portion found in the Welch’s truck.

We have twice reviewed petitioner’s conviction and death sentence on appeal. Collins v. State, 259 Ark. 8, 531 S.W.2d 13 (1975), vacated in part, 429 U.S. 808 (1976). The second review was ordered specifically for further consideration of the imposition of the death penalty in light of Gregg v. Georgia, 428 U.S. 153 (1976), and other cases. Upon reconsideration we again found that the imposition of the death penalty in petitioner’s case was constitutional and reinstated the death penalty. Collins v. State, 261 Ark. 195, 548 S.W.2d 106, cert. denied, 434 U.S. 878 (1977).

Petitioner then filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37. It was denied on its merits. Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 453 U.S. 973 (1981). He has now filed a second Rule 37 petition prompted by an order of the United States Court of Appeals for the Eighth Circuit that petitioner present his “unexhausted” claims to this Court. Petitioner has raised the following issues in his petition:

(1) denial of meaningful appellate comparative review of his death sentence to other death sentences, or sentences of life imprisonment without parole;
(2) overbroad application of the “pecuniary gain” aggravating circumstance;
(3) improper restrictions on mitigating circumstances;
(4) misallocation of the burden of proving mitigating versus aggravating circumstances; and
(5) prosecutorial misconduct during argument in the penalty phase of the trial.

A petitioner is not entitled to file a second petition under Rule 37 unless the original petition was specifically denied without prejudice to filing a subsequent petition. Ruiz & Denton v. State, 280 Ark. 190, 655 S.W.2d 441 (1983); Williams v. State, 273 Ark. 315, 619 S.W.2d 628 (1981). Issues which could have been raised on appeal or in the original petition for postconviction relief but were not must be considered waived. Ruiz & Denton, supra. Since petitioner has had one petition decided on its merits, he is not entitled to file a second. Nevertheless, because petitioner’s case was unique in that it was the first to reach us since the repeal of the statute which gave juries almost unlimited discretion in deciding whether to impose the death penalty, we will address the issue of comparative appellate review. Even though the case was the first of its kind, after a thorough review of the facts, we found on direct appeal that petitioner had committed a vicious murder for pecuniary gain and that the aggravating circumstances clearly outweighed the mitigating circumstance of petitioner’s youth. Collins, 261 Ark. at 223. Since that time numerous capital cases have been reviewed, and in comparison with those cases, we find no basis to alter that view. Petitioner bludgeoned Mrs. Welch and left her for dead. He murdered Mr. Welch for no apparent reason except to steal whatever money the elderly couple had. This Court has vacated the death sentence in cases where it was not appropriate. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983); Neal v. State, 274 Ark. 217, 623 S.W.2d 191 (1981); Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981); Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977); Graham v. State, 253 Ark. 462, 486 S.W.2d 678 (1972). In petitioner’s case, however, the evidence of guilt was overwhelming and the proof underlying the finding of the aggravating circumstances was ample. In the nine years since this crime was committed, we have reviewed petitioner’s case three times. At no point has it been demonstrated that the death penalty was arbitrarily or capriciously imposed. Therefore, the penalty as it was set by the jury in 1975 must stand.

Petition denied.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I would dismiss the petition for Rule 37 relief in this case and not entertain any further review of Collins’ conviction. We have examined this case twice, and we have already considered one petition for post-conviction relief. This petition was filed when the United States Court of Appeals for the Eighth Circuit decided “. . . The Arkansas Supreme Court did not subject Collins’ sentence to comparative review.” That is an inaccurate statement. That was one of the issues under debate with this court as reported in the case of Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied, 434 U.S. 878 (1977). The majority said it subjected Collins’ sentence to a comparative review. If the majority had not been satisfied in this respect it could not have approved Collins’ conviction. The Supreme Court of the United States was satisfied with this court’s treatment of that and other issues and denied certiorari.


text:
    Anthony REED v. STATE of Arkansas
    CR 83-73
    657 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983

      William R. Simpson, Jr., Public Defender, and Arthur L. Allen, Deputy Public Defender, by: Arthur L. Allen, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Anthony Reed, was convicted and sentenced for burglary, 25 years; robbery, 45 years; and rape 45 years. The trial court ordered the latter two sentences to run consecutive to each other but concurrent with the burglary sentence. Appellant argues on appeal that the trial court erred in admitting his confession into evidence. On appeal we affirm.

