author: Richard B. Adkisson, Chief Justice. George Rose Smith, Justice,

text:
    SD LEASING, INC. v. AL SPAIN AND ASSOCIATES, INC., and Albert L. SPAIN
    82-214
    640 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      Rose Law Firm, P.A., by: James H. Penick, III, for appellant.
    No brief for appellees.
   Richard B. Adkisson, Chief Justice.

The sole issue presented in this appeal is whether the Pulaski County Circuit Court has personal jurisdiction over appellee, Al Spain and Associates, Inc. under the Arkansas long arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979), as limited by the due process clause of the 14th Amendment.

Appellee, a Florida corporation, defaulted on a noncancelable lease agreement between it and appellant, SD Leasing, Inc., an Arkansas corporation, and appellant filed suit in Arkansas to recover the balance due. The trial court granted appellee’s motion to dismiss for lack of personal jurisdiction. On appeal, we reverse.

The lease agreement between appellant and appellee concerned a Minolta copier machine which was originally owned by Copytronics, Inc., a corporation located in Florida. Appellant purchased the machine from Copytronics and then leased it to appellee. Negotiations for the lease of the machine took place in Florida where appellee signed an original lease form from SD Leasing and filled out a customer credit check sheet. Copytronics mailed these documents along with an invoice with the price of the machine to appellant. Upon receipt of these documents, appellant reviewed the lease and ran a credit check on appellee. Appellant then approved and accepted the lease and paid Copytronics for the machine. Copytronics delivered the machine to appellee and appellant called appellee to make certain the machine had been installed. Appellant also mailed appellee a copy of the executed lease, a coupon book for monthly payments, and an explanatory letter.

Appellee made several payments pursuant to the lease agreement, but then notified appellant by mail that the company was going out of business because of financial difficulties. No more payments were made and Copytronics subsequently picked up the copier for appellant.

Ark. Stat. Ann. § 27-2502 (Repl. 1979) provides that a court may exercise personal jurisdiction over a person as to a cause of action arising from that person’s “transacting any business in this State. ’’ We have held that the purpose of this statute is to expand our state’s personal jurisdiction over nonresidents, within the limits permitted by the due process clause of the United States Constitution. Nix v. Dunavant, 249 Ark. 641, 460 S.W.2d 762 (1970).

International Shoe Co. v. Washington, 326 U.S. 310 (1945) set out the due process requirements for personal jurisdiction: In order for a valid judgment to be rendered against a nonresident defendant not served within the forum state, due process requires that “certain minimum contacts” exist between the nonresident and the state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” A single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state. See McGee v. International Life Ins. Co., 355 U.S. 220 (1957).

Here, there were sufficient minimum contacts to meet the International Shoe and McGee standards. Although appellee executed the lease in Florida, it was then mailed to appellant in Arkansas where it was reviewed, approved, and finally accepted. Appellee mailed its monthly payments directly to appellant in Arkansas as well as two memos informing appellant it was going out of business. One of the memos stated that appellee had telephoned appellant to inform appellant of its financial difficulties but no one had returned its call.

Furthermore, we note that Ark. Stat. Ann. § 85-1-105 (Add. 1961) states that when a transaction bears a reasonable relation to this state and also to another state, “the parties may agree that the law either of this state or of such other state... shall govern their rights and duties.” Here, the lease agreement specifically provided that the lease “shall be governed by and construed under the laws of the State of Arkansas. ’ ’ While the fact that the parties so agreed does not give an Arkansas court personal jurisdiction in and of itself, it does provide another contact with this state which goes to satisfy the “minimum contacts” requirement of International Shoe, supra.

In addition to these substantial contacts with the State of Arkansas, appellee subjected himself to personal jurisdiction of the Arkansas courts by expressly agreeing in the lease that:

... in the event of default... he will consent to and be subject to the jurisdiction of the courts of the State of Arkansas to enforce the terms of this lease.

Such a clause is enforceable if it is determined to be fair and reasonable. See Leflar, American Conflicts Law, 115 (1968); Reeves v. Chem Industrial Co., 262 Or. 95, 495 P.2d 729 (1972); Central Contracting Co. v. C. E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965). Certainly this provision is fair and reasonable under the circumstances of this case.

Because there were sufficient “minimum contacts” between appellant and Arkansas and because of this express agreement, it was error for the trial court to dismiss appellant’s complaint for lack of personal jurisdiction over appellee.

Reversed.

George Rose Smith and Dudley, JJ., dissent.

George Rose Smith, Justice,

dissenting. Of the seven subsections of bur long-arm statute recognizing personal jurisdiction based on conduct, the only one applicable to this case relates to jurisdiction “arising from the person’s... transacting any business in this State.” Ark. Stat. Ann. § 27-2502 (C) (1) (a). Even construing that language to the extreme limit allowable under the due process clause, I cannot agree that the appellee transacted any business in Arkansas.

In a sale-and-financing transaction which took place in Florida, Copytronics and the appellee executed documents by which Copytronics ostensibly sold a machine to SD Leasing, an Arkansas company, and SD Leasing ostensibly leased the machine to the appellee. The machine and all the negotiations were in Florida. The documents were sent to Arkansas, where SD Leasing approved the transaction by signing the papers. Neither the machine nor the appellee was ever in Arkansas. The appellee made payments by mail to SD Leasing’s office in Arkansas. I do not see how it can fairly be said that the appellee transacted business in Arkansas.

The lease itself is a printed form, made especially for SD Leasing. It consists of 23 numbered paragraphs, all of which except three are in fine print. The three paragraphs in capital letters are: (1) a provision for a late charge of lVz% a month or the maximum allowed by law; (2) a disclaimer by SD Leasing of all express or implied warranties: and (3) a statement that the lease is non-cancellable and an acknowledgement that the lessee had read the agreement in its entirety. In every respect the lease is written for the benefit and advantage of the lessor (which appears actually to be a finance company). In the circumstances I do not see how the court can say that a fine-print clause attempting to subject the appellee to Arkansas jurisdiction is “certainly” fair and reasonable.

I would affirm the judgment.

Dudley, J., joins in this dissent.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Charles Rayford HUDSON, Sr. v. Charles Rayford HUDSON, Jr.
    82-223 and 82-86
    641 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982
    [Rehearing denied November 22, 1982.]

      Henry ¿r Duckett, by: David P. Henry, for appellant.

      Bob Dawson, for appellee.
   Richard B. Adkisson, Chief Justice.

Two separate appeals arising from the same trial court case are consolidated in this opinion. Both will be disposed of by a construction of Rule 3 (e), Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979), which provides:

(e) Content of Notice of Appeal or Cross-Appeal. A notice of appeal or cross-appeal shall specify the party or parties taking the appeal, shall designate the judgment, decree, order or part thereof appealed from and shall designate the contents of the record on appeal. The notice shall also contain a statement that the transcript or specific portions thereof, have been ordered by the appellant. (Emphasis supplied)

The record reflects that the final decree was entered in this case on September 16, 1981; that the “notice of appeal and designation of record” was filed on September 24:

Appellant (Appellee herein) hereby designates the entire record, and all proceedings, exhibits, evidence, and documents introduced in evidence to be contained in the record on appeal.

The notice did not contain a statement that the transcript had been ordered, and on November 13 appellee filed a motion to dismiss the appeal for failure to include such a statement. The transcript was finally ordered from the reporter on December 7, 1981.

The provision for ordering the transcript under Rule 3 (e) has been construed to be satisfied by substantial compliance, provided the appellee has not been prejudiced or misled by the failure to strictly comply with the rule. Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970). However, we stated in Brady, supra, that:

. . . Our view is that if for any reason counsel are not able to state in the notice of appeal that the transcript or portions of it have been ordered, the proper practice would be for an appropriate explanation to be included in the notice of appeal. . . .

Here, there was no compliance with the pertinent provision of Rule 3 (e), substantial or otherwise. The rule was totally ignored. The trial court erred in not dismissing the appeal for failure to file a proper notice of appeal; therefore, the appeal is dismissed and the trial court’s final decree of September 16 is affirmed.

Reversed in part; affirmed in part.

Purtle and Hays, JJ., not participating.


author: George Rose Smith, Justice.

text:
    ARKANSAS MOTOR VEHICLE COMMISSION et al v. CLIFF PECK CHEVROLET, INC.
    82-7
    640 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      Steve Clark, Atty. Gen., by: Jerry E. Rose, Asst. Atty. Gen., and Friday, Eldredge & Clark, by: Herschel FI. Friday, Michael G. Thompson and Walter A. Paulson, for appellants.

      House, Holmes & Jeiuell, P.A., by: Darrell D. Dover, for appellee.

      Barber, McCaskill, Amsler, Jones ir Hale, by: Guy Amsler, Jr., for amicus curiae, Arkansas Automobile Dealers Association.

      John C. Calhoun, Jr. of Owens, McHaney & Calhoun, for amicus curiae, National Association of Motor Vehicle Boards and Commissions.
   George Rose Smith, Justice.

We are called upon to consider the constitutional validity of the General Assembly’s fifth successive act creating a Motor Vehicle Commission. Act 388 of 1975; Ark. Stat. Ann., Title 75, Ch. 23 (Repl. 1979). The chancellor, relying upon our two previous decisions with respect to similar legislation, held this latest act invalid. We are convinced that in the two earlier cases the pertinent facts were not sufficiently developed to support our conclusion that the acts were unconstitutional. The present record is equally deficient in the presentation of facts affecting the validity of the 1975 act. We are therefore remanding the case for further development, not reaching the constitutional issue.

