text:
    Thomas L. WEAVER v. STATE of Arkansas
    CR 88-18
    752 S.W.2d 750
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988

      Guy Jones, Jr., P.A., for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Thomas L. Weaver, was convicted in municipal court of indecent exposure. He appealed to the Van Burén Circuit Court which refused to hear the case because Weaver’s counsel had not given the court proposed jury instructions as required by a local rule. We hold that the court erred in the application of its rule, and thus we reverse the decision.

When a conviction is appealed from a municipal court to a circuit court, the case is tried de novo, Ark. Code Ann. § 16-96-507 (1987), and the appellant is entitled to a trial by jury. See Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). When this case was called by the circuit judge for trial, the parties stated they were ready to proceed. The judge announced that the case would be the second to be tried that day. Then the record is as follows:

THE COURT: [counsel for the defendant] . . . Mr. Jones, however, there — you—you didn’t, uh — you didn’t give the Court any instructions in that.
MR. JONES: We have — we have none to offer, Your Honor. The State’s instructions — or the City’s instructions cover them all. There were no additional instructions we could proffer.
THE COURT: You don’t have a defense?
MR. JONES: It would be a factual matter, Your Honor, as to whether or not the matter did or did not occur.
(Whereupon, the Court continued calling the docket, after which, the following further proceedings were had in this cause.)
THE COURT: Back up to the Weaver case, the Weaver case is a misdemeanor case?
MR. WILLIAMS [the prosecutor]: Yes sir, Your Honor.
THE COURT: That case will be remanded, because Mr. Jones didn’t submit any instructions to the Court. It will not be for trial.
(Whereupon, the court proceeded with other matters unrelated to this cause.)

At the time of these proceedings, the circuit court had in effect a local rule entitled, “Jury Instructions and Verdict Forms.” The first two sections of the rule were as follows: “(1) Counsel for plaintiffs or the state shall prepare and submit all preliminary and cautionary instructions and all instructions applicable to plaintiffs case. (2) Counsel for defendant shall prepare all instructions applicable to defendant’s case.” In addition, Mr. Jones, Weaver’s counsel, had received from the court a notice requiring that “jury instructions,” presumably meaning instructions to be proposed, be furnished the court and opposing counsel at least two working days before the date set for trial.

Weaver argues that the actions of the court deprived him of his constitutional right to a jury trial as no jury is available to him in the municipal court. The state concedes there is a right to a jury trial in cases appealed from the municipal courts. However, the state argues Weaver did not make to the circuit court the argument presented here and that this court will not consider an argument made for the first time on appeal. Weaver responds that he had no opportunity to present argument to the trial court on the matter. He correctly notes that the trial court remanded the case to the municipal court on its own motion rather than upon a motion from the prosecution to which he might have responded.

Arkansas Code Ann. § 16-89-125(b) (1987) provides, in part, “When the evidence is concluded, the court shall, on motion of either party, instruct the jury on the law applicable to the case.” Beyond that, we know of no statute or rule dealing with the submission of proposed instructions in criminal cases. No rule of criminal procedure has provisions comparable to Ark. R. Civ. P. 51 which permits the parties to submit requested instructions to the court in civil cases.

We formerly sanctioned the local rules created by trial courts by Ark. R. Civ. P. 83, which provided that such rules were not to be effective until filed with this court. We abolished the practice by revoking Ark. R. Civ. P. 83 by our per curiam order of December 21,1987, which went into effect March 14,1988. The hearing in this case was held October 13,1987, and the local rule in question was thus in effect.

In our per curiam order which included the abolition of Rule 83, we noted the inherent power of trial courts to invoke orders necessary to the orderly handling of trials. We find nothing exceptionable about a rule or administrative order requiring a party who wishes to suggest instructions to the court to do so prior to trial, although we can foresee a problem if such a rule were used to prevent a party from suggesting an instruction which could not have been perceived as necessary until after the trial had begun. The problem in this case is not the wording or requirement of the rule but the manner in which it was applied.

In Letaw v. Smith, 223 Ark. 638, 268 S.W.2d 3 (1954), a trial court had prevented the appearance of Tennessee lawyers on the basis of a local rule which required that they associate a lawyer of the county in which the court sat. We held that local rule contravened a statute permitting appearance by reciprocity of attorneys in good standing from other states. We recognized, that there were limitations on local rules. “Two of these limitations are that such local rules must not contravene a valid statute or be unreasonable.” 223 Ark. at 642, 268 S.W.2d at 5.

As the local rule was applied in this case, it was unreasonable. Counsel for Weaver explained that he regarded the instructions submitted by the prosecution as sufficient, and that his defense was strictly factual. The court seemed to require that Weaver’s counsel submit to him the same instructions as the prosecution had submitted.

In Lyons v. Goodson, 787 F.2d 411 (8th Cir. 1986), a United States district court had held a claim barred by a statute of limitations. The claimant had attempted to file on time but was informed that, in accordance with a local district court rule, two additional copies of his complaint were needed. After the statute of limitations had run, a magistrate ordered that the claimant be allowed to proceed in forma pauperis and that his complaint be filed. The district court dismissed, noting that the statute of limitations had run. In its per curiam reversal, the court of appeals wrote:

The real question in this case, however, is whether a complaint can be deemed “filed” when it does not comply with formal requirements in local rules. We concur with the position of the Ninth Circuit that a local rule should not be “elevate [d] to the status of a jurisdictional requirement” or “applied in a manner that defeats altogether a litigant’s right to access to the court.” Loya v. Desert Sands Unified School District, 721 F.2d 279, 280 (9th Cir. 1983).

Here, the application of the local rule caused Weaver to lose access to the circuit court. The local rule was applied in this case to require an act which was useless and futile on its face, and thus we cannot say it was reasonably applied. See Russell v. State, 288 Ark. 255, 704 S.W.2d 161 (1986).

Reversed and remanded for proceedings consistent with this opinion.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    SUPERIOR MARKETING RESEARCH CORP. v. The Honorable Philip B. PURIFOY
    88-23
    752 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988

      House, Wallace & Jewell, P.A., for petitioner.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Demaris A. Hart and Hayes C. McClerkin', and Bell, Bilheimer & Crockett, P.A., by: Stephen Bilheimer, for respondent.
   Tom Glaze, Justice.

This appeal originated in a declaratory action filed on March 10, 1986, by plaintiffs, Sylvia Matthews, Loretta O’Byrne and Olinda Nimietz, against Superior Marketing Research Corp. (Superior), Don Miller, Robert Holcomb and James Dooley. The plaintiffs’ original complaint alleged that Miller, Holcomb and Dooley (referred sometimes herein as inventors) invented a method for cooling food and beverages within a container. Plaintiffs further alleged the inventors had applied for patent rights and, by agreement, the inventors assigned those rights to Superior in return for shares of stock in that company. Plaintiffs claimed Miller had solicited them as investors, and by agreement, they were to receive Superior stock in exchange for the monies the plaintiffs paid and invested to assist the company in marketing the new invention. Mrs. Matthews, it was alleged, received a certificate for 500,000 shares of Superior common stock, but neither O’Byrne nor Nimietz received any certificates evidencing their shares. All three plaintiffs asserted that their rights as stockholders were denied by Superior, and requested that the chancery court declare and enforce their rights. On April 17,1986, plaintiffs amended their complaint, and among other things, asked they be declared owners of an undivided interest in the U.S. patent application to which Superior claimed sole ownership.

On April 29, 1986, Superior moved to dismiss plaintiffs’ complaint as amended, arguing the trial court had no in personam jurisdiction or venue of the action, and also claiming that the action should have been filed in circuit court rather than in chancery. At a hearing on October 20, 1987, the chancellor denied Superior’s motion, stating the court had jurisdiction and venue and specifically found that plaintiffs’ declaratory relief was based upon an underlying cause of action which included both fraud and specific performance. On February 3, 1988, Superior lodged the trial court’s record with this court and, at the same time, filed its petition for writ of prohibition claiming that the chancellor’s October 20, 1987 order, denying Superior’s motion to dismiss, was erroneous. However, respondent states this court does not have the entire record, and in his brief, respondent supplemented the abstract of pleadings with a plaintiffs’ motion for leave to amend (purportedly filed sometime after the trial court’s October 20,1987 hearing), an order granting that motion and a pleading captioned “Second Amended Complaint,” which apparently was filed on January 27, 1988.

Because of the incomplete state of the record before us, we simply are unable to reach all the arguments made by Superior, especially since its contentions largely rely upon the allegations contained in plaintiffs’ amended complaint as those claims stood on October 20, 1987, when the chancellor denied Superior’s motion to dismiss. Superior argues the second amended complaint should not be before this court, but gives no compelling reason as to why. Superior concedes it knew of, and objected to, the plaintiffs’ motion to file the second amended complaint; it claims, however, that the amended complaint was erroneously entered without a hearing. Of course, if that were so, Superior’s remedy would have been to request the chancellor to correct such an error rather than argue in this prohibition action that the second amended complaint should not be a part of the trial court’s record.

