source: Caselaw Access Project

author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

license: Public Domain

text:
    David Wayne JOHNSON v. STATE of Arkansas
    CR 94-960
    900 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Durrett & Coleman, by: Gerald A. Coleman, The Arkansas Public Defender's Commission, by: Didi H. Sailings, and Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Oían W. Reeves, Senior Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

David Johnson was convicted of capital murder and was sentenced to death by lethal injection. Both his conviction and sentence were affirmed on direct appeal. Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992). We stayed our mandate in order for Johnson to petition the Supreme Court of the United States for a writ of certiorari. The Supreme Court denied the writ. Johnson v. Arkansas, 112 S. Ct. 3043 (1992). Johnson filed a petition for relief under A.R.Cr.P. Rule 37 and for a writ of error coram nobis. The circuit court denied relief. Johnson appeals. We affirm the denial of postconviction relief.

I.

Appellant’s first assignment is that the trial court erred in denying relief because his attorney had a conflict of interest. Appellant’s attorney, Robert Smith, represented Derrick Gilbert on an unrelated charge, and Gilbert did not testify as a witness for appellant. Appellant contends that Smith did not force Gilbert to testify because he was protecting Gilbert. The facts do not support this argument, and the trial court correctly ruled that appellant did not prove ineffective assistance of counsel as a result of a conflict of counsel’s interest. See Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988).

Prejudice will be presumed from a conflict of counsel’s interest only when the defendant demonstrates that counsel actively represented conflicting interests and that actual conflict of interest adversely affected his lawyer’s performance. Strickland v. Washington, 466 U.S. 668 (1984); Cuyler v. Sullivan, 446 U.S. 335 (1980). Petitioner had the burden of proving a conflict of interest and showing its adverse effects. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. Salam v. Lockhart, 874 F.2d 525, 527-28 (8th Cir. 1989) (citing Lightborne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987), cert. denied, 109 S. Ct. 329 (1988)). The prejudice must be real and have a demonstrable detrimental effect and not merely have some abstract or theoretical effect. Simmons v. Lockhart, 915 F.2d 372, 378 (8th Cir. 1990).

At the trial on the merits, appellant proffered the testimony of Derrick Gilbert, which was that he would testify that Bobby Jewell Ford told him that he sold some property to appellant that was stolen from the crime scene on the night of the murder. The trial judge advised appellant’s attorney, Smith, that he would sustain a hearsay objection to such testimony. A deputy prosecutor stated that, since Gilbert had told her earlier that he knew nothing about the crime, he would be committing perjury if he gave such testimony, and, consequently, he might need an attorney. Appellant’s attorney, Smith, stated that he had a “problem” because he represented Gilbert in a different case. The trial judge advised Gilbert to “get out of here before you get yourself in trouble.”

At the postconviction hearing, Gilbert testified that Ford had told him that he thought he had killed someone and that he had obtained drugs from appellant in exchange for some items that were stolen from the crime scene. Gilbert further testified that Smith had initially represented him on an unrelated charge, but had failed to appear at his trial, and another attorney ultimately represented him. Gilbert admitted that he told the deputy prosecutor he did not know anything about the stolen items, but said that the reason he said that was because the deputy prosecutor indicated that he was a suspect in the murder case and he was afraid he might be charged with capital murder. Finally, Gilbert testified that he told a falsehood when he told the prosecutors he knew nothing about appellant’s case.

Smith’s representation of Gilbert would include a duty to protect Gilbert from perjuring himself or from implicating himself in the murder. Arguably, this is what Smith meant when he stated at trial that he had a problem because he also represented Gilbert. However, even assuming this shows an actual conflict, it does not prove that the conflict had a real and demonstrable effect on Smith’s performance. See Ford, 296 Ark. at 16, 753 S.W.2d at 262. Appellant did not show the conflict had an adverse effect because: (1) Smith did try to get Gilbert to testify for appellant, and (2) the trial judge ruled that the testimony would be inadmissible hearsay. A.R.E. Rule 801.

In the postconviction proceeding, appellant contended that the testimony was admissible under A.R.E. Rules 804(a)(2) and 804(b)(3), and under Chambers v. Mississippi, 410 U.S. 284 (1973), and, if Smith had not had the conflict of interest, he would have argued the testimony was admissible. The argument is without merit because, in the posttrial proceeding, appellant did not establish that the testimony could have been admitted. It does not fit within a hearsay exception. Rule 804(a)(2) provides a hearsay exception when the declarant persists in refusing to testify about the subject matter of his statement despite an order of the court to do so. The facts do not support this exception because the trial court never ordered Gilbert to testify, and Gilbert never refused to do so. Rather, Gilbert was available, and the trial court ruled the testimony would be hearsay. Rule 804(b)(3) provides that statements against interest are not hearsay when the declarant is unavailable. A.R.E. Rule 804(b)(3). However, the Rule also provides that before a hearsay statement which would exculpate the accused, but is against the penal interest of the witness will be admitted, the trial court must determine whether the circumstances surrounding the statement are solidly trustworthy. Id. The Rule expressly provides that such a statement is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id. The record reflects that Derrick Gilbert is currently serving a seventy-five year sentence for aggravated robbery, kidnapping, and a drug offense. Bobby Ford, the person who allegedly made the statement against penal interest, was a co-defendant with Gilbert and was also convicted on the aggravated robbery and kidnapping charges. He testified that Gilbert was his “fall partner” and that he robbed hotels and “places” to “get money to buy weed and stuff.” He testified that he got to know Gilbert when he was standing on a street corner and Gilbert stole a Wells Fargo vehicle containing $40,000.00. Finally, at the postconviction hearing Ford denied having made the statement against penal interest. The trial court heard the witnesses, observed them, and expressly found:

[T]hat Bobby Ford is not a credible witness as he obviously has problems with his mental faculties, including his ability to relate events. This court also finds that Derrick Gilbert is not a credible witness either, based upon the testimony of the deputy prosecutors, Melody LaRue and Mark Fraiser, concerning their conversations with him in the jail, as well as his testimony before this court.

Appellant contends that at the trial Charles Whitfield could have corroborated the alleged statement against penal interest, but that Smith did not use him as a witness. To the contrary, Smith testified that he never heard the name Charles Whitfield until the postconviction hearing. Moreover, appellant did not call Whitfield as a witness at the postconviction hearing. Finally, Bobby Ford testified that he did not see or speak to Charles Whitfield the night appellant committed the murder, and he denied making any statement against penal interest to Whitfield. In sum, appellant failed to show that the testimony was admissible as an exception to hearsay, and the unreliable hearsay evidence was not admissible under Chambers. Thus, appellant failed to show that Smith acted in favor of Gilbert to the detriment of appellant because of a conflict of interest.

II.

Appellant next argues that the trial court erred in refusing to rule that Smith was ineffective at trial. The law on this subject is well settled. Counsel is presumed to be competent. Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990) . A reviewing court indulges a strong presumption that counsel’s conduct falls within a wide range of “reasonable professional assistance.” Missildine v. State, 314 Ark. 500, 508, 863 S.W.2d 813, 818 (1993). To prevail on an argument of ineffective assistance, an appellant must show not only that counsel’s performance fell below an objective standard of competence, but he must also show that, but for counsel’s errors, there is a reasonable probability that the jury would have decided differently. Strickland, 466 U. S. at 687. A general claim of ineffectiveness with no showing of actual prejudice will not warrant relief. Malone v. State, 294 Ark. 367, 741 S.W.2d 945 (1988). Judicial review of counsel’s performance is highly deferential, and “a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Missildine, 314 Ark. at 508, 863 S.W.2d at 814. A court considering a claim of ineffective assistance must view it through the perspective of the totality of the evidence put before the jury. Id. In reviewing a trial court’s denial of postconviction relief, we will affirm unless the ruling is clearly against the preponderance of the evidence. Atchison v. State, 298 Ark. 344, 767 S.W.2d 312 (1989).

a.

Under this general assignment of error, appellant makes a number of sub-points. In the first of these he argues that Smith was ineffective because he did not interview Bobby Jewell Ford, the man who allegedly admitted to Derrick Gilbert that he had killed someone and that he had sold some property to appellant that was stolen at the time of the murder. To the contrary, Smith testified that he visited with Ford and that he checked with the State Crime Laboratory to determine if any of the fingerprints at the scene matched those of Ford. He testified that Ford refused to admit to him that he had sold stolen property to appellant. The record reflects that Smith did call Ford as a witness and that Ford invoked the Fifth Amendment. In the post-conviction proceeding the trial court found that Smith had done all that he could do to get Ford to testify. The trial court’s finding is not clearly against the preponderance of the evidence. See Atchison, 298 Ark. at 346, 767 S.W.2d at 313.

b.