None of the legislature’s four earlier attempts to create a Motor Vehicle Commission survived for as long as two years. In the first statute, Act 182 of 1955, the legislature created a Motor Vehicle Commission with authority to license and regulate manufacturers and factory distributors of “new and unused” cars and franchised retail dealers in such cars. One franchised dealer promptly brought an action for a judgment declaring the act to be invalid because it did not also license and regulate used-car dealers, some of whom were shown to be obtaining and selling “bootleg” new cars. We held the act to be discriminatory in that it made an arbitrary classification between franchised dealers and used-car dealers. Rebsamen Motor Co. v. Phillips, 266 Ark. 146, 289 S.W.2d 170, 57 A.L.R. 2d 1256 (1956). The second statute, Act 530 of 1957, was so similar to the first act that it quickly met the same fate. Clinton v. General Motors Co., 229 Ark. 805, 318 S.W.2d 577 (1958).

The third regulatory measure, Act 199 of 1961, was referred to popular vote and was disapproved by a majority of almost six to one. See Compiler’s Notes, Ark. Stat. Ann. § 75-1501 (Repl. 1979). The fourth statute, Act 593 of 1973, was on its face a local act, because six sections were inserted to exempt various counties from its operation. Presumably it was for that reason that the General Assembly adopted the present superseding statute two years later.

The fifth statute, the 1975 act now before us, had been in force six years when its validity was challenged in this case by Cliff Peck Chevrolet, a franchised dealer having a contract with a General Motors subsidiary. The case arose from the Commission’s attempt to enforce its Regulation 1, a long directive which prohibits, among many other practices, advertising claims such as “Our prices are guaranteed lower than elsewhere” or “We guarantee to sell for less.” Cliff Peck asserted in its complaint that the Commission was threatening to revoke Cliff Peck’s license as a retail dealer because, as shown by a stipulated fact, Cliff Peck had advertised that the “best prices in Arkansas” were to be found at its dealership. The complaint, however, attacked not only Regulation 1 but also Act 388 in its entirety. The chancellor simply followed the Rebsamen and Clinton cases in holding the act invalid.

Act 388 is so nearly identical with the 1955 act held unconstitutional in Rebsamen that even the appellants make no effort to distinguish that case from this one, their position being that Rebsamen and Clinton should be overruled. We agree with that conclusion in the limited sense that the facts presented in those cases did not justify the court’s holding that there was an arbitrary classification as between franchised dealers and used-car dealers. There the scant testimony in the record merely showed that there were three used-car dealers in Pulaski county who were obtaining new cars from an undisclosed source and that only one of those dealers had a repair department for servicing the cars after their sale. We concluded on those facts alone that the act was discriminatory.

In Rebsamen we relied primarily upon our holding in Ex parte Deeds, 75 Ark. 542, 87 S.W. 1030 (1905), invalidating a statute which imposed a $200 license fee upon peddlers traveling over the county but exempted resident merchants from the fee. The Deeds opinion relied in turn upon the broad statement in Connolly v. Union Sewer Pipe Co., 184 U.S. 540 (1902), that the legislature “cannot divide those engaged in trade into classes and make criminals of one class if they do certain forbidden things, while allowing another and favored class engaged in the same domestic trade to do the same things with impunity.” In Connolly the court struck down an Illinois anti-trust statute because it exempted from its operation agricultural products or livestock while in the hands of the producer or raiser. The Connolly decision was expressly overruled in Tigner v. Texas, 310 U.S. 141 (1940), with the observation that its point of view had been worn away by the erosion of time. Certainly it would not be seriously argued today that a statute directed against monopolies would be invalid on its face if agricultural products were exempted from its prohibitions.

In each of the five Arkansas acts the General Assembly made findings that the proposed licensing and regulation of manufacturers and franchised dealers were necessary. None of the acts required used-car dealers to be licensed. In the act now under scrutiny the legislature declared its intention to prevent frauds, unfair practices, and discrimination, to avoid undue control of independent dealers by motor vehicle manufacturers, to prevent monopolies and preserve competition, to prevent the sale of unnecessary accessories not desired by the purchaser, to prevent false and misleading advertising, and to promote other purposes. Ark. Stat. Ann. § 75-2302 (Repl. 1979). In view of the familiar presumption in favor of constitutionality, such findings cannot be disregarded without proof that there is no factual basis for the classifications and prohibitions embodied in the act.

It may be inferred from the several statutes and from the arguments of counsel that there may be a need to curtail the power that motor vehicle manufacturers have over their dealers, that the new-car warranties given by franchised dealers may be a valid basis for classifying them differently from used-car dealers, that the consequences of misleading advertising are not the same with respect to new cars as with respect to used cars, and that there may be other factual grounds for the various regulatory powers that are vested in the Motor Vehicle Commission. Such matters have not even been touched upon in the present record, which consists only of the pleadings and a brief stipulation designed to bring the case within the holdings in Rebsamen and Clinton. We find it impossible to pass upon the constitutionality of the statute without these factual matters having been developed by proof. Because Cliff Peck was justified in relying upon our earlier cases as decisive of the constitutional issues, it is entitled to offer proof now that those decisions are no longer considered to be controlling. Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). The cause is therefore remanded to the trial court for further proceedings, where Cliff Peck will have the burden of proving that all or part of the statute is unconstitutional and where other parties, such as a representative manufacturer, may be brought into the suit if appropriate.

Reversed and remanded.


author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Clyde MARTIN et al v. Kenneth BLACKMON et al
    82-72
    640 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      Wright, Lindsey & Jennings, for appellants.

      Wright & Chaney, P.A., for appellees.
   Frank Holt, Justice.

The principal issue in this case is whether the trial court erred in setting aside its declaration of a mistrial and reinstating the jury verdicts.

On November 24, 1981, a jury rendered verdicts of $222,698.81 in favor of appellee Delma Gold and $18,755.76 in favor of appellees Kenneth and David Blackmon against the appellants Clyde Martin and Arkansas Power and Light Company. The appellants’ attorney requested that the trial court poll the jury. The court then asked each of the eleven jurors, who had signed the verdicts, whether they were his or her own verdicts and “not the result of compromise.” Ten jurors spontaneously affirmed the verdicts as their own. One juror stated, “That was compromise.” Upon further questioning, another juror stated that the verdicts were a “compromise.” Thereupon, one juror asked the court to explain what he meant by “compromise,” and the court gave the following explanation:

Well, what I’m saying is that after you all have had every opportunity to discuss it that you are not to of course give up your own individual ideas after you have had an opportunity to discuss it between yourselves and to debate it then if this is a pure compromise such as if you all wrote down a figure and divided it by eleven it’s compromise.

After this explanation another juror stated that the verdicts were a compromise. The trial court declared a mistrial and excused the jury. As the jury dispersed, appellants’ counsel also left while counsel for the appellees were attempting to object and explain that the verdict, although a compromise, was valid or permissible inasmuch as there was no showing that the jury agreed to be bound in advance.

Within the next week, without notice to appellants’ counsel and without approval of the court, the attorneys for the appellees obtained affidavits, transcribed by the official court reporter, from each of the eleven jurors stating that the jury had, without previous agreement to be bound by the results, taken the average of the percentage of liability each would assign to the appellants and used that as a basis for discussion. The average was 76% fault attributable to the appellants. The jury then concluded that this average was too high and reduced the amount of fault attributed to the appellants to 60%. The verdicts represent 60% of the amount requested by the appellees.

After obtaining the affidavits, the appellees moved the trial court to set aside the mistrial order and reinstate the jury verdicts. At a hearing on the motion, over the objection of appellants’ counsel, the affidavits were read to the court and entered into evidence. The trial court candidly acknowledged that he had erred in declaring the mistrial since the verdict was not “a lot verdict” and reinstated the verdicts. A few days later the appellants moved to have the mistrial order reinstated. The court’s written order denying appellants’ motion to reinstate the mistrial states, in pertinent part:

. . . [A]fter considering a transcript of the proceedings conducted by this Court of November 24,1981 at the conclusion of the trial of the cause herein, the responses of the Jurors to the Court’s questioning, and arguments of counsel, . . .
The court specifically finds that the polling of the jury tended to confuse the jury, and that the Court while attempting to identify if a verdict had been reached by lot, inquired if the jurors had ‘compromised’ in reaching their verdict....
After considering the Arkansas cases on the subject, and reviewing the transcription of the jurors’ statements taken by the official court reporter at the time the verdict was rendered to the Court, the Court is of the opinion that there is no evidence that the verdict was reached by lot or in such a manner as would render the verdict impermissible. (Italics supplied.)

The court further found:

. .. [T]his court need not rely upon those affidavits or statements in reaching its decision herein. The record according to the statements of the jurors before being dismissed is clear of any evidence of misconduct or of the jury having reached its verdict by lot. (Italics supplied.)

Appeal is taken from that order denying the motion to reinstate the mistrial.