A brief recitation of Superior’s arguments will readily reveal why this court is unable to decide the venue question raised in this action. For example, Superior asserts the plaintiffs’ suit below was one for specific performance and that the applicable venue statute is Ark. Code Ann. § 1.6-60-116 (1987), which requires the action to be filed in a county where one of the defendants resides or is summoned. Such a requirement, Superior argues, would exclude Miller County since none of the defendants either reside or were served there. Superior further argues that although Ark. Code Ann. § 16-60-113(b) provides for fraud actions to be brought in the county where any one plaintiff resides or where one or more of the acts of fraud were perpetrated, it claims the plaintiffs’ action could not be based in fraud because the plaintiffs failed to allege the necessary elements of fraud. Contrary to Superior’s argument, we note that the plaintiffs’ second amended complaint does reflect specific and particular allegations of fraud and deceit; that complaint also adds claims for tortious interference of property rights, contract and for an accounting. In support of his determination that venue lies in Miller County under § 16-60-113(b), respondent points out that one of the plaintiffs, Mrs. Matthews, resides in Miller County and that some of the alleged fraudulent acts were perpetrated in that county. Superior counters by arguing that even if the plaintiffs’ complaint correctly alleged fraud and that was the basis of their action, fraud is a law action, not one in equity. In sum, Superior claims the plaintiffs should have filed their action in circuit court. Such an argument is inconsequential since, even assuming Superior is correct in its argument, Superior’s remedy is not one for a writ of prohibition, but instead must be corrected by a motion to transfer the case to the Miller County Circuit Court. See First Arkansas Leasing Corp. v. Munson, 282 Ark. 359, 668 S.W.2d 543 (1984).

For the reasons given above, we must deny Superior’s petition for writ of prohibition.

Holt, C.J., not participating.

       Plaintiffs also alleged facts noting the inventors’ interest in forming a new company named Fast Chill, which was to market the invention. That company apparently was never formed, but plaintiffs alleged the inventors’ early contacts with them involved the possible exchange of stock of that proposed company for the investment monies given by plaintiffs. Mrs. Matthews, in fact, was alleged to have paid $ 12,500 for 500,000 shares of Fast Chill, but later was given a subscription agreement for 500,000 shares of Superior stock in recognition of the rights she had acquired in Fast Chill.

       Plaintiffs filed a response and brief in this court on behalf of the respondent trial judge.


author: Per Curiam. John I. Purtle, Justice, Per Curiam. Tom Glaze, John I. Purtle, Justice,

text:
    John GIPSON, Bill Hefley, M.D., Coolidge Faulkner Richard Conder, James Dixon, A.J. Tomme, and Jack Case v. Lee A. MUNSON, Chancellor, Joe Brown, Bob Scott, and Tip Nelms, D.D.S.
    88-128
    752 S.W.2d 752
    Supreme Court of Arkansas
    Opinion delivered July 5, 1988
    [Supplemental Opinion on Denial of Rehearing September 19, 1988.]

      Friday, Eldredge & Clark, by: William H. Sutton, for petitioners.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent Lee A. Munson, Chancellor.

      Joe Brown, pro se; Tip Nelms, D.D.S., pro se; and Cliff Jackson, for respondents Joe Brown, Tip Nelms, D.D.S., and Bob Scott.

       Hays and Glaze, JJ., concur; Purtle, J., dissents.

   Per Curiam.

Our most recent opinion involving the present parties is Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988). Neither party filed a petition for rehearing. The mandate was issued on May 27, 1988.

The respondents have instituted contempt proceedings in chancery court and argue that because we dismissed the petitioners’ appeal in Gipson, the lower court’s judgment remained in effect. The petitioners filed the pending petition for writ of prohibition and rely upon discussion in Gipson which made clear that the underlying dispute between the parties was a church matter not proper for resolution by the courts. We granted a temporary stay pending further review.

The temporary stay is now made permanent. We direct the attention of the lower court and the parties to the specific language of our mandate:

It is therefore considered by the Court that the decree of said Chancery Court in this cause rendered be and the same is hereby dismissed in accordance with the opinion herein delivered.

Accordingly, petitioners’ writ of prohibition is granted.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The Arkansas civil justice system has suffered damage from which it may never recover as a result of the majority opinion in this case which they have labeled a “per curiam.” I respectfully request the bench and bar as well as all church members to study the opinion and this dissent. From this date forward there is no longer a separation of church and state. The per curiam is definitely a victory for the majority of the members of the Sixth and Izard Church of Christ. This court, in an effort to mollycoddle the dominant faction in this church dispute, has, in effect, reversed its original decision in this case and held that the Sixth and Izard Church of Christ need not bother to abide by the laws of the state of Arkansas even though the dispute had nothing whatsoever to do with church doctrine. Eventually even this church will wish this decision had never been rendered. I will explain later in this dissent.

The genesis of this lawsuit is without a doubt an internal church dispute — and is fueled by distrust and hate rather than love of God and man. This dissent is going to be primarily about the facts. However, for an understanding of the law see my dissent in Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988) (hereinafter Gipson II), in which Justices Dudley and Newbern joined. In Gipson II the majority rambled on about what we might do if we were to act on the merits of the case but in the end the decision simply dismissed the appealV. The majority refused to reach the merits when we had the case before us — fully briefed. Today they have decided the merits of the case, in one page, when the matter before us is a motion for contempt for wilful failure to abide by the order of the trial court.

The First Amendment to the United States Constitution clearly establishes the right to exercise one’s religious beliefs and prohibits the establishment of any laws restricting the free exercise thereof. All of us agree that this amendment is clear and unequivocal. Article 2, Section 25, of the Arkansas Constitution requires the General Assembly to enact laws suitable “to protect every religious denomination in the peaceful enjoyment of its own mode of public worship.”

The state of Arkansas has violated neither of the foregoing constitutional provisions. It has however, pursuant to other constitutional powers, enacted the “Arkansas Nonprofit Corporation Act,” which specifically permits religious groups to incorporate pursuant to the act. See Ark. Code Ann. §§ 4-28-201 through 4-28-206 and 4-28-209 through 4-28-223 (1987).

The Sixth and Izard Church of Christ for whatever reason elected to incorporate under this law. It is important to note the provisions of Ark. Code Ann. § 4-28-218 which reads as follows:

Books and accounting records.

(a) Each corporation shall keep correct and complete books and records of account.
(b) All receipts of moneys and expenditures shall be properly recorded according to accepted accounting principles.
(c) A record of the proceedings of its members, board of directors, and committees shall be kept.
(d) A record of the names and addresses of its members entitled to vote shall be maintained at the principal office or place of business of the corporation.
(e) All books and records of a corporation may be inspected by any member for any proper purpose at any reasonable time.

The foregoing law is not difficult to understand. Neither do I find anything unreasonable or unfair about it. Moreover, I cannot in my wildest dreams imagine how this law interferes with the constitutional right to the free exercise of any church’s or individual’s religious beliefs; this law does not in any manner concern itself with church doctrine or polity.

A religious organization may quarrel and argue all it wants to, but it ought not to be allowed to manipulate the courts of this state to settle its internal squabbles. The church in this case is using this court to settle its internal bickering. The church should render to Caesar that which is his and to God that which is His.

The original plaintiffs in this case made a request to see the financial records of the corporation as provided by the express terms of the law under which the church had chosen to incorporate. The minister and the elders, who were also named as the board of directors of the corporation, refused to allow the other members to see the records of expenditures. This squabble reached this court for the first time in Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986) (hereinafter Gipson I). In reversing and remanding in Gipson I, we stated:

We have strictly adhered to this absolute prohibition of any infringement upon religious beliefs. It necessarily follows that internal church disputes relating to the disclosure of church business should not be subject to the legal concern of this court. However, when the Sixth and Izard Church of Christ decided to incorporate, it submitted itself to certain corporate laws of this state, thus opening the door to examination of their present quarrel in a legal setting.

In reversing and remanding in Gipson /, we directed the Gipson faction to comply with the order of the chancellor. We opined that the chancellor could decide that the Brown faction was not entitled to see the financial records of the corporation. However, the chancellor subsequently found that they were entitled to see at least some of the records. The Gipson faction refused and instead appealed. The elders again refused to comply with the chancellor’s ruling, arguing that their religious beliefs were superior to manmade law and therefore the law must fall when there is a conflict. When the chancellor issued an order to show cause why they should not be held in contempt, they came running back to this court to bail them out again — and the court has done exactly that.

The plaintiffs sought, among other things, to find out what had happened to sums contributed to the Polish Relief Fund in excess of $600,000. The only information furnished was that one of the elders, acting as trustee, transferred the $600,000 to a bank in Mannheim, West Germany. There was a one-page report listing ten expenses, one of which was a large purchase for Amway soap. The plaintiffs allege that the trustee and his wife were Amway dealers. They also allege that the elders fraudulently conspired to conceal from the members of the corporation the illegal expenditure of the funds which were collected for the Polish Relief Fund.

Now I turn to the matter of what the court has done in the present case, Gipson II. Our opinion in Gipson II was delivered on May 9,1988. No petition for rehearing was filed within 17 days as is required by Supreme Court Rule 20. Therefore, that decision became the law. The opinion dismissing the appeal could only mean one thing — the case was back in the trial court as if no appeal had ever been filed.

On June 2,1988, the Gipson faction filed an “Application for Temporary Relief’ in this court. The purpose of the petition was to prevent the trial court from holding a hearing to determine whether the elders were in contempt for their wilful refusal to disclose certain financial records of the corporation. We have never before usurped the discretionary powers of a trial court. It’s possible that the elders would not have been held in contempt. Even if they had been, the remedy is by appeal.