Appellant argues that Smith was ineffective because he did not view the crime scene in preparation for trial. Smith testified at the postconviction hearing that he visited the crime scene before the trial. Appellant argues that Dudley Swann, the owner of Little Rock Crate and Basket company where the murder was committed, did not recall showing Smith the premises. Thus, appellant concludes that Smith never examined the crime scene. The actual testimony is not so conflicting as appellant would have it appear. Smith testified that he talked to Dudley Swann by phone and that he subsequently went to the scene and examined it without ever having met Swann. Even if there were a conflict in testimony, the resolution of credibility issues is within the province of the trial court. Atchison, 298 Ark. at 346, 767 S.W.2d at 313; Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986). In addition, Smith gave a detailed description of the crime scene. Again, appellant has failed to show that the trial court’s ruling is clearly against the preponderance of the evidence. Equally as important, he does not show how it would have made a difference even if Smith had not visited the scene, and he must do so in order to prevail. Strickland, 466 U.S. at 687.

c.

Appellant argues that Smith did not examine the evidence prior to trial. Audrianna Grisham, who shared a law office with Smith, testified that he did not seem to be familiar with the case and that he did not appear to have seen the evidence until just before the trial. However, Smith testified at the postconviction hearing that he thoroughly examined the evidence, that he worked on the case for about a year before he met Ms. Grisham, that he only met Ms. Grisham about two weeks before the trial, and that she did not know the extent of his preparation. Again, credibility issues and the weighing of testimony are for the trial court. Atchison, 298 Ark. at 346, 767 S.W.2d at 313.

d.

Appellant next contends that Smith failed to adequately investigate the penalty phase of the trial. In support of the argument, he states that Smith knew of violence and alcoholism in appellant’s family background, yet he contended there was nothing out of the ordinary in appellant’s background. Appellant also supports the argument by stating that Smith did not use a family history he prepared, did not talk with his sister, did not call a psychologist, Dr. James Moneypenny, until just before the trial, and did not know what mitigating circumstances existed until just before trial.

The trial court ruled that appellant did not show any prejudice because appellant did not show what mitigating circumstances Dr. Moneypenny or other family members would have brought out in trial. An examination of appellant’s brief to the trial court confirms this. He states that it was “easy” for the prosecution to “establish the paucity of Dr. Moneypenny’s contacts” with him; thus “one cannot say that the weighing of the [aggravating and mitigating] circumstances would not have been different” if Moneypenny had more time with him. He argues that only one family member was called to testify and if others had been called, “the strength of the family unit might have caused the jury not to vote for death.” However, appellant did not show what the family members might have said or done to help him, and a part of his argument in the penalty phase of the trial was that he should not receive the death penalty because he was fully capable of peacefully living the rest of his life in prison. Allegations of ineffective assistance without substantiation do not justify postconvicrion relief. Gilbert v. State, 282 Ark. 504, 669 S.W.2d 454 (1984). When a petitioner fails to show what the omitted testimony was and how it would have changed the outcome, we will not grant postconviction relief for ineffective assistance. See Missildine, 314 Ark. at 509-10, 863 S.W.2d at 819. To prove ineffectiveness due to failure to secure testimony, our cases require a showing of what would have been presented in the testimony as well as how the outcome would have been changed by it. See Russell, 302 Ark. at 277-78, 789 S.W.2d at 721.

e.

Appellant next argues that Smith was ineffective at the pretrial proceedings. In this sub-point, appellant contends that Smith did not object to a misstatement of evidence in the omnibus hearing. The specific argument is that at the hearing on November 1, 1990, the State claimed to have matched appellant’s fingerprints with fingerprints found at the scene, but, in fact, the fingerprint analysis done at the Crime Laboratory was not completed and mailed to the prosecutor’s office until November 26, 1990. Also, appellant argues that Smith apparently never did realize that he was not charged with capital felony murder, as he made a double counting argument both at pretrial and on appeal.

We summarily dismiss the argument about double counting, because, again, appellant has failed to show how he was prejudiced by Smith making the argument in his behalf. Strickland, 466 U.S. at 687. With regard to the fingerprints, the record shows that a deputy prosecutor stated at the omnibus hearing that the prints located near the victim were matched against the prints of appellant. Smith did not object. James Beck, a latent fingerprint examiner for the State Crime Laboratory, testified at the postconviction hearing that he first processed some prints in September of 1989, received more prints which he processed November 8, 1990, and completed the report on November 26, 1990. He testified that he thought a board he examined was returned to the Little Rock Police Department after September of 1989 and brought to him again in 1990. He stated that a fingerprint impression and a palm print taken from a window, as well as fingerprints from a coin box, matched appellant’s. Fingerprints taken from the two-by-four wooden board were not matchable.

The trial court found that it would not have made any difference even if Smith had objected at the omnibus hearing because Ann McClain of the Little Rock Police Department was included on the witness list in the felony information, and she would have been able to testify that she matched the fingerprints. Again, appellant has shown no prejudice in this omission by Smith. He must show that the outcome of the trial would have been different if the omission had not occurred. Strickland, 466 U.S. at 687. To do this, he would have to show, at the very least, that the fingerprints would not have been admissible, and he has not done this.

f.

Appellant contends that Smith was ineffective in both voir dire and selection of the jurors. He argues that Smith seated four jurors who previously sat as jurors on a capital murder trial in which a death verdict was rendered and that he did not strike other jurors. Specifically, appellant contends Smith should have struck one juror who worked closely with security personnel, another a former military policeman who said that he would give police officers’ testimony more credibility because they take field notes, two jurors who could not think of any mitigating circumstances, and one who had been a witness in a murder case. Appellant also contends Smith did not object when the State asked certain jurors to consider all the evidence when determining punishment, did not explore the jurors’ attitudes toward capital punishment, and that Smith suggested that crime is on the rise and that the death sentence is a more effective deterrent to crime than is the sentence of life without parole. Audrianna Grisham’s testimony on this issue is abstracted in the material part as follows:

On several occasions, he [Smith] and I had almost heated conversations about potential jurors, him thinking that they were qualified and me having doubts about it. It was Rob’s sole criteria; he wanted an all Catholic jury to sit on David Johnson’s trial. Their religion was his paramount concern, and he told me that. I remember one particular juror that during the middle of voir dire said that she absolutely without a doubt believed in capital punishment, but she was either Catholic or a religion that Rob considered tantamount to Catholicism, and he wanted her on the jury. I told him I thought it was a really bad idea.

Smith testified that he examined the responses the jurors made to questions submitted prior to trial. He testified that, as the trial took place three years ago, he could not recall the names of the jurors, and he did not recall whether he took jurors who had previously voted for a death penalty. He testified that if he had done so, he would have had a reason at the time.

Smith testified that he talked to attorneys who had extensive criminal experience. He testified that Millard Farmer was one of the foremost defense attorneys in capital cases, and Farmer told him appellant was likely to be sentenced to death. Thus, Smith was apparently looking for a strategy that might keep his client from the death sentence. He apparently chose to base it upon religious tenets of the jurors. Appellant’s argument is that Smith used bad strategy in selecting the panel. We have often written that we will not label counsel ineffective merely because of possible bad tactics or strategy. Dumond v. State, 294 Ark. 379, 743 S.W. 2d 779 (1988). We hold that errors, omissions, mistakes, improvident strategy, or bad tactics are not alone sufficient to render counsel ineffective. Haynie v. State, 257 Ark. 542, 546, 518 S.W.2d 492, 495 (1975).

g-

Appellant makes two-arguments under this sub-issue. They are: (1) Smith failed to sufficiently raise doubts that tennis shoes and clothes admitted into evidence belonged to appellant; and (2) Smith failed to present alibi witnesses and other exculpatory evidence.

1.