The appellants argue that the appellees should have been required to clear up any confusion at the verdict proceedings by requesting that the jury be polled further. Ark. Stat. Ann. § 27-1737 (Repl. 1979); Smith v. Perkins, 246 Ark. 427, 439 S.W.2d 275 (1969). Unlike Smith, appellees here objected and did all they could reasonably be expected to have done under the circumstances, as indicated previously, to correct the trial court’s mistake and clear the confusion at the time of the verdict proceedings.

The appellants also argue that the trial court erred in accepting into the record the eleven juror affidavits, and, therefore, it erred by granting the motion to reinstate the jury verdict and by denying the motion to reinstate the mistrial. Appellees respond that although an affidavit may not be received to impeach a verdict, it may be received into evidence to support a verdict. Pleasants v. Heard, 15 Ark. 403 (1854); and Stanton v. State, 13 Ark. 317 (1853). Here, however, we must agree that this evidence is inadmissible pursuant to Ark. Stat. Ann. § 28-1001 (Repl. 1979), Rule 606 (b), Uniform Rules of Evidence. That rule clearly states that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations” but “may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any jurors.” Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980); Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982). This is in contrast to the previous Arkansas statute, which allowed questioning of jurors to ascertain whether the verdict was by lot. Ark. Stat. Ann. § 43-2204 (Repl. 1964). This statute was specifically repealed when the Uniform Rules of Evidence were adopted. Acts 1975 (Extended Sess. 1976), No. 1143 § 2. Presently, it appears the law in Arkansas governing the admissibility of jurors’ testimony with respect to their deliberatons is Rule 606 (b), which does not permit questioning jurors to ascertain whether they reached their verdict by lot. Further, Rule 606 (b) makes no distinción between questioning jurors to impeach a verdict and questioning them to support a verdict. Therefore, we think our caveat in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), is applicable here. There we said:

... [I]t is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.

Likewise, here it is impermissible to question jurors in support of a verdict.

Nevertheless, we cannot reverse unless the error was prejudicial. Brown v. State, 262 Ark. 298, 556 S.W.2d 418 (1977); Rule 103 (a), Uniform Rules of Evidence; A.R.Civ.P. Rule 61. Here the trial court would have been obligated to set aside the mistrial and reinstate the verdicts even in the absence of the affidavits, because there was no ground upon which a mistrial could be declared, without an abuse of discretion, at the verdict proceedings. A verdict may not be set aside arbitrarily and without reasonable cause. Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S.W.2d 585 (1961). See also Bridges v. Hemmer, 256 Ark. 312, 506 S.W.2d 835 (1974); and Crowder v. Flippo, 263 Ark. 433, 565 S.W.2d 138 (1978). It is apparent that the trial court, at the time of the verdict proceedings, was confused as to the distinction between a verdict by lot and a quotient verdict, which we recently explained in Scheptmann v. Thorn, 272 Ark. 70, 612 S.W.2d 291 (1981):

Where the j urors each submit a figure and agree in advance that the verdict will be one twelfth of the total, the verdict is by lot and cannot be upheld. If, however, there is no agreement in advance to be bound by the procedure, but the jurors do adopt the result, it is a quotient verdict and is valid. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W.2d 488 (1982).

The party challenging a jury verdict as a verdict by lot has the burden of proving to the trial court that it was a verdict by lot and not a quotient verdict. National Credit Corp. v. Ritchey, 254 Ark. 139, 491 S.W.2d 811 (1973). Here, nothing that any juror said when polled by the trial court on the day of the trial indicated that the jury had rendered a verdict by lot. Nothing any juror said indicated misconduct of any kind. Based solely on the statements of the jurors when polled at trial, we have no hesitation in saying that the evidence to support the order of mistrial was insufficient. Since the trial court erred in ordering a mistrial, it follows that the court necessarily was correct in setting aside the mistrial.

The appellants point out that the trial court heard the affidavits from the jurors and may have been influenced by them. Proper respect for the trial court requires that we give due credence to his finding that his decision to not reinstate the mistrial order was based upon the transcription of the statements of the jurors at the time the verdict was rendered. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304 (1981). Even so, it is ultimately irrelevant whether the trial court considered or was influenced by the jurors’ affidavits. The issue is whether the trial court acted properly by reinstating the jury verdict. If reinstating the verdict was the proper action to take, that action does not become error simply because the trial court gave the wrong reason for taking it. Dale, Co-Administrators v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981); Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W.2d 13 (1965). Therefore, even if the trial court erroneously considered the inadmissible affidavits, we cannot reverse, because reinstating the verdicts was proper for the previously stated reasons.

The appellants’ final argument is that the trial court erred in not granting a new trial, because the jury was not required to deliberate further. §§ 27-1737 and 27-1738. However, the jury was excused by the bailiff and the appellants’ counsel left the courtroom while the appellees’ counsel were attempting to object and explain the basis of their objection to the court’s ruling a mistrial. Furthermore, nothing said at the verdict proceedings indicated that any j uror answered in the negative when asked if it was his or her verdict, nor did any juror disagree with the verdict. Cf. Williams v. Williams, 112 Ark. 507, 166 S.W. 552 (1914).

Affirmed.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. In Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1980), we said:

We take this opportunity to state unequivocally, for the guidance of the Bar, that in our opinion it is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.

We should delete the word “unequivocally” because the majority is not enforcing our policy and rule. A rule not enforced is no rule at all. The trial court admitted over the objections of appellant the statements of the jurors taken contrary to the Sanson decision. They were improperly taken and improperly admitted as evidence. We will never know whether they influenced the judge in his decision.

The only party innocent of a mistake is the appellant. The trial court’s error can only be corrected by a new trial.

Hays, J., joins in this dissent.


author: Darrell Hickman, Justice. Richard B. Adkisson, Chief Justice, John I. Turtle, Justice,

text:
    Odell WATSON v. STATE of Arkansas
    CR 82-39
    640 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

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

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Odell Watson was convicted of rape in the Pulaski County Circuit Court and sentenced to forty years in prison. He argues three reasons for reversal: First, that his confession was not admissible; second, that a mistrial should have been granted when a prosecuting witness volunteered prejudicial testimony; and, finally, that the court refused to permit evidence of prior sexual conduct of the victim. We find no prejudicial errors and affirm the conviction.

When Watson was first questioned he denied the rape. Then within three hours he confessed that he forced the victim to have sexual intercourse with him. Watson argues that since he denied any wrongdoing before he signed a confession, we should interpret the law to be that once a person makes such an exculpatory statement, he cannot be requestioned. While no authority is cited for that proposition, it is argued that the case of Miranda v. Arizona, 384 U.S. 436 (1966), in spirit, holds this. Watson also argues, without citing any authority, that the form he signed acknowledging and waiving his rights violated his rights because it did not make clear that an accused can waive one or more of his rights without making a total waiver. We find no merit to either argument. Watson made no attempt to assert any of his rights. He never asked for a lawyer and never indicated his desire to remain silent. Watson was read his rights as well as being allowed to read the form before being questioned. We consider the totality of the circumstances to determine whether a statement is voluntary and, in this case, we find no basis, factual or legal, to hold his statement involuntary. Branam v. State, 275 Ark. 16, 627 S.W.2d 8 (1982); Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982).

Watson’s second argument is that a deputy sheriff volunteered a highly prejudicial statement during cross-examination. He said that the doctor who examined the victim told him that the victim had been choked. We quote verbatim from the transcript the relevant testimony and statements by counsel and the court:

Q Detective Means, how long have you been a detective with the Sheriff’s Office?
A Since the first of this year.
Q And is this your first case in Circuit Court?
A Yes, ma’am.
Q Okay. And did you have occasion to talk with Odell in your office. That was on May the 11th, 1981, wasn’t it?
A Yes, ma’am.
Q And on May the 9th, two days before, you had talked to [the victim] and took a statement from her?
A Yes, ma’am.
Q And you knew that she was saying something about being choked, didn’t you? [Emphasis added.]
A Yes, ma’am.
Q So, to you it was important to know about whether she was choked or was not choked. Isn’t that correct? [Emphasis added.]
A Yes, ma’am.
Q So, when you talked to Odell, you really wanted to know about that because it was important to you, wasn’t it?
A I wanted Odell to tell me about it. The doctor had already told me that he felt she was choked because of bruises on her neck or soreness on her neck. [Emphasis added.]
DEFENSE COUNSEL:
I would like to ask for a mistrial at this time. I think it’s prejudicial for him to say what the doctor said.
THE COURT:
You can argue it to the jury. It was in response to your question. And you’ve got a stipulation in the record that the doctor said he didn’t find anything. You can argue this to the witness, if you want to.
DEFENSE COUNSEL:
I think it’s prejudicial. Would you instruct the jury that the doctor did not say that.
THÉ COURT:
It would be a comment on the evidence.
DEFENSE COUNSEL:
It’s not in evidence. That is not the evidence.
THE COURT:
You may take this witness and say, ‘It’s funny that the doctor would say that to you because he didn’t say that in his testimony. We’ve got a stipulation to that effect.’ And read the stipulation.
It’s a question of fact now. It’s a matter of credibility of whether he really did or did not but his testimony is he didn’t find any evidence of bruises to the throat.
To instruct would be comment, I think. To admonish would be comment and I think it would bring more attention to it that it deserves. So, I think you better just go ahead.

The victim had testified that Watson had choked her and in his statement Watson admitted that he had choked her. The doctor who examined the victim did not testify but instead by stipulation the doctor’s statement was read to the jury. In it the doctor stated he had checked the victim’s neck region and although she had complained of pain and tenderness, he found no “visible abnormalities.” But he qualified that by saying bruises would not always become apparent within several hours and that bruising to black people is less pronounced and less visible than in white people. The victim was a black woman.