The real tragedy of this case is the permanent damage done to precedent, the law and to the integrity of this court. We have before us a case where the parties sat by and looked suspiciously at each other while the period for filing a petition for rehearing expired. Once again this court has reached outside its jurisdiction and rescued the elders of the Sixth and Izard Church of Christ from complying with the provisions of our laws and rules which are strictly applied to all other litigants. How long do the elders have to come back in and argue that this court was wrong (which we were, but not for the reasons they argue)? In effect, they have demanded that we overrule our prior decisions without even filing a pleading, let alone offering proof to support their position.

Will this new rule apply only to the Sixth and Izard Church of Christ? Or can other litigants wait until the spirit moves them and file for “temporary relief,” and then expect this court to make it permanent without further argument or briefing?

The church — any church — has the absolute unfettered right to worship according to the dictates of their own consciences, so long as they do not trespass upon the rights of others. Having elected to incorporate under the laws of the state, they should be required to conform to the consequences of their voluntary act. Otherwise, it is only fair that all other businesses organized as “not for profit” corporations be allowed to choose which portions of the law by which they will abide.

759 S.W.2d 791

Incorporating obviously was not done for reasons of religious belief. After deciding not to follow the law, the elders decided it was a religious belief not to obey the law if they did not like the law. I am deeply saddened that this court has been stampeded into ignoring the law on the totally false premise that it violates freedom of religion.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

SEPTEMBER 19, 1988

Per Curiam.

Petition for rehearing is denied.

Glaze and Hays, JJ., concur.

Purtle, J., dissents.

Tom Glaze,

Justice, concurring. Respondents take exception with the term “appeal dismissed” which this court used in its original decision in this cause, Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988), and in its subsequent per curiam issued July 5, 1988, which reflected the court’s mandate dismissed the chancery court’s decree. Respondents claim the term “appeal dismissed” in the original opinion should control over the mandate language, and therefore would, they surmise, effectively affirm the chancellor’s decree below. Such a claim is unfounded. It is quite obvious that this court’s majority decision was in direct conflict with the chancellor’s decision and this court, based on the rationale and conclusion reached in its opinion, never intended to affirm the trial court’s holding. Because the use of the language “appeal dismissed” in the opinion was apparently confusing to the respondents, the court made an attempt by its July 5,1988 per curiam to clarify any confusion. Ark. Code Ann. § 16-67-325(a) (1987) (the supreme court may dismiss the cause and enter such judgment upon the record as it may in its discretion deem just). Unquestionably, this court has the authority to recall a mandate regularly issued in situations where a misapprehension exists. See 5(B) C.J.S. Appeal and Error § 1996 (1958); see also Lindus v. N. Ins. Co. of New York, 103 Ariz. 160, 438 P.2d 315 (1968); Ginn v. Penobscot Co., 342 A.2d 270 (Me. 1970). Although I believe the majority opinion and the court’s mandate can only be read as countervailing and dismissing the trial court’s decree, I would recall the mandate and modify it to read, “Reversed and remanded with directions to the chancery court to dismiss this cause.” Surely, such modification would alleviate any misapprehensions or doubts as to what disposition the majority intended when delivering and issuing its opinion and mandate.

Hays, J., joins in this concurrence.

John I. Purtle, Justice,

dissenting. I dissent not only because the majority is so blatantly wrong, but because I want the record to clearly reveal that I did not in any way contribute to the manner in which this case has been handled by this court.

The decision to grant the petition for a writ of prohibition was made more than 17 days after the opinion in this appeal had been rendered and the mandate issued. When one faction was ordered to show cause why it should not be held in contempt, the petition was filed in this court seeking temporary relief. We gave them what they asked for, and gratuitously dismissed the whole law suit without any consideration of the merits and in spite of the lack of any precedent from any jurisdiction to support such action.

In a purely collateral proceeding, after the decision of the court had become final, the majority simply decided to put an end to the case by dismissing it. The precedent established by this action leaves open the right of any party to collaterally attack decisions of this court at any period in time. Unless this is a onetime-only case, our decisions can no longer be considered final. I wholeheartedly agree with the statements contained in the petition for rehearing, which is on file with the clerk of this court.

I would grant the rehearing and reinstate the case to be heard on its merits.


author: Darrell Hickman,

text:
    Patricia GRAHAM v. Charles W. INLOW, et al.
    88-68
    753 S.W.2d 277
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      Slinkard & Halbrook, P.A., by: Howard L. Slinkard, for appellant.

      Cypert, Crouch, Clark & Harwell, by: Charles L. Harwell, for appellees.
   Darrell Hickman,

Justice. The legal question in this case is whether a deed from a husband to his wife and three children, as tenants in common, is void because the wife did not join in the deed. The trial court held it was, and dismissed a partition suit filed by one of the children. On appeal we find the judge was wrong; the deed should not have been declared void because the evidence clearly reflects that the wife accepted and approved of the deed. Therefore, the order is reversed and the case remanded.

The facts are essentially undisputed. Robert Inlow was married twice. By his first wife, who is deceased, he had one child, Patricia Graham. Patricia is the appellant. By his second wife, Freda, he had two children, Charles and Carol Inlow. Freda, Charles, and Carol are the appellees.

In April, 1979, just a month before he died, Robert Inlow executed a warranty deed granting a 287 acre farm to his wife and three children who were all adults at the time. Freda had the deed prepared and recorded, although she did not join in it. Several months later, in December, Freda prepared an affidavit stating that the deed was to Freda and the three children, but that Robert had expressed his desire, in the presence of several witnesses, that Freda have the home and the south 70 acres of the property. Apparently, the appellant did not know of the deed until early 1980, when Freda asked her to sign the affidavit, which was also signed by the other two children.

In July, 1986, Patricia Graham filed a partition suit to have the land partitioned. The trial court examined the applicable statutes and case law and concluded that the deed interfered with the wife’s homestead interest and that the partition suit would defeat that interest. The trial judge found the deed void and dismissed the partition suit.

The statute in question is Ark. Code Ann. § 18-12-403 (1987). It provides basically that no conveyance affecting the homestead of a married person shall be valid unless his or her spouse joins in the execution of it. But we have consistently interpreted the statute to read that a deed to a wife and children is valid, although the wife does not join in the deed, if the conveyance is approved of and accepted by the wife. Polk v. Stephens, 126 Ark. 159, 189 S.W. 837 (1916). (In Stephens v. Stephens, 108 Ark. 53, 156 S.W. 837 (1913), a prior appeal of the same case, we stated that a conveyance to the wife and children would not be valid unless the wife joined in the deed, but went on to state that the issue was not squarely before us. In Polk the issue was squarely before the court.) See also Kindly v. Spraker, 73 Ark. 228, 79 S.W. 766 (1904), and Lathrop v. Sandlin, 223 Ark. 774, 268 S.W.2d 606 (1954), where we held that the wife need not join in a conveyance from her husband to herself. In Lathrop we stated:

We have consistently held that this restriction [requiring wife to join in deed] does not apply to a conveyance by a husband to his wife where the conveyance is accepted by her ....

In this case we find no evidence that Freda did not accept the conveyance; on the contrary, there is every indication that she did. She had the deed drafted and notarized and placed it on record herself. The affidavit she had prepared recognized the deed in question which conveyed the land to her and the three children.

We can find no basis to uphold the chancellor’s finding that the deed was invalid and must reverse the order and remand the matter for proceedings consistent with this opinion.

Reversed and remanded.


author: Darrell Hickman, Justice.

text:
    Tommy McINTOSH, Charles Marvin Hayes, and Maurice Crawford v. STATE of Arkansas
    CR 88-10
    753 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988
    [Rehearing denied September 12, 1988.]

      John Wesley Hall, Jr., for appellant.

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

The appellants, who were in a rented van, were stopped by a state trooper near Ozark, Arkansas, for speeding. The trooper became suspicious and asked them if he could search the van. The driver and one other agreed, and the trooper found two kilograms of cocaine worth approximately $250,000. The appellants were convicted of possession of a controlled substance with the intent to deliver. Maurice Crawford received 40 years in prison and a $100,000 fine; Charles Hayes received 40 years in prison and a $50,000 fine; and Tommy McIntosh received 50 years in prison and a $250,000 fine.

The main issue on appeal is whether the search of the van was based on the valid consent of two of the appellants. The trial judge ruled that the search was valid and upon examining the record, we agree. We also conclude there was substantial evidence to support the convictions of all three appellants. No error requiring reversal was committed when an officer testified that the appellants made no comment when asked whether they had been to California. We find no basis to address the question of ineffective assistance of counsel, which is raised for the first time on appeal.

We state the facts in a light most favorable to the appellee which is the practice on appellate review. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). A state trooper, David Hyden, clocked the appellants’ van at 80 m.p.h. on the interstate near Ozark, Arkansas, on February 8,1987. He pulled the van over. The driver was Tommy McIntosh, who was asked to accompany the officer to the police car. Hyden noticed that the mileage on the van’s odometer was approximately 5,000. McIntosh gave Hyden his driver’s license and a rental agreement as evidence of registration which reflected that the van had been leased in Little Rock four days earlier and the mileage was 1,500 miles. Hyden asked McIntosh about the mileage, and McIntosh told him there must be some mistake because they had only driven to Oklahoma City to see some friends. Hyden testified that McIntosh was extremely nervous. Because of McIntosh’s nervousness and the discrepancy in the mileage, Officer Hyden asked for permission to search the van. McIntosh agreed and signed a consent form. McIntosh pointed out that Crawford had actually rented the van and perhaps he should also consent. According to Hyden, Crawford was called to the police car and asked if he would consent to a search, which he did. Hayes, who was in the back seat lying down, was not asked. During the search the officer found two kilograms of cocaine wrapped in light brown plastic tape in two separate packages. Eight thousand dollars in eight packets of $1,000 each, $29 in one dollar bills and two guns were found.