The forensic scientist from the State Crime Laboratory testified that the small amount of human blood on the shoes introduced into evidence could not be matched to either appellant or the victim. Connie Manuel, appellant’s girlfriend with whom he was living, stated that on the night of the murder appellant wore the clothes and shoes that were admitted into evidence, and that appellant washed some clothes the next day, but she could not say whether the clothes he washed were the same clothes he wore earlier. Luella Shavis, Connie Manuel’s mother, who also lived with appellant, testified that she authorized the police to take some clothes from a bedroom of their home, but she could not tell if the ones presented at trial were the ones taken except for the shirt. There were no witnesses who described appellant’s clothing at the time of the murder, except for possibly Terrie Dickerson, who saw him before and after the murder, and she testified that she thought he was wearing jeans, a blue or gray shirt, and tennis shoes. Dickerson was not asked to identify the clothes at trial. Since the clothes and shoes did not directly connect appellant with the murder, and since appellant did not tell his attorney at trial that the shoes were not his, the trial court ruled that the appellant failed to show either that Smith’s conduct on this subpoint fell below the objective standard for an attorney or that, in view of all of the other evidence of guilt, it made any difference in the outcome of the trial. We cannot hold that the trial court’s ruling was clearly against the preponderance of the evidence.

2.

Appellant argues that Smith should have asked Terrie Dickerson if appellant was at her house at the time of the murder. Although the question at trial was not asked in that exact way, Terrie Dickerson did testify to that effect. She stated that, at approximately 7:00 p.m. on the evening of the murder, appellant walked up to her house and told her that her car, which he had borrowed, was stuck in a ditch by Little Rock Crate and Basket. She further testified that it would take about two hours to walk to her house from Little Rock Crate and Basket. If true, this would have made it impossible for Johnson to have committed the murder, as Leon Brown was alive at 5:00 p.m. See Johnson, 308 Ark. at 11, 823 S.W.2d at 802. Smith argued this time factor in his closing argument. Further, Smith attempted to get Dickerson’s mother, Ella Mae Richardson, to testify that she talked to appellant between 5:00 and 5:30 on the date of the murder, when he called from Little Rock Crate and Basket to tell her Terrie’s car was stuck in a ditch, but the trial court sustained a hearsay objection.

Appellant’s complaint about Dickerson’s testimony is that it should have been “emphasized” more, but, again, it is an argument over strategy. Haynie, 257 Ark. at 546, 518 S.W.2d at 495. Since Smith did attempt to procure Richardson’s testimony, appellant’s argument is really only a disguised evidentiary argument that the hearsay objection should have been overruled. We do not entertain such arguments in Rule 37 petitions. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987).

Appellant also argues that Smith made a mistake in not cross-examining criminalist Gary Lawrence. On direct, Lawrence testified that hairs found on a board, arguably the murder weapon, could not be definitively identified as the victim’s hairs. Smith did not cross-examine him, but that strategy allowed him to argue in closing that there was no evidence to link appellant with the murder weapon.

h.

Appellant argues that in the penalty phase of the trial Smith should have offered more evidence about his background, both through Dr. Moneypenny and through family members. At trial, Dr. Moneypenny attempted to testify about appellant’s background, but a hearsay objection was sustained. At the postconviction hearing, Dr. Moneypenny testified that appellant indicated his mother had a drinking problem and that there was a lot of physical violence between his mother and father and between his mother and stepfather. Dr. Moneypenny stated that he had testified about mitigating circumstances in other trials. However, there was no proof that family members would have so testified. In fact, appellant’s sister, Patrice Jenkins, testified at trial that the men in their home were “wonderful” father figures. Thus, appellant has not brought forth the facts necessary to show any prejudice.

The argument concerning Dr. Moneypenny’s testimony is a disguised evidentiary argument that the testimony should have been admitted under Ark. Code Ann. § 5-4-602(4) (Repl. 1993), which states that the rules of evidence, such as hearsay, do not apply to mitigating evidence in capital cases. Such arguments are not entertained in Rule 37 petitions. Haynie, 257 Ark. at 546, 518 S.W.2d at 495.

i.

Appellant argues that Smith was ineffective after the trial, the facts surrounding this argument are as follows. Audrianna Grisham, Smith’s disgruntled former office-mate, testified at the posttrial hearing that she received a phone call from either a prospective juror or spectator, stating that two prospective jurors were discussing the crime before voir dire and said “all niggers are guilty and ought to be hung.” One of the jurors, a woman, supposedly served on the jury. Ms. Grisham admitted on cross- examination that she did not remember the name of the caller and had not tried to reconstruct it for appellant’s attorneys for the post-trial petition. She did not know the name of the juror, but said that she could possibly determine it through process of elimination. She stated that Smith told her he spoke to the trial judge and was told not to pursue it. Smith testified that a witness for the State, who would not give his name, called him after the trial and told him the same story. He testified that he reported the incident to the trial judge, and the trial judge told him there was nothing that could be done unless the individual would be willing to identify himself and testify. The individual refused to identify himself or give an affidavit.

The trial court found that Grisham’s testimony was not credible and that Smith had done all he could do. Again, such questions of credibility are within the province of the trial court. Atchison, 298 Ark. at 346, 767 S.W.2d at 313. Appellant does not show what else Smith should have done to get the juror to testify. He has failed to show that Smith’s performance fell beneath any objective standard, or that he was prejudiced. Strickland, 466 U.S. at 687.

III.

Appellant argues that he should be afforded relief because the deputy prosecutors violated Rule 4.2 of the Arkansas Rules of Professional Conduct when they questioned Derrick Gilbert about this murder while Gilbert was represented by counsel. The argument is without merit. Gilbert was represented by Smith in an unrelated matter, and the Rule does not prohibit communication with a party on matters outside the representation. See Comment to Rule 4.2.

Appellant contends that United States v. Lopez, 989 F.2d 1032 (9th Cir. 1993), a case interpreting a similar rule of the California Rules of Professional Conduct, is authority for holding that the prosecutors violated the Rule. In that case, the Ninth Circuit Court of Appeals held that the comparable California Rule was violated, but the facts of that case are inapposite to the case at bar. There, the defendant attempted to personally meet with the prosecutor about his case because he had a difference of opinion with his lawyer over plea bargains. Id. at 1034. The court held that the prosecutor violated the rule by meeting with the appellant. Id. at 1038. Here, the prosecutors were not questioning Gilbert about a crime he was accused of committing.

IV.

Appellant argues that the trial court erred in denying post-conviction relief because he is actually innocent of capital murder. We summarily dismiss this point of appeal. We recited the proof in our original opinion, Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992), and held that the proof was overwhelming that appellant savagely murdered Leon Brown for pecuniary gain.

In this argument appellant merely reiterates his argument that Bobby Ford may have killed Leon Brown, which is what he unsuccessfully argued at trial. Appellant is therefore trying to rechallenge the sufficiency of the evidence in this post-conviction proceeding. We have said that there can be no relief on an ineffectiveness claim when there is no demonstration that additional evidence would have persuaded the jury differently. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Here, this proposition is even more pronounced because there is not even a suggestion of new evidence.

V.

In his final point of appeal, appellant makes three sub-points involving the penalty phase of the trial.

a.

The first sub-point involves this court’s opinion on the direct appeal. In this argument appellant contends that the trial court erred in its Rule 37 ruling in refusing to hold that this court improperly applied the harmless error analysis to an evidentiary ruling involving the testimony of Dr. Moneypenny. See Johnson, 308 Ark. at 27, 823 S.W.2d at 810-11. The transparency of the argument is immediately obvious. Our allowance of such a procedure would have the trial court, in a Rule 37 proceeding, review the holding of the supreme court. The answer to the argument is, if our opinion were to have contained an error of law, it had to be remedied in this court through a petition for rehearing. The now alleged error was never cited in a petition for rehearing, see Ark. Sup. Ct. R. 2-3, and this court was never afforded an opportunity to correct the supposed error. The mandate was handed down in 1992, during the October 1991 term, and once the mandate has been handed down, the disposition of the case becomes final. Ark. Sup. Ct. R. 5-3. In addition, the supreme court cannot modify or enlarge a judgment after the close of the term. Hershey v. Luce, 56 Ark. 320, 20 S.W. 6 (1892). Thus, we dismiss the argument.

b.

The second sub-point involves this appeal from the trial court’s denial of postconviction relief. In his Rule 37 petition filed in circuit court, appellant argued that trial counsel was ineffective at trial because he “did not object to improper restriction on mitigation evidence.” The trial court directly addressed this argument and ruled that this court in its opinion addressed the improper restriction on mitigating evidence and held that there was no prejudice because the evidence came in through another witness. The trial court then ruled that appellant was attempting to reargue the evidentiary issue through the guise of ineffective assistance of counsel and could not do so when the claim was addressed on direct appeal. See Stephens v. State 293 Ark. 231, 737 S.W.2d 147 (1987). The trial court’s ruling was correct.

c.