Three times in questions, counsel mentioned the word “choked” to the officer. This was during cross-examination. We cannot say the court was clearly wrong in making its decision that the defense counsel invited the answer. In the case of Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982), we upheld the court in denying a mistrial for a very similar reason:

When the appellant injects the matter into the case by questions on cross-examination, he cannot complain of what develops. Since appellant asked the specific question, the officer could truthfully answer it. The granting of a threshold motion to prevent certain testimony does not require a witness to conceal the truth in order to respond to a question by the moving party.

We recently affirmed this principle. Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982). Even if it was error it was certainly not of the magnitude to require a mistrial. It may well have required an admonition but no admonition was requested. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981).

The other alleged error is that the trial court refused to allow Watson to testify that he was told by his co-defendant, Cedric Garner, that Garner had had sexual relations with the victim. The defense argues that the question was relevant to Watson’s “state of mind” and, so, relevant to his defense of consent. The court ruled at a pretrial hearing that it would admit evidence pertaining to prior sexual relations the victim had with either Watson or co-defendant Garner. But that did not mean inadmissible evidence would be received. The question was not asked.of Garner. It was a question asking Watson for a pure hearsay answer and, therefore, violated the rules of evidence. Ark. Stat. Ann. § 41-1810.1 (Repl. 1977); see Bobo v. State, 267 Ark. 1, 289 S.W.2d 5 (1970).

Affirmed.

Adkisson, C.J., and Turtle and Hays, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. I dissent from the majority opinion because the deputy sheriff gave a highly prejudicial unresponsive answer to a question asked by the defense.

The parties stipulated what the doctor’s testimony would be at trial. He was excused from appearing on that basis.

To have the deputy sheriff volunteer that the doctor had expressed an opinion contrary to his stipulated statement was highly prejudicial under the facts of this case.

John I. Turtle, Justice,

dissenting. I dissent from the majority opinion because I believe a mistrial should have been granted. I have no problem with the majority’s holding regarding the rights waiver form. I would like to say that the rights form used by the Pulaski County Sheriff’s Department in this case is the best form which I have observed during my tenure on this court. However, in my opinion, the incident involving the officer’s testimony is so clearly manipulative on the part of the officer that I think the misconduct requires the case to be tried again. In order to focus on the problem in this case I will set forth the pertinent question and answer as reported from the trial:

Q. So, when you talked to Odell, you really wanted to know about that because it was important to you, wasn’t it?
A. I wanted Odell to tell me about it. The doctor had already told me that he felt that she was choked because of the bruises on her neck or soreness on her neck.

This answer is completely unresponsive to the question and, in my opinion, was the result of deliberation on the part of the officer making the uninvited and unresponsive statement. The doctor’s statement had already been entered into the record through stipulation between the parties. At no point in the stipulation did the doctor state that he found bruises on her neck or that he felt she had been choked. Not only was the officer’s answer not responsive but it was an apparent attempt to impeach the stipulation which had settled the matter so far as the doctor’s testimony was concerned. To allow such questionable and prejudicial information to come before the jury is to deny the appellant his rights to a fair trial. It also does a disservice to the law enforcement profession to think that one of their members is not bound by the rules which govern the rest of us. The only remedy, upon proper motion, is to retry the case. Haight v. State, 259 Ark. 478, 533 S.W.2d 510 (1976).

Hays, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    James Thomas BRANAM v. STATE of Arkansas
    CR 82-111
    640 S.W.2d 445
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      William R. Simpson, Jr., Public Defender, and Jeff Rosenzweig, Deputy Public Defender, by: Deborah R. Sailings and Carolyn P. Baker, Deputy Public Defenders, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, James Branam, was convicted of murder and sentenced to 30 years in prison. On appeal, he contends that he was arrested and detained without probable cause and that the inculpatory statement taken after his arrest was the result of the exploitation of the illegal arrest and detention. We agree. The Court of Appeals has certified this case to us pursuant to Rule 29 (1) (b).

At the time of the arrest the police had the following information: After midnight on December 20, 1981, Phillip Hammett and John Widener, both white, went to the Regal Executive Lounge, a predominantly black nightclub, at the corner of Main and Roosevelt in Little Rock. Hammett and Widener had drinks with some unidentified black men. Around 2:00 a.m. Hammett, Widener, and three black men left the club in Hammett’s car. They drove to a house near the 700 block of Twenty-seventh Street and all five got out of the car. Two of the black men drew guns and demanded money from Hammett and Widener. A struggle followed, Widener escaped, but Hammett was killed.

In addition, the police had arrested two men, Willie Johnson and Murphy Carroll, after connecting them to the murder by comparing the bullets used to shoot Hammett with those used in a prior shooting. The police then began searching for the third black man. Interviews were conducted with John Widener and with six persons who had been in the Regal Executive Lounge on December 20. From those interviews the police obtained the following information: John Widener told the police that the man he talked to in the bar was five feet six inches tall, wore a cheap brown suit and sunglasses and was relatively dark skinned. He described the other two men as being “rather small.” One witness, Mr. Rafter, said the man he saw was twenty-three, dark skinned, had a large curly Afro hair style, a goatee and was wearing a gray and black pin-stripe suit. Witness Clyde Gilmore described him as five feet six inches to five feet seven inches tall, 150 pounds, dark skinned and wearing a brown or beige suit. Witness Dorothy Jackson said the third man was “five feet five inches and a loud mouth.” Pamela Holloway, another witness, said the man was five feet five inches tall, thin and had medium curly hair. Carolyn Eddleton and Wanda Robinson could not give a physical description of the third black man. Leon Pigee told the police that “the little black male has a brother who has curly hair and is short, about five feet three inches.” He also said that he thought the bigger black male’s name was Murphy.

The police began their search for a thin, dark-skinned black male, five feet five inches to five feet seven inches tall, with curly hair anda “loudmouth.” On December 30,1980, ten days later, they talked with Ernest Dodson, who was a former roommate of Murphy Carroll’s. During that interview, Dodson, who had not been at the Regal Lounge on December 20th and had no knowledge of the incident, mentioned a man he knew only as “James” but who he knew to have been shot at the Chestnut Bar and Grill who might fit that description. This person, according to Dodson, had visited Carroll’s and Dodson’s apartment in the past. A detective knew that some months before James Branam had been shot at the Chestnut Bar and Grill. James Branam, the appellant, was then arrested and subsequently gave a confession.

The appellant filed a motion to suppress the confession because it was a result of the exploitation of the illegal arrest. After hearing the evidence outlined above, the trial court denied the motion, ruling that there was probable cause to arrest the appellant. We reverse.

The United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 479 (1963) stated:

It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, [citation omitted] though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would “warrant a man of reasonable caution in the belief” that a felony has been committed, [citation omitted] must be measured by the facts of the particular case.

In Coble v. State, 274 Ark. 134, 138, 624 S.W.2d 421, 423 (1981), we stated:

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. Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 (1925); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979).

In the case now before us the police had no evidence to connect the appellant with the murder. The physical descriptions could have fit any number of black males in the area. The height and skin color descrition was vague and even then appellant only generally matches the description of the third man. Appellant is five feet three and one-half inches tall, rather than the five feet five inches to five feet six inches as described by the witnesses. Appellant is a light colored black man rather than a dark skinned one. There was no information that appellant had been in the bar on the night in question or that he was ever identified by anyone as being the third black man who was with Hammett or Widener. The fact that appellant was seen visiting the apartment of Murphy Carroll, a co-defendant, at some time prior to the crime, does not give rise to probable cause.

Because there was no probable cause, the arrest was illegal. Beck v. Ohio, 379 U.S. 89 (1964). The illegal arrest was at 1:00 p.m. on December 30,1981. From that time, until 4:40 p.m. when appellant gave an incriminating statement, appellant was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), interrogated, fingerprinted, photographed, left alone in the interrogation room for about two hours and again given the Miranda warnings.

In Brown v. Illinois, 422 U.S. 590 (1975). the Supreme Court of the United States held that, where there has been an illegal arrest, statements made following that arrest are inadmissible at trial unless it is shown that the statement is so much an act of free will that it is unaffected by the taint of the illegal arrest. Where, as here, there has been a showing that an arrest is illegal, the state must show that the statement was not obtained by exploitation of an illegal arrest. The United States Supreme Court has identified factors to be considered in this determination including the temporal proximity of the arrest and confession, whether there were any intervening circumstances, and, importantly, whether the illegal arrest was purposeful. See Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, supra. If such a showing is not made, the confession cannot be admitted into evidence. This holding was recently affirmed in Taylor v. Alabama,_U.S._, 73 L.Ed.2d 314 (1982).

Since the State did not offer evidence to prove that the statement was unaffected by the taint of the illegal arrest, the statement was inadmissible.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    OZARKS ELECTRIC COOPERATIVE CORPORATION v. Lawrence TURNER
    82-94
    640 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      Burke ir Eldridge, by: John R. Eldridge, III, for appellant.

      Davis ¿rBracey, P.A., by: Charles E. Davis, for appellee.
   Steele Hays, Justice.