Appellant first argues the confession should have been excluded as a product of an illegal detention because the warrant of arrest was issued without probable cause. See Brown v. Illinois, 422 U.S. 590 (1975). Appellant was arrested in connection with a different incident of burglary, aggravated robbery, and rape from the one now on appeal. In the incident which led to appellant’s arrest, the victim had called her neighbor for help. The neighbor saw a man across the street who broke and ran at his approach. After chasing the man for several blocks, he came upon two young persons who said they had just seen someone they knew as Lump run by from the same direction. Later, the two young persons identified appellant as the man who ran by. The photo spread was then shown to the victim who identified the photo of appellant as looking like her assailant. This information was given to the judicial officer who issued the warrant for appellant’s arrest.

Arkansas Rules of Criminal Procedure Rule 7.1 (b) authorizes a judicial officer to issue an arrest warrant if from the information presented it appears there is reasonable cause to believe an offense has been committed and the person to be arrested committed it. “Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Coble v. State, 274 Ark. 134, 138, 624 S.W.2d 421 (1981). Determination of probable cause is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men act. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179 (1981); Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976). All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Thorne v. State, 274 Ark. 102, 622 S.W.2d 178 (1981); Brewer v. State, supra. Based on the facts of this case, we cannot say the trial court erred in finding probable cause for appellant’s arrest.

Appellant next argues that the confession was inadmissible because appellant was not properly advised of his rights according to Miranda v. Arizona, 384 U.S. 436 (1966). Shortly after his arrest, appellant was read his Miranda rights and signed a rights waiver form. Appellant was then questioned regarding several incidents. The confession concerning the incident we are here considering was given only two and one half hours after he was advised of his rights. The trial court ruled it was not necessary for the police to read appellant his rights in regard to each individual incident. We have long since held that Miranda warnings need not be given anew before questioning about a different crime. Heard v. State, 244 Ark. 44, 48, 424 S.W.2d 179, 181 (1968). Upon review of the record, we agree with the trial court’s finding that appellant was properly advised of his rights and that the resulting confession was admissible in evidence.

Affirmed.


text:
    Byron TREATS v. STATE of Arkansas
    CR 83-75
    657 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983

      William R. Simpson, Jr., Public Defender, by: Kelly Carithers, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The trial judge, a jury having been waived, found the appellant guilty of two aggravated robberies and sentenced him to two consecutive 40-year sentences. The public defender argues two points for reversal.

First, the proof is amply sufficient. The two armed robberies were committed in daylight hours with the victims having ample opportunity to observe the robber. Their identification was positive. Counsel argue minor discrepancies in the testimony as a basis for questioning the sufficiency of the proof, but we find it more than adequate.

Second, in one of the robberies the defendant held up the victim, took her purse and keys, and apparently drove off in her car. On cross-examination the trial judge sustained the State’s objection to this question asked by defense counsel: “If I told you hypothetically that prints were lifted [from your car], and they did not match this defendant, would that shake your confidence in your identification of this person?” No foundation had been laid for the hypothesis that fingerprints had been lifted or compared. Hence the question was improper, for otherwise defense counsel might pose any imaginary situation as a basis for asking a witness if her confidence would be shaken. Permissible cross-examination does not encompass such flights of fancy.