The third sub-point involves counsel’s ineffectiveness for failing to argue on rehearing that this court’s opinion on direct appeal contained an alleged error of law. Appellant did not make this allegation in his Rule 37 petition filed in circuit court. The matter was not argued below, and the trial court did not rule on it. This is an appeal from the trial court’s denial of the Rule 37 petition, and our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). However, in death penalty cases we will consider errors argued for the first time on appeal where prejudice is conclusively shown by the record and this court would unquestionably require the trial court to grant relief under Rule 37. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). In Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981), we said an error may be argued for the first time on appeal in a death case only when it is “of such magnitude that it would require us to take note of an error which involved a fundamental deprivation of the right to a fair trial.” Id. at 192, 617 S.W.2d at 376.

The record does not show error of such magnitude. In fact, the record does not show any error in our opinion. Appellant contends that this court erroneously employed the harmless error standard of review in deciding the penalty phase of the trial, and cites Williams v. State, 274 Ark. 9, 621 S.W.2d 686 (1981), cert. denied, 459 U.S. 1042 (1982) as authority. The argument is without merit. Williams does not hold that we can never use the harmless error standard of review in the penalty phase. Rather, the opinion states that, since the jury found one of the three aggravating circumstances by using an erroneous instmction given by the trial court, “we are not in a position to speculate about what the jury might have done if it had found only two aggravating circumstances instead of three.” Id. at 12, 621 S.W.2d at 687. Then, after we decided Williams the General Assembly amended the applicable statute, Ark. Code Ann. § 5-4-603(d), to expressly provide for this court to use the harmless error standard of review. The statute is fairly described in Survey, Criminal Procedure, 10 U.A.L.R. Law Journal 567, 569 (1987-88), as follows:

The Act states that where the Arkansas Supreme Court finds that the jury erred in finding the existence of aggravating circumstances or lack of mitigating circumstances, the court shall conduct a harmless error review. The review as set out by the legislature requires the supreme court to determine whether the remaining aggravating circumstance(s), excluding the circumstance found in error, exists beyond a reasonable doubt and justifies a death sentence beyond a reasonable doubt. If so, the court can conclude that the jury would have imposed the death sentence despite the error, and can affirm the defendant’s death sentence by a vote of a simple majority, rather than remand for the lower court to determine the sentencing issue.

Id. at 569.

In Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992), and Sanders v. State, 308 Ark. 178, 824 S.W.2d 353 (1992), both decided after the statute was amended, we stated that we could reweigh the aggravating circumstances and affirm the death sentences on the basis of a review employing the harmless error standard, but, in both cases, we declined to hold that the error was in fact harmless.

When mitigating circumstances are found, the wording of the statute does not expressly authorize this court to utilize a harmless error review in the weighing of aggravating circumstances against mitigating circumstances, but that was not the issue before us on direct appeal of this case. Nowhere in the direct appeal did we reweigh aggravating circumstances against mitigating circumstances. Rather, on our own motion we discovered an erroneous evidentiary ruling involving testimony about mitigating circumstances, see Ark. Sup. Ct. R. 4-3(f), and we wrote:

Even though the ruling was erroneous, no prejudice was suffered because the expert witness was able to express his opinion that the appellant could successfully live in a prison society, and the jury so held, and the facts concerning the appellant’s background were fully developed for the jury by another witness, appellant’s sister, Patrice Marcella Jackson Jenkins.

Johnson, 308 Ark. at 27, 823 S.W.2d at 811 (emphasis added).

There was no proffer at trial of additional testimony by Dr. Moneypenny that might have caused the jury to find an additional mitigating circumstance. Patrice Jenkins testified about appellant’s background, and there was no objection to her testimony. Consequently, there was no proffer of additional testimony by her. Thus, the jury heard all of the evidence about mitigating circumstances that was offered at trial. This court correctly used the harmless error standard of review in deciding the evidentiary issue. We did not reweigh the aggravating circumstance against the mitigating circumstance. Therefore, appellant was not deprived of any rights, much less the fundamental right to a fair trial. In sum, appellant’s argument is without merit because he did not plead the matter in his Rule 37 petition in circuit court, and it is barred. Even if we considered the matter for the first time on appeal because it is a death case, the argument is without merit, and appellant was not deprived of a fundamental right to a fair trial.

Affirmed.

Brown and Roaf, JJ., concurring in part and dissenting in part.

Robert L. Brown, Justice,

concurring in part, dissenting in part. I agree to affirm the Order Denying Post-Conviction Relief on every point but one and would remand for resentencing.

During the penalty phase at the original trial, Johnson was prohibited by court ruling from presenting complete background testimony through Dr. Moneypenney in mitigation of a death sentence. We affirmed that ruling in Johnson v. State, 308 Ark. 7, 823 S.W.2d 800 (1992) (Johnson I), and used a harmless error analysis in making our decision. In particular, we noted that Dr. Moneypenney’s testimony about Johnson’s background would have been cumulative to the testimony by Johnson’s sister. It appears that we erred in holding as we did. See Skipper v. South Carolina, 476 U.S. 1 (1986); see also Greene v. State, 317 Ark. 350, 878 S.W.2d 384 (1994); Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993); Ark. Code Ann. § 5-4-603 (1987).

The key assumption in the majority’s discussion of this issue is an erroneous conclusion that Johnson did not raise his counsel’s failure to petition for rehearing in his Rule 37 petition. But Johnson did raise that failure, after explaining the error of applying the harmless error analysis to the exclusion of a mitigating circumstance:

As discussed previously, to the extent that this matter is deemed to have been procedurally defaulted at trial or on appeal, Smith [trial counsel] was ineffective in not properly presenting and preserving it.

Despite this assertion in the Rule 37 petition, the trial court ruled as follows:

Mitigation evidence. Petitioner alleged that his attorney was ineffective for not objecting to the improper restriction on mitigation evidence. The Arkansas Supreme Court when addressing the issue of improper restriction on mitigating evidence, stated that there was no prejudice because the evidence came in through another witness. Petitioner appears to be arguing an evidentiary question through the guise of ineffective assistance of counsel, and cannot do so especially when the claim was raised on direct appeal. Robinson v. State, supra. See O’Rourke v. State, 298 Ark. 144, 764 S.W.2d 916 (1989); Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).

Contrary to the trial court’s statement, the mitigation issue was not raised on direct appeal by Johnson. Rather, this court raised the issue as part of our Supreme Court Rule 4-3(h) review and then applied the harmless error analysis. See Johnson I, 308 Ark. at 26, 823 S.W.2d 810. Hence, the only opportunity for trial counsel to correct this error was on rehearing. The majority also writes that the mitigation argument is one that should have been made on rehearing in Johnson I. But, again, that failure of trial counsel to ask for rehearing in Johnson I is exactly the point. Johnson’s counsel prejudiced Johnson’s case by not doing so.

The majority then concludes that even if Johnson did assert the issue of failure to ask for rehearing in his Rule 37 petition, Johnson did not suffer any prejudice by the exclusion of Dr. Moneypenney’s testimony. Specifically, the majority concludes that application of the harmless error test was proper. But this runs counter to our cases and authority from the United States Supreme Court. In Sheridan v. State, we underscored the importance of mitigation testimony:

The United States Supreme Court has held that it is a mandatory safeguard of the Eighth Amendment for the sentencing body to be allowed to consider any mitigating factor that is relevant to the particular offender’s case. California v. Brown, 479 U.S. 538 (1987); Roberts v. Louisiana, 431 U.S. 633 (1977); Gregg v. Georgia, 428 U.S. 153 (1976). The defense must be allowed during the sentencing phase to introduce any relevant mitigating evidence the defense proffers concerning the character or history of the offender or the circumstances of the offense. California v. Brown, supra. Not only must relevant mitigating evidence be admitted, it must be actually considered, which in appropriate cases means specifically instructing the jury to do so. Penry v. Lynaugh, supra; Eddings v. Oklahoma, 455 U.S. 104 (1982). In other words, any death sentence that results from a deliberate exclusion of any relevant mitigating evidence is presumptively invalid. Hitchcock v. Dugger, 481 U.S. 393 (1987).