In April, 1979, appellant, Ozarks Electric, discovered that the meter seal and glass were broken on the appellee’s electric meter and evidence that the meter was not recording all appellee’s electrical usage. Appellant threatened discontinuance of electric service unless appellee paid $1,500.00 for what it calculated to be due. Appellee denied he had tampered with the meter, but paid the amount demanded. Appellant also gave information to the prosecuting attorney and charges were brought against the appellee for theft of electrical services, but he was acquitted of the charge.

Appellee then filed charges against Ozarks for malicious prosecution and for the return of his $1,500.00. The trial judge directed a verdict for appellant on the malicious prosecution charge, but submitted the claim of $1,500.00 to the jury, which awarded $1,250.00.

Appellant brings this appeal for an interpretation of statutes granting jurisdiction of certain matters to the Arkansas Public Service Commission, Ark. Stat. Ann. §§ 73-101 et seq. (Repl. 1977), arguing that the dispute over the $1,500.00 was within the jurisdiction of the APSC and prior resort should have been made to that body. We disagree with the appellant’s contentions.

Although the APSC is vested With broad authority, it does not have the power to deal exclusively with all matters involving utilities. We discussed this problem in Southwestern Electric Power Company v. Coxsey, 257 Ark. 534, 518 S.W.2d 485 (1975) where we distinguished between legislative functions, which could properly be carried out by an administrative body, and judicial functions, which could not. See also, Southwestern Gas & Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S.W.2d 378 (1951). This does not mean that quasi-judicial functions cannot be performed in the exercise of the powers conferred for the general purposes of regulating and controlling public utilities. “But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act to which the inquiry and decision lead up.” Hatfield, supra, at 521.

In Coxsey, supra, two electric companies, SWEPCO and Carroll, had certificates of convenience from APSC. SWEPCO had contracted with Beaver Water District to supply service, and Carroll filed a petition for declaratory judgment that Beaver was in territory belonging to Carroll. SWEPCO sought a writ of prohibition, contending the APSC had exclusive jurisdiction. We held that this was a judicial decision and not a legislative one:

The primary question — in fact the only question — raised by Carroll in the instant suit is whether, under existing certificates from the APSC, it has the exclusive legal right to service Beaver. The legislative and administrative duties of APSC were exercised when the certificates were awarded. Carroll is saying: “We hold an exclusive franchise from the APSC to service the area upon which SWEPCO has encroached. We want SWEPCO ejected.”

We concluded by quoting Justice Holmes from Prentis v. Atlantic Coastline, 211 U.S. 210 (1908):

A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.

There is an analogy to the present case. Here, the appellee is not questioning the rate that appellant charged — an issue that would be properly before the APSC. Nor does he challenge the power of the APSC to set the rate charged by Ozarks and to determine whether that amount is a reasonable rate. What appellee does contend is that the total amount Ozarks charged.him is excessive in light of all the circumstances and that the money is being wrongfully kept by Ozarks. Appellee disputed the charge that he had tampered with the meter and he was free to show what other factors might have contributed to a lower meter reading and for what length of time the meter was recording a lower than average reading. The issue was judicial in nature and appellee was entitled to have it resolved in a court of law.

Were the APSC to hear this case, it would not be acting in a legislative capacity. It would not be looking to the future and making a new rule or standard affecting the public or a group generally. Rather, it would be determining issues of fact from past actions involving a particular individual within existing laws and deciding the liabilities involved.

Legislative and judicial functions are distinguished by elements of futurity and retrospection, generality and particularity, and discretion and initiation. Action of an administrative tribunal is adjudicatory in character if it is particular and immediate rather than, as in the case of legislative rulemaking action, general and future in effect. Another test for determining whether action by a commission is legislative is whether there is laid down a rule of future action which affects a group, and not the direct application of policy or discretion to a specific individual. 2 Am.Jur.2d Adm. Law § 162 at 966.

We find that the nature of the final act in this case was a judicial one, and was properly heard in the circuit court. Because we conclude the APSC did not have jurisdiction in this matter, we do not reach appellant’s argument that the appellee was to make prior resort to the APSC.

Affirmed.


text:
    Farrell Gene KNIGHT v. STATE of Arkansas
    CR 82-85
    640 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982

      William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of aggravated robbery in a jury trial on February 17, 1982, and received an extended term of imprisonment from a finding that he had been convicted of four previous felonies. On appeal, he raises three points in arguing that the trial court erred in its application of the habitual offender statute, Ark. Stat. Ann. § 41-1001 (Repl. 1977). We find no merit in the arguments.

Appellant first insists that it was unclear from the state’s evidence whether an attorney was present for the past convictions used in the sentencing. The state presented evidence of six convictions, one from Arkansas, and five from Oklahoma. The appellant objects to the five convictions from Oklahoma, where each judgmentand sentence of conviction was in printed form stating the appellant was “. . . duly represented at all appearances by his attorney of record.” He argues that Reeves v. Mabry, 480 F. Supp. 529 (1979) holds that unless the evidence of prior convictions shows the defendant had been represented by counsel there is a presumption that he was denied effective assistance of counsel and no convictions can be used for enhancement purposes. We agree with appellant’s statement of Reeves, however, here the record is not silent or ambiguous as to the defendant’s representation. The record clearly states on all of the appellant’s judgment and sentence forms that he was represented by counsel.

As to the printed nature of the judgment and sentence forms, we stated in Clem & Gilbert v. State, 254 Ark. 581, 495 S.W.2d 517 (1973):

The appellants argue that the reference made to the presence of counsel in the certified copies of prior convictions was in printed form. Even so, we cannot assume that the Texas courts would use printed forms stating that counsel was present when in fact none was present.

We dispensed with the same argument recently in Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982).

Appellant next submits that four of the previous offenses could have arisen out of the same set of circumstances and should be treated as one conviction rather than four. The appellant cites no authority or rationale for this argument, other than “the sentences all run concurrently and probably should be considered as one rather than four.” We stated in Blackmon v. State, 272 Ark. 157, 612 S.W.2d 319 (1981), “Each plea of guilty to separate offenses, though the pleas may be entered simultaneously and though concurrent sentences are imposed, constitutes a separate prior conviction for purposes of Ark. Stat. Ann. § 41-1001 (2)”.

Nor does appellant’s suggestion that the crimes appear to have arisen out of the same set of circumstances have any merit. Ark. Stat. Ann. § 41-1001 (3) provides only one situation for consolidation of offenses:

For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.

Also, the purpose of that provision, as outlined in the Commentary to § 41-1001, indicates the legislative intent could not be expanded for the reason the appellant suggests.

Although prior to the Code’s enactment most circuit judges treated convictions for burglary and grand larceny as a single prior conviction for purposes of habitual offender sentencing, a few apparently considered such a disposition to constitute two convictions. To achieve some parity of treatment in calculating the number of prior convictions, subsection (3) consolidates a burglary and the offense that was its object into a single felony conviction for habitual offender purposes.

Appellant argues that it was unclear from the state’s evidence whether the convictions were misdemeanors or felonies. The Arkansas conviction was for burglary, and carried a sentence of 25 years and is undisputedly a felony. The other 5 convictions from Oklahoma carried sentences ranging from 3 to 10 years. Ark. Stat. Ann. § 41-1002 (Repl. 1977) responds directly to this point:

Previous conviction in another jurisdiction. For purposes of Section 1001, a conviction or finding of guilt of an offense in another jurisdiction shall constitute a previous conviction or finding of guilt of a felony if a sentence of death or of imprisonment for a term in excess of one [1] year was authorized under the laws of the other jurisdiction.

The appellant finally argues that the evidence is insufficient to support the guilty verdict for the charge of aggravated robbery. He claims there was conflicting testimony from the witnesses and insufficient evidence to prove he employed or threatened to immediately employ physical force on another, as robbery is defined in Ark. Stat. Ann. § 41-2103 (Repl. 1977). The record shows that the contradictions were minor and the testimony generally consistent. Resolution of the conflicts and the question of credibility are for the jury. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). As to the threat of physical force, both witnesses, employees in the drug store that was robbed, testified that guns were pointed at them or held on them during the course of the robbery. Despite the absence of a specific threat to shoot, such behavior creates an implied threat of physical force. In determining the sufficiency of the evidence to show aggravated robbery, we look only to see if, viewed in the light most favorable to the state, there was substantial evidence to support the charge. Beed, supra.

Finding no error in the proceedings below, we affirm.


author: Per Curiam.

text:
    Timothy Ellis McDANIEL and Jaran GOOKIN v. STATE of Arkansas
    CR 82-60
    640 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982
    /. Sky Tapp and Sam Anderson, Jr., for appellants.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

J. Sky Tapp, attorney for appellant McDaniel, and Sam L. Anderson, Jr., attorney for appellant Gookin, appeared before this court on October 11, 1982, as directed by our per curiam of September 13, 1982, to show cause, if any, why they should not be held in contempt of court for failure to timely file their respective briefs as directed by the rules of this court and the orders pursuant thereto.

The court finds that the original briefs were due to be filed in this court on June 7, 1982; that on June 7, 1982, the time was extended to July 7, 1982; that on July 12, 1982, the time was extended to September 5, 1982; and on September 13, 1982, the time was extended to October 4, 1982. That notwithstanding the original 40 days and the additional 120 days the appellants did not file their briefs as directed by this court. That J. Sky Tapp filed the brief for appellant McDaniel on October 6, 1982, but the brief for appellant Gookin has not been filed by attorney Sam L. Anderson, Jr. at this date. That a two weeks’ extension was requested by attorney Apderson when he appeared before the court on October 11, 1982.