The appellants were taken to police headquarters and questioned further. They told conflicting stories about their visit to Oklahoma. A further search of the van produced receipts for merchandise purchased in California and motel receipts from California.

At the trial the appellants all testified that they had taken a four day vacation to California. McIntosh said one of the reasons for the trip was to purchase a certain type of tennis shoe which was not available locally. They also said they planned to do some shopping and see some girls.

We address the search question first. The appellants argue that the consent of both McIntosh and Crawford was invalid, first because it was either expressly or impliedly coerced, and second because it was not based on a reasonable suspicion. We have held that “[t]he state has the burden of proving by clear and positive testimony that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.” Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). We look at the totality of the circumstances in determining whether a consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 217 (1973). There were no coercive circumstances present, express or implied, in this case. A single officer asked the driver and the person listed on the rental agreement as the driver to consent and they readily did so. The court may also take into consideration whether a defendant knew he had the right to refuse consent in determining voluntariness although it is not a conclusive factor. Schneckloth v. Bustamonte, supra. In the present case the consent form contained the statement, “I have been informed by the above named State Police that I may refuse to consent to any search and that I may revoke my consent at any time.” Considering the totality of the circumstances, we cannot say the trial judge was clearly wrong nor was the decision contrary to the law.

The appellants argue that the consent was not valid because it was not based on reasonable suspicion that there was contraband or the presence of criminal evidence. The appellants rely on language in Garrett v. Goodwin, 569 F. Supp. 106 (E.D.Ark. 1982), and a proposed opinion issued by a federal magistrate to the local district federal court. The Garrett case is limited to roadblocks conducted by the Arkansas State Police and for obvious reasons, we would never use a proposed order as precedent. More importantly, the appellants’ argument has never been declared to be the law by the United States Supreme Court. Under existing law, this search was valid. Automobiles have a diminished expectation of privacy. United States v. Chadwick, 433 U.S. 1 (1977). The initial stop, which is always critical in search cases, was legal — for a speeding violation. See Russell v. State, supra. The trial judge held the consent to search was valid and voluntarily given.

In Schneckloth v. Bustamonte, supra, the United States Supreme Court observed:

The circumstances that prompt the initial request to search may develop quickly or be a logical extension of investigative police questioning. The police may seek to investigate further suspicious circumstances or to follow up leads developed in questioning persons at the scene of a crime.

Several other peripheral arguments are made regarding the search, but we conclude that the trial court’s decision on this issue was not wrong.

The appellants argue that the trial court erred in denying a mistrial when a police officer, testifying, commented on the appellants’ failure to answer a question. Officer Best testified as follows:

Q. Now, he (Crawford) told you that he had not been to California. Did you show him some of the California receipts, that the jury’s seen, or ask him about them?
A. Not during the interview.
Q. Okay.
A. Not at this particular time.
Q. What about the other subjects?
A. They were all three seated in Sergeant Taylor’s office after the individual interviews had been conducted, at which time I confronted him as to whether or not they had been in California, that we had received or obtained the motel receipts from the floor of the vehicle, and all three made no comment.

An immediate objection was made by the appellants’ attorney and the following discussion took place during a side bar conference:

Mr. Massie: Your honor, it’s one thing if they’re talking about — if they’re talking about a statement that they made. It’s another thing if they exercise any right not to comment. Now, I think that was improper, as such, and I ask the court for a mistrial and also, in furtherance, that we not give them thing where they exercised their rights in not making any comment, because they’re exercising their right to remain silent. In terms of he’s saying they made no comment is one thing that they said, something in response to.
The Court: I don’t think it’s grounds for a mistrial. I will instruct the jury that the testimony —
Mr. Massie: I don’t think the court needs to call that attention to it, but I ask that the court acknowledge the prosecutor not to elicit anything in terms of their response to in the future; otherwise, I think a request for a mistrial, if it is done a second time, ought to be granted, once the prosecutor is put on notice of that particular matter.
Mr. Fields: I think the Defense’s request is reasonable and I will not get into that.
The Court: All right, sir.

In a recent United States Supreme Court case, Greer v. Miller,_U.S__, 107 S. Ct. 3102 (1987), a similar situation arose. The prosecutor asked the appellant when he testified, “Why didn’t you tell this story to anybody when you got arrested?” An immediate objection and motion for mistrial was made. The trial judge stopped further inquiry but denied the mistrial. The error in the present case is even less apparent than the one made in Greer. Here it was not the prosecutor who referred to the appellants’ silence but a police officer who gave an unsolicited response. The trial judge did not allow nor did the prosecutor attempt to use the appellants’ silence for impeachment purposes or call attention to their silence. See Doyle v. Ohio, 426 U.S. 610 (1976).

We have held that a “mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury.” Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987). Although the trial judge offered to give an admonitory instruction to the jury, the appellants refused the offer. This case is somewhat similar to Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988), where the trial court refused a mistrial when a police officer, in explaining a photographic lineup, spoke of “mugshots” being pulled from the police files. In Wheat the appellant also failed to ask for an admonition. We cannot say the trial court was wrong in this case to deny a mistrial. See Greer v. Miller, supra.

It is argued that the trial court was wrong in denying motions for a directed verdict on behalf of McIntosh and Hayes since there was no substantial evidence to support their convictions. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982).

The cocaine was found wrapped in tape inside a shopping bag which had Crawford’s fingerprints on it. Both Hayes and McIntosh told the officer that they had pistols in the van. (The two guns were not illegal weapons.) All three appellants denied being in California. However, Officer Best found motel receipts in the van from a motel in Monrovia, California. They were in Hayes’s name. All three appellants gave the officers conflicting stories as to where they had been. Officer Hyden testified that McIntosh told him that he had been to Oklahoma City to see some friends; Officer Best testified that Hayes told him they had been to Ardmore, Oklahoma, to visit his girlfriend, but he was unable to give the police her address or phone number; Best also testified that Crawford told him they had gone to Oklahoma to attend a funeral, but he could not tell him the person’s name or where the funeral had been held. During the trial all three testified that they had gone to California to vacation, shop, and see some girls. The van was rented on February 4,1987, and driven to California and back by February 8, 1987. The jury could conclude this journey was not what the appellants contended, a shopping trip to California, but rather simply a drug run which all three knew about, participated in and should be held accountable for.

The appellants raise the issue of ineffective assistance of counsel for the first time on appeal, contending that their attorney had an obvious conflict of interest in representing all three. It is argued that we can conclude this fact from the record without the issue being raised below. The appellants cite Glasser v. United States, 315 U.S. 60 (1941), and Holloway v. Arkansas, 435 U.S. 475 (1978), as authority. However, in both Glasser and Holloway the issue was raised below. We can make no such conclusion from the record, and we have held that ineffective assistance of counsel cannot be raised for the first time on appeal.

Affirmed.


author: John I. Purtle, Justice.

text:
    Samuel L. LEWIS v. James Keith CROWE, et al.
    88-18
    752 S.W.2d 280
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      Walter A. Murray, for appellant.

      Baxter, Eisele, Duncan & Jensen, for appellees.
   John I. Purtle, Justice.

This is an appeal from a judgment of the circuit court awarding the appellees the sum of $269,799 for damages suffered as a result of an automobile collision. The trial court granted the appellees a default judgment and made a factual determination as to the award of damages. On appeal the appellant argues that the trial court (1) erroneously awarded the default judgment; (2) made an award which is excessive and not supported by substantial evidence; and (3) erroneously rejected the appellant’s motion for a continuance. We are not persuaded that any of these arguments merit reversal of the decision of the trial court. Therefore, the judgment is affirmed.

On December 1, 1986, the appellant and appellee were involved in an automobile accident in North Little Rock, Arkansas. The appellee was a resident of Saline County and the appellant was a resident of Jefferson County, Arkansas. The complaint was filed in Saline County on December 16,1986, and the appellant was served in Jefferson County by registered mail on January 8,1987. The complaint alleged that the accident was a result of the negligence of the appellant. An answer was not filed until April 7,1987. The answer denied any negligence on the part of the appellant and alternatively alleged contributory negligence.

State Farm Insurance Company subsequently filed a complaint in intervention to recover payments made to the appellee for lost wages resulting from the injuries received at the time of the collision. National Medical Rentals, owner of the automobile the appellee was driving at the time, also filed an intervention in which it sought to recover for the loss of the value of the automobile. Additionally, St. Paul Fire and Marine Insurance Company, the appellee’s employer’s workers’ compensation carrier, filed an intervention seeking recovery pursuant to Section 40 of the Workers’ Compensation Act (Ark. Code Ann. § 11-9-410 (1987)).

On March 12,1987, no answer having been filed, appellee’s attorney wrote a letter to the Reynolds Insurance Agency which he believed carried insurance on the vehicle the appellant was driving at the time of the occurrence. The letter informed Reynolds that the appellee understood that Reynolds carried a liability policy insuring the vehicle driven by Lewis and owned by David L. Edwards. The letter stated that a default judgment had not yet been taken and that the appellee would be willing to allow an answer to be filed “if I would simply be contacted.” On April 6, 1987, the appellant’s attorney contacted the appellee’s attorney and informed him that an answer would be filed. An answer was in fact filed the following day.