313 Ark. at 38, 852 S.W.2d at 779.

The United States Supreme Court has addressed the precise point of whether the exclusion of proof of mitigation is prejudicial error. See Skipper v. South Carolina, 476 U.S. 1 (1985). In Skipper, the defendant was sentenced to death. The trial court, during the sentencing phase of the trial, excluded as irrelevant testimony of two jailers and a visitor who would have testified that the defendant had made a good adjustment in jail. Both the defendant and his wife had testified that he had also conducted himself well in jail. The Supreme Court reversed the death sentence and remanded for resentencing on the basis that the testimony of a mitigating circumstance by these disinterested witnesses was relevant. In doing so, the Court stated:

We think, however, that characterizing the excluded evidence as cumulative and its exclusion as harmless is implausible on the facts before us. The evidence petitioner was allowed to present on the issue of his conduct in jail was the sort of evidence that a jury naturally would tend to discount as self-serving. The testimony of more disinterested witnesses — and, in particular, of jailers who would have had no particular reason to be favorably predisposed toward one of their charges — would quite naturally be given much greater weight by the jury. Nor can we confidently conclude that credible evidence that petitioner was a good prisoner would have had no effect upon the jury’s deliberations. The prosecutor himself, in closing argument, made much of the dangers petitioner would pose if sentenced to prison, and went so far as to assert that petitioner could be expected to rape other inmates. Under these circumstances, it appears reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury’s decision to impose the death sentence. Thus, under any standard, the exclusion of the evidence was sufficiently prejudicial to constitute reversible error.
The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury’s ability to carry out its task of considering all relevant facets of the character and record of the individual offender.

Skipper, 476 U.S. at 8.

The facts of the instant case are analogous. But the majority opinion holds that excluding the mitigation testimony of Dr. Moneypenney concerning Johnson’s adverse background conditions was cumulative to that of his sister and, therefore, harmless. However, a sister’s testimony does not substitute for that of a disinterested witness. The jury was deprived of Dr. Moneypenney’s testimony. It was error to exclude it, and trial counsel should have petitioned for rehearing when this court affirmed the error.

I believe that the exclusion of Dr. Moneypenney’s testimony on mitigating circumstances might well have affected the assessment of the death penalty. Accordingly, I would remand for resentencing. See Ward v. State, 308 Ark. 415, 827 S.W.2d 110 (1992).

Roaf, J., joins in this dissent.


author: David Newbern, Justice.

text:
    William A. WACASER v. INSURANCE COMMISSIONER
    95-143
    900 S.W.2d 191
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Lowber Hendricks, for appellant.

      J. Denham, for appellee.
   David Newbern, Justice.

William Wacaser, the appellant, has been an insurance salesman licensed in Arkansas. The Insurance Commission received a number of complaints about Mr. Wacaser’s sales practices and initiated an investigation. The investigation concluded in a hearing before the appellee, Lee Douglas, the Insurance Commissioner. As a result of the hearing, the Commissioner concluded Mr. Wacaser had violated the Insurance Code in seven instances, and he revoked Mr. Wacaser’s license. The Circuit Court affirmed the decision as do we.

The violations found by the Commissioner were of a number of provisions of the Insurance Code. Ark Code Ann. §§ 23-66-201 through 23-66-408 (Repl. 1994). Mr. Wacaser contests most of the Commissioner’s conclusions as not being based upon substantial evidence. We need not address all of the arguments made on each of the violations found. It is enough for us to point up several instances in which the Commissioner’s conclusions were clearly justified.

1. Standard of review

Generally, when reviewing an administrative agency decision, we review the entire record to determine whether there is any substantial evidence to support the decision, whether it was arbitrary and capricious, and whether there was an abuse of discretion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, 320 Ark. 110, 895 S.W.2d 901 (1995); In re Sugarloaf Mining Co., 310 Ark. 772, 840 S.W.2d 172 (1992).

We review the whole record to see if the decision is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., 311 Ark. 125, 842 S.W.2d 42 (1992).

Administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying legal issues affecting their agencies. That accounts for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra; Wright v. Arkansas State Plant Bd., supra.

To establish an absence of substantial evidence it must be demonstrated that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusions. Arkansas Appraiser Lic. & Cert. Bd. v. Biles, supra.

2. Rebating

The “paying or allowing, or giving, or offering to pay, allow, or give, directly or indirectly, as inducement to the insurance contract. .. any valuable consideration or inducement whatever not specified in the contract” constitutes a “rebate” and thus an unfair trade practice according to § 23-66-206(8).

Upon a finding that an agent has engaged in rebating, the Commissioner may, within his discretion, revoke the license of an agent who knew or reasonably should have known of the violation. § 23-66-210(a)(2).

At the beginning of the hearing the following colloquy occurred:

MR. HENDRICKS [Counsel for Mr. Wacaser]: Mr. Commissioner I’m not going to bore you with an opening statement. I might save you a little bit of time in that I don’t think there’s any question because the proof will show that Mr. Wacaser committed an act or acts which would be considered rebates within the meaning of the code. And as a matter of fact, he’s guilty of that and I just don’t understand the necessity for taking up your time and having to hear testimony on that. We admit that.
MR. DOUGLAS: Okay. On the particular issue on the rebating, there are several allegations here.
MR. HENDRICKS: The allegations go to show, Mr. Commissioner, that from time to time [Mr. Wacaser] would pay part of policyholder’s association fee for the policyholder in order to write the business. He’s freely admitted to that in the other hearing. There’s no dispute about it.

Mr. Wacaser now argues that no cease and desist order, as required by § 23-66-210(a), was entered by the Commissioner and that there is no evidence that he knew that the payment by him of a portion of “association fees” owed by his client constituted rebating.

Mr. Wacaser’s admission, through his counsel’s statement, of giving rebates “within the meaning of the code” could not have been clearer. Later in the hearing he testified he did not know that what he was doing constituted rebating. No authority is offered, however, to the effect that the Commissioner was required to believe that testimony. In view of the clarity of § 23-66-206(8) and Mr. Wacaser’s earlier plea of “guilty,” offered to “save time” which might otherwise have been devoted to presenting evidence on the rebating issue, we can hardly say the evidence on that issue was insufficient or that the Commissioner was not justified in finding that it had been admitted.

Mr. Wacaser offered no defense at the hearing concerning the requirement of a cease and desist order, and we will not consider that argument. See Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985).

3. Harassment

Ms. Lynette Hardin testified she met Mr. Wacaser at her place of temporary employment, Service Merchandise. He later called and told her she was “going to go to work for him” in his insurance business at his home. She went out with him to dinner and to lunch and a movie the following day. She declined further invitations, but Mr. Wacaser persisted in calling her, and, she was told, calling and speaking to coworkers at Service Merchandise “hundreds of times.” She was also informed that he told persons with whom he spoke at Service Merchandise that he was an insurance agent who had a “policy on” her and had lost some information about her he needed. Mr. Wacaser also called the office of a physician for whom she worked, seeking information about her. He called another former employer and said Ms. Hardin had applied for a job with him and he was seeking information about her.

Ms. Hardin notified Mr. Wacaser that she wanted nothing further to do with him and changed to an unlisted telephone number, but Mr. Wacaser sent mail to her address and left items on her car. She felt she was being “stalked” and reported Mr. Wacaser to the prosecutor. He was convicted of a misdemeanor for harassing communications. See Ark. Code Ann. § 5-71-209 (Repl. 1993).

Another instance of harassment was the subject of testimony by Mike Boyce. Mr. Boyce’s wife had discussed insurance with Mr. Wacaser who then sought to discuss it with Mr. Boyce who apparently did not want to deal with it while he was working at his grocery store and asked Mr. Wacaser not to call him there. Mr. Boyce testified that Mr. Wacaser “went off his rocker” and made a threat of physical violence. He testified that a couple of months later he found all the locks at his business had been “super glued.” Later on the day he discovered the problem with the locks he received a call from a person who said, “You little smart aleck, I’ll get you again.” He identified the voice as that of Mr. Wacaser.

The Commissioner may revoke any license issued by him if, after a hearing, he finds “(1) Any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner; (2) Violation of or noncompliance with any applicable provision of the laws of this state, ...” § 23-64-218(a). Mr. Wacaser does not contest the fact that he was convicted of harassing communications with Ms. Hardin, and we have no doubt that no license would have issued to Mr. Wacaser had the incidents with Ms. Hardin and Mr. Boyce been a part of his reputation when application for the license was made. A criterion for issuance of an agent’s license is a “good personal and business reputation.” § 23-64-204(a)(4).

The evidence on these matters was substantial.

4. Misrepresentation

There was substantial evidence with respect to at least one instance of misrepresentation to a client. Mr. Wacaser sold health insurance to Mr. and Mrs. Keener who testified he told them they would have immediate dental coverage. Mrs. Keener was informed upon calling the issuing insurance company that the policy had to be in effect for one year before the dental coverage became effective. The Keeners received an apology and a refund of their premium from the company. Mr. Keener testified that Mr. Wacaser thereafter called his home and accused him of “insurance scamming” and threatened to “make it hard” for him to obtain insurance.