This court finds that J. Sky Tapp and Sam L. Anderson, Jr. are in contempt of court for failure to file briefs in a timely manner. A letter of reprimand from this court will be issued to J. Sky Tapp. Punishment as to Sam L. Anderson, Jr. is withheld at this time. The brief on behalf of appellant McDaniel is accepted, and the attorney for appellant Gookin is granted until October 25, 1982, to file his brief.


text:
    George Austin WILSON v. STATE of Arkansas
    CR 80-253
    640 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered October 18, 1982
    Petitioner, pro se.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner George Austin Wilson was convicted by a jury of aggravated robbery, Ark. Stat. Ann. § 41 -2102 (1) (Repl.1977) and criminal attempt to commit first degree murder, Ark. Stat. Ann. § 41-701, 1502 (Repl. 1977). He was sentenced as a habitual offender with four or more prior felony convictions to fifty years imprisonment on the aggravated robbery charge and thirty-four years on the attempted murder charge. The sentences were ordered served consecutively.

Petitioner alleges that the trial court did not have the authority under Rule 37.1 (b) to impose the sentences for both aggravated robbery and attempted first degree murder. He bases his argument on the contention that aggravated robbery was the underlying felony to the charge of attempted first degree murder. Petitioner cites as support for his contention this Court’s decisions in Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); and Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In those cases, we held that when a criminal offense by definition cannot be committed without the commission of an underlying offense, a conviction cannot be had for both offenses under Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977). The statute provides:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2);
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

In Rowe v. State, supra, we held that Ark. Stat. Ann. § 41-105 (1) (a) (Repl. 1977) precluded the imposition of both a sentence for aggravated robbery and attempted capital murder. The only distinction between Rowe and the case at bar is the fact that petitioner was sentenced for aggravated robbery and attempted first degree murder. We find therefore that it was unlawful to sentence petitioner on both charges, but we do not accept his conclusion that the sentence for aggravated robbery, rather than the attempted murder sentence, must be set aside.

While it was necessary for the jury to find petitioner guilty of a felony, i.e., aggravated robbery, to find him guilty of attempted first degree murder, the jury and the legislature clearly considered aggravated robbery to be the more serious crime. The jury’s intention can be seen in its verdict specifying 50 years for aggravated robbery and 34 years for attempted murder. The legislative intention can be discerned from the classification at the time of the crime of aggravated robbery as a class A felony, Ark. Stat. Ann. § 41-2102 (2) (Repl. 1977), while attempted first degree murder was punishable as a class B felony, Ark. Stat. Ann. §§ 41-703 (2) , 41-1502 (3) (Repl. 1977). Accordingly, the conviction and sentence for the less serious offense, attempted first degree murder, are set aside. The conviction and sentence for aggravated robbery are not disturbed.

We need not address petitioner’s allegation that counsel was ineffective in not objecting to the sentencing in this case since one of the two convictions and sentences has been removed.

Petition granted in part and denied in part.


author: Richard B. Adkisson, Chief Justice. Frank Holt, Justice,

text:
    Sandra THOMAS v. Gary EASLEY
    82-95
    640 S.W.2d 797
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      Webb & lmboden, by: Steve Imboden, for appellant.

      Butler, Hicky & Hicky, Ltd., for respondent.
   Richard B. Adkisson, Chief Justice.

Petitioner, Sandra Thomas, seeks a writ of prohibition to prohibit the Poinsett County Circuit Court from hearing a bastardy appeal filed by respondent, Gary Easley. The trial court denied petitioner’s motion to dismiss the appeal, holding that respondent had substantially complied with the procedural requirements for filing an appeal.

On May 21, 1981, the Poinsett County Court determined that respondent was the father of petitioner’s child and made a handwritten notation to that effect in the county court docket. This judgment was filed with the county clerk on June 4,1981. Respondent filed a notice of appeal on July 2, 1981, but did not include an appeal bond or affidavit of appeal. On July 9, 1981, he filed a second notice of appeal, this time including an affidavit of appeal and an appeal bond.

The issue in this petition is whether respondent had six months or 30 days to perfect his appeal to circuit court from county court in a bastardy proceeding. If respondent had six months to perfect his appeal, the appeal was timely filed. However, if respondent had 30 days to perfect his appeal, then his appeal was filed too late since we held in Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953) that an appeal from county court in bastardy cases must be within 30 days; Ark. Stat. Ann. § 34-709 requires a bond; and that where the appeal was attempted without bond, and the 30-day period expired, the attempt was ineffectual and proceedings were properly dismissed by circuit court.

We have two statutory provisions and the Rules of Inferior Courts which touch on the issue of whether the time for appeal is six months or 30 days. Ark. Stat. Ann. § 27-2001 (Repl. 1979) provides generally for appeals from county court to circuit court:

Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court... at any time within six (6) months after the rendition thereof. . . .

However, Ark. Stat. Ann. § 34-709 (Repl. 1962) provides specifically for appeals from county court to circuit court in bastardy proceedings:

Appeal to circuit court. — An appeal will lie from a j udgmen t of the coun ty court to the circuit court in all cases of bastardy, as in cases of appeal from judgments of justices of the peace to circuit courts; but no appeal shall be granted until affidavit and appeal bond is filed. . . . (Emphasis supplied)

Appeals from judgments of the justices of the peace are governed by Rule 9 of the Inferior Court Rules, Ark. Stat. Ann., Vol. 3A (Repl. 1979) which provides:

(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.

However, Rule 1 of the Inferior Court Rules states that:

Scope of Rules. These rules shall govern the procedure in all civil actions in the inferior courts of this State, except county courts.

The question then devolves to which law is applicable: the general provisions of Ark. Stat. Ann. § 27-2001 and Rule 1, or the specific provisions of Ark. Stat. Ann. § 34-709 and Rule 9. In statutory construction where specific expressions conflict with general expressions, the greater effect is given to the more specific expression. See Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912); Scott v. Greer, 229 Ark. 1043, 320 S.W.2d 262 (1959); See generally 82 C.J.S. Statutes § 367b (1953). Therefore, we conclude that appeals from county court to circuit court in bastardy proceedings must be perfected within 30 days.

Writ granted.

Holt, J., concurs.

Frank Holt, Justice,

concurring. Although I agree that appeals to circuit court from county court in bastardy cases should be perfected in 30 days, I think our rules to be sufficiently ambiguous that an appropriate amendment should be made. The practicing attorney can be misled by Rule 1 of the Inferior Court Rules, which clearly states that the Inferior Court Rules do not apply to county courts. Nevertheless; we hold today that Rule 9 applies to appeals from county courts in bastardy cases. In my view, as an aid to trial courts, practicing attorneys and their clients, we should clarify the situation by amending either Rule 1 or Rule 9 of the Inferior Court Rules to state unambiguously that Rule 9 governs appeals to circuit court in bastardy cases.


text:
    Willie Lee PENELTON v. STATE of Arkansas
    CR 81-119
    640 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      Donald E. Hamilton, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Willie Lee Penelton, was convicted of capital murder and sentenced to death by electrocution. On appeal, we reverse the conviction and remand for a new trial.

Appellant and his girlfriend were walking along Highway 70 near Hicks Station, St. Francis County, shortly after noon on March 17, 1981. The murder victim, who was driving a dump truck, picked them up. They stopped shortly thereafter at a grocery store, where appellant purchased a six-pack of Schlitz beer with a five dollar bill which the victim gave him. The three of them continued down the highway toward West Memphis until the girlfriend stated that she needed to go to the bathroom. The victim pulled onto the shoulder of the road and the girlfriend walked into the woods.

The victim got out of the truck and asked appellant “how she was.” Appellant replied that “she was all right” and the victim then went into the woods. After a short period of time, appellant followed them, taking with him a tire tool. When he saw them, both were partially undressed and it appeared to appellant that the victim was attempting to have sex with the girlfriend. The victim tried to get up but appellant struck him several times with the tire tool. He then took approximately $40 from the victim and he and the girlfriend walked to a grocery store. Appellant paid one of the girlfriend’s relatives to take them to appellant’s apartment in West Memphis.

The victim’s body was discovered between 1:00 p.m. and 3:00 p.m. by a local resident who immediately called the sheriff’s department. Several deputies investigated the crime scene and found various items lying near the body, including the tire tool, a can of Schlitz beer, plugs of tobacco, and a snuff can.

Appellant first argues that the trial court erred in refusing to quash the jury panel because the jury panel was not made up of a cross section of the community. Testimony from the jury commissioners who chose the panel revealed that they had been instructed to exclude persons who could request to be excused under Ark. Stat. Ann. § 39-108 (Supp. 1981). This statute provides:

Occupations excused — Necessity of objection. — The following persons will not be required to serve as grand or petit jurors if they object to serving and make their objections known to the court prior to being sworn:
(a) Practicing physicians, osteopaths, chiropractors, nurses, dentists, dental hygienists, and optometrists and pharmacists.
(b) Persons whose principal activity is that of a clergyman.
(c) Practicing attorneys and officers of a court.
(d) Persons 65 years of age and older.
(e) Persons actively employed as undertakers or embalmers.
(f) Active members of any fire department or fire company.
(g) Persons serving on active duty in the military service of the United States or the National Guard.
(h) Active members of any law enforcement agency.
(i) Members of the General Assembly, elected county officers and elected township officers. [Cites omitted]

Generally, the commissioners testified that they did, in fact, exclude persons in the classifications enumerated above. One commissioner took notes on the trial court’s instructions and her notes, which were introduced into evidence, state: “Exclude people in essential fields . . . Doctors, ministers, all the health fields, firemen and attorneys — legal pro — and relatives — officers of the court.”