Subsequent to the filing of the answer, the three previously mentioned interventions were filed. The appellant’s lawyer filed an answer to State Farm’s intervention, but no answer was filed to the complaint in intervention of St. Paul Fire and Marine or that of National Medical Rentals.

At the trial by the court on September 30, 1987, the court found that the appellant was aware of the interventions and that they would be allowed. The court awarded St. Paul and State Farm judgments which were included in the judgment for $267,000 awarded the appellee. A separate judgment in favor of National Medical Rentals, Inc., in the amount of $2,799 was rendered by the court.

Appellee, National Medical Rentals, has filed a motion to strike the appellant’s reply brief on the grounds that the appeal as to them was not perfected. In view of our decision in this appeal, this motion is moot.

The first argument the appellant raises is basically that the trial court erred in granting the default judgment because the appellee’s attorney waived the right to the default judgment by voluntarily agreeing that an answer could be filed at a time when the defendant was already in default. In Webb v. Lambert, 295 Ark. 438, 748 S.W.2d 658 (1988), we held, citing ARCP Rule 12(a) (1987), that a resident defendant is required to file an answer within 20 days of the date of service upon the defendant and that “file” means that the answer “ ‘shall be filed with the clerk of the court’ Rule 5(c), or with the judge, Rule 5(d).” In Webb we held that the failure to file the answer according to the rules requires that the court shall enter a default judgment under ARCP Rule 55(a) “unless there is excusable neglect, unavoidable casualty, or other just cause as provided in Rule 6(b).” See also ARCP Rule 55(c) (1987). We have held that it is an abuse of discretion for the trial court to refuse to grant a default judgment after the period for an answer has expired in the absence of excusable neglect, unavoidable casualty, or other just cause. DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). In the present case we have concluded that the trial court’s determination that there was no valid reason under the rules for allowing an untimely answer was not clearly against the preponderance of the evidence.

Even though both Webb and DeClerk involved default judgments, neither considered the issue of waiver. The only evidence of waiver in this case is appellee’s attorney’s letter of March 12, 1987, offering to allow an answer to be filed. An answer was filed 25 days later. The answer denied negligence and alternatively argued contributory negligence on the part of the appellee. The motion for a default judgment was filed by the appellee on September 23, 1987. On September 25, 1987, the appellant’s attorney responded to the motion and asserted waiver. A copy of the letter of March 12, 1987, was attached to this response. Between March 12, 1987, and the date the default judgment was entered, September 30,1987, numerous pleadings were filed. These pleadings generally related to the interventions, discovery and requests for a continuance. There were no pleadings relevant to the issue of a default judgment nor was there an assertion of waiver until the September 23 motion of the appellee.

We have not been cited a factually similar case, nor do we find any precedent of this court on the issue of “waiver” of the right to a default judgment under the circumstances of this case. The rules do not provide for a waiver. However, Rule 55(c) provides that the court may set aside a default judgment previously entered upon a showing of excusable neglect, unavoidable casualty or other just cause. Obviously, it was the intent of this rule to require a judgment to be entered against a defaulting defendant unless the exceptions set out in Rule 6(b) were present. In the present case the trial court made a factual determination, which was virtually uncontested, that there was no just cause under Rule 6(b) to refuse to enter a default judgment.

The statement of appellee’s counsel that he had expressly reserved the right to a default judgment was virtually uncontested. The court gave both appellant’s and appellees’ attorneys unlimited discretion in discussing the issues and status of the case prior to default being granted and proof of damages being received. Although the attorneys were not sworn as witnesses, the court was entitled to rely on their word and give it consideration, especially when it was uncontradicted. There was no material factual dispute. The difference of opinion is the manner in which the law was applied to the facts.

In granting the default judgments to the appellees, the trial court specifically found that there was no evidence of excusable neglect, unavoidable casualty, or other just cause to excuse the failure to timely file an answer. The trial court also found that there had been no waiver by the plaintiff of his right to a default judgment. As previously discussed, we have not been cited, nor do we find, any precedent of this court or any rule of procedure concerning “waiver” of the right to a default judgment. In Webb this court held that upon the failure of a resident defendant to file an answer within 20 days, the court shall grant a default judgment unless there is excusable neglect, unavoidable casualty, or other just cause. We therefore conclude that, under the circumstances of this case, the trial court did not err in awarding the default judgment. Moreover, there is no provision under Arkansas law for “waiver” of the right to a default judgment.

Appellant’s second argument is that the trial court’s award of damages was excessive and not supported by substantial evidence. The deposition of the appellee’s orthopedic surgeon included statements that appellee’s permanent partial disability would be at least 5 % to the body as a whole and could go as high as 30%. However, the trial court excluded all parts of the deposition which supported a permanent partial disability in an amount greater than 5 %. The testimony of the doctor and the appellee was to the effect that appellee’s injuries included a fractured vertebra and a shoulder injury; and that the compression fracture resulted in nerve damage causing permanent weakness and numbness of the left leg. The appellee testified that he had incurred medical expenses in excess of $12,000 and lost wages approximating $20,000 at the time of the trial. The trial court specifically stated that he would not consider any testimony of the doctor which was “speculative.”

In reviewing the sufficiency of the proof, we review the evidence in the light most favorable to the appellee and if any substantial evidence exists to support the award, we affirm. The test in determining whether any substantial evidence exists is not whether the testimony would have supported some other conclusion but whether it supports the conclusion reached by the trier of fact. Arkansas Western Gas Co. v. Public Service Commission, 266 Ark. 668, 588 S.W.2d 424 (1979). We conclude that the trial court assessed the evidence of pain and suffering and permanent disability without having to resort to conjecture or speculation. See Handy Dan Home Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985). Wedo not disturb a judgment on the grounds of excessiveness unless we determine that it was influenced by prejudice or that it shocks the conscience of the court. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981).

The final argument is that the court erred in denying a continuance to the appellant for the purpose of locating a witness to the accident and for obtaining further medical evidence. The default judgment rendered the testimony on liability moot. The denial of the request for a continuance in order to obtain additional medical testimony was clearly within the sound discretion of the trial court.

Affirmed.

Glaze, J., concurs.


author: Robert H. Dudley, Justice. Tom Glaze, Justice, Steele Hays, Justice,

text:
    Rev. Louis J. FRANZ, Individually and as Next Friend of Ronald Gene Simmons v. STATE of Arkansas
    CR 88-76
    754 S.W.2d 839
    Supreme Court of Arkansas
    Opinion delivered July 11, 1988

      Mark S. Cambiano, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.

      John Harris and Robert E. Irwin, for Ronald Gene Simmons.
   Robert H. Dudley, Justice.

On May 16, 1988, Ronald Gene Simmons was convicted of capital murder and sentenced to death in the Circuit Court of Franklin County. Immediately after being sentenced, Simmons took the stand and made a statement that included the following: “I, Ronald Gene Simmons, Sr., want it to be known that it is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence. It is further respectfully requested that this sentence be carried out expeditiously.” Even after the trial court set a date for execution, Simmons refused to exercise his unqualified right of appeal. The trial court subsequently conducted a hearing and found that Simmons was competent to waive his right to an appeal and that his decision on the waiver was knowingly and intelligently made. As the date for execution neared, Rev. Louis J. Franz petitioned this court to allow him to proceed in this Court on Simmons’ behalf as next friend, asked for a stay of execution, and asked that we make appeal mandatory in death cases. We granted a stay of execution and asked the parties and the petitioner to file briefs on (1) whether the petitioner has standing; (2) whether this Court should change its rules to require mandatory review of death cases; (3) if there is no rule change to require mandatory review of death cases, whether a decision to waive appeal in a death case should be reviewed by this Court; and (4) if appeal may be waived, whether the defendant in this case understood the choice of life or death and knowingly and intelligently made that choice. Briefs have been received and oral arguments have been heard on the issues.

1. Standing of Rev. Franz

The requirements of next friend standing are twofold. See, e.g., Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980). The Davis court noted, “The petitioners must first meet the threshold requirement of showing they are ‘next friends.’ If that showing is made, petitioners must also demonstrate that a ‘next friend’ suit is maintainable because the person on whose behalf they act is incompetent.” Id. at 275.

As to the first requirement, the qualification as a next friend, the Davis court noted:

The case law does not establish an easily applied test as concerning the requirements for standing as “next friend.” The cases establish that such actions may be appropriate in cases of infancy, lack of time, and incompetency. United States v. Preiser, 506 F.2d 1115, 1126 n.8 (2d Cir. 1974). Although the relationship and interest of the proposed “next friend” is to be considered by the court before it entertains such an action, the cases do not adequately define who might act as next friend. See Weber v. Garza, 570 F.2d 511 (5th Cir. 1978). The court must start with the proposition that members of the public in general do not have a right to intercede as “next friend” in an action such as this because they are morally or philosophically opposed to the death penalty. On the other end of the scale, close relatives, such as a parent, spouse, or sibling, who maintain a close personal relationship with the aggrieved, would be appropriate persons to maintain a “next friend” action.

Davis, 492 F. Supp. at 275.