Misrepresentation with respect to an application for insurance is a violation of the Code, § 23-66-305, and constitutes a ground for revocation of an agent’s license, § 23-60-108. The evidence of misrepresentation to the Keeners was substantial.

5. Fair hearing

Mr. Wacaser contends he did not receive a hearing free from the appearance of impropriety because of the participation of Mr. Ronald Sheffield, Deputy Commissioner. He testified he had a physical altercation with Mr. Sheffield at a golf driving range prior to the investigation into Mr. Wacaser’s activities as an insurance agent and thus that Mr. Sheffield should not have had any part in the matter. Mr. Sheffield flatly denied that any such altercation occurred and denied that he had ever met Mr. Wacaser prior to his conducting an informal hearing, at the behest of a Department investigator, as part of the investigation of Mr. Wacaser.

Mr. Sheffield did not participate further in Mr. Wacaser’s case after learning that a freedom of information request had been made by Mr. Wacaser with respect to an incident in which Mr. Sheffield had been accused of misconduct, not a part of the alleged altercation with Mr. Wacaser, at a municipal golf course.

A fair trial by a fair tribunal is a basic requirement of due process. This rule applies to administrative agencies as well as to courts. See Sexton v. Ark. Supreme Ct. Comm, on Profess. Conduct, 299 Ark. 439, 774 S.W.2d 114 (1989); See also Arkansas Elec. Energy Consumers v. Ark. Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991). Administrative agency adjudications are also subject to the “appearance of bias” standard applicable to judges. Acme Brick Co. v. Missouri Pac. R.R., 307 Ark. 363, 821 S.W.2d 7 (1991). As the underlying philosophy of the Administrative Procedures Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at any time there may be reasonable suspicion of unfairness. Ark. Racing Comm’n v. Emprise Corp., 254 Ark. 975, 497 S.W.2d 34 (1973).

Mr. Wacaser testified he felt only two of the complaints against him — none of the ones discussed above — with the Insurance Department had been prompted by someone at the Department. In view of that statement and the fact that Mr. Sheffield had only a limited participation in the revocation hearing prior to his withdrawal, the hearing’s appearance of impartiality was not compromised. We note also the Commissioner’s argument that, although Mr. Wacaser was vigorously represented by counsel, no mention of Mr. Sheffield’s participation was made until the waning hours of a six-months long investigation.

Affirmed.


author: Tom Glaze, Justice.

text:
    CROCKETT & BROWN, P.A., and C. Richard Crockett v. William R. WILSON, Jr., Gary D. Corum, and John R. Byrd
    94-1307
    901 S.W.2d 826
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      Gill Law Firm, by: John P. Gill, and Crockett & Brown, PLLC, by: C. Richard Crockett, for appellants.

      Wilson, Engstrom, Corum & Coulter, by: Gary D. Corum, for appellees.
   Tom Glaze, Justice.

Crockett & Brown, P. A. (C&B) brings its third appeal concerning issues surrounding its efforts to recover attorney’s fees in connection with its representation of Richard Courson in a negligence suit filed against Thomas Averette, who had shot Courson in the eye with a shotgun. See Crockett & Brown, P.A. v. Courson, 312 Ark. 363, 849 S.W.2d 938 (1993) (C&B I); Crockett & Brown P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244 (1993) (C&B II).

In C&B I, this court affirmed the Ashley Circuit Court’s decision that, under C&B’s and Courson’s original July 5, 1989 employment contract, C&B was entitled to the reasonable value for its services to the date of discharge even though Courson had terminated C&B for cause before a final settlement had been obtained. The court further held, however, that C&B was not entitled to the statutory lien under Ark. Code Ann. §§ 16-22-301 -304 (Supp. 1991) because that lien provision applied only where an attorney was terminated without cause. Id. 312 Ark. 377A. The court also upheld as reasonable the Ashley Circuit Court’s award of attorney’s fees and costs in the sum of $17,541.29.

C&B II resulted from a second lawsuit filed by C&B against Courson in the Pulaski Chancery Court. This second suit was filed after C&B appealed the Ashley Circuit Court’s decision in C&B I. C&B based this subsequent suit upon the theory that it was entitled to $100,000 in attorney’s fees from Courson based upon a one-third contingency employment contract Courson purportedly agreed to after, and in substitute of, the parties’ original agreement. Because Courson eventually obtained a $300,000 settlement, C&B claimed entitlement to one-third of it plus an attorney’s lien in the same amount pursuant to Ark. Code Ann. § 16-22-301 (Supp. 1991). In this Pulaski County suit, C&B joined as defendants Courson’s new attorneys, Wilson, Corum and Brown (Wilson), Averette and Averette’s insurer, Allstate Insurance Company. In C&B II, this court upheld the Pulaski Chancery Court’s ruling that C&B’s second suit was barred by res judicata and collateral estoppel. In sum, the court held that C&B could not relitigate its fee since that issue already had been decided in the Ashley Circuit Court case.

After this court’s decision in C&B II, the Pulaski Chancery Court imposed ARCP Rule 11 sanctions against C&B and its attorney, C. Richard Crockett, in the sum of $15,000. In imposing sanctions, the chancery court found, contrary to C&B’s contention, the Ashley Circuit Court’s adjudication of the attorney’s fee issue was a final one when C&B filed its Pulaski County action. The chancellor also found that it was unreasonable for C&B to believe it could seek fees under the parties’ July 5 contract and its purported amended or substituted contract in separate actions. She pointed out that either the original contract was enforceable because it had not been replaced by the amended version or the amended contract was valid since it had replaced the July 5 contract. In addition, the chancellor found that, contrary to C&B’s suggestion, the Ashley Circuit Court was well aware of, and considered, the final $300,000 settlement entered into by Courson and Averette when the court awarded attorney’s fees, and C&B had acknowledged it could have enforced its contract rights against the new defendant attorneys in the Ashley County case.

C&B first argues that the chancery court abused its discretion by imposing Rule 11 sanctions. Under Rule 11, an attorney signing a pleading, motion, or other paper on behalf of a party constitutes a certificate that (1) the attorney made a reasonable inquiry into the facts supporting the document or pleading, (2) he or she made a reasonable inquiry into the law supporting that document to ensure that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and (3) the attorney did not interpose the document for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation. Ward v. Dapper Dan Cleaners & Laundry, Inc., 309 Ark. 192, 828 S.W.2d 833 (1992). When a violation of Rule 11 occurs, the Rule makes sanctions mandatory. Id. Whether a violation occurred is a matter for the court to determine, and this determination involves matters of judgment and degree, and in reviewing a trial court’s Rule 11 determination, we do so under an abuse of discretion standard. Id.; see also Miller v. Leathers, 311 Ark. 372, 843 S.W.2d 850 (1992); Miles v. Southern, 292 Ark. 280-A, 763 S.W.2d 656 (1988) (supplemental opinion denying rehearing).

C&B contends the facts alleged in its complaint filed in the Pulaski County action were true and the record is devoid of any indication that C&B failed to make a reasonable inquiry into the law. C&B asserts that, before filing the Pulaski County complaint, it made an exhaustive research of the law, and based upon that research, C&B’s Pulaski County action was appropriate. Wilson rejoins, stating C&B relied upon a “tortured” interpretation of statutory and appellate law in an effort to explain why C&B was justified in “relitigating” the same claim in the Pulaski County action that had already been litigated in Ashley Circuit Court. In sum, Wilson urges that C&B’s Pulaski Chancery Court action involved the identical cause of action earlier decided by the Ashley Circuit Court, and therefore, the second lawsuit violated the fundamental principles of finality and issue preclusion.

In fact, this court held in Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W.2d 244, that C&B was precluded by res judicata and collateral estoppel in its Pulaski County action from obtaining a fee pursuant to §§ 16-22-301 -304 because the Ashley Circuit Court previously resolved those issues involving C&B’s quest for fees. Even so, Rule 11 is not intended to permit sanctions just because the court later decides that the lawyer was wrong. Rachel v. Banana Republic, Inc., 831 F.2d 1503 (9th Cir. 1987). Instead, the trial court, in exercising its discretion under Rule 11, is expected to avoid using the wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted. Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535 (3rd Cir. 1985); see also Teamsters Local Union No. 430 v. Cement Exp., Inc., 841 F.2d 66 (3rd Cir. 1988). Put in other terms, Rule 11 does not require that the legal theory espoused in a filing prevail. The essential issue is whether signatories of the document fulfilled their duty of reasonable inquiry into the relevant law, and the indicia of reasonable inquiry into the law include the plausibility of the legal theory espoused and the complexity of the issues raised. CJC Holdings, Inc. v. Wright & Lato, Inc., 989 F.2d 791 (5th Cir. 1993). The CJC Holdings décision admonished that a trial court should not impose Rule 11 sanctions for advocacy of a plausible legal theory, particularly when the law is arguably unclear. Id. at 794.