Ark. Stat. Ann. § 39-108 does not provide for the automatic exclusion of persons within the classifications mentioned, but rather, provides for exclusion if the individual objects to serving and makes the court aware of such objection before the jury is sworn. Therefore, it was error for the trial court to instruct the commissioners to automatically exclude a large class of eligible jurors. Hall v. State, 259 Ark. 815, 634 S.W.2d 155 (1976).

Appellant also argues that his confession should have been suppressed because it was involuntary. We disagree. Here, the voluntariness of the confession turns almost entirely upon matters of credibility. No physical mistreatment is alleged, and appellant’s signature appears on the rights form as well as the confession, but there were conflicts in the testimony about when and to what extent appellant was informed of his rights and whether or not he was threatened by police officers. However, having given due weight to the trial judge’s advantageous position in the resolution of such conflicts, we cannot say that his finding of voluntariness was clearly against the preponderance of the evidence. Hall v. State, 276 Ark. 245, 634 S.W.2d 115 (1982); Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981).

There is clearly sufficient evidence to support a finding of guilt in this case, based upon the testimony of various witnesses and the confession. However, the case is remanded for a new trial because of the prejudicial procedure used in selecting the jury.

Reversed and remanded.


text:
    KARK-TV CHANNEL 4, INC. v. Floyd J. LOFTON, Judge
    82-187
    640 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      James M. McHaney, Jr. of Owens, McHaney ir Calhoun, for petitioner.

      Steve Clark, Atty. Gen., by: Jeffrey A. Bell, Asst. Atty. Gen., for respondent.
   George Rose Smith, Justice.

Less than two years ago we amended our Code of Judicial Conduct to permit radio and television stations to provide pooling arrangements for the broadcasting, recording, or photographing of substantially all court proceedings, subject to the control of the presiding judge. Re Petition of Arkansas Bar Association, 271 Ark. 358, 609 S.W.2d 28 (1980). The Code amendments appended to the opinion required, among other restrictions, that only one fixed television camera be used and that all parties to the case consent to its use. Our decision was reached after the news media and the general public had been invited to submit their views. There was actually only one minor objection to the bar association’s proposed amendments to the Code.

The present petition arises from two widely publicized criminal cases in which the three defendants, Eugene James Hall, Larry Darnell McClendon, and Mary (Lee) Orsini, all protested the presence of television cameras at their arraignment. The trial judge (the respondent Lofton) sustained the objection, as the amended Code required him to do, and ordered the removal of all television equipment. Counsel for the present petitioner, KARK-TV, unsuccessfully argued that the Code’s requirements that the parties consent to the presence of television cameras really means that a party can withhold his consent only by showing by clear and convincing evidence some compelling reason for the exclusion of cameras.

The present petition, filed here as an original proceeding, first asks that we issue a writ of mandamus compelling Judge Lofton to stop excluding cameras absent a compelling necessity shown by clear and convincing evidence. The prayer itself demonstrates that we are being asked to control Judge Lofton’s discretionary action; so mandamus is obviously not the proper remedy. The petition also contains an alternate ex parte prayer that we amend the Code to provide that a party objecting to the presence of television or other electronic equipment must show that the equipment presents a clear and imminent threat to the fair administration of justice. We find no merit in the petitioner’s arguments and therefore deny the petition without first inviting comments from others who may be interested.

The petitioner’s position is that every newspaper, radio, and television reporter has an absolute right under the First Amendment to enter any public proceeding — presumably either legislative, executive, or judicial — and record whatever occurs, by means of a television camera, a still camera, a microphone, a tape recorder, a typewriter, or anything else, unless an objecting party shows by clear and convincing evidence a compelling reason for a curtailment of the reporter’s activity.

Counsel cite no case supporting such an unfettered right of “technological access” to courtrooms and other public areas. In Florida, where the Code of Judicial Conduct permits the televising of criminal proceedings even over the defendant’s objection, the Supreme Court summed up its position in Petition of Post-Newsweek Stations, Florida, 370 So.2d 764, 774 (Fla., 1979):

While we have concluded that the due process clause does not prohibit electronic media coverage of judicial proceedings per se, by the same token we reject the argument of the petitioner that the first and sixth amendments to the United States Constitution mandate entry of the electronic media into judicial proceedings.

That sentence was quoted, not necessarily with approval but certainly not with disapproval, by the Supreme Court of the United States in Chandler v. Florida, 449 U.S. 560 (1981), where the court held in effect that the various states are free to experiment in their efforts to determine to what extent the electronic media should be given access to the courtroom.

The only substantial support for the petitioner’s position is to be found in an article written by Professor Diane L. Zimmerman, “Overcoming Future Shock: Estes Revisited,” 1980 Duke L. J. 641. That article was published shortly before the decision in the Chandler case; its author was writing quite frankly as an advocate for her position. Even she, however, recognized the need for restrictions upon the media’s access:

The presence of cameras in the courts makes necessary rules to protect the court against noise, disruption, and confusion. Regulation of the number, placement, and noise levels of cameras is necessary to enable the court to carry on its work free from interruption. The accommodation of the due process rights of parties in civil and criminal proceedings also justifies these regulations. [P. 700.]

When we opened our courtroom doors to the electronic media to a somewhat limited extent, we referred to our action as “an experiment which we hope will work.” 271 Ark. 361. That experiment, not yet two years old, appears to be functioning satisfactorily. The present petition does not persuade us of the wisdom of the proposed modification of the plan.

Petition denied.


author: Frank Holt, Justice.

text:
    Henry GRAY, Director of Arkansas Highway and Transportation Department v. Charles D. RAGLAND, Director of Revenues, Arkansas Department of Finance and Administration and B. J. McADAMS, INC.
    82-102
    640 S.W.2d 788
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982

      Thomas B. Keys and Ted Goodloe, for appellant.

      Cassandra F. Wilkins-Slater, for appellee Charles D. Ragland, Director of Revenues.

      Hardin, Grace, Downing, Napper, Allen ir East, for appellee and cross-appellant B. J. McAdams, Inc.
   Frank Holt, Justice.

B. J. McAdams, Inc., a domestic corporation engaged in interstate trucking and having its principal place of business in Pulaski County, brought this action in chancery court to enjoin the Director of Revenues, Department of Finance and Administration, from asserting a claim for registration fees on McAdams’ trucks for July 1, 1980 — December 31, 1980, and to enjoin the Director of the Arkansas Highway and Transportation Department from stopping McAdams’ trucks for failure to register in Arkansas. The parties will be referred to herein as “McAdams,” “Revenue Department,” and “Highway Department.” The chancellor ruled that McAdams owed $45,502.37 in registration fees for the last six months of 1980. The Highway Department appealed, contending that McAdams should be assessed $179,260.57. McAdams cross-appealed, contending that no registration fee was owed, or, alternatively, that the fee should be no more than $13,271.41. The Revenue Department argues that the chancellor was correct in all respects. We agree and affirm.

The factual background to this litigation is rather complex. McAdams registered its trucks in California for the calendar year 1980 and for some years prior thereto. California’s accounting is based on the calendar year. Arkansas’ accounting is based on the fiscal year, which runs from July 1 to June 30. In April 1980 the Revenue Department informed McAdams and other Arkansas based truckers then registered in California that, beginning July 1, 1980, they would be required to register their trucks in Arkansas and pay Arkansas a registration fee as prescribed in Ark. Stat. Ann. § 75-201 (Repl. 1979). McAdams responded by filing this action in chancery court.

Arkansas is a member of a multi-state compact called the International Registraton Plan (IRP), which allowed truckers based in any member state to register in any other member state. The state in which the trucker registers collects the registration fees which are then apportioned among each member in which the trucker operates according to the number of miles traveled by the trucker in each state. California is not a member of the IRP. Therefore, Arkansas does not receive a portion of the registration fee paid to California. States that are not members of this multistate compact often enter into reciprocity agreements whereby each grants to the truckers licensed in the other the right to use the highways without paying a registration fee. Members of the IRP are allowed by the terms of the compact to charge “reciprocity miles”, which are fees assessed on trucks licensed in the IRP state based on miles traveled by trucks in states that are nonmember states. The purpose of these charges is to prevent trucks from being able to operate free in nonmember states. Arkansas and all other member states charge reciprocity miles, except Illinois.

The chancellor concluded that Arkansas did not have a valid reciprocal agreement with California. He entered judgment for the Department of Revenue in the sum of $45,502.37. This sum was computed according to a formula that all parties agree is correct. The sum was computed for 365 tractor-trailer rigs traveling a stipulated number of miles in Arkansas and in other states. The sum includes “reciprocity miles” but allows a credit for fees paid in other states.