Affirmed.


text:
    Robert R. COONES v. STATE of Arkansas
    CR 83-110
    657 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered October 3, 1983
    /. Marvin Holman, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted of two counts of negligent homicide, fined $1,000 on each count and sentenced to two seven month prison terms which were to run consecutively. The Court of Appeals reduced his sentence to one year. Coones v. State, No. CR 82-86 (Ark. App. Nov. 4, 1981). A few days after the appellant was remanded to the custody of the local sheriff and began serving his sentence in the local jail, he became seriously ill and was removed by ambulance to a hospital in an adjoining county. After two days in the hospital, the sheriff, after consultation with a doctor, permitted appellant’s wife to take him to his home in another county for hospitalization “to make sure he was going to be alright.” Appellant spent almost a year at his home under the care of his local physician and his wife with periodic hospitalizations. Appellant, 75 years of age, is suffering from pernicious anemia and black lung, both of which incapacitate him from caring for himself. A month short of a year from the beginning of his original sentence, the trial court conducted hearings and appellant was again ordered incarcerated. The appellant asked the trial court to credit him with the time he spent in the hospital and at home convalescing. The trial court refused to do so. Appellant asserts on appeal this was error. He also raises the issue of subject matter jurisdiction. This case was certified to us by the Court of Appeals pursuant to Rule 29 (4) (b).

Although the issue of the trial court’s loss of jurisdiction over the appellant was not raised by the parties prior to taking this appeal, it is a general rule that subject matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976); and Ark. S & L v. Corning S & L, 252 Ark. 264, 478 S.W.2d 431 (1972). Therefore, we consider the issue of jurisdiction.

In Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W.2d 242 (1968), we recognized that:

The great weight of authority supports the rule that when a valid sentence has been put into execution, the trial court cannot modify, amend, or revise it in any way either during or after the term or session of the court at which the sentence was pronounced; any attempt to do so is of no effect and the original sentence remains.

We reiterated this rule in the recent cases of Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); and Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983) where we said that, “Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” To the same effect are Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977); and Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005 (1928). In Emerson we recognized “the rule, well established, that where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.”

The appellee argues that our cases are distinguishable because, here, the trial court was not ordering appellant’s sentence modified, amended, or revised, but was simply ordering appellant to serve the balance of the lawful sentence he received. This argument appears contrary to the court’s November 22 and 23 and December 20, 1982, orders which outline the manner in which appellant should serve his sentence, namely daytime incarceration and no incarceration on weekends until January 21, 1983. The court’s order of November 22 and 23 reads in pertinent part: “The appellant is suffering from a number of serious medical conditions that render his extended incarceration a medical risk and, therefore, his sentence should be modified accordingly.” (Italics supplied.) The court ruled on December 20, 1982, that in the near future it would determine if appellant would have additional time to serve after January 21, 1983. Then on January 4, 1983, the court ordered the appellant to serve the eleven months remaining on his sentence and refused him credit for any time spent hospitalized or at home convalescing.

Even though the trial court was correct in its computation of appellant’s unserved time on his sentence, it was without justification. When the appellant was remanded to the custody of the sheriff and he began serving his sentence, it was put into execution and thus the trial court was without jurisdiction ot enter any of these orders. Emerson, supra. The sheriff of each county has “the custody, rule and charge of the jail within his county, and all prisoners committed in his county . ... ” Ark. Stat. Ann. § 46-402, (Repl. 1977). Consequently, the orders are void and the original sentence remains in full force. Since the trial court is without jurisdiction and its orders are void, appellant’s argument that the court erred in refusing him credit for the periods he was hospitalized and convalescing becomes moot. In effect, appellant presents a plea for clemency. That must be addressed to the executive branch of our government in which is vested the sole power of clemency for a deserving individual. Ark. Const., Art. 6§ 18 (1874); Smith v. State, 262 Ark. 239, 555 S.W.2d 569 (1977); Osborne v. State, 237 Ark. 5, 371 S.W.2d 518 (1963).

Reversed.

Hays, J., dissents.

       A trial court no longer loses all jurisdiction once a sentence is rendered. Act 431 of 1983 permits the circuit courts to reduce a sentence within 120 days after it is imposed. Obviously, the purpose of this Act is to give circuit courts power that they did not previously possess.