In the present case, C&B filed its Pulaski County complaint on July 2, 1992, which was nearly eight months before this court in C&B II decided C&B’s second lawsuit had been barred by the Ashley Circuit Court’s decision. Nonetheless, we must decide whether C&B made a reasonable inquiry into the law before, and at the time, it filed its Pulaski County action. In reviewing the Pulaski Chancery Court’s decision imposing Rule 11 sanctions, we consider the complexity of the issues and the plausibility of the legal theory C&B advanced when filing its Pulaski County complaint.

C&B’s justification for filing its Pulaski County action depends upon its assertion that Courson and Averette entered into their $300,000 settlement after the Ashley Circuit Court had ruled C&B was not entitled to a fee pursuant to § 16-22-301. It argues Averette, his insurer, Courson and Wilson then entered into a $300,000 settlement without considering C&B’s interests. Under the rationale and holding in Lockley v. Easley, 302 Ark. 13, 786 S.W.2d 573 (1990), C&B states it believed it could pursue its fee contract rights in Pulaski County since Wilson and Averette’s insurer had not been made parties in the Ashley County litigation. The Lockley case is clearly distinguishable from the situation here since there, the attorney had not been discharged for cause, and was awarded his contractual contingent fee pursuant to §§ 16-22-301 -310 (1989). Even so, we do not consider C&B’s different interpretation of Lockley significant when deciding whether the Pulaski chancery judge erred in imposing Rule 11 sanctions. If our decision depended merely upon whether C&B had made an honest misinterpretation of case law, we likely would find merit in C&B’s argument. Instead, we find the Pulaski Chancery Court’s factual and legal findings are most relevant in supporting its imposition of sanctions and in reviewing them, we conclude those findings clearly support the chancellor’s holding that C&B violated Rule 11.

The chancery court went into much detail and offered objective reasons for imposing sanctions. Significantly, it emphasized that, in the Ashley Circuit case, C&B had filed a motion for new trial wherein it related that Courson and Averette had settled for $300,000. C&B moved that the Ashley County Circuit Court open up its judgment and make additional findings and conclusions. Thereafter, the Ashley Circuit Court held a hearing and subsequently amended its earlier order. During the hearing, the circuit court stated it was not justified in placing a lien on the $300,000 settlement amount. The chancellor further found the Ashley Circuit Court had entered an amended order that fixed C&B’s attorney’s fees, authorized the disbursement of the $300,000 settlement proceeds and dismissed Averette with prejudice. Also, the Pulaski Chancery Court found C&B acknowledged before the Ashley Circuit Court its knowledge that it could seek attorney’s fees not only from Courson but from Wilson as well. Again, while C&B was aware of its remedies against Wilson in the Ashley County action, it simply failed to pursue them. Instead, it opted to pursue them in Pulaski County.

C&B spends no time arguing the chancellor’s findings are in error. We conclude that those findings establish that C&B knew that the Ashley Circuit Court considered and ruled upon the same issues it asked the Pulaski Chancery Court to rule on in the second lawsuit, and C&B should have known that its fee claim had been decided and was barred by the Ashley Circuit Court decision. Cf. Marrero Rivera v. Dept. of Justice, 821 F.Supp. 65 (D. Puerto Rico 1993).

In his second point for reversal, C&B argues that the trial court somehow applied the wrong standard in ruling on its motions for directed verdicts. However, since this court reviews a trial court’s Rule 11 determination under an abuse of discretion standard, we conclude C&B’s second issue is meritless.

Thirdly, C&B suggests the Pulaski Chancery Court erred in denying its request for dismissal. C&B argued to the chancellor that because Wilson failed to raise the Rule 11 sanctions issue at trial and on cross-appeal in C&B II, Wilson and his assodates waived their rights to raise such sanctions in this proceeding following the C&B II decision. Alternatively, C&B argues Wilson is barred by res judicata. See Crockett & Brown, P.A. v. Wilson, 314 Ark. at 585, 864 S.W.2d at 247. We must disagree. In Spring Creek Living Ctr. v. Sarrett, 318 Ark. 173, 883 S.W.2d 820 (1994), this court expressly held that a Rule 11 motion raises a collateral and independent claim, not a matter integral to the merits of the action. Because of the collateral nature of the Rule 11 requests for sanctions, the Pulaski Chancery Court retained jurisdiction to rule on them even though a final judgment on the parties’ underlying action had been previously entered and appealed.

C&B’s final argument concerns its contention that the trial court erred in fixing the nature and amount of the sanctions. In imposing sanctions, the chancellor ordered C&B to pay Wilson the sum of $15,000.

Upon finding a violation of Rule 11, the trial court must impose an appropriate sanction, which may include an order for the violating party to pay the opposing party or parties the amount of the reasonable expenses they had incurred, including a reasonable attorney’s fee. While this court has not established a standard of review in deciding whether a trial court has imposed an appropriate sanction, the Supreme Court has settled the issue for federal courts, holding that district courts have broad discretion not only in determining whether sanctionable conduct has occurred, but also what an appropriate Rule 11 sanction should be. See Cooter & Gell v. Hart Marx Corp., 496 U.S. 384 (1990). We believe that standard should be applied here.

The federal courts have held that the primary purpose of Rule 11 sanctions is to deter future litigation abuse. See Id.; In Re Kunstler, 914 F.2d 505 (4th Cir. 1990). It has also been held that the least severe sanction adequate to serve the purposes of Rule 11 should be imposed, and the award of fees is but one of several methods of achieving the various goals of Rule 11. Id.; White v. General Motors Corp., Inc., 908 F.2d 675 (10th Cir. 1990). In addition, the court in In Re Kunstler further held that, when a monetary award is issued, the trial court should explain the basis of the sanction so a reviewing court may have a basis to determine whether the chosen sanction is appropriate. The trial court should consider (1) the reasonableness of the opposing party’s attorney’s fees, (2) the minimum to deter, (3) the ability to pay and (4) factors relating to the severity of the Rule 11 violation. The Kunstler court further related the following:

Because the sanction is generally to pay the opposing party’s “reasonable expenses . . . including a reasonable attorney’s fee,” Fed.R.Civ.P. 11, incurred because of the improper behavior, determination of this amount is the usual first step. The plain language of the rule requires that the court independently analyze the reasonableness of the requested fees and expenses. The injured party has a duty to mitigate costs by not overstaffing, overresearching or overdiscovering clearly meritless claims. In evaluating the reasonableness of the fee request, the district court should consider that the very frivolousness of the claim is what justifies the sanctions.

Here, the Pulaski Chancery Court failed to specify in its order how it determined why the $15,000 amount was appropriate in these circumstances. In their briefs, the parties refer only to the fact that the injured parties had incurred $13,068.70 in attorney’s fees. The chancery court, too, mentioned that Wilson and his associates had incurred expenses, including attorney’s fees, and that they had been subjected to “substantial burden and inconvenience.” But, again, the trial ocurt did not explain how it reached the monetary award ordered.

In sum, we recognize this court, until now, has not been confronted with this issue concerning the appropriateness of a sanction or its amount, and, as a consequence, the trial court and parties here had little guidance on how to proceed with dealing with these issues. We therefore reverse and remand this matter to permit the parties and the trial court to proceed solely on the issue of the appropriateness or amount of the sanctions to be imposed, by employing the standards adopted hereinabove.

For the foregoing reasons, we affirm in part and reverse and remand in part.

      C&B’s motions likely should have been filed as motions to dismiss. Regardless, our standard of review is still one of abuse of discretion, and we have concluded in this respect that the trial court’s factual findings and conclusions of law amply support the holding and imposition of sanctions rendered by the trial court.

       AIthough Wilson and his associates mentioned Rule 11 sanctions in their cross-appeal in C&B II, we made it clear that this court had no authority to impose such sanctions. Again, because such sanctions involve a collateral matter, the parties and the chancery court were left to consider those issues after C&B II was rendered.


text:
    William PHILLIPS v. STATE of Arkansas
    CR 95-96
    900 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered June 19, 1995

      McArthur & Finkelstein, by: William C. McArthur, for appellant.