The facts of the Davis case are similar to the facts in this case. One of the persons seeking “next friend” status in Davis was the Rev. Murphy Davis. The court noted:

The testimony shows that Reverend Davis is an ordained Presbyterian minister and Director of the Southern Prison Ministry of Georgia. She is philosophically opposed to capital punishment. Reverend Davis has had some personal contact with [the defendant] over approximately one and a half years and has counseled with him on occasion. The evidence does not demonstrate that she is in any way his personal minister or religious adviser.

Id. The court held, “Although the court has no doubt as to the deep sincerity of Reverend Davis’ convictions, her connection with [the defendant] is that of a concerned minister who has made herself available to assist him. Such a relationship is insufficient to confer upon her status as ‘next friend.’ ” Id. at 275-76. The court then went on to quote Justice Rehnquist’s concern expressed in an opinion written in the capacity of Circuit Justice: “ [H] owever worthy and high minded the motives of ‘next friends’ may be, they inevitably run the risk of making the actual defendant a pawn to be manipulated on a chessboard larger than his own case.” Lenhard v. Wolff, 443 U.S. 1306, 1312, stay of execution denied, 444 U.S. 807 (1979), quoted in Davis, 492 F. Supp. at 276.

Rev. Franz’s connection to Simmons is even more tenuous than the one in Davis. According to his petition, Rev. Franz is a Catholic priest who counsels inmates at the Arkansas Department of Correction. There is nothing in his petition to indicate that he is Simmons’s minister, spiritual adviser, or confidant, or even less, that the two have ever met. We hold that Rev. Franz has failed to allege any facts to show that his relationship to Simmons is sufficiently close to give rise to next friend status, and we therefore cannot grant him standing on this basis.

Rev. Franz alternatively argues that even if he does not have standing as next friend, he has standing as a taxpayer under article 16, section 13 of the Constitution of Arkansas, the illegal exaction provision. The argument is without merit for at least two reasons. First, a suit to prevent an illegal exaction must be commenced in a trial court. Such a suit cannot be commenced in this appellate court. Second, the constitutional provision is not so broad that it gives one taxpayer the right to intervene in the merits of a criminal case against another person.

Rev. Franz’s last alternative argument is that if he is not granted standing in this case then important legal issues will go unresolved at the appellate level. Even though this is true, it is not sufficient to give petitioner standing. In Gilmore v. Utah, 429 U.S. 1012 (1976), the Supreme Court of the United States terminated Gary Gilmore’s stay of execution at his request. At the time, the constitutionality of the Utah death penalty statute had not been reviewed by either the Utah Supreme Court or the Supreme Court of the United States. Justice White noted in his dissent (which was joined by Justices Brennan and Marshall) that “there are substantial questions under Furman v. Georgia, 408 U.S. 238 (1972), about the constitutionality of the Utah death penalty statute. Because of Gary Gilmore’s purported waiver of his right to challenge the statute, none of these questions was resolved in the Utah courts.” Gilmore, 429 U.S. at 1017-18 (White, J., dissenting). Justice Blackmun also noted that the constitutional question was “not insubstantial.” Id. at 1020 (Blackmun, J., dissenting). Chief Justice Burger (joined by Justice Powell) was unconcerned, noting, “Gilmore has not challenged the validity of the statute under which he was convicted, and there is no other party before this Court with requisite standing to do so.” Id. at 1017 n.7 (Burger, C.J., concurring). The existence of the question was not sufficient to give a third person standing, and, therefore, the question went unresolved at the appellate level. Accordingly, we reject Rev. Franz’s attempt to gain standing simply because of the existence of important legal issues which remain unresolved at the appellate level.

2. Mandatory Review

However, as has often been noted, “the penalty of death is different in kind from any other punishment imposed under our system of criminal justice.” Gregg v. Georgia, 428 U.S. 153, 188 (1976). Because of the punishment’s uniqueness and irreversibility, we choose to state clearly the law in Arkansas regarding the waiver of appeal in death cases.

The threshold question is whether an appeal is mandatory in cases involving a death sentence. We have said that it is not: “[T]here is no mandatory appellate review in Arkansas.” Collins v. State, 261 Ark. 195, 211, 548 S.W.2d 106, 115, cert. denied, 434 U.S. 878 (1977).

The next question is whether the lack of mandatory appeal renders our law unconstitutional. We have held that it does not:

It is urged, however, that our system does not meet Gregg-Proffit-Jurek standards necessary to avoid Eighth and Fourteenth Amendment prohibitions for lack of a mandatory appeal of a judgment imposing the death penalty and of appellate review which compares cases in which the death penalty has been imposed. [This is a reference to the standards set out in Gregg v. Georgia, 428 U.S. 153 (1976), Proffitt v. Florida, 428 U.S. 242 (1976), and Jurek v. Texas, 428 U.S. 262 (1976).]
We find nothing in any opinion, and certainly no majority, which supports a holding that there must be either a mandatory or automatic appeal of a judgment imposing the death penalty or that there must be appellate review which compares cases in which the death penalty has been imposed. . . .
... It seems to us that the only actual requirement, even of the Stewart plurality, is that a meaningful appellate review is available to insure that death penalties are not arbitrarily, capriciously or freakishly imposed. The important question is whether the system creates a substantial risk of arbitrariness or caprice.
The idea that in Gregg, Proffit, and Jurek, the United States Supreme Court has held that there must be a mandatory or automatic appeal from the imposition of the death penalty by a state trial court seems to have crumbled with the recent actions of the court in Gilmore v. State of Utah, 429 U.S. 1012, 97 S. Ct. 436, 50 L. Ed. 2d 632 (1976) .... If the Constitution of the United States requires that a state provide a mandatory appeal in such cases, we do not see how there can be a knowing and intelligent waiver of “any and all federal rights” [as was found in Gilmore] when there has been no appeal from the state trial court’s judgment imposing the death sentence. [Gilmore, too, had waived his right of appeal under state law.]

Collins, 261 Ark. at 204-06, 548 S.W.2d at 111-12.

To support his contention that appeals in death penalty cases are mandatory, the petitioner cites Ark. Code Ann. § 16-91-113(a) (1987) and Ark. R. Crim. P. 36.24. The statute provides, “The Supreme Court need only review those matters briefed and argued by the appellant, except that, where either a sentence for life imprisonment or death has been imposed, the Supreme Court shall review all errors prejudicial to the rights of the appellant.” Rule 36.24 contains almost identical language. These provisions, along with Ark. R. Sup. Ct. 11(f), simply mean that this Court must make its own examination of the record when an appeal is taken in such cases; they do not mandate an appeal.

3. Waiver

We note, however, that when a defendant sentenced to death declines to exercise his unqualified right to appeal, we will not automatically acquiesce to his desire.

In Collins, we noted that “[t]he likelihood that a death penalty would be executed without such an appeal, in the absence of a knowing and intelligent waiver, is highly improbable.” Id. at 211, 548 S.W.2d at 115. This language recently served as the basis for our decision in Rameta v. State, 294 Ark. 206, 740 S.W.2d 928 (1987) (per curiam). In Rameta, the defendant had been sentenced to death and wished to be executed. He petitioned us to dismiss his appeal. Relying on Collins, we held that such a defendant will not be allowed to forego an appeal unless the trial court, in its discretion, has determined that the defendant’s decision has been knowingly and intelligently made. However, we left two questions unanswered in Rameta.

The first question involves what standard is to be used by a trial court in determining whether a decision to waive appeal is knowing and intelligent. The federal standard seems to be “roughly equivalent to the standard used to determine competency to stand trial: the defendant will be competent unless he lacks sufficient ‘capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation.’ ” White, Defendants Who Elect Execution, 48 U. Pitt. L. Rev. 853, 863 (1987) (quoting Rees v. Peyton, 384 U.S. 312, 314 (1966) (per curiam)). This standard has been widely criticized. See, e.g., Strafer, Volunteeringfor Execution: Competency, Voluntariness and the Propriety of Third Party Intervention,! A J. Crim. L. & Criminology 860 (1983); White,supra. We feel that Professor Welsh White correctly summarized the problem with the standard:

The issue of competency is troubling. The present standard for competency to elect execution is roughly equivalent to the test for competency to stand trial. But the decisions involved in the two situations are entirely different. When competency to stand trial is at issue, the court is required to determine whether the defendant understands the charges against him and has the capacity to communicate effectively with his attorney. When competency to elect execution is involved, the issue is whether the defendant has the capacity to choose between life and death. The focus should be upon not only the defendant’s ability to understand the basic issue but also upon his ability to resolve it knowingly and voluntarily. Defense attorneys who specialize in capital cases claim that many capital defendants who have an adequate understanding of the charges against them and are fully competent to communicate with counsel should nevertheless be barred from electing execution because they lack either the judgment or the emotional stability to make a firm and stable decision, much less an informed one.

White, supra, at 867 (footnotes omitted). We adopt this higher criterion for declining to exercise the right to appeal in a capital case. Therefore, in Arkansas, a defendant sentenced to death will be able to forego a state appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.