Several of the arguments made on appeal are, in effect, that the chancellor’s findings were against the preponderance of the evidence. Therefore, it is important to bear in mind that the chancellor’s findings as to a fact question will not be disturbed on appellate review unless clearly erroneous (clearly against the preponderance of the evidence) and due regard will be given the trial court to judge the credibility of the witnesses. Rule 52, ARCP, Ark. Stat. Ann. Vol. 3A (Repl. 1979), Ballentine v. Ballentine, 275 Ark. 212, 628 S.W.2d 327 (1982).

The Highway Department appeals from the chancellor’s ruling, asserting that the $45,502.37 in favor of the Department of Revenue is inadequate and should be $179,260.57. Although we discuss the merits of the Highway Department’s argument, we first observe that the Highway Department lacks standing to bring this appeal since it is not the agency charged with the duty of collecting the registration fees. Ark. Stat. Ann. §§ 75-110 — 75-120 (Repl. 1979). The Highway Department raises two points for reversal. First, it argues that the granting of credit for fees paid to other states was improper. However, this credit is authorized by the IRP and the IRP was entered into pursuant to Ark. Stat. Ann. § 75-251 et seq. (Repl. 1979). Therefore, we find no error.

Second, the Highway Department argues that the fee should have been computed by the chancellor on 1,150 trucks rather than 365. The assistant chief of the Highway Department testified that 1,150 trucks bearing McAdams’ insignia with different license plates crossed the Arkansas state lines from July 1 to December 31, 1980. However, on cross-examination he admitted that the count could involve duplication, since the same truck could be counted when it entered the state on different occasions at different points, and that the court could include trucks that were on a five day trip lease under the McAdams name but which would not be trucks that McAdams was required to license. We conclude that the chancellor’s finding was not clearly erroneous.

McAdams, on cross-appeal, raises four points for reversal. First, the state was estopped from claiming fees for the last six months of 1980 by an agreement, upon which McAdams relied when it registered in California for the calendar year 1980, between Arkansas and California that allowed Arkansas based truckers to register in California. The chancellor found that no valid agreement existed. We have reviewed carefully the evidence, including exhibits, relied upon by McAdams to prove the existence of an agreement, and we conclude that the chancellor’s finding was not clearly erroneous. The most that all the evidence proves is that there may have been an agreement at some time in the 1940’s or 1950’s; however, there is insufficient evidence that the terms of the agreement, if one existed, allowed an Arkansas domestic corporation, having its principal place of business in Arkansas, to register in California and thus avoid Arkansas’ registration fees.

McAdams’ second point is disposed of by our resolution of the first point. McAdams argues that the notice in April 1980 that Arkansas based truckers would be required to register in Arkansas or some other IRP state constituted “rulemaking” as defined by the Administrative Procedure Act [Ark. Stat. Ann. § 5-701 (c) (Repl. 1976)] and that the Revenue Department erred by not following the rulemaking process outlined in the APA. However, if no valid agreement existed allowing McAdams to escape registration in Arkansas or another IRP state, the Revenue Department was not promulgating or repealing a rule but was merely giving notice that the then existing laws would be enforced.

McAdams’ third point is that the amount of registration fees determined to be due by the chancellor is excessive because it includes “reciprocity miles.” McAdams claims that it owes the Revenue Department no more than $13,271.40 for mileage actually traveled by its vehicles in Arkansas. Two arguments are advanced to support this point. First, McAdams argues that it could have legally registered in Illinois during 1980 and avoided the payment of reciprocity miles, because Illinois is the only IRP state that does not collect reciprocity miles. The reasoning is that since it would have been permissible under Arkansas law for McAdams to have avoided reciprocity miles fees in this manner, Arkansas cannot collect those fees. We. find no merit to this point. It simply makes no sense to say that McAdams should now be able to benefit from a course of action that it could have chosen but did not. Similarly, McAdams complains that it will have to pay twice, once to California and once to Arkansas, for registration for June 1, 1980 to December 31, 1980. However, McAdams chose to register in California and pay the fee for the entire calendar year 1980. That registration was not in compliance with Arkansas law. No rule of law is cited which allows a taxpayer to voluntarily pay a tax in a state where none is owed and then claim that payment as a credit against taxes that are owed in the taxpayer’s home state.

In a subordinate argument McAdams asserts that the collection of fees for mileage traveled in other states violates the commerce and due process clauses. McAdams’ brief does no more than assert this point. No authority is cited and no real argument is made in support of this point. As we stated in Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken.

Affirmed on direct appeal and cross-appeal.


author: Darrell Hickman, Justice.

text:
    Paula Curlin RASMUSSEN v. STATE of Arkansas
    CR 82-78
    641 S.W.2d 699
    Supreme Court of Arkansas
    Opinion delivered October 25, 1982
    [Rehearing denied December 6, 1982.]

      Lessenberry & Carpenter, for appellant.

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

A jury found Paula Rasmussen guilty of the first degree murder of her boyfriend, Clarence Corley, and sentenced her to life in prison. Rasmussen’s arguments on appeal concern the trial judge’s admission and exclusion of evidence. We find that he did not abuse his discretion and affirm the conviction.

Rasmussen and Corley lived and worked together in North Little Rock. On their way home from work on April 10, 1981, they began to argue about Corley’s attention to another woman. They had both been drinking beer for several hours and the argument became more heated when they got to their apartment. Rasmussen testified that Corley asked her for the keys to his truck so he could leave but that she refused. She said she was fearful that Corley was going to physically injure her, so she grabbed a pistol out of the gunrack in their apartment and took the safety strap off. Rasmussen said that Corley then slapped her hand and the gun, a .38 caliber double-action revolver, went off, shooting Corley in the chest. She said that he told her to call an ambulance; but, according to the doctor who performed the autopsy, he died instantly upon being shot.

A neighbor said she heard the arguing, the shot, and heard Corley tell Rasmussen to call an ambulance. The neighbor then called the police. When the police arrived, Corley was dead. The police officers took her to the pólice station, warned her of her rights, and she gave a statement which essentially said that she had pointed the gun at Corley in self defense, and that Corley pushed the gun causing it to fire. Two of Corley’s daughters testified that before the homicide they had heard Rasmussen say she could kill Corley for his infidelity.

Rasmussen raises three points on appeal. The first concerns a pair of eyeglasses that the defense had made which purportedly would allow a person with normal vision to see as Rasmussen sees without her glasses. Apparently, Rasmussen has very poor vision when uncorrected. Rasmussen said that Corley had knocked her glasses off before the shooting. The defense’s theory was that when Rasmussen shot Corley, her vision was so blurred that she felt more apprehension of bodily harm than the situation actually presented, thus supporting her claim of acting in self defense. The defense offered no expert proof of the weakness of Rasmussen’s vision, nor any expert testimony that the specially made glasses would enable the j urors to see what Rasmussen saw without her glasses. The trial judge pointed out that he had no way of knowing whether the glasses were effective or whether there were any jurors with perfect vision so that the glasses could work anyway. The admissibility of demonstrative evidence is discretionary with the trial j udge, and in considering the facts that the trial judge had before him, we find no abuse of that discretion. Edgemon v. State, 275 Ark. 313, 630 S.W.2d 26 (1982); see McCORMICK’S EVIDENCE § 202 (1972 ed.).

Two photographs of Corley’s body were introduced which Rasmussen claims were inadmissible because of their inflammatory nature. One was a color photograph of the victim lying dead on the bed where the police found him. Another was a black and white photograph of the victim from his abdomen to his head. The admissibility of photographs lies within the trial court’s discretion. A photograph is ordinarily admissible when it shows the nature, extent, and location of the wounds. Spillers v. State, 272 Ark. 212, 613 S.W.2d 387 (1981). We find no abuse of the trial judge’s discretion.

Rasmussen’s third point for reversal is that the trial court erred by allowing evidence of Corley’s intoxication level to go to the jury. After Rasmussen said Corley had ten beers, the State asked Rasmussen whether she would “... be surprised to know that the autopsy report showed that he [Corley] had a blood alcohol level of only .07 and the legal limit for intoxication — the lowest level is . 10? Would that kind of surprise you?” The defense objected, stating that that was an incorrect statement of the law. The following exchange took place:

DEFENSE COUNSEL:
Your Honor, I’m going to object to that. That’s not a proper statement of the law. The lowest intoxication level is .05.
THE STATE:
I think the Arkansas law is .10.
THE COURT:
I believe that’s correct.
DEFENSE COUNSEL:
.10 raises a presumption that this man had been drinking.
THE COURT:
It raises a presumption that he was under the influence, I believe is a proper statement of the law. Proceed.

The attorneys and the court were no doubt referring to Ark. Stat. Ann. § 75-1031.1 (Repl. 1979). On appeal, the appellant argues that the objection should have been sustained for four reasons: (1) Because Corley’s autopsy report had not been introduced; (2) because blood-alcohol content cannot be admitted into evidence until several statutory requirements have been met; (3) because the trial judge’s comments supported the prosecutor’s declaration; and, (4) the trial judge’s comments were misleading. The defense attorney did not try to prevent the discussion of the law; rather, he joined in and argued his interpretation of the statute. Furthermore, the only objection made by the defense at the trial was that the prosecutor’s question to Rasmussen was an incorrect statement of the law. Under those circumstances, we find that he did not properly preserve his right to raise these arguments on appeal. Swaite v. State, 274 Ark. 154, 623 S.W.2d 176 (1981); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

We have reviewed the record for other errors, and found none.

Affirmed.