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

Appellant William Phillips was convicted of one count of rape and one count of sexual abuse in the first degree of his two adopted daughters, age eleven and seven at the time. Phillips was sentenced to life for rape and ten years for sexual abuse to run consecutively. He was also fined $10,000. On appeal, Phillips argues the trial court erred by refusing to exclude an inculpatory statement he gave the state police while he was in custody, and by allowing a state witness to testify during the sentencing phase in violation of the discovery rules.

At the time of his arrest, Phillips was a forty-six year old diabetic weighing close to four hundred pounds. Phillips also suffered from gout, high blood pressure, and nerve damage due to a previous employment injury. Phillips was taking various medications including: (1) vaseretic tablets, a combination diuretic and blood pressure reducer; (2) allopurinol for gout to reduce uric acid; (3) ibuprofen, an anti-inflammatory and analgesic agent, comparable to aspirin; (4) isosorbide, a vasodilator; and (5) Lasix, a diuretic. Physician’s Desk Reference (49th ed., Medical Economics Data 1995). Within twenty-four hours after giving his inculpatory statement, Phillips was hospitalized with chest pains. Phillips claims to have suffered a stroke, but there is no medical evidence in the record to support his claim.

Approximately one hour after his incarceration in the Maumelle jail, Brenda Langrell, a sex-crime investigator with the Arkansas State Police, met with Phillips and read him his Miranda rights. Phillips indicated he understood, initialed the rights form after each right was read to him, and signed the form. Phillips did not request an attorney, and instead, gave an oral statement to Langrell in which he confessed to having fondled the girls’ privates by using his finger.

Both at the Denno hearing and on appeal, Phillips argues his custodial statement was rendered inadmissible because of his medical condition at the time, and the fact that he was on medications which he contended made him “drowsy and absentminded sometimes.” Phillips testified he remembered being in the Maumelle jail, meeting with Detective Langrell about a hour after being placed in the jail, and signing and initialing the Miranda form. However, Phillips claimed he did not recall reading the custodial statement even though the signature at the end looked like his. Further, Phillips stated he had “no specific recollection” of his interview with Langrell.

The state has the burden of proving by a preponderance of the evidence that a custodial confession or inculpatory statement was given voluntarily, and was knowingly and intelligently made. And while this court makes an independent determination based on the totality of the circumstances, a trial court will not be reversed unless its determination is clearly erroneous. McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994); Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). Whether an accused had sufficient mental capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver is a question of fact for the trial court to resolve. Id. The fact that the accused might have been intoxicated at the time of his statement, alone, will not invalidate that statement, but will only go to the weight accorded it. Id.

This court has held that when the defendant claims intoxication at the time he waives his rights by making a statement, the test for an intelligent waiver is whether the individual had sufficient mental capacity to know what he was saying under the totality of the circumstances. Midgett, 316 Ark. 553, 873 S.W.2d 165. See also U.S. v. Harden, 480 F.2d 649 (8th Cir. 1973) (a confession made by a person under the influence of drugs is not per se involuntary). In Midgett, this court found it significant that the defendant answered questions without indications of physical or mental disabilities, remembered details of the interrogation, and gave the statement within a short period of time after his rights had been read to him. Id.

In the present case, Detective Langrell testified Phillips told her he had graduated from high school and had attended four years of college. Further, Langrell stated as follows:

To the best of my ability, [Phillips] understood what we were talking about. He did not give any indication that he couldn’t understand what he was reading. I took a statement from him and I wrote the statement. He said he preferred that I write it. He signed it and dated it. . . .
I did not inquire of [Phillips] what his physical condition was. I was not aware that he was on a rather massive amounts (sic) of medication at the time I interviewed him. ... He appeared to know what he was saying and doing. ... He read the statement that I had prepared.

As already mentioned, Phillips remembered Langrell. recalled talking with her about an hour after he was placed in jail, and conceded having waived his Miranda rights. The only detail Phillips could not recall was having read the statement after Langrell recorded it. As previously mentioned, Phillips stated that the signature at the bottom of the statement looked like his.

While Phillips testified that his medication made him drowsy and absent-minded, there is no indication from the testimony by either Langrell or Phillips that he was not rational and able to exercise his free will at the time he gave the statement. Finally, no testimony was offered to support Phillips’ contention that his medication, coupled with his subsequent chest pains, rendered him incompetent to knowingly and intelligently waive his constitutional rights. Based on the totality of the circumstances, the trial court was correct in refusing to suppress Phillips’ statement.

Next, we consider Phillips’ argument that the trial court erred in admitting a state witness’s testimony. During an in camera hearing just prior to the sentencing phase at 4:30 p.m., Phillips’ counsel complained to the trial court that, during the noon break, he was informed for the first time that the state intended to call Phillips’ former stepdaughter, A.T., as a witness during the sentencing phase, even though the state had failed to give Phillips A.T.’s name in accordance with his continuing discovery request for such information. Phillips was A.T.’s stepfather from 1980 to 1983, when A.T. was ten years old. A.T. was allowed to testify that, during that three-year period, Phillips had fondled and raped her in a manner similar to that described by the prosecutor’s witnesses in this case.

The trial court held the state did make proper discovery to Phillips’ counsel by mailing a list which contained A.T.’s name. However, the trial court also stated it believed counsel’s statement that he did not recall having received the list. Further, the trial court found the “court file” or “official file” showed A.T. had been served with a subpoena thirty-eight days before trial, and held that “[e]veryone is charged with knowledge of the items in the court file[.]” Finally, the trial court added, we think in error, that the state was not obligated to provide Phillips with a list of witnesses it intended to call during the sentencing phase. The trial court stated also that it was admitting A.T.’s testimony as character evidence.

Phillips does not appeal from the trial court’s rulings that the state properly complied with discovery, that Phillips was charged with constructive knowledge of documents contained in the “court” or “official” file, or that A.T.’s similar-crime testimony was admissible. Instead, Phillips appeals only from the trial court’s holding that the state is not obligated to comply with the rules of discovery in the sentencing phase of a bifurcated trial.

In Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), this court held that while a defendant could not appeal from a plea of guilty, he was not precluded from appealing from the sentencing or penalty phase for review of nonjurisdictional issues. In so holding, this court opined:

More specifically, this departure from our previous holdings is premised in part on the fact that sentencing is now, in essence, a trial in and of itself, in which new evidence may be submitted.

Id. (emphasis added). The Hill court went on to hold that the rules of evidence applied to the sentencing phase, and that the evidence allowed under the bifurcated sentencing act did not conflict with the rules of evidence. See Ark. Code Ann. § 16-97-103 (Supp. 1993).

Ark. R. Crim. P. 17. l(a)(i) provides that the prosecutor shall disclose to the defense, upon timely request, the names and addresses of persons whom the prosecutor intends to call as witnesses “at any hearing or at trial.” (Emphasis added). While the bifurcated sentencing act provides procedures for the conduct of the sentencing phase whether before a jury or the court, §§16-97-101 and 16-97-102, there is nothing in the statutory language that prevents the rules of discovery from applying. Thus, we conclude the trial court erred in holding the rules of discovery are inapplicable to the sentencing phase of a bifurcated trial.

Even though that court may have erred in this respect, the fact remains the trial court found, and Phillips does not contest the finding, that the state complied with the rules of discovery by having mailed its list of witnesses to Phillips, albeit Phillips’ counsel failed to receive it. Nor does Phillips challenge on appeal the trial court’s ruling that A.T. had been served thirty-eight days prior to trial, that her subpoena was in the court file, and that Phillips was charged with such knowledge. While he also objected to the trial court’s admission of A.T.’s testimony based on its substance, Phillips does not pursue that argument in this appeal. In sum, while he has the burden on appeal to do so, Phillips simply fails to demonstrate or argue trial error as to these significant findings. This court will not presume reversible error. Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), cert. denied, 470 U.S. 1085 (1985). We affirm as modified.

Pursuant to Ark. Sup. Ct. R. 4-3(h), the state has reviewed the record, and found no other errors which would warrant reversal.

Holt, C.J., not participating.

      Charlene James testified on behalf of the state that she sent the list to Phillips’ counsel by regular mail without a cover letter, on or around the date the state’s subpoenas were taken to the sheriff’s office for service. The trial court found the court file indicated that the subpoena for A.T. was issued on August 9 and served on August 15, before the September 23 trial.