The second question unanswered by Rameta is whether this Court must review a lower court’s determination on the issue of the waiver of an appeal in a capital case. We hold that we must. In future cases, when a lower court has made a determination that a capital defendant can make a knowing and intelligent waiver of appeal, and has done so, the State has the burden of bringing the record of the lower court proceeding on this issue to this Court for review. The record on this issue should, if possible, be lodged in this Court after the time for appeal has lapsed, but, in any event, it must be lodged at least seven days before the execution date. We will then review the proceeding to determine whether the defendant had the capacity to understand the choice between life and death and to knowingly and intelligently waive his rights to appeal his sentence of death. The standard of review, as in other types of criminal cases, is whether the trial judge’s conclusion is clearly erroneous. See Rector v. State, 277 Ark. 17, 638 S.W.2d 672 (1982).

In this case the trial judge found that the defendant made a rational choice and knowingly and intelligently waived his right to an appeal. That finding is not clearly erroneous.

Not only has the defendant failed to exercise his unqualified right to appeal, but, in addition, after being sentenced, affirmatively stated:

[I]t is my wish and my desire that absolutely no action by anybody be taken to appeal or in any way change this sentence.
It is further respectfully requested that this sentence be carried out expeditiously. I want no action that will delay, deny, defer or denounce this very correct and proper death sentence.
My attorneys have repeatedly counseled me to appeal. However, that is not what I want. I believe now, and always have, in the death penalty. To those who oppose the death penalty, I say in my particular case anything short of death would be cruel and unusual punishment.
I am of sound mind and body and have been seen by psychoanalysts, who can verify that I am capable of making a clear and rational decision. I have given clear and careful thought and consideration so there is nothing that will cause me to change my mind. I only ask for what I deserve. Let the torture and suffering end. Please allow me the right to be at peace.

At the same time his attorneys gave an affidavit in which they said he is “sane, rational, responsible and able to make his own decisions.”

At a subsequent hearing on his competency to waive appeal, Dr. Lew Neal, a highly qualified psychiatrist hired by the defense attorneys, testified and gave an affidavit which together unequivocally state that Simmons understands the consequences of his choice, is capable of making a rational decision, and is doing so freely and voluntarily.

Dr. Irving Kuo, a psychiatrist with the State Hospital, which is an agency independent of the prosecutor, see Parker v. State, 292 Ark. 421, 433, 731 S.W.2d 756, 762 (1987), examined Simmons during a sixty day evaluation before the trial and examined him for an hour and a half after the trial. He testified that Simmons understands the consequences of his choice and has made his choice knowingly. The key questions by the trial court and the decisive answers by Dr. Kuo are as follows:

Q. Of course, the conclusion that the Court has to reach today is not necessarily whether the Defendant appreciated the criminality of his conduct or that he was able to assist his attorneys. What I am required to do now is make a decision as to whether he can knowingly and intelligently waive his right to appeal his conviction. Do you have an opinion along those lines?
A. Yes, I do.
Q. Have you discussed this with Mr. Simmons?
A. Yes, I have.
Q. Do you feel that he is capable of making a decision that is knowingly and intelligently arrived at?
A. Yes, I do.
Q. What is the basis of your opinion?
A. Okay. During the hour and a half that I spoke with him I tried to retrace a little bit of history since the last time I saw him; and basically I conducted an interview for about ninety minutes and touched on a number of topics, including one about the sentencing and his desire to waive the—
Q. The appeal process?
A. —waive the appeal process; and in the course of that, I tried to get a feel of how he was today. I did what we call a mental status examination, which basically is a snapshot of — which basically is a snapshot of his psychiatric or mental condition right at the time that I interviewed him. My assessment was that he looked very much like he did during the two months that I had seen him earlier this year. There was no evidence of any psychotic process. His thinking was goal-directed, was relevant, logical. He seemed able to make an intelligent decision that was not interfered by — that didn’t have any interference by any kind of psychiatric problem that I could detect.
Q. Do you feel that Mr. Simmons is under any pressure or anything that’s causing him to take this position?
A. Well, I think that Mr. Simmons has some internal pressure in terms of wanting to waive the particular appeal process. I don’t think there is any external pressure from any outside source. I think that in spite of the conviction he comes across as an extremely moralistic very rigid gentleman who has some real rigid ideas about right and wrong and his own statement was that the punishment needs to fit the crime and he felt that this was, you know, an appropriate and proper decision, the one that came down on Thursday; and he seemed to think that it was quite proper. He seemed to indicate that he knew what he did. He indicated that it was in a somewhat premeditated fashion and that he felt that the punishment should fit the crime. He told me that he does believe in capital punishment.

At the conclusion of this hearing the trial court found that Simmons was competent to waive his right to an appeal.

One month later a competency hearing was held at the request of the petitioner, Rev. Franz. At that hearing the state hospital psychiatrist, Dr. Kuo, modified his opinion.

Dr. Kuo stated that his modified opinion came about as follows: He wrote to the defendant and said he would like to have another interview in order to obtain information for publication in a professional journal. The defendant responded and in the first sentence of the fifth paragraph wrote: “Evidence is beginning to surface to indicate that officials are starting to play their little games.” Dr. Kuo testified that one sentence “can hint towards” psychosis and therefore he had “some doubt” as to whether that opinion [his original opinion] was correct. At another time he said he had a “doubt,” not just “some doubt,” about his original opinion.

Dr. Kuo testified that his original opinion was given after sixty days of personal observation, not only by himself but by an evaluation team. He admitted that he had not talked to the defendant since his first opinion and admitted that no other member of the evaluation team was present to testify as to any doubt. Significantly, the petitioner did not attempt to call the defendant’s own psychiatrist.

Simmons took the stand and testified that he did not want Rev. Franz or anyone else to serve as his next friend.

The trial court again found Simmons competent to waive his right to appeal. The ruling is not clearly erroneous.

The trial court was in a position to observe the testimony of Dr. Kuo and the defendant. The Supreme Court of the United States has stated:

In United States v. Oregon Medical Society, 343 U.S. 169 (1952), commenting on the deference which this Court gave to the findings of a District Court on direct appeal from a judgment in a bench trial, we stated:
“As was aptly stated by the New York Court of Appeals, although in a case of a rather different substantive nature: ‘Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. . . . How can we say the judge is wrong? We never saw the witnesses. . . . To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.’ Boyd v. Boyd, 252 N.Y. 422, 429, 169 N.E. 632, 634.” Id., at 339.

Marshall v. Lonberger, 434 U.S. 422, 434 (1983).

Dr. Kuo did not retract his statement that the defendant was competent; he only stated that he had doubts about his original opinion. His original opinion was given based upon sixty days observation coupled with an hour and a half interview at the time of the first opinion. The doubt about that opinion was not created by a first-hand interview but by one sentence in a full-page letter. No other member of the evaluation team testified. Neither Dr. Neal, the defendant’s psychiatrist, nor the defense attorneys have retracted in any manner their statements that Simmons is competent to waive his right to appeal. Accordingly, we affirm the trial court’s ruling that the defendant is competent to waive his unqualified right to appeal.

We hold that Rev. Franz does not have standing and that the defendant understands the choice of life and death and has made a knowing and intelligent waiver of his right to appeal. Accordingly, the stay of execution which we granted on June 20,1988, is hereby terminated. Since Rev. Franz does not have standing, he does not have standing to file a petition for rehearing. Therefore, the mandate is ordered to be issued at the time this opinion is handed down.

Hays, J., dissents.

Glaze, J., concurs in part and dissents in part.

Tom Glaze, Justice,

concurring in part and dissenting in part. I agree with the majority that Reverend Louis J. Franz has no standing to pursue an appeal on behalf of Ronald Gene Simmons. While this court is confronted for the first time with the standing and competency issues in a death penalty situation, those issues have been considered and decided in numerous cases in other jurisdictions. See Smith, Mo. Public Defender Comm’n v. Armontrout, 812 F.2d 1050 (8th Cir. 1987); Lovelace v. Lynaugh, 809 F.2d 1136 (5th Cir. 1987); Rumbaugh v. McKaskle, 730 F.2d 291 (5th Cir. 1984); Hays v. Murphy, 663 F.2d 1004 (10th Cir. 1981); Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980); State v. Hightower, 214 N.J. Super. 43, 518 A.2d 482 (1986); and State v. Bailey, 519 A.2d 132 (Del. Super. Ct. 1986). All of the foregoing decisions cite Gilmore v. Utah, 429 U.S. 1012 (1976), and in relying on Gilmore, those courts have either generally, or specifically, adhered to the proposition that a defendant who has been sentenced to death can make a competent, knowing and intelligent choice to abandon further litigation, and when that choice is made, it will be honored by the courts. In each of the cases set out above, the court, quoting from Rees v. Peyton, 384 U.S. 312 (1966), posed the critical issue as follows: “Whether the defendant has the capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” If the defendant is determined to be competent, then a next friend has no standing to pursue further proceedings when the defendant chooses not to proceed.

In the present case, the trial judge held hearings to determine Simmons’s competency, and after analyzing considerable evidence and testimony, the judge found Simmons had the capacity to waive his right to an appeal. It is this court’s duty to review the lower court’s findings under the clearly erroneous standard. Cf. Smith, Mo. Public Defender Comm’n, 812 F.2d at 1058. The majority opinion details much of the testimony taken during the hearings bearing on the competency issue, and I thoroughly agree with the finding that the trial judge’s decision is not clearly erroneous.

In reaching its decision, the majority concludes that this court must review a lower court’s determination on the issue of the waiver of an appeal in a capital case. While the court gives no basis for its holding, I have no doubt that such a decision is required by the Supreme Court’s holding in Gilmore. It is really unimportant why the majority has decided that an appellate review is necessary in order to examine the waiver issue in capital cases, but once the majority did so, I believe it should have expanded such a review to include the sentencing stage of a defendant’s trial. My reasons for suggesting such a review are several.

First, the Supreme Court has not yet decided the issue as to whether a defendant has the power to waive the right to a state appellate review. Gilmore, 429 U.S. at 1017 (Burger, C.J., concurring). Instead, the Supreme Court in Gilmore merely reviewed the record bearing on Gilmore’s competency and decided his mother did not have standing to speak for him. I believe the Supreme Court’s holding implicitly requires that an appellate review be given in such competency matters. However, little more can be gleaned from the Gilmore decision. As a consequence, the Supreme Court — as well as this court — must still decide whether appellate reviews are mandated in capital cases. This court in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), discussed this very issue and by a four-to-three vote, the majority concluded that a mandatory or automatic appeal of a judgment imposing the death penalty is not required. Justice George Rose Smith wrote a persuasive dissenting opinion asserting that a mandatory review should be provided. Nothing more on the subject has been done by either this court or the General Assembly, and the Supreme Court has not reached or conclusively decided whether such appeals are mandated by the Constitution.

In addition to the fact that a substantial constitutional question still remains unresolved concerning the question of mandatory review, Arkansas, and perhaps Ohio, are the only states that have no specific provisions for an automatic review of capital cases. See U.S. Dept. of Justice, Bureau of Justice Statistics, Bull., Capital Punishment, 1986 (Sept. 1987). Although Ohio has been noted as a state that does not provide for an automatic review, the case of State v. Brooks, 25 Ohio St. 3d 144, 495 N.E.2d 407 (1986), lends some argument to the contrary. While such issue was not specifically addressed in Brooks, it is important to note that Brooks’s motion to withdraw his appeal of the death sentence was denied by the Ohio appellate court even though the record reflected Brooks was competent to stand trial. After denying Brooks’s motion, the Ohio Court of Appeals, and later the Ohio Supreme Court, reviewed Brooks’s death sentence in detail, concluding that the sentence was proper. In sum, out of the thirty-seven states that provide for the death penalty, thirty-five of them require an automatic review. As pointed out, the Ohio courts, representative of one of the two states that have no automatic review requirement, have failed to address the issue directly, but instead opted to review a capital case even after the defendant (who was found competent to stand trial) sought to abandon his right of appeal. Thus, by the majority’s opinion Arkansas becomes the only state that actually has chosen not to review a death penalty case.

Another reason for requiring reviews in death penalty situations is reflected in this state’s present laws. Arkansas’s laws clearly provide that great scrutiny be given death penalty cases before a defendant is executed. For example, in capital felony murder cases, a separate phase of the trial is required for sentencing, at which evidence relating to aggravating or mitigating circumstances may be presented to the same jury that found the defendant guilty of the crime. Ark. Code Ann. § 5-4-602 (1987). The jury is authorized to impose the death sentence only if it unanimously returns written findings that the aggravating circumstances exist beyond a reasonable doubt, that the aggravating circumstances outweigh all mitigating circumstances, and that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. Ark. Code Ann. § 5-4-603 (1987). Also, this court has held that the review of capital cases with death sentences requires the court to consult prior cases as precedent in order to determine whether there was error in the sentencing procedure, whether the evidence was sufficient to support any finding made by the jury, whether any of the findings were the result of passion or prejudice or other arbitrary factors and whether there was an abuse of discretion of either the jury or the trial judge in imposing sentence. Collins, 261 Ark. at 221, 548 S.W.2d at 212. Furthermore, this court is mandated under A.R.Cr.P. Rule 36.24 and Ark. Sup. Ct. R. 11(f) to review the entire record for errors prejudicial to the right of the appellant. Obviously, without mandatory appellate review, none of thé foregoing legal requirements can be measured when a defendant chooses to waive his right to appeal — which leads me to the final reason why I believe the appellate review of a defendant’s sentence should be required.

In my view, no criminal defendant, including Simmons in this cause, should dictate this state’s policy concerning whether death sentences should be reviewed. The question posed in these cases in no way involves the constitutionality of the death penalty itself. The courts are, however, confronted with the various constitutional and statutory requirements needed to be complied with when imposing the death penalty.

In a number of cases cited earlier in this opinion, the criminal defendants often changed their minds during their trials or appeals as to whether they desired to abandon or continue their rights of appeal. Obviously, such changes in attitude can be expected, but those changes also lead to extensions and delays in the judicial process. This court can avoid such delays by taking charge of this state’s appellate process and requiring that in every capital case where the death penalty has been imposed, the court will automatically review the lower court’s record of the sentencing phase of the trial.

The majority has — as I believe Gilmore requires — provided for review of any competency hearing required when a defendant chooses to waive his or her right of appeal. In the present case, a little more than two months have transpired between Simmons’s competency hearing and this court’s final review of that hearing. In my estimation, no delay would have been added if this court had reviewed the sentencing stage of Simmons’s trial. By adopting such a review procedure, the court would allow any defendant to waive his right of appeal concerning his guilt, but at the same time, the state’s highest court would provide a prompt review concerning whether the death penalty was constitutionally and appropriately imposed. This would ensure the scrutiny of death penalty cases that our law mandates.

Because Arkansas’s present procedure is, in my view, constitutionally suspect, this court could avoid those constitutional questions and potential pitfalls by reviewing the sentence phase of death penalty cases. Such a review would, at the same time, provide a more expeditious manner by which such capital cases may be disposed. Certainly, such a review procedure would place the process of review of capital cases in the control of the state’s judiciary, as it should be, rather than at the impulse or whim of a defendant.

Steele Hays, Justice,

dissenting. While I concur in the majority view that the Reverend Louis J. Franz lacks standing to act as next friend for Ronald Gene Simmons, I would adopt a rule for mandatory appellate review and apply it to this case.

I concede there is no express provision in our law for mandatory appeal, but it is at least arguable that our law now implicitly provides for mandatory review by this court in cases in which a sentence of death is imposed. While dictum to the contrary appears in Collins v. State, 261 Ark. 195, 211, 548 S.W.2d 106 (1977), that was not the holding and certainly does not prevent our adopting a rule for mandatory review in death cases. Moreover, in Collins this court committed itself to a proportional review where death is imposed on the defendant. Our Rule 11(f), adopted pursuant to Act 333 of 1971, states that “when the sentence is death or life imprisonment, the court must review all errors prejudicial to the appellant.” (My emphasis.) Additionally, in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we said that in a capital case if the trial court fails to instruct the jury that it has the option of returning a lesser penalty than death, that is reversible even in the absence of an objection. Keeping faith with Wicks, Collins, and Rule 11(f), mandates, I submit, appellate review of the entire record in death cases.

But whether the law now provides for mandatory appeal is beside the point, as it is plainly within the rule making power of this court to effectuate such a rule to operate immediately. If we can change our rule in a civil case to affect pending litigation, as we did in Ford Motor Credit Co. v. Nesheim, 287 Ark. 78, 696 S.W.2d 732 (1986), we can certainly do so where the death sentence is involved.

The adoption of such a rule, as I envision it, simply means that, notwithstanding a waiver of appeal by the defendant, this court, on information from either the Attorney General or the trial court, that a death sentence has been imposed, would issue a writ of certiorari for the record and appoint counsel to argue any errors prejudicial to the defendant. The unique severity of the death sentence and the public interest in its imposition demand nothing less.

The public’s interest and right to having a review of a death sentence is discussed in Kaine, Capital Punishment and the Waiver of Sentence Review, 18 Harv. C.R.-C.L. L. Rev. 483 (1983) (footnotes omitted):

The societal interest in ensuring that capital punishment is fairly imposed is too great to allow execution without the appellate scrutiny required by the eighth amendment
It is also inappropriate to grant complete power to a defendant’s waiver when that choice will infringe upon the constitutional rights of other citizens. The [Supreme] Court recognized this limitation on waiver in Richmond Newspapers v. Virginia, by holding that the first amendment rights of reporters and others to be present at a criminal trial outweighed a defendant’s waiver of a public trial. Similarly, an attempt to force execution by the state prior to the resolution of inquiries required by the Constitution violates that document’s protection of the public from abuse of state power.
Finally, statutory and judicial restrictions upon the ability of a capital defendant to decide whether to be present at trial or to pursue review of a sentence — decisions not generally based on specific constitutional protections — reflect the understanding that the death penalty is a matter of public as well as individual concern.

I do not question the right of a competent defendant to refrain from participating in an appeal, or to deny others the right to act in his behalf. But that right does not empower a defendant to by-pass appellate review any more than he could by-pass a trial or, if a plea of guilty is entered, a hearing on the guilty plea. These steps are basic, and where the sentence is death, appellate review is equally basic. By rejecting the opportunity to adopt a rule of mandatory review the majority has put Arkansas at odds with all but one of the thirty-seven states which have the death penalty, not an enviable position, and not one likely to endure.

       This Bulletin recites Arkansas, Florida, Ohio and Vermont have no such provisions but both Florida and Vermont have since amended their laws to provide mandatory reviews.

       Apparently the Ohio courts never required a hearing (or found one was necessary) to determine whether Brooks was competent to waive his right of appeal.

       On March 18, 1985, weamended Rule 2(a)(9)of the Rulesof Appellate Procedure to permit an appeal by Ford Motor Credit Co. from an order of the trial court certifying the case as a class action.